Plaintiff's Motion and Memorandum for Entry of Amended Proposed Final Judgment

Date: 
Friday, January 6, 2006
Document Type: 
Motions and Memoranda - Miscellaneous
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,    

                  Plaintiff,

                  v.

CAL DIVE INTERNATIONAL, INC.,   
STOLT OFFSHORE S.A.,
STOLT OFFSHORE, INC., and
S&H DIVING, LLC,

                  Defendants.


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Case No. 1:05CV02041
Judge: Emmet G. Sullivan
Deck Type: Antitrust
Filed: January 6, 2006

PLAINTIFF'S MOTION AND MEMORANDUM FOR ENTRY OF AMENDED
PROPOSED FINAL JUDGMENT

Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)-(h) ("APPA"), plaintiff, the United States of America ("United States") moves for entry of the Amended Proposed Final Judgment filed in this civil antitrust proceeding. The Amended Proposed Final Judgment may be entered at this time without further hearing if the Court determines that entry is in the public interest. The Competitive Impact Statement, filed on October 20, 2005 and referenced in Section XV of the Amended Proposed Final Judgment, explains why entry of the Amended Proposed Final Judgment is in the public interest. The United States is filing simultaneously with this Motion and Memorandum a Certificate of Compliance setting forth the steps taken by the parties to comply with all applicable provisions of the APPA and certifying that the statutory waiting period has expired.

I. Background

On October 18, 2005, the United States filed a civil antitrust Complaint seeking to enjoin a proposed acquisition by Cal Dive International, Inc. ("Cal Dive") of certain assets of Stolt Offshore, Inc. and S&H Diving, LLC (collectively, "Stolt"). The Complaint alleges that the effect of the acquisition, if consummated, may be substantially to lessen competition in the provision of saturation diving services in interstate trade and commerce in the United States Gulf of Mexico, in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. The Complaint alleges that unless restrained, the acquisition will likely have the following effects, among others: (a) actual and potential competition between Cal Dive and Stolt in the provision of saturation diving services would be eliminated; (b) competition generally in the provision of saturation diving services would be eliminated or substantially lessened; (c) prices of saturation diving services would increase; and (d) quality and service levels in the provision of saturation diving services would decrease. Accordingly, the United States, in its Complaint, requests that the proposed acquisition be adjudged to violate Section 7 of the Clayton Act and that defendants be permanently enjoined from consummating the acquisition.

The United States also filed a Hold Separate Stipulation and Order and Amended Proposed Final Judgment which are designed to eliminate the anticompetitive effects of the acquisition. Cal Dive is required within 60 calendar days after the filing of the Complaint, or five days after notice of the entry of the Amended Proposed Final Judgment by the Court, whichever is later, to divest the Torch Saturation Diving System and the vessel designated as the Midnight Carrier, and is required within 90 calendar days after the filing of the Complaint, or five days after notice of the entry of the Amended Proposed Final Judgment by the Court, whichever is later, to divest the vessel designated as the Seaway Defender. If Cal Dive does not complete the divestitures within the prescribed times, then, under the terms of the Amended Proposed Final Judgment, this Court will appoint a trustee to sell the assets. The Hold Separate Stipulation and Order and the Amended Proposed Final Judgment require Cal Dive to preserve, maintain and continue to operate these assets in the ordinary course of business. The Competitive Impact Statement, filed with this Court on October 20, 2005 and referenced in Section XV of the Amended Proposed Final Judgment, explains the basis for the Complaint and the reasons why entry of the Amended Proposed Final Judgment is in the public interest.

The parties, pursuant to the Hold Separate Stipulation and Order entered by the Court on October 27, 2005, stipulated that the Amended Proposed Final Judgment may be entered by the Court after the completion of the procedures required by the APPA. Entry of the Amended Proposed Final Judgment will terminate this action, except that the Court will retain jurisdiction to construe, modify, or enforce the provisions of the Amended Proposed Final Judgment and to punish violations thereof.

II. Compliance with the APPA

The APPA requires a sixty-day period for the submission of public comments on the Amended Proposed Final Judgment, 15 U.S.C. § 16(b). In this case, the comment period terminated on December 30, 2005, and the United States received no public comments. The United States has filed a Certificate of Compliance simultaneously with this Motion and Memorandum that states all the requirements of the APPA have been satisfied. It is now appropriate for the Court to make the public interest determination required by 15 U.S.C. § 16(e) and to enter the Amended Proposed Final Judgment.

III. Standard of Judicial Review

Before entering the Amended Proposed Final Judgment, the Court is to determine whether the Judgment "is in the public interest." 15 U.S.C. § 16(e). In making that determination, the Court may consider:

  1. the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration or 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
  2. 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. § 16(e).

In its Competitive Impact Statement, which was filed with the Court on October 20, 2005, and is referenced in Section XV of the Amended Proposed Final Judgment, the United States set forth the requirements for the application of the public interest standard under the APPA and incorporates those statements herein. The public, including affected competitors and customers, has not filed any comments on the Amended Proposed Final Judgment. The Amended Proposed final Judgment is within the range of settlements consistent with the public interest.

IV. Conclusion

For the reasons set forth in this Motion and Memorandum and in the Competitive Impact Statement, the Court should find that the Amended Proposed Final Judgment is in the public interest and should enter the Amended Proposed Final Judgment without further hearings. The United States respectfully requests that the Amended Proposed Final Judgment, annexed hereto, be entered as soon as possible.

Dated: January 6, 2006

    Respectfully submitted,
  _______________/s/________________
Jennifer L. Cihon (OH Bar # 0068404)
Transportation, Energy & Agriculture Section
Antitrust Division
U.S. Department of Justice
325 7th Street N.W. Suite 500
Washington, D.C. 20530
(202) 307-3278

CERTIFICATE OF SERVICE

I hereby certify that on January 6, 2006, I caused a copy of the foregoing Plaintiff's Motion and Memorandum for Entry of Amended Proposed Final Judgment to be served on counsel for defendants in this matter in the manner set forth below:

By electronic mail:

Counsel for Defendant Cal Dive International, Inc.
Daniel L. Wellington (D.C. Bar #273839)
Neely B. Agin (D.C. Bar #456005)
Fulbright & Jaworski LLP
801 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2623
Tel: (202) 662-4574
Fax: (202) 662-4643

Counsel for Defendants Stolt Offshore S.A., Stolt Offshore, Inc.
and S&H Diving LLC
Paul C. Cuomo (D.C. Bar #457793)
Sean F.X. Boland (D.C. Bar #249318)
Howrey LLP
1299 Pennsylvania Avenue, NW
Washington, D.C. 20004-2402
Tel: (202) 783-0800
Fax: (202) 383-6610

  _______________/s/________________
Jennifer L. Cihon (OH Bar #0068404)
Department of Justice
Antitrust Division
325 Seventh Street, N.W.
Suite 500
Washington, DC 20530
(202) 307-3278
(202) 616-2441 (Fax)

ANNEX


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Updated June 30, 2015