57716 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Notices 

1The notice of resolution is dated September 15, 

2004. This statement does not refer to the date of 

publication in the Federal Register.

Agents, in the past, present, or the future 

against the Agency pertaining to the selection 

of applicants for the position of immigration 

judge during 1994 and 1995. Each Class 

Member wishing to receive monetary relief of 

any kind must first complete the Claim Form 

and Release, which is Exhibit 1 to the 

Settlement Agreement. 

Class Counsel are solely responsible for all 

aspects of the distribution of the monetary 

relief, including determining the distribution 

methodology set forth in Exhibit 7 to the 

Settlement Agreement and (by and through 

the appointed Claims Administrator) the 

determination of relief to be accorded each 

individual. 

Except as specifically stated otherwise in 

the Claim Form and Release, all information 

provided to Class Counsel for administration 

and distribution of the Settlement Fund shall 

be treated as confidential. The confidentiality 

provisions in the Protective Order issued by 

the EEOC AJ in the administrative case will 

continue to govern materials used in the 

mediation, negotiation, and administration of 

the Settlement Agreement. 

Under the Settlement Agreement, class 

counsel has designated the sum of three 

million nine hundred sixty-six thousand six 

hundred sixty-six dollars ($3,966,666) to be 

allocated to a Litigation Fund for attorneys’

fees, costs and expenses out of the Agency’s 

total payment of $11.5 million. In addition to 

attorney fees, this sum covers such items as 

the cost of the services of expert witnesses, 

deposition transcripts, travel, and mediation. 

The Settlement Agreement is subject to 

Final Approval by the EEOC AJ. The 

Settlement Agreement becomes effective 

upon the date that the EEOC AJ issues a 

decision approving the Settlement and all 

appeals have been finally determined or the 

time for filing appeals has expired. Once 

effective, the terms of the Settlement 

Agreement are binding on all Class Members, 

even those who do not seek recovery from 

the Settlement Fund. 

Class Counsel will be responsible for 

notifying Class Members of the EEOC AJ’s 

Final Approval of the Settlement Agreement 

and providing Class Members with the Claim 

Form, Exhibit 1 to the Settlement Agreement, 

necessary to seek monetary relief from the 

Settlement Fund. This Claim Form, and the 

Release therein, must be executed and timely 

submitted in order to receive monetary relief. 

No funds shall be distributed until any 

administrative appeals of the EEOC AJ’s 

Fianl Approval to the EEOC have been fully 

and finally resolved or the time for such 

appeal has passed, and/or the Agency has 

affirmed the Settlement Agreement, and/or 

the Agency’s opportunity to abrogate the 

Settlement Agreement has expired, pursuant 

to part VII of the Settlement Agreement. 

Although the Claims Administrator will 

withhold monies for payments of FICA, 

income and employment taxes (if any), each 

individual receiving an award from the 

Settlement Fund shall be ultimately 

responsible for satisfying all personal tax 

obligations.

Rights of Class Members 

Seek Monetary Relief or Do Nothing 

You may seek monetary relief provided 

you qualify for allocation under the 

distribution formula and timely submit the 

Claim Form and Release. You must submit a 

signed Claim Form and Release to obtain 

monetary relief under the Agreement. Despite 

your eligibility, you may elect to not seek 

monetary relief. 

Object to the Settlement Agreement 

If you object to any terms within the 

Settlement Agreement because you believe 

they benefit only the Class Agents or are 

otherwise not fair, adequate and reasonable 

to the Class as a whole, you must file a 

written petition to vacate the Settlement 

Agreement, postmarked no later than 30 days 

from the date of this notice of resolution.1

The petition should be sent to Administrative 

Judge Richard E. Schneider, Equal 

Employment Opportunity Commission, 

Washington Field Office, 1801 L St., NW., 

Suite 100, Washington, DC 20507–1002.

You must also send a copy of any objection 

to Class Counsel: David Weiser, Kator, Parks, 

& Weiser, P.L.L.C., 812 San Antonio St., Suite 

100, Austin, Texas 78701; and to Agency 

Counsel: Bruce I. Waxman, Chief Counsel, 

Employee/Labor Relations, U.S. Department 

of Justice, Exeuctive Office for Immigration 

Review, Office of the General Counsel, 5107 

Leesburg Pike, Suite 2600, Falls Church, VA 

22041. 

If you do not submit your objection in a 

timely manner, you waive your opportunity 

to present such objection or otherwise 

appeal. Your objection must show proof that 

you are a Class Member, state the basis for 

any objection, and provide documentation to 

support the objection. 

Fairness Hearing 

Pursuant to 29 CFR 1614.204(g)(4), the 

Administrative Judge will hold a hearing to 

determine the fairness, adequacy, and/or 

reasonableness of the Settlement Agreement 

on November 5, 2004, at the Embassy Suites 

Hotels, 1900 Diagnoal Road, Alexandria, VA, 

22314 at 10 a.m. 

If the EEOC AJ grants final approval to this 

Settlement Agreement despite objections or a 

petition to vacate, you will only be permitted 

to appeal the determination of Final 

Approval if you filed an objection or a 

petition to vacate with the EEOC AJ. The 

EEOC AJ will determine the rights of the 

Class Members with respect to the matters 

covered by the Settlement Agreement, and all 

Class Members are bound by the judgment.

[FR Doc. 04–21603 Filed 9–24–04; 8:45 am] 

BILLING CODE 4410–30–M

DEPARTMENT OF JUSTICE

Antitrust Division 

United States v. Syngenta AG, 

AstraZeneca PLC, Koniklijke 

Cooperatie Cosun U.A. and Advanta 

B.V. Competitive Impact Statement, 

Proposed Final Judgment and 

Complaint 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. section 16(b) through (h), that 

a proposed Final Judgment, Hold 

Separate Stipulation and Order, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

Syngenta AG, et al., Civil Case No. 04 

CV–1442. On August 25, 2004, the 

United States filed a Complaint alleging 

that the proposed acquisition by 

Syngenta AG (‘‘Syngenta’’) of Advanta 

B.V. (‘‘Advanta’’), a seed company 

jointly owned by two European 

companies, would violate section 7 of 

the Clayton Act, 15 U.S.C. 18. The 

proposed Final Judgment, filed the same 

time as the Complaint, requires 

Syngenta to divest Advanta’s worldwide sugar beet seed business. Copies of 

the Complaint, proposed Final 

Judgment, Hold Separate Stipulation 

and Order, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice in 

Washington, DC in Suite 215 North, 325 

7th Street, NW., Washington, DC 20530 

(telephone 202/514–2692), and at the 

Clerk’s Office of the U.S. Court for the 

District of Columbia, 333 Constitution 

Avenue, NW., Washington, DC 20001. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register

and filed with the Court. Comments 

should be directed to Roger W. Fones, 

Chief, Transportation, Energy, and 

Agriculture Section, Antitrust Division, 

U.S. Department of Justice, 325 7th 

Street, NW., Suite 500, Washington, DC 

20530 (telephone: 202/307–6351).

J. Robert Kramer, II, 

Director of Operations, Antitrust Division.

Competitive Impact Statement 

Plaintiff United States of America 

(‘‘United States’’), pursuant to section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

Act’’), 15 U.S.C. 16(b)–(h), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding.

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Notices 57717

I. Nature and Purpose of the Proceeding 

On May 11, 2004, Syngenta AG 

(‘‘Syngenta’’), Syngenta Crop Protection 

AG, AstraZeneca Holdings B.V., 

AstraZeneca PLC, Koninklijke 

Vanderhave Groep B.V., and 

Koninklijke Cooperatie Cosun U.A. 

entered into an agreement under which 

Syngenta would purchase all the assets 

of Advanta B.V. (‘‘Advanta’’), a seed 

company jointly owned by AstraZeneca 

Holdings B.V. and Koninklijke 

Vanderhave Groep, B.V. The United 

States filed a civil antitrust Complaint 

on August 25, 2004, seeking to enjoin 

the proposed acquisition. The 

Complaint alleges that the acquisition 

likely would substantially lessen 

competition in the market for sugar beet 

seeds suitable for growing in the United 

States, in violation of section 7 of the 

Clayton Act. As a result of this loss of 

competition, prices of sugar beet seeds 

likely would increase and fewer new or 

improved sugar beet seed varieties 

likely would be developed, to the 

detriment of purchasers of sugar beet 

seeds, sugar beet processors, and 

consumers of sugar beet-based products. 

At the same time the Complaint was 

filed, the United States also filed a 

proposed Final Judgment and Hold 

Separate Stipulation and Order, which 

are designed to eliminate the 

anticompetitive effects of the 

acquisition. Under the proposed Final 

Judgment, which is explained more 

fully below, Syngenta is required divest 

the worldwide sugar beet seed business 

of Advanta. Under the terms of the 

proposed Final Judgment and Hold 

Separate Stipulation and Order, 

Syngenta will take certain steps to 

ensure that Advanta’s sugar beet seed 

business is operated as a competitively 

independent, economically viable, and 

ongoing business concern that remains 

independent and uninfluenced by the 

consummation of the acquisition, and 

that competition is maintained during 

the pendency of the ordered divestiture. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. 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. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. Defendants and the Proposed 

Transaction 

Syngenta is a corporation organized 

and existing under the laws of 

Switzerland, with its principal offices in 

Basel, Switzerland. Syngenta is the 

ultimate parent entity of Syngenta Crop 

Protection AG. Syngenta is engaged in 

the development, production, and sale 

of agricultural products, including 

pesticides and seeds. Syngenta’s total 

sales in 2003 were approximately $6.6 

billion. In 2003, Syngenta’s sales of 

sugar beet seeds in the United States 

were approximately $10 million; its 

global sugar beet seed sales were $99 

million. 

AstraZeneca PLC is a private limited 

company with its headquarters in 

London, England. AstraZeneca PLC is 

the ultimate parent entity of 

AstraZeneca Holdings B.V. Koninklijke 

Cooperatie Cosun U.A. is a cooperative 

with its headquarters in Cosunpark 1, 

the Netherlands. Koninklijke Cooperatie 

Cosun U.A. is the ultimate parent entity 

of Koninklijke Vanderhave Groep B.V. 

Advanta is a company incorporated in 

the Netherlands with its headquarters in 

Kapelle, the Netherlands. AstraZeneca 

Holdings B.V. and Koninklijke 

Vanderhave Groep B.V. each hold 50% 

of the shares of Advanta. Advanta sells 

various kinds of agricultural seeds 

throughout the world, with global sales 

of 444 million euros ($548 million) in 

2003. Advanta sells sugar beet seeds in 

the United States through its business 

unit Interstate Seeds. Advanta also 

markets sugar beet seeds in the United 

States through collaborations with Holly 

Hybrids, Seedex, and Croplan. In 2003, 

Advanta directly and through these 

collaborations had sugar beet seed sales 

of about $7 million in the United States.

Syngenta’s acquisition of Advanta, as 

initially agreed to by Defendants on May 

11, 2004, would lessen competition 

substantially in the market for sugar 

beet seeds suitable for growing in the 

United States. This acquisition is the 

subject of the Complaint and proposed 

Final Judgment filed by the United 

States on August 25, 2004. 

B. The Effects of the Transaction on 

Competition for Sugar Beet Seeds 

Suitable for Growing in the United 

States 

Sugar beet seeds are used by growers 

to produce sugar beets, which in turn 

are sold to sugar beet processors, who 

convert them into sugar for human 

consumption. Sugar beet growers in the 

United States purchased $50 million 

worth of sugar beet seeds in 2003. 

Sugar beets are grown under many 

different climatic and environmental 

conditions throughout the United 

States. These different growing regions 

require sugar beet varieties with 

different characteristics. A sugar beet 

seed company identifies desirable traits 

for each region and breeds those traits 

into new varieties. 

Advanta and Syngenta each have 

invested extensively in sugar beet seed 

research and development programs 

over a number of decades. Syngenta has 

breeding facilities in Longmont, 

Colorado and in Western Europe. 

Advanta also has several breeding 

facilities, all in Europe. Both develop 

sugar beet varieties specifically for the 

unique growing conditions found in 

various regions of the United States. For 

example, a sugar beet seed variety that 

is suitable for cultivation in France is 

not likely, without further development, 

to be suitable or attractive to growers in 

Minnesota or Idaho. The seed 

companies have not been equally 

successful in developing seeds for the 

various growing regions of the United 

States, and they compete to improve 

their sales in each region by developing 

seeds with better disease resistance, 

yield per acre, and sugar content. 

Developing marketable sugar beet 

seeds can take five to ten years. During 

this development period, the seed 

developer will conduct coded 

registration trials in the region where 

the beet is intended to be grown. The 

results of these field trials are used to 

determine which new varieties will be 

submitted to sugar beet processors for 

coded registration trials. Each sugar beet 

processor in the United States annually 

conducts coded registration trials to 

select varieties of sugar beet seeds to 

recommend to the growers in the 

processor’s growing region. These trials 

take two to three years to complete. 

Sugar beet growers typically will select 

for purchase only seed varieties that 

have been tested and recommended by 

the sugar processors to which they 

intend to market their crops. 

Sugar beet seed companies that have 

processor-approved varieties compete 

for sales to growers based upon price 

and characteristics desired by growers, 

for example, traits that lower production 

costs, offer higher yield per acre, or 

provide resistance to diseases and pests 

prevalent in the growers’ geographic 

region. 

Syngenta develops and sells sugar 

beet seeds in the United States under 

the brand name Hilleshog. Syngenta 

accounts for nearly 20% of all the sugar 

beets seed developed and sold in the 

United States. Advanta sells sugar beet 

seeds through its business unit, 

57718 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Notices 

Interstate Seeds, under the brand name 

Vanderhave. Sugar beet seeds bred from 

genetic material developed by Advanta 

are also sold in the United States by 

Holly Hybrids and other companies. 

Advanta-bred sugar beet seed account 

for more than 16% of the seeds sold in 

the United States.

The market in the United States for 

sugar beet seeds suitable for growing in 

the United States is highly concentrated. 

Syngenta and Advanta are two of only 

three significant firms that develop 

sugar beet seeds for cultivation in the 

United States. The market for sugar beet 

seeds suitable for growing in the United 

States will become substantially more 

concentrated if Syngenta acquires 

Advanta. Syngenta’s acquisition of 

Advanta will lessen competition 

substantially and make more likely 

increased prices and a slower pace of 

innovation. 

New entry is not likely to thwart these 

anticompetitive effects. Successful entry 

into the sugar beet seed business is 

difficult, time consuming, and costly. 

Developing a new sugar beet seed 

variety can take five to ten years. 

Completing the trial tests required by a 

sugar beet processing company for 

acceptance on the processor’s approved 

list of varieties can take an additional 

two to three years. 

III. Explanation of the Proposed Final 

Judgment 

The divestiture requirement of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition in sugar beet seeds by 

establishing a new, independent, and 

economically viable competitor. The 

proposed Final Judgment requires 

Syngenta, within 90 days after the filing 

of the Complaint, or 5 days after notice 

of the entry of the Final Judgment by the 

Court, whichever is later, to divest, as a 

viable ongoing business, Advanta’s 

worldwide sugar beet seed business. 

These assets include all tangible and 

intangible assets necessary to run 

Advanta’s worldwide sugar beet seed 

operations, including research and 

development facilities, customer lists 

and contracts, all registered plant 

breeders rights, and licenses. The 

United States may extend the period of 

time available to Syngenta to complete 

the divestiture up to an additional 120 

days. 

The proposed Final Judgment requires 

divestment of Advanta’s worldwide 

sugar beet seed business, including two 

major research facilities located in 

Europe that focus on sugar beet seeds: 

a facility in Rilland-Bath, the 

Netherlands; and a facility in Tienen, 

Belgium. At these facilities, Advanta 

also develops sugar beet seeds with 

characteristics desirable for production 

in the United States, such as beets that 

are resistant to diseases found in the 

U.S., but not in Europe. Advanta then 

contracts with a U.S.-based company to 

grow the varieties of seeds it intends for 

the U.S. market. Requiring the 

divestiture of Advanta’s worldwide 

sugar beet seed business, including 

these European operations, will insure 

that the acquire will have the assets 

necessary to continue to develop sugar 

beet seeds suitable for growing in the 

United States, as well as to produce and 

sell those seeds. 

The assets must be divested in such 

a way as to satisfy the United States in 

its sole discretion that the operations 

can and will be operated by the 

purchaser as a viable, ongoing business 

that can compete effectively in the 

relevant market. Defendants must take 

all reasonable steps necessary to 

accomplish the divestiture quickly and 

shall cooperate with prospective 

purchasers.

In the event that Syngenta does not 

accomplish the divestiture within the 

periods prescribed in the proposed 

Final Judgment, the Final Judgment 

provides that the Court will appoint a 

trustee selected by the United States to 

effect the divestiture. If a trustee is 

appointed, the proposed Final Judgment 

provides that Syngenta will pay all costs 

and expenses of the trustee. The 

trustee’s commission will be structured 

so as to provide an incentive for the 

trustee based on the price obtained and 

the speed with which the divestiture is 

accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and the United States setting 

forth his or her efforts to accomplish the 

divestiture. At the end of six months, if 

the divestiture has not been 

accomplished, the trustee and the 

United States will make 

recommendations to the Court, which 

shall enter such orders as appropriate to 

carry out the purpose of the trust, 

including extending the trust or the 

term of the trustee’s appointment. 

The divestiture provisions of the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition on the market for sugar beet 

seeds suitable for growing in the United 

States. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in Federal Court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against Defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least sixty days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within sixty days of the 

date of publication of this Competitive 

Impact Statement in the Federal 

Register. All comments received during 

this period will be considered by the 

Department of Justice, which remains 

free to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of the 

United States will be filed with the 

Court and published in the Federal 

Register. 

Written comments should be 

submitted to: Roger W. Fones, Chief, 

Transportation, Energy & Agriculture 

Section, Antitrust Division, United 

States Department of Justice, 325 

Seventh Street, NW., Suite 500, 

Washington, DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against Defendants. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against Syngenta’s 

acquisition of Advanta. The United 

Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Notices 57719

1See United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (recognizing it was not the 

court’s duty to settle; rather, the court must only 

answer ‘‘whether the settlement achieved [was] 

within the reaches of the public interest’’). A 

‘‘public interest’’ determination can be made 

properly on the basis of the Competitive Impact 

Statement and Response to Comments filed by the 

Department of Justice pursuant to the APPA. 

Although the APPA authorizes the use of additional 

procedures, 15 U.S.C. 16(f), those procedures are 

discretionary. A court need not invoke any of them 

unless it believes that the comments have raised 

significant issues and that further proceedings 

would aid the court in resolving those issues. See

H.R. Rep. No. 93–1463, 93rd Cong., 2d Sess. 8–9 

(1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538.

2Cf. BNS, 858 F.2d at 463 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree’’); Gillette, 406 F. Supp. at 716 (noting that, 

in this way, the court is constrained to ‘‘look at the 

overall picture not hypercritically, nor with a 

microscope, but with an artist’s reducing glass’’). 

See generally Microsoft, 56 F.3d at 1461 (discussing 

whether ‘‘the remedies [obtained I the decree are] 

so inconsonant with the allegations charged as to 

fall outside of the ‘reaches of the public interest’ ’’).

States is satisfied, however, that the 

divestiture of assets described in the 

proposed Final Judgment will preserve 

competition for the development, 

production, and sale of sugar beet seeds 

suitable for growing in the United 

States. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The APPA requires that proposed 

consent judgments in antitrust cases 

brought by the United States be subject 

to a sixty-day comment period, after 

which the Court shall determine 

whether entry of the proposed Final 

Judgment ‘‘is in the public interest.’’ 15 

U.S.C. 16(e)(1). In making that 

determination, the Court shall consider: 

(A) The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) The impact of entry of such 

judgment upon competition in the 

relevant market or markets, 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)(1)(A) & (B). As the United 

States Court of Appeals for the District 

of Columbia Circuit has held, the APPA 

permits a court to consider, among other 

things, the relationship between the 

remedy secured and the specific 

allegations set forth in the government’s 

complaint, whether the decree is 

sufficiently clear, whether enforcement 

mechanisms are sufficient, and whether 

the decree may positively harm third 

parties. See United States v. Microsoft 

Corp., 56 F.3d 1448, 1448–62 (D.C. Cir. 

1995). 

‘‘Nothing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2). Thus, in 

conducting this inquiry, ‘‘[t]he court is 

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Senator Tunney).1 Rather:

[a]bsent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

. . . carefully consider the explanations of the 

government in the competitive impact 

statement and its responses to comments in 

order to determine whether those 

explanations are reasonable under the 

circumstances.

United States v. Mid-America 

Dairymen, Inc., 1977–1 Trade Cas. 

(CCH) ¶ 61,508, at 71,980 (W.D. Mo. 

1977). 

Accordingly, with respect to the 

adequacy of the relief secured by the 

decree, a court may not ‘‘engage in an 

unrestricted evaluation of what relief 

would best serve the public.’’ United 

States v. BNS, Inc., 858 F.2d 456, 462 

(9th Cir. 1988) (citing United States v. 

Bechtel Corp., 648 F.2d 660, 666 (9th 

Cir. 1981)); see also Microsoft, 56 F.3d 

at 1460–62. Courts have held that:

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree.

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).2

The proposed Final Judgment, 

therefore, should not be reviewed under 

a standard of whether it is certain to 

eliminate every anticompetitive effect of 

a particular practice or whether it 

mandates certainly of free competition 

in the future. Court approval of a final 

judgment requires a standard more 

flexible and less strict than the standard 

required for a finding of liability. ‘‘[A] 

proposed decree must be approved even 

if it falls short of the remedy the court 

would impose on its own, as long as it 

falls within the range of acceptability or 

is ‘within the reaches of public 

interest.’ ’’ United States v. AT&T, 552 

F. Supp. 131, 151 (D.D.C. 1982) 

(citations omitted) (quoting Gillette, 406 

F. Supp. at 716), aff’d sub nom. 

Maryland v. United States, 460 U.S. 

1001 (1983); see also United States v. 

Alcan Aluminum Ltd., 605 F. Supp. 619, 

622 (W.D. Ky. 1985) (approving the 

consent decree even though the court 

would have imposed a greater remedy). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

a case in the first place,’’ it follows that 

‘‘the court is only authorized to review 

the decree itself,’’ and not to ‘‘effectively 

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. 

VIII. Determinative Documents

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. Dated: 

September 14, 2004.

Respectfully submitted,

‘‘/s/’’ llllllllllllllllll

Angela L. Hughes, D.C. Bar # 303420.

Final Judgment 

Whereas, plaintiff, United States of 

America, filed its Complaint on August 

25, 2004, plaintiff and defendants, by 

their respective attorneys, have 

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 against or admission by any 

party regarding any issue of fact or law; 

And whereas, the defendants agree to 

be bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

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And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of defendant Advanta’s 

worldwide sugar beet seed business to 

assure that competition is not 

substantially lessened;

And whereas, plaintiff requires 

defendant Syngenta to make a certain 

divestiture for the purpose of remedying 

the loss of competition alleged in the 

Complaint; 

And whereas, the defendants have 

represented to the United States that the 

divestiture required below can and will 

be made and that the defendants will 

later raise no claim of hardship or 

difficulty as grounds for asking the 

Court to modify any of the divestiture 

provisions contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is Ordered, 

Adjudged and Decreed:

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against the defendants under section 7 

of the Clayton Act, as amended, 15 

U.S.C. 18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ or ‘‘Acquirers’’ means 

Fox Paine & Company, LLC or any 

alternative entity or entities to whom 

the defendant Syngenta divests 

Advanta’s Sugar Beet Seed Business. 

B. ‘‘Advanta’’ means Advanta B.V., a 

company incorporated in The 

Netherlands with its headquarters in 

Kapelle, The Netherlands, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships, joint ventures, and their 

directors, officers, managers, agents, and 

employees. 

C. ‘‘Advanta’s Sugar Beet Seed 

Business’’ means Advanta’s business 

engaged in the research, development, 

licensing (as licensor or as licensee), 

production or sale of agricultural sugar 

beet seeds anywhere in the world, 

including the business currently 

conducted through Interstate Seeds, a 

business unit of Advanta USA, Inc., and 

also includes: 

1. The assets set forth in Schedule A; 

2. All tangible assets other than those 

listed in Schedule A that are used in 

connection with Advanta’s worldwide 

sugar beet seed operations, including 

but not limited to all research and 

development activities; all 

manufacturing and agricultural 

equipment, tooling and fixed assets, 

personal property, sugar beet seed 

inventory, germplasm, materials, 

supplies, and other tangible property; 

all licenses, permits, and authorizations 

issued by any governmental 

organization relating to Advanta’s 

world-wide sugar beet seed operations; 

all contracts, agreements, leases, 

commitments, certifications, and 

understandings relating to Advanta’s 

worldwide sugar beet seed operations, 

including supply and distribution 

agreements; all customer lists, contracts, 

accounts, and credit records; all 

performance records and all other 

records relating to Advanta’s research, 

development, licensing, production or 

sale of sugar beet seed worldwide, 

provided, however, that the Advanta 

sugar beet seed assets to be divested 

shall not include Advanta facilities or 

assets that are predominantly used: (1) 

In connection with operations related to 

Advanta’s worldwide non-sugar beet 

seed activities; or (2) in connection with 

the carrying out of Advanta’s companywide administrative functions; and

3. All intangible assets that are 

utilized in connection with Advanta’s 

worldwide sugar beet seed operations, 

including but not limited to all patents, 

registered plant breeders’ rights and 

trademarks; licenses and sublicenses; 

trade names; goodwill; service marks; 

service names; technical information; 

know-how; trade secrets; drawings; 

blueprints; designs; design protocols; 

specifications for materials; 

specifications for parts and devices; 

safety procedures for the handling of 

materials and substances; all research 

data concerning historic and current 

research and development; quality 

assurance and control procedures; 

design tools and simulation capability; 

all manuals and technical information 

Advanta provides to its employees, 

customers, suppliers, agents or 

licensees; and all research data 

concerning historic and current research 

and development efforts, including but 

not limited to designs of experiments 

and the results of successful and 

unsuccessful designs and experiments. 

D. ‘‘AstraZeneca’’ means AstraZeneca 

PLC, a private limited company with its 

headquarters in London, England, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures (including AstraZeneca 

Holdings, a joint owner of Advanta) and 

their directors, officers, managers, 

agents, and employees. 

E. ‘‘The defendants’’ means (1) 

Advanta; (2) AstraZenece; (3) 

Koninklijke; and (4) Syngenta. 

F. ‘‘Fox Paine’’ means Fox Paine & 

Company, LLC a corporation with 

headquarters in Foster City, California, 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, joint ventures, 

and their directors, officers, managers, 

agents, and employees. 

G. ‘‘Koninklijke’’ means Koninklijke 

Cooperatie Cosun U.A., a co-operative 

with its headquarters in Cosunpark 1, 

The Netherlands, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, joint 

ventures (including Koninklijke 

Vanderhave Groep B.V., a joint owner of 

Advanta), and their directors, officers, 

managers, agents, and employees. 

H. ‘‘Syngenta’’ means Syngenta AG, a 

company incorporated in Switzerland, 

with headquarters in Basel, Switzerland, 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, joint ventures, 

and their directors, officers, managers, 

agents, and employees. 

III. Applicability 

A. This Final Judgment applies to the 

defendants, as defined above, and all 

other persons in active concert or 

participation with any of them who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

B. The defendants shall require, as a 

condition of the sale or other 

disposition of all or substantially all of 

their assets or of lesser business units or 

assets that include Advanta’s Sugar Beet 

Seed Business, that the purchaser agree 

to be bound by the provisions of this 

Final Judgment, provided, however, that 

Syngenta need not obtain agreement 

from the Acquirer(s).

IV. Divestiture 

A. Defendant Syngenta is ordered and 

directed, within ninety (90) calendar 

days after the date of filing of the 

Complaint in this matter, or five (5) 

calendar days after notice of the entry of 

this Final Judgment by the Court, 

whichever is later, to divest Advanta’s 

Sugar Beet Seed Business in a manner 

consistent with this Final Judgment to 

an Acquirer acceptable to the United 

States in its sole discretion, except that 

as to the patents listed in Schedule A 

2(b), defendant Syngenta will grant to 

the Acquirer an exclusive, royalty-free 

license for use in connection with sugar 

beets for the life of the patient plus any 

extensions. The United States, in its sole 

discretion, may agree to one or more 

extensions of this time period, not to 

exceed one hundred and twenty (120) 

calendar days in total, and shall notify 

the Court in each such circumstance. 

Defendant Syngenta agrees to use its 

best efforts to divest the Advanta Sugar 

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Beet Seed Business as expeditiously as 

possible. 

B. In the event that the United States 

objects to Fox Paine as the Acquirer of 

Advanta’s Sugar Beet Seed Business, or 

if for any other reason defendant 

Syngenta does not divest Advanta’s 

Sugar Beet Seed Business to Fox Paine, 

defendant Syngenta promptly shall 

make known, by usual and customary 

means, the availability of Advanta’s 

Sugar Beet Seed Business. Defendant 

Syngenta shall inform any person 

making inquiry regarding a possible 

purchase of Advanta’s Sugar Beet Seed 

Business that it is being divested 

pursuant to this Final Judgment and 

provide that person with a copy of this 

Final Judgment. Syngenta shall offer to 

furnish to each prospective Acquirer, 

subject to customary confidentiality 

assurances, all information and 

documents relating to Advanta’s Sugar 

Beet Seed Business customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client or workproduct privileges. Syngenta shall make 

available such information to the United 

States at the same time that such 

information is made available to any 

other person. 

C. Syngenta shall provide the 

Acquirer of Advanta’s Sugar Beet Seed 

Business and the United States 

information relating to the personnel 

involved in the research, development, 

licensing, production, or sale of 

Advanta’s sugar beet seeds anywhere in 

the world to enable the Acquirer to 

make offers of employment to these 

individuals. Syngenta will not interfere 

with any negotiations by the Acquirer to 

employ any of the defendants’

employees whose responsibilities 

wholly or predominantly include the 

research, development, licensing, 

production, or sale of the products of 

Advanta’s Sugar Beet Seed Business. 

D. Syngenta shall permit prospective 

Acquirers of Advanta’s Sugar Beet Seed 

Business to have reasonable access to 

personnel and to make inspections of 

the physical facilities of Advanta’s 

Sugar Beet Seed Business; access to any 

and all environmental, zoning, and 

other permit documents and 

information; and access to any and all 

financial, operational, or other 

documents and information customarily 

provided as part of a due diligence 

process. 

E. Syngenta shall warrant to the 

Acquirer of Advanta’s Sugar Beet Seed 

Business that each asset will be 

operational on the date of divestiture. 

F. The defendants shall not take any 

action that will impede in any way the 

operation or divestiture of Advanta’s 

Sugar Beet Seed Business.

G. Syngenta shall warrant to the 

Acquirer of Advanta’s Sugar Beet Seed 

Business that there are no material 

defects in the environmental, zoning, or 

other permits pertaining to the 

operation of Advanta’s Sugar Beet Seed 

Business, and that following the sale of 

Advanta’s Sugar Beet Seed Business, the 

defendants will not undertake, directly 

or indirectly, any challenges to the 

environmental, zoning, or other permits 

relating to the operation of Advanta’s 

Sugar Beet Seed Business. 

H. Unless the United States otherwise 

consents in writing, the divestiture 

pursuant to section IV, or by trustee 

appointed pursuant to section V, of this 

Final Judgment, shall include all of 

Advanta’s Sugar Beet Seed Business, 

and shall be accomplished in such a 

way as to satisfy the United States, in its 

sole discretion, that Advanta’s Sugar 

Beet Seed Business can and will be used 

by the Acquirer as part of a viable, 

ongoing business, engaged in 

researching, developing, licensing, 

producing and selling sugar beet seeds 

in the United States. Divestiture of 

Advanta’s Sugar Beet Seed Business 

may be made to one or more Acquirers, 

provided that it is demonstrated to the 

sole satisfaction of the United States 

that the divested Sugar Beet Seed 

Business will remain viable and that 

divestiture of that business will remedy 

the competitive harm alleged in the 

Complaint. The divestiture, whether 

pursuant to section IV or section V of 

this Final Judgment: 

1. Shall be made to an Acquirer or 

Acquirers that, in the United State’s sole 

judgment, has the managerial intent and 

capability (including the necessary 

operational, technical and financial 

capability) to compete effectively in the 

research, development, licensing, 

production, and sale of sugar beet seeds 

in the United States; and 

2. Shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, that none of the terms of any 

agreement between an Acquirer or 

Acquirers and the defendants give the 

defendants the ability unreasonably to 

raise the Acquirer’s costs, to lower the 

Acquirer’s efficiency, or otherwise to 

interfere in the ability of the Acquirer to 

compete effectively. 

V. Appointment of Trustee 

A. If defendant Syngenta has not 

divested Advanta’s Sugar Beet Seed 

Business within the time period 

specified in section IV(A), Syngenta 

shall notify the United States of that fact 

in writing. Upon application of the 

United States, which shall first have 

consulted with the European 

Commission, the Court shall appoint a 

trustee selected by the United States, 

and approved by the Court to effect the 

divestiture of Advanta’s Sugar Beet Seed 

Business. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell Advanta’s Sugar 

Beet Seed Business. The trustee shall 

have the power and authority to 

accomplish the divestiture to an 

Acquirer acceptable to the United States 

in its sole discretion at such price and 

on such terms as are then obtainable 

upon reasonable effort by the trustee, 

subject to the provisions of section IV, 

V, and VI of this Final Judgment, and 

shall have such other powers as this 

Court deems appropriate. Subject to 

section V(D) of this Final Judgment, the 

trustee may hire at the cost and expense 

of defendant Syngenta any investment 

bankers, attorneys, or other agents, who 

shall be solely accountable to the 

trustee, reasonably necessary in the 

trustee’s judgment to assist in the 

divestiture.

C. The defendants shall not object to 

a sale of Advanta’s Sugar Beet Seed 

Business by the trustee on any ground 

other than the trustee’s malfeasance. 

Any such objections by the defendants 

must be conveyed in writing to the 

United States and the trustee within ten 

(10) calendar days after the trustee has 

provided the notice required under 

section VI. 

D. The trustee shall serve at the cost 

and expense of Syngenta, on such terms 

and conditions as the United States 

approves, and shall account for all 

monies derived from the sale of 

Advanta’s Sugar Beet Seed Business and 

for all costs and expenses so incurred. 

After approval by the Court of the 

trustee’s accounting, including fees for 

its services and those of any 

professionals and agents retained by the 

trustee, all remaining money shall be 

paid Syngenta and the trust shall then 

be terminated. The compensation of the 

trustee and any professionals and agents 

retained by the trustee shall be 

reasonable in light of the value of 

Advanta’s Sugar Beet Seed Business and 

based on a fee arrangement providing 

the trustee with an incentive based on 

the price and terms of the divestiture 

and the speed with which it is 

accomplished, but timeliness is 

paramount. 

E. Defendants shall use their best 

efforts to assist the trustee in 

accomplishing the required divestiture. 

The trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the trustee shall 

have full and complete access to the 

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personnel, books, records, and facilities 

of Advanta’s Sugar Beet Seed Business, 

and the defendants shall develop 

financial and other information relevant 

to such business as the trustee may 

reasonably request, subject to reasonable 

protection for trade secret or other 

confidential research, development, or 

commercial information. The 

defendants shall take no action to 

interfere with or to impede the trustee’s 

accomplishment of the divestiture. 

F. After its appointment, the trustee 

shall file monthly reports with the 

United States and the Court setting forth 

the trustee’s efforts to accomplish the 

divestiture ordered under this Final 

Judgment. To the extent such reports 

contain information that the trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. Such reports shall include the 

name, address, and telephone number of 

each person who, during the preceding 

month, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring, any interest in Advanta’s 

Sugar Beet Seed Business and shall 

describe in detail each contact with any 

such person. The trustee shall maintain 

full records of all efforts made to divest 

Advanta’s Sugar Beet Seed Business. 

G. If the trustee has not accomplished 

such divestiture within six months after 

its appointment, the trustee shall 

promptly file with the Court a report 

setting forth (1) The trustee’s efforts to 

accomplish the required divestiture; (2) 

the reasons, in the trustee’s judgment, 

why the required divestiture has not 

been accomplished; and (3) the trustee’s 

recommendations. To the extent such 

reports contain information that the 

trustee deems confidential, such reports 

shall not be filed in the public docket 

of the Court. The trustee shall at the 

same time furnish such report to the 

United States who shall have the right 

to make additional recommendations 

consistent with the purpose of the trust. 

The Court thereafter shall enter such 

orders as it shall deem appropriate to 

carry out the purpose of the Final 

Judgment, which may, if necessary, 

include, without limitation, extending 

the trust and the term of the trustee’s 

appointment by a period requested by 

the United States.

VI. Notice of Proposed Divestiture 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, defendant 

Syngenta or the trustee, whichever is 

then responsible for effecting the 

divestiture required herein, shall notify 

the United States of any proposed 

divestiture required by section IV or V 

of this Final Judgment. If the trustee is 

responsible, it shall similarly notify 

Syngenta. The notice shall set forth the 

details of the proposed divestiture and 

list the name, address, and telephone 

number of each person not previously 

identified who offered or expressed an 

interest in or desire to acquire any 

ownership interest in Advanta’s Sugar 

Beet Seed Business, together with full 

details of the same. 

B. Within fifteen (15) calendar days of 

receipt by the United States of such 

notice, the United States may request 

from the defendants, the proposed 

Acquirer, any other third party, or the 

trustee if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer and 

any other potential Acquirer. The 

defendants and the trustee shall furnish 

any additional information requested 

within fifteen (15) calendar days of the 

receipt of the request, unless the parties 

shall otherwise agree. 

C. Within thirty (30) calendar days 

after receipt of the notice or within 

twenty (20) calendar days after the 

United States has been provided the 

additional information requested from 

the defendants, the proposed Acquirer, 

any third party, and the trustee, 

whichever is later, the United States 

shall provide written notice to 

defendant Syngenta and the trustee, if 

there is one, stating whether or not it 

objects to the proposed divestiture. If 

the United States provides written 

notice that it does not object, the 

divestiture may be consummated, 

subject only to defendants’ limited right 

to object to the sale under section V(C) 

of this Final Judgment. Absent written 

notice that the United States does not 

object to the proposed Acquirer or upon 

objection by the United States, a 

divestiture proposed under section IV or 

section V shall not be consummated. 

Upon objection by the defendants under 

section V(C), a divestiture proposed 

under section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

The defendants shall not finance all 

or any part of any purchase made 

pursuant to section IV or V of this Final 

Judgment. 

VIII. Hold Separate 

Until the divestiture required by this 

Final Judgment has been accomplished, 

the defendants shall take all steps 

necessary to comply with the Hold 

Separate Stipulation and Order entered 

by this Court. The defendants shall take 

no action that would jeopardize the 

divestiture order by this Court. 

IX. Affidavits

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestiture has 

been completed under section IV or V, 

the defendants shall deliver to the 

United States an affidavit that describes 

the fact and manner of its compliance 

with section IV or V of this Final 

Judgment. Each such affidavit shall 

include the name, address and 

telephone number of each person who, 

during the preceding thirty days, made 

an offer to acquire, expressed an interest 

in acquiring, entered into negotiations 

to acquire, or was contacted or made an 

inquiry about acquiring, any interest in 

Advanta’s Sugar Beet Seed Business, 

and shall describe in detail each contact 

with any such person during that 

period. Each such affidavit shall also 

include a description of the efforts 

Syngenta has taken to solicit buyers for 

Advanta’s Sugar Beet Seed Business, 

and to provide required information to 

any prospective Acquirer, including the 

limitations, if any, on such information. 

Assuming the information set forth in 

the affidavit is true and complete, any 

objection by the United States to 

information provided by the defendants, 

including limitations on the 

information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, the defendants shall deliver to 

the United States an affidavit that 

describes in reasonable detail all actions 

the defendants have taken and all steps 

the defendants have implemented on an 

ongoing basis to comply with section 

VIII of this Final Judgment. The 

defendants shall deliver to the United 

States an affidavit describing any 

changes to the efforts and actions 

outlined in the defendants’ earlier 

affidavits filed pursuant to this section 

within fifteen (15) calendar days after 

the change is implemented. 

C. Defendant Syngenta shall keep all 

records of all efforts made to preserve 

Advanta’s Sugar Beet Seed Business and 

to divest Advanta’s Sugar Beet Seed 

Business until one year after such 

divestiture has been completed. 

X. Compliance Inspections 

A. For purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

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duly authorized representatives of the 

United States Department of Justice, 

including consultants and other persons 

retained by the United States, shall, 

upon written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, and on 

reasonable notice to the defendants, be 

permitted: 

1. Access during the defendants’

office hours to inspect and copy, or at 

the United States’ option, to require the 

defendants to provide copies of, all 

books, ledgers, accounts, records and 

documents in the possession, custody, 

or control of the defendants, relating to 

any matters contained in this Final 

Judgment; and 

2. To interview, either informally or 

on the record, the defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by the 

defendants. 

B. Upon the written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, the defendants 

shall submit written reports, under oath 

if requested, relating to any of the 

matters contained in this Final 

Judgment as may be requested.

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), 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 the 

defendants to the United States, the 

defendants represent and identify in 

writing the material in any such 

information or documents to which a 

claim of protection may be asserted 

under Rule 26(c)(7) of the Federal Rules 

of Civil Procedure, and the 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 the United 

States shall give the defendants ten (10) 

calendar days notice prior to divulging 

such material in any legal proceeding 

(other than a grand jury proceeding). 

XI. No Reacquisition 

Defendants Syngenta and Advanta 

may not reacquire any part of Advanta’s 

Sugar Beet Seed Business during the 

term of this Final Judgment. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

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 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

Public interest.

Date:

Court approval subject to procedures of the 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16.

lllllllllllllllllllll

United States District Judge

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BILLING CODE 4410–11–C


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Certificate of Service 

I hereby certify that I have caused a 

copy of the foregoing Complaint, 

proposed final Judgment, and Hold 

Separate Stipulation and Order to be 

served on counsel for defendants in this 

matter in the manner set forth below: 

By first class mail, postage prepaid:

Counsel for Defendant Syngenta AG:

Kenneth S. Prince, Esquire, Shearman & 

Sterling LLP, 599 Lexington Avenue, 

New York, NY 10022–6069.

Counsel for Defendants AstraZeneca plc, 

Koninklijke Cooperatie Cosun U.A., and 

Advanta B.V.:

Paul W. Bartel, II, Davis Polk & Wardwell, 

450 Lexington Avenue. New York, NY 

10017.

lllllllllllllllllllll

Angela L. Hughes, 

Member of the DC Bar, #303420, Antitrust 

Division, U.S. Department of Justice, 325 

Seventh Street, NW., Suite 500 Washington, 

DC 20530, (202) 307–6410, (202) 307–2784 

(Fax).

Complaint 

The United States of America, acting 

under direction of the Attorney General 

of the United States, brings this civil 

action to obtain equitable relief against 

the defendants and complains and 

alleges as follows: 

1 . On May 11, 2004, Syngenta Crop 

Protection AG, Syngenta AG 

(‘‘Syngenta’’), AstraZeneca Holdings 

B.V., AstraZeneca PLC Koninklijke 

Vanderhave Groep B.V., and 

Koninklijke Cooperatie Cosun U.A. 

entered into an agreement under which 

Syngenta would purchase all the assets 

of Advanta B.V. (‘‘Advanta’’), a seed 

company jointly owned by AstraZeneca 

Holdings B.V. and Koninklijke 

Vanderhave Groep, V.B. The United 

States seeks to enjoin this transaction 

because it would significantly increase 

Syngenta’s share of the highly 

concentrated market for sugar beet seeds 

in the United States, substantially 

lessening competition in that market. 

2. Syngenta and Advanta are two of 

only three companies that develop 

virtually all of the sugar beet seeds sold 

in the United States. With Advanta 

eliminated as an independent 

competitor, competition for the 

development of new, improved varieties 

of sugar beets seeds will be reduced and 

anticompetitive coordination between 

the remaining two significant sugar beet 

seed companies will become more 

likely. 

3. If Syngenta acquires Advanta, fewer 

new or improved varieties of sugar beet 

seeds are likely to be developed, or will 

be developed more slowly, and prices of 

sugar beet seeds are likely to increase. 

As a result, purchasers of sugar beet 

seeds and ultimate consumers of sugar 

beets will be harmed. The proposed 

acquisition therefore violates section 7 

of the Clayton Act, as amended, 15 

U.S.C. 18.

I. Jurisdiction and Venue 

4. This Complaint is filed and this 

action is instituted under section 15 of 

the Clayton Act, 15 U.S.C. 25, in order 

to prevent and restrain the defendants 

from violating section 7 of the Clayton 

Act, 15 U.S.C. 18. 

5. Defendants are engaged in the 

development, production, and sale of 

agricultural seeds, including sugar beet 

seeds, in the flow of interstate 

commerce. The defendants’ activities in 

the development, production, and sale 

of agricultural seeds, including sugar 

beet seeds, substantially affect interstate 

commerce. The Court has subject matter 

jurisdiction over this action. 28 U.S.C. 

1331, 1337(a) and 1345. 

6. The defendants have consented to 

personal jurisdiction and venue in this 

judicial district. 

II. The Defendants 

7. Syngenta is a corporation organized 

and existing under the laws of 

Switzerland, with its principal offices in 

Basel, Switzerland. Through its 

subsidiary, Syngenta Crop Protection 

AG, Syngenta is engaged in the 

manufacture and sale of agriculturerelated products, including crop 

protection products and seeds. Syngenta 

is the third largest agricultural seed 

company in the world, with global seed 

sales of $1 billion in 2003. In 2003, 

Syngenta’s sales of sugar beet seeds in 

the United States, which are marketed 

under the Hilleshog brand, were 

approximately $10 million. 

8. Advanta is a company incorporated 

in The Netherlands with its 

headquarters in Kapelle, The 

Netherlands. Advanta is the fifth-largest 

agricultural seed company in the world. 

Advanta sells its sugar beet seeds in the 

United States through its business unit 

Interstate Seeds. Advanta-bred sugar 

beet seeds are also marketed in the 

United States through collaborations 

with Holly Hybrids, Seedex, and 

Croplan. In 2003, Advanta, directly and 

through these collaborations, had sugar 

beet seed sales of about $7 million in 

the United States. 

9. AstraZeneca PLC is a private 

limited company with its headquarters 

in London, England. AstraZeneca PLC is 

the ultimate parent entity of 

AstraZeneca Holdings B.V., which holds 

50% of the shares of Advanta. 

10. Koninklijke Cooperatie Cosun 

U.A. is a co-operative with its 

headquarters in Cosunpark 1, the 

Netherlands. Koninklijke Cooperatie 

Cosun U.A. is the ultimate parent entity 

of Koninklijke Vanderhave Groep B.V., 

which holds 50% of the shares of 

Advanta. 

III. Trade and Commerce 

11. Sugar beet seeds are used by 

growers to produce sugar beets, which 

in turn are sold to sugar beet processors, 

who convert them into sugar for human 

consumption. Sugar beet growers in the 

United States purchased $50 million 

worth of sugar beet seeds in 2003. 

12. Sugar beets are grown under many 

different climatic and environmental 

conditions throughout the United 

States. These different growing regions 

require sugar beet varieties with 

different characteristics. A sugar beet 

seed company identifies desirable traits 

for each region and breeds those traits 

into new varieties. 

13. Advanta and Syngenta each have 

invested extensively in sugar beet seed 

research and breeding programs over a 

number of decades. Syngenta has 

breeding facilities in Longmont, 

Colorado and in Western Europe. 

Advanta also has several breeding 

facilities, all in Europe. Both develop 

sugar beet varieties specifically for the 

unique growing conditions found in 

various regions of the United States. For 

example, a sugar beet seed variety that 

is suitable for cultivation in France is 

not likely, without further breeding, to 

be suitable or attractive to growers in 

Minnesota or Idaho. The seed 

companies have not been equally 

successful in developing seeds for the 

various growing regions of the United 

States, and they compete to improve 

their sales in each region by further 

development. 

14. Developing marketable sugar beet 

seeds can take five to ten years. During 

this development period, the seed 

developer will conduct field trials in the 

region where the beet is intended to be 

grown. The results of these field trials 

are used to determine which new 

varieties will be submitted to sugar beet 

processors for coded registration trials. 

15. Each sugar beet processor in the 

United States annually conducts trials 

to select varieties of sugar beet seeds to 

recommend to the growers in the 

processor’s growing region. These trials 

take two to four years to complete. 

Sugar beet growers typically will only 

select for purchase seed varieties that 

have been tested and approved by the 

sugar processors to which they intend to 

market their crops. 

16. Sugar beet seed companies that 

have processor-approved varieties 

compete for sales to growers based upon 

57736 Federal Register / Vol. 69, No. 186 / Monday, September 27, 2004 / Notices 

price and characteristics desired by 

growers—for example, traits that lower 

production costs, offer higher yield per 

acre or provide resistance to diseases 

and pests prevalent in the growers’

geographic region.

IV. The Relevant Markets 

17. A small but significant increase in 

the price of sugar beet seeds would not 

cause growers of sugar beets in the 

United States to shift to other crops and 

use sufficiently fewer sugar beet seeds 

so as to make such a price increase 

unprofitable. Accordingly, sugar beet 

seeds suitable for growing in the United 

States is a line of commerce and a 

relevant product market within the 

meaning of Section 7 of the Clayton Act. 

The United states is a relevant 

geographic market within the meaning 

of Section 7 of the Clayton Act. 

V. Anticompetitive Effects 

18. The market for sugar beet seeds 

suitable for growing in the United States 

is highly concentrated. Only three major 

companies—Syngenta, Advanta, and 

one other—breed sugar beet seeds for 

cultivation in the United States. 

19. Syngenta-developed sugar beet 

seeds account for nearly 20% of all the 

sugar beet seeds sold in the United 

States. 

20. Advanta-developed sugar beet 

seeds account for more than 16% of the 

sugar beet seeds sold in the United 

States. 

21. Purchasers of sugar beet seeds 

have benefited from competition 

between Syngenta and Advanta through 

lower prices and improved products. 

22. The sugar beet seed market in the 

United States will become substantially 

more concentrated if Syngenta acquires 

Advanta. The number of significant 

sugar beet seed developers will be 

reduced from three to two. Using a 

measure of market concentration called 

the Herfindahl-Hirschman Index 

(‘‘HHI’’) (defined and explained in 

appendix A), the proposed transaction 

will increase the HHI in sugar beet seeds 

by more than 600 points to a postacquisition level of over 5000. 

23. The proposed transaction will 

substantially lessen competition for the 

research and development of sugar beet 

seeds suitable for cultivation in the 

United States. With only two major 

companies competing to develop new 

and better seeds, less innovation is 

likely. 

24. The proposed transaction would 

make it more likely that the two 

remaining major seed companies will 

engage in anticompetitive coordination 

to increase prices or reduce production. 

VI. Entry 

25. Successful entry would not be 

timely, likely, or sufficient to thwart 

these anticompetitive effects. 

26. Developing a new sugar beet seed 

variety takes five to ten years. 

Completing the trial tests required by 

sugar beet processing companies can 

take two to three additional years. 

VII. Violation Alleged 

27. The effect of Syngenta’s proposed 

acquisition of Advanta may be to lessen 

competition substantially and tend to 

create a monopoly in interstate trade 

and commerce in violation of Section 7 

of the Clayton Act. 

28. Unless restrainted, the transaction 

likely will have the following effects, 

among others: 

a. Competition generally in sugar beet 

seeds suitable for growing in the United 

States will be substantially lessened; 

b. Actual competition between 

Syngenta and Advanta will be 

eliminated; 

c. Innovation in development of sugar 

beet seeds will be reduced; and 

d. Prices for sugar beet seeds will 

increase. 

29. Unless prevented, the acquisition 

of Advanta by Syngenta would violate 

section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18. 

VIII. Requested Relief 

Wherefore, Plaintiff requests: 

1. That the proposed acquisition by 

Syngenta of Advanta be adjudged and 

decreed to be unlawful and to violate 

section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18; 

2. That defendants and all persons 

acting on their behalf be permanently 

enjoined from and restrained from 

carrying out the agreement dated May 

11, 2004, or from entering into or 

carrying out any contract, agreement, 

understanding, or plan, the effect of 

which would be to combine the 

businesses or assets of Syngenta and 

Advanta; 

3. That plaintiff be awarded its costs 

of this action; and 

4. That plaintiff have such other relief 

as the Court may deem just and proper.

Dated: August 25, 2004.

Respectfully submitted,

R. Hewitt Pate (DC Bar #473598) 

Assistant Attorney General.

J. Bruce McDonald 

Deputy Assistant Attorney General.

Dorothy B. Fountain 

Deputy Director of Operations and Civil 

Enforcement.

Roger W. Fones (DC Bar #303255) 

Chief, Transportation, Energy & Agriculture 

Section.

Donna N. Kooperstein 

Assistant Chief, Transportation, Energy & 

Agriculture Section.

Angela L. Hughes (DC Bar #303420)

Jill Ptacek

J. David McDowell 

Trial Attorneys, United States Department of 

Justice, Antitrust Division, Transportation, 

Energy & Agriculture Section, 325 7th 

Street, NW., Suite 500, Washington, DC 

20530 Telephone: (202) 307–6410, 

Facsimile: (202) 307–2784.

Appendix A—Definition of HHI 

The term ‘‘HHI’’ means the 

Herfindahl-Hirschman Index, a 

commonly accepted measure of market 

concentration. The HHI is calculated by 

squaring the market share of each firm 

competing in the market and then 

summing the resulting numbers. For 

example, for a market consisting of four 

firms with shares of 30, 30, 20, and 20 

percent, the HHI is 2,600 (30 2 + 30 2 + 

20 2 + 20 2 = 2,600). The HHI takes into 

account the relative size and 

distribution of the firms in a market. It 

approaches zero when a market is 

occupied by a large number of firms of 

relatively equal size and reaches its 

maximum 10,000 when a market is 

controlled by a single firm. The HHI 

increases both as the number of firms in 

the market decreases and as the 

disparity in size between those firms 

increases. 

Markets in which the HHI is between 

1000 and 1800 are considered to be 

moderately concentrated, and markets 

in which the HHI is in excess of 1800 

points are considered to be highly 

concentrated. Transactions that increase 

the HHI by more than 100 points in 

highly concentrated markets 

presumptively raise significant antitrust 

concerns under the Department of 

Justice and Federal Trade Commission 

1992 Horizontal Merger Guidelines. 

[FR Doc. 04–21548 Filed 9–24–04; 8:45 am] 

BILLING CODE 4410–11–M

DEPARTMENT OF LABOR

Office of the Secretary 

Proposed Collection; Comment 

Request

ACTION: Notice.

SUMMARY: The Department of Labor, as 

part of its continuing effort to reduce 

paperwork and respondent burden 

conducts a pre-clearance consultation 

program to provide the general public 

and Federal agencies with an 

opportunity to comment on proposed 

and/or continuing collections of 

information in accordance with the