[Federal Register Volume 80, Number 9 (Wednesday, January 14, 2015)]
[Notices]
[Pages 1957-1969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00466]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Verso Paper Corp. and NewPage Holdings Inc.
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,
Hold Separate Stipulation and Order, and Competitive Impact Statement
have been filed with the United States District Court for the District
of Columbia in United States of America v. Verso Paper Corp. and
NewPage Holdings Inc., Civil No. 1:14-cv-2216. On December 31, 2014,
the United States filed a Complaint alleging that Verso's proposed
acquisition of NewPage would violate Section 7 of the Clayton Act, 15
U.S.C. Sec. 18. The proposed Final Judgment, filed the same time as
the Complaint, requires Verso to divest NewPage's coated paper mills in
Biron, Wisconsin, and Rumford, Maine, including tangible and intangible
assets necessary to operate the facilities.
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 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 Peter J. Mucchetti, Chief, Litigation I Section,
Antitrust Division, Department of Justice, 450 Fifth Street NW., Suite
4100, Washington, DC 20530 (telephone: 202-307-0001).
Patricia A. Brink,
Director of Civil Enforcement.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Department of Justice,
Antitrust Division,
450 Fifth Street NW., Suite 4100,
Washington, DC 20530,
Plaintiff,
v.
VERSO PAPER CORP.,
6775 Lenox Center Court,
Memphis, TN 38115,
and
NEWPAGE HOLDINGS INC.,
8540 Gander Creek Drive,
Miamisburg, OH 45342,
Defendants.
CASE NO. 1:14-cv-2216
JUDGE: Tanya S. Chutkan
FILED: 12/31/14
COMPLAINT
The United States of America brings this antitrust action to enjoin
Verso Paper Corp. from acquiring NewPage Holdings Inc. The proposed
acquisition would likely substantially lessen competition in the
manufacture and sale of coated freesheet web paper, coated groundwood
paper, and label paper to customers in North America. By acquiring
NewPage, Verso would eliminate its foremost competitor in the sale of
these products.
I. INTRODUCTION
1. Both Verso and NewPage produce two types of coated publication
papers--coated freesheet web paper and coated groundwood paper. Post-
acquisition, the combined company would control approximately 50
percent of the coated freesheet web market in North America, which
accounts for more than $2 billion in sales, and 40 percent of the
coated groundwood market, which accounts for more than $3 billion in
sales. Vigorous competition between Verso and NewPage has ensured a
reliable supply of high-quality coated publication papers to North
American purchasers at competitive prices. Verso's proposed acquisition
of NewPage would eliminate this intense competition, and would likely
increase the incentives of the merged firm--and the remaining firms in
the market--to increase prices and reduce output.
2. Verso and NewPage are the largest producers in North America of
two types of label paper: cut-and-stack label paper and face sheet for
pressure-sensitive labels. Post-acquisition, the combined company would
control approximately 70 percent of the North American label-paper
market, which accounts for approximately $350 million in sales. Verso
has been a fierce competitor to NewPage, the leading seller of label
paper. Customers have taken advantage of this competition by playing
Verso and NewPage off each other to obtain more favorable prices.
Verso's acquisition of NewPage would extinguish this competition.
II. JURISDICTION, VENUE, AND INTERSTATE COMMERCE
3. The United States brings this action under Section 15 of the
Clayton Act, 15 U.S.C. Sec. 25, to prevent Verso and NewPage from
violating Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
4. This Court has subject-matter jurisdiction over this action
under Section 15 of the Clayton Act, 15 U.S.C. Sec. 25.
5. Verso and NewPage are engaged in, and their activities
substantially affect, interstate commerce. Collectively, the parties'
2013 coated freesheet web, coated groundwood, and label paper revenues
in the United States were approximately $2.5 billion.
6. Venue is proper in this District under Section 12 of the Clayton
Act, 15 U.S.C. Sec. 22. Both Verso and New Page are corporations that
sell publication papers to customers located in this District. Verso
and NewPage have consented to personal jurisdiction and venue in this
Court.
III. THE DEFENDANTS AND THE PROPOSED ACQUISITION
7. Defendant Verso is a corporation headquartered in Memphis,
Tennessee. It operates two mills that collectively produce coated
freesheet web paper, coated groundwood paper, label paper, and other
types of paper. Verso's mills are located in Maine and Michigan. In
early December 2014, Verso closed its mill in Bucksport, Maine, which
produced coated groundwood paper.
8. Defendant NewPage is a corporation headquartered in Miamisburg,
Ohio. NewPage operates eight mills that collectively produce coated
freesheet web paper, coated groundwood paper, label paper, and other
types of paper. These mills are located in Kentucky, Maryland,
Michigan, Minnesota, Wisconsin, and Maine.
9. On January 3, 2014, Verso agreed to acquire NewPage in a
transaction valued at approximately $1.4 billion.
IV. THE COATED PAPER INDUSTRY
10. Coated freesheet web paper and coated groundwood paper are
coated on both sides with a clay or other coating. The coating gives
the paper a smooth surface and glossy appearance and allows for
printing of high-quality graphics.
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11. Coated freesheet web paper is bright, heavier-weight glossy
paper with excellent print qualities that is used primarily for annual
reports, magazine covers and premium magazines, upscale brochures, and
direct mail advertising. Coated freesheet web paper is produced for use
in web printing applications. Web printing is typically used for large,
high-speed printing jobs and requires paper rolls that are capable of
being fed through the web printing equipment.
12. Coated groundwood paper is typically used for the interior
pages of magazines and catalogues, the covers of low-cost magazines,
and other medium-quality printing applications. Together, coated
freesheet web paper and coated groundwood paper are referred to in this
complaint as ``coated publication papers.''
13. Competition in the coated publication paper markets is driven
by several factors, including head-to-head bidding between
manufacturers to serve the particular needs of specific customers, and
by capacity and demand conditions. Producers individually negotiate
most sales with customers. Customers have varying preferences for
coated publication papers due to the papers' varying characteristics,
such as brightness, weight, printability, and smoothness. Customers
often have specific requirements for the paper that they purchase, and
customers typically evaluate each manufacturer's products and qualify
their products before purchasing from that manufacturer. Producers try
to manufacture products that meet the needs of printers and end users.
14. Demand for most coated publication papers in North America has
declined over the last several years because of a significant decline
in demand for magazines, catalogues, and other publications. As a
result, North American producers of coated publication papers have
closed a number of mills and decommissioning of machines. Declining
demand for coated publication papers is projected to continue, as is
the closing of mills and decommissioned machines.
15. Label paper is typically used to make labels for certain
consumer goods, such as canned foods or wine bottles. Label paper is
made from a type of freesheet paper that is coated on one side for
printing, allowing the uncoated side to adhere to the product.
V. MARKET DEFINITION
A. Relevant Product Markets
1. Coated Freesheet Web Paper
16. In the event of a small but significant and non-transitory
price increase, purchasers of coated freesheet web paper are unlikely
to substitute to other types of paper in sufficient quantities to make
the price increase unprofitable because coated freesheet web paper has
characteristics that distinguish it from other types of paper. Some of
these characteristics affect the appearance and performance of the
product, whereas other characteristics affect the printing process for
which the paper may be used.
17. Coated freesheet web paper is therefore a relevant product
market and line of commerce under Section 7 of the Clayton Act.
2. Coated Groundwood Paper
18. In the event of a small but significant and non-transitory
price increase, purchasers of coated groundwood paper are unlikely to
substitute to other types of paper in sufficient quantities to make the
price increase unprofitable because other papers are typically more
expensive, have a different look and feel, or otherwise have
characteristics that are undesirable for coated groundwood
applications.
19. Coated groundwood paper is therefore a relevant product market
and line of commerce under Section 7 of the Clayton Act.
3. Label Paper
20. In the event of a small but significant and non-transitory
price increase, purchasers of label paper are unlikely to substitute to
other kinds of paper in sufficient quantities to make the price
increase unprofitable because label paper produces a high-quality
appearance, is coated on only one side, and has other desirable
characteristics. Purchasers of label paper are also unlikely to
substitute to other label options in sufficient quantities to make the
price increase unprofitable because changing the type of label could
require a change in the product's container or packaging.
21. Label paper is therefore a relevant product market and line of
commerce under Section 7 of the Clayton Act.
B. Relevant Geographic Market
22. The relevant geographic market for analyzing the likely effects
of the proposed acquisition on the sale of each relevant product is no
larger than the United States and Canada (referred to here as ``North
America,'' consistent with usage in the paper industry).
23. Defining a geographic market based on the location of customers
is appropriate where, as here, (1) producers charge different prices
based on customer location, and (2) arbitrage by customers is
difficult.
24. For each relevant product, producers typically negotiate
individual prices with each customer. Arbitrage is impractical because
a customer in North America would need to find the product with the
particular characteristics it requires from a customer outside of North
America who has purchased that product at a significantly lower price
to allow for shipping costs to North America. Furthermore, the
additional costs of re-handling and re-shipping the product make
arbitrage prohibitively expensive. Finally, a customer purchasing
through arbitrage loses valuable services that producers often provide,
such as inventory management, warranties, and technical support.
25. In the event of a small but significant and non-transitory
price increase, purchasers of each relevant product in North America
are unlikely to defeat the price increase. North America is therefore a
relevant geographic market for each relevant product under Section 7 of
the Clayton Act.
VI. THE PROPOSED ACQUISITION WOULD LIKELY LEAD TO ANTICOMPETITIVE
EFFECTS IN COATED PUBLICATION PAPERS
26. The proposed acquisition would likely significantly increase
market concentration, eliminate head-to-head competition between Verso
and NewPage, increase incentives to raise prices and reduce output, and
facilitate accommodating conduct by competitors in the sale of coated
publication papers.
27. The proposed acquisition would significantly increase market
concentration for coated publication papers. Market concentration is a
useful indicator of the level of competitive vigor in a market and the
likely competitive effects of a proposed acquisition. The more
concentrated a market, and the more a transaction would increase market
concentration, the more likely it is that the transaction would
substantially reduce competition. Concentration in relevant markets is
typically measured by the Herfindahl-Hirschman Index (HHI). Markets in
which the post-merger HHI is above 2,500 are considered highly
concentrated. Mergers that increase the HHI by more than 200 points and
result in a highly concentrated market are presumed likely to create or
enhance market power. Markets in which the post-merger HHI is between
1,500 and 2,500 are considered moderately concentrated. Mergers that
increase the HHI by more than 100 points and result in a moderately
concentrated market potentially raise significant competitive concerns.
28. NewPage and Verso are the first and third largest competitors
in the North American coated freesheet web paper market. New Page
accounts for approximately 30 percent of market sales, and Verso
accounts for
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approximately 20 percent. Post-merger, the merged firm would have an
approximately 50 percent share, and with the next largest supplier,
would account for approximately 80 percent of market sales.
29. The proposed acquisition would result in a highly concentrated
market for coated freesheet web paper, with a post-merger HHI of
approximately 3,500. The proposed acquisition would increase the HHI by
approximately 1,200, and thus significantly increase market
concentration.
30. NewPage and Verso are the first and second largest competitors
in the North American coated groundwood market. NewPage and Verso each
account for approximately 20 percent of market sales. Post-merger, the
combined firm would have an approximately 40 percent share.
31. The proposed acquisition would result in a moderately
concentrated market with a post-merger HHI of approximately 2,200. The
acquisition would increase the HHI by approximately 800, and thus
significantly increase market concentration.
32. Verso and NewPage have frequently competed for sales to coated
publication paper customers. The proposed acquisition would eliminate
this head-to-head competition.
33. The proposed acquisition would also increase Verso's incentive
and ability to raise price and reduce output of coated publication
papers. Consequently, the acquisition would likely lead to increased
downtime, accelerated mill closures, and reduced output in North
America.
34. The acquisition would likely facilitate accommodating conduct
by competitors, leading to increased prices and reduced output. Despite
the differentiated nature of coated publication paper markets, these
markets are conducive to accommodating conduct by competitors. A small
number of producers dominate the industry, and producers regularly
obtain information from customers about their options and competitors'
prices and product availability.
VII. THE PROPOSED ACQUISITION WOULD LIKELY LEAD TO ANTICOMPETITIVE
EFFECTS IN THE LABEL-PAPER MARKET
35. The proposed acquisition likely would substantially lessen
competition in the sale of label paper. The acquisition would
substantially increase market concentration and eliminate the head-to-
head competition between Verso and NewPage.
36. NewPage accounts for approximately 60 percent of the market and
Verso accounts for approximately 10 percent. Post-acquisition, the
combined firm would have approximately a 70 percent share. The proposed
acquisition is presumptively anticompetitive because it would
substantially increase market concentration in the already highly
concentrated label-paper market from approximately 3,800 to 5,300.
37. Customers have played Verso and NewPage off each other in
negotiations to obtain lower prices and better products and service. If
the acquisition were completed, customers would no longer be able to do
so, likely enabling the combined firm to raise prices and eliminating
beneficial non-price competition between Verso and NewPage.
VIII. ABSENCE OF COUNTERVAILING FACTORS
38. Entry by new competitors or expansion by existing competitors
is unlikely to be timely or sufficient in scope to prevent the proposed
acquisition's likely anticompetitive effects. Entry into publication
papers is unlikely due to the declining demand for coated publication
papers and the high cost of building a new coated paper mill. Entry
into label papers is costly, uncertain, and time-consuming, as
successful entrants need to test and qualify each new product with each
major customer.
39. Supply responses from overseas manufacturers are unlikely to
prevent a substantial lessening of competition. Prices are generally
higher for imports than for domestic products. Furthermore, foreign
producers are limited by commitments to more profitable local markets;
by significant transportation costs and logistical issues; by
customers' exacting product specifications and preferences for short
lead times; and by fluctuations in currency exchange rates, which
disrupt consumer preferences for stable supply relationships.
40. The acquisition is unlikely to produce sufficient merger-
specific, cognizable efficiencies that Verso would pass through to
consumers to reverse the acquisition's likely anticompetitive effects.
IX. VIOLATION ALLEGED
41. The effect of the proposed acquisition, if completed, would
likely be to substantially lessen competition in interstate trade and
commerce in the relevant markets, in violation of Section 7 of the
Clayton Act, 15 U.S.C. 18.
42. Unless enjoined, the proposed acquisition likely would have the
following effects in each of the relevant markets:
(a) competition between Verso and NewPage would be eliminated;
(b) competition would likely be substantially lessened;
(c) prices would likely be higher than they otherwise would; and
(d) output would likely be lower than it otherwise would.
X. REQUEST FOR RELIEF
43. The United States requests that the Court:
(a) judge Verso's proposed acquisition of NewPage to violate
Section 7 of the Clayton Act, 15 U.S.C. 18;
(b) permanently enjoin Verso from acquiring any of the assets of
NewPage or engaging in any other transaction that would combine the two
companies;
(c) award Plaintiff the costs of this action; and
(d) award Plaintiff other just and proper relief.
December 31, 2014.
Respectfully Submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA:
/s/--------------------------------------------------------------------
WILLIAM J. BAER
Assistant Attorney General for Antitrust.
/s/--------------------------------------------------------------------
DAVID I. GELFAND
Deputy Assistant Attorney General.
/s/--------------------------------------------------------------------
PATRICIA A. BRINK
Director of Civil Enforcement.
/s/--------------------------------------------------------------------
PETER J. MUCCHETTI
Chief, Litigation I.
/s/--------------------------------------------------------------------
RYAN M. KANTOR
Assistant Chief, Litigation I.
/s/--------------------------------------------------------------------
KARL D. KNUTSEN
Attorney, Litigation I, Antitrust Division, U.S. Department of
Justice, 450 Fifth Street NW., Suite 4100, Washington, DC 20530,
Phone: (202) 514-0976, Facsimile: (202) 305-1190, E-mail:
[email protected]
SHOBITHA BHAT
SCOTT I. FITZGERALD
BARRY JOYCE
MICHAEL T. KOENIG
RICHARD MARTIN
AMBER J. MOREN
PAUL TORZILLI
(DC BAR # 986767)
In the United States District Court for the District of Columbia
United States of America, Plaintiff, v. Verso Paper Corp., and
NewPage Holdings Inc., Defendants.
Case No. 1:14-cv-2216
Judge: Tanya S. Chutkan
Filed: 12/31/14
COMPETITIVE IMPACT STATEMENT
Plaintiff United States of America (``United States''), pursuant to
Section
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2(b) of the Antitrust Procedures and Penalties Act (``APPA'' or
``Tunney Act''), 15 U.S.C. 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
On January 3, 2014, Defendant Verso Paper Corp. (``Verso'') agreed
to acquire all of the assets of Defendant NewPage Holdings Inc.
(``NewPage''). The United States filed a civil antitrust Complaint on
December 31, 2014, seeking to enjoin the proposed acquisition. The
Complaint alleges that the likely effect of this acquisition would be
to lessen competition substantially in the markets for coated
publication papers and label paper in violation of Section 7 of the
Clayton Act, 15 U.S.C. 18. For each product, this loss of competition
likely would result in higher prices, lower output, and fewer services
for customers in North America.
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, the Defendants must
divest two NewPage mills that manufacture the relevant products. Under
the terms of the Hold Separate Stipulation and Order, the Defendants
will take certain steps to ensure that the assets being divested will
be operated as a competitively independent, economically viable, and
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 the 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
On January 3, 2014, Verso agreed to acquire NewPage for
approximately $1.4 billion. In North America, Verso and NewPage are two
of the largest producers of coated paper. Verso and NewPage produce a
range of coated papers, including coated publication papers and label
paper.
Verso, a corporation headquartered in Memphis, Tennessee, owns and
operates two mills, both of which are located in North America.\1\ The
mills collectively produce a range of coated freesheet web paper,
coated groundwood paper, and label paper that is sold to customers
throughout North America. In 2013, Verso had approximately $1.4 billion
in sales.
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\1\ In December 2014, Verso closed its mill in Bucksport, Maine,
which produced coated groundwood paper. In the press release
announcing the closure, Verso's CEO indicated that the mill has been
unprofitable for a number of years and that in today's marketplace
the Bucksport mill would be unlikely to become profitable in the
future. Press Release, Verso Paper Corp., Verso Announces Closure of
Bucksport, Maine Paper Mill (Oct. 1, 2014) (available at http://investor.versopaper.com/releasedetail.cfm?ReleaseID=874161). Verso
contemplated closing the mill before it decided to merge with
NewPage. The United States does not allege that the closing of the
Bucksport Mill is a result of the merger.
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NewPage, a corporation headquartered in Miamisburg, Ohio, owns and
operates eight mills, all of which are located in North America. The
mills collectively produce a range of coated freesheet web paper,
coated groundwood paper, and label paper sold to customers throughout
North America. Its annual sales for 2013 were approximately $3.1
billion.
B. The Competitive Effects of the Proposed Acquisition
1. The Relevant Product Markets are Coated Freesheet Web Paper,
Coated Groundwood Paper, and Label Paper.
The Complaint alleges three types of coated paper are relevant
product markets within the meaning of Section 7 of the Clayton Act:
coated freesheet web paper, coated groundwood paper, and label paper.
Coated freesheet paper and coated groundwood paper are both used for
publications and are typically coated on two sides. Coated freesheet
paper is made from pulp that has impurities removed before being made
into paper, resulting in bright, high-quality paper. Coated freesheet
paper is typically used for annual reports, magazine covers, premium
magazines, brochures, and direct mail advertising.
Coated freesheet web paper is produced for use in web printing
applications. Web printers feed paper rolls through the printing
equipment rather than individual sheets of paper, as used in sheet-fed
printing applications. Web printing typically involves different
equipment and different paper than sheet-fed printing. In particular,
coated freesheet paper for use in web printing has lower moisture
content so that heat applied in the printing process does not cause the
paper to blister. For this reason, coated freesheet paper produced for
use in sheet-fed printers is functionally not a substitute for coated
freesheet web paper.
For customers who choose coated freesheet paper for their printed
material, web printing is often the more cost-effective choice for
large print jobs than sheet-fed printing, which typically is more cost-
effective for small print jobs. In response to a small but significant
increase in the price of coated freesheet web paper, customers who use
coated freesheet web paper for their print jobs are unlikely to
substitute to sheet-fed printing or other alternatives in sufficient
quantity to make the price increase unprofitable. As such, coated
freesheet web paper is a relevant product.
Coated groundwood paper is also a relevant product. Coated
groundwood paper is typically used for the interior pages of magazines
and catalogues, the covers of low-cost magazines, and other similar-
quality printing applications. In response to a small but significant
increase in the price of coated groundwood paper, purchasers are
unlikely to switch to coated freesheet paper in sufficient quantities
to make the price increase unprofitable because coated freesheet paper
is typically more expensive, heavier, or has other characteristics that
are undesirable for coated groundwood applications. Purchasers are also
unlikely to switch to lower quality paper in sufficient quantities to
make the price increase unprofitable because lower quality paper
produces a less appealing printed page than coated groundwood paper.
Label paper is a relevant product. Label paper is typically made
from coated freesheet paper. Label paper is coated on only one side;
the other side is treated with an adhesive for placement on an object
or surface. Label paper is principally used for two types of
applications: cut-and-stack labels such as those that appear on canned
food, and the face paper for pressure-sensitive labels such as those
that appear on wine bottles. Label paper purchasers require a
consistently high-quality label because the label is an important
aspect of a product's brand recognition and therefore sales success.
The cost of the label, moreover, is typically a small fraction of the
cost of the product on which the label appears. Because high-quality
labels are critical to a product's marketplace image and
[[Page 1961]]
are a small part of the product's cost, label paper purchasers are
unlikely to substitute from label papers to other forms of printed
information on containers in response to a small but significant
increase in the price of label paper.
2. The Relevant Geographic Market Is No Larger than Customers
Located In North America.
For each relevant product, the Complaint alleges that the relevant
geographic market is no larger than North America (defined consistent
with industry terminology as the United States and Canada). The market
is defined around the location of customers because suppliers typically
negotiate prices on a delivered basis with individual customers. As a
result, suppliers charge different prices to different customers based
on the customers' location. A hypothetical monopolist of each of the
three relevant products sold to customers located in North America
would likely profit from a small but significant price increase.
Customers located in North America would likely not avoid the price
increase by engaging in arbitrage. Arbitrage would entail a customer
trying to avoid the price increase by purchasing products from another
customer outside the relevant market. Arbitrage is unlikely to occur in
sufficient quantities to make the price increase unprofitable because
the end customer would need to pay significant incremental shipping
costs that would make arbitrage an uneconomical strategy. Arbitrage is
also unlikely to occur because a customer purchasing through arbitrage
loses valuable services that producers often provide, such as inventory
management, just-in-time delivery, warranties, and technical support.
3. The Proposed Acquisition Will Likely Result In Anticompetitive
Effects.
The Complaint alleges that the proposed acquisition will likely
substantially lessen competition in all three relevant markets. In each
market, the Complaint alleges that the acquisition will likely increase
concentration substantially and eliminate significant head-to-head
competition, leading to higher prices and reduced output. In the coated
freesheet web and coated groundwood markets, the Complaint further
alleges that the acquisition will likely cause the remaining
competitors to accommodate one another's price increases and output
reductions.
The proposed acquisition is presumptively unlawful because it will
increase concentration significantly in the highly concentrated coated
freesheet web and label paper markets. Market concentration is a useful
indicator of the level of competitive vigor in a market and the likely
competitive effects of a proposed acquisition. The more concentrated a
market and the more an acquisition would increase market concentration,
the more likely that the acquisition would substantially reduce
competition. Courts typically measure concentration in relevant markets
using the Herfindahl-Hirschman Index (HHI). Markets in which the post-
acquisition HHI is between 1,500 and 2,500 are considered to be
moderately concentrated and markets in which the HHI exceeds 2,500 are
considered highly concentrated. Acquisitions that increase the HHI by
more than 200 points and result in a highly concentrated market are
presumed likely to create or enhance market power.
In the markets for coated freesheet web paper and label paper, the
proposed acquisition would significantly increase concentration in
highly concentrated markets. In the coated freesheet web market,
NewPage had a 30% market share and Verso had a 20% market share at the
end of 2013. The post-acquisition HHI would increase by approximately
1,200 to approximately 3,500. In the label paper market, NewPage had a
60% market share and Verso had a 10% market share at the end of 2013.
The HHI would increase by approximately 1,500, and the post-acquisition
HHI would be approximately 5,300. In the coated groundwood market,
NewPage and Verso each had a 20% market share at the end of 2013. The
proposed acquisition would increase concentration by approximately 800
and result in a moderately concentrated market, with a post-acquisition
HHI of approximately 2,200.
Demand for coated publication papers has declined over the last
several years, and this decline is projected to continue for the
foreseeable future. Continued declines in demand will likely cause
inefficient competitors to exit the markets while only cost-effective
competitors will survive. In the coated freesheet web market, the
Defendants are two of three firms with cost-effective mills. In the
coated groundwood and label markets, the Defendants are two of a small
number of firms with cost-effective mills.
Products within each of the relevant product markets are
differentiated. Customers have varying preferences for product quality,
appearance, and performance. Verso, NewPage, and other producers design
products and marketing strategies to cater to these varying
preferences. For many customers of the relevant products, Verso and
NewPage competed head-to-head for business and represented the two best
alternatives. For these customers, the acquisition would reduce
competition because they would lose one of their two best options and a
less desirable option would become the customer's best alternative. The
proposed acquisition eliminates this head-to-head competition.
In addition, the coated freesheet web and coated groundwood markets
are conducive to accommodating conduct by competitors because a small
number of producers dominate the industry, and producers regularly
obtain information from customers about their options and competitors'
prices and product availability. Remaining competitors would likely
find it more profitable to follow price increases rather than lower
prices and risk a competitive response from other firms.
4. Supply Responses and Creditable, Procompetitive Efficiencies
Would Not Likely Prevent Anticompetitive Effects.
The Complaint alleges that supply responses from new competitors or
expansion by existing competitors are unlikely to be timely or
sufficient in scope to prevent the reduction in competition likely to
result from the proposed acquisition. Entry or expansion into each of
the relevant markets is costly and time-consuming. A competitive
entrant would need a cost-effective mill. Building such a mill would
cost billions of dollars, take two or more years to build, and require
extensive environmental permits to construct. New competitors also
would need to secure major customers, which often involves lengthy and
expensive qualification processes.
Non-North American producers are unlikely to increase imports into
North America to prevent the likely anticompetitive effects. Overseas
producers tend to focus on markets that are closer to them where they
can earn higher margins, rather than selling in the more distant North
American markets where they pay higher shipping costs. In addition,
customers require timely delivery, as coated paper is an essential
input into their final products. Procuring coated paper from overseas
adds significant lead time, increases the risk of delivery delays, and
makes more difficult quick correction of quality problems. Also,
fluctuations in foreign exchange rates pose a challenge to overseas
producers competitively selling to customers in North America because
they add substantial risk to long-term relationships.
[[Page 1962]]
Finally, the Complaint alleges that Defendants cannot demonstrate
cognizable, merger-specific efficiencies that Verso would pass through
to consumers in the form of lower prices, higher quality, or better
service to counteract the likely anticompetitive effects.
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
The divestiture requirement of the proposed Final Judgment will
eliminate the anticompetitive effects of the acquisition in the North
American market for coated publication papers and label paper by
establishing a new, independent, and economically-viable competitor.
The proposed Final Judgment requires the Defendants, within ten (10)
days after the Court enters the Hold Separate Stipulation and Order in
this matter to divest, as a viable ongoing business, NewPage's Rumford,
Maine, and Biron, Wisconsin, mills, and all associated mill assets (the
``Divestiture Mills''). The Divestiture Mills must be divested 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 coated freesheet
web, coated groundwood, and label paper markets. The Defendants must
take all reasonable steps necessary to accomplish the divestiture
quickly and shall cooperate with prospective purchasers.
The Defendants must sell the Divestiture Mills to Catalyst Paper
Corporation (``Catalyst''). Catalyst is a forest-products company
headquartered in British Columbia, Canada. Catalyst operates three
paper mills, all located in British Columbia. Catalyst makes a variety
of paper grades across its mill system. At its Port Alberni mill,
Catalyst produces coated groundwood paper and small quantities of
coated freesheet web paper. Catalyst does not produce label paper. If,
for some reason, Defendants are unable to complete the sale to
Catalyst, they must sell the Divestiture Mills to an alternative
purchaser who must be approved by the United States.
The proposed Final Judgment provides that the United States may
appoint a Monitoring Trustee with the power and authority to
investigate and report on the Defendants' compliance with the terms of
the Final Judgment and the Hold Separate Stipulation and Order. The
Monitoring Trustee would not have any responsibility or obligation for
the operation of the Defendants' businesses. The Monitoring Trustee
would serve at the Defendants' expense, on such terms and conditions as
the United States approves, and the Defendants would be required to
assist the trustee in fulfilling its obligations. The Monitoring
Trustee would serve for two years. The United States may, in its sole
discretion, extend the Monitoring Trustee's term for an additional
year. The Monitoring Trustee would file monthly reports for the first
year and annual reports for each year thereafter, or more frequently as
needed.
In the event that Defendants do not accomplish the divestiture
within the periods prescribed in the proposed Final Judgment, the Final
Judgment provides that the Court will appoint a trustee selected by the
United States to effect the divestiture. If a trustee is appointed, the
proposed Final Judgment provides that the Defendants will pay all costs
and expenses of the trustee. The trustee's commission would be
structured so as to provide an incentive for the trustee based on the
price obtained and the speed with which the divestiture is
accomplished. After his or her appointment becomes effective, the
trustee would file monthly reports with the Court and the United States
setting forth his or her efforts to accomplish the divestiture. At the
end of six (6) months, if the divestiture has not been accomplished,
the trustee and the United States would 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 trustee's appointment.
The divestiture provisions of the proposed Final Judgment preserve
the competition that would be lost if the proposed acquisition occurred
without the divestiture. The divestiture will largely maintain the
existing structure of the relevant markets. The mills to be divested
produced approximately 940,000 tons of coated publication papers, label
paper, and other papers, which is approximately the same amount of
production as Verso currently operates. In addition, the divestiture
will provide the purchaser of the divested assets with a market
presence comparable to Verso's current market presence in the relevant
markets. The purchaser will also obtain production assets that have a
track record of competitively producing a range of coated publication
papers and label paper.
The proposed Final Judgment provides that the purchaser of the
Biron mill will have the option to procure softwood kraft pulp from
Verso's Wisconsin Rapids mill through a pulp supply contract. Price
will be set using a methodology consistent with the methodology that
Defendants historically have used in setting transfer prices for
bleached softwood kraft pulp provided to the Biron mill, with
appropriate overhead costs removed. The Biron mill has a semi-
integrated pulp supply. The mill produces its own mechanical pulp and
receives softwood kraft pulp from NewPage's Wisconsin Rapids mill,
which is approximately four miles away, through a pipeline and by
truck. The supply contract under the proposed Final Judgment will
enable the Biron mill to sell coated groundwood products at competitive
prices.
The proposed Final Judgment also provides that the purchaser of the
Biron mill will have the option to procure waste and wastewater
disposal services from Verso. Price will be set using a methodology
consistent with the methodology that Defendants historically have used
in setting transfer prices for waste and wastewater disposal services
provided to the Biron mill, with appropriate overhead costs removed.
The Biron mill currently shares waste and wastewater disposal service
with other mills owned by NewPage. The waste and wastewater services
contract under the proposed Final Judgment will enable the Biron mill
to sell coated groundwood products at competitive prices.
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
[[Page 1963]]
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: Peter J. Mucchetti, Chief,
Litigation I Section, Antitrust Division, United States Department of
Justice, 450 5th Street NW., Suite 4100, 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 against Defendants. The
United States could have continued the litigation and sought
preliminary and permanent injunctions against Verso's acquisition of
NewPage. The United States is satisfied, however, that the divestiture
of assets described in the proposed Final Judgment will preserve
competition for the provision of coated freesheet web paper, coated
groundwood paper, and label paper in the relevant market identified by
the United States. 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).\2\ 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., No. 13-cv-1236 (CKK), 2014-1Trade
Cas. (CCH) ] 78, 748, 2014 U.S. Dist. LEXIS 57801, at *7 (D.D.C. Apr.
25, 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.'').
---------------------------------------------------------------------------
\2\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for courts 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. 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, 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).\3\ 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
[[Page 1964]]
also U.S. Airways, 2014 U.S. Dist. LEXIS 57801, at *16 (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 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).
---------------------------------------------------------------------------
\3\ 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' '').
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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, 2014 U.S. Dist. LEXIS 57801, at *8 (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.
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,
2014 U.S. Dist. LEXIS 57801, at *9 (noting that the court must simply
determine whether there is a factual foundation for the government's
decisions such that its conclusions regarding the proposed settlements
are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the
`public interest' is not to be measured by comparing the violations
alleged in the complaint against those the court believes could have,
or even should have, been alleged''). Because the ``court's authority
to review the decree depends entirely on the government's exercising
its prosecutorial discretion by bringing a case in the first place,''
it follows that ``the court is only authorized to review the decree
itself,'' and not to ``effectively redraft the complaint'' to inquire
into other matters that the United States did not pursue. Microsoft, 56
F.3d at 1459-60. 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.'' 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); see also U.S. Airways, 2014 U.S.
Dist. LEXIS 57801, at *9 (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). 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. 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.\4\ A court can make its public
interest determination based on the competitive impact statement and
response to public comments alone. U.S. Airways, 2014 U.S. Dist. LEXIS
57801, at *9.
---------------------------------------------------------------------------
\4\ 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, *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.'').
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VIII. DETERMINATIVE DOCUMENTS
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: December 31, 2014.
Respectfully submitted,
/s/Karl Knutsen
Karl D. Knutsen
U.S. Department of Justice, Antitrust Division, Litigation I
Section, 450 Fifth Street NW., Suite 4100, Washington, DC 20530,
Phone: (202) 514-0976, Facsimile: (202) 305-1190,
[email protected].
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff, v. VERSO PAPER CORP., and
NEWPAGE HOLDINGS INC., Defendants.
CASE NO. 1:14-cv-2216
JUDGE: Tanya S. Chutkan
FILED: 12/31/14
PROPOSED FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its Complaint
on December 31, 2014, the United States and defendants, Verso Paper
Corp. and NewPage Holdings Inc., 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
[[Page 1965]]
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(s)'' means Catalyst or another entity or entities to
whom Defendants divest the Divestiture Mills.
B. ``Catalyst'' means Catalyst Paper Corporation, a Canadian
corporation with its headquarters in Richmond, British Columbia,
Canada, its successors and assigns, and its subsidiaries, divisions,
groups, affiliates, partnerships and joint ventures, and their
directors, officers, managers, agents, and employees.
C. ``Defendants'' means NewPage and Verso.
D. ``Divestiture Mills'' means NewPage's pulp and paper mill
located at 35 Hartford Street, Rumford, Maine 04276 (the ``Rumford
Mill''); and NewPage's pulp and paper mill located at 621 North Biron
Drive, Wisconsin Rapids, Wisconsin 54495 (the ``Biron Mill'') (subject
to the exclusions in Section II(D)(3) below), including:
1. All tangible assets necessary to operate, used in or for, or
devoted to the Divestiture Mills including, but not limited to, all
manufacturing equipment, tooling and fixed assets, real property
(leased or owned), personal property, inventory, reserves, office
furniture, information technology systems, materials, supplies, and
other tangible property and all assets used exclusively in connection
with the Divestiture Mills; all licenses, permits and authorizations
issued by any governmental organization relating to the Divestiture
Mills; all contracts, teaming arrangements, agreements, leases
(including renewal rights), commitments, certifications, and
understandings relating to the Divestiture Mills, including supply
agreements; all customer lists, contracts, accounts, and credit
records; all repair and performance records and all other records
relating to the Divestiture Mills.
2. All intangible assets necessary to operate, used in or for, or
devoted to the Divestiture Mills, including, but not limited to, all
patents, licenses and sublicenses, intellectual property, copyrights,
trademarks, trade names, service marks, service names, technical
information, computer software and related documentation, know-how,
trade secrets, drawings, blueprints, designs, design protocols,
specifications for materials, specifications for parts and devices,
safety procedures for the handling of materials and substances, quality
assurance and control procedures, environmental studies and
assessments, design tools and simulation capability, all manuals and
technical information Defendants provide to their own employees,
customers, suppliers, agents or licensees, and all research data
concerning historic and current research and development efforts
relating to the Divestiture Mills, including, but not limited to,
designs of experiments, and the results of successful and unsuccessful
designs and experiments.
3. ``Divestiture Mills'' does not include the Wisconsin Rapids pulp
mill, the Consolidated Water Power Company, the Sterling trade name and
trademark, and the NewPage Research and Development facility at 300 N.
Biron Drive, Wisconsin Rapids, Wisconsin, 54494.
E. ``NewPage'' means Defendant NewPage Holdings Inc., a Delaware
corporation with its headquarters in Miamisburg, Ohio, its successors
and assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships and joint ventures, and their directors, officers,
managers, agents, and employees.
F. ``Verso'' means Defendant Verso Paper Corp., a Delaware
corporation with its headquarters in Memphis, Tennessee, its successors
and assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships and joint ventures, and their directors, officers,
managers, agents, and employees.
III. Applicability
A. This Final Judgment applies to Verso and NewPage, 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 Mills, they shall require the Acquirer(s) to be bound by
the provisions of this Final Judgment. Defendants need not obtain such
an agreement from the Acquirer(s) of the assets divested pursuant to
this Final Judgment.
IV. Divestitures
A. Defendants are ordered and directed, within ten (10) calendar
days after the signing of the Hold Separate Stipulation and Order in
this matter, to divest the Divestiture Mills in a manner consistent
with this Final Judgment to an Acquirer(s) acceptable to the United
States, in its sole discretion. The United States, in its sole
discretion, may agree to one or more extensions of this time period not
to exceed sixty (60) calendar days in total, and shall notify the Court
in such circumstances. Defendants agree to use their best efforts to
divest the Divestiture Mills as expeditiously as possible.
B. Defendants must first attempt to sell the Divestiture Mills to
Catalyst. In the event that the sale to Catalyst fails, and Defendants
attempt to sell the Divestiture Mills to an Acquirer(s) other than
Catalyst, Defendants promptly shall make known, by usual and customary
means, the availability of the Divestiture Mills for sale. Defendants
shall inform any person making inquiry regarding a possible purchase of
the Divestiture Mills that they are being divested pursuant to this
Final Judgment and provide that person with a copy of this Final
Judgment.
C. In accomplishing the divestiture ordered by 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 Mills customarily provided in a due
diligence process, except such information or documents subject to the
attorney-client privilege or work-product doctrines. 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 permit all prospective Acquirers to have
reasonable access to personnel and to make inspections of the physical
facilities of the Divestiture Mills; 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,
except such information or documents subject to the attorney-client
privilege or work-product doctrines.
E. Defendants shall provide the Acquirer(s) of the Divestiture
Mills and the United States information relating to the personnel
involved in the management, production or sales activities of the
Divestiture Mills to enable the Acquirer(s) to make offers of
[[Page 1966]]
employment. Defendants will not interfere with any negotiations by the
Acquirer(s) to employ any Defendant employee whose primary
responsibility is the management, production, distribution or sales
activities of the Divestiture Mills. Defendants shall waive all non-
compete agreements for any current or former employee whom the
Acquirer(s) employs with relation to the Divestiture Mills.
F. Defendants shall warrant to the Acquirer(s) that each of the
Divestiture Mills will be operational on the date of sale.
G. Defendants shall not take any action that will impede in any way
the permitting, operation, or divestiture of the Divestiture Mills.
H. At the option of the Acquirer and on terms and conditions
acceptable to the United States in its sole discretion, Defendants
shall enter into a Supply Agreement for the sale of bleached softwood
kraft pulp and a Service Agreement for the provision of waste and
wastewater disposal services to the acquirer of the Biron Mill
sufficient to meet all or part of the Acquirer's needs. Price under the
Supply Agreement shall be set using a methodology consistent with the
methodology that Defendants historically have used in setting transfer
prices for bleached softwood kraft pulp and waste and wastewater
disposal services provided to the Biron Mill (in each case, with
appropriate overhead costs removed). Defendants shall designate
employees, other than Defendants' senior managers or employees engaged
in sales and marketing, to implement any such Supply Agreement and
shall prevent disclosure of any confidential, proprietary, or business-
sensitive information of the Acquirer(s) to any other employees of
Defendants except as necessary to implement the Supply Agreement.
I. At the option of the Acquirer(s) and on terms and conditions
acceptable to the United States in its sole discretion, Defendants
shall enter into a Transition Services Agreement based upon
commercially reasonable terms and conditions. Such an agreement may not
exceed twelve (12) months from the date of divestiture except as
approved by the United States in its sole discretion. Transition
services may include information technology support, information
technology licensing, computer operations, data processing, logistics
support, wood purchasing, and such other services as reasonably
necessary to operate the Divestiture Mills. Any amendments to or
modifications of the Transition Services Agreement may only be entered
into with the approval of the United States in its sole discretion.
J. Defendants shall warrant to the Acquirer(s) that there are no
material defects in the environmental, zoning or other permits
pertaining to the operation of each asset, and that following the sale
of the Divestiture Mills, Defendants will not undertake, directly or
indirectly, any challenges to the environmental, zoning, or other
permits relating to the operation of the Divestiture Mills.
K. 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
entirety of the Divestiture Mills, and shall be accomplished in such a
way as to satisfy the United States, in its sole discretion, that the
Divestiture Mills can and will be used by the Acquirer(s) as part of a
viable, ongoing business of the production, distribution and sale of
coated freesheet web paper, coated groundwood paper, and cut-and-stack
label paper and face sheet for pressure sensitive labels in North
America. Divestiture of the Divestiture Mills may be made to one or
more Acquirers, provided that in each instance it is demonstrated to
the sole satisfaction of the United States that the Divestiture Mills
will remain viable and the divestiture of such assets will remedy the
competitive harm alleged in the Complaint. The divestitures, whether
pursuant to Section IV or Section V of this Final Judgment,
(1) shall be made to an Acquirer(s) that, in the United States'
sole judgment, has the intent and capability (including the necessary
managerial, operational, technical and financial capability) of
competing effectively in the business of the production, distribution
and sale of coated freesheet web paper, coated groundwood paper, and
cut-and-stack label paper and face sheet for pressure sensitive labels;
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 gives Defendants the ability unreasonably to
raise the costs of the Acquirer(s), to lower the efficiency of the
Acquirer(s) or otherwise to interfere in the ability of the Acquirer(s)
to compete effectively.
V. Appointment of Divestiture Trustee
A. If Defendants have not divested the Divestiture Mills within the
time period specified in Section IV(A) of this Final Judgment,
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 Mills.
B. After the appointment of a Divestiture Trustee becomes
effective, only the Divestiture Trustee shall have the right to sell
the Divestiture Mills. The Divestiture Trustee shall have the power and
authority to accomplish the divestiture to an Acquirer(s) 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), the Divestiture Trustee may hire, at the 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 of this Final Judgment.
D. The Divestiture Trustee shall serve at the expense of Defendants
pursuant to a written agreement, 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 Mills and based on
a fee arrangement providing the Divestiture Trustee with an incentive
based on the price and terms of the divestiture and
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the speed with which it is accomplished, but timeliness is paramount.
If the Divestiture Trustee and Defendants 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. The Divestiture Trustee
shall, within three (3) business days of hiring any other professionals
or agents, provide written notice of such hiring and the rate of
compensation to Defendants and the United States.
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 or any applicable privileges. 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 Mills, 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 Mills.
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 report contains information that the Divestiture
Trustee deems confidential, such report 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. If the divestitures required herein are not made to Catalyst
under the terms of a definitive divestiture agreement previously
submitted to the United States, then 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 Mills, 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(s), any other third party, or the Divestiture
Trustee, if applicable, additional information concerning the proposed
divestiture, the proposed Acquirer(s), and any other potential
Acquirer(s). Defendants and the Divestiture Trustee shall furnish any
additional information requested, except such information or documents
subject to the attorney-client privilege or work-product doctrine,
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(s), 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(s) or upon objection by the United States, a divestiture
proposed under Section IV or Section V of this Final Judgment 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. Notwithstanding the foregoing provisions of this
Section VI, the United States, in its sole discretion, may withhold its
approval of the proposed divestiture of a single Divestiture Mill until
such time as the United States concludes that it can approve an
Acquirer(s) for both Divestiture Mills consistent with the terms of the
Final Judgment.
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 of this Final
Judgment, Defendants shall deliver to the United States an affidavit as
to the fact and manner of its compliance with Section IV or V. Each
such affidavit shall include the name,
[[Page 1968]]
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 Mills, 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 Mills, and to provide required information to all
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 Mills until one year after such
divestiture has been completed.
X. Appointment of Monitoring Trustee
A. Upon application of the United States, the Court shall appoint a
Monitoring Trustee selected by the United States and approved by the
Court.
B. The Monitoring Trustee shall have the power and authority to
monitor Defendants' compliance with the terms of this Final Judgment
and the Hold Separate Stipulation and Order entered by this Court, and
shall have such other powers as this Court deems appropriate. The
Monitoring Trustee shall be required to investigate and report on the
Defendants' compliance with this Final Judgment and the Hold Separate
Stipulation and Order and the Defendants' progress toward effectuating
the purposes of this Final Judgment, including, but not limited to, any
breach or other problem that arises under any Supply Agreement or
Transition Services Agreement that may adversely affect the
accomplishment of the purposes of this Final Judgment, the reasons for
such breach or problem, and recommended remedies.
C. Subject to Section X(E) of this Final Judgment, the Monitoring
Trustee may hire at the cost and expense of Defendants any consultants,
accountants, attorneys, or other agents, who shall be solely
accountable to the Monitoring Trustee, reasonably necessary in the
Monitoring Trustee's judgment. Any such consultants, accountants,
attorneys, or other agents shall serve on such terms and conditions as
the United States approves including confidentiality requirements and
conflict of interest certifications.
D. Defendants shall not object to actions taken by the Monitoring
Trustee in fulfillment of the Monitoring Trustee's responsibilities
under any Order of this Court on any ground other than the Monitoring
Trustee's malfeasance. Any such objections by Defendants must be
conveyed in writing to the United States and the Monitoring Trustee
within ten (10) calendar days after the action taken by the Monitoring
Trustee giving rise to Defendants' objection.
E. The Monitoring Trustee shall serve at the cost and expense of
Defendants pursuant to a written agreement with Defendants and on such
terms and conditions as the United States approves, including
confidentiality requirements and conflict of interest certifications.
The compensation of the Monitoring Trustee and any consultants,
accountants, attorneys, and other agents retained by the Monitoring
Trustee shall be on reasonable and customary terms commensurate with
the individuals' experience and responsibilities. If the Monitoring
Trustee and Defendants are unable to reach agreement on the Monitoring
Trustee's or any agents' or consultants' compensation or other terms
and conditions of engagement within fourteen (14) calendar days of
appointment of the Monitoring Trustee, the United States may, in its
sole discretion, take appropriate action, including making a
recommendation to the Court. The Monitoring Trustee shall, within three
(3) business days of hiring any consultants, accountants, attorneys, or
other agents, provide written notice of such hiring and the rate of
compensation to Defendants and the United States.
F. The Monitoring Trustee shall have no responsibility or
obligation for the operation of Defendants' businesses.
G. Defendants shall use their best efforts to assist the Monitoring
Trustee in monitoring Defendants' compliance with their individual
obligations under this Final Judgment and under the Hold Separate
Stipulation and Order. The Monitoring Trustee and any consultants,
accountants, attorneys, and other agents retained by the Monitoring
Trustee shall have full and complete access to the personnel, books,
records, and facilities relating to compliance with this Final
Judgment, subject to reasonable protection for trade secret or other
confidential research, development, or commercial information or any
applicable privileges. Defendants shall take no action to interfere
with or impede the Monitoring Trustee's accomplishment of its
responsibilities.
H. After its appointment, the Monitoring Trustee shall file reports
monthly for the first year and at the end of each year thereafter, or
more frequently as needed, with the United States, and, as appropriate,
the Court, setting forth Defendants' efforts to comply with their
obligations under this Final Judgment and under the Hold Separate
Stipulation and Order. To the extent such reports contain information
that the Monitoring Trustee deems confidential, such reports shall not
be filed in the public docket of the Court.
I. The Monitoring Trustee shall serve for two years. The Monitoring
Trustee's term may be extended for one (1) additional year, in the sole
discretion of the United States.
J. If the United States determines that the Monitoring Trustee has
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend that the Court appoint a substitute
Monitoring Trustee.
XI. Compliance Inspection
A. For the purposes of determining or securing compliance with this
Final Judgment, or of any related orders such as the Hold Separate
Stipulation and 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 copies or electronic copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control of
[[Page 1969]]
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).
XII. No Reacquisition
Defendants may not reacquire any part of the Divestiture Mills
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 (10) years from the date of its entry.
XV. Public Interest Determination
The parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. 16, including making copies
available to the public of this Final Judgment, the Competitive Impact
Statement, and any comments thereon and the United States' 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. 16.
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United States District Judge
[FR Doc. 2015-00466 Filed 1-13-15; 8:45 am]
BILLING CODE 4410-11-P