[Federal Register Volume 79, Number 153 (Friday, August 8, 2014)]
[Notices]
[Pages 46452-46462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18744]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States V. LM U.S. Corp Acquisition Inc. and Ross Aviation,
LLC; Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Stipulation and Competitive Impact Statement have been filed with the
United States District Court for the District of Columbia in United
States of America v.
[[Page 46453]]
LM U.S. Corp Acquisition Inc. and Ross Aviation, LLC, Civil Action No.
1:14-cv-01291. On July 30, 2014, the United States filed a Complaint
alleging that the proposed acquisition by LM U.S. Corp Acquisition Inc.
(doing business as Landmark Aviation ``Landmark'') of the fixed base
operator (``FBO'') assets of Ross Aviation, LLC (``Ross'') at
Scottsdale Municipal Airport (``SDL'') in Arizona would violate Section
7 of the Clayton Act, 15 U.S.C. 18. The proposed Final Judgment, filed
the same time as the Complaint, requires Landmark to sell the FBO
assets it is acquiring from Ross at SDL.
Copies of the Complaint, proposed Final Judgment and Competitive
Impact Statement are available for inspection at the Department of
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth
Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481),
on the Department of Justice's Web site at http://www.usdoj.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 U.S. Department of Justice,
Antitrust Division's internet Web site, filed with the Court and, under
certain circumstances, published in the Federal Register. Comments
should be directed to William H. Stallings, Chief, Transportation,
Energy, and Agriculture Section, Antitrust Division, Department of
Justice, Washington, DC 20530, (telephone: 202-514-9323).
Patricia A. Brink,
Director of Civil Enforcement.
United States District Court for the District of Columbia
United States of America, U.S. Department of Justice, Antitrust
Division, 450 Fifth Street NW., Suite 8000, Washington, DC 20530,
Plaintiff, v. LM U.S. Corp Acquisition Inc., 1500 City West Blvd.,
Suite 600, Houston, TX 77042 and Ross Aviation, LLC, 3033 East First
Avenue, Suite 815, Denver, CO 80206 Defendants.
Case: 1:14-cv-01291
Judge: Royce Lamberth
Filed: 07/30/2014
COMPLAINT
The United States of America, acting under the direction of the
Attorney General of the United States, brings this civil antitrust
action to enjoin the proposed acquisition by LM U.S. Corp Acquisition
Inc. (with affiliated companies doing business as Landmark Aviation,
``Landmark'') of Ross Aviation, LLC (``Ross'') (collectively,
``Defendants'') and to obtain other equitable relief. The United States
alleges as follows:
I. NATURE OF THE ACTION
1. On April 19, 2014, Landmark and Ross signed an agreement for
Landmark to acquire Ross's United States fixed base operators
(``FBOs'') for approximately $330 million. FBOs provide flight support
services--including fueling, ramp and hangar rentals, office space
rentals, and other services--to general aviation customers. Landmark is
the third largest fixed base operator in the United States and operates
over 40 FBOs at airports around the country. Ross operates FBOs at 19
airports in the United States. Both Landmark and Ross operate FBOs at
the Scottsdale Municipal Airport (``SDL'').
2. Landmark and Ross are the only two FBOs operating at SDL. They
compete directly on price and quality of FBO services for general
aviation customers. Thus, the proposed acquisition would eliminate this
head-to-head competition and create an FBO monopoly at SDL. The
proposed acquisition would also give Landmark the ability to raise
prices and lower the quality of services at SDL for general aviation
customers. Unless the transaction is enjoined, the proposed acquisition
is likely to lessen competition substantially in the market for FBO
services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C.
Sec. 18.
II. JURISDICTION AND VENUE
3. The United States brings this action under Section 15 of the
Clayton Act, as amended, 15 U.S.C. Sec. 25, to prevent and restrain
Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. Sec.
18.
4. Defendants are engaged in interstate commerce and in activities
substantially affecting interstate commerce. Landmark and Ross provide
FBO services to aircraft landing throughout the United States. This
Court has subject matter jurisdiction over this action and jurisdiction
over the parties pursuant to 15 U.S.C. Sec. 25, and 28 U.S.C.
Sec. Sec. 1331, 1337(a), and 1345.
5. Defendants have consented to venue and personal jurisdiction in
this District.
III. DEFENDANTS AND THE PROPOSED TRANSACTION
6. LM U.S. Corp Acquisition Inc. is a Delaware corporation with its
principal place of business in Houston, Texas. LM U.S. Corp Acquisition
Inc. is a subsidiary of CP V Landmark II, L.P. CP V Landmark II, L.P.
and CP V Landmark, L.P., which are both limited partnerships within the
Carlyle Group, control all the companies doing business as Landmark
Aviation. CP V Landmark II, L.P., CP V Landmark, L.P., and Carlyle
Partners V, L.P. (collectively, ``Landmark'') are all limited
partnerships within the Carlyle Group with the same or similar
investors. Landmark owns and operates more than 40 FBO facilities in
the United States, including its FBO operation at SDL, which it
operates as Landmark Aviation-SDL.
7. Ross is a Delaware limited liability company with its principal
place of business in Denver, Colorado. Ross owns and operates 19 FBO
facilities in the United States, including its FBO operation at SDL,
which it operates as Scottsdale AirCenter.
8. On April 19, 2014, Landmark and Ross executed a Transaction
Agreement under which Landmark will acquire all of Ross's FBO assets
for approximately $330 million.
IV. TRADE AND COMMERCE
A. The Relevant Market
9. FBO services include the sale of jet aviation fuel (``Jet A
fuel'') and aviation gasoline (``avgas''), as well as related support
services, to general aviation customers. FBOs usually do not charge
separately for services such as conference rooms, pilot lounges, flight
planning, and transportation. Instead, they recover the cost of these
ancillary services in the price that they charge for fuel. FBOs often
charge separately for hangar and office rentals, aircraft storage, tie-
down and ground services, deicing, and catering.
10. The largest source of revenue for an FBO is fuel sales. FBOs
sell Jet A fuel for jet aircraft, turboprops and helicopters, and avgas
for smaller, piston-operated planes.
11. General aviation customers cannot obtain fuel, hangar, ramp or
related services at SDL, except through the FBOs authorized to sell
such products and services by the local airport authority.
Consequently, general aviation customers landing at SDL have no option
other than to use Landmark and Ross FBOs for these services. Obtaining
FBO services at another airport would not provide an economically
practical alternative for
[[Page 46454]]
these general aviation customers because they purposely select SDL due
to its proximity to Scottsdale. Thus, a small but significant post-
acquisition increase in the prices for fuel, hangar space, and other
FBO services at SDL would not cause general aviation customers to
switch to other airports in sufficient quantities to make such a price
increase unprofitable.
12. Accordingly, the provision of FBO services to general aviation
customers is a relevant product market and SDL is a relevant geographic
market (i.e., a line of commerce and a section of the country) under
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
B. Anticompetitive Effects
13. The market for FBO services at SDL is highly concentrated, with
only two providers--Landmark and Ross. If Landmark acquires the Ross
FBO facility, it will have a monopoly in the market for FBO services at
SDL.
14. Competition between Landmark's and Ross's FBO facilities
currently limits the ability of each to raise prices for FBO services.
This head-to-head competition also forces each company to offer better
service to customers. The proposed acquisition would eliminate the
competitive constraint each imposes on the other.
15. Thus, the proposed acquisition would lead to a monopoly at SDL,
which, in turn, would likely result in higher prices for FBO services
and a lower quality of service for customers in violation of Section 7
of the Clayton Act, 15 U.S.C. Sec. 18.
16. Successful entry into the provision of FBO services at SDL by a
new competitor would not be timely, likely, or sufficient to deter the
anticompetitive effects resulting from this transaction. Entry
sufficient to replace the market impact of Ross would be unlikely for
several reasons. First, Landmark and Ross both hold long-term leases
from SDL for their FBO Facilities. Additionally, the new FBO provider
would need to get the approval of the airport authority, obtain
permits, and construct facilities prior to beginning its operations at
SDL. This process would require extensive lead time to complete and
there is no guarantee that the new provider would be able to obtain the
necessary approvals and permits. Thus, timely and successful entry at
SDL by a new provider of FBO services would be unlikely to occur in
response to a small but significant and non-transitory post-merger
price increase.
V. VIOLATION ALLEGED
17. The United States hereby incorporates paragraphs 1 through 16.
18. Unless enjoined, Landmark's proposed acquisition of Ross is
likely to substantially lessen competition and restrain trade for FBO
services at SDL in violation of Section 7 of the Clayton Act, 15 U.S.C.
Sec. 18, in the following ways:
a. actual and potential competition between Landmark and Ross for
FBO services at SDL will be eliminated;
b. competition for FBO services at SDL will be eliminated; and
c. prices for FBO services for general aviation customers at SDL
will likely increase and quality of service will likely decrease.
VI. REQUEST FOR RELIEF
19. The United States requests that:
a. Landmark's proposed acquisition of Ross's FBO facility at SDL be
adjudged and decreed to be unlawful and in violation of Section 7 of
the Clayton Act, 15 U.S.C. Sec. 18;
b. Defendants and all persons acting on their behalf be
preliminarily and permanently enjoined and restrained from consummating
the proposed transaction or from entering into or carrying out any
contract, agreement, plan, or understanding, the effect of which would
be to combine Landmark's and Ross's FBO facilities and assets at SDL;
c. the United States be awarded its costs for this action; and
d. the United States receive such other and further relief as the
Court deems just and proper.
Dated this 30th day of July, 2014.
Respectfully submitted,
For Plaintiff United States:
/s/--------------------------------------------------------------------
William J. Baer (D.C. BAR # 324723)
Assistant Attorney General for Antitrust
/s/--------------------------------------------------------------------
David I. Gelfand
Deputy Assistant Attorney General
/s/--------------------------------------------------------------------
Patricia A. Brink
Director of Civil Enforcement
/s/--------------------------------------------------------------------
William H. Stallings (D.C. BAR #444924)
Chief, Transportation, Energy & Agriculture Section
/s/--------------------------------------------------------------------
Caroline E. Laise
Assistant Chief Transportation, Energy & Agriculture Section
/s/--------------------------------------------------------------------
Michelle A. Pionkowski*
Laura B. Collins
Attorneys, Antitrust Division, U.S. Department of Justice, 450 Fifth
Street NW., Suite 8000, Washington, DC 20530, Telephone: (202) 598-
2954, Facsimile: (202) 307-2784, E-mail:
[email protected]
Attorneys for the United States
*Attorney of Record
United States District Court for the District of Columbia
United States of America, Plaintiff, v. LM U.S. Corp Acquisition
Inc., and Ross Aviation, LLC, Defendants.
Case: 1:14-cv-01291
Judge: Royce Lamberth
Filed: 07/30/2014
COMPETITIVE IMPACT STATEMENT
Plaintiff United States of America (``United States''), pursuant to
Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA'' or
``Tunney Act''), 15 U.S.C. Sec. 16(b)-(h), files this Competitive
Impact Statement relating to the proposed Final Judgment submitted for
entry in this civil antitrust proceeding.
I. NATURE AND PURPOSE OF THE PROCEEDING
Defendant LM U.S. Corp Acquisition Inc. (with affiliated companies
doing business as Landmark Aviation, ``Landmark'') and Defendant Ross
Aviation, LLC (``Ross'') (collectively, ``Defendants'') entered into an
Agreement, dated April 19, 2014, pursuant to which Landmark will
acquire the fixed base operators (``FBO'') of Ross Aviation for
approximately $330 million. The United States filed a civil antitrust
Complaint on July 30, 2014, seeking to enjoin the proposed acquisition.
The Complaint alleges that the likely effect of this acquisition would
be to combine the only providers of FBO services at Scottsdale
Municipal Airport (``SDL''), thereby creating a monopoly in violation
of Section 7 of the Clayton Act, 15 U.S.C. Sec. 18. This loss of
competition likely would result in both (1) higher prices for fuel and
other FBO services and (2) a reduction in the quality of FBO services
offered at SDL.
At the same time the Complaint was filed, the United States also
filed a Hold Separate Stipulation and Order (``Hold Separate'') and
proposed Final Judgment, which are designed to eliminate the
anticompetitive effects of the acquisition. Under the proposed Final
Judgment, which is explained more fully below, Defendants are required
to sell Ross's FBO assets at SDL, which currently operate as a wholly
owned subsidiary: Ross Scottsdale LLC (the ``Divestiture Assets'').
Under the terms of the Hold Separate Stipulation and Order, Defendant
Landmark will take certain steps to ensure that the Divestiture Assets
are operated as a competitively independent, economically viable and
[[Page 46455]]
ongoing business concern that will remain independent and uninfluenced
by the consummation of the acquisition, and that competition is
maintained during the pendency of the ordered divestiture.
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment would terminate this action, except that
the Court would retain jurisdiction to construe, modify, or enforce the
provisions of the proposed Final Judgment and to punish violations
thereof.
II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION
A. The Defendants and the Proposed Transaction
LM U.S. Corp Acquisition Inc. is a Delaware corporation with its
principal place of business in Houston, Texas. LM U.S. Corp Acquisition
Inc. is a subsidiary of CP V Landmark II, L.P. CP V Landmark II, L.P.
and CP V Landmark, L.P., which are both limited partnerships within the
Carlyle Group, control all the companies doing business as Landmark
Aviation. CP V Landmark II, L.P., CP V Landmark, L.P., and Carlyle
Partners V, L.P. (collectively, ``Landmark'') are all limited
partnerships within the Carlyle Group with the same or similar
investors. Landmark owns and operates more than 40 FBO facilities in
the United States, including its FBO operation at SDL, which it
operates as Landmark Aviation-SDL.
Ross Aviation, LLC (``Ross'') is a Delaware limited liability
company with its principal place of business in Denver, Colorado. Ross
is a subsidiary of Genossenschaft Constanter, a Swiss company. Ross
owns and operates 19 FBO facilities in the United States, including its
FBO operation at SDL, which it operates as Scottsdale AirCenter.
The proposed transaction, as initially agreed to by Defendants on
April 19, 2014, would result in Landmark's acquisition of Ross's United
States FBO locations for $330 million. SDL is the only airport at which
Landmark and Ross currently compete in the provision of FBO services.
Defendants are the only two full-service FBOs operating at SDL, and
successful entry into the provision of FBO services at SDL by a new
competitor would not be timely, likely, or sufficient to deter the
anticompetitive effects resulting from this transaction. This
acquisition is the subject of the Complaint and proposed Final Judgment
filed by the United States on July 30, 2014.
B. The Competitive Effects of the Transaction on the FBO Services
Market
1. The Relevant Market
The Complaint alleges that the proposed transaction would eliminate
competition in the provision of FBO services at SDL in violation of
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18. FBOs are facilities
located at airports that provide fuel and related support services to
general aviation customers. General aviation customers include charter,
private, and corporate aircraft operators, as distinguished from
scheduled commercial passenger and cargo airline operators and military
flying.
Fuel sales are the largest source of revenues for FBOs. FBOs often
do not charge separately for services such as conference rooms, pilot
lounges, newspapers, or baggage handling. Instead, they recover the
cost of these services through fuel revenues. FBOs also derive income
from hangar and office rentals, aircraft storage, tie-down and ground
services, and deicing.
General aviation customers cannot obtain fuel, hangar, ramp, and
related services at SDL except through an FBO authorized to sell such
services by the local airport authority. Consequently general aviation
customers departing from or landing at SDL have no option other than to
use Landmark and Ross FBOs for these services. Obtaining FBO services
at other airports in the Scottsdale region would not provide an
economically practical alternative for these general aviation customers
because many general aviation customers select SDL over other airports
in the area for its proximity to Scottsdale. General aviation customers
at SDL would not switch to other airports in the Scottsdale region in
sufficient numbers to prevent anticompetitive price increases for fuel
and other FBO services at SDL.
2. The Proposed Merger Would Produce Anticompetitive Effects
Landmark and Ross are the only two providers for FBO services at
SDL. Competition between them currently limits the ability of each to
raise prices for FBO services. This head-to-head competition also
forces each company to offer better service to general aviation
customers at SDL. The proposed acquisition would eliminate the
competitive constraint each provider imposes upon the other and lead to
a monopoly at SDL. This would result in higher prices for fuel and
other FBO services and a lower quality of services in violation of
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
Successful entry into the provision of FBO services at SDL by a new
competitor would not be timely, likely, or sufficient to deter the
anticompetitive effects resulting from this transaction. Entry
sufficient to replace the market impact of Ross would be unlikely for
several reasons. Landmark and Ross both hold long-term leases from SDL
for their FBO Facilities. Additionally, the new FBO provider would need
to get the approval of the airport authority, obtain permits, and
construct facilities prior to beginning its operations at SDL. This
process would require extensive lead time to complete and there is no
guarantee that the new provider would be able to obtain the necessary
approvals and permits. Thus, timely and successful entry at SDL by a
new provider of FBO services would be unlikely to occur in response to
a small but significant and non-transitory post-merger price increase.
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
A. Divestiture of Ross's FBO at SDL
The divestiture requirement of the proposed Final Judgment will
eliminate the anticompetitive effects of the acquisition in the market
for FBO services provided to general aviation customers at SDL by
establishing a new, independent, and economically viable competitor.
The proposed Final Judgment requires the Defendants to divest, as a
viable ongoing business, the Divestiture Assets. The Divestiture Assets
must be divested to Signature Flight Support Corporation
(``Signature'') or to another acquirer in such a way as to satisfy the
United States in its sole discretion that the operations can and will
be operated by the purchaser as a viable, ongoing business that can
compete effectively in the relevant market. Defendants must take all
reasonable steps necessary to accomplish the divestiture quickly. In
order to provide greater certainty and efficiency in the divestiture
process, the United States has approved Defendants' proposed Acquirer,
Signature Flight Support Corporation (``Signature''). If Defendants do
not sell the assets to Signature, they shall cooperate with prospective
purchasers to accomplish the divestiture expeditiously.
In antitrust cases involving acquisitions in which the United
States requests a divestiture remedy, the United States seeks to
require completion of the divestiture within the
[[Page 46456]]
shortest period of time reasonable under the circumstances. Section
IV(A) of the proposed Final Judgment requires the Defendants to
complete the divestiture within ten (10) days after the Court signs the
Hold Separate Stipulation and Order. The proposed Final Judgment also
provides that this time period may be extended one or more times by the
United States in its sole discretion for a period not to exceed ninety
(90) calendar days, and shall notify the Court in such circumstances. A
prompt divestiture has the benefits of restoring competition lost as a
result of the acquisition and reducing the possibility that the value
of the assets will be diminished. Section V(B) of the Hold Separate
Stipulation and Order specifies that the divestiture assets will be
maintained as a viable business and that Landmark employees will not
gain access to customer or supplier lists specific to the divestiture
assets prior to divestiture.
Section IV(B) of the proposed Final Judgment requires the
Defendants to furnish information to prospective acquirers in an
attempt to sell the divestiture assets. In this instance, the United
States has already approved Signature as an appropriate acquirer for
the divestiture assets. If Defendants sell the divestiture assets to
Signature, no additional time will be needed for the United States to
approve the acquirer, and Defendants will not need to furnish
information to prospective acquirers.
In the event that Defendants do not accomplish the divestiture
within the periods prescribed in 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 sale of
the Divestiture Assets. If a Divestiture Trustee is appointed, the
proposed Final Judgment provides that Defendants will pay all costs and
expenses of the Divestiture Trustee. The Divestiture Trustee's
commission will be structured so as to incentivize the Divestiture
Trustee to complete the divestiture as quickly as possible while trying
to obtain the highest possible price for the Divestiture Assets. After
his or her appointment becomes effective, the Divestiture Trustee will
file monthly reports with the Court and the United States which set
forth his or her efforts to accomplish the divestiture. At the end of
six (6) months, if the divestiture has not been accomplished, the
Divestiture Trustee and the United States will make recommendations to
the Court, which shall enter such orders as appropriate, in order to
carry out the purpose of the trust, including extending the trust or
the term of the Divestiture Trustee's appointment.
The divestiture provisions of the proposed Final Judgment will
eliminate the anticompetitive effects of the acquisition in the
provision of FBO services at SDL.
B. Notification
Section XI of the proposed Final Judgment requires Landmark to
provide advance notification of certain future acquisitions from
entities providing FBO services that would not otherwise be reportable
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The
notification provision of the proposed Final Judgment is intended to
inform the Division of transactions that raise competitive concerns
similar to those remedied here, and if necessary, to seek to enjoin any
transaction pursuant to Section 7 of the Clayton Act, 15 U.S.C. Sec.
18.
The proposed Final Judgment provides that Landmark shall not
directly or indirectly acquire any leases from, assets of, or interests
in any entity providing FBO services at an airport in the United States
where Landmark is providing FBO services, without prior notification to
the United States. Notification is not required if the value of the
assets, interests, or leases is $20 million or less, or if there is
another full service FBO facility at the airport that is not involved
in the transaction. The proposed Final Judgment requires that
notification shall be provided within five (5) business days of
entering into a definitive assumption or acquisition agreement and at
least thirty (30) calendar days prior to acquiring any such interest.
If Landmark formally requests approval for a lease transfer from an
airport authority in writing prior to entering into an agreement,
Landmark shall report this request to the Antitrust Division within two
(2) days; however, the thirty (30) day waiting period shall not begin
until the Antitrust Division receives the Notification and Report Form.
IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15 U.S.C. Sec. 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 will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.
Sec. 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 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 Department of Justice, which
remains free to withdraw its consent to the proposed Final Judgment at
any time prior to the Court's entry of judgment. The comments and the
response of the United States will be filed with the Court. In
addition, comments will be posted on the U.S. Department of Justice,
Antitrust Division's internet Web site and, under certain
circumstances, published in the Federal Register.
Written comments should be submitted to:
William H. Stallings
Chief, Transportation, Energy, and Agriculture Section
Antitrust Division
United States Department of Justice
450 5th St. NW
Suite 8000
Washington, DC 20530
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits
[[Page 46457]]
against Defendants. The United States could have continued the
litigation and sought preliminary and permanent injunctions against
Landmark's acquisition of Ross's FBO assets at SDL. The United States
is satisfied, however, that the divestiture of assets described in the
proposed Final Judgment will preserve competition for the provision of
FBO services at SDL. Thus, the proposed Final Judgment would achieve
all or substantially all of the relief the United States would have
obtained through litigation, but avoids the time, expense, and
uncertainty of a full trial on the merits of the Complaint.
VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT
The Clayton Act, as amended by the APPA, requires that proposed
consent judgments in antitrust cases brought by the United States be
subject to a sixty-day comment period, after which the court shall
determine whether entry of the proposed Final Judgment ``is in the
public interest.'' 15 U.S.C. Sec. 16(e)(1). In making that
determination, the court, in accordance with the statute as amended in
2004, is required to consider:
(A) the competitive impact of such judgment, including termination
of alleged violations, provisions for enforcement and modification,
duration of relief sought, anticipated effects of alternative remedies
actually considered, whether its terms are ambiguous, and any other
competitive considerations bearing upon the adequacy of such judgment
that the court deems necessary to a determination of whether the
consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and individuals
alleging specific injury from the violations set forth in the complaint
including consideration of the public benefit, if any, to be derived
from a determination of the issues at trial.
15 U.S.C. Sec. 16(e)(1)(A) & (B). In considering these statutory
factors, the court's inquiry is necessarily a limited one, as the
government is entitled to ``broad discretion to settle with the
defendant within the reaches of the public interest.'' United States v.
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007)
(assessing public interest standard under the Tunney Act); United
States v. 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\
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\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). 2004
amendments ``effected minimal changes'' to Tunney Act review).
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As the United States 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 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 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 United States'
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
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.
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 InBev, 2009
U.S. Dist. LEXIS 84787, at *20 (``the `public interest' is not to be
measured by comparing the violations alleged in the complaint against
those the court believes could have, or even should have, been
alleged.''). Because the ``court's authority to review the decree
depends entirely on the government's
[[Page 46458]]
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 recently 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.'' SBC Commc'ns, 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). The language wrote into the
statute what Congress intended when it 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. John 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\
---------------------------------------------------------------------------
\3\ See 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, at *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.
Dated: July 30, 2014
Respectfully submitted,
/s/--------------------------------------------------------------------
Laura B. Collins
Michelle A. Pionkowski *
Trial Attorneys
U.S. Department of Justice
Antitrust Division
Transportation, Energy, and Agriculture
450 5th St. NW., Suite 8000
Washington, DC 20530
* Attorney of Record
United States District Court For the District Of Columbia
United States of America, Plaintiff, v. LM U.S. Corp Acquisition
Inc., and Ross Aviation, LLC, Defendants.
Case: 1:14-cv-01291
Judge: Royce Lamberth
Filed: 07/30/2014
PROPOSED FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its Complaint
on July 30, 2014, the United States and Defendants, Defendant LM U.S.
Corp Acquisition Inc. and Defendant Ross Aviation, LLC by their
respective attorneys, have consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law, and
without this Final Judgment constituting any evidence against or
admission by any party regarding any issue of fact or law;
AND WHEREAS, Defendants agree to be bound by the provisions of this
Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and
certain divestiture of certain rights or assets by the Defendants to
assure that competition is not substantially lessened;
AND WHEREAS, the United States requires Defendants to make certain
divestitures for the purpose of remedying the loss of competition
alleged in the Complaint;
AND WHEREAS, Defendants have represented to the United States that
the divestitures required below can and will be made and that
Defendants will later raise no claim of hardship or difficulty as
grounds for asking the Court to modify any of the divestiture
provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED AND DECREED:
I. Jurisdiction
This Court has jurisdiction over the subject matter of and each of
the parties to this action. The Complaint states a claim upon which
relief may be granted against Defendants under Section 7 of the Clayton
Act, as amended (15 U.S.C. Sec. 18).
II. Definitions
As used in this Final Judgment:
A. ``Acquirer'' means Signature Flight Support Corporation, or
another entity to whom Defendants divest the Divestiture Assets.
B. ``Landmark'' means Defendant LM U.S. Corp Acquisition Inc., a
Delaware corporation with its headquarters in Houston, Texas, CP V
Landmark L.P., CP V Landmark II, L.P., any party that acquires all or
substantially all of the assets by which any of the foregoing (in the
aggregate, with their subsidiaries taken as a whole) performs FBO
Services, Carlyle Partners V, L.P., and their subsidiaries, divisions,
groups, partnerships, joint ventures, directors, officers, managers,
and employees.
C. ``Ross'' means Defendant Ross Aviation, LLC, a Delaware
corporation with its headquarters in Denver, Colorado, its successors
and assigns, subsidiaries, divisions, groups, affiliates, partnerships,
and joint ventures, and their directors, officers, managers, agents,
and employees. One of Ross's wholly owned subsidiaries, Ross Scottsdale
LLC, a Delaware limited liability corporation headquartered in
Scottsdale, Arizona, operates the Divestiture Assets.
D. ``Signature'' means Signature Flight Support Corporation, a
Delaware corporation with its headquarters in Orlando, FL, its
successors and assigns, and its subsidiaries, divisions, groups,
affiliates, partnerships, and joint ventures, and their directors,
officers, managers, agents, and employees.
E. ``SDL Airport'' means Scottsdale Municipal Airport, located in
Scottsdale, Arizona.
F. ``FBO Services'' means any or all services relating to providing
fixed based operator services, including, but not limited to, selling
fuel; leasing hanger, ramp, and office space; providing flight support
services; performing maintenance; providing access to terminal
facilities; or arranging for ancillary services such as limousines,
rental cars, or hotels.
G. ``FBO Facilities'' means any and all tangible and intangible
assets that comprise the business of providing FBO Services, including,
but not limited to, all personal property, inventory, office furniture,
materials, supplies, terminal space, hangars, ramps, general aviation
fuel tank farms for jet aviation fuel and aviation gas, and related
fueling and maintenance equipment, and other tangible property and all
assets used exclusively in connection with the business of providing
FBO Services; all licenses, permits, and authorizations issued by any
governmental
[[Page 46459]]
organization relating to the business of providing FBO Services subject
to licensor's approval or consent; all contracts, teaming arrangements,
agreements, leases, commitments, certifications, and understandings
relating to the business of providing FBO Services, including supply
agreements; all customer lists, contracts, accounts, and credit
records; all repair and performance records, and all other records
relating to the business of providing FBO Services; all intangible
assets used in the development, production, servicing, and sale of FBO
Services, including, but not limited to, all licenses and sublicenses,
technical information, computer software and related documentation,
know-how, drawings, blueprints, designs, design protocols,
specifications for materials, specifications for parts and devices, and
safety procedures for the handling of materials and substances.
H. ``Full Service FBO'' means a facility that provides FBO
Services, including pumping fuel into aircraft, and sells all fuel
types (Jet A and/or avgas) sold by FBOs at that airport.
I. ``Divestiture Assets'' means Ross Scottsdale LLC, a Delaware
limited liability company, including all rights, titles and interests,
including all fee, leasehold and real property rights in Ross's FBO
Facilities at SDL Airport.
J. ``Proposed Transaction'' means Landmark's proposed acquisition
of certain assets from Ross pursuant to the Transaction Agreement by
and among Ross Aviation Holdco LLC, Ross Aviation, LLC, and LM U.S.
Corp Acquisition Inc., dated April 19, 2014.
III. Applicability
A. This Final Judgment applies to Landmark and Ross, as defined
above, and all other persons in active concert or participation with
any of them who receive actual notice of this Final Judgment by
personal service or otherwise.
B. If, prior to complying with Section IV and V of this Final
Judgment, Defendants sell or otherwise dispose of all or substantially
all of their assets or of lesser business units that include the
Divestiture Assets, they shall require the purchaser to be bound by the
provisions of this Final Judgment. Defendants need not obtain such an
agreement from the acquirer of the assets divested pursuant to this
Final Judgment.
IV. Divestitures
A. Defendants are ordered and directed, within ten (10) calendar
days after the Court signs the Hold Separate Stipulation and Order in
this matter, to divest the Divestiture Assets in a manner consistent
with this Final Judgment to an Acquirer acceptable to the United
States, in its sole discretion. Defendants agree to use their best
efforts to divest the Divestiture Assets as expeditiously as possible.
The United States, in its sole discretion, may agree to one or more
extensions of this time period not to exceed ninety (90) calendar days
in total, and shall notify the Court in such circumstances.
B. Defendants shall not take any action that will impede in any way
the permitting, operation, or divestiture of the Divestiture Assets.
Following the sale of the Divestiture Assets, Defendants will not
undertake, directly or indirectly, any challenges to the environmental,
zoning, or other permits relating to the operation of the Divestiture
Assets.
C. In the event Defendants are attempting to divest the Divestiture
Assets to an Acquirer other than Signature, in accomplishing the
divestiture ordered by this Final Judgment, Defendants promptly shall
make known, by usual and customary means, the availability of the
Divestiture Assets. Defendants shall inform any person making inquiry
regarding a possible purchase of the Divestiture Assets that they are
being divested pursuant to this Final Judgment and provide that person
with a copy of this Final Judgment. Defendants shall offer to furnish
to all prospective Acquirers, subject to customary confidentiality
assurances, all information and documents relating to the Divestiture
Assets customarily provided in a due diligence process except such
information or documents subject to the attorney-client privileges or
work-product doctrine. Defendants shall make available such information
to the United States at the same time that such information is made
available to any other person.
D. Defendants shall provide the Acquirer and the United States
information relating to the personnel involved in the operation,
management, and sale of the Divestiture Assets to enable the Acquirer
to make offers of employment. Defendants will not interfere with any
negotiations by the Acquirer to employ any Defendant employee whose
primary responsibility is the operation, management, and sale of the
Divestiture Assets.
E. Defendants shall permit prospective Acquirers of the Divestiture
Assets to have reasonable access to personnel and to make inspections
of the physical facilities of the Divestiture Assets; access to any and
all environmental, zoning, and other permit documents and information;
and access to any and all financial, operational, or other documents
and information customarily provided as part of a due diligence
process.
F. Defendants shall warrant to the Acquirer that each asset will be
operational on the date of sale.
G. Defendants shall warrant to the Acquirer that there are no
material defects in the environmental, zoning, or other permits
pertaining to the operation of each asset.
H. The foregoing Sections IV.C through IV.G shall not apply in the
event that the acquirer of the Divestiture Assets is Signature pursuant
to the Interest Purchase Agreement dated as of May 23, 2014 by and
among Signature Flight Support Corporation, LM U.S. Corp Acquisition,
Inc. and, as of the Closing, Ross Aviation, LLC.
I. Unless the United States otherwise consents in writing, the
divestiture pursuant to Section IV, or by Divestiture Trustee appointed
pursuant to Section V, of this Final Judgment, shall include the entire
Divestiture Assets, and shall 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 the Acquirer as part of a viable,
ongoing business engaged in providing FBO Services at SDL Airport. The
divestitures, whether pursuant to Section IV or Section V of this Final
Judgment,
(1) shall be made to an Acquirer that, in the United States's sole
judgment, has the intent and capability (including the necessary
managerial, operational, technical and financial capability) of
competing effectively in the provision of FBO Services at SDL Airport;
and
(2) shall be accomplished so as to satisfy the United States, in
its sole discretion, that none of the terms of any agreement between an
Acquirer and Defendants give Defendants the ability unreasonably to
raise the Acquirer's costs, to lower the Acquirer's efficiency, or
otherwise to interfere in the ability of the Acquirer to compete
effectively.
V. Appointment of Divestiture Trustee
A. If Defendants have not divested the Divestiture Assets within
the time period specified in Section IV(A), Defendants shall notify the
United States of that fact in writing. Upon application of the United
States, the Court shall appoint a Divestiture Trustee selected by the
United States and approved by the Court to effect the divestiture of
the Divestiture Assets.
B. After the appointment of a Divestiture Trustee becomes
effective, only the Divestiture Trustee shall have the right to sell
the Divestiture Assets. The Divestiture Trustee shall have the
[[Page 46460]]
power and authority to accomplish the divestiture to an Acquirer
acceptable to the United States at such price and on such terms as are
then obtainable upon reasonable effort by the Divestiture Trustee,
subject to the provisions of Sections IV, V, and VI of this Final
Judgment, and shall have such other powers as this Court deems
appropriate. Subject to Section V(D) of this Final Judgment, the
Divestiture Trustee may hire at the cost and expense of Defendants any
investment bankers, attorneys, or other agents, who shall be solely
accountable to the Divestiture Trustee, reasonably necessary in the
Divestiture Trustee's judgment to assist in the divestiture. Any such
investment bankers, attorneys, or other agents shall serve on such
terms and conditions as the United States approves including
confidentiality requirements and conflict of interest certifications.
C. Defendants shall not object to a sale by the Divestiture Trustee
on any ground other than the Divestiture Trustee's malfeasance. Any
such objections by Defendants must be conveyed in writing to the United
States and the Divestiture Trustee within ten (10) calendar days after
the Divestiture Trustee has provided the notice required under Section
VI.
D. The Divestiture Trustee shall serve at the cost and expense of
Defendants, on such terms and conditions as the United States approves,
including confidentiality requirements and conflict of interest
certifications. The Divestiture Trustee shall account for all monies
derived from the sale of the assets sold by the Divestiture Trustee and
all costs and expenses so incurred. After approval by the Court of the
Divestiture Trustee's accounting, including fees for its services yet
unpaid and those of any professionals and agents retained by the
Divestiture Trustee, all remaining money shall be paid to Defendants
and the trust shall then be terminated. The compensation of the
Divestiture Trustee and any professionals and agents retained by the
Divestiture Trustee shall be reasonable in light of the value of the
Divestiture Assets and based on a fee arrangement providing the
Divestiture Trustee with an incentive based on the price and terms of
the divestiture and the speed with which it is accomplished, but
timeliness is paramount. If the Divestiture Trustee and Landmark are
unable to reach agreement on the Divestiture Trustee's or any agents'
or consultants' compensation or other terms and conditions of
engagement within fourteen (14) calendar days of appointment of the
Divestiture Trustee, the United States may, in its sole discretion,
take appropriate action, including making a recommendation to the
Court.
E. Defendants shall use their best efforts to assist the
Divestiture Trustee in accomplishing the required divestiture. The
Divestiture Trustee and any consultants, accountants, attorneys, and
other agents retained by the Divestiture Trustee shall have full and
complete access to the personnel, books, records, and facilities of the
business to be divested, and Defendants shall develop financial and
other information relevant to such business as the Divestiture Trustee
may reasonably request, subject to reasonable protection for trade
secret or other confidential research, development, or commercial
information. Defendants shall take no action to interfere with or to
impede the Divestiture Trustee's accomplishment of the divestiture.
F. After its appointment, the Divestiture Trustee shall file
monthly reports with the United States and, as appropriate, the Court
setting forth the Divestiture Trustee's efforts to accomplish the
divestiture ordered under this Final Judgment. To the extent such
reports contain information that the Divestiture Trustee deems
confidential, such reports shall not be filed in the public docket of
the Court. Such reports shall include the name, address, and telephone
number of each person who, during the preceding month, made an offer to
acquire, expressed an interest in acquiring, entered into negotiations
to acquire, or was contacted or made an inquiry about acquiring, any
interest in the Divestiture Assets, and shall describe in detail each
contact with any such person. The Divestiture Trustee shall maintain
full records of all efforts made to divest the Divestiture Assets.
G. If the Divestiture Trustee has not accomplished the divestiture
ordered under this Final Judgment within six (6) months after its
appointment, the Divestiture Trustee shall promptly file with the Court
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.
To the extent such reports contains information that the Divestiture
Trustee deems confidential, such reports shall not be filed in the
public docket of the Court. The Divestiture Trustee shall at the same
time furnish such report to the United States which shall have the
right to make additional recommendations consistent with the purpose of
the trust. The Court thereafter shall enter such orders as it shall
deem appropriate to carry out the purpose of the Final Judgment, which
may, if necessary, include extending the trust and the term of the
Divestiture Trustee's appointment by a period requested by the United
States.
H. If the United States determines that the Divestiture Trustee has
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend the Court appoint a substitute
Divestiture Trustee.
VI. Notice of Proposed Divestiture
A. Within two (2) business days following execution of a definitive
divestiture agreement, Defendants or the Divestiture Trustee, whichever
is then responsible for effecting the divestiture required herein,
shall notify the United States of any proposed divestiture required by
Section IV or V of this Final Judgment. If the Divestiture Trustee is
responsible, it shall similarly notify Defendants. The notice shall set
forth the details of the proposed divestiture and list the name,
address, and telephone number of each person not previously identified
who offered or expressed an interest in or desire to acquire any
ownership interest in the Divestiture Assets, together with full
details of the same.
B. Within fifteen (15) calendar days of receipt by the United
States of such notice, the United States may request from Defendants,
the proposed Acquirer, any other third party, or the Divestiture
Trustee, if applicable, additional information concerning the proposed
divestiture, the proposed Acquirer, and any other potential Acquirer.
Defendants and the Divestiture Trustee shall furnish any additional
information requested within fifteen (15) calendar days of the receipt
of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or
within twenty (20) calendar days after the United States has been
provided the additional information requested from Defendants, the
proposed Acquirer, any third party, and the Divestiture Trustee,
whichever is later, the United States shall provide written notice to
Defendants and the Divestiture Trustee, if there is one, stating
whether or not it objects to the proposed divestiture. If the United
States provides written notice that it does not object, the divestiture
may be consummated, subject only to Defendants' limited right to object
to the sale under Section V(C) of this Final Judgment. Absent written
notice that the United States does not object to the proposed Acquirer
or upon
[[Page 46461]]
objection by the United States, a divestiture proposed under Section IV
or Section V shall not be consummated. Upon objection by Defendants
under Section V(C), a divestiture proposed under Section V shall not be
consummated unless approved by the Court.
VII. Financing
Defendants shall not finance all or any part of any purchase made
pursuant to Section IV or V of this Final Judgment.
VIII. Hold Separate
Until the divestiture required by this Final Judgment has been
accomplished, Defendants shall take all steps necessary to comply with
the Hold Separate Stipulation and Order entered by this Court.
Defendants shall take no action that would jeopardize the divestiture
ordered by this Court.
IX. Affidavits
A. Within twenty (20) calendar days of the filing of the Complaint
in this matter, and every thirty (30) calendar days thereafter until
the divestiture has been completed under Section IV or V, Defendants
shall deliver to the United States an affidavit as to the fact and
manner of its compliance with Section IV or V of this Final Judgment.
Each such affidavit shall include the name, address, and telephone
number of each person who, during the preceding thirty (30) calendar
days, made an offer to acquire, expressed an interest in acquiring,
entered into negotiations to acquire, or was contacted or made an
inquiry about acquiring, any interest in the Divestiture Assets, and
shall describe in detail each contact with any such person during that
period. Each such affidavit shall also include a description of the
efforts Defendants have taken to solicit buyers for the Divestiture
Assets, and to provide required information to prospective Acquirers,
including the limitations, if any, on such information. Assuming the
information set forth in the affidavit is true and complete, any
objection by the United States to information provided by Defendants,
including limitation on information, shall be made within fourteen (14)
calendar days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint
in this matter, Defendants shall deliver to the United States an
affidavit that describes in reasonable detail all actions Defendants
have taken and all steps Defendants have implemented on an ongoing
basis to comply with Section VIII of this Final Judgment. Defendants
shall deliver to the United States an affidavit describing any changes
to the efforts and actions outlined in Defendants' earlier affidavits
filed pursuant to this section within fifteen (15) calendar days after
the change is implemented.
C. Defendants shall keep all records of all efforts made to
preserve and divest the Divestiture Assets until one year after such
divestiture has been completed.
X. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment, or of any related orders such as any Hold Separate
Order, or of determining whether the Final Judgment should be modified
or vacated, and subject to any legally recognized privilege, from time
to time authorized representatives of the United States Department of
Justice, including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative of
the Assistant Attorney General in charge of the Antitrust Division, and
on reasonable notice to Defendants, be permitted:
(1) access during Defendants' office hours to inspect and copy, or
at the option of the United States, to require Defendants to provide
hard copy or 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, regarding such matters. The interviews shall 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 in charge of the Antitrust Division,
Defendants shall submit written reports or response to written
interrogatories, under oath if requested, relating to any of the
matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in
this section shall 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), or for the
purpose of securing compliance with this Final Judgment, or as
otherwise required by law.
D. If at the time information or documents are furnished by
Defendants to the United States, Defendants represent and identify in
writing the material in any such information or documents to 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,'' then the United
States shall give Defendants ten (10) calendar days notice prior to
divulging such material in any legal proceeding (other than a grand
jury proceeding).
XI. Notification
Unless such transaction is otherwise subject to the reporting and
waiting period requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, 15 U.S.C. Sec. 18a (the ``HSR
Act''), Defendant Landmark, without providing advance notification to
the Antitrust Division, shall not directly or indirectly assume a lease
from, acquire assets of, or acquire interest in any entity engaged in
provision of FBO Services at an airport where Landmark is already
providing FBO Services in the United States during the term of this
Final Judgment, unless the assumption or acquisition (1) is valued at
less than $20 million dollars or (2) at least one Full Service FBO, not
involved in the transaction, provides FBO Services at the airport where
the assumption or acquisition will take place.
Such notification shall be provided to the Antitrust Division in
the same format as and per the instructions relating to the
Notification and Report Form set forth in the Appendix to Part 803 of
Title 16 of the Code of Federal Regulations as amended, except that the
information requested in Items 5 through 8 of the instructions must be
provided only about the provision of FBO Services. Notification shall
be provided within five (5) business days of entering into a definitive
assumption or acquisition agreement and at least thirty (30) calendar
days prior to acquiring any such interest, and shall include, beyond
what may be required by the applicable instructions, the names of the
principal representatives of the parties to the agreement who
negotiated the agreement. Should Landmark contact an airport authority
formally requesting approval of a lease transfer in a transaction that
would require the notification described in this paragraph prior to
entering into a
[[Page 46462]]
definitive acquisition agreement, Landmark shall report that
communication to the Division within two (2) business days, though the
thirty (30) day waiting period shall not begin until the Division
receives the information provided in the Notification and Report Form.
Early termination of the waiting period in this paragraph may be
requested and may be granted by the Antitrust Division in its sole
discretion. This Section shall be broadly construed and any ambiguity
or uncertainty regarding the filing of notice under this Section shall
be resolved in favor of filing notice.
XII. No Reacquisition
Defendants may not reacquire any part of the Divestiture Assets
during the term of this Final Judgment.
XIII. Retention of Jurisdiction
This Court retains jurisdiction to enable any party to this Final
Judgment to apply to this Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XIV. Expiration of Final Judgment
Unless this Court grants an extension, this Final Judgment shall
expire ten years from the date of its entry.
XV. Public Interest Determination
Entry of this Final Judgment is in the public interest. The parties
have complied with the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16, including making copies available to
the public of this Final Judgment, the Competitive Impact Statement,
and any comments thereon and the United States's responses to comments.
Based upon the record before the Court, which includes the Competitive
Impact Statement and any comments and response to comments filed with
the Court, entry of this Final Judgment is in the public interest.
Date:------------------------------------------------------------------
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16.
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United States District Judge
[FR Doc. 2014-18744 Filed 8-7-14; 8:45 am]
BILLING CODE 4410-11-P