UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
STATE OF CALIFORNIA,
COMMONWEALTH OF KENTUCKY,
STATE OF MICHIGAN,
STATE OF NORTH CAROLINA,
STATE OF OHIO,
COMMONWEALTH OF PENNSYLVANIA ,and
STATE OF TEXAS,
Plaintiffs,
v.
REPUBLIC SERVICES, INC., and
ALLIED WASTE INDUSTRIES, INC.,
Defendants.
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Civil Action No.: 1:08-cv-02076
Description: Antitrust
Judge: Robert, Richard W.
Date Stamp: December 3, 2008
Filed: 12/3/2008
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PROPOSED FINAL JUDGMENT
WHEREAS, plaintiffs, the United States of America, the State of California,
the Commonwealth of Kentucky, the State of Michigan, the State of North
Carolina, the State of Ohio, the Commonwealth of Pennsylvania, and the
State of Texas, filed their Complaint on December 3, 2008; the plaintiffs
and defendants, Republic Services, Inc. and Allied Waste Industries,
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 law or fact;
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 the Divestiture Assets to assure that competition
is not substantially lessened;
AND WHEREAS, the United States requires defendants to make certain
divestitures for the purpose of remedying the loss of competition alleged
in the Complaint;
AND WHEREAS, defendants have represented to the United States that
the divestitures required below can and will be made, and that defendants
will later raise no claim of hardship or difficulty as grounds for asking
the Court to modify any of the divestiture provisions contained below;
NOW, THEREFORE, before any testimony is taken, without trial or adjudication
of any issue of fact or law, and upon consent of the parties, it is
hereby 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 the defendants under Section 7 of the
Clayton Act, as amended, 15 U.S.C. § 18.
II. Definitions
As used in this Final Judgment:
- "Acquirer" or "Acquirers" means the entity or entities to whom
defendants divest the Divestiture Assets.
- "Allied" means defendant Allied Waste Industries, Inc., a Delaware
corporation with its headquarters in Phoenix, Arizona, its successors,
assigns, subsidiaries, divisions, groups, affiliates, partnerships,
and joint ventures, and all of their directors, officers, managers,
agents, and employees.
- "Republic" means defendant Republic Services, Inc., a Delaware corporation
headquartered in Ft. Lauderdale, Florida, its successors, assigns,
subsidiaries, divisions, groups, affiliates, partnerships, and joint
ventures, and all of their directors, officers, managers, agents,
and employees.
- "Disposal" means the business of disposing of waste into approved
disposal sites, including the use of transfer stations to facilitate
shipment of waste to other disposal sites.
- "Divestiture Assets" means the Relevant Disposal Assets and the
Relevant Hauling Assets.
- "Hauling" means small container commercial waste collection from
customers and the shipment of the collected waste to disposal sites.
Hauling, as used herein, does not include collection of roll-off containers.
- "Route" means a group of customers receiving regularly scheduled
small container commercial waste collection service and all tangible
and intangible assets relating to the route, as of October 31, 2008
(except for de minimis changes, such as customers lost and
gained in the ordinary course of business), including capital equipment,
trucks and other vehicles (those assigned to routes and a pro-rata
share of spare vehicles); containers (at the customer location and
a pro-rata share of spares); supplies (pro-rata share); and if requested
by the Acquirer, the real property and improvements to real property
(e.g., garages and buildings that support the route) as specified
in Section II, paragraph I below; customer lists; customer and other
contracts; leasehold interests; permits/licenses and accounts receivable,
excluding franchise customers.
- "Relevant Disposal Assets" means, unless otherwise noted, with respect
to each transfer station and landfill listed and described herein,
all of defendants' rights, titles, and interests in any tangible asset
related to each transfer station and landfill listed, including all
fee simple or ownership rights to offices, garages, related facilities,
capital equipment, trucks and other vehicles, scales, power supply
equipment, and supplies; and all of defendants' rights, titles, and
interests in any related intangible assets, including all leasehold
interests and renewal rights thereto, permits, customer lists, contracts,
and accounts, or options to purchase any adjoining property. Relevant
Disposal Assets, as used herein, includes each of the following:
- Landfills and Landfill Disposal Agreements
- Charlotte, North Carolina
Allied's Anson County Landfill, located at 375 Allied Road, Polkton,
North Carolina 28135;
- Cleveland, Ohio
Allied's Superior Oakland Marsh Landfill, located at 170 Noble Road
East, Shiloh, Ohio 44878;
- Denver, Colorado
Republic's Front Range Landfill, located at 1830 Weld Company Road
5, Erie, Colorado 80516;
- Flint, Michigan
Republic's Brent Run Landfill, located at 8247 Vienna Road, Montrose,
Michigan 48457;
- Fort Worth, Texas
At the Acquirer's option, (i) Allied's Turkey Creek Landfill, located
at 9100 South I-35 West Exit 21, Alvarado, Texas 76009, or (ii)
all of Allied's rights, titles, and interests in the Fort Worth
Southeast Landfill, located at 6900 Dick Price Road, Kennedale,
Texas 76060, provided that the City of Fort Worth, owner of the
Fort Worth Southeast Landfill, approves in advance the sale or assignment
of Allied's rights, titles, and interests in the landfill to the
Acquirer. If an Acquirer opts to purchase all of Allied's rights,
titles, and interests in the Fort Worth Southeast Landfill, defendants
will use their best efforts to secure the City of Fort Worth's approval.
- Greenville-Spartanburg, South Carolina
Allied's Anderson Regional Landfill, located at 203 Landfill Road,
Anderson, South Carolina 29627;
- Houston, Texas
- Republic's Seabreeze Environmental Landfill, located at 10310
FM-523, Angleton, Texas 77515; and
- Rights to landfill disposal, at rates to be negotiated, at
Allied's Blue Ridge Landfill, located at 2200 FM-521 Road, Fresno,
Texas 77545, pursuant to which defendants will reserve capacity
for an Acquirer for MSW disposal under the following minimum
terms and conditions:
- A term of ten (10) years from the date of sale of the Relevant
Hauling Assets for the Houston, Texas area;
- The Acquirer may dispose of 600 tons per day of MSW ("Minimum
Disposal Amount") and no more than 1,000 tons per day of direct-haul
MSW ("Maximum Disposal Amount") at the Blue Ridge Landfill
("Maximum Disposal Amount"), during each six (6) calendar
month period during the term of the agreement, to be pro rated
for any partial periods at the beginning and end of the agreement.
The agreement may also provide that if the Acquirer disposes
of less than the prevailing Minimum Disposal Amount during
any such six (6) month period, then the Minimum Disposal Amount
and the Maximum Disposal Amount may be reduced for the remainder
of the disposal agreement term by a tonnage amount equal to
the shortfall amount.
- For the Acquirer of the landfill disposal agreement, defendants
must commit to operate the Blue Ridge Landfill gates, scale
houses, and disposal areas under terms and conditions no less
favorable than those provided to defendants' own vehicles
or to the vehicles of any municipality in the metropolitan
Houston area, except as to price and credit terms; and
- At any time during the life of the agreement, the Acquirer
has the right to terminate the agreement upon ninety (90)
days' written notice to defendants.
- Los Angeles, California
Republic's Chiquita Canyon Sanitary Landfill, 29201 Henry Mayo Drive,
Valencia, California 91355;
- Northwest Indiana
At the option of the Acquirer of the Valparaiso Transfer Station,
landfill disposal rights, at rates to be negotiated, at Allied's
Newton County Development Corporation Landfill ("Newton County Landfill"),
located at 2266 East 500 South Road, Brook, Indiana 47922, pursuant
to which defendants will offer to reserve 350 tons per day of capacity
for an Acquirer for MSW disposal at Newton County Landfill, under
the following minimum terms and conditions:
- A term of two (2) years from the date of sale of the Valparaiso
Transfer Station;
- The Acquirer may dispose of up to 350 tons per day of MSW
at Newton County Landfill;
- For the Acquirer of the landfill disposal agreement, defendants
must commit to operate the Newton County Landfill gates, scale
houses, and disposal areas under terms and conditions no less
favorable than those provided to defendants' own vehicles or
to the vehicles of any municipality in the Northwest Indiana
area, except as to price and credit terms; and
- At any time during the life of the agreement, the Acquirer
has the right to terminate the agreement upon thirty (30) days'
written notice to defendants.
- Philadelphia, Pennsylvania
At the option of the Acquirer of the Girard Point Transfer Station
and the Philadelphia Recycling and Transfer Station, rights to landfill
disposal, at rates to be negotiated, at Republic's Modern Landfill,
located at 4400 Mount Pisgah Road, York, Pennsylvania 17402, pursuant
to which defendants will reserve capacity for an Acquirer for MSW
disposal at Modern Landfill, under the following minimum terms and
conditions:
- A term of eighteen (18) months from the date of sale of the
Girard Point Transfer Station and the Philadelphia Recycling
and Transfer Station;
- The Acquirer may dispose of up to 1300 tons per day of MSW
at the Modern Landfill;
- For the Acquirer of the landfill disposal agreement, defendants
must commit to operate the Modern Landfill gates, scale houses,
and disposal areas under terms and conditions no less favorable
than those provided to defendants' own vehicles or to the vehicles
of any municipality in the Philadelphia, Pennsylvania area,
except as to price and credit terms; and
- At any time during the life of the agreement, the Acquirer
has the right to terminate the agreement upon thirty (30) days'
written notice to defendants.
- San Francisco, California
Republic's Potrero Hills Sanitary Landfill, located at 3675 Potrero
Hills Lane, Suisun, California 94585, except that Republic need
not convey (i) the right to control the location of disposal for
waste volumes that Republic has disposed of at Potrero Hills Sanitary
Landfill via transfer through the Golden Bear Transfer Station or
contracts covering the disposal of such waste, or (ii) contracts
between the Republic subsidiary that owns Potrero Hills Sanitary
Landfill and Alameda County Industries to the extent those contracts
govern disposal of waste at Vasco Road Landfill.
- Transfer Stations
- Atlanta, Georgia
- Republic's Central Gwinnett Transfer Station, located at 535
Seaboard Industrial Drive, Lawrenceville, Georgia 30045; and
- Allied's BFI Smyrna Transfer Station, located at 4696 South
Cobb Drive, Smyrna, Georgia 30080;
- Cape Girardeau, Missouri
Allied's Jackson Solid Waste Transfer Station, located at 2004 Lee
Avenue, Hwy 25 N, Jackson, Missouri 63755;
- Charlotte, North Carolina
Republic's Queen City Transfer Station, located at 3130 Jeff Adams
Drive, Charlotte, North Carolina 28206;
- Cleveland, Ohio
Republic's Harvard Road Transfer Station, located at 3227 Harvard
Road, Newburgh Heights, Ohio 44105;
- Greenville-Spartanburg, South Carolina
Allied's Greer Transfer Station, located at 590 Gilliam Road, Greer,
South Carolina 29651;
- Houston, Texas
Republic's Hardy Road Transfer Station, located at 18784 Hardy Road,
Houston, Texas 77073;
- Northwest Indiana
Allied's Valparaiso Transfer Station, located at 3101 Bertholet
Boulevard, Valparaiso, Indiana 46383; and
- Philadelphia, Pennsylvania
- Republic's Girard Point Transfer Station, located at 3600
South 26th Street, Philadelphia, Pennsylvania 19145;
and
- Allied's Philadelphia Recycling and Transfer Station, located
at 2209 South 58th Street, Philadelphia, Pennsylvania
19143.
- "Relevant Hauling Assets," unless otherwise noted, means the small
container commercial waste collection routes and other assets listed
below:
- Atlanta, Georgia
(a) Allied's small container commercial waste collection routes 123,
130, 131, 132, 133, 136, 137, 138, 141, 142, 144, 146, and 147; and
(b) at the Acquirer's option, the hauling facility located at 1581
Fulenwider Road, Gainesville, Georgia
- Cape Girardeau, Missouri
(a) Allied's small container commercial waste collection routes 790
and 791; and (b) at the Acquirer's option, the hauling facility located
at 281 Rambler Road, Jackson, Missouri;
- Charlotte, North Carolina
(a) Republic's small container commercial waste collection routes
A001, A002, A003, A004, A005, A007, A008, A009, A010, and A012; and
(b) at the Acquirer's option, the hauling facility located at 5516
Rozzelles Ferry Road, Charlotte, North Carolina;
- Fort Worth, Texas
(a) Republic's small container commercial waste collection routes
VA, VB, VC, VD, and VE; and (b) notwithstanding any other provision
of this Final Judgment, in the event an Acquirer purchases Allied's
rights, titles and interests in the Fort Worth Southeast Landfill,
the Acquirer shall have the option to lease a sufficient portion of
the Republic yard located at 1212 Harrison Avenue, Arlington, Texas
for a period of six (6) months with an option to renew for one additional
six (6) month period, under a lease to permit the Acquirer to support
fully the operation of the divested small container commercial waste
collection routes and the potential growth of the divested hauling
business to include additional routes;
- Greenville-Spartanburg, South Carolina
(a) Allied's small container commercial waste collection routes 701,
704, 705, 708, 714, 718, 719, and 720; and (b) at the Acquirer's option,
the hauling facility located at 101 Rogers Bridge Road, Duncan, South
Carolina;
- Houston, Texas
(a) Republic's small container commercial waste collection routes
A002, A004, A005, A006, A008, A009, A010, A011, A012, A017, A024,
A027, A028, A029, A031, A034, A035, A038, A040, A042, A043, A044,
A045, A046, A049, A052, A053, A054, A055, A058, A059, and A060; and
(b) at the Acquirer's option, the hauling facility located at 2010
Wilson Road, Houston, Texas;
- Lexington, Kentucky
(a) Republic's small container commercial waste collection routes
31, 32, 34, 36, and 37; and (b) at the Acquirer's option, the hauling
facility located at 4000 Park Central Court, Nicholasville, Kentucky;
- Lubbock, Texas
(a) Allied's small container commercial waste collection routes 1711,
1713, 1714, 1911, 1912, 1913, and 1914; and (b) at the Acquirer's
option, the hauling facility located at 1812 CR-60, Lubbock, Texas;
and
- Northwest Indiana
(a) Allied's small container commercial waste collection routes 150,
751, 754, 756, and 757; and (b) at the Acquirer's option, the hauling
facility located at 3101 Bertholet Boulevard, Valparaiso, Indiana.
- "Relevant State" means the state or commonwealth in which the Divestiture
Assets are located, provided, however, that state or commonwealth
is a party to this Final Judgment.
- "Small container commercial waste collection" means the business
of collecting municipal solid waste from commercial and industrial
accounts, usually in "dumpsters" (i.e., a small container
with one to ten cubic yards of storage capacity), and transporting
or "hauling" such waste to a disposal site by use of a front-end or
rear-end load truck. Typical small container commercial waste collection
customers include office and apartment buildings and retail establishments
(e.g., stores and restaurants). As used herein, "small container
commercial waste collection" does not include small container commercial
waste collection of franchised routes.
- "MSW" means municipal solid waste, a term of art used to describe
solid putrescible waste generated by households and commercial establishments.
Municipal solid waste does not include special handling waste (e.g.,
waste from manufacturing processes, regulated medical waste, sewage
and sludge), hazardous waste or waste generated by construction or
demolition sites.
III. Applicability
- This Final Judgment applies to Republic and Allied, 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.
- If, prior to complying with Sections 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 defendants'
Divestiture Assets, they shall require the purchaser to be bound by
the provisions of this Final Judgment. Defendants need not obtain
such an agreement from the Acquirer of the assets divested pursuant
to this Final Judgment.
IV. Divestitures
- Defendants are ordered and directed, within 90 calendar days after
the filing of the Complaint in this matter, or five (5) calendar days
after notice of the entry of this Final Judgment by the Court, whichever
is later, to divest all Divestiture Assets in a manner consistent
with this Final Judgment to an Acquirer(s) acceptable to the United
States in its sole discretion, after consultation with the Relevant
State. With respect to the Atlanta, Georgia; Cleveland, Ohio; Philadelphia,
Pennsylvania; and Ft. Worth, Texas areas, the Divestiture Assets in
each area must be offered for sale to prospective Acquirers separately
from Divestiture Assets in other areas. All of the Divestiture Assets
serving any single relevant area shall be sold to the same Acquirer,
unless defendants receive the prior written consent of the United
States. The United States, in its sole discretion, after consultation
with the Relevant State, 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 Assets as expeditiously as
possible.
- In accomplishing the divestitures ordered by this Final Judgment,
defendants promptly shall make known, by usual and customary means,
the availability of the Divestiture Assets. Defendants shall inform
any person making inquiry regarding a possible purchase of the Divestiture
Assets that they are being divested pursuant to this Final Judgment
and provide that person with a copy of this Final Judgment. Defendants
shall offer to furnish to all prospective Acquirers, subject to customary
confidentiality assurances, all information and documents relating
to the Divestiture Assets customarily provided in a due diligence
process except such information or documents subject to the attorney-client
privilege or work-product doctrine. Defendants shall make available
such information to the United States at the same time that such information
is made available to any other person.
- Defendants shall provide the Acquirer(s) and the United States information
relating to all personnel involved in the operation and management
of the Divestiture Assets to enable the Acquirer(s) to make offers
of employment. Defendants shall not interfere with any negotiations
by the Acquirer(s) to employ or contract with any defendant employee
whose primary responsibility is the operation or management of the
Divestiture Assets.
- Defendants shall permit prospective Acquirers of the Divestiture
Assets to have reasonable access to personnel and to make inspections
of the physical facilities of the Divestiture Assets; access to any
and all environmental, zoning, and other permit documents and information;
and access to any and all financial, operational or other documents
and information customarily provided as part of a due diligence process.
- Defendants shall warrant to the Acquirer(s) that each asset will
be operational on the date of sale.
- In the event that the Turkey Creek Landfill is not, for any reason,
fully operational and capable of disposing of at least 675,000 tons
of MSW annually at the time of its divestiture, defendants shall be
required to divest alternative disposal assets in the Fort Worth,
Texas area that are sufficient to achieve the purposes of this Final
Judgment to the satisfaction of the United States, in its sole discretion,
after consultation with the State of Texas.
- Defendants shall not take any action that will impede in any way
the permitting, operation or divestiture of the Divestiture Assets.
- Defendants shall warrant to each Acquirer that there are no material
defects in the environmental, zoning or other permits pertaining to
the operation of the Divestiture Assets, and that following the sale
of the Divestiture Assets, defendants will not undertake, directly
or indirectly, any challenges to the environmental, zoning, or other
permits relating to the operation of the Divestiture Assets.
- Unless the United States, after consultation with the Relevant State,
otherwise consents in writing, the divestitures pursuant to Section
IV, or by trustee appointed pursuant to Section V, of this Final Judgment,
shall include all the Divestiture Assets, and shall be accomplished
in such a way as to satisfy the United States, in its sole discretion,
after consultation with the Relevant State, that the divestiture will
achieve the purposes of this Final Judgment and that the Divestiture
Assets can and will be used by an Acquirer(s) as part of a viable,
ongoing disposal or hauling business in each relevant area. The divestitures,
whether pursuant to Section IV or Section V of this Final Judgment:
- shall be made to an Acquirer(s) that, in the United States's
sole judgment, after consultation with the Relevant State, has
the intent and capability (including the necessary managerial,
operational, technical and financial capability) of competing
effectively in the disposal or hauling business; and
- shall be accomplished so as to satisfy the United States, in
its sole discretion, after consultation with the Relevant State,
that none of the terms of any agreement between an Acquirer(s)
and defendants gives defendants the ability unreasonably to raise
the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise
to interfere in the ability of the Acquirer to compete effectively.
V. Appointment of Trustee
- If defendants have not divested the Divestiture Assets within the
time period specified in Section IV, Paragraph A, defendants shall
notify the United States of that fact in writing. Upon application
of the United States, the Court shall appoint a trustee selected by
the United States and approved by the Court to effect the divestiture
of the Divestiture Assets.
- After the appointment of a trustee becomes effective, only the trustee
shall have the right to sell the Divestiture Assets. The trustee shall
have the power and authority to accomplish the divestitures to an
Acquirer(s) acceptable to the United States, after consultation with
the Relevant State, at such price and on such terms as are then obtainable
upon reasonable effort by the 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,
Paragraph D of this Final Judgment, the trustee may hire at the defendants'
cost and expense any investment bankers, attorneys, or other agents,
who shall be solely accountable to the trustee, reasonably necessary
in the trustee's judgment to assist in the divestitures.
- Defendants shall not object to a sale by the trustee on any ground
other than the trustee's malfeasance. Any objection by defendants
on the ground of the trustee's malfeasance must be conveyed in writing
to the United States and the trustee within ten (10) calendar days
after the trustee has provided the notice required under Section VI.
- The trustee shall serve at the cost and expense of defendants, on
such terms and conditions as the United States approves, and shall
account for all monies derived from the sale of the assets sold by
the trustee and all costs and expenses so incurred. After approval
by the Court of the trustee's accounting, including fees for its services
and those of any professionals and agents retained by the trustee,
all remaining money shall be paid to defendants and the trust shall
then be terminated. The compensation of the trustee and any professionals
and agents retained by the trustee shall be reasonable in light of
the value of the Divestiture Assets and based on a fee arrangement
providing the trustee with an incentive based on the price and terms
of the divestitures and the speed with which they are accomplished,
but timeliness is paramount.
- Defendants shall use their best efforts to assist the trustee in
accomplishing the required divestitures. The trustee and any consultants,
accountants, attorneys, and other persons retained by the 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 trustee may reasonably request, subject to reasonable protection
for trade secret or other confidential research, development, or commercial
information. Defendants shall take no action to interfere with or
to impede the trustee's accomplishment of the divestitures.
- After its appointment, the trustee shall file monthly reports with
the United States, the Relevant State, and the Court setting forth
the trustee's efforts to accomplish the divestitures ordered under
this Final Judgment. To the extent such reports contain information
that the trustee deems confidential, such reports shall not be filed
in the public docket of the Court. Such reports shall include the
name, address, and telephone number of each person who, during the
preceding month, made an offer to acquire, expressed an interest in
acquiring, entered into negotiations to acquire, or was contacted
or made an inquiry about acquiring, any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person.
The trustee shall maintain full records of all efforts made to divest
the Divestiture Assets.
- If the trustee has not accomplished the divestitures ordered under
this Final Judgment within six (6) months after its appointment, the
trustee shall promptly file with the Court a report setting forth:
(1) the trustee's efforts to accomplish the required divestitures;
(2) the reasons, in the trustee's judgment, why the required divestitures
have not been accomplished; and (3) the trustee's recommendations.
To the extent such reports contain information that the trustee deems
confidential, such reports shall not be filed in the public docket
of the Court. The 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 trustee's appointment
by a period requested by the United States.
VI. Notice of Proposed Divestiture
- Within two (2) business days following execution of a definitive
divestiture agreement, defendants or the trustee, whichever is then
responsible for effecting the divestiture required herein, shall notify
the United States and the Relevant State of any proposed divestiture
required by Section IV or V of this Final Judgment. If the trustee
is responsible, it shall similarly notify defendants. The notice shall
set forth the details of the proposed divestiture and list the name,
address, and telephone number of each person not previously identified
who offered or expressed an interest in or desire to acquire any ownership
interest in the Divestiture Assets, together with full details of
the same.
- Within fifteen (15) calendar days of receipt by the United States
and the Relevant State of such notice, the United States, in its sole
discretion, after consultation with the Relevant State, may request
from defendants, the proposed Acquirer(s), any other third party,
or the trustee, if applicable, additional information concerning the
proposed divestiture, the proposed Acquirer, and any other potential
Acquirer. Defendants and the trustee shall furnish any additional
information requested within fifteen (15) calendar days of the receipt
of the request, unless the parties shall otherwise agree.
- 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 trustee, whichever
is later, the United States, in its sole discretion, after consultation
with the Relevant State, shall provide written notice to defendants
and the 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, Paragraph 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 shall not be consummated. Upon objection by
defendants under Section V, Paragraph C, a divestiture proposed under
Section V shall not be consummated unless approved by the Court.
VII. Notice of Future Acquisitions
Unless such transaction is otherwise subject to the reporting and
waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, 15 U.S.C. § 18a (the "HSR Act"), defendants,
without providing advance notification to United States and the Relevant
State, shall not directly or indirectly acquire, any (1) interest in
any business engaged in a relevant service in a relevant area, (2) assets
(other than in the ordinary course of business) used in a relevant service
in a relevant area, (3) capital stock, or (4) voting securities of any
person that, at any time during the twelve (12) months immediately preceding
such acquisition, was engaged in MSW disposal or small container commercial
waste collection in any relevant area, where that person's annual revenues
in the relevant area from MSW disposal and/or small container commercial
waste collection service were in excess of $500,000 annually. For clarity,
this provision also applies to an acquisition of disposal facilities
that serve a relevant area but are located outside the relevant area,
whether or not they are physically located in the relevant area.
Such notification shall be provided to the United States in the same
format as, and per the instructions relating to the Notification and
Report Form set forth in the Appendix to Part 803 of Title 16 of the
Code of Federal Regulations as amended, except that the information
requested in Items 5 through 8 of the instructions must be provided
only about the relevant service. Notification shall be provided at least
thirty (30) calendar days prior to acquiring any such interest, and
shall include, beyond what may be required by the applicable instructions,
the names of the principal representatives of the parties to the agreement
who negotiated the agreement, and any management or strategic plans
discussing the proposed transaction. If within the 30-day period after
notification, representatives of the Antitrust Division make a written
request for additional information, defendants shall not consummate
the proposed transaction or agreement until thirty (30) calendar days
after submitting all such additional information. Early termination
of the waiting periods in this paragraph may be requested and, where
appropriate, granted in the same manner as is applicable under the requirements
and provisions of the HSR Act and rules promulgated thereunder. This
Section shall be broadly construed and any ambiguity or uncertainty
regarding the filing of notice under this Section shall be resolved
in favor of filing notice.
AREAS FOR WHICH NOTICE PROVISION APPLIES
|
Relevant Area
|
Counties
|
Relevant Service
|
Atlanta, GA |
Cherokee, Forsyth, Hall, Jackson, Barrow,
Gwinnett, Walton, DeKalb, Rockdale,
Fulton, Clayton, Cobb and
Paulding Counties |
hauling and transfer station disposal |
Cape Girardeau, MO |
Cape Girardeau County |
hauling and transfer station disposal |
Charlotte, NC |
Mecklenburg County |
hauling and transfer station and landfill disposal |
Cleveland, OH |
Cuyahoga County |
transfer station and landfill disposal |
Denver, CO |
Denver and Arapahoe Counties |
landfill disposal |
Flint, MI |
Saginaw and Genesee Counties |
landfill disposal |
Fort Worth, TX |
Tarrant County |
hauling and landfill disposal |
Greenville-Spartanburg, SC |
Greenville and Spartanburg Counties |
hauling and transfer station and landfill disposal |
Houston, TX |
Harris County |
hauling and transfer station and landfill disposal |
Lexington, KY |
Fayette, Jessamine, Woodford, Scott and Franklin Counties |
hauling |
Los Angeles, CA |
Los Angeles County |
landfill disposal |
Lubbock, TX |
Lubbock County |
hauling |
Northwest Indiana |
Lake, Porter and LaPorte Counties |
hauling and transfer station disposal |
Philadelphia, PA |
Philadelphia County |
transfer station disposal |
San Francisco, CA |
Contra Costa, Solano and Alameda Counties |
landfill disposal |
VIII. Financing
Defendants shall not finance all or any part of any purchase made
pursuant to Section IV or V of this Final Judgment.
IX. Hold Separate
Until the divestitures 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 divestitures ordered by this Court.
X. Affidavits
- Within twenty (20) calendar days of the filing of the Complaint
in this matter, and every thirty (30) calendar days thereafter until
the divestitures has been completed under Section IV or V, defendants
shall deliver to the United States and the Relevant State an affidavit
as to the fact and manner of its compliance with Section IV or V of
this Final Judgment. Each such affidavit shall include the name, address,
and telephone number of each person who, during the preceding thirty
(30) calendar days, made an offer to acquire, expressed an interest
in acquiring, entered into negotiations to acquire, or was contacted
or made an inquiry about acquiring, any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person
during that period. Each such affidavit shall also include a description
of the efforts defendants have taken to solicit buyers for the Divestiture
Assets, and to provide required information to prospective Acquirers,
including the limitations, if any, on such information. Assuming the
information set forth in the affidavit is true and complete, any objection
by the United States, after consultation with the Relevant State,
to information provided by defendants, including limitation on information,
shall be made within fourteen (14) calendar days of receipt of such
affidavit.
- 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 IX of this Final Judgment. Defendants shall deliver to
the plaintiffs 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.
- Defendants shall keep all records of all efforts made to preserve
and divest the Divestiture Assets until one year after such divestitures
have been completed.
XI. Compliance Inspection
- For the purposes of determining or securing compliance with this
Final Judgment, 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 Antitrust Division ("DOJ"), 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:
- access during defendants' office hours to inspect and copy,
or at the option of the United States, to require defendants to
provide hard copy or electronic copies of, all books, ledgers,
accounts, records, data, and documents in the possession, custody,
or control of defendants, relating to any matters contained in
this Final Judgment; and
- 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.
- 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 responses to written interrogatories,
under oath if requested, relating to any of the matters contained
in this Final Judgment as may be requested.
- 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, or the Attorney General's Office of any other plaintiff, except
in the course of legal proceedings to which the United States or any
other plaintiff is a party (including grand jury proceedings), or
for the purpose of securing compliance with this Final Judgment, or
as otherwise required by law.
- 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
During the term of this Final Judgment, defendants may not reacquire
any part of the Divestiture Assets, nor may any defendant participate
in any other transaction that would result in a combination, merger,
or other joining together of any part of the Divestiture Assets with
assets of the divesting company.
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
Entry of this Final Judgment is in the public interest. The parties
have complied with the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. § 16, including making copies available
to the public of this Final Judgment, the Competitive Impact Statement,
and any comments thereon and the United States's responses to comments.
Based upon the record before the Court, which includes the Competitive
Impact Statement and any comments and response to comments filed with
the Court, entry of this Final Judgment is in the public interest.
Date: __________________
|
Court approval subject to procedures
of Antitrust Procedures and Penalties
Act, 15 U.S.C. § 16
_______________________________
United States District Judge |
|