Plaintiff's Motion For Entry Of Final Judgment
UNITED STATES DISTRICT COURT
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)-(h) ("Tunney Act"), Plaintiff United States moves for entry of the proposed Final Judgment filed in this civil antitrust proceeding. The 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 in this matter on March 15, 1999, explains why entry of the proposed Final Judgment would be in the public interest. A Certificate of Compliance setting forth the steps taken by the parties to comply with all applicable provisions of the Tunney Act and certifying that the statutory waiting period has expired has been filed simultaneously with this Motion.
Plaintiff filed a civil antitrust Complaint on March 1, 1999, alleging that a proposed acquisition of AMR Combs, Inc. ("Combs"), by Signature Flight Support Corporation ("Signature") would violate Section 7 of the Clayton Act, 15 U.S.C. § 18. The Complaint alleges that Signature and Combs are fixed based operators ("FBOs") located in various airports throughout the United States. FBOs provide flight support services to general aviation customers. The proposed transaction would have reduced the number of FBOs from two to one at Bradley International Airport ("BDL") and Palm Springs Regional Airport ("PSP"). In addition, the proposed acquisition would have eliminated the entry of a third FBO competitor at Denver Centennial Airport ("APA"). As a result, the acquisition would substantially lessen competition for flight support services at APA, BDL and PSP in violation of Section 7 of the Clayton Act.
The Plaintiff also filed a proposed Final Judgment and Stipulation simultaneously with the Complaint. The proposed Final Judgment orders Signature to divest FBO facilities at APA, BDL and PSP to a purchaser who can effectively compete in providing flight support services. If Signature fails to divest the facilities within a specified divestiture period, the Court, upon Plaintiff's application, may appoint a trustee to sell the assets. Prior to the implementing the divestitures set out in the proposed Final Judgment, Signature is also ordered to maintain the assets to be divested as viable, ongoing businesses.
The Plaintiff and the defendants have stipulated that the proposed Final Judgment may be entered after compliance with the Tunney Act. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
The Tunney Act requires a sixty-day period for the submission of public comments on the proposed Final Judgment. 15 U.S.C. § 16(b). In this case, the comment period terminated on May 25, 1999. The United States received one comment during this period on the proposed Final Judgment, and has filed with the Court a Response to the Public Comment ("Response"). The procedures required by the Tunney Act prior to entry of the proposed Final Judgment are completed. The United States has filed a Certificate of Compliance simultaneously with this Motion that states all the requirements of the Tunney Act 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 Final Judgment.
Before entering the 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, and any other considerations bearing upon the adequacy of such judgment;
(2) the impact of entry of such judgment 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 previously filed with the Court on March 15, 1999, the United States has explained the meaning and proper application of the public interest standard under the Tunney Act and incorporates those statements here by reference.
Similarly, in its Response filed with the Court on June 21, 1999, the United States explained how the comment is not relevant to the Court's determination that entry of the proposed Final Judgment is in the public interest. That explanation is incorporated here by reference. There has been no showing that the proposed settlement constitutes an abuse of the Justice Department's discretion or that it is not within the zone of settlements consistent with the public interest.
For the reasons set forth in this Motion, in the Competitive Impact Statement and Plaintiff's Response, 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 proposed Final Judgment will remedy the anticompetitive effects of the challenged transaction by requiring the divestiture of FBO assets at APA, BDL and PSP. Therefore, the United States respectfully requests that the proposed Final Judgment annexed hereto be entered as soon as possible.
Defendants have informed Plaintiff that defendants consent to the entry of the Final Judgment in this matter.
Dated: July 28, 1999
Certificate of Service
I, Mary Ethel Kabisch, hereby certify that, on July 28, 1999, I caused the foregoing document to be served on defendants Signature Flight Support Corporation, AMR Combs, Inc., and AMR Corporation by having a copy mailed, first-class, postage prepaid, to:
William Norfolk, Esq.
Eugene A. Burrus, Esq.