Joint Motion to Establish Notice and Comment Procedures and to Modify the Modified Final Judgment

Date: 
Wednesday, January 7, 2009
Document Type: 
Motions and Memoranda - Miscellaneous
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA,    

                  Plaintiff,

                  v.

CEMEX, S.A.B. de C.V. and     
RINKER GROUP LIMITED,

                  Defendants.

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CASE NO.: 1:07-cv-00640

JUDGE: Hon. Royce C. Lamberth

DECK TYPE: Antitrust

DATE STAMPED: January 7, 2009


JOINT MOTION TO ESTABLISH NOTICE AND COMMENT
PROCEDURES AND TO MODIFY THE MODIFIED FINAL JUDGMENT

Plaintiff, United States of America, and defendant, Cemex, S.A.B. de C.V. ("Cemex"), jointly and concurrently move this Court under the Federal Rules of Civil Procedure 60(b)(5) and Section XI of the Modified Final Judgment ("MFJ") entered in this matter on November 28, 2007, to establish notice and comment procedures for the modification of the MFJ and to modify the MFJ to allow Cemex to reacquire Rinker Group Limited's ("Rinker") Kennedy Plant, located at 1406 Atlanta Avenue, Orlando, Florida 32806, which was divested to CRH plc ("CRH") pursuant to the MFJ.

In support of this motion, the parties state as follows:

1. Cemex and CRH propose to exchange two ready mix concrete plants located in Orlando, Florida. The two plants ­ Cemex's Division Avenue facility and CRH's Kennedy Plant ­ are located near downtown Orlando and serve the same geographic area. Cemex currently leases the land used by its downtown Division Avenue facility under a lease that expires on April 30, 2009. As a result of an acquisition that occurred close in time to the entry of the MFJ, CRH now owns the land that Cemex leases, and it wants to displace Cemex and move its Kennedy Plant concrete operations to this site in order to take advantage of economies that can be realized by consolidating various aggregate and concrete operations there. The most efficient place for Cemex to relocate its operations in order to maintain its current ready mix concrete production capacity in downtown Orlando would be the Kennedy Plant site that Cemex previously divested to CRH, as CRH wishes to vacate and transfer its lease for the Kennedy Plant site to another party when it relocates to Division Avenue. However, Cemex is currently barred from reacquiring the Kennedy Plant site pursuant to Section XI of the MFJ. The proposed modification to Section XI of the MFJ will provide for Cemex's reacquisition of the Kennedy Plant to preserve Cemex's existing production capacity in downtown Orlando following CRH's move to Division Avenue. In the view of the United States the proposed modification is in the public interest.

2. The United States tentatively has agreed to modification of the MFJ, but as a matter of policy does not consent to the modification of judgments without public notice and an opportunity for public comment. A Proposed Order, attached hereto as Exhibit 1, may be entered by the Court forthwith, without further notice to any other party or any other proceedings in order to establish the following notice and comment procedures for the modification of the MFJ:

  1. that Cemex publish at its own expense a notice of the proposed modification of the MFJ, in the form attached hereto as Exhibit 2, in two consecutive issues of (a) The Washington Post and (b) The Orlando Sentinel and file proof of such publication with the Court;
  2. that the United States publish a notice, in the form attached hereto as Exhibit 3, in the Federal Register the Joint Motion to Modify the Modified Final Judgment, the reasons for modifying the MFJ, and the opportunity to file comments;
  3. that copies of all comments received by the United States within 30 days after the last publication of the notices described in paragraphs 3(a) and 3(b), and the United States's responses to those comments, be filed with this Court by the United States within a reasonable period of time after the conclusion of the 30-day comment period; and
  4. that this Court will not enter the proposed Second Modified Final Judgment, a proposed form which is attached hereto as Exhibit 4, until the United States has filed such comments and its responses to those comments or the United States notifies the Court that no comments were received and the United States moves that the Proposed Second Modified Final Judgment should be entered by the Court.

Dated: January 7, 2009

    Respectfully submitted,
      FOR PLAINTIFF
UNITED STATES OF AMERICA

_______________/s/________________
Frederick H. Parmenter
VA Bar No. 18184
U.S. Department of Justice
Antitrust Division
Litigation II Section
1401 H Street, NW, Suite 3000
Washington, DC 20530
(202) 307-0620

FOR DEFENDANT
CEMEX, S.A.B. de C.V.

_______________/s/________________
Clifford H. Aronson, Esquire
Skadden, Arps, Slate, Meagher & From LLP
Four Times Square
New York, New York 10036-6522
(212) 735-2644


CERTIFICATE OF SERVICE

I, Frederick H. Parmenter, hereby certify that on January 7, 2009, I caused copies of the foregoing Joint Motion to Establish Notice and Comment Procedures and to Modify the Modified Final Judgment and the Proposed Second Modified Final Judgment to be served on defendant CEMEX, S.A.B. de C.V. by mailing the documents electronically to the duly authorized legal representative of the defendant.

      _______________/s/________________
Frederick H. Parmenter

Counsel for CEMEX, S.A.B. de C.V.:

Clifford H. Aronson, Esquire
Skadden, Arps, Slate Meagher & Flom LLP
New York, New York 10036-6522
(212) 735-2644
caronson@skadden.com

Attachments: 
Updated June 30, 2015