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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Case No.: 1:96CV00297
)
v. ) Judge: Thomas Penfield Jackson
)
)
BROWNING-FERRIS INDUSTRIES OF )
IOWA, INC., )
BROWNING-FERRIS INDUSTRIES OF )
TENNESSEE, INC., and )
BROWNING-FERRIS INDUSTRIES, INC.)
)
)
Defendants. )
MOTION FOR ENTRY OF FINAL JUDGMENT
Pursuant to Section 2(b) of the Antitrust Procedures and
Penalties Act, ("APPA"), 15 U.S.C. § 16 (b)-(h), the United
States of America moves for entry of the proposed Final Judgment
in this civil antitrust proceeding. The Final Judgment may be
entered at this time without further hearing, if the Court
determines that entry is in the public interest. A Certificate
of Compliance, certifying that the parties have complied with all
applicable provisions of the APPA and that the waiting period has
expired, has been filed simultaneously with this Court.
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I.
Background
The action was commenced on February 15, 1996, when the
United States filed a civil antitrust complaint to prevent and
restrain defendants Browning-Ferris Industries of Iowa, Inc.
("BFII"), Browning-Ferris Industries of Tennessee, Inc. (BFIT")
and Browning-Ferris Industries, Inc. ("BFI") from maintaining and
enhancing their market power in small containerized solid waste
hauling service in the Dubuque and Memphis markets by using
contracts in those markets that have restrictive and
anticompetitive effects, in violation of Section 2 of the Sherman
Act, 15 U.S.C. §2. Specifically, the Complaint alleges that:
(1) Defendant BFIT has market power in small containerized
hauling service in the Memphis, TN market and Defendant BFII has
market power in small containerized hauling service in the
Dubuque, IA market; (2) Defendants, acting with specific
intent, used and enforced contracts containing restrictive
provisions to exclude and constrain competition and to maintain
and enhance their market power in small containerized hauling
service in those markets; (3) in the context of their large
market shares and market power, Defendants' use and enforcement
of those contracts in the Dubuque and Memphis markets has had
anticompetitive and exclusionary effects by significantly
increasing barriers to entry facing new entrants and barriers to
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expansion faced by small incumbents; (4) Defendants' market
power is maintained and enhanced by their use and enforcement of
those contracts; and (5) as a result, there is a dangerous
probability that Defendants will achieve monopoly power in the
Dubuque and Memphis markets in violation of Section 2 of the
Sherman Act.
Simultaneously with the filing of the Complaint, the United
States filed a proposed Final Judgment, a Stipulation signed by
the parties stipulating to entry of the Final Judgment, and a
Competitive Impact Statement. The proposed Final Consent
Judgment requires that, in dealing with small-container customers
in the Dubuque and Memphis markets, Defendants only enter into
contracts containing significantly less restrictive terms than
the contracts they now use in those markets. Specifically, the
Defendants will be prohibited from using any contract with small-
container customers in the Dubuque and Memphis markets that:
(1) Has an initial term longer than two years (unless a
longer term ins requested by the customer and other conditions
are met);
(2) Has any renewal term longer than one year;
(3) Requires that the customer give notice of termination
more than 30 days prior to the end of a term;
(4) Requires the customer to pay liquidated damages over 3
times the greater of its prior monthly charge or its average
monthly charge during the first year of the initial term of the
customer's contract, or over 2 times the greater of its prior
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monthly charge or its average monthly charge thereafter;
(5) Is not labeled "Contract for Solid Waste Services" and
is not easily readable; or
(6) Requires a customer to give BFI the right or
opportunity to provide hauling services for all solid wastes and
recyclables, unless the customer affirmatively indicates that is
its desire. Furthermore, Defendants would be prohibited from
enforcing provisions in existing contracts that are inconsistent
with the Final Judgment.
The Competitive Impact Statement explains the basis for the
Complaint and the reasons why entry of the proposed Final
Judgment would be in the public interest. The Stipulation
provides that the proposed Final Judgment may be entered by the
Court after the completion of the procedures required by the
APPA.
II.
Compliance with the APPA
The APPA requires defendants to file a description of
communications with any officer or employee of the United States
concerning the proposed Final Judgment, 15 U.S.C. § 16(g). The
APPA also requires a sixty-day period for the submission of
public comments on the proposed Final Judgment, 15 U.S.C. § §
16(b) and (d). In this case, the sixty-day comment period
commenced on March 5, 1996 and terminated on May 6, 1996.
Finally, the APPA requires a sixty-day period for the submission
of public comments following publication in an appropriate
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newspaper, 15 U.S.C. § 16(c). During these periods, the United
States received no comments from the public on the proposed Final
Judgment. Upon the expiration of both comment periods on May 6,
1996, the procedures required by the APPA prior to entry of the
proposed Final Judgment were completed. The Certificate of
Compliance filed by the United States with this Court
simultaneously with this Motion demonstrates that the
requirements of the APPA have been met. 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 Final Judgment. The Court
will retain jurisdiction to construe, modify or enforce the Final
Judgment.
III.
Standard of Judicial Review
Before entering the proposed Final Judgment, the Court is to
determine that the Judgment "is in the public interest." 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, and any other considerations bearing upon the
adequacy of such judgment;
(2) the impact of entry of such judgment upon the
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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) (emphasis added). In its Competitive Impact
Statement, the United States has explained the meaning and proper
application of the public interest standard under the APPA, and
incorporates those statements here by reference.
The public, including affected competitors and customers,
has had opportunity to comment on the proposed Final Judgment as
required by law, and no one has contended that entry of the
proposed Final Judgment would as a whole be contrary to the
public interest. There has been no showing that the proposed
settlement constitutes an abuse of the Department's discretion or
that it is not within the zone of settlements consistent with the
public interest.
IV.
Conclusion
For the reasons set forth in this Motion, in the Competitive
Impact Statement and in the Certificate of Compliance, the Court
should find that the proposed Final Judgment is in the public
interest and should enter the proposed Final Judgment without
further hearings. The United States has consulted with
defendants; defendants have authorized the United States to
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represent that defendants have no objection to entry of the Final
Judgment. The United States requests that the proposed Final
Judgment be entered expeditiously.
Dated: May 14, 1996
Respectfully submitted,
Nancy H. McMillen
Attorney
United States Department of Justice
Antitrust Division
1401 H Street, N.W.
Suite 3700
Washington, D.C. 20530
(202) 307-5777
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CERTIFICATE OF SERVICE
I hereby certify that on this ___ day of May, 1996, I have
caused to be served by first class mail, postage prepaid, a copy
of the foregoing Certificate of Compliance with Provisions of the
Antitrust Procedures and Penalties Act upon the following
persons:
Counsel for Defendants Browning-Ferris Industries of Iowa, Inc.,
Browning-Ferris Industries of Tennessee, Inc., and
Browning-Ferris Industries, Inc.:
Rufus Wallingford, Esquire
Senior Vice President & General Counsel
Browning-Ferris Industries, Inc.
757 N. Eldridge at Memorial Drive
Houston, Texas 77079
David M. Foster, Esquire
Fulbright & Jaworski L.L.P.
801 Pennsylvania Ave., NW
Market Square
Washington, D.C. 20004-2604
Lee J. Keller, Esquire
Senior Attorney
Browning-Ferris Industries, Inc.
757 N. Eldridge at Memorial Drive
Houston, Texas 77079
Richard N. Carrell, Esquire
Fulbright & Jaworski L.L.P.
1301 McKinney
Suite 5100
Houston, Texas 77010-3095
___________________________
Nancy H. McMillen
Attorney, Litigation I Section
Antitrust Division
U.S. Department of Justice
1401 H Street, N.W., Suite 3700
Washington, D.C. 20530
Counsel for Plaintiff United States
of America
(202) 307-5777. |