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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) Civil Action No.:
)
v. ) Filed:
)
BROWNING-FERRIS INDUSTRIES OF )
IOWA, INC., )
BROWNING-FERRIS INDUSTRIES OF )
TENNESSEE, INC., and )
BROWNING-FERRIS INDUSTRIES, )
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, Browning-Ferris
Industries, Inc., Browning-Ferris Industries of Tennessee, Inc.,
and Browning-Ferris Industries of Iowa, Inc. 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) "Memphis market" means the counties of Shelby, TN;
Fayette, TN; Crittenden, AK; DeSoto, MS; Marshall, MS; Tate, MS;
and Tunica, MS.
(B) "Dubuque market" means the counties of Dubuque and
Jackson, IA.
(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 Browning-Ferris
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Industries, Inc., a Delaware corporation with its headquarters in
Houston, Texas, defendant Browning-Ferris Industries of
Tennessee, Inc., a Tennessee corporation with offices in Memphis,
TN, and defendant Browning-Ferris Industries of Iowa, Inc., an
Iowa corporation with offices in Des Moines, IA, and includes
their officers, directors, managers, agents, employees,
successors, assigns, parents and subsidiaries.
(E) "Small Container" means a 1 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
stationary compactors.
(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 Memphis or Dubuque 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 it is a Customer of Defendants;
(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 Defendants for a continuous
period in excess of one (1) year;
(6) is not easily readable (e.g., formatting and type-
face) and is not labeled, in large letters, CONTRACT FOR SOLID
WASTE SERVICES; or
(7) requires a Customer to give Defendants the right
or opportunity to provide hauling service for recyclables or more
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than one type of solid waste hauling service for a Customer
unless the Customer affirmatively indicates its desire for all
such services 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 Memphis or Dubuque markets
with an initial term in excess of two years provided that:
(1) Defendants have not implemented any organized,
management-authorized sales or marketing plan designed, through
pricing or other incentives, to induce Customers to use other
than 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; and,
(3) the contract otherwise complies with the
provisions of paragraph IV(A)(2)-(7).
(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 Memphis and Dubuque
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), Defendants shall send to
all existing Customers with service locations in the Memphis and
Dubuque markets with contracts having an initial term longer than
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2 years and which otherwise do not conform with paragraph IV(B) a
notice in the form attached hereto as Exhibit B (for Memphis
customers) and as Exhibit C (for Dubuque customers) in accordance
with the following schedule:
(1) Defendants shall send notices to Customers with
service locations in the Memphis market within ninety (90) days
following entry of this Final Judgment; and
(2) Defendants shall send notices to Customers with
service locations in the Dubuque market within thirty (30) days
following the entry of this Final Judgment.
(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 D 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
enforce existing contract provisions only to an extent consistent
with this Final Judgment. (For example, if an existing service
agreement provides for six months' liquidated damages, Defendants
may only seek three months' worth of such damages, consistent
with IV(A)(4)).
(G) Notwithstanding the provisions of this Final Judgment,
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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
Final Judgment.
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(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: ____________________
______________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Civil Action No.:
v. )
) Filed:
BROWNING-FERRIS INDUSTRIES OF )
IOWA, INC., )
BROWNING-FERRIS INDUSTRIES OF )
TENNESSEE, INC., and )
BROWNING-FERRIS INDUSTRIES, )
INC., )
)
Defendants. )
)
STIPULATION
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 Browning-Ferris Industries, Inc.
transacts business and is found within the district. Defendants
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Browning-Ferris Industries of Tennessee, Inc. and Browning-Ferris
Industries of Iowa, Inc. consent to personal jurisdiction in this
proceeding. Defendants waive any objections as to venue and
stipulate that venue for this action is proper in the District of
Columbia;
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
EXHIBIT A
after compliance with the requirements of the Antitrust
Procedures and Penalties Act (15 U.S.C. § 16(b)-(h)), and without
further 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
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 _____, 1996.
Respectfully submitted,
FOR THE PLAINTIFF THE UNITED STATES OF AMERICA:
__________________________ ___________________________
Anne K. Bingaman Anthony V. Nanni
Assistant Attorney General Chief, Litigation I Section
Antitrust Division
U.S. Department of Justice
__________________________
Willie L. Hudgins, Jr.
__________________________ DC Bar #37127
Lawrence R. Fullerton
Deputy Assistant Attorney
General
___________________________
Nancy H. McMillen
__________________________
Rebecca P. Dick ___________________________
Deputy Director of Peter H. Goldberg
Operations DC Bar #055608
____________________________
Evangelina Almirantearena
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
.
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FOR DEFENDANTS BROWNING-FERRIS INDUSTRIES OF IOWA, INC.,
BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC., and BROWNING-
FERRIS INDUSTRIES, INC.:
_________________________________________
David Foster, Esquire
DC Bar #358247
Fulbright & Jaworski
801 Pennsylvania Ave., NW
Market Square
Washington, D.C. 20004-2604
202/662-0200
NOTICE TO CUSTOMERS
Dear Customer:
BFI is offering a new two year contract to its small
containerized solid waste hauling customers with service
locations in [insert market here]. In most cases, this new
contract will have terms that are more advantageous to customers
than their current contracts. This new contract has the
following features:
an initial term of no longer than 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 may choose not to renew by giving
us notice at any time up to 30 days prior to the end of the
initial term;
if you request a contract with a term longer than 2 years,
you can cancel that contract by giving us notice at any time
up to 30 days prior to the end of the first 2 years;
you can choose to terminate the contract at any other time,
but you will be required to pay, as liquidated damages, no
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more than 3 times the greater of your prior monthly or average
monthly charge, but if you have 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 be able to choose on the contract which specific
types of waste hauling services you would like us to
perform.
On or before the termination date of your existing service
contract, BFI will offer you continued service under the new
contract. BUT AS AN EXISTING CUSTOMER, YOU WILL IMMEDIATELY GAIN
THE ADVANTAGES OF THE REVISED CONTRACT SINCE BFI WILL NOT ENFORCE
ANY PROVISION IN YOUR CONTRACT IN ANY MANNER INCONSISTENT WITH
ONE OF THE NEW TERMS OFFERED ABOVE. THERE IS, THEREFORE, NO NEED
TO SIGN A REVISED CONTRACT AT THIS TIME. HOWEVER, IF YOU WOULD
LIKE TO ENTER A NEW CONTRACT IN THE MEANTIME, PLEASE SEND A
LETTER TO [insert name and address] AND WE WILL CONTACT YOU.
Thank you for your attention.
EXHIBIT B
NOTICE TO CUSTOMERS
Dear Valued Customer:
BFI is offering a new two year contract to all small
containerized solid waste hauling customers with service
locations in the counties of Dubuque and Jackson, IA. 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 contract has the following features:
an initial term of no longer than 2 years (unless you
request a longer term);
a renewal term of 1 year;
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;
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if you request a contract with a term longer than 2 years,
you can cancel that contract by giving us notice at any time
up to 30 days prior to the end of the first 2 years;
you can choose to terminate the contract at any other time,
but 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 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 BFI contact and number].
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.
If you have any questions, please call [BFI contact person
and phone number.]
EXHIBIT C
REMINDER: Your contract will automatically renew 90 days from
the date of this notice unless we receive your cancellation
within 60 days from the date of this notice.
You may also obtain a new form contract for solid waste hauling
services with some terms more advantageous to you than your
current contract. We will send you a copy on request.
Existing contract terms inconsistent with the new form will not
be enforced against you.
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