[Federal Register Volume 59, Number 135 (Friday, July 15, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-17114] [[Page Unknown]] [Federal Register: July 15, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Antitrust Division United States v. Gerald Petty d/b/a Tri-R-Disposal, et al.; Proposed Final Judgment and Competitive Impact Statement Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been lodged with the United States District Court for the Central District of Illinois in United States of America v. Gerald Petty d/b/a Tri-R-Disposal, et al., Civil Action No. 94-3142. The Complaint in this case alleged that the defendants exchanged rate information among themselves and jointly advertised rates to facilitate price increases for waste services in the Christian County, Illinois area in violation of section 1 of the Sherman Act, 15 U.S.C. 1. The proposed Final Judgment enjoins the defendants from directly or indirectly disclosing to any other defendant or any other person engaged in the waste services business any rate prior to its having been disclosed to the general public and from advertising, publishing, announcing or disseminating any rate for waste services jointly or in concert or connection with any other defendant or any other person engaged in providing waste services. Each defendant is required to establish an antitrust compliance program. Public comment is invited within the statutory 60-day comment period. Such comments, and responses thereto, will be published in the Federal Register and filed with the Court, should be directed to Marvin Price, Acting Chief, Chicago Office, 209 South LaSalle Street, Antitrust Division, U.S. Department of Justice, Chicago, Illinois 60604 (telephone: (312) 353-7530). Constance K. Robinson, Director of Operations. In the United States District Court for the Central District of Illinois, Springfield Division: United States of America, Plaintiff, v. Gerald Petty d/b/a Tri-R-Disposal; and Leo Carey and Grace Carey, individually and d/b/a Carey's Disposal Service, Defendants. Civil No. 94-3142. Complaint The United States of America, plaintiff, by its attorneys acting under the direction of the Attorney General of the United States, brings this civil action to obtain equitable relief against the defendants named herein and complains and alleges as follows: I. Jurisdiction and Venue 1. This Complaint is filed under section 4 of the Sherman Act (15 U.S.C. 4), as amended, in order to prevent and restrain violations by the defendants of section 1 of the Sherman Act (15 U.S.C. 1). 2. Each defendant resides in the Central District of Illinois within the meaning of 28 U.S.C. 1391(b). II. Definitions 3. ``Waste Services'' means any collection, pick-up, hauling, transportation, dumping, recycling, sale or disposal of garbage, trash, rubbish, scrap, by-products or other waste materials. III. Defendants 4. Defendant Gerald Petty operates a waste services business as a sole proprietor under the name Tri-R-Disposal in and around Christian County, Illinois (hereinafter the ``Christian County area''). 5. Defendants Leo Carey and Grace Carey operate a waste services business as sole proprietors under the name Carey's Disposal Service in and around the Christian County area. IV. Trade and Commerce 6. During the period covered by this complaint, each of the defendants engaged in the business of providing waste services to residential and commercial customers in and around the Christian County area. 7. The defendants' business activities are within the flow of and substantially affect interstate commerce. V. Violation Alleged 8. Beginning at least as early as September 26, 1993, and continuing until on or about November 7, 1993, the defendants engaged in a continuing combination and conspiracy in unreasonable restraint of trade and commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. 9. The combination and conspiracy consisted of a continuing agreement, understanding and concert of action among the defendants to use joint advertising to facilitate a coordinated increase in the rates charged for waste services in the Christian County area. 10. For the purpose of forming and carrying out the aforesaid combination and conspiracy, the defendants did the following things, among others: (a) disseminated information among themselves relating to possible rate increases; and (b) jointly advertised rates for their waste services. VI. Effects 11. The combination and conspiracy had an effect on interstate commerce in that competition among the defendant waste services businesses was unreasonably restrained and consumers of waste services were deprived of the benefits of free and open competition in the sale of waste services. VII. Claim for Equitable Relief 12. The illegal agreement, combination and conspiracy alleged in this complaint is likely to recur unless the injunctive relief prayed for herein is granted. VIII. Prayer for Relief Wherefore, plaintiff prays: (a) that the Court adjudge and decree that defendants have engaged in an unlawful agreement, combination and conspiracy in unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act; (b) that for a period of ten years the Court enjoin each defendant, its agents, employees, successors and assigns, and all other persons acting or claiming to act under, through or for any defendant, from: (i) advertising, publishing, announcing or disseminating any rate or rate increase for any waste service jointly or in concert or in connection with any other defendant or any person engaged in providing waste services; and (ii) directly or indirectly disclosing to any other defendant or any other person engaged in providing waste services any rate prior to its having been disclosed to the general public; (c) That each defendant be required to institute a compliance program; (d) That for ten years after the entry of the Final Judgment, on or before its anniversary date, each defendant shall file with plaintiff an annual declaration reporting that such defendant has complied with the terms of the Final Judgment and has engaged in no activities of the type prohibited by the Final Judgment; and (e) That this Court order such other and further relief as the nature of the case may require and that the Court deems just and proper. Dated: Anne K. Bingaman, Assistant Attorney General. Robert E. Litan, Deputy Assistant Attorney General. Mark Schechter, Marvin Price, Attorneys, U.S. Department of Justice, Antitrust Division. Frances C. Hulin, By: James A. Lewis, United States Attorney, Central District of Illinois, Springfield Division. Susan H. Booker, Attorney, Midwest Office, U.S. Department of Justice, Antitrust Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353- 7530. In the United States District Court for the Central District of Illinois Springfield Division: United States of America, Plaintiff, v. Gerald Petty, d/b/a Tri-R-Disposal; and Leo Carey and Grace Carey, individually and d/b/a Carey's Disposal Service, Defendants. Civil No. 94-3142. Stipulation It is stipulated by and between the undersigned parties, by their respective attorneys, that: 1. The Court has jurisdiction over the subject matter of this action and over each of the parties thereto, and venue of this action is proper in the Central District of Illinois; 2. The parties consent that a Final Judgment in the form hereto attached may be filed and entered by the Court, upon the motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (15 U.S.C. Sec. 16), and without further notice to any party or other proceedings, provided that plaintiff has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on defendants and by filing that notice with the Court; 3. The parties shall abide by and comply with the provisions of the Final Judgment pending its entry, and shall, from the date of the filing of this Stipulation, comply with all terms and provisions thereof as though the same were in full force and effect as an order of the Court; and 4. In the event plaintiff withdraws its consent of if the proposed Final Judgment is not entered pursuant to this Stipulation, this Stipulation shall be of no effect whatever, and the making of this Stipulation shall be without prejudice to any party in this or any other proceeding. Dated: For plaintiff United States of America: Anne K. Bingaman, Assistant Attorney General. Robert E. Litan, Deputy Assistant Attorney General. Mark Schechter, Marvin Price, Attorneys, U.S. Department of Justice, Antitrust Division. Frances C. Hulin, By: James A. Lewis, United States Attorney, Central District of Illinois, Springfield Division. Susan H. Booker, Attorney, Midwest Office, U.S. Department of Justice, Antitrust Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353- 7530. For defendant Gerald Petty Dan Austin, Esq., Meyer, Austin, Romano & Lacey P.C., P.O. Box 140, Taylorville, IL 62568. For defendants Leo and Grace Carey David Fines, Esq., Hershey, Beavers, Periad, Graham, and Fines, P.O. Box 320, Taylorville, IL 62568. In the United States District Court for the Central District of Illinois Springfield Division: United States of America, Plaintiff, v. Gerald Petty, d/b/a Tri-R-Disposal; and Leo Carey and Grace Carey, individually and d/b/a Carey's Disposal Service, Defendants Civil No. 94-3142. Filed: May 31, 1994. Final Judgment Plaintiff, United States of America, filed its Complaint on May 31, 1994. Plaintiff and defendants, by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law. This Final Judgement shall not be evidence against or an admission by any party with respect to any issue of fact or law. Therefore, before any testimony is taken, and without trial or adjudication of any issue of fact or law, and upon consent of the parties, it is hereby Ordered, adjudged and decreed, as follows: I. Jurisdiction This Court has jurisdiction of the subject matter of this action and of each of the parties consenting to this Final Judgment. The Complaint states a claim upon which relief may be granted against each defendant under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. II. Definitions As used in this Final Judgment: (A) ``Defendant'' or ``defendants'' means each of the named defendants in this action; each affiliate or partnership of any of them; and each officer, employee, agent, and other person acting for or on behalf of any of them or any of their affiliates or partnerships; (B) ``Intracompany communication'' means any communication relating solely to the operations of a company that is solely between individuals who are officers or employees of that company; (C) ``Person'' means any individual, partnership, firm, association, corporation, or other business or legal entity. In the case of an individual, the term also means any employee, agent or other person acting for or on behalf of the individual. In the case of any business or legal entity, the term also means each subsidiary, affiliate, division or partnership of the business or legal entity and each officer, director, employee, agent or other person acting for or on behalf of any of them; (D) ``Rate'' means any actual, proposed or list price, bid or quote, and any information relating to any price, bid or quote, including but not limited to any profit margin; premium; markup; commission; discount; labor, unit, material, equipment, fees, or other costs; formulas or other methods used to determine any price or cost; and credit or payment terms; (E) ``Waste Services'' means any collection, pick-up, hauling, transportation, dumping, recycling, sale or disposal of garbage, trash, rubbish, scrap, by-products or other waste materials. III. Defendants (A) Defendant Gerald Petty operates a waste services business under the name Tri-R-Disposal in Christian County, Illinois. (B) Defendants Leo and Grace Carey operate a waste services business under the name Carey's Disposal Service in Christian County, Illinois. IV. Applicability (A) The provisions of this Final Judgment shall apply to defendants, to each of their successors and assigns, and to all other persons in active concert or participation with any of them who shall have received actual notice of this Final Judgment by personal service or otherwise. (B) Nothing herein contained shall suggest that any portion of this Final Judgment is or has been created for the benefit of any third party and nothing herein shall be construed to provide any rights to any third party. (C) Defendants shall each require, as a condition of the sale or other disposition of all or substantially all of their assets used in providing waste services that the acquiring party or parties agree to be bound by the provisions of this Final Judgment. V. Prohibited Conduct (A) Each defendant is enjoined and restrained from directly and indirectly disclosing to any other defendant or any other person engaged in providing waste services any rate prior to its having been disclosed to the general public. (B) Each defendant is enjoined and restrained from advertising, publishing, announcing, or disseminating any rate for any waste services jointly or in concert or in connection with any other defendant or any other person engaged in providing waste services. (C) Nothing in Section V of this Final Judgment shall prohibit any: (1) intracompany communication; (2) defendant from engaging in any good faith communication relating to any actual or possible contract to provide waste services or to purchase waste services from any other person engaged in providing waste services as long as both (i) the purpose or effect of any such communication or contract is not to eliminate or suppress competition in the supply or sale of waste services; and (ii) the information disclosed during any such communication and the scope of any such contract are no broader than is necessary to provide or purchase the specific waste services in question. VI. Compliance Program (A) Defendants are ordered to establish and maintain an antitrust compliance program which shall include designating, within 30 days of entry of this Final Judgment, an Antitrust Compliance Officer with responsibility for accomplishing the antitrust compliance program and with the purpose of achieving compliance with this Final Judgment. The Antitrust Compliance Officer shall, on a continuing basis, supervise the review of the current and proposed activities of his or her company to ensure that it complies with this Final Judgment. The Antitrust Compliance Officer shall be responsible for accomplishing the following activities: (1) Distributing, within 60 days from entry of this Final Judgment, a copy of this Final Judgment to all owners, officers, and employees who have responsibility for approving, disapproving, monitoring, recommending or implementing any prices; (2) Distributing in a timely manner a copy of this Final Judgment to any owner, officer, or employee who succeeds to a position described in Section VI(A)(1); (3) Briefing annually those persons designated in Sections VI(A)(1) and (2) on the meaning and requirements of this Final Judgment and the antitrust laws; (4) Obtaining from each owner, officer or employee designated in Section VI(A)(1) and (B)(2) a written certification that he or she (a) has read, understands, and agrees to abide by the terms of this Final Judgment; (b) understands that failure to comply with this Final Judgment may result in conviction for criminal contempt of court; and (c) is not aware of any violation of the Final Judgment that has not been reported to the Antitrust Compliance Officer; and (5) Maintaining a record of recipients from whom the certification in Section VI(A)(4) has been obtained. VII. Certification (A) Within 75 days of the entry of this Final Judgment, defendants shall each certify to plaintiff whether the defendant has designated an Antitrust Compliance Officer and has distributed the Final Judgment in accordance with Section VI(A)(1) above. (B) For ten years after the entry of this Final Judgment, on or before its anniversary date, each defendant shall file with the plaintiff an annual statement as to the fact of its compliance with the provisions of Sections V and VI(A). (C) If defendant's Antitrust Compliance Officer learns of any violations of any of the terms and conditions contained in this Final Judgment, defendant shall immediately notify the plaintiff and forthwith take appropriate action to terminate or modify the activity so as to comply with this Final Judgment. VIII. Plaintiff Access (A) For the purpose of determining or securing compliance with this Final Judgment, and for no other purpose, duly authorized representatives of plaintiff shall, upon written request of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to any defendant, be permitted, subject to any legally recognized privilege: (1) Access during that defendant's office hours to inspect and copy all records and documents in its possession or under its control, relating to any matters contained in this Final Judgment; and (2) To interview that defendant's officers, employees, trustees or agents, who may have counsel present, regarding any such matters. The interviews shall be subject to that defendant's reasonable convenience and without restraint or interference from any defendant. (B) Upon the written request of the Assistant Attorney General in charge of the Antitrust Division, any defendant, shall submit such written reports, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested, subject to any legally recognized privilege. (C) No information or documents obtained by the means provided in Section VIII shall be divulged by the plaintiff to any person other than a duly 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, or for the purpose of securing compliance with this Final Judgment, or as Potherwise required by law. (D) Nothing set forth in this Final Judgment shall prevent the Antitrust Division from utilizing other investigative alternatives, such as the Civil Investigative Demand process provided by 15 U.S.C. 1311-1314 or a Federal grand jury, to determine if the defendant has complied with this Final Judgment. IX. Further Elements of Final Judgment (A) This Final Judgment shall expire ten (10) years from the date of its entry. (B) Jurisdiction is retained by this Court to enable any of the parties to the Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify, or terminate any of its provisions, to enforce compliance and to punish violations of its provisions. (C) Entry of this Final Judgment is in the public interest. Dated: ---------------------------------------------------------------------- United States District Judge The United States District Court, for the Central District of Illinois, Springfield Division: United States of America, Plaintiff, v. Gerald Petty, d/b/a/ Tri-R-Disposal; and Leo Carey and Grace Carey, individually and d/b/a Carey's Disposal Service, Defendants, Civil No. 94-3142. Competitive Impact Statement Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States of America files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry with the consent of all defendants in this civil antitrust proceeding. I. Nature and Purpose of the Proceedings On May 31, 1994, the United States filed a civil antitrust complaint under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, seeking to enjoin the defendants from engaging in an alleged combination and conspiracy to suppress competition in the supply of residential and commercial waste services in and around Christian County, Illinois, through the joint advertisement of rates because the combination and conspiracy is an unreasonable restraint of interstate commerce in violation of Section 1 of the Sherman Act (15 U.S.C. 1). The Complaint alleges that the defendants: (1) Disseminated information among themselves relating to possible rate increases; and (2) Jointly advertised rates for their waste services. The complaint requests that the defendants be enjoined from directly or indirectly disclosing any rate to any defendant or person prior to it having been announced to the general public and from publishing, announcing or disseminating any rate for waste services jointly or in connection with any defendant or person engaged in providing waste services. The complaint further requests that the defendants be required to institute an antitrust compliance program and file an annual certification of compliance with the terms of the Final Judgment as entered. The United States and the defendants have stipulated and agreed that the proposed Final Judgment may be entered after compliance with the Antitrust Procedures and Penalties Act, unless the United States withdraws its consent. Entry of the proposed Final Judgment will terminate this action as to each of the defendants, except the Court will retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations of the Final Judgment. II. Events Giving Rise to the Alleged Violation At all times relevant to the allegations contained in the complaint, each of the defendants operated a waste services business in Christian County, Illinois. The defendants held dominant positions in the market for such services. The United States' complaint in this case alleges that the defendants engaged in a conspiracy that unreasonably restrained competition in the sale of waste services through the use of joint advertising to facilitate a coordinated increase in the rates charged for waste services in the Christian County area. The complaint alleges that the defendants disseminated among themselves information about rate increases and jointly advertised rates for their waste services. III. Explanation of the Proposed Final Judgment A. Prohibited Conduct Section V(A) prohibits the defendants from directly or indirectly disclosing to any other defendant or any other person engaged in the waste services business any rate prior to its having been disclosed to the general public. Section V(B) of the Final Judgment prohibits the defendants from advertising, publishing, announcing or disseminating any rate for waste services jointly or in concert or in connection with any other defendant or any other person engaged in providing waste services. B. Compliance Program and Certification In addition to the prohibitions contained in Section V of the proposed Final Judgment, the defendants are required to implement an antitrust compliance program as set forth in Section VI. As part of the compliance program, each defendant is required to distribute copies of the Final Judgment to all owners, officers and employees responsible in any way for prices and to any person who succeeds to the position as an owner, officer or employee responsible for prices. Additionally, such individuals must execute a certification of compliance as set forth more fully in section VI(A)(4). Each defendant must also submit an annual statement to the United States as to its compliance with the Final Judgment as required under section VII(B). C. Applicability to Successors and Assigns Section IV of the Proposed Final Judgment makes the Final Judgment applicable to the successors and assigns of each defendant. Each defendant must require, as a condition of the sale of its business or assets used in its waste services business, that the buyer agree to be bound by the provisions of the Final Judgment. IV. Procedures Available for Modification of the Proposed Final Judgment The United States and the defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the Antitrust Procedures and Penalties Act, provided the United States has not withdrawn its consent. The Act conditions the entry upon the Court's determination that the proposed Final Judgment is in the public interest. The Act provides a period of at least 60 days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wants to comment should do so within 60 days of the date of publication of this Competitive Impact Statement in the Federal Register. The United States will evaluate the comments, determine whether it should withdraw its consent, and respond to the comments. The comments and the response of the United States will be filed with the Court and published in the Federal Register. Written comments should be submitted to: Marvin Price, Acting Chief, Midwest Office, Antitrust Division, United States Department of Justice, 209 South LaSalle Street, Suite 600, Chicago, Illinois 60604. Under section IX of the proposed Judgment the Court will retain jurisdiction over this matter for the purpose of enabling any of the parties to apply to the Court for such further orders or directions as may be necessary or appropriate for the construction, implementation, modification, or enforcement of the Final Judgment, or for the punishment of any violations of the Final Judgment. V. Alternatives to the Proposed Final Judgment The proposed Final Judgment provides all the relief as to the defendants necessary to cure the violations alleged in the complaint. The Judgment will enjoin the defendants from resuming operation of the alleged conspiracy. Because the Judgment provides all of the relief against the defendants that the United States would have sought through a trial, the United States did not seriously consider any alternatives to the Judgment. VI. Determinative Documents No documents were determinative in formulating the proposed Judgment, and the United States therefore has not attached any such documents to the Judgment. Dated: Anne K. Bingaman, Assistant Attorney General. Robert E. Litan, Mark Schechter, Marvin Price, Attorneys, U.S. Department of Justice, Antitrust Division. Frances C. Hulin, By: James A. Lewis, United States Attorney, Central District of Illinois, Springfield Division. Respectfully submitted. Susan H. Booker, Attorney, Midwest Office, U.S. Department of Justice, Antitrust Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353- 7530. [FR Doc. 94-17114 Filed 7-14-94; 8:45 am] BILLING CODE 4410-01-M