FOR THE NORTHERN DISTRICT OF ILLINOIS
MEMORANDUM OF THE UNITED STATES IN
Ludowici Roof Tile, Inc. ("Ludowici"), successor in interest to defendant Ludowici-Celadon Company ("Ludowici-Celadon"), has moved to terminate the Final Decree entered by the Court in this matter on March 18, 1929 (the "Decree"). The United States files this memorandum in support of its tentative consent to terminate the Decree. Because the Decree is no longer necessary to sustain a competitive market, the United States tentatively consents to termination of the Decree subject to public notice and an opportunity for comment.(1)
On March 12, 1929, the United States initiated this antitrust action by filing a Petition against Ludowici-Celadon and sixteen individuals. A copy of the Petition is attached hereto as Exhibit A. Those individuals were Ludowici-Celadon's exclusive sales agents, "preferred roofers," officers, directors, or employees. Petition § IV. The Petition alleged that the defendants conspired to restrain interstate trade and commerce in the manufacture and sale of clay roofing tile(2) and to monopolize and to attempt to monopolize such trade and commerce in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2. Petition §§ II & IV. On March 18, 1929, the Decree was entered in this matter. A copy of the Decree is attached hereto as Exhibit B.
A. The Allegations in the Petition
According to the Petition, Ludowici-Celadon acquired various roofing-tile businesses and assets with the purpose and effect of eliminating competition in the manufacture and sale of clay roofing tile and obtaining a dominant position in the market. Petition § VI.1. The Petition alleged that, as a result of these acquisitions, Ludowici-Celadon controlled roughly 90% of the clay roofing-tile market. Id. The Petition further alleged that in furtherance of the conspiracy, Ludowici-Celadon entered into agreements with its preferred roofers through which Ludowici-Celadon provided special discounts to them in order to exclude competitors of the preferred roofers and prevent competition with Ludowici-Celadon. Petition § VI.2. Additionally, the Petition alleged that Ludowici-Celadon, through certain of its officers, directors, and employees, performed other acts in furtherance of the conspiracy including, but not limited to: (1) inducing customers of its competitors to breach contracts with those competitors by reducing bids or making false or unfair statements regarding its competitors' products; (2) requiring exclusive use of its roofing tile as a condition of sale or use of that roofing tile; (3) inducing others to refuse to buy or sell roofing tile manufactured by its competitors; (4) and granting preferences to its preferred roofers. Id.
B. The Final Decree
The Decree perpetually enjoined the defendants from continuing the conspiracy or entering into any combination similar thereto. Decree ¶ 2. In addition, the Decree enjoined Ludowici-Celadon from acquiring ownership or control of any additional plants engaged in the manufacture and sale of roofing tile. Decree ¶ 4. It also enjoined Ludowici-Celadon, and anyone acting on its behalf, from engaging in the following behavior:
Decree ¶ 3. The provisions of the Decree are applicable to "the successors in interest of any and/or all of the defendants . . . , and to any and all [persons] . . . who may acquire the ownership or control . . . of [Ludowici-Celadon]." Decree ¶ 5.
C. The Current Clay Roofing-Tile Market
The clay roofing-tile market has changed dramatically since the Decree was entered.(3) First, Ludowici-Celadon closed its Peru, Kansas facility in the 1930s and liquidated its Coffeyville, Kansas facility in 1958. Ludowici currently owns and operates only one roofing-tile plant--its facility located in New Lexington, Ohio.
Second, in the past thirty years, at least seven roofing-tile manufacturers began selling clay roofing tile in the United States. These companies include: (1) U.S. Tile, located in Corona, California; (2) Maruhachi Ceramics of America, located in Corona, California; (3) Deleo Clay Tile Company, located in Lake Elsinore, California; (4) Redland Clay Tile, located in Mexico; (5) Altusa Roof Tiles, located in Venezuela; (6) Santa Fe Roof Tiles, located in Colombia; and (7) Boston Valley Terra Cotta, located in Orchard Park, New York. In addition, clay roofing tile from a number of other manufacturers located in Europe, South America, and Central America is imported into the United States. As a result of such entry, Ludowici's market share has decreased from 90% in 1929 to less than 5% today, based on sales volume.
As a successor in interest to Ludowici-Celadon, Ludowici is bound by the terms of the Decree. Ludowici asserts that it has complied with the terms of the Decree and has not otherwise engaged in anticompetitive behavior in the more than seventy-five years since the Decree was entered. In addition, the market for clay roofing tile has changed in such a way that the Decree is no longer necessary to protect competition in that market. Accordingly, the United States tentatively consents to the termination of the Decree, subject to notice of Ludowici's motion and the opportunity for public comment.
THE LEGAL STANDARD APPLICABLE TO THE TERMINATION OF
This Court has jurisdiction to terminate the Decree pursuant to Paragraph XII of the Decree, Rule 60(b)(5) of the Federal Rules of Civil Procedure, and "principles inherent in the jurisdiction of the chancery." United States v. Swift & Co., 286 U.S. 106, 114 (1932); In re Grand Jury Proceedings, 827 F.2d 868, 873 (2d Cir. 1987). Where, as here, the United States has tentatively consented to a proposed termination of a decree, the issue before the Court is whether termination is in the public interest. E.g., United States v. W. Elec. Co., 993 F.2d 1572, 1576 (D.C. Cir. 1993); United States v. W. Elec. Co., 900 F.2d 283, 305 (D.C. Cir. 1990) ("W. Elec. I"); United States v. Loew's, Inc., 783 F. Supp. 211, 213 (S.D.N.Y. 1992); United States v. Columbia Artists Mgmt., Inc., 662 F. Supp. 865, 869-70 (S.D.N.Y. 1987) (citing United States v. Swift & Co., 1975-1 Trade Cas. (CCH) ¶ 60,201, at 65,702-03, 65,706 (N.D. Ill. 1975)); cf. United States v. Am. Cyanamid Co., 556 F. Supp. 361, 367 (S.D.N.Y.), rev'd on other grounds, 719 F.2d 558 (2d Cir. 1983).
A district court applies the same public interest standard in terminating a consent decree as it does in reviewing the entry of an initial consent decree in a government antitrust case. See 15 U.S.C. § 16(e); W. Elec. I, 900 F.2d at 295; United States v. AT&T, 552 F. Supp. 131, 147 n.67 (D.D.C. 1982), aff'd sub nom., Maryland v. United States, 406 U.S. 1001 (1983); United States v. Radio Corp. of Am., 46 F. Supp. 654, 656 (D. Del. 1942). It has long been recognized that the United States has broad discretion in settling antitrust litigation on terms that will best serve the public interest in competition. E.g., Sam Fox Publ'g Co. v. United States, 366 U.S. 683, 689 (1961). In determining whether the initial entry of a consent decree is in the public interest, absent a showing of abuse of discretion by the United States, the Court is not to substitute its own opinion, but to assess whether the United States' explanation is well reasoned. United States v. Microsoft Corp., 56 F.3d 1448, 1461-62 (D.C. Cir. 1995); United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981) (citing United States v. NBC, 449 F. Supp. 1127, 1143 (C.D. Cal. 1978)); United States v. Med. Mut. of Ohio, 1999-1 Trade Cas. (CCH) ¶ 72, 465 at 84,271 (N.D. Ohio 1999); United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ¶ 61,508 at 71,980 (W.D. Mo. 1977). The Court should conduct a limited review to "insur[e] that the government has not breached its duty to the public in consenting to the decree" through malfeasance or by acting irrationally. Bechtel, 648 F.2d at 666; see also Microsoft, 56 F.3d at 1461 (examining whether "the remedies [obtained in the decree] were not so inconsonant with the allegations charged as to fall outside of the 'reaches of the public interest'").
Thus, where the United States has offered a reasonable explanation of why the termination of a consent decree vindicates the public interest in preserving free and unfettered competition and there is no showing of abuse of discretion or corruption affecting the United States' recommendation, the Court should accept the United States' conclusion concerning the appropriateness of termination.
THE UNITED STATES TENTATIVELY CONSENTS TO THE
Under United States v. United Shoe Machinery Corp., 391 U.S. 244 (1968), an antitrust consent decree termination is appropriate where the defendants demonstrate that the basic purposes of the decree have been achieved. Id. at 248. The Second Circuit in United States v. Eastman Kodak Co., 63 F.3d 95 (2d Cir. 1995), recognized that significant changes in the factual or legal climate may justify a consent decree termination even where the United Shoe standard for decree terminations has not been satisfied. Id. at 102. In this case, termination of the Decree is justified both because the basic purposes of the Decree have been achieved and because the competitive climate of the roofing-tile industry has changed significantly.
The Decree is no longer necessary to protect competition in the clay roofing-tile market. The purpose of the Decree was to end the alleged conspiracy, prevent its likely recurrence, and prevent the defendants from monopolizing or attempting to monopolize the clay roofing-tile market. The Decree sought to and did accomplish these objectives by prohibiting the defendants from continuing the conspiracy, preventing future acquisitions by Ludowici, and proscribing those acts that enabled Ludowici to monopolize or attempt to monopolize the clay roofing-tile market.
Since the Decree was entered, the clay roofing-tile market has become significantly more competitive. In 1929, Ludowici was the largest manufacturer of clay roofing tile in the United States. As a result of domestic entry and imports in the past thirty years, Ludowici currently holds only a small share of the market. Unlike in 1929, customers today enjoy the benefits of competition and can choose from clay roofing tile manufactured by numerous companies.
Because of Ludowici's reduced market share and the presence of at least seven significant competitors, Ludowici is unlikely to successfully engage in exclusionary conduct, including conduct proscribed by the Decree. And, to the extent that Ludowici engages in or attempts to engage in exclusionary or anticompetitive conduct, Ludowici is subject to laws of general application. In addition, by continuing to perpetually ban Ludowici from acquiring any facility that is engaged in the manufacture of clay roofing tile, the Decree may prohibit acquisitions that could have a neutral or procompetitive effect.
In light of the fulfillment of the purpose of the Decree, changes in the roofing-tile industry, and the simple passage of time, the Decree is no longer required to sustain a competitive environment in the roofing-tile industry. Accordingly, the United States tentatively concludes that termination of the Decree is in the public interest.(4)
PROPOSED PROCEDURES FOR PUBLIC NOTICE
The court in Swift & Co. articulated a court's responsibility to implement procedures that will give nonparties notice of, and an opportunity to comment upon, antitrust judgment modifications proposed by consent of the parties:
Cognizant . . . of the public interest in competitive economic activity, established chancery powers and duties, and the occasional fallibility of the Government, the court is, at the very least, obligated to ensure that the public, and all interested parties, have received adequate notice of the proposed modification.
Swift & Co., 1975-1 Trade Cas. (CCH) ¶ 60,201, at 65,703.
It is the policy of the United States to consent to motions to terminate decrees in antitrust actions only on the conditions that an appropriate effort be made to notify potentially interested persons of the motion and consideration be given to any comments made in response to such notification. Therefore, the United States has proposed and Ludowici has agreed to the following procedures:
(1) The United States will publish in The Federal Register a notice announcing Ludowici's motion to terminate the Decree and the United States' tentative consent to that motion. The notice will summarize the Petition and Decree, describe the procedures for inspecting and obtaining copies of relevant papers, and invite the submission of comments.
(2) Ludowici will publish notice of its motion in two consecutive issues of The Chicago Tribune and Professional Roofing. These periodicals are likely to be read by persons interested in the markets affected by the Decree.
(3) These published notices will provide a period for public comment during the sixty days following the publication of the notice.
(4) Within a reasonable time after the conclusion of the sixty-day period following publication of the last notice discussed above, the United States will file with the Court copies of any comments that it receives and its response to those comments.
(5) The parties request that the Court not rule upon Ludowici's motion to terminate the Decree until the United States has filed with the Court copies of any comments it receives along with its response to those comments. The United States reserves the right to withdraw its consent to Ludowici's motion at any time prior to entry of an order terminating the Decree.
For the foregoing reasons, the United States tentatively consents to the termination of the Decree in this case.
Dated: November 4, 2005
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Memorandum of the United States in Response to Motion of Defendant Ludowici Roof Tile, Inc. to Terminate Final Decree has been served upon counsel identified below via Federal Express on this 4th day of November 2005:
1. It is likely that the individual defendants in this matter have passed away. However, in the event that any individual defendant is still alive, the United States believes that termination of the Decree should be effective as to all defendants.
2. "Roofing tile" is defined in the Decree as "tile produced from shale or clay and used as a covering for pitched roofs, cornices and other exposed surfaces of buildings and structures." Decree at p. 2.
3. At the time the Decree was entered, Ludowici-Celadon owned and operated at least three roofing-tile plants, located in Coffeyville and Peru, Kansas and New Lexington, Ohio. Ludowici-Celadon's Alfred, New York and Chicago Heights, Illinois plants were destroyed by fire in 1909. Its Georgia facility was closed in 1914. It is unclear whether Ludowici continued to own or operate its Ottawa, Illinois plant in 1929; it appears not to have operated that facility since, at least, the early 1930s.
4. While the United States tentatively consents to the termination of the Decree, it does not agree with or join in Ludowici's analysis regarding the changes in the antitrust laws since 1929. Because the United States' consent is based upon the changes in the clay roofing-tile market in the past 30 years, and not upon changes in the applicable law, it need not address any asserted changes in the law in this Memorandum. The United States' tentative consent to termination should not be construed as agreement with Ludowici's legal analysis.