81 FR 56697 - United States v. Caledonia Investments plc; Proposed Final Judgment and Competitive Impact Statement
DEPARTMENT OF JUSTICE
Antitrust Division Federal Register Volume 81, Issue 162 (August 22, 2016)
Antitrust Division
Federal Register Volume 81, Issue 162 (August 22, 2016)
| Page Range | 56697-56703 | |
| FR Document | 2016-19988 |
[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)] [Notices] [Pages 56697-56703] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-19988] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Antitrust Division United States v. Caledonia Investments plc; Proposed Final Judgment and Competitive Impact Statement Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16(b)-(h), that a proposed Final Judgment, Stipulation, and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in United States of America v. Caledonia Investments plc, Civil Action No. 1:16-cv-01620 (CRC). On August 10, 2016, the United States filed a Complaint alleging that Caledonia Investments plc violated the premerger notification and waiting period requirements of the Hart- Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. Sec. 18a, with respect to its acquisition of voting securities of Bristow Group, Inc. The proposed Final Judgment, filed at the same time as the Complaint, requires Caledonia Investments plc to pay a civil penalty of $480,000. Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Antitrust Division's website at http://www.justice.gov/atr and at the Office of the Clerk of the United States District Court for the 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 directed to Daniel P. Ducore, Special Attorney, c/o Federal Trade Commission, 600 Pennsylvania Avenue NW., CC-8416, Washington, DC 20580 (telephone: 202-326-2526; e-mail: [email protected]). Patricia A. Brink, Director of Civil Enforcement. In the United States District Court for the District of Columbia United States of America, c/o Department of Justice, Washington, DC 20530, Plaintiff, v. Caledonia Investments PLC, Cayzer House, 30 Buckingham Gate, London, UK SW1E6NN, Defendant. Case No.: 1:16-cv-01620 Judge: Christopher R. Cooper Filed: 08/10/2016 COMPLAINT FOR CIVIL PENALTIES FOR FAILURE TO COMPLY WITH THE PREMERGER REPORTING AND WAITING REQUIREMENTS OF THE HART-SCOTT RODINO ACT The United States of America, Plaintiff, by its attorneys, acting under the direction of the Attorney General of the United States and at the request of the Federal Trade Commission, brings this civil antitrust action to obtain monetary relief in the form of civil penalties against Defendant Caledonia Investments plc (``Caledonia''). Plaintiff alleges as follows: NATURE OF THE ACTION 1. Caledonia violated the notice and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. Sec. 18a (``HSR Act'' or ``Act''), with respect to the acquisition of voting securities of Bristow Group, Inc. (``Bristow'') in February 2014. JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to [[Page 56698]] Section 7A(g) of the Clayton Act, 15 U.S.C. Sec. 18a(g), and pursuant to 28 U.S.C. Sec. Sec. 1331, 1337(a), 1345, and 1355 and over the Defendant by virtue of Defendant's consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District. 3. Venue is properly based in this District by virtue of Defendant's consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District. THE DEFENDANT 4. Defendant Caledonia is a public limited company organized under the laws of the United Kingdom with its principal office and place of business at Cayzer House, 30 Buckingham Gate, London, UK SW1E6NN. Caledonia is engaged in commerce, or in activities affecting commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. Sec. 12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. Sec. 18a(a)(1). At all times relevant to this complaint, Caledonia had sales or assets in excess of $141.8 million. OTHER ENTITIES 5. Bristow is a corporation organized under the laws of Delaware with its principal place of business at 2103 City West Boulevard, Houston, TX 77042. Bristow is engaged in commerce, or in activities affecting commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. Sec. 12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. Sec. 18a(a)(1). At all times relevant to this complaint, Bristow had sales or assets in excess of $14.2 million. Bristow was formerly named Offshore Logistics, Inc. (``Offshore Logistics''). THE HART-SCOTT-RODINO ACT AND RULES 6. The HSR Act requires certain acquiring persons and certain persons whose voting securities or assets are acquired to file notifications with the federal antitrust agencies and to observe a waiting period before consummating certain acquisitions of voting securities or assets. 15 U.S.C. Sec. 18a(a) and (b). These notification and waiting period requirements apply to acquisitions that meet the HSR Act's thresholds, which are adjusted annually. During the period of 2014 pertinent to this complaint, the HSR Act's reporting and waiting period requirements applied to most transactions that would result in the acquiring person holding more than $50 million, as adjusted (at the time $70.9 million), if certain sales and asset thresholds were met, and all transactions (regardless of the size of the acquiring or acquired persons) where the acquiring person would hold more than $200 million, as adjusted (at the time $283.6 million), of the acquired person's voting securities and/or assets, except for certain exempted transactions. 7. The HSR Act's notification and waiting period are intended to give the federal antitrust agencies prior notice of, and information about, proposed transactions. The waiting period is also intended to provide the federal antitrust agencies with an opportunity to investigate a proposed transaction and to obtain effective preliminary relief to prevent the consummation of a transaction that may violate the antitrust laws. 8. Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. Sec. 18a(d)(2), rules were promulgated to carry out the purposes of the HSR Act. 16 C.F.R. Sec. Sec. 801-803 (``HSR Rules''). The HSR Rules, among other things, define terms contained in the HSR Act. 9. Pursuant to section 801.13(a)(1) of the HSR Rules, 16 C.F.R. Sec. 801.13(a)(1), ``all voting securities of [an] issuer which will be held by the acquiring person after the consummation of an acquisition''--including any held before the acquisition--are deemed held ``as a result of'' the acquisition at issue. 10. Pursuant to sections 801.13(a)(2) and 801.10(c)(1) of the HSR Rules, 16 C.F.R. Sec. 801.13(a)(2) and. Sec. 801.10(c)(1), the value of publicly traded voting securities already held is the market price, defined to be the lowest closing price within 45 days prior to the subsequent acquisition. 11. Section 802.9 of the HSR Rules, 16 C.F.R. Sec. 802.9, provides that acquisitions solely for the purpose of investment are exempt from the notification and waiting period requirements if the acquirer will hold ten percent or less of the issuer's voting securities. 12. Section 801.1(i)(1) of the HSR Rules, 16 C.F.R. Sec. 801.1(i)(1), defines the term ``solely for the purpose of investment'' as follows: Voting securities are held or acquired ``solely for the purpose of investment'' if the person holding or acquiring such voting securities has no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer. 13. Section 802.21(a) of the HSR Rules, 16 C.F.R. Sec. 802.21(a), provides generally that a person who files and observes the waiting period before crossing a filing threshold may, within five years of the expiration of the waiting period, acquire additional voting securities of the issuer that do not cross a higher threshold, so long as the person does not acquire control of the issuer. For example, a person who files and observes the waiting period before crossing the $50 million threshold, as adjusted, may, assuming the person does not acquire control, acquire additional voting securities of the issuer up to the next threshold, which is $100 million, as adjusted. The acquiring person must file again, however, before it can cross the next higher threshold, $500 million, as adjusted, or before the person acquires control of the issuer. 14. Section 7A(g)(1) of the Clayton Act, 15 U.S.C. Sec. 18a(g)(1), provides that any person, or any officer, director, or partner thereof, who fails to comply with any provision of the HSR Act is liable to the United States for a maximum civil penalty of $10,000 for each day during which such person is in violation. Pursuant to the Debt Collection Improvement Act of 1996, Pub. L. 104-134, Sec. 31001(s) (amending the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. Sec. 2461 note), and Federal Trade Commission Rule 1.98, 16 C.F.R. Sec. 1.98, 74 Fed. Reg. 857 (Jan. 9, 2009), the maximum amount of civil penalty was increased to $16,000 per day. Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, Sec. 701 (further amending the Federal Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade Commission Rule 1.98, 16 C.F.R. Sec. 1.98, 81 Fed. Reg. 42,476 (June 30, 2016), the maximum amount of civil penalty was increased to $40,000 per day. DEFENDANT'S PRIOR VIOLATION OF THE HSR ACT 15. On December 19, 1996, Caledonia acquired 1,300,000 shares of voting securities of Offshore Logistics in a transaction negotiated with Offshore Logistics. As a result of that transaction, Caledonia held approximately six percent of the voting securities of Offshore Logistics, valued at approximately $19.8 million. The transaction gave Caledonia the right to appoint two people to the board of Offshore Logistics. Shortly after December 19, 1996, Caledonia named two of its employees to the board of Offshore Logistics. 16. At the time of the December 19, 1996, transaction, the relevant size of the transaction was $15 million. 17. Caledonia could not rely on the exemption for acquisitions solely for the purpose of investment because it intended to, and did, exercise its rights [[Page 56699]] to appoint two members to Offshore Logistics' board of directors. 18. Although it was required to do so, Caledonia did not file under the HSR Act prior to acquiring Offshore Logistics voting securities on December 19, 1996. 19. On June 3, 1997, Caledonia made a corrective filing under the HSR Act for the December 19, 1996, acquisition of Offshore Logistics voting securities. In a letter accompanying the corrective filing, Caledonia acknowledged that the transaction was reportable under the HSR Act, but asserted that the failure to file and observe the waiting period was inadvertent. The United States and the Federal Trade Commission did not initiate an enforcement action against Caledonia for this violation of the Act. VIOLATION 20. On June 5, 2008, Caledonia filed to acquire voting securities of Bristow valued in excess of $50 million, as adjusted. The waiting period on this filing expired on June 13, 2008. 21. Pursuant to Section 802.21(a) of the HSR Rules, 16 C.F.R. Sec. 802.21(a), Caledonia could acquire additional voting securities of Bristow without filing under HSR for a period of five years, as long as its holdings did not exceed the $100 million threshold, as adjusted ($141.8 million as of February 3, 2014). That five-year period ended on June 13, 2013. 22. On February 3, 2014, Caledonia acquired 3,650 shares of Bristow voting securities as the result of vesting of restricted stock units. Because this acquisition occurred later than five years after the expiration of the waiting period of the previous filing, the HSR Rules required Caledonia to again file a notice prior to crossing the $50 million threshold, as adjusted ($70.9 million as of February 3, 2014). The voting securities that Caledonia held as a result of this acquisition from Bristow were valued at approximately $111 million. 23. Although it was required to do so, Caledonia did not file under the HSR Act prior to acquiring Bristow voting securities on February 3, 2014. 24. More than a year later, on February 4, 2015, Caledonia made a corrective filing under the HSR Act for the Bristow voting securities it had acquired on February 3, 2014. The HSR waiting period expired on March 6, 2015. 25. Caledonia was in continuous violation of the HSR Act from February 3, 2014, when it acquired the Bristow voting securities that resulted in it holding Bristow voting securities valued in excess of the HSR Act's $50 million size-of-transaction threshold, as adjusted, through March 6, 2015, when the waiting period expired. REQUEST FOR RELIEF WHEREFORE, Plaintiff requests: a. That the Court adjudge and decree that Defendant Caledonia's acquisition of Bristow voting securities on February 3, 2014, was a violation of the HSR Act, 15 U.S.C. Sec. 18a; and that Defendant Caledonia was in violation of the HSR Act each day from February 3, 2014, through March 6, 2015. b. That the Court order Defendant Caledonia to pay to the United States an appropriate civil penalty as provided by the HSR Act. 15 U.S.C. Sec. 18a(g)(1), the Debt Collection Improvement Act of 1996, Pub. L. 104-134, Sec. 31001(s) (amending the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. Sec. 2461 note), and Federal Trade Commission Rule 1.98, 16 C.F.R. Sec. 1.98, 74 Fed. Reg. 857 (Jan. 9, 2009), and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, Sec. 701 (further amending the Federal Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade Commission Rule 1.98, 16 C.F.R. 1.98, 81 Fed. Reg. 42,476 (June 30, 2016). c. That the Court order such other and further relief as the Court may deem just and proper. d. That the Court award the Plaintiff its costs of this suit. Dated: 08/10/2016 FOR THE PLAINTIFF UNITED STATES OF AMERICA: /s/-------------------------------------------------------------------- Renata B. Hesse, D.C. Bar No. 466107, Acting Assistant Attorney General, Department of Justice, Antitrust Division, Washington, DC 20530. /s/-------------------------------------------------------------------- Daniel P. Ducore, D.C. Bar No. 933721, Special Attorney. /s/-------------------------------------------------------------------- Roberta S. Baruch, D.C. Bar No. 269266, Special Attorney. /s/-------------------------------------------------------------------- Kenneth A. Libby, Special Attorney. /s/-------------------------------------------------------------------- Jennifer Lee, Special Attorney. Federal Trade Commission, Washington, DC 20580, (202) 326-2694. United States District Court for the District of Columbia United States of America, Plaintiff, v. Caledonia Investments PLC, Defendant. Case No.: 1:16-cv-01620 Judge: Christopher R. Cooper Filed: 08/10/2016 COMPETITIVE IMPACT STATEMENT The United States, pursuant to the Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C. Sec. 16(b)-(h), files this Competitive Impact Statement to set forth the information necessary to enable the Court and the public to evaluate the proposed Final Judgment that would terminate this civil antitrust proceeding. I. NATURE AND PURPOSE OF THIS PROCEEDING On August 10, 2016, the United States filed a Complaint against Defendant Caledonia Investments PLC (``Caledonia''), related to Caledonia's acquisition of voting securities of Bristow Group, Inc. (``Bristow'') in February 2014. The Complaint alleges that Caledonia violated Section 7A of the Clayton Act, 15 U.S.C. Sec. 18a, commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the ``HSR Act''). The HSR Act provides that ``no person shall acquire, directly or indirectly, any voting securities of any person'' exceeding certain thresholds until that person has filed pre-acquisition notification and report forms with the Department of Justice and the Federal Trade Commission (collectively, the ``federal antitrust agencies'' or ``agencies'') and the post-filing waiting period has expired. 15 U.S.C. Sec. 18a(a). A key purpose of the notification and waiting period is to protect consumers and competition from potentially anticompetitive transactions by providing the agencies an opportunity to conduct an antitrust review of proposed transactions before they are consummated. The Complaint alleges that Caledonia acquired voting securities of Bristow in excess of the statutory threshold ($70.9 million at the time of acquisition) without making the required pre-acquisition HSR filings with the agencies and without observing the waiting period, and that Caledonia and Bristow each met the statutory size of person threshold (Caledonia and Bristow had sales or assets in excess of $141.8 million and $14.2 million, respectively, at the time of the acquisition). At the same time the Complaint was filed in the present action, the United States also filed a Stipulation and proposed Final Judgment that eliminates the need for a trial in this case. The proposed Final Judgment is designed to deter Caledonia from engaging in future HSR Act violations. [[Page 56700]] Under the proposed Final Judgment, Caledonia must pay a civil penalty to the United States in the amount of $480,000. The United States and the Defendant have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States first withdraws its consent. Entry of the proposed Final Judgment would terminate this case, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and punish violations thereof. II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION OF THE ANTITRUST LAWS A. Caledonia and the 2008 and 2014 Acquisitions of Bristow Voting Securities Caledonia is a public limited company organized under the laws of the United Kingdom and headquartered in London. Caledonia has sales or assets in excess of $141.8 million. Bristow is a Delaware corporation headquartered in Houston, Texas. Bristow provides helicopter services to the offshore energy industry and has sales or assets in excess of $14.2 million. On June 5, 2008, Caledonia filed an HSR notification in connection with its acquisition of Bristow voting securities valued in excess of $50 million, as adjusted. The waiting period on this HSR filing expired on June 13, 2008. Pursuant to Section 802.21(a) of the HSR Rules, 16 C.F.R. Sec. 802.21(a), Caledonia could acquire additional voting securities of Bristow without making another HSR filing for five years, or until June 13, 2013, as long as its holdings of Bristow securities did not exceed the $100 million HSR Act threshold, as adjusted. B. Caledonia's Violation of the HSR Act As alleged in the Complaint, on February 3, 2014, after the five- year window had elapsed, Caledonia acquired 3,650 additional shares of Bristow voting securities as the result of the vesting of restricted stock units. Following the vesting of these restricted stock units, Caledonia's voting securities of Bristow were valued at approximately $111 million, an amount in excess of the then-effective HSR Act $70.9 million size-of-transaction threshold. Accordingly, Caledonia was required to make an HSR filing and wait until the expiration of the waiting period before consummating the acquisition. Caledonia did not do so, however, incorrectly believing that its 2008 HSR filing enabled it to acquire additional shares of Bristow without making a new HSR filing. Caledonia's failure to comply with the HSR Act denied the agencies the opportunity to review Caledonia's acquisition of Bristow securities before it was consummated and thereby undermined the statutory scheme and the purpose of the HSR Act. Caledonia made a corrective filing on February 4, 2015, shortly after learning of its obligation to file. Caledonia's February 4, 2015, corrective filing included a letter acknowledging that the acquisitions were reportable under the HSR Act. The waiting period expired on March 6, 2015. The Complaint further alleges that Caledonia previously violated the HSR Act's notification requirements when it acquired shares in Offshore Logistics, Inc. (``OLOG'') in 1996, as Bristow was then named. On December 19, 1996, Caledonia acquired 1.3 million shares of OLOG voting securities through a transaction in which Caledonia also gained the right to name two persons to the OLOG board. Caledonia named two of its employees to the board of OLOG, and therefore could not rely on the HSR Act exemption for acquisitions made solely for the purpose of investment. See 15 U.S.C. Sec. 18a(c)(9); 16 C.F.R. Sec. 801.1(i)(1). Pursuant to the HSR Act, Caledonia was required to make a pre- acquisition notification filing prior to its acquisition of OLOG voting securities, but it failed to do so. On June 3, 1997, Caledonia made a corrective filing for this acquisition. In a letter accompanying the corrective filing, Caledonia acknowledged that the acquisition of OLOG voting securities was reportable under the HSR Act, but asserted that the failure to file and observe the waiting period was inadvertent. Caledonia also asserted that it ``will do its utmost to ensure that it submits all required filings under the Act in the future.'' The United States did not file suit against Caledonia in connection with this earlier violation of the HSR Act. III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT The proposed Final Judgment imposes a $480,000 civil penalty designed to deter the Defendant and others from violating the HSR Act. The United States adjusted the civil penalty downward from the maximum permitted under the HSR Act because the violation was inadvertent, the Defendant promptly self-reported the violation after discovery, and the Defendant is willing to resolve the matter by consent decree and avoid prolonged investigation and litigation. The decision to seek a penalty also reflects Defendant's previous violation of the HSR Act. The relief will have a beneficial effect on competition because it will help ensure that the agencies will be properly notified of future acquisitions, in accordance with the law. At the same time, the penalty will not have any adverse effect on competition. IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS There is no private antitrust action for HSR Act violations; therefore, entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust action. V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT The United States and the Defendant have stipulated that the proposed Final Judgment may be entered by this Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon this Court's determination that the proposed Final Judgment is in the public interest. The APPA provides a period of at least sixty (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 sixty (60) days of the date of publication of this Competitive Impact Statement in the Federal Register, or the last date of publication in a newspaper of the summary of this Competitive Impact Statement, whichever is later. All comments received during this period will be considered by the United States, which remains free to withdraw its consent to the proposed Final Judgment at any time prior to entry. The comments and the response of the United States will be filed with this Court. In addition, comments will be posted on the U.S. Department of Justice, Antitrust Division's internet website and, under certain circumstances, published in the Federal Register. Written comments should be submitted to: Daniel P. Ducore Special Attorney, United States c/o Federal Trade Commission 600 Pennsylvania Avenue, NW CC-8416 Washington, DC 20580 [[Page 56701]] Email: [email protected] The proposed Final Judgment provides that this Court retains jurisdiction over this action, and the parties may apply to this 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 pursuing a full trial on the merits against the Defendant. The United States is satisfied, however, that the proposed relief is an appropriate remedy in this matter. Given the facts of this case, including the Defendant's immediate self-reporting of the violation and willingness to promptly settle this matter, the United States is satisfied that the proposed civil penalty is sufficient to address the violation alleged in the Complaint and to deter violations by similarly situated entities in the future, without the time, expense, and uncertainty of a full trial on the merits. VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty (60) day comment period, after which the court shall determine whether entry of the proposed Final Judgment is ``in the public interest.'' 15 U.S.C. Sec. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider: (A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and (B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial. Id. Sec. 16(e)(1)(A) & (B). In considering these statutory factors, the court's inquiry is necessarily a limited one, as the government is entitled to ``broad discretion to settle with the defendant within the reaches of the public interest.'' United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard under the Tunney Act); United States v, U.S. Airways Group, Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (noting the court has broad discretion of the adequacy of the relief at issue); United States v. InBev N.V./S.A., No. 08-1965 (JR), 2009-2 Trade Cas. (CCH) ] 76,736, 2009 U.S. Dist. LEXIS 84787, at *3, (D.D.C. Aug. 11, 2009) (noting that the court's review of a consent judgment is limited and only inquires ``into whether the government's determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanism to enforce the final judgment are clear and manageable'').\1\ --------------------------------------------------------------------------- \1\ The 2004 amendments substituted ``shall'' for ``may'' in directing relevant factors for court to consider and amended the list of factors to focus on competitive considerations and to address potentially ambiguous judgment terms. Compare 15 U.S.C. Sec. 16(e) (2004), with 15 U.S.C. Sec. 16(e)(1) (2006); see also SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 amendments ``effected minimal changes'' to Tunney Act review). --------------------------------------------------------------------------- As the United States Court of Appeals for the District of Columbia Circuit has held, a court conducting an inquiry under the APPA may consider, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the relief secured by the decree, a court may not ``engage in an unrestricted evaluation of what relief would best serve the public.'' United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, at *3. Courts have held that: [t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is ``within the reaches of the public interest.'' More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree. Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\2\ In determining whether a proposed settlement is in the public interest, a district court ``must accord deference to the government's predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17; see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that a court should not reject the proposed remedies because it believes others are preferable); Microsoft, 56 F.3d at 1461 (noting the need for courts to be ``deferential to the government's predictions as to the effect of the proposed remedies''); United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the government's prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case). --------------------------------------------------------------------------- \2\ Cf. BNS, 858 F.2d at 464 (holding that the court's ``ultimate authority under the [APPA] is limited to approving or disapproving the consent decree''); United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the court is constrained to ``look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass''). See generally Microsoft, 56 F.3d at 1461 (discussing whether ``the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the `reaches of the public interest' ''). --------------------------------------------------------------------------- Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. ``[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.' '' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd sub nom., Maryland v. United States, 460 U.S. 1001 (1983); see also U.S. Airways, 38 F. Supp. 3d at 76 (noting that room must be made for the government to grant concessions in the negotiation process for settlements (citing Microsoft, 56 F.3d at 1461)); United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even though the court would have imposed a greater remedy). To meet this standard, the United States ``need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17. [[Page 56702]] 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 (concluding that ``the `public interest' is not to be measured by comparing the violations alleged in the complaint against those the court believes could have, or even should have, been alleged''). Because the ``court's authority to review the decree depends entirely on the government 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. As this Court confirmed in SBC Communications, courts ``cannot look beyond the complaint in making the public interest determination unless the complaint is drafted so narrowly as to make a mockery of judicial power.'' 489 F. Supp. 2d at 15. In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that ``[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.'' 15 U.S.C. Sec. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76 (indicating that a court is not required to hold an evidentiary hearing or to permit intervenors as part of its review under the Tunney Act). This language codified what Congress intended when it enacted the Tunney Act in 1974, as the author of this legislation, Senator Tunney, explained: ``The court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's ``scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11.\3\ 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. --------------------------------------------------------------------------- \3\ See also United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ``Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone''); United States v. Mid-Am. Dairymen, Inc., No. 73-CV-681-W-1, 1977-1 Trade Cas. (CCH) ] 61,508, at 71,980, *22 (W.D. Mo. 1977) (``Absent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should . . . carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.''); S. Rep. No. 93-298, at 6 (1973) (``Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.''). --------------------------------------------------------------------------- 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. Date: August 10, 2016 Respectfully Submitted, /s/-------------------------------------------------------------------- Kenneth A. Libby Special Attorney. In The United States District Court for the District of Columbia United States of America, Plaintiff, v. Caledonia Investments PLC, Defendant. Case No.: 1:16-cv-01620 Judge: Christopher R. Cooper Filed: 08/10/2016 FINAL JUDGMENT Plaintiff, the United States of America, having commenced this action by filing its Complaint herein for violation of Section 7A of the Clayton Act, 15 U.S.C. Sec. 18a, commonly known as the Hart[dash]Scott[dash]Rodino Antitrust Improvements Act of 1976, and Plaintiff and Defendant Caledonia Investments plc, by their respective attorneys, having consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting any evidence against or an admission by the Defendant with respect to any such issue: Now, therefore, before the taking of any testimony and without trial or adjudication of any issue of fact or law herein, and upon the consent of the parties hereto, it is hereby Ordered, Adjudged, and Decreed as follows: I. The Court has jurisdiction of the subject matter of this action and of the Plaintiff and the Defendant. The Complaint states a claim upon which relief can be granted against the Defendant under Section 7A of the Clayton Act, 15 U.S.C. Sec. 18a. II. Judgment is hereby entered in this matter in favor of Plaintiff United States of America and against Defendant, and, pursuant to Section 7A(g)(1) of the Clayton Act, 15 U.S.C. Sec. 18a(g)(1), the Debt Collection Improvement Act of 1996, Pub. L. 104[dash]134 Sec. 31001(s) (amending the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. Sec. 2461), and Federal Trade Commission Rule 1.98, 16 C.F.R. Sec. 1.98, 61 Fed. Reg. 54549 (Oct. 21, 1996), and 74 Fed. Reg. 857 (Jan. 9, 2009), and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, Sec. 701 (further amending the Federal Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade Commission Rule 1.98, 16 C.F.R. 1.98, 81 Fed. Reg. 42,476 (June 30, 2016), Defendant Caledonia Investments plc is hereby ordered to pay a civil penalty in the amount of four hundred eighty thousand dollars ($480,000). Payment of the civil penalty ordered hereby shall be made by wire transfer of funds or cashier's check. If the payment is made by wire transfer, Defendant shall contact Janie Ingalls of the Antitrust Division's Antitrust Documents Group at (202) 514-2481 for instructions before making the transfer. If the payment is made by cashier's check, the check shall be made payable to the United States Department of Justice and delivered to: Janie Ingalls United States Department of Justice Antitrust Division, Antitrust Documents Group 450 5th Street, NW Suite 1024 Washington, DC 20530 Defendant shall pay the full amount of the civil penalty within thirty (30) days of entry of this Final Judgment. In the event of a default or delay in payment, interest at the rate of eighteen (18) percent per annum shall accrue thereon from the date of the default or delay to the date of payment. III. Each party shall bear its own costs of this action. [[Page 56703]] IV. Entry of this Final Judgment is in the public interest. Dated:----------------------------------------------------------------- ----------------------------------------------------------------------- United States District Judge [FR Doc. 2016-19988 Filed 8-19-16; 8:45 am] BILLING CODE P
![Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Notices 56697
FOR FURTHER INFORMATION CONTACT: If 4. Affected public who will be asked Copies of the Complaint, proposed
you have additional comments or required to respond, as well as a brief Final Judgment, and Competitive Impact
especially on the estimated public abstract: Statement are available for inspection
burden or associated response time, Primary: Business or other for-profit. on the Antitrust Division’s website at
suggestions, or need a copy of the Other: Individuals or households, http://www.justice.gov/atr and at the
proposed information collection Federal Government, State, Local or Office of the Clerk of the United States
instrument with instructions or Tribal Government. District Court for the District of
additional information, please contact Abstract: The application and Columbia. Copies of these materials may
Desiree M. Dickinson, IOI/Industry subsequent permit are used to bring be obtained from the Antitrust Division
Liaison, Firearms and Explosives firearms, ammunition and defense upon request and payment of the
Imports Branch, 244 Needy Road, articles into the United States. copying fee set by Department of Justice
Martinsburg, WV 25405, at email: 5. An estimate of the total number of regulations.
desiree.dickinson@atf.gov. Written respondents and the amount of time Public comment is invited within 60
comments and/or suggestions can also estimated for an average respondent to days of the date of this notice. Such
be directed to the Office of Management respond: 10,000 respondents will take comments, including the name of the
and Budget, Office of Information and 30 minutes to complete the form. submitter, and responses thereto, will be
Regulatory Affairs, Attention posted on the Antitrust Division’s
6. An estimate of the total public
Department of Justice Desk Officer, website, filed with the Court, and, under
burden (in hours) associated with the
Washington, DC 20503 or sent to OIRA_ certain circumstances, published in the
collection: The estimated annual public
submissions@omb.eop.gov. Federal Register. Comments should be
burden associated with this collection is
SUPPLEMENTARY INFORMATION: Written directed to Daniel P. Ducore, Special
6,500 hours.
comments and suggestions from the Attorney, c/o Federal Trade
If additional information is required Commission, 600 Pennsylvania Avenue
public and affected agencies concerning contact: Jerri Murray, Department
the proposed collection of information NW., CC–8416, Washington, DC 20580
Clearance Officer, United States (telephone: 202–326–2526; e-mail:
are encouraged. Your comments should Department of Justice, Justice
address one or more of the following dducore@ftc.gov).
Management Division, Policy and
four points: Planning Staff, Two Constitution Patricia A. Brink,
• Evaluate whether the proposed
Square, 145 N Street NE., Room 3E– Director of Civil Enforcement.
collection of information is necessary
405B, Washington, DC 20530.
for the proper performance of the In the United States District Court for
functions of the agency, including Dated: August 17, 2016. the District of Columbia
whether the information will have Jerri Murray,
United States of America, c/o Department
practical utility; Department Clearance Officer for PRA, U.S. of Justice, Washington, DC 20530, Plaintiff, v.
• Evaluate the accuracy of the Department of Justice. Caledonia Investments PLC, Cayzer House,
agency’s estimate of the burden of the [FR Doc. 2016–19987 Filed 8–19–16; 8:45 am] 30 Buckingham Gate, London, UK SW1E6NN,
proposed collection of information, BILLING CODE 4410–FY–P Defendant.
including the validity of the Case No.: 1:16–cv–01620
methodology and assumptions used; Judge: Christopher R. Cooper
• Evaluate whether and if so how the DEPARTMENT OF JUSTICE Filed: 08/10/2016
quality, utility, and clarity of the COMPLAINT FOR CIVIL PENALTIES
information to be collected can be Antitrust Division
FOR FAILURE TO COMPLY WITH THE
enhanced; and PREMERGER REPORTING AND
• Minimize the burden of the United States v. Caledonia Investments
plc; Proposed Final Judgment and WAITING REQUIREMENTS OF THE
collection of information on those who
Competitive Impact Statement HART-SCOTT RODINO ACT
are to respond, including through the
use of appropriate automated, The United States of America,
Notice is hereby given pursuant to the Plaintiff, by its attorneys, acting under
electronic, mechanical, or other
Antitrust Procedures and Penalties Act, the direction of the Attorney General of
technological collection techniques or
15 U.S.C. § 16(b)–(h), that a proposed the United States and at the request of
other forms of information technology,
Final Judgment, Stipulation, and the Federal Trade Commission, brings
e.g., permitting electronic submission of
Competitive Impact Statement have this civil antitrust action to obtain
responses.
been filed with the United States monetary relief in the form of civil
Overview of This Information District Court for the District of penalties against Defendant Caledonia
Collection Columbia in United States of America v. Investments plc (‘‘Caledonia’’). Plaintiff
1. Type of information collection: Caledonia Investments plc, Civil Action alleges as follows:
Revision of a currently approved No. 1:16–cv–01620 (CRC). On August
10, 2016, the United States filed a NATURE OF THE ACTION
collection.
2. The title of the form/collection: Complaint alleging that Caledonia 1. Caledonia violated the notice and
Application and Permit for Importation Investments plc violated the premerger waiting period requirements of the Hart-
of Firearms, Ammunition and Defense notification and waiting period Scott-Rodino Antitrust Improvements
requirements of the Hart-Scott-Rodino
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Articles. Act of 1976, 15 U.S.C. § 18a (‘‘HSR Act’’
3. The agency form number, if any, Antitrust Improvements Act of 1976, 15 or ‘‘Act’’), with respect to the
and the applicable component of the U.S.C. § 18a, with respect to its acquisition of voting securities of
Department sponsoring the collection: acquisition of voting securities of Bristow Group, Inc. (‘‘Bristow’’) in
Form number: ATF F 6 (5330.3A) Part Bristow Group, Inc. The proposed Final February 2014.
I. Judgment, filed at the same time as the
Component: Bureau of Alcohol, Complaint, requires Caledonia JURISDICTION AND VENUE
Tobacco, Firearms and Explosives, U.S. Investments plc to pay a civil penalty of 2. This Court has jurisdiction over the
Department of Justice. $480,000. subject matter of this action pursuant to
VerDate Sep<11>2014 17:13 Aug 19, 2016 Jkt 238001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 E:\FR\FM\22AUN1.SGM 22AUN1](https://thefederalregister.org/doc/81_FR_56859/page/1.svg)
![56698 Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Notices
Section 7A(g) of the Clayton Act, 15 transactions (regardless of the size of the voting securities of the issuer that do
U.S.C. § 18a(g), and pursuant to 28 acquiring or acquired persons) where not cross a higher threshold, so long as
U.S.C. §§ 1331, 1337(a), 1345, and 1355 the acquiring person would hold more the person does not acquire control of
and over the Defendant by virtue of than $200 million, as adjusted (at the the issuer. For example, a person who
Defendant’s consent, in the Stipulation time $283.6 million), of the acquired files and observes the waiting period
relating hereto, to the maintenance of person’s voting securities and/or assets, before crossing the $50 million
this action and entry of the Final except for certain exempted threshold, as adjusted, may, assuming
Judgment in this District. transactions. the person does not acquire control,
3. Venue is properly based in this 7. The HSR Act’s notification and acquire additional voting securities of
District by virtue of Defendant’s waiting period are intended to give the the issuer up to the next threshold,
consent, in the Stipulation relating federal antitrust agencies prior notice of, which is $100 million, as adjusted. The
hereto, to the maintenance of this action and information about, proposed acquiring person must file again,
and entry of the Final Judgment in this transactions. The waiting period is also however, before it can cross the next
District. intended to provide the federal antitrust higher threshold, $500 million, as
THE DEFENDANT agencies with an opportunity to adjusted, or before the person acquires
investigate a proposed transaction and control of the issuer.
4. Defendant Caledonia is a public to obtain effective preliminary relief to 14. Section 7A(g)(1) of the Clayton
limited company organized under the prevent the consummation of a Act, 15 U.S.C. § 18a(g)(1), provides that
laws of the United Kingdom with its transaction that may violate the antitrust any person, or any officer, director, or
principal office and place of business at laws. partner thereof, who fails to comply
Cayzer House, 30 Buckingham Gate, 8. Pursuant to Section (d)(2) of the with any provision of the HSR Act is
London, UK SW1E6NN. Caledonia is HSR Act, 15 U.S.C. § 18a(d)(2), rules liable to the United States for a
engaged in commerce, or in activities were promulgated to carry out the maximum civil penalty of $10,000 for
affecting commerce, within the meaning purposes of the HSR Act. 16 C.F.R. each day during which such person is
of Section 1 of the Clayton Act, 15 §§ 801–803 (‘‘HSR Rules’’). The HSR in violation. Pursuant to the Debt
U.S.C. § 12, and Section 7A(a)(1) of the Rules, among other things, define terms Collection Improvement Act of 1996,
Clayton Act, 15 U.S.C. § 18a(a)(1). At all contained in the HSR Act. Pub. L. 104–134, § 31001(s) (amending
times relevant to this complaint, 9. Pursuant to section 801.13(a)(1) of the Federal Civil Penalties Inflation
Caledonia had sales or assets in excess the HSR Rules, 16 C.F.R. § 801.13(a)(1), Adjustment Act of 1990, 28 U.S.C.
of $141.8 million. ‘‘all voting securities of [an] issuer § 2461 note), and Federal Trade
OTHER ENTITIES which will be held by the acquiring Commission Rule 1.98, 16 C.F.R. § 1.98,
person after the consummation of an 74 Fed. Reg. 857 (Jan. 9, 2009), the
5. Bristow is a corporation organized maximum amount of civil penalty was
under the laws of Delaware with its acquisition’’—including any held before
the acquisition—are deemed held ‘‘as a increased to $16,000 per day. Pursuant
principal place of business at 2103 City to the Federal Civil Penalties Inflation
West Boulevard, Houston, TX 77042. result of’’ the acquisition at issue.
10. Pursuant to sections 801.13(a)(2) Adjustment Act Improvements Act of
Bristow is engaged in commerce, or in 2015, Pub. L. 114–74, § 701 (further
activities affecting commerce, within and 801.10(c)(1) of the HSR Rules, 16
C.F.R. § 801.13(a)(2) and. § 801.10(c)(1), amending the Federal Civil Penalties
the meaning of Section 1 of the Clayton Inflation Adjustment Act of 1990), and
Act, 15 U.S.C. § 12, and Section 7A(a)(1) the value of publicly traded voting
securities already held is the market Federal Trade Commission Rule 1.98, 16
of the Clayton Act, 15 U.S.C. § 18a(a)(1). C.F.R. § 1.98, 81 Fed. Reg. 42,476 (June
At all times relevant to this complaint, price, defined to be the lowest closing
price within 45 days prior to the 30, 2016), the maximum amount of civil
Bristow had sales or assets in excess of penalty was increased to $40,000 per
$14.2 million. Bristow was formerly subsequent acquisition.
11. Section 802.9 of the HSR Rules, 16 day.
named Offshore Logistics, Inc.
(‘‘Offshore Logistics’’). C.F.R. § 802.9, provides that DEFENDANT’S PRIOR VIOLATION OF
acquisitions solely for the purpose of THE HSR ACT
THE HART-SCOTT-RODINO ACT AND investment are exempt from the 15. On December 19, 1996, Caledonia
RULES notification and waiting period acquired 1,300,000 shares of voting
6. The HSR Act requires certain requirements if the acquirer will hold securities of Offshore Logistics in a
acquiring persons and certain persons ten percent or less of the issuer’s voting transaction negotiated with Offshore
whose voting securities or assets are securities. Logistics. As a result of that transaction,
acquired to file notifications with the 12. Section 801.1(i)(1) of the HSR Caledonia held approximately six
federal antitrust agencies and to observe Rules, 16 C.F.R. § 801.1(i)(1), defines the percent of the voting securities of
a waiting period before consummating term ‘‘solely for the purpose of Offshore Logistics, valued at
certain acquisitions of voting securities investment’’ as follows: approximately $19.8 million. The
or assets. 15 U.S.C. § 18a(a) and (b). Voting securities are held or acquired transaction gave Caledonia the right to
These notification and waiting period ‘‘solely for the purpose of investment’’ if the appoint two people to the board of
requirements apply to acquisitions that person holding or acquiring such voting Offshore Logistics. Shortly after
meet the HSR Act’s thresholds, which securities has no intention of participating in December 19, 1996, Caledonia named
are adjusted annually. During the period the formulation, determination, or direction
asabaliauskas on DSK3SPTVN1PROD with NOTICES
of the basic business decisions of the issuer.
two of its employees to the board of
of 2014 pertinent to this complaint, the Offshore Logistics.
HSR Act’s reporting and waiting period 13. Section 802.21(a) of the HSR 16. At the time of the December 19,
requirements applied to most Rules, 16 C.F.R. § 802.21(a), provides 1996, transaction, the relevant size of
transactions that would result in the generally that a person who files and the transaction was $15 million.
acquiring person holding more than $50 observes the waiting period before 17. Caledonia could not rely on the
million, as adjusted (at the time $70.9 crossing a filing threshold may, within exemption for acquisitions solely for the
million), if certain sales and asset five years of the expiration of the purpose of investment because it
thresholds were met, and all waiting period, acquire additional intended to, and did, exercise its rights
VerDate Sep<11>2014 17:13 Aug 19, 2016 Jkt 238001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\22AUN1.SGM 22AUN1](https://thefederalregister.org/doc/81_FR_56859/page/2.svg)
![Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Notices 56701
Email: dducore@ftc.gov Corp., 56 F.3d 1448, 1461 (D.C. Cir. effectiveness of antitrust enforcement by
The proposed Final Judgment 1995); see generally United States v. consent decree.
provides that this Court retains SBC Commc’ns, Inc., 489 F. Supp. 2d 1 Bechtel, 648 F.2d at 666 (emphasis
jurisdiction over this action, and the (D.D.C. 2007) (assessing public interest added) (citations omitted).2 In
parties may apply to this Court for any standard under the Tunney Act); United determining whether a proposed
order necessary or appropriate for the States v, U.S. Airways Group, Inc., 38 F. settlement is in the public interest, a
modification, interpretation, or Supp. 3d 69, 75 (D.D.C. 2014) (noting district court ‘‘must accord deference to
enforcement of the Final Judgment. the court has broad discretion of the the government’s predictions about the
adequacy of the relief at issue); United efficacy of its remedies, and may not
VI. ALTERNATIVES TO THE States v. InBev N.V./S.A., No. 08–1965 require that the remedies perfectly
PROPOSED FINAL JUDGMENT (JR), 2009–2 Trade Cas. (CCH) ¶ 76,736, match the alleged violations.’’ SBC
As an alternative to the proposed 2009 U.S. Dist. LEXIS 84787, at *3, Commc’ns, 489 F. Supp. 2d at 17; see
Final Judgment, the United States (D.D.C. Aug. 11, 2009) (noting that the also U.S. Airways, 38 F. Supp. 3d at 75
considered pursuing a full trial on the court’s review of a consent judgment is (noting that a court should not reject the
merits against the Defendant. The limited and only inquires ‘‘into whether proposed remedies because it believes
United States is satisfied, however, that the government’s determination that the others are preferable); Microsoft, 56 F.3d
the proposed relief is an appropriate proposed remedies will cure the at 1461 (noting the need for courts to be
remedy in this matter. Given the facts of antitrust violations alleged in the ‘‘deferential to the government’s
this case, including the Defendant’s complaint was reasonable, and whether predictions as to the effect of the
immediate self-reporting of the violation the mechanism to enforce the final proposed remedies’’); United States v.
and willingness to promptly settle this judgment are clear and manageable’’).1 Archer-Daniels-Midland Co., 272 F.
matter, the United States is satisfied that Supp. 2d 1, 6 (D.D.C. 2003) (noting that
the proposed civil penalty is sufficient As the United States Court of Appeals the court should grant due respect to the
to address the violation alleged in the for the District of Columbia Circuit has government’s prediction as to the effect
Complaint and to deter violations by held, a court conducting an inquiry of proposed remedies, its perception of
similarly situated entities in the future, under the APPA may consider, among the market structure, and its views of
without the time, expense, and other things, the relationship between the nature of the case).
uncertainty of a full trial on the merits. the remedy secured and the specific Courts have greater flexibility in
allegations set forth in the government’s approving proposed consent decrees
VII. STANDARD OF REVIEW UNDER complaint, whether the decree is than in crafting their own decrees
THE APPA FOR THE PROPOSED sufficiently clear, whether enforcement following a finding of liability in a
FINAL JUDGMENT mechanisms are sufficient, and whether litigated matter. ‘‘[A] proposed decree
The APPA requires that proposed the decree may positively harm third must be approved even if it falls short
consent judgments in antitrust cases parties. See Microsoft, 56 F.3d at 1458– of the remedy the court would impose
brought by the United States be subject 62. With respect to the adequacy of the on its own, as long as it falls within the
to a sixty (60) day comment period, after relief secured by the decree, a court may range of acceptability or is ‘within the
which the court shall determine not ‘‘engage in an unrestricted reaches of public interest.’ ’’ United
whether entry of the proposed Final evaluation of what relief would best States v. Am. Tel. & Tel. Co., 552 F.
Judgment is ‘‘in the public interest.’’ 15 serve the public.’’ United States v. BNS, Supp. 131, 151 (D.D.C. 1982) (citations
U.S.C. § 16(e)(1). In making that Inc., 858 F.2d 456, 462 (9th Cir. 1988) omitted) (quoting United States v.
determination, the court, in accordance (quoting United States v. Bechtel Corp., Gillette Co., 406 F. Supp. 713, 716 (D.
with the statute as amended in 2004, is 648 F.2d 660, 666 (9th Cir. 1981)); see Mass. 1975)), aff’d sub nom., Maryland
required to consider: also Microsoft, 56 F.3d at 1460–62; v. United States, 460 U.S. 1001 (1983);
United States v. Alcoa, Inc., 152 F. see also U.S. Airways, 38 F. Supp. 3d at
(A) the competitive impact of such
judgment, including termination of alleged Supp. 2d 37, 40 (D.D.C. 2001); InBev, 76 (noting that room must be made for
violations, provisions for enforcement and 2009 U.S. Dist. LEXIS 84787, at *3. the government to grant concessions in
modification, duration of relief sought, Courts have held that: the negotiation process for settlements
anticipated effects of alternative remedies (citing Microsoft, 56 F.3d at 1461));
actually considered, whether its terms are [t]he balancing of competing social and United States v. Alcan Aluminum Ltd.,
ambiguous, and any other competitive political interests affected by a proposed 605 F. Supp. 619, 622 (W.D. Ky. 1985)
considerations bearing upon the adequacy of antitrust consent decree must be left, in the
first instance, to the discretion of the (approving the consent decree even
such judgment that the court deems
necessary to a determination of whether the Attorney General. The court’s role in though the court would have imposed a
consent judgment is in the public interest; protecting the public interest is one of greater remedy). To meet this standard,
and insuring that the government has not the United States ‘‘need only provide a
(B) the impact of entry of such judgment breached its duty to the public in consenting factual basis for concluding that the
upon competition in the relevant market or to the decree. The court is required to settlements are reasonably adequate
markets, upon the public generally and determine not whether a particular decree is remedies for the alleged harms.’’ SBC
individuals alleging specific injury from the the one that will best serve society, but Commc’ns, 489 F. Supp. 2d at 17.
violations set forth in the complaint whether the settlement is ‘‘within the reaches
including consideration of the public benefit, of the public interest.’’ More elaborate 2 Cf. BNS, 858 F.2d at 464 (holding that the
if any, to be derived from a determination of requirements might undermine the
asabaliauskas on DSK3SPTVN1PROD with NOTICES
court’s ‘‘ultimate authority under the [APPA] is
the issues at trial. limited to approving or disapproving the consent
1 The 2004 amendments substituted ‘‘shall’’ for decree’’); United States v. Gillette Co., 406 F. Supp.
Id. § 16(e)(1)(A) & (B). In considering ‘‘may’’ in directing relevant factors for court to 713, 716 (D. Mass. 1975) (noting that, in this way,
these statutory factors, the court’s consider and amended the list of factors to focus on the court is constrained to ‘‘look at the overall
inquiry is necessarily a limited one, as competitive considerations and to address picture not hypercritically, nor with a microscope,
the government is entitled to ‘‘broad potentially ambiguous judgment terms. Compare 15 but with an artist’s reducing glass’’). See generally
U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1) Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the
discretion to settle with the defendant (2006); see also SBC Commc’ns, 489 F. Supp. 2d at remedies [obtained in the decree are] so
within the reaches of the public 11 (concluding that the 2004 amendments ‘‘effected inconsonant with the allegations charged as to fall
interest.’’ United States v. Microsoft minimal changes’’ to Tunney Act review). outside of the ‘reaches of the public interest’ ’’).
VerDate Sep<11>2014 17:13 Aug 19, 2016 Jkt 238001 PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 E:\FR\FM\22AUN1.SGM 22AUN1](https://thefederalregister.org/doc/81_FR_56859/page/5.svg)
![56702 Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Notices
Moreover, the court’s role under the sharply proscribed by precedent and the Ordered, Adjudged, and Decreed as
APPA is limited to reviewing the nature of Tunney Act proceedings.’’ follows:
remedy in relationship to the violations SBC Commc’ns, 489 F. Supp. 2d at 11.3
I.
that the United States has alleged in its A court can make its public interest
Complaint, and does not authorize the determination based on the competitive The Court has jurisdiction of the
court to ‘‘construct [its] own impact statement and response to public subject matter of this action and of the
hypothetical case and then evaluate the comments alone. U.S. Airways, 38 F. Plaintiff and the Defendant. The
decree against that case.’’ Microsoft, 56 Supp. 3d at 76. Complaint states a claim upon which
F.3d at 1459; see also U.S. Airways, 38 relief can be granted against the
VIII. DETERMINATIVE DOCUMENTS Defendant under Section 7A of the
F. Supp. 3d at 75 (noting that the court
must simply determine whether there is There are no determinative materials Clayton Act, 15 U.S.C. § 18a.
a factual foundation for the or documents within the meaning of the II.
government’s decisions such that its APPA that were considered by the
conclusions regarding the proposed United States in formulating the Judgment is hereby entered in this
settlements are reasonable); InBev, 2009 proposed Final Judgment. matter in favor of Plaintiff United States
U.S. Dist. LEXIS 84787, at *20 of America and against Defendant, and,
Date: August 10, 2016 Respectfully
(concluding that ‘‘the ‘public interest’ is Submitted, pursuant to Section 7A(g)(1) of the
not to be measured by comparing the /s/ lllllllllllllllllll Clayton Act, 15 U.S.C. § 18a(g)(1), the
violations alleged in the complaint Kenneth A. Libby Debt Collection Improvement Act of
against those the court believes could 1996, Pub. L. 104-134 § 31001(s)
Special Attorney.
have, or even should have, been (amending the Federal Civil Penalties
alleged’’). Because the ‘‘court’s authority In The United States District Court for Inflation Adjustment Act of 1990, 28
to review the decree depends entirely the District of Columbia U.S.C. § 2461), and Federal Trade
on the government exercising its United States of America, Plaintiff, v. Commission Rule 1.98, 16 C.F.R. § 1.98,
prosecutorial discretion by bringing a Caledonia Investments PLC, Defendant. 61 Fed. Reg. 54549 (Oct. 21, 1996), and
case in the first place,’’ it follows that Case No.: 1:16–cv–01620 74 Fed. Reg. 857 (Jan. 9, 2009), and the
‘‘the court is only authorized to review Judge: Christopher R. Cooper Federal Civil Penalties Inflation
the decree itself,’’ and not to ‘‘effectively Filed: 08/10/2016 Adjustment Act Improvements Act of
redraft the complaint’’ to inquire into 2015, Pub. L. 114–74, § 701 (further
FINAL JUDGMENT
other matters that the United States did amending the Federal Civil Penalties
not pursue. Microsoft, 56 F.3d at 1459– Plaintiff, the United States of Inflation Adjustment Act of 1990), and
60. As this Court confirmed in SBC America, having commenced this action Federal Trade Commission Rule 1.98, 16
Communications, courts ‘‘cannot look by filing its Complaint herein for C.F.R. 1.98, 81 Fed. Reg. 42,476 (June
beyond the complaint in making the violation of Section 7A of the Clayton 30, 2016), Defendant Caledonia
public interest determination unless the Act, 15 U.S.C. § 18a, commonly known Investments plc is hereby ordered to pay
complaint is drafted so narrowly as to as the Hart-Scott-Rodino Antitrust a civil penalty in the amount of four
make a mockery of judicial power.’’ 489 Improvements Act of 1976, and Plaintiff hundred eighty thousand dollars
F. Supp. 2d at 15. and Defendant Caledonia Investments ($480,000). Payment of the civil penalty
In its 2004 amendments, Congress plc, by their respective attorneys, having ordered hereby shall be made by wire
made clear its intent to preserve the consented to the entry of this Final transfer of funds or cashier’s check. If
practical benefits of utilizing consent Judgment without trial or adjudication the payment is made by wire transfer,
decrees in antitrust enforcement, adding of any issue of fact or law herein, and Defendant shall contact Janie Ingalls of
the unambiguous instruction that without this Final Judgment the Antitrust Division’s Antitrust
‘‘[n]othing in this section shall be constituting any evidence against or an Documents Group at (202) 514–2481 for
construed to require the court to admission by the Defendant with instructions before making the transfer.
conduct an evidentiary hearing or to respect to any such issue: If the payment is made by cashier’s
require the court to permit anyone to Now, therefore, before the taking of check, the check shall be made payable
intervene.’’ 15 U.S.C. § 16(e)(2); see also any testimony and without trial or to the United States Department of
U.S. Airways, 38 F. Supp. 3d at 76 adjudication of any issue of fact or law Justice and delivered to:
(indicating that a court is not required herein, and upon the consent of the Janie Ingalls
to hold an evidentiary hearing or to parties hereto, it is hereby United States Department of Justice
permit intervenors as part of its review Antitrust Division, Antitrust Documents
under the Tunney Act). This language 3 See also United States v. Enova Corp., 107 F.
Group
Supp. 2d 10, 17 (D.D.C. 2000) (noting that the 450 5th Street, NW
codified what Congress intended when ‘‘Tunney Act expressly allows the court to make its
it enacted the Tunney Act in 1974, as public interest determination on the basis of the Suite 1024
the author of this legislation, Senator competitive impact statement and response to Washington, DC 20530
Tunney, explained: ‘‘The court is comments alone’’); United States v. Mid-Am. Defendant shall pay the full amount
Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade
nowhere compelled to go to trial or to Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977) of the civil penalty within thirty (30)
engage in extended proceedings which (‘‘Absent a showing of corrupt failure of the days of entry of this Final Judgment. In
might have the effect of vitiating the
asabaliauskas on DSK3SPTVN1PROD with NOTICES
government to discharge its duty, the Court, in the event of a default or delay in
benefits of prompt and less costly making its public interest finding, should . . . payment, interest at the rate of eighteen
carefully consider the explanations of the
settlement through the consent decree government in the competitive impact statement (18) percent per annum shall accrue
process.’’ 119 Cong. Rec. 24,598 (1973) and its responses to comments in order to thereon from the date of the default or
(statement of Sen. Tunney). Rather, the determine whether those explanations are delay to the date of payment.
procedure for the public interest reasonable under the circumstances.’’); S. Rep. No.
determination is left to the discretion of 93–298, at 6 (1973) (‘‘Where the public interest can III.
be meaningfully evaluated simply on the basis of
the court, with the recognition that the briefs and oral arguments, that is the approach that Each party shall bear its own costs of
court’s ‘‘scope of review remains should be utilized.’’). this action.
VerDate Sep<11>2014 17:13 Aug 19, 2016 Jkt 238001 PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 E:\FR\FM\22AUN1.SGM 22AUN1](https://thefederalregister.org/doc/81_FR_56859/page/6.svg)
![Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Notices 56703
IV. —Evaluate whether and if so how the proposed collection: The DEA estimates
Entry of this Final Judgment is in the quality, utility, and clarity of the the total public burden (in hours)
public interest. information proposed to be collected associated with this collection: 333
can be enhanced; and annual burden hours.
Dated: lllllllllllllllll —Minimize the burden of the collection
lllllllllllllllllllll If additional information is required
of information on those who are to please contact: Jerri Murray, Department
United States District Judge
respond, including through the use of Clearance Officer, United States
[FR Doc. 2016–19988 Filed 8–19–16; 8:45 am] appropriate automated, electronic, Department of Justice, Justice
BILLING CODE P mechanical, or other forms of Management Division, Policy and
information technology, e.g., Planning Staff, Two Constitution
permitting electronic submission of Square, 145 N Street NE., Suite 3E.405B,
DEPARTMENT OF JUSTICE responses. Washington, DC 20530.
[OMB Number 1117–0013] Overview of this information Dated: August 16, 2016.
collection: Jerri Murray,
Agency Information Collection
1. Type of Information Collection: Department Clearance Officer for PRA, U.S.
Activities; Proposed eCollection,
Extension of a currently approved Department of Justice.
eComments Requested; Extension
collection. [FR Doc. 2016–19916 Filed 8–19–16; 8:45 am]
Without Change of a Previously
2. Title of the Form/Collection:
Approved Collection; Application for BILLING CODE 4410–09–P
Application for Permit to Import
Permit to Import Controlled
Controlled Substances for Domestic
Substances for Domestic and/or
and/or Scientific Purposes pursuant to
Scientific Purposes Pursuant to 21 DEPARTMENT OF LABOR
21 U.S.C. 952.
U.S.C 952; DEA Form 357
3. The agency form number, if any, Office of the Secretary
AGENCY: Drug Enforcement and the applicable component of the
Administration, Department of Justice. Department sponsoring the collection: Agency Information Collection
ACTION: 60-Day notice. DEA Form: 357. The applicable Activities; Submission for OMB
component within the Department of Review; Comment Request; Survey of
SUMMARY: The Department of Justice Justice is the Drug Enforcement Occupational Injuries and Illnesses
(DOJ), Drug Enforcement Administration, Office of Diversion
Administration (DEA), will be Control. ACTION: Notice.
submitting the following information 4. Affected public who will be asked
collection request to the Office of or required to respond, as well as a brief SUMMARY: The Department of Labor
Management and Budget (OMB) for abstract: (DOL) is submitting the Bureau of Labor
review and approval in accordance with Affected public (Primary): Business or Statistics (BLS) sponsored information
the Paperwork Reduction Act of 1995. other for-profit. collection request (ICR) revision titled,
DATES: Comments are encouraged and Affected public (Other): None. ‘‘Survey of Occupational Injuries and
will be accepted for 60 days until Abstract: Section 1002 of the Illnesses,’’ to the Office of Management
October 21, 2016. Controlled Substances Import and and Budget (OMB) for review and
FOR FURTHER INFORMATION CONTACT: If Export Act (CSIEA) (21 U.S.C. 952) and approval for use in accordance with the
you have comments on the estimated Title 21, Code of Federal Regulations Paperwork Reduction Act (PRA) of 1995
public burden or associated response (21 CFR), Sections 1312.11, 1312.12 and (44 U.S.C. 3501 et seq.). Public
time, suggestions, or need a copy of the 1312.13 requires any person who comments on the ICR are invited.
proposed information collection desires to import controlled substances DATES: The OMB will consider all
instrument with instructions or listed in schedules I or II, any narcotic written comments that agency receives
additional information, please contact substance listed in schedules III or IV, on or before September 21, 2016.
Michael J. Lewis, Office of Diversion or any non-narcotic substance in ADDRESSES: A copy of this ICR with
Control, Drug Enforcement schedule III which the Administrator applicable supporting documentation;
Administration; Mailing Address: 8701 has specifically designated by regulation including a description of the likely
Morrissette Drive, Springfield, Virginia in § 1312.30, or any nonnarcotic respondents, proposed frequency of
22152; Telephone: (202) 598–6812. substance in schedule IV or V which is response, and estimated total burden
SUPPLEMENTARY INFORMATION: Written also listed in schedule I or II of the may be obtained free of charge from the
comments and suggestions from the Convention on Psychotropic RegInfo.gov Web site at http://
public and affected agencies concerning Substances, must have an import www.reginfo.gov/public/do/
the proposed collection of information permit. To obtain the permit to import PRAViewICR?ref_nbr=201606–1220–001
are encouraged. Your comments should controlled substances for domestic and (this link will only become active on the
address one or more of the following or scientific purposes, an application for day following publication of this notice)
four points: the permit must be made to the DEA on or by contacting Michel Smyth by
—Evaluate whether the proposed DEA Form 357. telephone at 202–693–4129, TTY 202–
collection of information is necessary 5. An estimate of the total number of 693–8064, (these are not toll-free
for the proper performance of the respondents and the amount of time numbers) or sending an email to DOL_
asabaliauskas on DSK3SPTVN1PROD with NOTICES
functions of the agency, including estimated for an average respondent to PRA_PUBLIC@dol.gov.
whether the information will have respond: The DEA estimates that 151 Submit comments about this request
practical utility; registrants participate in this by mail or courier to the Office of
—Evaluate the accuracy of the agency’s information collection, taking an Information and Regulatory Affairs,
estimate of the burden of the estimated 0.25 hours per registrant Attn: OMB Desk Officer for DOL–BLS,
proposed collection of information, annually. Office of Management and Budget,
including the validity of the 6. An estimate of the total public Room 10235, 725 17th Street NW.,
methodology and assumptions used; burden (in hours) associated with the Washington, DC 20503; by Fax: 202–
VerDate Sep<11>2014 17:13 Aug 19, 2016 Jkt 238001 PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 E:\FR\FM\22AUN1.SGM 22AUN1](https://thefederalregister.org/doc/81_FR_56859/page/7.svg)
Document Created: 2018-02-09 11:38:17
Document Modified: 2018-02-09 11:38:17
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Dates | August 10, 2016 Respectfully Submitted, /s/-------------------------------------------------------------------- | |
| FR Citation | 81 FR 56697 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR