Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 9929 

Public Safety Officers’ Disability 

Benefits. 

The Department of Justice, Office of 

Justice Programs, Bureau of Justice 

Assistance, will be submitting the 

following information collection request 

for review and clearance in accordance 

with the Paperwork Reduction Act of 

1995. This proposed information 

collection is published to obtain 

comments from the public and affected 

agencies. Comments are encouraged and 

will be accepted for ‘‘sixty days’’ until 

May 3, 2010. If you have additional 

comments, suggestions, or need a copy 

of the proposed information collection 

instrument with instructions or 

additional information, please contact 

M. Berry at 202–616–6500/1–866–268– 

0079, Bureau of Justice Assistance, 

Office of Justice Programs, U.S. 

Department of Justice, 810 7th Street, 

NW., Washington, DC 20531 via 

facsimile at 202–305–1367 or by e-mail 

at M.A.Berry@ojp.usdoj.gov. 

Written comments and suggestions 

from the public and affected agencies 

concerning the proposed collection of 

information are encouraged. Your 

comments should address one or more 

of the following four points: 

—Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

—Evaluate the accuracy of the agency’s 

estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

— Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

—Minimize the burden of the collection 

of information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms 

of information technology, e.g., 

permitting electronic submission of 

responses. 

Overview of this information 

collection: 

(1) Type of information collection: 

Extension of currently approved 

collection. 

(2) The title of the form/collection: 

OJP FORM 3650/7 Public Safety Officers 

Disability Benefits. 

(3) The agency form number, if any, 

and the applicable component of the 

Department sponsoring the collection: 

None. Bureau of Justice Assistance, 

Office of Justice Programs, United States 

Department of Justice. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: 

Primary: Dependents of public safety 

officers who were killed or permanently 

and totally disabled in the line of duty. 

Abstract: BJA’s Public Safety Officers’ 

Benefits (PSOB) division will use the 

PSOEA Application information to 

confirm the eligibility of applicants to 

receive PSOEA benefits. Eligibility is 

dependent on several factors, including 

the applicant having received or being 

eligible to receive a portion of the PSOB 

Death Benefit, or having a family 

member who received the PSOB 

Disability Benefit. Also considered are 

the applicant’s age and the schools 

being attended. In addition, information 

to help BJA identify an individual is 

collected, such as Social Security 

number and contact numbers and e-mail 

addresses. The changes to the 

application form have been made in an 

effort to streamline the application 

process and eliminate requests for 

information that is either irrelevant or 

already being collected by other means. 

Others: None. 

(5) An estimate of the total number of 

respondents and the amount of time 

needed for an average respondent to 

respond is as follows: It is estimated that 

no more than 75 respondents will apply 

a year. Each application takes 

approximately 120 minutes to complete. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: Total Annual Reporting 

Burden: 75 × 120 minutes per 

application = 9,000 minutes/by 60 

minutes per hour = 150 hours. 

If additional information is required, 

please contact Lynn Bryant, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Patrick Henry Building, 

Suite 1600, 601 D Street, NW., 

Washington, DC., 20530. 

March 1, 2010. 

Lynn Bryant, 

Department Clearance Officer, PRA, United 

States Department of Justice. 

[FR Doc. 2010–4536 Filed 3–3–10; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Bemis Company, Inc., 

et al.; Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(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 v. 

Bemis Co. et al., Civil Action No. 1:10– 

cv–00295. On February 24, 2010, the 

United States filed a Complaint alleging 

that the proposed acquisition by Bemis 

Company, Inc. (‘‘Bemis’’) of the Alcan 

Packaging Food Americas business of 

Rio Tinto plc would violate Section 7 of 

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

substantially lessening competition in 

the markets for flexible-packaging 

rollstock for chunk and sliced natural 

cheese packaged for retail sale, flexiblepackaging rollstock for shredded natural 

cheese packaged for retail sale, and 

flexible-packaging shrink bags for fresh 

meat. The proposed Final Judgment, 

filed the same time as the Complaint, 

requires Bemis to divest the assets of 

Alcan Packaging Food Americas related 

to those markets, including production 

plants and assets located in Menasha, 

Wisconsin and Catoosa, Oklahoma, as 

well as certain other tangible and 

intangible assets. The proposed Final 

Judgment also permits Bemis 

temporarily to occupy certain portions 

of the Menasha facility while unrelated 

operations are relocated and allows for 

short-term supply agreements between 

Bemis and the entity that acquires the 

divested assets in order to ensure that 

customers continue to receive a reliable 

supply of the affected products. 

Copies of the Complaint, proposed 

Final Judgment and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

450 Fifth Street, NW., Suite 1010, 

Washington, DC 20530 (telephone: 202– 

514–2481), on the Department of 

Justice’s Web site at http:// 

www.usdoj.gov/atr, and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia. 

Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

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 Maribeth Petrizzi, 

Chief, Litigation II Section, Antitrust 

Division, Department of Justice, 

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9930 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 

Washington, DC 20530, (telephone: 

202–307–0924). 

J. Robert Kramer II, 

Director of Operations and Civil Enforcement. 

United States of America, Department of 

Justice, Antitrust Division, 450 5th Street, 

NW, Suite 8700, Washington, D.C. 20530, 

Plaintiff, v. Bemis Company, Inc., One 

Neenah Center, Neenah, WI 54957 and Rio 

Tinto plc, 2 Eastbourne Terrace, London, W2 

6LG, United Kingdom and Alcan 

Corporation, 8770 West Bryn Mawr Avenue, 

Chicago, IL 60631, Defendants. 

Case No.: Case: 1:10–cv–00295, Assigned To: 

Kollar-Kotelly, Colleen, Assign. Date: 

February 24, 2010, Description: Antitrust, 

Judge: 

Complaint 

The United States of America 

(‘‘United States’’), acting under the 

direction of the Attorney General, brings 

this civil antitrust action against 

defendants Bemis Company, Inc. 

(‘‘Bemis’’), Rio Tinto plc (‘‘Rio Tinto’’), 

and Alcan Corporation (‘‘Alcan’’) to 

enjoin Bemis’s proposed acquisition 

from Rio Tinto of the Alcan Packaging 

Food Americas business and to obtain 

other equitable relief. The United States 

complains and alleges as follows: 

I. Nature of This Action 

1. Bemis announced that it has agreed 

to purchase the Alcan Packaging Food 

Americas business from Rio Tinto for 

$1.2 billion. 

2. Bemis and Alcan are the two 

leading suppliers in the United States 

and Canada of flexible packaging 

products suitable for a variety of natural 

cheese products packaged for retail sale. 

Bemis and Alcan are also two of the 

three primary suppliers of shrink bags 

for fresh-meat packaging in the United 

States and Canada. 

3. The proposed acquisition would 

eliminate competition between Bemis 

and Alcan, which for some customers 

are the two best sources of flexible 

packaging for certain natural cheese 

products. The proposed acquisition 

likely also would reduce competition 

substantially in the highly concentrated 

market for shrink bags for fresh-meat 

packaging. As a result, the proposed 

acquisition likely would substantially 

lessen competition in the development, 

production, and sale of flexible 

packaging and associated services for 

chunk, sliced, and shredded natural 

cheese packaged for retail sale and for 

fresh meat in the United States and 

Canada in violation of Section 7 of the 

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

II. The Defendants 

4. Bemis is a Missouri corporation 

headquartered in Neenah, Wisconsin. In 

2008, Bemis and its subsidiaries had 

total sales of approximately $3.8 billion, 

including approximately $2.1 billion of 

flexible packaging in the United States. 

Bemis’s flexible packaging for cheese 

and meat is produced by its wholly 

owned, but separately incorporated, 

Curwood, Inc. division. 

5. Rio Tinto is organized under the 

laws of and headquartered in the United 

Kingdom. Its 2008 sales totaled 

approximately $58 billion. Rio Tinto 

acquired Alcan in 2007. 

6. Alcan is a wholly owned subsidiary 

of Rio Tinto. Alcan is a Delaware 

corporation headquartered in Chicago, 

Illinois. The Alcan Packaging Food 

Americas business produces and sells 

flexible packaging in the United States, 

Canada, and Latin America. In 2008, the 

Alcan Packaging Food Americas 

business sold approximately $1.5 billion 

of flexible packaging. 

III. Jurisdiction and Venue 

7. The United States brings this action 

under Section 15 of the Clayton Act, 15 

U.S.C. 25, to prevent and restrain 

defendants from violating Section 7 of 

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

8. Defendants themselves, or through 

wholly owned subsidiaries, produce 

and sell flexible packaging and 

associated services for natural cheese 

and fresh meat, among other products, 

in the flow of interstate commerce. 

Defendants’ activities in the 

development, production, and sale of 

flexible packaging for natural cheese 

and fresh meat, among other products, 

substantially affect interstate commerce. 

This Court has subject-matter 

jurisdiction over this action pursuant to 

Section 15 of the Clayton Act, 15 U.S.C. 

25 and 28 U.S.C. 1331, 1337(a) and 

1345. 

9. Defendants have consented to 

venue and personal jurisdiction in the 

District of Columbia. Venue is therefore 

proper in this District under Section 12 

of the Clayton Act, 15 U.S.C. 22, and 28 

U.S.C. 1391(c). Venue is also proper in 

the District of Columbia for defendant 

Rio Tinto under 28 U.S.C. 1391(d). 

IV. Background 

A. The Flexible-Packaging Industry 

10. Flexible packaging is any package 

the shape of which can be readily 

changed. Flexible packaging for food 

encompasses a wide range of products, 

including bags and wrappings for 

cheeses and meats, snack bags, and 

cereal-box liners. Flexible packaging is 

distinguishable from rigid packaging, 

such as jars, cans, cups, trays, and hard 

plastic bottles. 

11. Varying degrees of design and 

manufacturing sophistication are 

required to produce flexible packaging 

for different end uses. Some flexible 

packaging, such as single-layer 

packaging, is relatively simple to 

manufacture, and customers can choose 

from a number of producers for these 

types of flexible packaging. Flexible 

packaging for other end uses, such as 

natural cheese and fresh meat, however, 

has multiple layers, is subject to more 

rigorous performance standards, 

requires greater scientific knowledge 

and technical know-how to engineer, 

and requires that technical support be 

readily available, and, therefore, is more 

difficult to produce and commercialize 

successfully. 

B. Procurement of Flexible Packaging 

for Natural Cheese and Fresh Meat 

12. Producers of flexible packaging 

sell their packaging to producers of food 

that package their products for 

wholesale or retail sale. Customers 

typically have particular and unique 

specifications for their packaging. For 

example, customers use flexible 

packaging to differentiate their products 

from those of their rivals. Moreover, 

customers have different packaging 

equipment, and the flexible packaging 

must be specifically qualified to run on 

the particular customer’s equipment. 

13. Producers of flexible packaging 

must work closely with customers to 

ensure that their packaging material 

runs efficiently on their customers’ 

machines, that they meet the promised 

lead times, and that they continuously 

find ways to cut the customer’s costs. 

Producers must also engage in research 

and development to deliver better 

packaging products in order to compete 

effectively. 

14. Customers of flexible packaging 

for certain forms of natural cheese and 

fresh meat can incur substantial costs to 

switch between different flexiblepackaging producers. These costs result, 

in part, from having to modify existing 

packaging equipment to make it 

compatible with the new producer’s 

films and the downtime associated with 

that modification. Customers also incur 

costs from testing and qualifying a new 

supplier. 

15. Prices for flexible packaging for 

natural cheese and fresh meat are 

customer-specific and based on, among 

other things, an individual customer’s 

unique requirements. The price charged 

to one customer likely will be different 

from the price charged to another 

customer. 

16. Price competition in the relevant 

markets occurs in two ways. First, 

customers may issue a request for 

proposal, through which they invite 

potential suppliers to bid on supplying 

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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 9931 

packaging that meets the customers’ 

specifications. Customers evaluate the 

competing bids on the basis of, among 

other things, compliance with their 

specifications, price, delivery times, and 

the services provided by each producer. 

Second, price competition may also 

occur less formally if a customer seeks 

or receives an offer from an alternative 

supplier and the incumbent is given a 

chance to respond. 

V. Relevant Product Markets 

A. Product Markets for Natural-Cheese 

Packaging 

17. Natural cheese is sold in several 

different forms, including chunk cheese, 

sliced cheese, and shredded cheese. 

18. The films used in flexible 

packaging for some natural-cheese 

products are sold in the form of 

rollstock, which is a continuous sheet of 

film that is cut for each package. Most 

natural cheese sold at retail is packaged 

using rollstock films. The particular 

flexible-packaging rollstock and the 

services associated with providing it to 

customers (‘‘flexible-packaging 

rollstock’’) used for: (a) Chunk and 

sliced natural cheese packaged for retail 

sale; and (b) shredded natural cheese 

packaged for retail sale are distinct 

product markets. 

19. Cheese-packaging customers 

demand a long shelf-life for natural 

cheese. The flexible-packaging rollstock 

for natural cheese must include a barrier 

layer that keeps out oxygen to prevent 

the cheese from spoiling. The packaging 

also must prevent moisture from leaking 

into or out of the package. Some cheeses 

emit gasses as they age; such cheeses 

require packaging that allows gasses to 

escape. In addition, the packaging film 

must be sufficiently transparent to 

present the cheese well to the consumer, 

but also avoid discoloration from 

fluorescent lights. The packaging also 

must resist abrasion and cracking during 

distribution and run smoothly and 

efficiently on the customer’s filling 

machines. Finally, the packaging must 

be inert, so that the flavor of the cheese 

is not compromised by the plastic. 

1. Flexible-Packaging Rollstock for 

Chunk and Sliced Natural Cheese 

Packaged for Retail Sale Is a Relevant 

Product Market 

20. Chunk natural cheese is sold in 

bricks of specific sizes, typically eight, 

but ranging to thirty-two, ounces. Sliced 

natural cheese is typically sold in 

packages with roughly ten or more 

slices. Producers of chunk and sliced 

natural cheese generally use the same 

films for packaging. 

21. Specialized rollstock films are 

designed specifically for packaging 

chunk and sliced natural cheese for 

retail sale. While some chunk and sliced 

natural cheeses for retail sale are 

packaged in other forms of packaging 

(e.g., shrink bags or rigid trays), these 

are more expensive to purchase than 

rollstock packaging and cannot be used 

on the same packaging equipment as 

rollstock. A small but significant 

increase in the price of flexiblepackaging rollstock for chunk and sliced 

natural cheese packaged for retail sale 

likely would not cause customers faced 

with such an increase to substitute to 

other forms of packaging, or otherwise 

purchase sufficiently less of that 

product, so as to render the price 

increase unprofitable. 

22. Therefore, flexible-packaging 

rollstock for chunk and sliced natural 

cheese packaged for retail sale is a line 

of commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. In 2008, 

approximately $100 million in sales of 

this product were made in the United 

States and Canada. 

2. Flexible-Packaging Rollstock for 

Shredded Natural Cheese Packaged for 

Retail Sale Is a Relevant Product Market 

23. Shredded natural cheese packaged 

for retail sale typically is packaged in 

bags, which often come with an easyopen mechanism and an easy-close 

attachment. The easy-open mechanism 

is either laser-scored or mechanically 

scored, such that some of the package’s 

layers are perforated (making the 

package easy to tear), while leaving the 

oxygen and moisture barriers intact 

(preventing contamination of the 

product). The scoring process presents 

significant challenges to flexiblepackaging producers. The sealing 

process also is difficult because the bags 

typically are filled with cheese while in 

a vertical position and the release of 

cheese into the bags is continuous and 

fast. 

24. Specialized films are designed 

specifically for shredded natural cheese 

packaged for retail sale. A small but 

significant increase in the price of 

flexible-packaging rollstock for 

shredded natural cheese packaged for 

retail sale likely would not cause 

customers faced with such an increase 

to substitute to other forms of 

packaging, or otherwise purchase 

sufficiently less of that product, so as to 

render the price increase unprofitable. 

25. Therefore, flexible-packaging 

rollstock for shredded natural cheese 

packaged for retail sale is a line of 

commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. In 2008, 

approximately $100 million in sales of 

this product were made in the United 

States. 

B. Flexible-Packaging Shrink Bags for 

Fresh Meat Are a Relevant Product 

Market 

26. Certain characteristics are 

common to most flexible-packaging 

films for fresh meat (i.e., beef, veal, 

pork, and lamb). First, most films for 

fresh meat contain a layer that prevents 

oxygen from coming into contact with 

the meat. Second, fresh meat films must 

prevent moisture from leaking out and 

contaminants from entering the 

packaging. Third, fresh meat films must 

run effectively on the customer’s 

packaging equipment. Finally, the 

sealant must bond through fatty and oily 

substances. 

27. The most common type of 

flexible-packaging film for fresh meat is 

a shrink bag, which is designed to 

shrink to the contours of the contents 

when heated, forming a tight seal. 

Shrink bags are particularly suitable for 

use with fresh meat, in particular for 

wholesale distribution of meat to be cut 

for retail sale in grocery stores. Shrink 

bags and the services associated with 

providing them to customers (‘‘flexiblepackaging shrink bags’’) used for fresh 

meat constitute a distinct product 

market. The shrink bag must be durable 

to survive distribution while 

maintaining its oxygen and moisture 

barriers and allowing the meat to retain 

its flavor. The bag also must meet shelflife requirements of 30 days or more 

and, when used for retail packaging, 

have a high degree of transparency for 

optimal presentation. 

28. A small but significant increase in 

the price of flexible-packaging shrink 

bags for fresh meat likely would not 

cause customers faced with such an 

increase to substitute to other forms of 

packaging, or otherwise purchase 

sufficiently less of that product, so as to 

render the price increase unprofitable. 

29. Therefore, flexible-packaging 

shrink bags for fresh meat constitute a 

line of commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. In 2008, 

approximately $800 million in sales of 

this product were made in the United 

States. 

C. The United States and Canada Is a 

Relevant Geographic Market 

30. Producers of flexible-packaging 

rollstock for chunk, sliced, and 

shredded natural cheese packaged for 

retail sale and flexible-packaging shrink 

bags for fresh meat ship the packaging 

to customers throughout the United 

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9932 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 

States and Canada. Producers outside 

the United States and Canada are not 

good alternatives for customers in the 

United States and Canada. Customers 

using producers outside the United 

States and Canada would face longer 

lead times and an increased potential 

for supply-chain complications. 

Moreover, major customers demand that 

producers of flexible packaging provide 

frequent technical and operational 

service and support at the customer’s 

premises and do not believe that foreign 

suppliers can provide the level of 

service and support they demand. A 

small but significant increase in the 

price of flexible-packaging rollstock for 

chunk, sliced, and shredded natural 

cheese packaged for retail sale and 

flexible-packaging shrink bags for fresh 

meat in the United States and Canada 

likely would not cause customers in the 

United States and Canada to turn to 

producers outside the United States and 

Canada in sufficient numbers so as to 

render such a price increase 

unprofitable. 

31. Accordingly, the United States 

and Canada is a relevant geographic 

market for flexible-packaging rollstock 

for chunk, sliced, and shredded natural 

cheese packaged for retail sale and 

flexible-packaging shrink bags for fresh 

meat within the meaning of Section 7 of 

the Clayton Act. 

VI. The Proposed Acquisition’s Likely 

Anticompetitive Effects 

A. Likely Anticompetitive Effects in the 

United States and Canada for FlexiblePackaging Rollstock for Chunk and 

Sliced Natural Cheese Packaged for 

Retail Sale 

32. Based on their capabilities and 

sales history, Bemis and Alcan are two 

of only a few competitors that might 

successfully bid to supply a customer 

with flexible-packaging rollstock for 

chunk and sliced natural cheese 

packaged for retail sale. Currently, 

Bemis and Alcan account for 

approximately 37 and 54 percent, 

respectively, of sales in the United 

States and Canada for this product. If 

the proposed acquisition is not 

enjoined, Bemis and Alcan combined 

would account for approximately 91 

percent of sales in the United States and 

Canada for this product. Using a 

measure of market concentration called 

the Herfindahl-Hirschman Index (‘‘HHI’’) 

(explained in Appendix A), the HHI 

would increase by more than 3,900 

points, resulting in a post-acquisition 

HHI of more than 8,000 points. 

33. Market shares are best measured 

using revenues in the markets for the 

Relevant Products because suppliers 

with the capacity to produce similar 

goods outside of those markets cannot 

quickly and easily shift that capacity to 

supply customers with the Relevant 

Products. Thus, the mere possession of 

similar capacity does not make a 

supplier an ‘‘uncommitted entrant’’; 

meeting the requirements of customers 

in a cost-efficient manner also requires 

specialized know-how, experience, 

qualification, and the ability to 

innovate. 

34. Due to Bemis’s and Alcan’s 

collective overall expertise in meeting 

the needs of customers and other 

technical and commercial factors for 

flexible-packaging rollstock for chunk 

and sliced natural cheese packaged for 

retail sale, including, among other 

things, price, delivery times, service, 

and technical support, Bemis and Alcan 

frequently are perceived by each other, 

by other bidders, and by customers as 

being the two strongest competitors in 

that market. 

35. Bemis’s bidding behavior often 

has been constrained by the possibility 

of losing business to Alcan. By 

eliminating Alcan, Bemis would gain 

the incentive and likely ability to 

profitably increase its bid prices higher 

than it otherwise would without the 

acquisition. Customers have also 

benefitted from competition between 

Bemis and Alcan through higher 

quality, better supply-chain options 

(including delivery times and volumepurchase requirements), technical 

support, and numerous innovations. 

The combination of Bemis and Alcan 

would eliminate this other competition 

and future benefits to the customers. 

36. The proposed acquisition, 

therefore, likely would substantially 

lessen competition in the United States 

and Canada for flexible-packaging 

rollstock for chunk and sliced natural 

cheese packaged for retail sale, which 

likely would lead to higher prices, lower 

quality, less favorable supply-chain 

options, reduced technical support, and 

less innovation, in violation of Section 

7 of the Clayton Act. 

B. Likely Anticompetitive Effects in the 

United States and Canada for FlexiblePackaging Rollstock for Shredded 

Natural Cheese Packaged for Retail Sale 

37. Based on their capabilities and 

sales history, Bemis and Alcan are two 

of only a few credible competitors that 

might successfully bid to supply a 

customer with flexible packaging 

rollstock for shredded natural cheese 

packaged for retail sale. Currently, 

Bemis and Alcan account for 

approximately 27 and 49 percent, 

respectively, of sales in the United 

States and Canada for this product. If 

the proposed acquisition is not 

enjoined, Bemis and Alcan combined 

would account for approximately 76 

percent of sales in the United States and 

Canada for this product. The HHI would 

increase by approximately 2,500 points, 

resulting in a post-acquisition HHI of 

more than 5,600 points. 

38. Market shares are best measured 

using revenues in the markets for the 

Relevant Products because suppliers 

with the capacity to produce similar 

goods outside of those markets cannot 

quickly and easily shift that capacity to 

supply customers with the Relevant 

Products. Thus, the mere possession of 

similar capacity does not make a 

supplier an ‘‘uncommitted entrant’’; 

meeting the requirements of customers 

in a cost-efficient manner also requires 

specialized know-how, experience, 

qualification, and the ability to 

innovate. 

39. Due to Bemis’s and Alcan’s 

collective overall expertise in meeting 

the needs of customers and other 

technical and commercial factors for 

flexible-packaging rollstock for 

shredded natural cheese packaged for 

retail sale, including, among other 

things, price, delivery times, service, 

and technical support, Bemis and Alcan 

frequently are perceived by each other, 

by other bidders, and by customers as 

being the two strongest competitors in 

that market. 

40. Bemis’s bidding behavior often 

has been constrained by the possibility 

of losing business to Alcan. By 

eliminating Alcan, Bemis would gain 

the incentive and ability to profitably 

increase its bid prices higher than it 

otherwise would without the 

acquisition. Customers have also 

benefitted from competition between 

Bemis and Alcan through higher 

quality, better supply-chain options, 

better technical support, and numerous 

innovations. The combination of Bemis 

and Alcan would eliminate this other 

competition and future benefits to the 

customers. 

41. The proposed acquisition, 

therefore, likely would substantially 

lessen competition in the United States 

and Canada for flexible-packaging 

rollstock for shredded natural cheese 

packaged for retail sale, which likely 

would lead to higher prices, lower 

quality, less favorable supply-chain 

options, reduced technical support, and 

less innovation, in violation of Section 

7 of the Clayton Act. 

C. Likely Anticompetitive Effects in the 

United States and Canada for FlexiblePackaging Shrink Bags for Fresh Meat 

42. Currently, Bemis and Alcan 

account for approximately 20 and 8 

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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 9933 

percent, respectively, of the sales in the 

United States and Canada for flexiblepackaging shrink bags for fresh meat. If 

the proposed acquisition is not 

enjoined, Bemis and Alcan combined 

would account for approximately 28 

percent of sales of flexible-packaging 

shrink bags for fresh meat in the United 

States and Canada, and leave Bemis and 

one other firm with approximately 93 

percent of sales. The HHI would 

increase by more than 300 points, 

resulting in a post-acquisition HHI of 

more than 5,000 points. 

43. Market shares are best measured 

using revenues in the markets for the 

Relevant Products because suppliers 

with the capacity to produce similar 

goods outside of those markets cannot 

quickly and easily shift that capacity to 

supply customers with the Relevant 

Products. Thus, the mere possession of 

similar capacity does not make a 

supplier an ‘‘uncommitted entrant’’; 

meeting the requirements of customers 

in a cost-efficient manner also requires 

specialized know-how, experience, 

qualification, and the ability to 

innovate. 

44. Although the third supplier of 

flexible-packaging shrink bags for fresh 

meat is the dominant supplier, some 

customers desire two or more suppliers. 

As a result, Bemis and Alcan often find 

themselves competing to be the second 

supplier, and their price competition 

exerts pricing pressure also on the 

dominant firm. Unless the proposed 

acquisition is enjoined, that bidding 

dynamic would be eliminated because 

Bemis and Alcan no longer would bid 

against one another. In addition, 

Bemis’s elimination of Alcan as an 

independent competitor would result in 

only two suppliers accounting for nearly 

all of the market. Such an increase in 

concentration likely would make 

coordination easier. 

45. The proposed acquisition, 

therefore, likely would substantially 

lessen competition in the United States 

and Canada for flexible-packaging 

shrink bags for fresh meat, which likely 

would lead to higher prices, lower 

quality, less favorable supply-chain 

options, reduced technical support, and 

less innovation, in violation of Section 

7 of the Clayton Act. 

D. Entry Is Unlikely To Prevent 

Anticompetitive Harm 

46. Some customers in the United 

States and Canada have attempted to 

procure suitable flexible-packaging 

rollstock for chunk, sliced, and 

shredded natural cheese packaged for 

retail sale from producers that do not 

currently produce packaging for these 

uses. Similarly, some customers in the 

United States and Canada have 

attempted to procure suitable flexiblepackaging shrink bags for fresh meat 

from producers beyond Bemis and 

Alcan and the dominant producer. Most 

of those flexible-packaging producers 

have not been able cost-effectively to 

achieve the required specifications or 

quality requirements. These suppliers 

likely would not be able to meet 

customers’ required specifications or 

quality requirements cost-effectively 

within a commercially reasonable 

period of time, nor would they likely be 

able to produce products that would run 

efficiently on their customers’ packaging 

equipment. 

47. New entry into the markets for 

flexible-packaging rollstock for chunk 

and sliced natural cheese packaged for 

retail sale, flexible-packaging rollstock 

for shredded natural cheese packaged 

for retail sale, and flexible-packaging 

shrink bags for fresh meat in the United 

States and Canada would be costly, 

difficult, and time consuming. A new 

supplier would need to construct 

production lines capable of producing 

films that meet the rigorous standards 

set forth by major buyers of such films. 

Construction of manufacturing facilities 

would require millions of dollars of 

capital investment and the entrant 

would have to be committed to research 

and development. In addition, the 

technical know-how necessary to design 

and successfully manufacture packaging 

that is able to run efficiently on 

customers’ equipment cost-effectively is 

difficult to obtain. 

48. Even after a new entrant has 

developed the capability to supply 

flexible-packaging rollstock for chunk, 

sliced, and shredded natural cheese 

packaged for retail sale and flexiblepackaging shrink bags for fresh meat, 

the entrant must be qualified by 

potential customers, demonstrating that 

it is capable of manufacturing products 

that meet rigorous quality and 

performance standards. For example, 

because the qualifying process for 

natural cheese typically requires a shelflife test, where sample products are 

wrapped in the candidate packaging and 

stored in retail-like conditions for 

extended periods of time, the process 

can take many months. Further, there is 

no guarantee that the attempted 

qualification will be successful, and the 

entrant may have to repeat the process 

multiple times. In such cases, the 

qualification process can take multiple 

years with no guarantee of success. 

Moreover, because customer 

specifications are unique, qualification 

with one customer does not guarantee 

qualification with another. 

49. Entry of existing packaging firms 

is unlikely because the technical know 

how necessary to create the packaging 

for the relevant products is difficult to 

obtain. Also, a company would have to 

pass each customer’s rigorous 

qualification tests. Entry of existing 

packaging firms into the markets for 

flexible-packaging rollstock for chunk 

and sliced natural cheese packaged for 

retail sale, flexible-packaging rollstock 

for shredded natural cheese packaged 

for retail sale, and flexible-packaging 

shrink bags for fresh meat, therefore, 

likely would not be timely, likely, and 

sufficient to defeat a small but 

significant increase in price in the 

relevant markets. 

50. As a result of these barriers, entry 

by new firms or by existing packaging 

firms likely would not be timely, likely, 

and sufficient to prevent a likely 

exercise of market power by Bemis after 

the acquisition. 

VII. The Proposed Acquisition Violates 

Section 7 of the Clayton Act 

51. Bemis’s proposed acquisition of 

the Alcan Packaging Food Americas 

business would be likely to 

substantially lessen competition in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18, in the United States 

and Canada for: (1) Flexible-packaging 

rollstock for chunk and sliced natural 

cheese packaged for retail sale; (2) 

flexible-packaging rollstock for 

shredded natural cheese packaged for 

retail sale; and (3) flexible-packaging 

shrink bags for fresh meat. 

52. Unless enjoined, the proposed 

acquisition likely would have the 

following anticompetitive effects, 

among others: 

(a) Actual and potential competition 

between Bemis and Alcan in the 

relevant markets would be eliminated; 

(b) Competition in the relevant 

markets likely would be substantially 

lessened; and 

(c) For the relevant products, prices 

would likely increase, quality would 

likely decrease, supply-chain options 

would likely be less favorable, technical 

support would likely be reduced, and 

innovation would likely decline. 

VIII. Requested Relief 

53. The United States requests that 

this Court: 

(a) Adjudge and decree Bemis’s 

proposed acquisition of the Alcan 

Packaging Food Americas business to 

violate Section 7 of the Clayton Act, 15 

U.S.C. 18; 

(b) Enjoin defendants and all persons 

acting on their behalf from 

consummating the proposed acquisition 

of the Alcan Packaging Food Americas 

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business by Bemis, or from entering into 

or carrying out any other agreement, 

plan, or understanding the effect of 

which would be to combine Bemis with 

the Alcan Packaging Food Americas 

business; 

(c) Award the United States its costs 

for this action; and 

(d) Award the United States such 

other and further relief as the Court 

deems just and proper. 

For Plaintiff United States of America: 

Christine A. Varney, 

Assistant Attorney General, D.C. Bar 

# 411654. 

William F. Cavanaugh, Jr., 

Deputy Assistant Attorney General. 

J. Robert Kramer II, 

Director of Operations. 

Maribeth Petrizzi, 

Chief, Litigation II Section, D.C. Bar 

# 435204. 

Dorothy B. Fountain, 

Assistant Chief, Litigation II Section, D.C. Bar 

# 439469. 

Rachel Adcox, 

Attorney, United States Department of 

Justice, Antitrust Division, 450 Fifth Street 

NW., Suite 8700, Washington, DC, 20530 

(202) 307–0924. 

Dated: February 24, 2010. 

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%, the HHI is 2,600 (302 + 302 + 202

+ 202 = 2,600). The HHI takes into 

account the relative size 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 of 10,000 

points 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 

1,000 and 1,800 points are considered to 

be moderately concentrated, and 

markets in which the HHI is in excess 

of 1,800 points are considered to be 

highly concentrated. See Horizontal 

Merger Guidelines ¶ 1.51 (revised Apr. 

8, 1997). Transactions that increase the 

HHI by more than 100 points in highly 

concentrated markets presumptively 

raise antitrust concerns under the 

Horizontal Merger Guidelines issued by 

the Department of Justice and the 

Federal Trade Commission. See id. 

United States of America, Plaintiff, v. 

Bemis Company, Inc., and Rio Tinto PLC, and 

Alcan Corporation, Defendants. 

Case No.: 1:10-cv-00295 

Judge: Kollar-Kotelly, Colleen 

Deck Type: Antitrust 

Date Stamp: February 24, 2010 

Final Judgment 

Whereas, Plaintiff United States of 

America (‘‘United States’’) filed its 

Complaint on February 24, 2010, the 

United States and defendants Bemis 

Company, Inc., Rio Tinto plc, and Alcan 

Corporation, 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, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights or assets by 

defendants to assure that competition is 

not substantially lessened; 

And whereas, the United States 

requires defendants to make certain 

divestitures for the purpose of 

remedying the loss of competition 

alleged in the Complaint; 

And whereas, defendants have 

represented to the United States that the 

divestitures required below can and will 

be made and that 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 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 

the entity or entities to whom 

defendants divest the Divestiture Assets. 

B. ‘‘Bemis’’ means defendant Bemis 

Company, Inc., a Missouri corporation 

headquartered in Neenah, Wisconsin, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘Rio Tinto’’ means defendant Rio 

Tinto plc, organized under the laws of 

and headquartered in the United 

Kingdom, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

D. ‘‘Alcan’’ means defendant Alcan 

Corporation, a Delaware corporation 

that is a wholly owned subsidiary of Rio 

Tinto headquartered in Chicago, Illinois, 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

E. ‘‘Divestiture Assets’’ means: 

(1) Alcan’s facility located at 905 W. 

Verdigris Parkway, Catoosa, Oklahoma 

74015 (‘‘Catoosa facility’’); 

(2) Alcan’s facility located at 271 

River Street, Menasha, Wisconsin 54952 

(‘‘Menasha facility’’); provided, however, 

that the tangible assets used exclusively 

or primarily for the wax-coating 

operation located at the Menasha 

facility shall not be divested pursuant to 

this Final Judgment; 

(3) The following tangible assets: 

(a) All tangible assets (leased or 

owned) necessary to operate or used in 

or for the Catoosa facility and the 

Menasha facility, including, but not 

limited to, all real property and 

improvements, manufacturing 

equipment, product inventory, tooling 

and fixed assets, personal property, 

titles, interests, leases, input inventory, 

office furniture, materials, supplies, and 

other tangible property; 

(b) All tangible assets (leased or 

owned) used exclusively or primarily 

for the research and development of any 

Alcan Relevant Product in the United 

States and/or Canada, including, but not 

limited to, materials, supplies, and other 

property; and 

(c) All records and documents relating 

to any Alcan Relevant Product in the 

United States and/or Canada, including, 

but not limited to, licenses, permits, and 

authorizations issued by any 

governmental organization; contracts, 

teaming agreements, leases, 

commitments, certifications, and 

understandings, including, but not 

limited to, supply agreements; customer 

lists, contracts, accounts, and credit 

records; and repair and performance 

records. 

(4) The following intangible assets: 

(a) All intangible assets used 

exclusively or primarily in the design, 

development, production, marketing, 

servicing, distribution, and/or sale of 

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any Alcan Relevant Product in the 

United States and/or Canada, including, 

but not limited to, all patents, licenses 

and sub-licenses, intellectual property, 

copyrights, trade names or trademarks, 

including, but not limited to, ‘‘Halo,’’ 

‘‘Maraflex,’’ ‘‘Clearshield,’’ or any 

derivation thereof, service marks, 

service names, technical information, 

designs, trade dress, and trade secrets; 

computer software, databases, and 

related documentation; know-how, 

including, but not limited to, recipes, 

formulas, and machine settings; 

information relating to plans for, 

improvements to, or line extensions of, 

Alcan’s Relevant Products; drawings, 

blueprints, designs, design protocols, 

specifications for materials, and 

specifications for parts and devices; 

marketing and sales data; quality 

assurance and control procedures; 

design tools and simulation capability; 

contractual rights; manuals and 

technical information provided by 

Alcan to its own employees, customers, 

suppliers, agents, or licensees; safety 

procedures for the handling of materials 

and substances; research information 

and data concerning historic and 

current research and development 

efforts, including, but not limited to, 

designs and experiments and the results 

of successful and unsuccessful designs 

and experiments; and 

(b) With respect to any intangible 

assets that are not included in paragraph 

II(E)(4)(a), above, and that prior to the 

filing of the Complaint in this matter 

were used in connection with the 

design, development, production, 

marketing, servicing, distribution, and/ 

or sale of both any Alcan Relevant 

Product and any other Alcan product, a 

non-exclusive, non-transferable license 

for such intangible assets to be used for 

the design, development, production, 

marketing, servicing, distribution, and/ 

or sale of any of the Relevant Products 

or the operation or use of the Catoosa 

facility and/or the Menasha facility for 

the period of time that defendants have 

rights to such assets; provided, however, 

that any such license is transferable to 

any future purchaser of all or any 

relevant portion of the Divestiture 

Assets. 

F. ‘‘Relevant Products’’ means any 

flexible-packaging rollstock used for 

chunk, sliced, and/or shredded natural 

cheeses packaged for retail sale and any 

flexible-packaging shrink bags used for 

fresh meat. 

G. ‘‘Transaction’’ means Bemis’s 

proposed acquisition of the Alcan 

Packaging Food Americas business. 

III. Applicability 

A. This Final Judgment applies to 

Bemis, Rio Tinto, and Alcan, 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. If, prior to complying with Section 

IV and V of this Final Judgment, 

defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of lesser business units that include the 

Divestiture Assets, they shall require the 

purchaser to be bound by the provisions 

of this Final Judgment. Defendants need 

not obtain such an agreement from the 

Acquirer or Acquirers of the assets 

divested pursuant to this Final 

Judgment. 

IV. Divestitures 

A. Bemis is ordered and directed, 

within ninety (90) calendar days after 

the 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 the Divestiture Assets in 

a manner consistent with this Final 

Judgment to an Acquirer or Acquirers 

acceptable to the United States, in its 

sole discretion. The United States, in its 

sole discretion, may agree to one or 

more extensions of this time period not 

to exceed sixty (60) calendar days in 

total, and shall notify the Court in such 

circumstances. Bemis agrees to use its 

best efforts to divest the Divestiture 

Assets as expeditiously as possible. 

B. In accomplishing the divestitures 

ordered by this Final Judgment, Bemis 

promptly shall make known, by usual 

and customary means, the availability of 

the Divestiture Assets. Bemis shall 

inform any person making inquiry 

regarding a possible purchase of the 

Divestiture Assets that they are being 

divested pursuant to this Final 

Judgment and provide that person with 

a copy of this Final Judgment. Bemis 

shall offer to furnish to all prospective 

Acquirers, subject to customary 

confidentiality assurances, all 

information and documents relating to 

the Divestiture Assets customarily 

provided in a due diligence process, 

except such information or documents 

subject to the attorney-client privilege or 

work-product doctrine. Bemis shall 

make available such information to the 

United States at the same time that such 

information is made available to any 

other person. 

C. Bemis shall provide the Acquirer or 

Acquirers and the United States 

information relating to the personnel 

employed at the Catoosa facility and the 

Menasha facility and the personnel 

otherwise involved in the design, 

development, production, marketing, 

servicing, distribution, and/or sale of 

Alcan’s Relevant Products to enable the 

Acquirer or Acquirers to make offers of 

employment. Defendants will not 

interfere with any negotiations by the 

Acquirer or Acquirers to employ any 

person who is employed at the Catoosa 

facility or the Menasha facility or is 

otherwise involved in the design, 

development, production, marketing, 

servicing, distribution, and/or sale of 

Alcan’s Relevant Products. Interference 

with respect to this paragraph includes, 

but is not limited to, offering to increase 

an employee’s salary or benefits other 

than as a part of a company-wide 

increase in salary or benefits. In 

addition, for each employee who elects 

employment by the Acquirer or 

Acquirers, Bemis shall vest all unvested 

pension and other equity rights of that 

employee and provide all benefits to 

which the employee would have been 

entitled if terminated without cause. 

D. Defendants shall waive all 

noncompete agreements for any current 

or former Alcan employee employed at 

the Catoosa facility, the Menasha 

facility, or otherwise employed in the 

design, development, production, 

marketing, servicing, distribution, and/ 

or sale of any Alcan Relevant Product. 

E. Bemis shall permit prospective 

Acquirers of the Divestiture Assets to 

have reasonable access to personnel and 

to make inspections of the physical 

facilities associated with the Divestiture 

Assets; 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. 

F. Bemis shall warrant to the Acquirer 

or Acquirers that each asset will be 

operational on the date of sale. 

G. Defendants shall not take any 

action that will impede in any way the 

permitting, operation, use, or divestiture 

of the Divestiture Assets. 

H. Defendants shall warrant to the 

Acquirer or Acquirers that there are no 

material defects in the environmental, 

zoning or other permits pertaining to the 

operation of each asset, and that 

following the sale of the Divestiture 

Assets, defendants will not undertake, 

directly or indirectly, any challenges to 

the environmental, zoning, or other 

permits relating to the operation of the 

Divestiture Assets. 

I. Bemis shall take all steps necessary 

to accomplish the transfer of the 

leasehold and other rights of possession 

of the Catoosa facility to the Acquirer, 

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including, but not limited to, invoking 

and exercising all applicable early 

termination, early purchase, or other 

provisions contained in the agreements 

related to the Catoosa facility, and 

paying all necessary sums specified in 

such agreements. 

J. Bemis shall warrant that it is 

divesting Alcan’s entire business 

relating to each of the Relevant Products 

and will not manufacture any Alcan 

Relevant Product after the date the 

Divestiture Assets are divested until the 

expiration of this Final Judgment. 

Defendants shall not solicit business for 

any Relevant Product that is subject to 

an unexpired Alcan customer contract 

transferred to the Acquirer for a period 

of one (1) year from the date of the 

divestiture of such contract or the 

remaining term of the contract, 

whichever is shorter. 

K. The Acquirer of the Menasha 

facility shall enter into an agreement 

with Bemis permitting Bemis to occupy 

the portions of the Menasha facility 

utilized for Alcan’s wax-coating 

operations for a period of no longer than 

three (3) years after the date the 

Transaction is closed. By no later than 

three (3) months after the date the 

Transaction is closed, Bemis shall create 

physical barriers that segregate the waxcoating operations from the portions of 

the Menasha facility to be occupied by 

the Acquirer. Bemis’s areas and 

operations at the Menasha facility shall 

be secured separately from those of the 

Acquirer so that the Acquirer’s areas 

and operations cannot be accessed by 

Bemis and Bemis’s areas and operations 

cannot be accessed by the Acquirer, 

other than for facility repair, support, 

and maintenance pursuant to a lease or 

other agreement. At the option of the 

Acquirer, the lease agreement may 

include a provision requiring Bemis to 

remove any or all physical barriers 

erected to segregate its areas and 

operations from the Acquirer’s areas and 

operations pursuant to this paragraph. 

L. At the option of the Acquirer of the 

Divestiture Assets relating to the 

‘‘Maraflex’’ products, Bemis shall enter 

into a supply contract with that 

Acquirer for the ‘‘Maraflex’’ products 

sufficient to satisfy that Acquirer ’s 

obligations under any customer contract 

for a period of up to one (1) year. The 

amount of ‘‘Maraflex’’ products 

produced by Bemis for the Acquirer 

pursuant to such a supply contract shall 

be limited to the total volume of 

‘‘Maraflex’’ products produced by Alcan 

in 2009 plus one percent, unless 

otherwise mutually agreed by Bemis 

and the Acquirer. The terms and 

conditions of any contractual 

arrangement intended to satisfy this 

provision must be reasonably related to 

market conditions for these products. 

The United States, in its sole discretion, 

may approve an extension of the term of 

this supply contract for a period of up 

to two (2) years. If the Acquirer seeks an 

extension of the term of this supply 

contract, it shall so notify the United 

States in writing at least four (4) months 

prior to the date the supply contract 

expires. If the United States approves 

such an extension, it shall so notify 

Bemis in writing at least three (3) 

months prior to the date the supply 

contract expires. 

M. At the option of the Acquirer of 

the Divestiture Assets relating to the 

‘‘Maraflex’’ products, Bemis shall enter 

into a transition services agreement with 

that Acquirer sufficient to meet all or 

part of that Acquirer’s needs for 

assistance in matters relating to the 

development, production, and/or 

service of the ‘‘Maraflex’’ products or 

technology for a period of at least six (6) 

months but no longer than three (3) 

years. The terms and conditions of any 

contractual arrangement intended to 

satisfy this provision must be 

reasonably related to the market value of 

the expertise of the personnel providing 

any needed assistance. 

N. At the option of the Acquirer of the 

Menasha facility, Bemis shall enter into 

a supply contract with that Acquirer for 

any Relevant Product produced at 

Alcan’s facility located at 901 Morrison 

Drive, Boscobel, Wisconsin 53805 (the 

‘‘Boscobel facility’’), sufficient to satisfy 

that Acquirer’s obligations under any 

customer contract for a period of up to 

one (1) year. The amount of Relevant 

Products produced by Bemis for the 

Acquirer pursuant to such a supply 

contract shall be limited to the total 

volume of Relevant Products produced 

by Alcan at the Boscobel facility in 2009 

plus one percent, unless otherwise 

mutually agreed by Bemis and the 

Acquirer. The terms and conditions of 

any contractual arrangement intended to 

satisfy this provision must be 

reasonably related to market conditions 

for these products. The United States, in 

its sole discretion, may approve an 

extension of the term of this supply 

contract for a period of up to one (1) 

year. If the Acquirer seeks an extension 

of the term of this supply contract, it 

shall so notify the United States in 

writing at least four (4) months prior to 

the date the supply contract expires. If 

the United States approves such an 

extension, it shall so notify Bemis in 

writing at least three (3) months prior to 

the date the supply contract expires. 

O. At the option of Bemis, the 

Acquirer of the Catoosa facility shall 

enter into a supply contract for the 

‘‘Clearshield’’ products sufficient to 

satisfy Alcan’s or Bemis’s obligations to 

Alcan affiliates Danaflex, Maua, and 

Envaril for a period of up to one (1) 

year. The amount of ‘‘Clearshield’’ 

products produced by the Acquirer for 

Bemis pursuant to such a supply 

contract shall be limited to the total 

volume of ‘‘Clearshield’’ products 

produced by Alcan for Danaflex, Maua, 

and Envaril in 2009 plus one percent, 

unless otherwise mutually agreed by 

Bemis and the Acquirer. The terms and 

conditions of any contractual 

arrangement intended to satisfy this 

provision must be reasonably related to 

market conditions for these products. 

The United States, in its sole discretion, 

may approve an extension of the term of 

this supply contract for a period of up 

to two (2) years. If Bemis seeks an 

extension of the term of this supply 

contract, it shall so notify the United 

States in writing at least four (4) months 

prior to the date the supply contract 

expires. If the United States approves 

such an extension, it shall so notify the 

Acquirer in writing at least three (3) 

months prior to the date the supply 

contract expires. 

P. At the option of Bemis, the 

Acquirer or Acquirers shall enter into an 

agreement to provide Bemis with a nonexclusive, non-transferable license for 

the intangible assets described in 

paragraph II(E)(4)(a), above, that prior to 

the filing of the Complaint in this matter 

were used in connection with the 

design, development, production, 

marketing, servicing, distribution, and/ 

or sale of both any Alcan Relevant 

Product and any other Alcan product; 

provided, however, that any such 

license is solely for use in connection 

with the design, development, 

production, marketing, servicing, 

distribution, and/or sale of products 

other than the Alcan Relevant Products. 

The terms and conditions of any 

contractual arrangement intended to 

satisfy this provision must be 

reasonably related to market conditions 

for such licenses. 

Q. At the option of Bemis, the 

Acquirer of the Divestiture Assets 

relating to the ‘‘Clearshield’’ products 

shall enter into an agreement to provide 

Bemis with a non-exclusive, nontransferable license to enable Bemis to 

produce ‘‘Clearshield’’ products for sale 

outside the United States and Canada. 

The terms and conditions of any 

contractual arrangement intended to 

satisfy this provision must be 

reasonably related to market conditions 

for such licenses. 

R. At the option of Bemis, the 

Acquirer of the Menasha facility shall 

enter into an agreement with Bemis to 

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provide Bemis with rotogravure printing 

services to be used in connection with 

Alcan’s wax-coating operation located at 

the Menasha facility for a period of up 

to twelve (12) months. The terms and 

conditions of any contractual 

arrangement intended to satisfy this 

provision must be reasonably related to 

market conditions for these services. 

S. In any instance where a third party 

has a right to a divested intangible asset 

pursuant to an agreement with any 

defendant, and where the agreement 

was entered into prior to the date of the 

filing of the Complaint in this matter, 

the Acquirer of that divested asset shall 

enter into an agreement with that third 

party to provide it with a right to that 

asset under terms and conditions 

sufficient to satisfy defendants’ 

obligations under the original 

agreement. 

T. Unless the United States otherwise 

consents in writing, the divestitures 

pursuant to Section IV, or by trustee 

appointed pursuant to Section V, of this 

Final Judgment, shall include the entire 

Divestiture Assets, and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion, 

that the Divestiture Assets can and will 

be used by the Acquirer or Acquirers as 

part of a viable, ongoing business 

engaged in the design, development, 

production, marketing, servicing, 

distribution, and sale of the Relevant 

Products. Divestiture of the Divestiture 

Assets may be made to one or more 

Acquirers, provided that in each 

instance it is demonstrated to the sole 

satisfaction of the United States that the 

Divestiture Assets will remain viable 

and the divestiture of such assets will 

remedy the competitive harm alleged in 

the Complaint. The divestitures, 

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 States’s 

sole judgment, has the intent and 

capability (including the necessary 

managerial, operational, technical and 

financial capability) of competing 

effectively as a supplier of the Relevant 

Products; 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 the Acquirer or 

Acquirers and defendants give 

defendants the ability unreasonably to 

raise the Acquirer’s or Acquirers’ costs, 

to lower the Acquirer’s or Acquirers’ 

efficiency, or otherwise to interfere in 

the ability of the Acquirer or Acquirers 

to compete effectively. 

V. Appointment of Trustee 

A. If Bemis has not divested the 

Divestiture Assets within the time 

period specified in Section IV(A), Bemis 

shall notify the United States of that fact 

in writing. Upon application of the 

United States, the Court shall appoint a 

trustee selected by the United States and 

approved by the Court to effect the 

divestiture of the Divestiture Assets. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Divestiture 

Assets. The trustee shall have the power 

and authority to accomplish the 

divestiture to an Acquirer or Acquirers 

acceptable to the United States at such 

price and on such terms as are then 

obtainable upon reasonable effort by the 

trustee, subject to the provisions of 

Sections 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 Bemis 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. Defendants shall not object to a sale 

by the trustee on any ground other than 

the trustee’s malfeasance. Any such 

objections by 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 Bemis, on such terms 

and conditions as the United States 

approves, and shall account for all 

monies derived from the sale of the 

assets sold by the trustee and 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 to 

defendants 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 the 

Divestiture Assets 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 divestitures. 

The trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the trustee shall 

have full and complete access to the 

personnel, books, records, and facilities 

of the business to be divested, and 

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. Defendants shall take no 

action to interfere with or to impede the 

trustee’s accomplishment of the 

divestitures. 

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 

divestitures 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 the Divestiture 

Assets, and shall describe in detail each 

contact with any such person. The 

trustee shall maintain full records of all 

efforts made to divest the Divestiture 

Assets. 

G. If the trustee has not accomplished 

the divestitures ordered under this Final 

Judgment within six (6) months after his 

or her appointment, the trustee shall 

promptly file with the Court a report 

setting forth: (1) The trustee’s efforts to 

accomplish the required divestitures; (2) 

the reasons, in the trustee’s judgment, 

why the required divestitures have 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, which 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 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, Bemis shall 

notify the United States of any proposed 

divestiture required by Section IV of 

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this Final Judgment. Within two (2) 

business days following execution of a 

definitive divestiture agreement, the 

trustee shall notify the United States 

and defendants of any proposed 

divestiture required by Section V of this 

Final Judgment. 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 the 

Divestiture Assets, 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 defendants, the proposed Acquirer 

or Acquirers, any other third party, or 

the trustee, if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer or 

Acquirers, and any other potential 

Acquirer. 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 

defendants, the proposed Acquirer or 

Acquirers, any third party, and the 

trustee, whichever is later, the United 

States shall provide written notice to 

defendants 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 Acquirers or upon 

objection by the United States, a 

divestiture proposed under Section IV 

or Section V shall not be consummated. 

Upon objection by defendants under 

Section V(C), a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

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 divestitures required by this 

Final Judgment have been 

accomplished, defendants shall take all 

steps necessary to comply with the Hold 

Separate Stipulation and Order entered 

by this Court. Defendants shall take no 

action that would jeopardize the 

divestitures ordered 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 divestitures 

have been completed under Section IV 

or V, Bemis shall deliver to the United 

States an affidavit as to 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 

(30) calendar 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 

the Divestiture Assets, 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 Bemis has 

taken to solicit buyers for the 

Divestiture Assets, and to provide 

required information to prospective 

Acquirers, 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 Bemis, including limitations on 

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, Bemis shall deliver to the United 

States an affidavit that describes in 

reasonable detail all actions defendants 

have taken and all steps defendants 

have implemented on an ongoing basis 

to comply with Section VIII of this Final 

Judgment. Bemis shall deliver to the 

United States an affidavit describing any 

changes to the efforts and actions 

outlined in defendants’ earlier affidavits 

filed pursuant to this Section within 

fifteen (15) calendar days after the 

change is implemented. 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 

after such divestiture has been 

completed. 

X. Compliance Inspection 

A. For the 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 

authorized representatives of the United 

States Department of Justice Antitrust 

Division, including consultants and 

other persons retained by the United 

States, shall, upon written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, and on 

reasonable notice to defendants, be 

permitted: 

(1) Access during defendants’ office 

hours to inspect and copy, or at the 

option of the United States, to require 

defendants to provide hard copy or 

electronic copies of, all books, ledgers, 

accounts, records, data, and documents 

in the possession, custody, or control of 

defendants, relating to any matters 

contained in this Final Judgment; and 

(2) To interview, either informally or 

on the record, 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 

defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports or responses to 

written interrogatories, 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), for 

the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If, at the time information or 

documents are furnished by defendants 

to the United States, 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)(1)(G) of the Federal Rules of Civil 

Procedure, and defendants mark each 

pertinent page of such material, ‘‘Subject 

to claim of protection under Rule 

26(c)(1)(G) of the Federal Rules of Civil 

Procedure,’’ then the United States shall 

give defendants ten (10) calendar days 

notice prior to divulging such material 

in any legal proceeding (other than a 

grand jury proceeding). 

XI. Notification 

Unless such transaction is otherwise 

subject to the reporting and waiting 

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1The term ‘‘Alcan Relevant Products’’ refers 

specifically to those Relevant Products produced by 

Alcan, rather than to Relevant Products produced 

by Bemis or others. 

period requirements of the Hart-ScottRodino Antitrust Improvements Act of 

1976, as amended, 15 U.S.C. 18a (the 

‘‘HSR Act’’), Bemis, without providing 

advance notification to the Antitrust 

Division, shall not directly or indirectly 

acquire any assets of or any interest 

(including, but not limited to, any 

financial, security, loan, equity, or 

management interest) in any company 

in the business of designing, 

developing, producing, marketing, 

servicing, distributing, and/or selling 

any of the Relevant Products in the 

United States and/or Canada during the 

term of this Final Judgment. 

Such notification shall be provided to 

the Antitrust Division in the same 

format as, and per the instructions 

relating to the Notification and Report 

Form set forth in the Appendix to Part 

803 of Title 16 of the Code of Federal 

Regulations as amended, except that the 

information requested in Items 5 

through 9 of the instructions must be 

provided only about the Relevant 

Products. Notification shall be provided 

at least thirty (30) calendar days prior to 

acquiring any such interest, and shall 

include, beyond what may be required 

by the applicable instructions, the 

names of the principal representatives 

of the parties to the agreement who 

negotiated the agreement, and any 

management or strategic plans 

discussing the proposed transaction. If 

within the 30-day period after 

notification, representatives of the 

Antitrust Division make a written 

request for additional information, 

defendants shall not consummate the 

proposed transaction or agreement until 

thirty (30) calendar days after 

submitting all such additional 

information. Early termination of the 

waiting periods in this paragraph may 

be requested and, where appropriate, 

granted in the same manner as is 

applicable under the requirements and 

provisions of the HSR Act and rules 

promulgated thereunder. This Section 

shall be broadly construed and any 

ambiguity or uncertainty regarding the 

filing of notice under this Section shall 

be resolved in favor of filing notice. 

XII. No Reacquisition 

Defendants may not reacquire any 

part of the Divestiture Assets during the 

term of this Final Judgment. 

XIII. 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. 

XIV. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten (10) 

years from the date of its entry. 

XV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including making copies 

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’s responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and responses to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: llllll 

Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16. 

United States District Judge. 

United States of America, Plaintiff, v. 

Bemis Company, Inc., and Rio Tinto PLC, and 

Alcan Corporation, Defendants. 

Case: 1:10–cv–00295 

Assigned To: Kollar-Kotelly, Colleen 

Assign. Date: 02/24/2010 

Description: Antitrust 

Judge: 

Deck Type: Antitrust 

Date Stamp: 

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. 

I. Nature and Purpose of the Proceeding 

Defendants Bemis Company, Inc. and 

Rio Tinto plc entered into a Sale and 

Purchase Agreement, dated July 5, 2009, 

pursuant to which Bemis agreed to 

acquire the Alcan Packaging Food 

Americas business from Rio Tinto for 

$1.2 billion. 

The United States filed a civil 

antitrust Complaint against Bemis, Rio 

Tinto, and Alcan Corporation on 

February 24, 2010, seeking to enjoin 

Bemis’s acquisition of the Alcan 

Packaging Food Americas business. The 

Complaint alleged that the acquisition 

likely would substantially lessen 

competition in violation of Section 7 of 

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

United States and Canada, for the 

design, development, production, 

marketing, servicing, distribution, and 

sale of: (1) Flexible-packaging rollstock 

for chunk and sliced natural cheese 

packaged for retail sale; (2) flexiblepackaging rollstock for shredded natural 

cheese packaged for retail sale; and (3) 

flexible-packaging shrink bags for fresh 

meat (hereinafter, collectively, the 

‘‘Relevant Products’’). That loss of 

competition likely would result in 

higher prices, decreased quality, less 

favorable supply-chain options, reduced 

technical support, and lesser innovation 

in the markets for the Relevant 

Products. 

At the same time the Complaint was 

filed, the United States filed a Hold 

Separate Stipulation and Order (‘‘Hold 

Separate’’) and a proposed Final 

Judgment, which are designed to 

eliminate the anticompetitive effects of 

Bemis’s acquisition of the Alcan 

Packaging Food Americas business. 

Under the proposed Final Judgment, 

which is explained more fully below, 

Bemis is required to divest all of the 

intangible assets (i.e., intellectual 

property and know-how) related to the 

production of Alcan Relevant Products 1

in the United States and Canada and 

two of the plants involved in the 

production of the Alcan Relevant 

Products. Bemis is also required to 

divest all of the tangible assets 

necessary to operate the divested plants 

and all tangible assets used exclusively 

or primarily in the production of any 

Alcan Relevant Product in the United 

States or Canada. 

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 Final Judgment and to 

punish violations thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violations 

A. The Defendants 

Bemis is a worldwide provider of 

packaging materials, including flexible 

packaging for natural cheese and fresh 

meat. In 2008, Bemis and its 

subsidiaries had total sales of 

approximately $3.8 billion, including 

approximately $2.1 billion in sales of 

flexible packaging in the United States. 

Rio Tinto is an international mining 

company headquartered in the United 

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9940 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 

Kingdom, with approximately $58 

billion in sales in 2008. Alcan is a 

wholly owned subsidiary of Rio Tinto. 

The Alcan Packaging Food Americas 

business produces and sells flexible 

packaging in the United States, Canada, 

and Latin America. In 2008, the Alcan 

Packaging Food Americas business sold 

approximately $1.5 billion of flexible 

packaging. 

B. The Competitive Effects of the 

Acquisition in the Markets for Flexible 

Packaging for Natural Cheese and Fresh 

Meat 

Flexible packaging is any package the 

shape of which can be readily changed. 

Flexible packaging for food 

encompasses a wide range of products, 

including bags and wrappings for 

cheeses and meats, snack bags, and 

cereal-box liners. Flexible packaging is 

distinguishable from rigid packaging, 

such as jars, cans, cups, trays, and hard 

plastic bottles. 

Varying degrees of design and 

manufacturing sophistication are 

required to produce flexible packaging 

for different end uses. Some flexible 

packaging, such as single-layer 

packaging, is relatively simple to 

manufacture, and customers can choose 

from a number of producers for these 

types of flexible packaging. Flexible 

packaging for other end uses, such as 

natural cheese and fresh meat, however, 

has multiple layers, is subject to more 

rigorous performance standards, 

requires greater scientific knowledge 

and technical know-how to engineer, 

and requires that technical support be 

readily available, and, therefore, is more 

difficult to produce and commercialize 

successfully. 

Bemis and Alcan are the two leading 

suppliers in the United States and 

Canada of flexible packaging products 

suitable for a variety of natural cheese 

products packaged for retail sale. Bemis 

and Alcan are also two of the three 

primary suppliers of shrink bags for 

fresh-meat packaging in the United 

States and Canada. 

1. Relevant Product Markets 

a. Natural-Cheese Packaging 

Natural cheese is sold in several 

forms, including chunk cheese, sliced 

cheese, and shredded cheese. The films 

used in flexible packaging for some 

natural cheese products are sold in the 

form of rollstock, which is a continuous 

sheet of film that is cut for each 

package. Most natural cheese sold at 

retail is packaged using rollstock films. 

Cheese packaging customers demand 

a long shelf-life for natural cheese. The 

flexible-packaging rollstock for natural 

cheese must include a barrier layer that 

keeps out oxygen to prevent the cheese 

from spoiling. The packaging must also 

prevent moisture from leaking into or 

out of the package. Some cheeses emit 

gasses as they age; such cheeses require 

packaging that allows gasses to escape. 

In addition, the packaging film must be 

sufficiently transparent to present the 

cheese well to the consumer, but also 

avoid discoloration from fluorescent 

lights. The packaging must also resist 

abrasion and cracking during 

distribution and run smoothly and 

efficiently on the customer’s filling 

machines. Finally, the packaging must 

be inert, so that the flavor of the cheese 

is not compromised by the plastic. 

(i) Flexible-Packaging Rollstock for 

Chunk and Sliced Natural Cheese 

Chunk natural cheese is sold in bricks 

of specific sizes, typically eight, but 

ranging to thirty-two, ounces. Sliced 

natural cheese is typically sold in 

packages with roughly ten or more 

slices. Producers of chunk and sliced 

natural cheese generally use the same 

films for packaging. Specialized 

rollstock films are designed specifically 

for packaging chunk and sliced natural 

cheese for retail sale. While some chunk 

and sliced natural cheeses for retail sale 

are packaged in other forms of 

packaging (e.g., shrink bags or rigid 

trays), these are more expensive to 

purchase than rollstock packaging and 

cannot be used on the same packaging 

equipment as rollstock. A small but 

significant increase in the price of 

flexible-packaging rollstock for chunk 

and sliced natural cheese packaged for 

retail sale likely would not cause 

customers faced with such an increase 

to substitute other forms of packaging, 

or otherwise purchase sufficiently less 

of the product, so as to render the price 

increase unprofitable. Accordingly, the 

United States has alleged that flexiblepackaging rollstock for chunk and sliced 

natural cheese packaged for retail sale is 

a line of commerce and a relevant 

product market within the meaning of 

Section 7 of the Clayton Act. 

(ii) Flexible-Packaging Rollstock for 

Shredded Natural Cheese Packaged for 

Retail Sale 

Shredded natural cheese packaged for 

retail sale typically is packaged in bags, 

which often come with an easy-open 

mechanism and an easy-close 

attachment. The easy-open mechanism 

is either laser scored or mechanically 

scored, such that some of the package’s 

layers are perforated (making the 

package easy to tear), while leaving the 

oxygen and moisture barriers intact 

(preventing contamination of the 

product). The scoring process presents 

significant challenges to flexiblepackaging producers. The sealing 

process also is difficult because the bags 

typically are filled with cheese while in 

a vertical position and the release of 

cheese into the bags is continuous and 

fast. 

Specialized films are designed 

specifically for shredded natural cheese 

packaged for retail sale. A small but 

significant increase in the price of 

flexible-packaging rollstock for 

shredded natural cheese packaged for 

retail sale likely would not cause 

customers faced with such an increase 

to switch to other forms of packaging, or 

otherwise purchase sufficiently less of 

the product, so as to render the price 

increase unprofitable. Accordingly, the 

United States has alleged that flexiblepackaging rollstock for shredded natural 

cheese packaged for retail sale is a line 

of commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. 

b. Flexible-Packaging Shrink Bags for 

Fresh Meat 

Several characteristics are common to 

most flexible packaging films for fresh 

meat (i.e., beef, veal, pork, and lamb). 

First, most films for fresh meat contain 

a layer that prevents oxygen from 

coming into contact with the meat. 

Second, fresh meat films must prevent 

moisture from leaking out and 

contaminants from entering the 

packaging. Third, fresh meat films must 

run effectively on the customer’s 

packaging equipment. Finally, the 

sealant must bond through fatty and oily 

substances. 

The most common type of flexible 

packaging film for fresh meat is a shrink 

bag, which is designed to shrink to the 

contours of the contents when heated, 

forming a tight seal. Shrink bags are 

particularly suitable for use with fresh 

meat, in particular for wholesale 

distribution of meat to be cut for retail 

sale in grocery stores. Shrink bags used 

for fresh meat must be durable enough 

to survive the rigors of distribution 

while maintaining its oxygen and 

moisture barriers and allowing the meat 

to retain its flavor. The bag must also 

meet shelf-life requirements of 30 days 

or more and, when used for retail 

packaging, have a high degree of 

transparency for optimal presentation. 

A small but significant increase in the 

price of flexible-packaging shrink bags 

for fresh meat likely would not cause 

customers faced with such an increase 

to substitute to other forms of 

packaging, or otherwise purchase 

sufficiently less of the product, so as to 

render the price increase unprofitable. 

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Accordingly, the United States has 

alleged that flexible-packaging shrink 

bags for fresh meat constitute a line of 

commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. 

i. Relevant Geographic Market 

Producers of the Relevant Products 

ship the products to customers 

throughout the United States and 

Canada. Producers outside the United 

States and Canada are not good 

alternatives for customers in the United 

States and Canada, and producers 

outside the United States and Canada 

have not been able to obtain significant 

business from customers in the United 

States and Canada. Customers using 

producers outside the United States and 

Canada would face longer lead times 

and an increased potential for supplychain complications. Moreover, major 

customers demand that producers of 

flexible packaging provide frequent 

technical and operational service and 

support at the customer’s premises and 

do not believe that foreign suppliers can 

provide the level of service and support 

they demand. A small but significant 

increase in the price of the Relevant 

Products in the United States and 

Canada would not cause a sufficient 

number of customers in the United 

States and Canada to turn to 

manufacturers of the Relevant Products 

outside the United States and Canada so 

as to make such a price increase 

unprofitable. Accordingly, the United 

States has alleged that the United States 

and Canada comprise a relevant 

geographic market within the meaning 

of Section 7 of the Clayton Act. 

3. Anticompetitive Effects 

a. Flexible-Packaging Rollstock for 

Chunk and Sliced Natural Cheese 

Packaged for Retail Sale 

Bemis and Alcan dominate sales of 

flexible-packaging rollstock for chunk 

and sliced natural cheese packaged for 

retail sale. Due to Bemis’s and Alcan’s 

collective overall expertise in meeting 

the needs of customers and other 

technical and commercial factors for 

flexible-packaging rollstock for chunk 

and sliced natural cheese packaged for 

retail sale, including, among other 

things, price, delivery times, service, 

and technical support, Bemis and Alcan 

frequently are perceived by each other, 

by other bidders, and by customers as 

being the two strongest competitors in 

that market. Currently, Bemis and Alcan 

account for approximately 37 and 54 

percent, respectively, of sales in the 

United States and Canada for this 

product. Absent the divestitures, Bemis 

and Alcan combined would account for 

approximately 91 percent of sales in the 

United States and Canada for this 

product. 

Market shares are best measured using 

revenues in the markets for the Relevant 

Products because suppliers with the 

capacity to produce similar goods 

outside of those markets cannot quickly 

and easily shift that capacity to supply 

customers with the Relevant Products. 

Thus, the mere possession of similar 

capacity does not make a supplier an 

‘‘uncommitted entrant’’ as that term is 

used in the Horizontal Merger 

Guidelines; meeting the requirements of 

customers in a cost-efficient manner 

also requires specialized know-how, 

experience, qualification, and the ability 

to innovate. 

Bemis’s bidding behavior often has 

been constrained by the threat of losing 

business to Alcan. By eliminating 

Alcan, Bemis would gain the incentive 

and likely ability to profitably increase 

its bid prices higher than it otherwise 

would without the acquisition. 

Customers have also benefitted from 

competition between Bemis and Alcan 

through higher quality, better supplychain options (including delivery times 

and volume-purchase requirements), 

technical support, and numerous 

innovations. The combination of Bemis 

and Alcan would eliminate this other 

competition and future benefits to the 

customers. 

The proposed acquisition, therefore, 

likely would substantially lessen 

competition in the United States and 

Canada for flexible-packaging rollstock 

for chunk and sliced natural cheese 

packaged for retail sale, which likely 

would lead to higher prices, lower 

quality, less favorable supply-chain 

options, reduced technical support, and 

less innovation, in violation of Section 

7 of the Clayton Act. 

b. Flexible-Packaging Rollstock for 

Shredded Natural Cheese Packaged for 

Retail Sale 

Bemis and Alcan are two of only a 

few credible competitors that might 

successfully bid to supply a customer 

with flexible packaging rollstock for 

shredded natural cheese packaged for 

retail sale. Although other flexible 

packaging suppliers market competing 

products, customers have stated that 

Bemis’s and Alcan’s products are 

technologically superior to other 

available packaging and have uniquely 

effective features (e.g., easy-open and 

reclose mechanisms). Bemis and Alcan 

have also massed a collective expertise 

in meeting the needs of customers with 

respect to price, delivery times, service, 

technical support, scale, breadth of 

product offering, and new product 

development that other competitors 

have not been able to match. Therefore, 

Bemis and Alcan frequently are 

perceived by each other, by other 

bidders, and by customers as being the 

two strongest competitors in that 

market. Currently, Bemis and Alcan 

account for approximately 27 and 49 

percent, respectively, of sales in the 

United States and Canada for this 

product. Absent the divestitures, Bemis 

and Alcan combined would account for 

approximately 76 percent of sales in the 

United States and Canada for this 

product. 

Market shares are best measured using 

revenues in the markets for the Relevant 

Products because suppliers with the 

capacity to produce similar goods 

outside of those markets cannot quickly 

and easily shift that capacity to supply 

customers with the Relevant Products. 

Thus, the mere possession of similar 

capacity does not make a supplier an 

‘‘uncommitted entrant’’ as that term is 

used in the Horizontal Merger 

Guidelines; meeting the requirements of 

customers in a cost-efficient manner 

also requires specialized know-how, 

experience, qualification, and the ability 

to innovate. 

Bemis’s bidding behavior often has 

been constrained by the threat of losing 

business to Alcan. By eliminating 

Alcan, Bemis would gain the incentive 

and ability to profitably increase its bid 

prices higher than it otherwise would 

without the acquisition. Customers have 

also benefitted from competition 

between Bemis and Alcan through 

higher quality, better supply-chain 

options, better technical support, and 

numerous innovations. The 

combination of Bemis and Alcan would 

eliminate this other competition and 

future benefits to the customers. 

The proposed acquisition, therefore, 

likely would substantially lessen 

competition in the United States and 

Canada for flexible-packaging rollstock 

for shredded natural cheese packaged 

for retail sale, which likely would lead 

to higher prices, lower quality, less 

favorable supply-chain options, reduced 

technical support, and less innovation, 

in violation of Section 7 of the Clayton 

Act. 

c. Flexible-Packaging Shrink Bags for 

Fresh Meat 

Currently, Bemis and Alcan account 

for approximately 20 and 8 percent, 

respectively, of the sales in the United 

States and Canada for flexible-packaging 

shrink bags for fresh meat. If the 

proposed acquisition is not enjoined, 

Bemis and Alcan combined would 

account for approximately 28 percent of 

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sales of flexible-packaging shrink bags 

for fresh meat in the United States and 

Canada, and leave Bemis and one other 

firm with over 90 percent of sales. 

Market shares are best measured using 

revenues in the markets for the Relevant 

Products because suppliers with the 

capacity to produce similar goods 

outside of those markets cannot quickly 

and easily shift that capacity to supply 

customers with the Relevant Products. 

Thus, the mere possession of similar 

capacity does not make a supplier an 

‘‘uncommitted entrant’’ as that term is 

used in the Horizontal Merger 

Guidelines; meeting the requirements of 

customers in a cost-efficient manner 

also requires specialized know-how, 

experience, qualification, and the ability 

to innovate. 

Although the third supplier of 

flexible-packaging shrink bags for fresh 

meat is the dominant supplier, some 

customers desire two or more suppliers. 

As a result, Bemis and Alcan often find 

themselves competing to be the second 

supplier, and their price competition 

exerts pricing pressure also on the 

dominant firm. Unless the proposed 

acquisition is enjoined, that bidding 

dynamic would be eliminated because 

Bemis and Alcan no longer would bid 

against one another. In addition, 

Bemis’s elimination of Alcan as an 

independent competitor would result in 

only two suppliers accounting for nearly 

all of the market. Such an increase in 

concentration likely would make 

coordination more likely. 

The proposed acquisition, therefore, 

likely would substantially lessen 

competition in the United States and 

Canada for flexible-packaging shrink 

bags for fresh meat, which likely would 

lead to higher prices, lower quality, less 

favorable supply-chain options, reduced 

technical support, and less innovation, 

in violation of Section 7 of the Clayton 

Act. 

d. Entry 

Some customers in the United States 

and Canada have attempted to procure 

suitable flexible-packaging rollstock for 

chunk, sliced, and shredded natural 

cheese packaged for retail sale from 

producers that do not currently produce 

packaging for these uses. Similarly, 

some customers in the United States 

and Canada have attempted to procure 

suitable flexible-packaging shrink bags 

for fresh meat from producers beyond 

Bemis and Alcan and the dominant 

producer. Most of those flexiblepackaging producers have not been able 

cost-effectively to achieve the required 

specifications or quality requirements. 

These suppliers likely would not be able 

to meet customers’ required 

specifications or quality requirements 

cost-effectively within a commercially 

reasonable period of time, nor would 

they likely be able to produce Relevant 

Products that would run efficiently on 

their customers’ packaging equipment. 

Indeed, many customers who have 

looked for alternative suppliers have not 

been able to find credible competitors 

other than Bemis, Alcan, and, in the 

case of flexible-packaging shrink bags 

for fresh meat, the aforementioned 

dominant producer. 

New entry into the markets for 

Relevant Products in the United States 

and Canada would be costly, difficult, 

and time consuming. A new supplier 

would need to construct production 

lines capable of producing films that 

meet the rigorous standards set forth by 

major buyers of such films. Construction 

of manufacturing facilities would 

require millions of dollars of capital 

investment, and the entrant would have 

to be committed to research and 

development. In addition, the technical 

know-how necessary to design and 

successfully manufacture packaging that 

is able to run efficiently on customers’ 

equipment cost-effectively is difficult to 

obtain. 

Even after a new entrant has 

developed the capability to supply the 

Relevant Products, the entrant must be 

qualified by potential customers, 

demonstrating that it is capable of 

manufacturing products that meet 

rigorous quality and performance 

standards. For example, because the 

qualifying process for natural cheese 

typically requires a shelf-life test, where 

sample products are wrapped in the 

candidate packaging and stored in 

retail-like conditions for extended 

periods of time, the process can take 

many months. Further, there is no 

guarantee that the attempted 

qualification will be successful, and the 

potential entrants may have to repeat 

the process multiple times. In some 

cases, the qualification process has 

taken multiple years and in other cases 

has failed repeatedly. Moreover, because 

customer specifications are unique, 

qualification with one customer does 

not guarantee qualification with 

another. 

Entry of existing packaging firms that 

do not currently produce Relevant 

Products is also unlikely because the 

technical know-how necessary to create 

the Relevant Products is difficult to 

obtain. Also, a company would have to 

pass each customer’s rigorous 

qualification tests. Entry by new firms 

or by existing packaging firms into the 

markets for Relevant Products, 

therefore, likely would not be timely, 

likely, and sufficient to defeat a small 

but significant post-acquisition increase 

in price in the relevant markets. 

III. Explanation of the Proposed Final 

Judgment 

The divestitures required by the 

proposed Final Judgment will eliminate 

the anticompetitive effects that would 

otherwise likely result from Bemis’s 

acquisition of the Alcan Packaging Food 

Americas business. These divestitures 

will preserve competition in the markets 

for the Relevant Products by creating an 

additional independent, economically 

viable competitor to Bemis in the 

United States and Canada for each of the 

Relevant Products. 

The Final Judgment requires the 

divestiture of the entire business that 

currently produces the Alcan Relevant 

Products, which includes all of the 

intangible and non-plant tangible assets 

associated with those products, as well 

as two of the four plants currently 

producing those products. The 

divestiture of the intangible assets 

associated with the Alcan Relevant 

Products is critically important, as it is 

difficult to obtain the know-how 

necessary to design and successfully 

manufacture packaging that is able to 

run efficiently on customers’ 

equipment. The divestiture package 

must also include plants that are already 

successful in producing the Relevant 

Products, as the know-how required to 

create competitive packaging includes 

specialized knowledge of the equipment 

used in producers’ and customers’ 

plants. The collective knowledge and 

experience of the plant management and 

employees will enable an Acquirer to 

compete successfully with Bemis for the 

manufacture and sale of the Relevant 

Products. Divestiture of all the plants 

currently producing the Alcan Relevant 

Products is not necessary to remedy the 

competitive issues presented by the 

Transaction, however; once a critical 

base of knowledge and experience 

regarding the production of the Relevant 

Products is attained, an Acquirer will be 

able to create or expand its own 

physical facilities to accommodate its 

business. 

To this end, the divestiture assets 

include: (1) All tangible assets used 

exclusively or primarily for the research 

and development of any Alcan Relevant 

Product in the United States or Canada; 

(2) all records and documents relating to 

any Alcan Relevant Product in the 

United States or Canada; (3) all 

intangible assets used exclusively or 

primarily in the design, development, 

production, marketing, servicing, 

distribution, or sale of any Alcan 

Relevant Product in the United States or 

Canada; and (4) with respect to any 

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intangible assets not included in (3), 

above, and that prior to the filing of the 

Complaint in this matter were used in 

connection with the design, 

development, production, marketing, 

servicing, distribution, or sale of both 

any Alcan Relevant Product and any 

other Alcan product, a non-exclusive, 

non-transferable license for such 

intangible assets to be used for the 

design, development, marketing, 

servicing, distribution, or sale of any of 

the Relevant Products or the operation 

or use of the plants to be divested. 

These assets are to be divested 

regardless of whether they are currently 

used at the plants to be divested. 

The proposed Final Judgment also 

requires the divestiture of two of the 

four plants currently manufacturing the 

Alcan Relevant Products. The first of 

these plants is the Alcan facility located 

at 905 W. Verdigris Parkway, Catoosa, 

Oklahoma (the ‘‘Catoosa facility’’), 

which exclusively produces flexiblepackaging shrink bags for fresh meat. 

The second plant is the Alcan facility 

located at 271 River Street, Menasha, 

Wisconsin (the ‘‘Menasha facility’’), 

which produces both flexible-packaging 

rollstock for chunk and sliced natural 

cheese packaged for retail sale and 

flexible-packaging rollstock for 

shredded natural cheese packaged for 

retail sale. The Menasha facility also 

contains a wax-coating operation that is 

not associated with the Relevant 

Products and will be moved by Bemis 

to another of its plants. 

The other two plants currently 

producing Alcan Relevant Products are 

the Alcan facility located at 901 

Morrison Drive, Boscobel, Wisconsin 

(the ‘‘Boscobel facility’’) and the Alcan 

facility located at 1500 East Aurora 

Avenue, Des Moines, Iowa (the ‘‘Des 

Moines facility’’). The Boscobel facility 

produces flexible-packaging rollstock 

for shredded natural cheese packaged 

for retail sale and packaging for 

processed meat (which is not a Relevant 

Product), while the Des Moines facility 

produces flexible packaging shrink bags 

for fresh meat and packaging for 

processed meat (which is not a Relevant 

Product). The Boscobel and Des Moines 

facilities produce such a substantial 

quantity of non-Relevant Products that a 

divestiture of those plants likely would 

require either that the plant be split, 

with both Bemis and the Acquirer 

occupying the plant for a significant 

period of time, or that a significant 

amount of business involving nonRelevant Products be transferred to the 

Acquirer. 

By contrast, the Catoosa facility 

exclusively produces Relevant Products, 

and the Menasha facility, while also 

containing a non-relevant wax-coating 

operation, is uniquely situated because 

the wax-coating operation is largely 

confined to a discrete area of the plant 

and can be moved by Bemis to another 

facility with minimal disturbance to the 

Acquirer. The proposed Final Judgment 

requires, therefore, divestiture of the 

Catoosa facility and all related assets, 

and of the Menasha facility and all 

related assets, with the exception of the 

wax-coating operation. 

The only near-term issue created by 

the fact that Bemis will be divesting 

only two of the plants currently 

producing the Relevant Products is that 

the Acquirer(s) may not immediately 

have the capacity to produce the 

quantities of Relevant Products 

currently demanded by customers. 

Thus, supply and transition services 

agreements are contemplated in the 

proposed Final Judgment to allow the 

Acquirer(s) time to build or adapt its 

own facilities to accommodate the new 

production. 

First, because the Alcan shrink bag 

product known as ‘‘Maraflex’’ is not 

produced at either the Menasha facility 

or the Catoosa facility, supply and 

transition services agreements may be 

necessary to ensure that the Acquirer 

will be able immediately to provide 

Maraflex products to customers. 

Therefore, the proposed Final Judgment 

provides that, at the option of the 

Acquirer of the assets relating to the 

Maraflex products, Bemis shall enter 

into a supply contract with that 

Acquirer for Maraflex products 

sufficient to satisfy that Acquirer’s 

obligations under any customer contract 

for a period of up to one (1) year. The 

United States, in its sole discretion, may 

approve an extension of the term for a 

period of up to two (2) additional years. 

In addition, at the option of the 

Acquirer of the assets relating to 

Maraflex products, Bemis shall enter 

into a transition services agreement with 

that Acquirer sufficient to meet all or 

part of that Acquirer’s needs for 

assistance in matters relating to the 

development, production, and service of 

the Maraflex products or technology for 

a period of at least six (6) months, but 

no longer than three (3) years. 

Second, the proposed Final Judgment 

provides for a supply agreement relating 

to the provision of flexible-packaging 

rollstock for shredded natural cheese 

packaged for retail sale. Currently, 

flexible-packaging rollstock for 

shredded natural cheese is produced in 

the Menasha facility and the Boscobel 

facility. While the Menasha facility will 

be divested to an Acquirer, the Boscobel 

facility will be retained by Bemis. As a 

consequence, an Acquirer’s ability 

immediately to produce flexiblepackaging rollstock for shredded natural 

cheese may not be sufficient to satisfy 

the Acquirer’s existing supply 

obligations or to allow the Acquirer to 

expand the business in competition 

with Bemis. Therefore, the proposed 

Final Judgment provides that, at the 

option of the Acquirer of the Menasha 

facility, Bemis shall enter into a supply 

contract with that Acquirer for any 

Relevant Product produced at the 

Boscobel facility, sufficient to satisfy 

that Acquirer’s obligations under any 

customer contract for a period of up to 

one (1) year. The United States, in its 

sole discretion, may approve an 

extension of the term of this supply 

contract for a period of up to one (1) 

additional year. 

Third, because Bemis will retain the 

wax-coating operation currently housed 

in the Menasha facility and move it to 

another of its plants after the 

Transaction is closed, the proposed 

Final Judgment requires that the 

Acquirer of the Menasha facility enter 

into an agreement with Bemis 

permitting Bemis to occupy the portions 

of the Menasha facility utilized for the 

wax-coating operation for a period of no 

longer than three (3) years after the date 

the Transaction is closed. Also, at the 

option of Bemis, the Acquirer of the 

Menasha facility will be required to 

enter into an agreement with Bemis to 

provide Bemis with rotogravure printing 

services for the wax-coating operation at 

the Menasha facility for a period of up 

to twelve (12) months. 

Finally, the proposed Final Judgment 

provides for a supply agreement relating 

to ‘‘Clearshield,’’ which is another Alcan 

shrink bag product. Clearshield is 

produced exclusively at the Catoosa 

facility, which is to be divested. 

However, as a part of the Transaction, 

Bemis will be acquiring an obligation to 

supply Clearshield to certain of Alcan’s 

South American and New Zealand 

affiliates. In order to allow Bemis to 

meet those obligations, the proposed 

Final Judgment provides that, at the 

option of Bemis, the Acquirer of the 

Catoosa facility shall enter into a supply 

contract for the Clearshield products 

sufficient to satisfy Alcan’s or Bemis’s 

obligations to Alcan’s South American 

and New Zealand affiliates for a period 

of up to one (1) year. The United States, 

in its sole discretion, may approve an 

extension of the term of this supply 

contract for a period of up to two (2) 

years. In addition, to allow Bemis to 

continue to supply the Clearshield 

products to those affiliates in the future, 

the proposed Final Judgment provides 

that, at the option of Bemis, the 

Acquirer of the assets relating to the 

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Clearshield products shall enter into an 

agreement to provide Bemis with a nonexclusive, non-transferable license to 

enable Bemis to produce the Clearshield 

products for sale outside the United 

States and Canada. These agreements, 

along with the divestiture of the assets 

described previously, will ensure that 

the Acquirer(s) will be able to 

immediately and fully compete with 

Bemis for the production and sale of 

Relevant Products. 

The proposed Final Judgment also 

provides that, at the option of Bemis, 

the Acquirer(s) must enter into an 

agreement to provide Bemis with a nonexclusive, non-transferable license for 

the intangible assets used primarily in 

the design, development, production, 

marketing, servicing, distribution, or 

sale of any Alcan Relevant Product in 

the United States or Canada that, prior 

to the filing of the Complaint in this 

matter, were also used in connection 

with any other Alcan product. Any such 

license, however, is to be granted for use 

solely in connection with products 

other than the Alcan Relevant Products. 

Bemis will have no rights to the 

intangible assets used exclusively in the 

design, development, production, 

marketing, servicing, distribution, or 

sale of any Alcan Relevant Product in 

the United States or Canada. 

In addition, because certain of the 

intangible assets to be divested 

currently are encumbered by existing 

third-party rights, the proposed Final 

Judgment provides that the Acquirer of 

any asset thus encumbered must enter 

into an agreement with the affected 

third party to provide it with a right to 

that asset under terms and conditions 

sufficient to satisfy defendants’ 

obligations to that third party. 

Bemis is also required to provide the 

Acquirer(s) of the divestiture assets 

information relating to personnel 

involved in the design, development, 

production, marketing, servicing, 

distribution, or sale of the Alcan 

Relevant Products to enable them to 

make offers of employment, and 

prevents Bemis, Rio Tinto or Alcan from 

interfering with any negotiations by the 

Acquirer(s) to employ any employee 

whose primary responsibility is the 

design, development, production, 

marketing, servicing, distribution, or 

sale of the Alcan Relevant Products. The 

proposed Final Judgment further 

requires Bemis, Rio Tinto, and Alcan to 

waive all noncompete agreements for 

any current or former Alcan employee 

involved in the design, development, 

production, marketing, servicing, 

distribution, or sale of any Alcan 

Relevant Product. 

In addition, Bemis may not solicit 

business for any Relevant Product that 

is subject to an unexpired Alcan 

customer contract transferred to an 

Acquirer for a period of one (1) year 

from the date of the divestiture or the 

remaining term of the contract, 

whichever is shorter. This provision is 

necessary to ensure that the Acquirer 

has the full benefit of the transferred 

contracts and the time to demonstrate 

its ability to independently produce the 

Relevant Products. This provision does 

not prevent a customer from seeking 

alternative suppliers at any time that it 

chooses, subject to the terms and 

conditions of its own contract. 

The assets required to be divested 

must be divested in such a way as to 

satisfy the United States in its sole 

discretion that these assets can and will 

be operated by the Acquirer(s) as viable, 

ongoing businesses that can compete 

effectively in the design, development, 

production, marketing, servicing, 

distribution, or sale of the Alcan 

Relevant Products in the United States 

and Canada. These assets may be 

divested to one or more Acquirers, 

provided that the asset listed in 

paragraphs II(E)(2) of the proposed Final 

Judgment (the Menasha facility) is 

divested to the same purchaser as any 

tangible or intangible assets related to 

the design, development, production, 

marketing, servicing, distribution, or 

sale of the Alcan Relevant Products 

produced at the Boscobel facility. 

Defendants must take all reasonable 

steps necessary to accomplish the 

divestitures quickly and shall cooperate 

with prospective purchasers. 

In the event that defendants do not 

accomplish the divestiture within 

ninety (90) days after the filing of the 

Complaint, or five (5) days after notice 

of the entry of the Final Judgment of the 

Court, whichever is later, 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 Bemis 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 and 

terms 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 (6) 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, 

in order 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 that likely 

would result if Bemis acquired the 

Alcan Packaging Food Americas 

business because the Acquirer(s) will 

have the ability to design, develop, 

produce, market, service, distribute, and 

sell the Alcan Relevant Products in the 

United States and Canada, in 

competition with Bemis. 

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 (60) 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 (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement, whichever is later. All 

comments received during this period 

will be considered by the United States 

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 

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2Cf. BNS, 858 F.2d at 464 (holding that the 

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

limited to approving or disapproving the consent 

decree’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (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 in the decree are] so 

inconsonant with the allegations charged as to fall 

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

Register. Written comments should be 

submitted to: Maribeth Petrizzi, Chief, 

Litigation II Section, Antitrust Division, 

United States Department of Justice, 450 

Fifth Street, NW., Suite 8700, 

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 preventing Bemis’s 

acquisition of the Alcan Packaging Food 

Americas business. The United States is 

satisfied, however, that the divestiture 

of the assets described in the proposed 

Final Judgment will preserve 

competition for the design, 

development, production, marketing, 

servicing, distribution, and sale of the 

Relevant Products in the United States 

and Canada. Thus, the proposed Final 

Judgment would achieve all or 

substantially all of the relief the United 

States would have obtained through 

litigation, but avoids the time, expense, 

and uncertainty of a full trial on the 

merits of the Complaint. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a sixtyday 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 in 

accordance with the statute, the court is 

required to 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). In considering 

these statutory factors, the court’s 

inquiry is necessarily a limited one as 

the government is entitled to ‘‘broad 

discretion to settle with the defendant 

within the reaches of the public 

interest.’’ United States v. Microsoft 

Corp., 56 F.3d 1448, 1461 (D.C. Cir. 

1995); see generally United States v. 

SBC Commc’ns, Inc., 489 F. Supp. 2d 1 

(D.D.C. 2007) (assessing public interest 

standard under the Tunney Act); United 

States v. InBev N.V./S.A., 2009–2 Trade 

Cas. (CCH) ¶ 76,736, 2009 U.S. Dist. 

LEXIS 84787, No. 08–1965 (JR), at *3 

(D.D.C. Aug. 11, 2009) (noting that the 

court’s review of a consent judgment is 

limited and only inquires ‘‘into whether 

the government’s determination that the 

proposed remedies will cure the 

antitrust violations alleged in the 

complaint was reasonable, and whether 

the mechanism to enforce the final 

judgment are clear and manageable.’’). 

As the United States Court of Appeals 

for the District of Columbia has held, 

under the APPA a court considers, 

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 Microsoft, 56 

F.3d at 1458–62. 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; United States v. Alcoa, Inc., 

152 F. Supp. 2d 37, 40 (D.D.C. 2001); 

InBev, 2009 U.S. Dist. LEXIS 84787, at 

*3. 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 In 

determining whether a proposed 

settlement is in the public interest, the 

court ‘‘must accord deference to the 

government’s predictions about the 

efficacy of its remedies, and may not 

require that the remedies perfectly 

match the alleged violations.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17; see 

also Microsoft, 56 F.3d at 1461 (noting 

the need for courts to be ‘‘deferential to 

the government’s predictions as to the 

effect of the proposed remedies’’); 

United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003) (noting that the court 

should grant due respect to the United 

States’s prediction as to the effect of 

proposed remedies, its perception of the 

market structure, and its views of the 

nature of the case). 

Courts have greater flexibility in 

approving proposed consent decrees 

than in crafting their own decrees 

following a finding of liability in a 

litigated matter. ‘‘[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. Am. Tel. & Tel. Co., 552 F. 

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

omitted) (quoting United States v. 

Gillette Co., 406 F. Supp. 713, 716 (D. 

Mass. 1975)), 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). 

Therefore, the United States ‘‘need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’ SBC Commc’ns, 489 F. Supp. 2d 

at 17. 

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; see also InBev, 2009 U.S. 

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9946 Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Notices 

3The 2004 amendments substituted the word 

‘‘shall’’ for ‘‘may’’ when directing the courts to 

consider the enumerated factors and amended the 

list of factors to focus on competitive considerations 

and address potentially ambiguous judgment terms. 

Compare 15 U.S.C. 16(e) (2004), with 15 U.S.C. 

16(e)(1) (2006); see also SBC Commc’ns, 489 F. 

Supp. 2d at 11 (concluding that the 2004 

amendments ‘‘effected minimal changes’’ to Tunney 

Act review). 

4See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977) (‘‘Absent 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.’’); S. Rep. No. 

93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where 

the public interest can be meaningfully evaluated 

simply on the basis of briefs and oral arguments, 

that is the approach that should be utilized.’’). 

Dist. LEXIS 84787, at *20 (‘‘the ‘public 

interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged’’). 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. 

Microsoft, 56 F.3d at 1459–60. As this 

Court confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ 489 

F. Supp. 2d at 15. 

In its 2004 amendments to the 

Tunney Act,3 Congress made clear its 

intent to preserve the practical benefits 

of utilizing consent decrees in antitrust 

enforcement, stating: ‘‘[n]othing 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). The 

language wrote into the statute what 

Congress intended when it enacted the 

Tunney Act in 1974, as Senator Tunney 

explained: ‘‘[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). Rather, the 

procedure for the public interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains sharply 

proscribed by precedent and the nature 

of Tunney Act proceedings.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 11.4

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: February 24, 2010. 

Respectfully submitted. 

Rachel J. Adcox, 

U.S. Department of Justice, Antitrust 

Division, Litigation II Section, 450 Fifth 

Street, NW., Suite 8700, Washington, DC 

20530, (202) 305–2738. 

Certificate of Service 

I, Rachel J. Adcox, hereby certify that 

on February 24, 2010, I caused a copy 

of the foregoing Competitive Impact 

Statement to be served upon defendants 

Bemis Company, Inc., Rio Tinto plc, and 

Alcan Corporation by mailing the 

documents electronically to the duly 

authorized legal representatives of 

defendants as follows: 

Counsel for Defendant Bemis Company, 

Inc.: 

Stephen M. Axinn, Esq., John D. 

Harkrider, Esq., Axinn, Veltrop & 

Harkrider LLP, 114 West 47th 

Street, New York, NY 10036, (212) 

728–2200, sma@avhlaw.com, 

jdh@avhlaw.com. 

Counsel for Defendants Rio Tinto plc 

and Alcan Corporation: 

Steven L. Holley, Esq., Bradley P. 

Smith, Esq., Sullivan & Cromwell 

LLP, 125 Broad Street, New York, 

NY 10004, (212) 558–4737, 

holleys@sullcrom.com, 

smithbr@sullcrom.com. 

Rachel J. Adcox, Esq., 

United States Department of Justice, 

Antitrust Division, Litigation II Section, 450 

Fifth Street, NW., Suite 8700, Washington, 

DC 20530, (202) 616–3302. 

[FR Doc. 2010–4550 Filed 3–3–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Keyspan Corporation; 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the Southern District 

of New York in United States of 

America v. KeySpan Corp., Civil Case 

No. 10–CIV–1415. On February 22, 

2010, the United States filed a 

Complaint alleging that KeySpan 

Corporation (‘‘KeySpan’’) entered into an 

agreement with a financial services 

company, the likely effect of which was 

to increase prices in the New York City 

(NYISO Zone J) Capacity Market, in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. The proposed Final 

Judgment, filed the same time as the 

Complaint, requires KeySpan to pay the 

government $12 million dollars. 

Copies of the Complaint, proposed 

Final Judgment and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

450 Fifth Street, NW., Suite 1010, 

Washington, DC 20530 (telephone: 202– 

514–2481), on the Department of 

Justice’s Web site at http:// 

www.justice.gov/atr, and at the Office of 

the Clerk of the United States District 

Court for the Southern District of New 

York. Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

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 Donna N. 

Kooperstein, Chief, Transportation, 

Energy, and Agriculture Section, 

Antitrust Division, U.S. Department of 

Justice, 450 Fifth Street, NW., Suite 

8000, Washington, DC 20530 

(telephone: 202–307–6349). 

Patricia A. Brink, 

Deputy Director of Operations and Civil 

Enforcement. 

United States District Court for the 

Southern District of New York 

Civil Action No.: 10–cv–1415 (WHP) 

ECF CASE 

United States of America, U.S. Department 

of Justice, Antitrust Division, 450 5th Street, 

NW., Suite 8000, Washington, DC 20530, 

Plaintiff, v. Keyspan Corporation, 1 

Metrotech Center, Brooklyn, NY 11201, 

Defendant. 

Received: February 22, 2010 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action under Section 4 of 

the Sherman Act, as amended, 15 U.S.C. 

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