Final Judgment : U.S. v. Waste Management of Georgia, Inc., d/b/a Waste Management of Savannah, et al.

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) Civil Action No.: v. ) ) Filed: WASTE MANAGEMENT OF GEORGIA, ) INC., d/b/a ) WASTE MANAGEMENT OF ) SAVANNAH, ) WASTE MANAGEMENT OF LOUISIANA, ) INC., d/b/a ) WASTE MANAGEMENT OF CENTRAL ) LOUISIANA, and ) WASTE MANAGEMENT, INC., ) ) Defendants. ) ) FINAL JUDGMENT WHEREAS Plaintiff, United States of America, having filed its Complaint in this action on February 15, 1996, and Plaintiff and Defendants, by their respective attorneys, having 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 or admission by any party with respect to any issue of fact or law; NOW, 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:

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I.JURISDICTION This Court has jurisdiction of the subject matter of this action and of the persons of the Defendants, Waste Management, Inc., Waste Management of Georgia, Inc., d/b/a Waste Management of Savannah, and Waste Management of Louisiana, Inc., d/b/a Waste Management of Central Louisiana. The Complaint states a claim upon which relief may be granted against the Defendants under Section 2 of the Sherman Act, 15 U.S.C. § 2. II. DEFINITIONS As used in this Final Judgment: (A) "Savannah market" means Chatham, Effingham, and Bryan Counties, Georgia. (B) "Central Louisiana market" means Rapides, Natchitoches, Avoyelles, Red River, Winn, and Sabine Parishes, Louisiana. (C) "Solid waste hauling" means the collection and transportation to a disposal site of trash and garbage (but not construction and demolition debris; medical waste; hazardous waste; organic waste; or special waste, such as contaminated soil, or sludge; or recyclable materials) from residential, commercial and industrial customers. Solid waste hauling includes hand pick-up, containerized pick-up, and roll-off service. (D) "Defendants" means defendant Waste Management, Inc., a Delaware corporation with its headquarters in Oak Brook,

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Illinois, defendant Waste Management of Georgia, Inc., d/b/a Waste Management of Savannah, a Georgia corporation with offices in Savannah, Georgia, and defendant Waste Management of Louisiana, Inc., d/b/a Waste Management of Central Louisiana, a Louisiana corporation with offices in Alexandria, Louisiana, and includes their officers, directors, managers, agents, employees, successors, assigns, parents, and subsidiaries. (E) "Small Container" means a 2 to 10 cubic yard container. (F) "Small Containerized Solid Waste Hauling Service" means providing solid waste hauling service to customers by providing the customer with a Small Container that is picked up mechanically using a frontload, rearload, or sideload truck, and expressly excludes hand pick-up service, and service using a compactor attached to or part of a small container. (G) "Customer" means a Small Containerized Solid Waste Hauling Service customer. III. APPLICABILITY This Final Judgment applies to Defendants and to their officers, directors, managers, agents, employees, successors, assigns, parents and subsidiaries, 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. Nothing contained in 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

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party. IV. PROHIBITED CONDUCT Defendants are enjoined and restrained as follows: (A) Except as set forth in paragraph IV(B) and (G), Defendants shall not enter into any contract with a Customer for a service location in the Savannah or Central Louisiana markets that: (1) has an initial term longer than two (2) years; (2) has any renewal term longer than one (1) year; (3) requires that the Customer give Defendants notice of termination more than thirty (30) days prior to the end of any initial term or renewal term; (4) requires that the Customer pay liquidated damages in excess of three times the greater of its prior monthly charge or its average monthly charge over the most recent six months during the first year of the initial term of the Customer's contract; (5) requires that the Customer pay liquidated damages in excess of two times the greater of its prior monthly charge or its average monthly charge over the most recent six months after the Customer has been a Customer of a Defendant for a continuous period in excess of one (1) year; (6) requires the Customer to give Defendants notice of any offer by or to another solid waste hauling firm or requires the Customer to give Defendants a reasonable opportunity to

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respond to such an offer for any period not covered by the contract (sometimes referred to as a "right to compete" clause); (7) is not easily readable (e.g., formatting and type- face) and is not labeled, in large letters, SERVICE CONTRACT; or (8) requires a Customer to give Defendants the right or opportunity to provide hauling service for recyclables or more than one solid waste hauling service for a Customer unless the Customer affirmatively chooses to have Defendant do so by so stating on the front of the contract. (B) Notwithstanding the provisions of paragraph IV(A) of this Final Judgment, Defendants may enter into a contract with a Customer for a service location in the Savannah or Central Louisiana markets with an initial term in excess of two years provided that: (1) The Customer has acknowledged in writing that the Defendants have offered to the Customer the form contracts Defendants are required herein to offer generally to Customers; (2) the Customer has the right to terminate the contract after 2 years by giving notice to Defendants thirty (30) days or more prior to the end of that 2 year period; (3) the contract otherwise complies with the provisions of paragraph IV(A)(2)-(8); and (4) the number of service locations subject to contracts permitted under subparagraph (B) in either the Savannah or Central Louisiana markets does not exceed 25% of the total number of service locations for small containerized solid waste

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hauling service in each such market in any year. (C) From the date of filing of an executed Stipulation in the form attached hereto as Exhibit A, Defendants shall offer to new Customers with service locations in the Savannah and Central Louisiana markets only contracts that conform to the requirements of paragraphs IV(A) or (B) of this Final Judgment, except as provided in IV(G). (D) Except as provided in IV(G), within thirty (30) days following the entry of this Final Judgment, Defendants shall send to all existing Customers with service locations in the Savannah and Central Louisiana markets with contracts having an initial term longer than 2 years and which otherwise do not conform with paragraph IV(B) a notice in the form attached hereto as Exhibit B. (E) Except as provided in IV(G), for each Customer with a contract having an initial term longer than 2 years and which otherwise does not conform to paragraph IV(B) that enters a renewal term 120 days after entry of this Final Judgment, Defendants shall send a reminder to that Customer in the form attached hereto as Exhibit C ninety (90) days or more prior to the effective date of the renewal term. This reminder may be sent to the Customer as part of a monthly bill, but if it is, it must be displayed on a separate page and in large print. (F) Upon entry of this Final Judgment, Defendants may not enforce those contract provisions that are inconsistent with this Final Judgment.

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(G) Notwithstanding the provisions of this Final Judgment, Defendants may enter into contracts with municipal or governmental entities that are not in compliance with paragraphs IV(A)-(F) provided that those contracts are awarded to Defendants on the basis of a formal request for bids or a formal request for proposals issued by the Customer. (H) Notwithstanding the provisions of this Final Judgment, Defendants shall not be required to do business with any Customer. V. REPORTING (A) To determine or secure compliance with this Final Judgment, duly authorized representatives of the Plaintiff shall, upon written request of the Assistant Attorney General in charge of the Antitrust Division, on reasonable notice given to Defendants at their principal offices, subject to any lawful privilege, be permitted: (1) Access during normal office hours to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other documents and records in the possession, custody, or control of Defendants, which may have counsel present, relating to any matters contained in this Final Judgment. (2) Subject to the reasonable convenience of Defendants and without restraint or interference from them, to interview officers, employees, or agents of Defendants, who may have counsel present, regarding any matters contained in this

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Final Judgment. (B) Upon written request of the Assistant Attorney General in charge of the Antitrust Division, on reasonable notice given to Defendants at their principal offices, subject to any lawful privilege, Defendants shall submit such written reports, under oath if requested, with respect to any matters contained in this Final Judgment. (C) No information or documents obtained by the means provided by this Section shall be divulged by the Plaintiff to any person other than a duly authorized representative of the Executive Branch of the United States government, 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 otherwise required by law. (D) If at the time information or documents are furnished by Defendants to Plaintiff, Defendants represent and identify in writing the material in any such information or document to which a claim of protection may be asserted under Rule 26(c)(7) 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)(7) of the Federal Rules of Civil Procedure," then ten days notice shall be given by Plaintiff to Defendants prior to divulging such material in any legal proceeding (other than a grand jury proceeding) to which Defendants are not a party.

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VI. FURTHER ELEMENTS OF JUDGMENT (A) This Final Judgment shall expire on the tenth anniversary of the date of its entry. (B) Jurisdiction is retained by this Court over this action and the parties thereto for the purpose of enabling any of the parties thereto 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 or terminate any of its provisions, to enforce compliance, and to punish violations of its provisions. VII. PUBLIC INTEREST Entry of this Final Judgment is in the public interest. Entered: 5/20/96 UNITED STATES DISTRICT JUDGE /s/ John F. Nangle

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Civil Action No.: ) WASTE MANAGEMENT OF GEORGIA, ) Filed: INC., d/b/a ) WASTE MANAGEMENT OF ) SAVANNAH, and ) WASTE MANAGEMENT OF LOUISIANA, ) INC., d/b/a ) WASTE MANAGEMENT OF CENTRAL ) LOUISIANA, and ) WASTE MANAGEMENT, INC., ) ) Defendants. ) ) STIPULATION

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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 hereto for the purposes of this proceeding. Defendant Waste Management of Georgia, Inc., d/b/a/ Waste Management of Savannah, transacts business and is found within the district. Defendants Waste Management of Louisiana, Inc., d/b/a Waste Management of Central Louisiana, and Waste Management, Inc. consent to personal jurisdiction in this proceeding. Defendants waive any objections as to venue and the parties stipulate that venue for this action is proper in the Southern District of Georgia; EXHIBIT A 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. § 16(b)-(h)), and withoutfurther 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 the Defendants and by filing that notice with the Court; and 3. Defendants agree to be bound by the provisions of the proposed Final Judgment pending its approval by the Court. If the Plaintiff withdraws its consent or if the proposed Final

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Judgment is not entered pursuant to this Stipulation, this Stipulation shall be of no effect whatsoever, and the making of

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this Stipulation shall be without prejudice to any party in this or in any other proceeding. DATED this ____th day of February, 1996. Respectfully submitted, FOR THE PLAINTIFF THE UNITED STATES OF AMERICA: /s/Anne K. Bingaman /s/Anthony V. Nanni Anne K. Bingaman Anthony V. Nanni Assistant Attorney General Chief, Litigation I Section Antitrust Division U.S. Department of Justice /s/ Nancy H. McMillen Nancy H. McMillen /s/ Lawrence R. Fullerton Lawrence R. Fullerton Deputy Assistant Attorney General /s/ Peter H. Goldberg Peter H. Goldberg /s/Rebecca P. Dick Rebecca P. Dick /s/Evangelina Almirantearena Deputy Director of Evangelina Almirantearena Operations Attorneys U.S. Department of Justice Antitrust Division City Center Building, Suite 4000 1401 H Street, N.W. Washington, D.C. 20530 202/307-5777 Harry D. Dixon, Jr. United States Attorney Southern District of Georgia

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FOR THE DEFENDANTS WASTE MANAGEMENT, INC., WASTE MANAGEMENT OF GEORGIA, INC., and WASTE MANAGEMENT OF LOUISIANA, INC.: /s/Robert Bloch, Esquire Robert Bloch, Esquire Mayer Brown & Platt 2000 Pennsylvania Ave., N.W. Washington, D.C. 20006 /s/Michael Sennett, Esquire Michael Sennett, Esquire Bell, Boyd & Lloyd 3 First National Plaza 70 West Madison Street Chicago, IL 60602 _________________________________ NOTICE TO CUSTOMERS Dear Valued Customer: [Insert name of local operating company] is offering a new two year contract to all small containerized solid waste hauling customers with service locations in [insert market here]. We would like to take this opportunity to offer this contract to you. Of course, if you prefer, you can continue with your existing contract. In most cases, this new contract will have terms that are more advantageous to customers than their current contracts. This new

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contract has the following features: an initial term of 2 years (unless you request a longer term); a renewal term of 1 year; at the end of your initial term, you may take no action and your contract will renew or you can choose not to renew the contract by simply giving us notice at any time up to 30 days prior to the end of your term; if you request a contract with a term longer than 2 years, you can cancel that contract after 2 years by giving us notice at any time up to 30 days prior to the end of the first 2 years; if you terminate the contract at any other time, you will be required to pay, as liquidated damages, no more than 3 times the greater of your prior monthly or average monthly charge. If you've been a customer continuously for more than 1 year, the liquidated damages would be reduced to 2 times the greater of your prior monthly or average monthly charge; you will not be required to give us notice of any offer from another waste hauling firm or to give us an opportunity to make a counteroffer although you may do so if you wish; you will be able to choose on the contract which specific types of waste hauling services you would like us to perform. You may obtain a new contract containing these terms by calling [insert CSR telephone number or sales rep name and number]. EXHIBIT B

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If you prefer, you may continue with your existing contract. If you retain your existing contract, we will not enforce any terms that are inconsistent with the new form contract terms. We thank you for your business and look forward to a continued relationship with you. If you have any questions, please call [WM contact person and phone number.]

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REMINDER TO CUSTOMERS Your contract will automatically renew on MM/DD/YY unless we receive your cancellation by MM/DD/YY. You may also obtain a new form contract with some terms more advantageous to you than your current contract. You may obtain a new contract containing these terms by calling {insert CSR telephone number or sales rep name and number}.