United States v. S&P Global Inc., et al.: Proposed Final Judgment and Competitive Impact Statement, 239-253 [2021-28484]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Notices]
[Pages 239-253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28484]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Antitrust Division


United States v. S&P Global Inc., 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, 
Order and 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. S&P Global Inc., et al., Civil Action No. 
1:21-cv-03003. On November 12, 2021, the United States filed a 
Complaint alleging that (1) S&P's proposed merger with IHS Markit Ltd. 
would violate Section 7 of the Clayton Act, 15 U.S.C. 18; and (2) the 
exclusivity and non-compete provisions of IHS Markit's Data License 
with GasBuddy LLC violate Section 1 of the Sherman Act, 15 U.S.C. 1. 
The proposed Final Judgment, filed at the same time as the Complaint: 
(1) Requires S&P and IHS Markit to divest three price reporting agency 
businesses, Oil Price Information Services (OPIS), Coals, Metals, and 
Mining (CMM), and PetrochemWire (PCW); (2) requires S&P and IHS Markit 
to waive the exclusivity and non-compete provisions of IHS Markit's 
Data License with GasBuddy; and (3) prohibits S&P, IHS Markit, and OPIS 
LLC from entering into, enforcing, renewing, or extending the term of 
any similar exclusive or non-compete provisions.
    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 Owen Kendler, Chief, Financial Services, Fintech, and 
Banking Section, Antitrust Division, Department of Justice, 450 Fifth 
Street NW, Suite 4000, Washington, DC 20530 (email address: 
[email protected]).

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

United States District Court

for the District of Columbia

    United States of America, U.S. Department of Justice, Antitrust 
Division, 450 Fifth Street NW, Suite 4000, Washington, DC 20530, 
Plaintiff, v. S&P Global Inc., 55 Water Street, New York, NY 10041, 
and IHS Markit Ltd., 4th Floor, Ropemaker Place, 25 Ropemaker 
Street, London, United Kingdom, EC2Y 9LY, Defendants.

Civil Action No.: 1:21-cv-3003-JEB

COMPLAINT

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action against S&P Global Inc. (``S&P'') and IHS Markit Ltd. (``IHSM'') 
to enjoin S&P's proposed merger with IHSM, to enjoin anticompetitive 
conduct by IHSM, and to obtain other equitable relief. The United 
States complains and alleges as follows:

I. Introducton

    1. On November 30, 2020, S&P and IHSM announced a merger to combine 
in an all-stock transaction that values IHSM at approximately $44 
billion. S&P and IHSM are both financial and commodity information 
conglomerates, providing market data, indices, news, and analytical 
tools to participants in various financial and commodity markets around 
the world.
    2. S&P and IHSM operate two of the four global price reporting 
agencies (``PRAs'') and two of the three leading PRAs in the United 
States. S&P provides PRA services through its Platts division 
(``Platts''), while IHSM offers PRA services primarily through its Oil 
Price Information Services (``OPIS''), Coal, Metals, and Mining 
(``CMM''), and PetrochemWire (``PCW'') businesses.
    3. PRAs provide price assessments, news, and analysis related to 
numerous commodity markets around the world. PRAs sell their services 
to commodity industry participants (e.g., oil refiners, commodities 
traders, large fuel consumers like airlines), that use the information 
to inform supply and demand decisions, as a reference for price terms 
in supply contracts, and as the basis for settling hedging instruments 
like futures contracts.

[[Page 240]]

    4. Competition between S&P's Platts division and IHSM's OPIS, CMM, 
and PCW businesses has resulted in lower prices and increased quality 
and innovation for PRA customers. The proposed merger would eliminate 
this significant competition in markets that are already highly 
concentrated.
    5. Accordingly, the proposed merger is likely to lessen competition 
substantially in violation of Section 7 of the Clayton Act, 15 U.S.C. 
18.
    6. Separately, in 2016, IHSM's OPIS division entered into a 20-year 
exclusive data license and non-compete agreement (the ``Data License'') 
with a third-party data provider, GasBuddy LLC (``GasBuddy''), that 
operates a popular crowd-sourced retail gas price information app and 
has long provided OPIS with pricing data for resale to commercial 
customers (e.g., retail gas station operators). This non-compete has 
effectively prevented and continues to prevent GasBuddy--a company well 
positioned to enter the retail gas price data market--from launching a 
data service that would compete with OPIS.
    7. Accordingly, the Data License unreasonably restrains trade in 
violation of Section 1 of the Sherman Act, 15 U.S.C. 1.

II. Parties to the Proposed Merger and the Data License

    8. S&P is a New York corporation headquartered in New York, New 
York. S&P is comprised of four business divisions: S&P Global Ratings, 
S&P Global Market Intelligence, S&P Dow Jones Indices, and S&P Platts. 
It reported global 2020 revenues of $7.44 billion.
    9. S&P Platts, which offers PRA services, among other products and 
services, accounts for roughly 12% of S&P's revenue, reporting global 
2020 revenues of $878 million.
    10. IHSM is a Bermuda corporation headquartered in London, England. 
IHSM is comprised of four business divisions: Financials Services, 
Transportation, Consolidated Markets & Solutions, and Resources. It 
reported global 2020 revenues of $4.29 billion.
    11. IHSM provides PRA services primarily through its OPIS, CMM, and 
PCW businesses, which are housed within IHSM's Resources division. 
OPIS, CMM, and PCW reported global 2020 revenues of approximately $140 
million.
    12. GasBuddy is a Delaware limited liability company that provides 
a crowd-sourced retail gas price information app. From 2013 until 2021, 
GasBuddy was owned by UCG Holdings LP (``UCG''). In early 2021, UCG 
sold GasBuddy to Professional Datasolutions, Inc.

III. Jurisdiction and Venue

    13. The United States brings this action under Section 15 of the 
Clayton Act, as amended, 15 U.S.C. 25, and Section 4 of the Sherman 
Act, 15 U.S.C. 4, to prevent and restrain Defendants from violating 
Section 7 of the Clayton Act, 15 U.S.C. 18, and to prevent and restrain 
Defendant IHSM from violating Section 1 of the Sherman Act, 15 U.S.C. 
1.
    14. Defendants are engaged in, and their activities substantially 
affect, interstate commerce. Defendants both offer commodity price 
assessments, news, and analysis throughout the United States. This 
Court therefore has subject matter jurisdiction over this action 
pursuant to Section 15 of the Clayton Act, 15 U.S.C. 25, and Section 4 
of the Sherman Act, 15 U.S.C. 4, and 28 U.S.C. 1331, 1337(a), and 1345.
    15. Defendants have each consented to personal jurisdiction and 
venue in this jurisdiction for purposes of this action. Venue is proper 
under Section 12 of the Clayton Act, 15 U.S.C. 22, and under 28 U.S.C. 
1391(b) and (c).

IV. Industry Background

    16. PRAs provide commodity price assessments, news, and analysis 
that are critical to the proper functioning of numerous commodity 
markets. Some commodities, like corn or wheat, are traded on exchanges, 
which make price information readily accessible. But for many 
commodities--including many energy commodities like refined petroleum 
products (e.g., gasoline and jet fuel), coal, and petrochemicals--
trading is done off-exchange in private transactions with no reporting 
obligations. It is in these opaque markets where PRA price assessments 
are used as a proxy for the prevailing market price.
    17. To produce these price assessments, PRAs collect information 
from commodity suppliers and participants in commodities transactions 
and then apply proprietary methodologies and editorial judgment. PRAs 
focus on providing daily price assessments, and often make the 
assessments available to subscribers via a data feed.
    18. In most cases, PRAs assess prices at a given time for a 
specific commodity at a specific geographic location (e.g., jet fuel in 
Los Angeles). In addition, most PRAs focus on assessing prices for spot 
(or bulk) transactions, which happen at the top of the supply chain 
(e.g., at the refinery gate where the commodity is created). Some 
PRAs--like OPIS--also sell information regarding commodity prices down 
the supply chain at the wholesale (referred to as ``rack'' in the 
industry) and retail levels. In contrast to spot-level PRA services, 
however, collecting rack and retail prices does not involve any 
``assessment.'' Rack and retail prices are posted and PRAs simply 
collect these posted (or charged) prices from market participants, or 
through third party aggregators, and then combine and offer the data to 
end customers. For example, retail gas station prices are knowable and 
the collection thereof does not require further assessment because gas 
stations advertise their prices for passing motorists.
    19. PRA customers are located worldwide and span a wide range of 
industries. While major oil and gas companies, commodities traders, and 
large energy consumers generate the majority of PRA revenues, there are 
many smaller customers that participate in, or are affected by, 
commodity markets.

V. Relevant Markets Related to the Proposed Merger

A. Relevant Product Markets

    20. S&P, through its Platts division, and IHSM, through its OPIS, 
CMM, and PCW businesses, both provide PRA services for refined 
petroleum products (e.g., gasoline and jet fuel), coal, and 
petrochemicals. More specifically, both companies provide spot-level 
price assessments, and related news and analysis, for dozens of the 
same types of refined petroleum products, coal, and petrochemicals, 
across dozens of the same geographic locations across the United States 
and the world.
    21. PRA services for any particular type of refined petroleum 
product, coal, or petrochemical are not a reasonable substitute for PRA 
services for any other type of refined petroleum product, coal, or 
petrochemical. Similarly, PRA services for a particular commodity at 
one geographic location are not a reasonable substitute for PRA 
services for the same commodity at a different geographic location. For 
example, the spot price of jet fuel in Los Angeles is not a reasonable 
substitute for a customer seeking the spot price of jet fuel in New 
York.
    22. Despite the lack of substitutability between PRA services for 
different commodities, or for the same commodity at different 
geographic locations, spot-level PRA services for U.S.-located (i) 
refined petroleum products, (ii) coal, and (iii) petrochemicals can be 
analyzed in the

[[Page 241]]

aggregate because each is offered under similar competitive conditions.
    23. Therefore, spot-level PRA services for U.S.-located refined 
petroleum products, coal, and petrochemicals are each lines of 
commerce, or relevant product markets, for the purposes of analyzing 
the effects of the proposed merger under Section 7 of the Clayton Act, 
Clayton Act, 15 U.S.C. 18.

B. Relevant Geographic Market

    24. Commodity market participants looking for spot-level PRA 
services for U.S.-located refined petroleum products, coal, or 
petrochemicals cannot reasonably turn to a PRA without significant U.S. 
operations and an established reputation for accurately reporting 
commodity prices and developments. To gather the trading details and 
market intelligence necessary to provide PRA services that customers 
can trust to reflect current trading conditions, PRAs must have a large 
number of U.S.-based analysts (referred to as ``price reporters'' in 
the industry) with close connections to the relevant players, and a 
detailed understanding of supply and demand dynamics, in the major U.S. 
trading hubs. In addition, PRA customers value established PRA 
providers that have a proven track record of accurately covering a 
given U.S. commodity market.
    25. A hypothetical monopolist of spot-level PRA services for 
refined petroleum products, coal, or petrochemicals in the United 
States could profitably impose a small but significant non-transitory 
increase in price for its services without losing sufficient sales to 
render the price increase unprofitable. Accordingly, spot-level PRA 
services for refined petroleum products, coal, or petrochemicals in the 
United States is a relevant market for the purposes of analyzing the 
effects of the proposed merger under Section 7 of the Clayton Act, 
Clayton Act, 15 U.S.C. 18.

VI. S&P'S Proposed Merger With IHSM is Likely to Result in 
Anticompetitive Effects

    26. Today, S&P and IHSM compete vigorously in each of the relevant 
markets, resulting in lower prices and increased quality and innovation 
for PRA customers.
    27. In each of the relevant markets, S&P and IHSM are two of a very 
small number of companies providing PRA services. In spot-level PRA 
services for both refined petroleum products and coal in the United 
States, S&P and IHSM are two of the three companies that generate the 
vast majority of revenues in the two markets. And in spot-level PRA 
services for petrochemicals in the United States, S&P and IHSM are two 
of the four companies that generate the vast majority of revenues.
    28. For many price assessments (e.g., the spot price for jet fuel 
in Los Angeles), one PRA will become the market standard, or benchmark, 
after an initial period where PRAs vie for market adoption. Once market 
adoption occurs, that PRA's price assessment becomes embedded in the 
market ecosystem, as it is frequently referenced in price indexation 
formulas in supply contracts and in the relevant derivative contracts 
traded on major derivatives exchanges that are used by market 
participants to hedge their positions.
    29. Competition among PRAs plays out in various forms. As 
referenced above, PRAs initially vie to become the benchmark price 
assessment for many commodities. Because benchmark price assessments 
can generate substantial subscription revenues, PRAs compete fiercely 
on price, quality, and innovation dimensions to gain benchmark status. 
And given the ongoing energy transition to more renewable energy 
sources like biofuels, there are likely to be many new benchmark 
opportunities in the near future. Established PRAs--like those operated 
by S&P and IHSM--are often best placed to compete for new benchmark 
opportunities.
    30. Even after one PRA has been chosen as the benchmark, 
substantial competition remains between the PRAs covering that 
commodity, including competition (i) among the non-benchmark PRAs to 
serve as a secondary source for many customers, who use the secondary 
source as a ``second look'' to check the accuracy of the benchmark 
provider, and (ii) between the secondary source and the benchmark 
provider along both price and quality dimensions, resulting from the 
disciplining effect of this second-look, accuracy check.
    31. While it is rare, some commodity markets have switched their 
benchmark from one PRA to another because of price and/or quality 
concerns. So, as one industry observer put it, ``[d]espite the enormous 
difficulties of displacing an incumbent and the extreme rarity of 
switches, rival PRAs have to nonetheless invest heavily in marketing 
and in business development staff in order to be considered as a 
credible alternative during those rare moments when the incumbent 
stumbles.'' \1\
---------------------------------------------------------------------------

    \1\ Owain Johnson, The Price Reporters: A Guide to PRAs and 
Commodity Benchmarks (Routledge 2018) at 34.
---------------------------------------------------------------------------

    32. By eliminating the substantial head-to-head competition that 
exists today between S&P and IHSM, the proposed merger would result in 
higher prices and decreased quality and innovation for PRA customers. 
Accordingly, the proposed merger likely would substantially lessen 
competition in spot-level PRA services for refined petroleum products, 
coal, and petrochemicals in the United States.

VII. Absence of Countervailing Factors Related to the Proposed Merger

    33. Entry into spot-level PRA services for refined petroleum 
products, coal, or petrochemicals in the United States is unlikely to 
be timely, likely, or sufficient to prevent the proposed merger's 
anticompetitive effects. As S&P and IHSM executives have recognized, 
barriers to entry into spot-level PRA services for refined petroleum 
products, coal, or petrochemicals in the United States are high. These 
barriers to entry include (i) the large sunk costs and significant 
other expenditures necessary to begin providing commodity price 
assessments, news, and analysis; (ii) significant time and expense to 
build a reputation for accurately covering commodity markets; and (iii) 
the difficulty of displacing a benchmark PRA provider once that PRA's 
price assessment becomes the benchmark and gets embedded in supply and 
derivative contracts. Unsurprisingly given all of these barriers, no 
significant PRA has entered in over 20 years.
    34. The proposed merger is unlikely to generate verifiable, merger-
specific efficiencies sufficient to reverse or outweigh the 
anticompetitive effects that are likely to occur.

VIII. The Data License Is an Unreasonable Restraint of Trade

    35. As noted above, in addition to offering spot-level PRA 
services, OPIS also collects and resells information related to retail 
gas prices, largely in the United States. Since 2009, GasBuddy has been 
one of OPIS's two main sources of retail gas price data.
    36. OPIS resells these data to customers like retail gas station 
operators or oil refiners, that use the data for competitive 
benchmarking and to inform supply and demand decisions.
    37. In 2012, OPIS learned that ``GasBuddy [saw] a big opportunity 
in pursuing data sales,'' and GasBuddy notified OPIS in ``October 
[2012] that they [would] cease providing retail prices to [OPIS] 
effective Jan. 1 [2013].'' OPIS saw GasBuddy's plan as a significant 
threat to its retail gas price information business because it would 
greatly reduce the number of real-time

[[Page 242]]

gas prices that OPIS could provide, and it would also ``greatly 
intensify competition in the retail pricing space.'' In response, OPIS 
made a ``tactical plan'' to ``buy[ ] GasBuddy'' to thwart this 
potential competition.
    38. In March 2013, UCG--OPIS's then-owner--followed through with 
this plan and bought GasBuddy in a transaction that was below the 
reportability thresholds of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, 15 U.S.C. 18a.
    39. In 2016, UCG sold OPIS to IHSM, but retained its ownership of 
GasBuddy. In order to maximize the value of OPIS and prevent GasBuddy 
from competing with OPIS under IHSM's ownership, UCG had OPIS and 
GasBuddy enter into the Data License, which (1) gave OPIS exclusive, 
worldwide rights to GasBuddy's data for 20 years; (2) required OPIS to 
pay no licensing fees for the data; and (3) subjected GasBuddy to a 
non-compete provision that restrained it from competing with OPIS or 
any other firm in the sale of retail gas price data to commercial 
customers. OPIS summarized the Data License simply as a ``long-term 
agreement where we are the sole distributor of GasBuddy data and they 
can't even sell it themselves.''
    40. Retail gas price data providers compete to serve commercial 
customers on both price and quality, and the Data License has 
prevented--and continues to prevent--GasBuddy from launching a 
competing retail gas price data service. But for the non-compete 
agreement, GasBuddy would be free to enter the retail gas price data 
market and compete with OPIS. The non-compete provision imposed on 
GasBuddy is a horizontal restraint that stifles competition. The Data 
License, therefore, has resulted, and continues to result, in higher 
prices and lower quality in the retail gas price data market.
    41. Furthermore, the non-compete provision imposed on GasBuddy was 
not reasonably necessary to a separate, legitimate transaction or 
collaboration. For example, the 20-year term of the non-compete was 
overbroad in its duration. That is, the noncompete was longer than 
necessary to effectuate and transfer any intellectual property, 
goodwill, or customer relationships associated with UCG's 2016 sale of 
OPIS. Nothing about IHSM's 2016 acquisition of OPIS justified a ban on 
competition between GasBuddy and OPIS until 2036. To the contrary, the 
non-compete simply inflated the value of OPIS and now protects only 
IHSM's desire to be free from competition in the market for the sale of 
retail gas price data.
    42. The Data License, therefore, unreasonably restrains trade in 
violation of Section 1 of the Sherman Act, 15 U.S.C. 1.

IX. Violations Alleged

Count One: Violation of Section 7 of the Clayton Act, 15 U.S.C. 18

    43. The United States hereby incorporates the allegations of 
paragraphs 1 through 42 above as if set forth fully herein.
    44. S&P and IHSM are hereby named defendants on Count One of this 
Complaint.
    45. S&P's proposed merger with IHSM is likely to substantially 
lessen competition in the relevant markets, in violation of Section 7 
of the Clayton Act, 15 U.S.C. 18.
    46. Unless enjoined, the proposed merger would likely have the 
following anticompetitive effects, among others, in the relevant 
markets:
    (a) eliminate present and future competition between S&P and IHSM;
    (b) competition generally will be substantially lessened; and
    (c) prices will likely increase and quality and innovation will 
likely decrease.

Count Two: Violation of Section 1 of the Sherman Act, 15 U.S.C. 1

    47. The United States hereby incorporates the allegations of 
paragraphs 1 through 42 above as if set forth fully herein.
    48. IHSM is hereby named as the defendant on Count Two of this 
Complaint.
    49. Beginning at least as early as 2016, and continuing to this 
day, IHSM's subsidiary OPIS has engaged in a contract, the Data 
License, with GasBuddy that unreasonably restrains trade to OPIS's 
benefit, in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
    50. Unless enjoined, the contract would likely continue to have the 
following anticompetitive effects, among others:
    (a) eliminate future competition between OPIS and GasBuddy for the 
sale of retail gas price information; and
    (b) cause prices for retail gas price information to be higher than 
they would otherwise be and reduce the levels of quality, service, and 
innovation below what they would be absent the agreement.

X. Request for Relief

    51. The United States requests that the Court:
    (a) adjudge and decree S&P's proposed merger with IHSM to violate 
Section 7 of the Clayton Act, 15 U.S.C. 18;
    (b) adjudge and decree that the Data License is a contract in 
unreasonable restraint of trade in violation of Section 1 of the 
Sherman Act, 15 U.S.C. 1;
    (c) permanently enjoin Defendants from consummating S&P's proposed 
merger with IHSM or from entering into or carrying out any other 
agreement, understanding, or plan by which the assets or businesses of 
S&P and IHSM would be combined;
    (d) permanently enjoin Defendant IHSM from enforcing the non-
compete contained in the Data License;
    (e) award the United States its costs of this action; and
    (f) grant the United States such other relief the Court deems just 
and proper.

    Dated: November 12, 2021
    Respectfully Submitted,

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

Richard A. Powers,
Acting Assistant Attorney General, Antitrust Division.

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

Kathleen S. O'Neill,
Senior Director of Investigations and Litigation.

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

Owen M. Kendler,
Chief, Financial Services, Fintech, and Banking Section.

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

Lisa A. Scanlon,
Assistant Chief, Financial Services, Fintech, and Banking Section.

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

Travis Chapman,*
Vittorio Cottafavi, Collier Kelley, Rachel Zwolinski,

Trial Attorneys, Financial Services, Fintech, and Banking Section, 
Antitrust Division, 450 Fifth Street NW, Suite 4000, Washington, DC 
20530, Telephone: (202) 353-9006, Email: [email protected].

* Lead Attorney to be noticed.

United States District Court

District of Columbia

    United States of America, Plaintiff, v. S&P Global Inc., IHS 
Markit Ltd., and Oil Price Information Services, LLC, Defendants.

Civil Action No.: 1:21-cv-3003-JEB

PROPOSED FINAL JUDGMENT

    Whereas, Plaintiff, United States of America, filed its Complaint 
against S&P Global Inc. (``S&P'') and IHS Markit Ltd. (``IHSM'') on 
November 12, 2021;
    And whereas, pursuant to a Stipulation and Order among S&P, IHSM, 
and Oil Price Information Services, LLC (``OPIS LLC'') (collectively, 
``Defendants'') and Plaintiff, the Court has joined OPIS LLC as a 
defendant to this action for the

[[Page 243]]

purposes of settlement and for the entry of this Final Judgment;
    And whereas, Plaintiff and Defendants, 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, S&P and IHSM agree to make a divestiture, and 
Defendants agree to undertake certain actions to remedy the loss of 
competition alleged in the Complaint;
    And whereas, S&P and IHSM represent that the divestiture to News 
Corp. required by this Final Judgment can and will be made, Defendants 
represent that the other relief required by this Final Judgment can and 
will be made, and Defendants represent that they 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 S&P and IHSM under Section 7 of the 
Clayton Act, as amended (15 U.S.C. 18), and Section 1 of the Sherman 
Act, as amended (15 U.S.C. 1). Pursuant to the Stipulation and Order 
filed simultaneously with this Final Judgment joining OPIS LLC as a 
defendant to this action, OPIS LLC has consented to this Court's 
exercise of specific personal jurisdiction over OPIS LLC in this matter 
solely for the purposes of settlement and for the entry and enforcement 
of the Final Judgment.

II. Definitions

    As used in this Final Judgment:
    A. ``Data License'' means the Data License Agreement between Oil 
Price Information Service, LLC, and GasBuddy/Open Store, LLC, dated 
January 5, 2016.
    B. ``Divestiture Business'' means (1) IHSM's Oil Price Information 
Service (``OPIS'') business, including the business known as 
PetrochemWire and OPIS's 15% stake in PRIMA Regulated Markets Limited 
and 25% stake in a2i systems A/S, and (2) IHSM's Coals, Metals, and 
Mining (``CMM'') business.
    C. ``Divestiture Assets'' means all of S&P's and IHSM's rights, 
titles, and interests in and to all property and assets, tangible and 
intangible, wherever located, (1) owned by the Divestiture Business, or 
(2) primarily related to or used in connection with, or necessary to 
the operation of, the Divestiture Business (with the United States, in 
its sole discretion, to resolve any disagreement regarding which 
property and assets, tangible and intangible, are Divestiture Assets), 
including:
    1. Lease agreements for offices located at: (a) 2099 Gaither Road, 
Rockville, MD 20850; (b) 3349 Highway 139, Wall Township, NJ 07719; and 
(c) 1295 Bandana Boulevard North, Saint Paul, MN 55018;
    2. all other real property, including fee simple interests and real 
property leasehold interests and renewal rights thereto, and 
improvements to real property, together with all buildings, facilities, 
and other structures;
    3. all tangible personal property, including fixed assets, office 
equipment and furniture, computer hardware, and supplies;
    4. all contracts, contractual rights, and customer relationships, 
and all other agreements, commitments, and understandings, including 
supply agreements, teaming agreements, and all outstanding offers or 
solicitations to enter into a similar arrangement;
    5. all licenses, permits, certifications, approvals, consents, 
registrations, waivers, and authorizations, and all pending 
applications or renewals;
    6. all records and data, including (a) customer lists, accounts, 
sales, and credits records, (b) manuals and technical information that 
S&P and IHSM provide to their own employees, customers, suppliers, 
agents, or licensees, and (c) records and research data concerning 
historic and current research and development activities;
    7. 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
    8. all other intangible property, including (a) commercial names 
and d/b/a names, (b) technical information, (c) design tools and 
simulation capabilities, (d) computer software and related 
documentation, know-how, trade secrets, quality assurance and control 
procedures, and (e) rights in internet websites and internet domain 
names.
    D. ``Divestiture Date'' means the date on which the Divestiture 
Assets are divested to News Corp. pursuant to this Final Judgment.
    E. ``GasBuddy'' means GasBuddy, LLC, a Delaware limited liability 
company with its headquarters in Boston, Massachusetts, its successors 
and assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    F. ``IHSM'' means Defendant IHS Markit Ltd., a Bermuda corporation 
with its headquarters in London, United Kingdom, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    G. ``Including'' means including, but not limited to.
    H. ``OPIS LLC'' means Defendant Oil Price Information Services, 
LLC, a Maryland limited liability company with its headquarters in 
Rockville, Maryland, its successors and assigns, and their directors, 
officers, managers, agents, and employees.
    I. ``Relevant Personnel'' means all full-time, part-time, or 
contract employees of IHSM, wherever located, who work in OPIS or CMM, 
or whose job responsibilities relate primarily to the operation or 
management of the Divestiture Business, at any time between November 
30, 2020, and the Divestiture Date. The United States, in its sole 
discretion, will resolve any disagreement regarding which employees are 
Relevant Personnel.
    J. ``News Corp.'' means News Corporation, a Delaware corporation 
with its headquarters in New York, New York, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    K. ``Regulatory Approvals'' means (1) any approvals or clearances 
under antitrust, competition, or other U.S. or international laws that 
are required for the Transaction to proceed; and (2) any approvals or 
clearances under antitrust, competition, or other U.S. or international 
laws that are required for News Corp.'s acquisition of the Divestiture 
Assets to proceed.
    L. ``S&P'' means Defendant S&P Global Inc., a New York corporation 
with its headquarters in New York, New York, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    M. ``Transaction'' means the proposed merger between S&P and IHSM.

[[Page 244]]

III. Applicability

    A. This Final Judgment applies to Defendants, 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, S&P and IHSM sell or otherwise dispose of all or 
substantially all of their assets or of business units that include the 
Divestiture Assets, S&P and IHSM must require any purchaser to be bound 
by the provisions of this Final Judgment.

IV. Divestiture

    A. S&P and IHSM are ordered and directed, within 30 calendar days 
after the Court's entry of the Asset Preservation and Hold Separate 
Stipulation and Order in this matter, to divest the Divestiture Assets 
in a manner consistent with this Final Judgment to News Corp. The 
United States, in its sole discretion, may agree to one or more 
extensions of this time period not to exceed 90 calendar days in total 
and will notify the Court of any extensions.
    B. If S&P and IHSM have not received all Regulatory Approvals 
within 30 calendar days after the Court's entry of the Stipulation and 
Order in this matter, the time period provided in Paragraph IV.A. will 
be extended until 30 calendar days after all Regulatory Approvals are 
received. This extension allowed for securing Regulatory Approvals may 
be no longer than 120 calendar days past the time period provided in 
Paragraph IV.A., unless the United States, in its sole discretion, 
consents to an additional extension.
    C. S&P and IHSM must use best efforts to divest the Divestiture 
Assets as expeditiously as possible. S&P and IHSM 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.
    D. 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 News Corp. as part of a viable, ongoing 
business providing commodity price assessments and related news and 
analysis and that the divestiture to News Corp. will remedy the 
competitive harm alleged in the Complaint.
    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 News Corp. and S&P and IHSM give S&P and IHSM the 
ability unreasonably to raise News Corp.'s costs, to lower News Corp.'s 
efficiency, or otherwise interfere in the ability of News Corp. to 
compete effectively in providing commodity price assessments and 
related news and analysis.
    F. S&P and IHSM must cooperate with and assist News Corp. in 
identifying and, at the option of News Corp., hiring all Relevant 
Personnel, including:
    1. Within 10 business days following the filing of the Complaint in 
this matter, S&P and IHSM must identify all Relevant Personnel to News 
Corp. and the United States, including by providing organization charts 
covering all Relevant Personnel.
    2. Within 10 business days following receipt of a request by News 
Corp. or the United States, S&P and IHSM must provide to News Corp. 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. S&P and IHSM 
must also provide to News Corp. and the United States 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 benefited accrued, or promises 
made to the Relevant Personnel. If S&P and IHSM are barred by any 
applicable law from providing any of this information, S&P and IHSM 
must provide, within 10 business days following receipt of the request, 
the requested information to the full extent permitted by law and also 
must provide a written explanation of S&P's and IHSM's inability to 
provide the remaining information, including specifically identifying 
the provisions of the applicable laws.
    3. At the request of News Corp., S&P and IHSM must promptly make 
Relevant Personnel available for private interviews with News Corp. 
during normal business hours at a mutually agreeable location.
    4. S&P and IHSM must not interfere with any effort by News Corp. 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 November 30, 
2020 or (b) the offer is approved by the United States in its sole 
discretion. S&P's and IHSM's obligations under this Paragraph IV.H.4. 
will expire 180 calendar days after the Divestiture Date.
    5. For Relevant Personnel who elect employment with News Corp. 
within 180 calendar days of the Divestiture Date, S&P and IHSM must 
waive all non-compete and non-disclosure agreements; vest and pay to 
the Relevant Personnel (or to News Corp. 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 News Corp.; 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 S&P and IHSM, including but not limited to 
any retention bonuses or payments. S&P and IHSM may maintain reasonable 
restrictions on disclosure by Relevant Personnel of S&P's and IHSM's 
proprietary non-public information that is unrelated to the Divestiture 
Assets or the provision of commodity price assessments and related news 
and analysis and not otherwise required to be disclosed by this Final 
Judgment.
    6. For a period of 12 months from the Divestiture Date, S&P and 
IHSM may not solicit to rehire Relevant Personnel who were hired by 
News Corp. within 180 days of the Divestiture Date unless (a) an 
individual is terminated or laid off by News Corp. or (b) News Corp. 
agrees in writing that S&P and IHSM may solicit to rehire that 
individual. Nothing in this Paragraph IV.H.6. prohibits S&P and IHSM 
from advertising employment openings using general solicitations or 
advertisements and rehiring Relevant Personnel who apply for an 
employment opening through a general solicitation or advertisement.
    G. S&P and IHSM must warrant to News Corp. that (1) the Divestiture 
Assets will be operational and without material defect on the date of 
their transfer to News Corp.; (2) there are no material defects in the 
environmental, zoning, or other permits relating to the operation of 
the Divestiture Assets; and (3) S&P and IHSM have disclosed all 
encumbrances on any part of the Divestiture Assets, including on 
intangible property. Following the sale of the Divestiture Assets, S&P 
and IHSM must not undertake, directly or indirectly, challenges to the 
environmental, zoning, or other permits

[[Page 245]]

relating to the operation of the Divestiture Assets.
    H. S&P and IHSM must assign, subcontract, or otherwise transfer all 
contracts, agreements, and customer relationships (or portions of such 
contracts, agreements, and customer relationships) included in the 
Divestiture Assets, including all supply and sales contracts, to News 
Corp.; provided, however, that for any contract or agreement that 
requires the consent of another party to assign, subcontract, or 
otherwise transfer, S&P and IHSM must use best efforts to accomplish 
the assignment, subcontracting, or transfer. S&P and IHSM must not 
interfere with any negotiations between News Corp. and a contracting 
party.
    I. S&P and IHSM must use best efforts to assist News Corp. to 
obtain all necessary licenses, registrations, and permits to operate 
the Divestiture Business. Until News Corp. obtains the necessary 
licenses, registrations, and permits, S&P and IHSM must provide News 
Corp. with the benefit of S&P's and IHSM's licenses, registrations, and 
permits to the full extent permissible by law; provided, however, that 
S&P and IHSM need not assist News Corp. to obtain licenses, 
registrations, or permits to operate as benchmark administrators.
    J. At the option of News Corp., and subject to approval by the 
United States in its sole discretion, on or before the Divestiture 
Date, S&P and IHSM 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 180 days 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 180 days. If News Corp. seeks an extension 
of the term of any contract for transition services, Defendants must 
notify the United States in writing at least 90 days prior to the date 
the contract expires. News Corp. 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 S&P and IHSM tasked with 
providing transition services must not share any competitively 
sensitive information of News Corp. with any other employee of S&P and 
IHSM.
    K. If any term of an agreement between S&P and IHSM and News Corp., 
including an agreement to effectuate the divestiture required by this 
Final Judgment, varies from a term of this Final Judgment, to the 
extent that S&P and IHSM, OPIS LLC, and News Corp. cannot fully comply 
with both, this Final Judgment determines S&P's, IHSM's, OPIS LLC's and 
News Corp.'s obligations.

V. Appointment of Divestiture Trustee

    A. If S&P and IHSM have not divested the Divestiture Assets within 
the period specified in Paragraphs IV. A. and IV.B., S&P and IHSM must 
immediately notify the United States of that fact in writing. Upon 
application of the United States, which S&P and IHSM 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 to News Corp.
    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 News Corp., at a price and 
on terms obtainable through reasonable effort by the divestiture 
trustee, subject to the provisions of Sections IV and V 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. The divestiture trustee must notify the United States, S&P, and 
IHSM at least 7 calendar days before completion of the sale of the 
Divestiture Assets to News Corp. S&P and IHSM may not object to a sale 
to News Corp. by the divestiture trustee on any ground other than 
malfeasance by the divestiture trustee.
    D. The divestiture trustee will serve at the cost and expense of 
S&P and IHSM 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 S&P 
and IHSM 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 S&P and IHSM 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 S&P and IHSM 
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 S&P and IHSM and the trust will 
then be terminated.
    H. S&P and IHSM must use best efforts to assist the divestiture 
trustee to accomplish the required divestiture to News Corp. Subject to 
reasonable protection for trade secrets, other confidential research, 
development, or commercial information, or any applicable privileges, 
S&P and IHSM 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. S&P and IHSM also must provide or develop financial 
and other information relevant to the Divestiture Assets that the 
divestiture trustee may reasonably request. S&P and IHSM must not take 
any action to interfere with or to impede the divestiture trustee's 
accomplishment of the divestiture to News Corp.
    I. The divestiture trustee must maintain complete records of all 
efforts

[[Page 246]]

made to sell the Divestiture Assets to News Corp., 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.
    J. If the divestiture trustee has not accomplished the divestiture 
ordered by this Final Judgment within 180 days 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 to News Corp. 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. Financing

    S&P and IHSM may not finance all or any part of News Corp.'s 
purchase of all or part of the Divestiture Assets.

VII. Asset Preservation and Hold Separate Obligations

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

VIII. 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, S&P and IHSM must 
deliver to the United States an affidavit, signed by each S&P's and 
IHSM's Chief Financial Officer and General Counsel, describing in 
reasonable detail the fact and manner of S&P's and IHSM's compliance 
with this Final Judgment. The United States, in its sole discretion, 
may approve different signatories for the affidavits.
    B. S&P and IHSM must keep all records of any efforts made to divest 
the Divestiture Assets until one year after the Divestiture Date.
    C. Within 20 calendar days of the filing of the Complaint in this 
matter, S&P and IHSM must deliver to the United States an affidavit 
signed by S&P's and IHSM's Chief Financial Officer and General Counsel, 
that describes in reasonable detail all actions S&P and IHSM have taken 
and all steps that S&P and IHSM have implemented on an ongoing basis to 
comply with Section VII of this Final Judgment. The United States, in 
its sole discretion, may approve different signatories for the 
affidavits.
    D. If S&P or IHSM makes any changes to actions and steps described 
in affidavits provided pursuant to Paragraph VIII.D., S&P or IHSM, as 
applicable, must, within 15 calendar days after any change is 
implemented, deliver to the United States an affidavit describing those 
changes.
    E. S&P and IHSM must keep all records of any efforts made to comply 
with Section VII until one year after the Divestiture Date.

IX. Required Conduct

    Prior to the Divestiture Date, and no later than five business days 
after the Court's entry of the Stipulation and Order in this matter, 
S&P and IHSM must notify GasBuddy in writing that, effective on the 
date of completion of the Transaction, OPIS LLC (1) waives the 
exclusivity obligation in the license grant in Section 2(a) of the Data 
License, so as to render the license of GasBuddy retail data to OPIS 
LLC non-exclusive; and (2) waives the GasBuddy restrictive covenants, 
including the non-compete provision enumerated in Section 4(c) of the 
Data License. Before such written notice is provided to GasBuddy, the 
form and content of the written notice must be approved by the United 
States, in its sole discretion.

X. Prohibited Conduct

    A. Without the prior written consent of the United States, in its 
sole discretion, S&P and IHSM will not (1) enter into, enforce, renew, 
or extend the term of any exclusive licenses for the provision to S&P 
and IHSM of GasBuddy's data; or (2) enter into, enforce, renew, or 
extend the term of any non-compete provisions relating to GasBuddy's 
data.
    B. Without the prior written consent of the United States, in its 
sole discretion, OPIS LLC will not (1) enter into, enforce, renew, or 
extend the term of any exclusive licenses for the provision to OPIS LLC 
of GasBuddy's data or U.S. retail gas price data of any other third-
party provider; or (2) enter into, enforce, renew, or extend the term 
of any non-compete provisions relating to GasBuddy's data or U.S. 
retail gas price data of any other third-party provider.

XI. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment or of related orders such as the Asset Preservation and 
Hold Separate 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 
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 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

[[Page 247]]

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).

XII. No Reacquisition

    S&P and IHSM 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.
    D. For a period of four years following the expiration of this 
Final Judgment, if the United States has evidence that a Defendant 
violated this Final Judgment before it expired, the United States may 
file an action against that Defendant in this Court requesting that the 
Court order: (1) Defendant to comply with the terms of this Final 
Judgment for an additional term of at least four years following the 
filing of the enforcement action; (2) all appropriate contempt 
remedies; (3) additional relief needed to ensure the Defendant complies 
with the terms of this Final Judgment; and (4) fees or expenses as 
called for by this Section XIV.

XV. Expiration of Final Judgment

    Unless the Court grants an extension, this Final Judgment will 
expire 10 years from the date of its entry, except that after five 
years from the date of its entry, this Final Judgment may be terminated 
upon notice by the United States to the Court and Defendants that the 
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]
-----------------------------------------------------------------------

United States District Judge

United States District Court

District of Columbia

    United States of America, Plaintiff, v. S&P Global Inc., IHS 
Markit Ltd., and Oil Price Information Services, LLC, Defendants.

Civil Action No.: 1:21-cv-3003-JEB

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 November 29, 2020, S&P Global Inc. (``S&P'') and IHS Markit Ltd. 
(``IHSM'') entered into a merger agreement to combine in an all-stock 
transaction that values IHSM at approximately $44 billion. Separately, 
in January 2016, IHSM's Oil Price and Information Services LLC (``OPIS 
LLC'') division entered into a 20-year exclusive data license and non-
compete agreement (``Data License'') with GasBuddy LLC (``GasBuddy''), 
an operator of a popular crowd-sourced retail gas price information app 
that has long provided OPIS LLC with pricing data for resale to 
commercial customers (e.g., retail gas station operators).
    The United States filed a civil antitrust Complaint on November 12, 
2021, seeking to enjoin both: (1) The consummation of the proposed 
merger; and (2) the enforcement of the exclusivity and non-compete 
provisions contained in the Data License. The Complaint alleges that 
the likely effect of this merger would be to substantially lessen 
competition for spot-level price reporting agency (``PRA'') services 
for refined petroleum products, coal, and petrochemicals in the United 
States, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The 
Complaint also alleges that the Data License

[[Page 248]]

unreasonably restrains trade in the market for the sale of retail gas 
price data in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
    At the same time the Complaint was filed, the United States filed a 
proposed Final Judgment and an Asset Preservation and Hold Separate 
Stipulation and Order (``Stipulation and Order''), which are designed 
to remedy the loss of competition and the unreasonable restraint on 
trade alleged in the Complaint.
    Under the proposed Final Judgment, which is explained more fully 
below, S&P and IHSM are required to divest three IHSM PRA businesses: 
(1) OPIS LLC, which focuses on refined petroleum products; (2) Coal, 
Metals, and Mining (``CMM''), which focuses predominately on coal; and 
(3) PetrochemWire (``PCW''), which focuses on petrochemicals. S&P and 
IHSM have agreed to divest OPIS LLC, CMM, and PCW to News Corporation 
(``News Corp.''), a global media conglomerate that operates a financial 
data company, Dow Jones & Company, Inc. (``Dow Jones'').
    In addition, under the proposed Final Judgment, S&P and IHSM must 
waive the exclusivity and non-compete provisions of the Data License 
between OPIS LLC and GasBuddy. S&P, IHSM, and OPIS LLC are also 
prohibited, without the prior written consent of the United States, 
from entering into, enforcing, renewing, or extending the term of any 
similar exclusive or non-compete provisions.
    Under the terms of the Stipulation and Order, until the divestiture 
is completed, S&P and IHSM must take certain steps to ensure that OPIS 
LLC, CMM, and PCW remain independent, economically viable, competitive, 
and saleable. In addition, the management, sales, and operations of 
these businesses must be held entirely separate, distinct, and apart 
from S&P's and IHSM's other operations. The purpose of these terms in 
the Stipulation and Order is to ensure that competition is maintained 
during the pendency of the required divestiture.
    The Stipulation and Order also requires Defendants to abide by and 
comply with the provisions of the proposed Final Judgment until the 
proposed Final Judgment is entered by the Court or until expiration of 
time for all appeals of any Court ruling declining entry of the 
proposed Final Judgment. On November 16, 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 Violations

A. The Defendants and the Proposed Merger

    S&P is a global financial data conglomerate headquartered in New 
York, New York and is comprised of four divisions: S&P Global Ratings, 
S&P Global Market Intelligence, S&P Dow Jones Indices, and S&P Platts. 
It reported global 2020 revenues of $7.44 billion. It provides PRA 
services through its S&P Platts division, which reported global 2020 
revenues of $878 million and accounts for roughly 12% of S&P's revenue.
    IHSM is a global financial data conglomerate headquartered in 
London, England and is comprised of four divisions: Financial Services, 
Transportation, Consolidated Markets & Solutions, and Resources. It 
reported global 2020 revenues of $4.29 billion. It provides PRA 
services primarily through its OPIS LLC, CMM, and PCW businesses, which 
are housed within IHSM's Resources division. OPIS LLC, CMM, and PCW 
reported global 2020 revenues of approximately $140 million and 
accounts for roughly 3% of IHSM's revenue.
    OPIS LLC, currently an IHSM subsidiary, provides PRA services 
primarily related to refined petroleum products. OPIS LLC will be 
acquired by News Corp. pursuant to the divestiture required by the 
proposed Final Judgment.
    Pursuant to a merger agreement dated November 29, 2020, S&P intends 
to merge with IHSM in an all-stock transaction that values IHSM at 
approximately $44 billion.

B. The Competitive Effects of the Proposed Merger

    The Complaint alleges that the likely effect of this merger would 
be to substantially lessen competition for spot-level PRA services for 
refined petroleum products, coal, and petrochemicals in the United 
States.
1. Relevant Product Markets
    PRAs provide commodity price assessments, news, and analysis that 
are critical to the proper functioning of numerous commodity markets. 
Some commodities, like corn or wheat, are traded on exchanges, which 
make price information readily accessible. But for many commodities--
including many energy commodities like refined petroleum products 
(e.g., gasoline and jet fuel), coal, and petrochemicals--trading is 
done off-exchange in private transactions with no reporting 
obligations. It is in these opaque markets where PRA price assessments 
are used as a proxy for the prevailing market price.
    To produce these price assessments, PRAs collect information from 
commodity suppliers and participants in commodities transactions and 
then apply proprietary methodologies and editorial judgment. PRAs focus 
on providing daily price assessments, and often make the assessments 
available to subscribers via a data feed.
    In most cases, PRAs assess prices at a given time for a specific 
commodity at a specific geographic location (e.g., jet fuel in Los 
Angeles). In addition, most PRAs focus on assessing prices for spot (or 
bulk) transactions, which happen at the top of the supply chain (e.g., 
at the refinery gate where the commodity is created).
    PRA customers are located worldwide and span a wide range of 
industries. While major oil and gas companies, commodities traders, and 
large energy consumers generate the majority of PRA revenues, there are 
many smaller customers that participate in, or are affected by, 
commodity markets.
    S&P, through its Platts division, and IHSM, through its OPIS LLC, 
CMM, and PCW businesses, both provide PRA services for refined 
petroleum products (e.g., gasoline and jet fuel), coal, and 
petrochemicals. More specifically, both companies provide spot-level 
price assessments, and related news and analysis, for dozens of the 
same types of refined petroleum products, coal, and petrochemicals, 
across dozens of the same geographic locations across the United States 
and the world.
    PRA services for any particular type of refined petroleum product, 
coal, or petrochemical are not a reasonable substitute for PRA services 
for any of other type of refined petroleum product, coal, or 
petrochemical. Similarly, PRA services for a particular commodity at 
one geographic location are not a reasonable substitute for PRA 
services for the same commodity at a different geographic location.
    Despite the lack of substitutability between PRA services for 
different commodities within each category, or for the same commodity 
at different geographic locations, spot-level PRA services for U.S.-
located (i) refined petroleum products, (ii) coal, and (iii) 
petrochemicals can be analyzed in the aggregate because each is offered 
under

[[Page 249]]

similar competitive conditions. Spot-level PRA services for U.S.-
located refined petroleum products, coal, and petrochemicals are each 
lines of commerce, or relevant product markets, for the purposes of 
analyzing the effects of the proposed merger under Section 7 of the 
Clayton Act, 15 U.S.C. 18.
2. Relevant Geographic Market
    Commodity market participants looking for spot-level PRA services 
for U.S.-located refined petroleum products, coal, or petrochemicals 
cannot reasonably turn to a PRA without significant U.S. operations and 
an established reputation for accurately reporting commodity prices and 
developments. To provide customers with trustworthy trading details and 
market intelligence that reflect current trading conditions, PRAs must 
have a large number of U.S.-based analysts (referred to as ``price 
reporters'' in the industry) with close connections to the relevant 
players, and a detailed understanding of supply and demand dynamics, in 
the major U.S. trading hubs. In addition, PRA customers value 
established PRA providers that have a proven track record of accurately 
covering a given U.S. commodity market.
    A hypothetical monopolist of spot-level PRA services for refined 
petroleum products, coal, or petrochemicals in the United States could 
profitably impose a small but significant non-transitory increase in 
price for its services without losing sufficient sales to render the 
price increase unprofitable. Accordingly, there are three relevant 
markets for the purposes of analyzing the effects of the proposed 
merger under Section 7 of the Clayton Act, 15 U.S.C. 18: (1) Spot-level 
PRA services for refined petroleum products in the United States; (2) 
spot-level PRA services for coal in the United States; and (3) spot-
level PRA services for petrochemicals in the United States.
3. Competitive Effects
    Today, S&P and IHSM compete vigorously in each of the relevant 
markets, resulting in lower prices and increased quality and innovation 
for PRA customers. In each of the relevant markets, S&P and IHSM are 
two of a few companies providing PRA services. In spot-level PRA 
services for both refined petroleum products and coal in the United 
States, S&P and IHSM are two of the three companies that generate the 
vast majority of revenues in the two markets. In spot-level PRA 
services for petrochemicals in the United States, S&P and IHSM are two 
of the four companies that generate the vast majority of revenues.
    For many price assessments (e.g., the spot price for jet fuel in 
Los Angeles), one PRA will become the market standard, or benchmark, 
after an initial period where PRAs vie for market adoption. Once market 
adoption occurs, that PRA's price assessment becomes embedded in the 
market ecosystem, as it is frequently referenced in price indexation 
formulas in supply contracts and in the relevant derivative contracts 
traded on major derivatives exchanges that are used by market 
participants to hedge their positions.
    Competition among PRAs plays out in various forms. As referenced 
above, PRAs initially vie to become the benchmark price assessment for 
many commodities. Because benchmark price assessments can generate 
substantial subscription revenues, PRAs compete fiercely on price, 
quality, and innovation dimensions to gain benchmark status. The 
ongoing energy transition to more renewable energy sources like 
biofuels will likely create many new benchmark opportunities in the 
near future. Established PRAs (e.g., those operated by S&P and IHSM) 
are often best placed to compete for new benchmark opportunities.
    Even after one PRA has been chosen as the benchmark, substantial 
competition remains between the PRAs covering that commodity, including 
competition (i) among the non-benchmark PRAs to serve as a secondary 
source for many customers, who use the secondary source as a ``second 
look'' to check the accuracy of the benchmark provider, and (ii) 
between the secondary source and the benchmark provider along both 
price and quality dimensions, resulting from the disciplining effect of 
this second-look, accuracy check.
    While it is rare, some commodity markets have switched their 
benchmark from one PRA to another because of price and/or quality 
concerns. So, as one industry observer put it, ``[d]espite the enormous 
difficulties of displacing an incumbent and the extreme rarity of 
switches, rival PRAs have to nonetheless invest heavily in marketing 
and in business development staff in order to be considered as a 
credible alternative during those rare moments when the incumbent 
stumbles.'' \2\
---------------------------------------------------------------------------

    \2\ Owain Johnson, The Price Reporters: A Guide to PRAs and 
Commodity Benchmarks (Routledge 2018) at 34.
---------------------------------------------------------------------------

    By eliminating the substantial head-to-head competition that exists 
today between S&P and IHSM, the proposed merger would result in higher 
prices and decreased quality and innovation for PRA customers. 
Accordingly, the proposed merger likely would substantially lessen 
competition in spot-level PRA services for refined petroleum products, 
coal, and petrochemicals in the United States.
4. Entry and Expansion
    Entry into spot-level PRA services for refined petroleum products, 
coal, or petrochemicals in the United States is unlikely to be timely, 
likely, or sufficient to prevent the proposed merger's anticompetitive 
effects. As S&P and IHSM executives have recognized, barriers to entry 
into spot-level PRA services for refined petroleum products, coal, or 
petrochemicals in the United States are high. These barriers to entry 
include (i) the large sunk costs and significant other expenditures 
necessary to begin providing commodity price assessments, news, and 
analysis; (ii) significant time and expense to build a reputation for 
accurately covering commodity markets; and (iii) the difficulty of 
displacing a benchmark PRA provider once that PRA's price assessment 
becomes the benchmark and gets embedded in supply and derivative 
contracts. Unsurprisingly, given all of these barriers, no significant 
PRA has entered in over 20 years.

C. Competitive Effects of the Exclusive Data License and Non-Compete 
Agreement

    The Complaint alleges that the Data License unreasonably restrains 
trade in the sale of retail gas price data.
    In addition to offering spot-level PRA services, OPIS LLC also 
collects and resells information related to retail gas prices, largely 
in the United States. Since 2009, GasBuddy has been one of OPIS LLC's 
two main sources of retail gas price data. OPIS LLC resells these data 
to customers like retail gas station operators or oil refiners, that 
use the data for competitive benchmarking and to inform supply and 
demand decisions.
    In 2012, OPIS LLC learned that ``GasBuddy [saw] a big opportunity 
in pursuing data sales,'' and GasBuddy notified OPIS LLC in ``October 
[2012] that they [would] cease providing retail prices to [OPIS LLC] 
effective Jan. 1 [2013].'' OPIS LLC saw GasBuddy's plan as a 
significant threat to its retail gas price information business because 
it would greatly reduce the number of real-time gas prices that OPIS 
LLC could provide, and it would also ``greatly intensify competition in 
the retail pricing space.'' In response, OPIS LLC made a ``tactical 
plan'' to ``buy[ ] GasBuddy'' to thwart this potential competition.
    In March 2013, UCG Holdings LP (``UCG'')--OPIS LLC's then-owner--

[[Page 250]]

followed through with this plan and bought GasBuddy in a transaction 
that was below the reportability thresholds of the Hart-Scott-Rodino 
Antitrust Improvements Act of 1976, 15 U.S.C. 18a.
    In 2016, UCG sold OPIS LLC to IHSM, but retained its ownership of 
GasBuddy. In order to maximize the value of OPIS LLC and prevent 
GasBuddy from competing with OPIS LLC under IHSM's ownership, UCG had 
OPIS LLC and GasBuddy enter into the Data License, which (1) gave OPIS 
LLC exclusive, worldwide rights to GasBuddy's data for 20 years; (2) 
required OPIS LLC to pay no licensing fees for the data; and (3) 
subjected GasBuddy to a non-compete provision that restrained it from 
competing with OPIS LLC or any other firm in the sale of retail gas 
price data to commercial customers. OPIS LLC summarized the Data 
License simply as a ``long-term agreement where we are the sole 
distributor of GasBuddy data and they can't even sell it themselves.''
    Retail gas price data providers compete to serve commercial 
customers on both price and quality, and the Data License has 
prevented--and continues to prevent--GasBuddy from launching a 
competing retail gas price data service. But for the non-compete 
agreement, GasBuddy would be free to enter the retail gas price data 
market and compete with OPIS LLC. The non-compete provision imposed on 
GasBuddy is a horizontal restraint that stifles competition. The Data 
License, therefore, has resulted, and continues to result, in higher 
prices and lower quality in the retail gas price data market.
    Furthermore, the non-compete provision imposed on GasBuddy was not 
reasonably necessary to a separate, legitimate transaction or 
collaboration. For example, the 20-year term of the non-compete was 
overbroad in its duration. That is, the noncompete was longer than 
necessary to effectuate and transfer any intellectual property, 
goodwill, or customer relationships associated with UCG's 2016 sale of 
OPIS LLC. Nothing about IHSM's 2016 acquisition of OPIS LLC justified a 
ban on competition between GasBuddy and OPIS LLC until 2036. To the 
contrary, the non-compete simply inflated the value of OPIS LLC and now 
protects only IHSM's desire to be free from competition in the market 
for the sale of retail gas price data.
    The Data License, therefore, unreasonably restrains trade in 
violation of Section 1 of the Sherman Act, 15 U.S.C. 1.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment remedies the anticompetitive effects of 
the proposed merger by requiring S&P and IHSM to divest OPIS LLC, CMM, 
and PCW to preserve competition in the markets for spot-level PRA 
services for refined petroleum products, coal, and petrochemicals in 
the United States. The United States has evaluated News Corp. and 
deemed it a suitable acquirer of the businesses, with the incentive, 
acumen, experience, and financial ability to successfully operate and 
grow the businesses.
    The proposed Final Judgment also addresses the anticompetitive 
effects of the Data License by requiring S&P and IHSM to waive the 
exclusivity and non-compete provisions in the agreement with GasBuddy. 
S&P, IHSM, and OPIS LLC are also prohibited, without the prior written 
consent of the United States, from entering into, enforcing, renewing, 
or extending the term of any similar provisions. The waiver of the 
exclusivity and non-compete provisions in the Data License will allow 
GasBuddy to compete in the market for sale of retail gas price data.

A. Divestiture

    Paragraph IV.A of the proposed Final Judgment requires S&P and IHSM 
to divest the OPIS LLC, CMM, and PCW businesses to News Corp. The 
divestiture must be completed within 30 calendar days after the entry 
of the Stipulation and Order by the Court, unless (1) the United 
States, in its sole discretion, agrees to one or more extensions not to 
exceed 90 calendar days in total; or (2) S&P and IHSM have not received 
all of the regulatory approvals required for their proposed merger, in 
which case the deadline for completion of the divestiture will be 
within 30 calendar days of the receipt of all required approvals. The 
assets must be divested in such a way as to satisfy the United States, 
in its sole discretion, that the assets can and will be operated by 
News Corp. as a viable, ongoing business that can compete effectively 
to provide spot-level PRA services for refined petroleum products, 
coal, and petrochemicals in the United States. S&P and IHSM must take 
all reasonable steps necessary to accomplish the divestiture quickly 
and must cooperate with News Corp.

B. Divestiture Assets

    The proposed Final Judgment requires S&P and IHSM to divest the 
OPIS, CMM, and PCW businesses. Specifically, defendants must divest all 
of S&P's and IHSM's rights, titles, and interests in and to all 
property and assets, tangible and intangible, wherever located, (1) 
owned by OPIS LLC, CMM, and PCW, or (2) primarily related to or used in 
connection with, or necessary to the operation of, OPIS LLC, CMM, and 
PCW (collectively, the ``Divestiture Assets''). The United States, in 
its sole discretion, will resolve any disagreement regarding which 
property and assets, tangible and intangible, are Divestiture Assets.

C. Personnel

    The proposed Final Judgment contains provisions intended to 
facilitate News Corp.'s efforts to hire certain employees. 
Specifically, Paragraph IV.F of the proposed Final Judgment requires 
S&P and IHSM to provide News Corp. and the United States with 
organization charts and information relating to these employees and to 
make them available for interviews. It also provides that S&P and IHSM 
must not interfere with any negotiations by News Corp. to hire these 
employees.
    In addition, for employees who elect employment with News Corp., 
S&P and IHSM must waive all non-compete and non-disclosure agreements, 
vest all unvested pension and other equity rights, provide any pay pro 
rata, provide all compensation and benefits that those employees have 
fully or partially accrued, and provide all other benefits that the 
employees would generally be provided had those employees continued 
employment with S&P and IHSM, including but not limited to any 
retention bonuses or payments.
    Paragraph IV.F further provides that S&P and IHSM may not solicit 
to rehire any of those employees who were hired by News Corp. within 
180 days of the date of the divestiture, unless an employee is 
terminated or laid off by News Corp. or News Corp. agrees in writing 
that S&P and IHSM may solicit to rehire that individual. The non-
solicitation period runs for 12 months from the date of divestiture for 
employees hired within 180 days of the date of the divestiture. A 12-
month non-solicitation period is necessary in this matter because many 
OPIS LLC, CMM, and PCW executives, price reporters, and data analysts 
are integral to the successful operation of the Divestiture Assets. The 
ability of PRAs to gather trustworthy trading details and market 
intelligence is dependent largely on the close industry connections, 
and the detailed understanding of industry supply and demand dynamics, 
of its employees. Ensuring that News Corp. will have a full complement 
of

[[Page 251]]

experienced PRA employees during its first year operating the to-be-
divested businesses will position News Corp. to compete effectively 
against its PRA competitors. Notably, this non-solicitation provision 
does not prohibit S&P and IHSM from advertising employment openings 
using general solicitations or advertisements and re-hiring anyone who 
applies for an opening through a general solicitation or advertisement.

D. Customer Contracts, Licensing, and Transition Services Agreements

    The proposed Final Judgment will facilitate the transfer to News 
Corp. of customers and other contractual relationships that are 
included within the Divestiture Assets. Paragraph IV.H of the proposed 
Final Judgment requires S&P and IHSM to assign, subcontract, or 
otherwise transfer all contracts, agreements, and customer 
relationships (or portions of such contracts, agreements, and customer 
relationships) included in the Divestiture Assets, including all supply 
and sales contracts, to News Corp. For any contract or agreement that 
requires the consent of another party to assign, subcontract, or 
otherwise transfer, S&P and IHSM must use best efforts to accomplish 
the assignment, subcontracting, or transfer. S&P and IHSM also must not 
interfere with any negotiations between News Corp. and a contracting 
party.
    Paragraph IV.I of the proposed Final Judgment requires S&P and IHSM 
to use best efforts to assist News Corp. to obtain all necessary 
licenses, registrations, and permits to operate the Divestiture Assets, 
except with respect to S&P's and IHSM's licenses, registrations, or 
permits to operate as benchmark administrators, for which News Corp. 
intends to use the services of a third-party benchmark administrator. 
Until News Corp. obtains the necessary licenses, registrations, and 
permits, S&P and IHSM must provide News Corp. with the benefit of S&P's 
and IHSM's licenses, registrations, and permits to the full extent 
permissible by law.
    The proposed Final Judgment requires S&P and IHSM to provide 
certain transition services to maintain the viability and 
competitiveness of the Divestiture Assets during the transition to News 
Corp. Paragraph IV.J of the proposed Final Judgment requires S&P and 
IHSM, at News Corp.'s option, to enter into a transition services 
agreement for back office, human resources, accounting, employee health 
and safety, and information technology services and support for a 
period of up to 180 days 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 180 days. If News Corp. seeks an extension 
of the term of any contract for transition services, Defendants must 
notify the United States in writing at least 90 days prior to the date 
the contract expires. News Corp. 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 S&P and IHSM tasked with 
providing transition services must not share any competitively 
sensitive information of News Corp. with any other employee of S&P and 
IHSM.

E. Appointment of Divestiture Trustee

    If S&P and IHSM do not accomplish the divestiture within the period 
prescribed in Paragraphs IV.A and IV.B 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 S&P and IHSM must pay all costs and 
expenses of the trustee. The divestiture trustee's commission must be 
structured so as to provide an incentive for the trustee based on the 
price obtained and the speed with which the divestiture is 
accomplished. After the divestiture trustee's appointment becomes 
effective, the trustee 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 180 days 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.

F. Required and Prohibited Conduct Related to the Data License

    In order to restore competition in the retail gas price data 
market, the proposed Final Judgment requires S&P and IHSM to waive the 
exclusivity and non-compete provisions contained in the Data License 
and prohibits S&P, IHSM, and OPIS LLC from entering into similar 
exclusive licenses or non-compete arrangements. Non-compete provisions 
that are broader than necessary to protect a legitimate business 
interest--such as the 20-year non-compete on GasBuddy contained in the 
Data License--operate as unreasonable horizontal restraints that stifle 
competition. The elimination of these provisions in this matter will 
allow GasBuddy, the most likely entrant and potential competitor to 
OPIS LLC in providing retail gas price data to commercial customers in 
the United States, to bring much-needed competition to the space.
    Section IX of the proposed Final Judgment requires S&P and IHSM, no 
later than five business days after the Court's entry of the 
Stipulation and Order, to notify GasBuddy that they waive the 
exclusivity and non-compete provisions contained in the Data License. 
Paragraph X.A prohibits S&P and IHSM, without the prior written consent 
of the United States, in its sole discretion, from entering into, 
enforcing, renewing, or extending the term of any exclusive licenses 
for, or non-compete provisions relating to, GasBuddy's data. Paragraph 
X.B prohibits OPIS LLC, without the prior written consent of the United 
States, in its sole discretion, from entering into, enforcing, 
renewing, or extending the term of any exclusive licenses for the 
provision to OPIS LLC of GasBuddy's data or the U.S. retail gas price 
data of any other third party, or non-compete provisions relating to 
GasBuddy's data or the U.S. retail gas price data of any other third-
party provider.

G. Enforcement and Expiration of the Proposed Final Judgment

    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

[[Page 252]]

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 harmed by the proposed 
merger and the exclusivity and non-compete provisions of the Data 
License. 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 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 ten years from the date of its entry, 
except that after five years from the date of its entry, the Final 
Judgment may be terminated upon notice by the United States to the 
Court and Defendants that the divestiture has been completed and 
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: Owen M. 
Kendler, Chief, Financial Services, Fintech, and Banking Section, 
Antitrust Division, United States Department of Justice, 450 Fifth St. 
NW, Suite 4000, 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 S&P's merger with IHSM and the 
exclusivity and non-compete provisions of the Data License. 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 spot-level PRA services for 
refined petroleum products, coal, and petrochemicals in the United 
States and promoting competition for retail gas price data in the 
United States. 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

[[Page 253]]

violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, 
the Court's inquiry is necessarily a limited one as the government is 
entitled to ``broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); United States v. U.S. Airways Grp., 
Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the 
``court's inquiry is limited'' in Tunney Act settlements); United 
States v. InBev N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 
84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a court's review of a 
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 mechanisms 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 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 
also 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 the 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, Public Law 108-237 Sec.  221, 
and added the unambiguous instruction that ``[n]othing in this section 
shall be construed to require the court to conduct an evidentiary 
hearing or to require the court to permit anyone to intervene.'' 15 
U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76 
(indicating that a court is not required to hold an evidentiary hearing 
or to permit intervenors as part of its review under the Tunney Act). 
This language explicitly wrote into the statute what Congress intended 
when it first enacted the Tunney Act in 1974. As Senator Tunney 
explained: ``[t]he court is nowhere compelled to go to trial or to 
engage in extended proceedings which might have the effect of vitiating 
the benefits of prompt and less costly settlement through the consent 
decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of Sen. 
Tunney). ``A court can make its public interest determination based on 
the competitive impact statement and response to public comments 
alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citing Enova Corp., 107 F. 
Supp. 2d at 17).

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.

    Dated: December 20, 2021.

    Respectfully submitted,

    For Plaintiff United States of America:
-----------------------------------------------------------------------

Travis Chapman,

United States Department of Justice, Antitrust Division, 450 5th St. 
NW, Suite 7100, Washington, DC 20530, Telephone: 202-598-8229, 
Email: [email protected].

[FR Doc. 2021-28484 Filed 1-3-22; 8:45 am]
BILLING CODE 4410-11-P