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[Federal Register Volume 72, Number 82 (Monday, April 30, 2007)]
[Notices]
[Pages 21286-21298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2087]

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DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Amsted Industries, Inc.; Proposed Final Judgment 
and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act (``APPA''), 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 of America v. Amsted Industries. 
Inc., Civil Action No. 1:07-cv-00710. On April 18, 2007, the United 
States filed a Complaint alleging that the acquisition by Amsted 
Industries (``Amsted'') of the end-of-car cushioning assets (``EOCCs'') 
of FM Industries (``FMI''), a subsidiary of Progress Rail Services 
Holding Corporation, violated Section 7 of the Clayton Act, 15 U.S.C. 
18, and Section 2 of the Sherman Act, 15 U.S.C. 2. The proposed Final 
Judgment, filed at the same time as the Complaint, requires Amsted to 
divest without compensation all FMI intangible assets and all FMI tools 
and patterns used for imparting the shape, form, or finish to EOCCs. 
The proposed Final Judgment also requires Amsted to license royalty 
free and in perpetuity certain Amsted intangible assets and to make 
available all Amsted tools and patterns used for imparting the shape, 
form, or finish to EOCCs. Finally, the proposed Final Judgment requires 
Amsted to release market participants from restrictive covenants, as 
well as to notify the United States of future transactions.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection at the U.S. Department of 
Justice, Antitrust Division, Antitrust Documents Group, 325 7th Street, 
NW., Room 215, Washington, DC 20530 (telephone: 202-514-2481), on the 
Department of Justice's Web site at http://www.usdoj.gov/atr, and at 
the Clerk 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, Antitrust Division, 
Department of Justice, Washington, DC 20530, (telephone: 202-307-0924).

J. Robert Kramer II,
Director of Operations, Antitrust Division.

United States District Court for the District of Columbia

    United States of America, Department of Justice, Antitrust 
Division, 1401 H Street, NW., Suite 3000, Washington, DC 20530, 
Plaintiff, v. Amsted Industries, Inc., Two Prudential Plaza, 180 
North Stetson Street, Suite 1800, Chicago, IL 60601, Defendant. Case 
No. 1:07-CV-00710. Judge: Bates, John D. Deck Type: Antitrust. Date 
Stamp: April 18, 2007.

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil antitrust 
action to obtain equitable and other relief against defendant Amsted 
Industries, Inc. (``Amsted'') to remedy the harm to competition caused 
by Amsted's acquisition of FM Industries (``FMI''). The United States 
alleges as follows:

I. Nature of Action

    1. Prior to Amsted's acquisition of FMI on December 1, 2005, the 
two firms vigorously competed with each other to sell new and 
reconditioned end-of-car cushioning units (``IEOCCs'') to railroads 
throughout the United States.
    2. Amsted's acquisition of FMI has reduced the number of new EOCC 
suppliers from two to one, resulting in a merger to monopoly. The 
transaction also has reduced the number of reconditioned EOCC suppliers 
from three to two. Amsted's acquisition of FMI consolidated 90 percent 
of all EOCC sales in the United States.
    3. The transaction has substantially lessened competition in the 
design, manufacture, and sale of new and reconditioned EOCCs and has 
created a monopoly in the design, manufacture, and sale of new EOCCs. 
As a result, prices for new and reconditioned EOCCs have increased and 
likely will continue to increase, the quality of EOCCs likely will 
decline, innovation relating to EOCCs likely will decline, and services 
currently offered in the EOCC markets have become and will continue to 
be less favorable to railroad customers. The United States, through 
this suit, asks the court to declare the defendant's conduct illegal 
and to restore the benefits of competition that were lost as a result 
of the transaction.

II. Jurisdiction and Venue

    4. The United States brings this action against defendant Amsted 
under Section 15 of the Clayton Act, 15 U.S.C. 25, as

[[Page 21287]]

amended, to prevent and restrain Amsted from continuing to violate 
Section 7 of the Clayton Act, 15 U.S.C. 18, and Section 2 of the 
Sherman Act, 15 U.S.C. 2.
    5. Defendant designs, manufactures, and sells new and reconditioned 
EOCCs in the flow of interstate commerce. Defendant's activities in 
designing, manufacturing, and selling EOCCs substantially affect 
interstate commerce. This Court has subject matter jurisdiction over 
this action and over the defendant pursuant to Section 12 of the 
Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1331, 1337(a), and 1345.
    6. Venue is proper in this district pursuant to 28 U.S.C. 1391(c). 
Defendant has consented to venue and personal jurisdiction in this 
judicial district.

III. Parties to the Transaction

    7. Amsted is a Delaware corporation with its principal place of 
business in Chicago, Illinois. Amsted's EOCC sales in the United States 
are made through its wholly owned subsidiary, ASF-Keystone. ASF-
Keystone is a Delaware corporation with its principal place of business 
in Granite City, IL. Amsted is a diversified manufacturer of industrial 
components for the railroad, vehicular, and construction markets. 
Amsted's products include a range of railroad car parts, including 
couplers, side frames, bolsters, draft gears, and EOCCs. In 2005, 
Amsted had approximately $2.5 billion in sales. Amsted's EOCC 
manufacturing facility is located in Camp Hill, PA. Amsted's new and 
reconditioned EOCCs are shipped to customers throughout the United 
States and account for approximately $22 million in sales.
    8. Progress Rail Services Holding Corporation (``Progress Rail'') 
is a Delaware corporation with its principal place of business in 
Albertville, AL and is a wholly owned subsidiary of Caterpillar, Inc., 
a Delaware corporation. Progress Rail is one of the largest suppliers 
of new and reconditioned railroad car parts, rail and trackwork 
components, and railroad car repair services to the railroad industry 
in the United States. Progress Rail has manufacturing facilities in 23 
states, Canada, and Mexico. In 2005, Progress Rail had approximately 
$1.2 billion in sales.
    9. Progress Rail's EOCC sales in the United States were made 
through its wholly owned subsidiary, FMI, formerly a Texas corporation 
with its principal place of business and EOCC manufacturing facility in 
Fort Worth, TX. FMI shipped new and reconditioned EOCCs to customers 
throughout the United States. In 2005, FMI had sales of approximately 
$24 million.

IV. The Transaction

    10. On December 1, 2005, Amsted and Progress Rail completed an 
asset swap by which Progress Rail conveyed to Amsted its wholly owned 
subsidiary, FMI. On April 25, 2006, Amsted dismantled FMI by firing its 
employees and disposing of virtually all FMI plant equipment through an 
auction.

V. Trade and Commerce

A. The Relevant Product Markets
    11. All freight cars undergo considerable stress from 
``longitudinal'' forces, or forces exerted along the length of the 
train. During transit, freight cars are subjected to alternating 
longitudinal forces called draft and buff forces. Draft forces are 
pulling forces caused by train acceleration when freight cars are 
stretched or pulled apart. Buff forces are compressive forces caused by 
train deceleration when freight cars are pushed together. Freight cars 
also undergo considerable stress during switching and coupling at train 
depots. In order for a railroad to connect one freight car to another, 
it must collide the cars at significant speed. The impacts sustained 
during switching and coupling, like draft and buff forces, can cause 
serious damage to sensitive cargo inside a freight car.
    12. All freight cars are equipped with some type of energy 
absorption device to mitigate the effects of draft, buff, and coupling 
stresses. The most common device is a draft gear, which provides the 
minimum protection required for safe railroad operation. Draft gears 
rely on friction between two steel plates to absorb and dissipate the 
energy created by longitudinal forces impacting the freight car. 
Another type of device is commonly referred to as an ``elastomeric 
device.'' Elastomeric devices are lightweight and low cost, but they 
are not suitable for all applications as they return much of the 
absorbed energy back into the draft system.
    13. Railroads must use EOCCs, a specialized energy absorption 
device, when transporting sensitive cargos on freight cars. These shock 
absorbing devices use hydraulics (e.g., pressurized nitrogen gas and 
oils) to minimize longitudinal forces by absorbing and dissipating the 
maximum buff, draft, and coupling forces experienced during transit. By 
reducing and absorbing the forces exerted on freight cars, EOCCs ensure 
that sensitive cargo is not damaged during transit. Each EOCC unit 
consists of a piston, shaft, cylinder, end bells, and a rod that 
attaches the piston to the freight car coupler. Each EOCC-equipped 
freight car requires two EOCCs, one at each end of the freight car.
    14. Other energy absorption devices, such as draft gears and 
elastomeric devices, do not provide the necessary level of cushioning 
required by customers shipping sensitive goods on freight cars. EOCCs 
therefore are critical components for freight cars carrying sensitive 
commodities, such as steel coils, automobile products, electronics, 
lumber, and paper products. Railroads and new freight car builders do 
not consider the price or availability of draft gears or elastomeric 
devices when soliciting prices for EOCCs from prospective suppliers.
    15. Though sensitive cargos can be transported by ``intermodal'' 
freight cars with articulated connectors, railroads cannot substitute 
intermodal transportation for freight cars equipped with EOCCs. 
Intermodal freight cars are specially designed railcars that allow 
standard cargo containers to be stacked for rail transport. The cars 
must travel in groups connected by a ``slackless'' articulated coupling 
system. The coupling system transfers longitudinal forces to the ends 
of the intermodal group, protecting the containers from damage. 
Intermodal freight cars with articulated connectors do not provide 
sufficient cushioning for sensitive commodities, cannot physically 
transport certain sensitive commodities (such as automobiles and 
certain lumber products), and are subject to additional costs and 
operational constraints. When soliciting prices for EOCCs from 
prospective suppliers, railroad customers do not consider the cost or 
availability of transporting goods using intermodal freight cars.
    16. Accordingly, railroad customers can use only freight cars 
equipped with EOCCs to carry certain sensitive goods and cannot 
substitute draft gears, elastomeric devices, or intermodal transport 
for EOCCs on freight cars.
    17. Railroad customers use either new or reconditioned EOCCs when 
equipping freight cars. However, customers building new freight cars 
almost always are required to use only new EOCCs in construction. Thus, 
customers building new freight cars would be unable to substitute 
reconditioned EOCCs in building new cars.
    18. Similarly, customers servicing older freight cars that have 
been in service for more than a decade almost always choose 
reconditioned EOCCs because the cost of reconditioned units is 
substantially lower than the cost of

[[Page 21288]]

new units. Thus, customers are unlikely to substitute new EOCCs for 
reconditioned EOCCs for use on older freight cars.
    19. A small but significant increase in the price of new EOCCs 
would not cause purchasers to substitute draft gear, elastomeric 
devices, intermodal cars, or reconditioned EOCCs so as to make such a 
price increase unprofitable. Accordingly, the design, manufacture, and 
sale of new EOCCs is a separate and distinct line of commerce and a 
relevant product market for the purpose of analyzing the effects of the 
acquisition under Section 7 of the Clayton Act and Section 2 of the 
Sherman Act.
    20. A small but significant increase in the price of reconditioned 
EOCCs would not cause purchasers to substitute draft gear, elastomeric 
devices, intermodal cars, or new EOCCs so as to make such a price 
increase unprofitable. Accordingly, the design, manufacture, and sale 
of reconditioned EOCCs is a separate and distinct line of commerce and 
a relevant product market for the purpose of analyzing the effects of 
the acquisition under Section 7 of the Clayton Act and Section 2 of the 
Sherman Act.
B. The Relevant Geographic Market
    21. All EOCCs in the United States are designed, manufactured, and 
sold in the United States. Amsted sells, and FMI sold, EOCCs to 
customers located throughout the United States.
    22. The United States is the relevant geographic market for 
purposes of analyzing the effects of the acquisition under Section 7 of 
the Clayton Act and Section 2 of the Sherman Act.
C. Anticompetitive Effects
    23. Before Amsted's acquisition of FMI, the markets for EOCCs were 
highly concentrated. For new EOCCs, the merging entities were the only 
two suppliers. For reconditioned EOCCs, the market was limited to three 
suppliers, and the merging parties had a combined market share of over 
80%. The markets became substantially more concentrated following the 
acquisition. Using the Herfindahl-Hirschman Index (``HHI''), an 
explanation of which appears in Appendix A attached hereto, the 
transaction resulted in a post-merger concentration of over 7000 (an 
increase of over 2700) in the market for reconditioned EOCCs, while the 
consolidation in the market for new EOCCs resulted in a monopoly.
    24. Amsted and FMI directly constrained each other's prices, 
limiting overall price increases for new and reconditioned EOCCs 
despite significant materials cost increases. Before the transaction, 
Amsted created forecasts that contemplated significant price increases 
resulting from the merger. These price increases were aimed at 
achieving certain margin targets each year that would result in total 
additional profits of over $17 million during the first three years 
following the acquisition. According to the forecasts, achieving this 
goal would require an overall price increase of 4% in 2006, 10% in 
2007, and 5% in 2008, beyond increases in costs.
    25. Amsted pricing data shows that Amsted raised prices 
substantially following its acquisition of FMI. For new EOCCs, 
customers who did not have the pricing protection of long-term 
contracts paid on average approximately 14% more in February 2006 than 
they did in November 2005. For reconditioned EOCCs, customers without 
long-term contracts paid an average increase of approximately 5% during 
the same time period.
    26. Purchasers of new and reconditioned EOCCs in the United States 
benefitted from the vigorous and aggressive competition between Amsted 
and FMI through lower prices, higher quality, more innovation, and 
better service. Without the competitive constraint of head-to-head 
competition from FMI, Amsted has had and will continue to have the 
ability to exercise market power by raising prices, lowering product 
quality, decreasing services, and lessening product innovation.
    27. The acquisition by Amsted of FMI has removed a significant 
competitor in the already highly concentrated new and reconditioned 
EOCC markets. The resulting substantial increase in concentration and 
loss of competition has denied EOCC customers the benefits of 
competition, in violation of Section 7 of the Clayton Act and Section 2 
of the Sherman Act.
D. Entry Into the Production and Sale of New and Reconditioned EOCCs
    28. Entry into the design, manufacture, and sale of new or 
reconditioned EOCCs will not be timely, likely, or sufficient to 
counter the anticompetitive effects of the transaction. A new entrant 
to either market would require certifications and approvals from the 
Association of American Railroads (``AAR''), including facility 
certification and design certification for each EOCC model to be 
manufactured or reconditioned. Additionally, the AAR requires that a 
new entrant undergo a conditional approval period during which 
production is monitored and significantly limited.
    29. It is essential that a new entrant into either the new or 
reconditioned EOCC markets have sufficient technical know-how regarding 
the product in order to design and sell EOCCs. Thus, a new entrant must 
invest in significant design and engineering expertise in order to 
create the necessary tooling and intellectual property required to 
successfully manufacture new or reconditioned EOCCs according to AAR 
standards and railroad customer requirements.
    30. A new entrant into the new or reconditioned EOCC markets also 
must produce EOCCs in sufficient quantities and with sufficiently 
consistent quality to assure railroad customers that the new and 
reconditioned EOCCs will provide the necessary level of cushioning 
required to protect sensitive cargo. Achieving this quality reputation 
requires an additional investment in time and money by any new entrant.
    31. Although the manufacturing processes for new and reconditioned 
EOCCs are similar, both require unique inputs that are not readily 
available in the marketplace. For example, the manufacture of new EOCCs 
requires the use of patented designs and proprietary molds that are not 
needed in the reconditioning process. Similarly, the manufacture of 
reconditioned EOCCs requires the application of certain machining 
techniques and testing processes that are unique to the EOCC 
reconditioning market.
    32. Therefore, entry by any firm into the new or reconditioned EOCC 
markets would not be timely, likely, or sufficient to counter 
anticompetitive price increases imposed by Amsted.

VI. First Cause of Action (Violation of Section 7 of the Clayton Act)

    33. The United States incorporates the allegations of paragraphs 1 
through 32 above.
    34. On or about December 1, 2005, Amsted acquired FMI and its 
associated EOCC assets used in the manufacture of new and reconditioned 
EOCCs. The effect of this acquisition has been substantially to lessen 
competition in interstate trade and commerce in violation of Section 7 
of the Clayton Act.
    35. The transaction has had the following effects, among others:
    a. Competition in the new and reconditioned EOCC markets has been 
lessened substantially;
    b. Actual and potential competition between Amsted and FMI in the 
design, manufacture, and sale of new and reconditioned EOCCs in the 
United States has been eliminated; and

[[Page 21289]]

    c. Prices for new and reconditioned EOCCs have increased and likely 
will continue to increase, the quality of EOCCs likely will decline, 
innovation relating to EOCCs likely will decline, and services 
currently offered in the EOCC markets have become and will continue to 
be less favorable to railroad customers.

Second Cause of Action (Violation of Section 2 of the Sherman Act)

    36. The United States incorporates the allegations of paragraphs 1 
through 32 above.
    37. On or about December 1, 2005, Amsted willfully created monopoly 
power by acquiring FMI, its only competitor in the manufacture and sale 
of new EOCCs. The effect of this acquisition has been to create a 
monopoly in violation of Section 2 of the Sherman Act.
    38. The transaction has had the following effects, among others:
    a. The combination created a monopoly for the sale of new EOCCs in 
the United States;
    b. Actual and potential competition between Amsted and FMI in the 
design, manufacture, and sale of new EOCCs in the United States has 
been eliminated; and
    c. Prices for new EOCCs have increased and likely will continue to 
increase, the quality of new EOCCs likely will decline, innovation 
relating to new EOCCs likely will decline, and services currently 
offered in the new EOCC market have become and will continue to be less 
favorable to railroad customers.

VII. Requested Relief

    39. The United States requests that this Court:
    a. Adjudge and decree the acquisition of FMI and its assets by 
defendant Amsted to violate Section 7 of the Clayton Act, 15 U.S.C. 18 
and Section 2 of the Sherman Act, 15 U.S.C. 2;
    b. Compel Amsted to divest all FMI EOCC intangible assets, in 
addition to all tools and patterns used for imparting the shape, form, 
or finish of EOCC components, and to take any further actions necessary 
to restore the market to the competitive position that existed prior to 
the acquisition;
    c. A ward the United States the cost of this action; and
    d. Grant the United States such other and further relief as the 
case requires and the Court deems just and proper.

     Respectfully submitted,

April 18, 2007.

For Plaintiff United States:

/s/--------------------------------------------------------------------
Gerald F. Masoudi Bar No. 466120,

Deputy Assistant Attorney General.

/s/--------------------------------------------------------------------
J. Robert Kramer II,

Director of Operations.

/s/--------------------------------------------------------------------
Maribeth Petrizzi Bar No. 435204,

Chief, Litigation II Section.

Dorothy B. Fountain Bar No. 439469,

Assistant Chief, Litigation II Section.

/s/--------------------------------------------------------------------
C. Scott Hataway Bar No. 473942,

Raven M. Norris,

Robert W. Wilder,

Attorneys U.S. Department of Justice Antitrust Division, Litigation 
II Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530.

Appendix A--Herfindahl-Hirschman Index

    ``HHI'' means the Herfindahl-Hirschman Index, a commonly 
accepted measure of market concentration. It 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 thirty, thirty, twenty, and 
twenty percent, the HHI is 2600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 
2600). The HHI takes into account the relative size and distribution 
of the firms in a market and approaches zero when a market consists 
of a large number of firms of relatively equal size. The HHI 
increases both as the number of firms in the market decreases and as 
the disparity in size between those firms increases.
    Markets in which the HHI is between 1000 and 1800 points are 
considered to be moderately concentrated and those in which the HHI 
is in excess of 1800 points are considered to be highly 
concentrated. Transactions that increase the HHI by more than 100 
points in highly concentrated markets presumptively raise antitrust 
concerns under the Horizontal Merger Guidelines issued by the U.S. 
Department of Justice and the Federal Trade Commission. See 
Horizontal Merger Guidelines Sec.  1.51.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on April 18, 2007, and the United States and defendant, Amsted 
Industries, Inc. (``Amsted''), 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, Amsted agrees 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 and assets by Amsted to assure 
that competition is substantially restored;
    And whereas, the United States requires Amsted to make certain 
divestitures, grant certain licenses, release all market participants 
of any Restrictive Covenants, and provide notification of any future 
transactions within 10 years of this Final Judgment for the purpose of 
remedying the lost competition alleged in the Complaint;
    And Whereas, Amsted has represented to the United States that the 
divestitures, license grants, release of Restrictive Covenants, and 
notification of future transactions, as required below, can and will be 
made and that Amsted 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 Amsted under Section 7 of the Clayton 
Act, 15 U.S.C. 18, as amended, and Section 2 of the Sherman Act, 15 
U.S.C. 2.

II. Definitions

    As used in this Final Judgment:
    A. ``Amsted'' means defendant Amsted Industries, Inc., a Delaware 
corporation with its headquarters in Chicago, IL, its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and their directors, officers, 
managers, agents, and employees.
    B. ``FMI'' means FM Industries, Inc., a Texas corporation and 
former subsidiary of Progress Rail, engaged in the development, 
production, and sale of EOCCs until it was acquired by Amsted on 
December 1, 2005.
    C. ``Progress Rail'' means Progress Rail Services Holding 
Corporation, a Delaware corporation with headquarters in Albertville, 
AL, its successors and assigns, and its subsidiaries, divisions, 
groups, affiliates, partnerships, and joint ventures, and their 
directors, officers, managers, agents and employees.
    D. ``EOCC'' means end-of-car cushioning unit, a hydraulic energy 
absorption device used to absorb and dissipate buff, draft, and 
coupling forces exerted on freight railcars.
    E. ``Acquirer'' means Wabtec Corporation, the entity to whom Amsted

[[Page 21290]]

shall divest the Divested Assets and grant the Supplemental Asset 
License.
    F. ``Alternative Acquirer'' means the entity to whom Amsted shall 
divest the Divested Assets and grant the Supplemental Asset License in 
the event that the Acquirer is unable or unwilling to receive the 
Divested Assets or the Supplemental Asset License.
    G. ``Divested Assets'' means all FMI intangible assets owned or 
controlled by Amsted and all FMI tools and patterns owned or controlled 
by Amsted and used for imparting the shape, form, or finish to EOCC 
components, including:
    1. All detail and arrangement drawings, customer drawings, 
schematics, blueprints, designs, design validation testing reports, and 
design review notes;
    2. All specifications, manufacturing plans, assembly instructions, 
standard operating procedures, and work instructions related to the 
manufacturing process, including those related to tool speeds, feeds, 
special cutting tools, materials used, grinding and polishing, plating 
temperatures and processes, material thicknesses, seals, welding, and 
heat treatment;
    3. All dies, castings, patterns, molds, models, toolings, fixtures, 
jigs, and gages;
    4. All safety procedures and quality assurance documentation and 
instructions, including quality control plans, inspection frequency and 
criteria, work instructions, testing criteria, supplier manufacturing 
requirements, regulatory certifications, testing equipment 
specifications, surface finish instrument specifications, pressure/
leakage testing and specifications, gage specifications, product 
validation, qualification, acceptance, and rejection criteria, and all 
related empirical performance measurements, data, and reports;
    5. All supplier contact lists, customer contact lists, material 
lists, materials safety data sheets, substitute material lists, 
historic pricing and sales volume information, customer complaints, 
product serialization data, warranty information, product failure 
reports, market analyses, and all contracts, agreements, leases, 
commitments, or understandings with suppliers or customers;
    6. All intellectual property (``IP'') assets or rights that have 
been used in the development, production, servicing, and sale of EOCCs, 
including but not limited to the names ``FMI,'' ``FM Industries,'' and 
``Freight Master,'' all patents, including FMI's patented active draft 
technology (U.S. patent number 6,237,733 ``Internal neutral Positioning 
Spring''), all licenses, rights, and sublicenses, trademarks, trade 
names, service marks, service names, technical information, computer 
software and related documentation, know-how, trade secrets, approvals, 
certifications, advertising literature, and all manuals and technical 
information provided to the employees, customers, suppliers, agents, or 
licensees of FMI; and
    7. All research data concerning historic and current research and 
development efforts, including designs of experiments, and the results 
of unsuccessful designs and experiments relating to the production and 
design of EOCCs.

Among the Divested Assets, the divestiture of U.S. Patent number 
6,237,733 ``Internal Neutral Positioning Spring'' will be transferred 
subject to a perpetual, royalty-free license to Amsted.

    H. ``Person'' means any natural person, corporate entity, 
partnership, association, joint venture, government entity, or trust.
    I. ``Restrictive Covenants'' means all agreements, contracts, 
understandings, or arrangements between Amsted and any other person 
restricting competition in the development, production, and sale of 
EOCCs, including non-compete agreements between Amsted and former FMI 
employees; non-compete agreements between Amsted and current or former 
Amsted employees; and any exclusivity arrangements between Amsted and 
any of its suppliers or customers. The term Restrictive Covenants does 
not include Section 8.7 ``Post-Closing Non-Compete'' of Amsted's Asset 
Purchase Agreement with Progress Rail dated December 1, 2005. The term 
Restrictive Covenants does not include agreements between Amsted and 
Amsted's current and former employees to the extent those agreements 
prevent the disclosure of confidential information.
    J. ``Supplemental Asset License'' means a perpetual royalty-free 
license to and copy of all Amsted's intangible assets used in the 
development, production, or sale of EOCCs, and a limited license to use 
certain Amsted tangible assets used in the development, production, or 
sale of EOCCs, including:
    1. All detail and arrangement drawings, customer drawings, 
schematics, blueprints, designs, design validation testing reports, and 
design review notes;
    2. All specifications, manufacturing plans, assembly instructions, 
standard operating procedures, and work instructions related to the 
manufacturing process, including those related to tool speeds, feeds, 
special cutting tools, materials used, grinding and polishing, plating 
temperatures and processes, material thicknesses, seals, welding, and 
heat treatment;
    3. The use for two (2) years of all Amsted-owned or controlled 
dies, castings, patterns, molds, models, toolings, fixtures, jigs, and 
gages employed by Amsted suppliers in the production of EOCC 
components;
    4. All safety procedures and quality assurance documentation and 
instructions, including quality control plans, inspection frequency and 
criteria, work instructions, testing criteria, supplier manufacturing 
requirements, testing equipment specifications, surface finish 
instrument specifications, pressure/leakage testing and specifications, 
gage specifications, product validation, qualification, acceptance, and 
rejection criteria, and all related empirical performance measurements, 
data, and reports; and
    5. Amsted's patented active draft technology, U.S. Patent number 
6,357,612 ``Rail Car Cushioning Device;''

The term ``Supplemental Asset License'' shall not include tangible or 
intangible assets exclusively used in the production or sale of 
products other than EOCCs, and also shall not include Amsted cost data, 
price data, revenue data, research and development information, or 
customer contract information.

III. Applicability

    A. This Final Judgment applies to Amsted, as defined above, and all 
other persons in active concert or participation with it who receive 
actual notice of this Final Judgment by personal service or otherwise.
    B. Amsted shall require, as a condition of the sale or other 
disposition of all or substantially all of their assets or of lesser 
business units that include the Divested Assets, or the assets 
underlying the Supplemental Asset License, that the purchaser will 
agree to be bound by the provisions of this Final Judgment.

IV. Divestiture

    A. Amsted is hereby ordered and directed, within sixty (60) 
calendar days after the filing of the Complaint in this matter, or five 
(5) days after notice of the entry of this Final Judgment by the Court, 
whichever is later, to divest the Divested Assets and grant the 
Supplemental Asset License to the Acquirer, all in a manner consistent 
with this Final Judgment. The United States, in its sole discretion, 
may agree to one or more extensions of this time period not to exceed 
sixty (60) days in

[[Page 21291]]

total, and shall notify the Court in such circumstances. Amsted agrees 
to use its best efforts to divest the Divested Assets and grant the 
Supplemental Asset License as expeditiously as possible. Amsted also 
agrees that it shall receive no compensation or anything of value for 
divesting the Divested Assets or granting the Supplemental Asset 
License pursuant to this Final Judgment.
    B. In accomplishing the divestiture and licenses ordered by this 
Final Judgment, Amsted promptly shall inform the Acquirer that the 
Divested Assets and Supplemental Asset License are being conveyed 
pursuant to this Final Judgment and provide the Acquirer a copy of this 
Final Judgment. Amsted shall offer to furnish to the Acquirer, subject 
to customary confidentiality assurances, all information and documents 
relating to the Divested Assets and Supplemental Asset License 
customarily provided in a due diligence process, except such 
information or documents subject to the attorney-client or work-product 
privileges. Amsted shall make available such information to the United 
States at the same time that such information is made available to any 
other person.
    C. Amsted shall permit the Acquirer to have reasonable access to 
personnel and to any and all financial, operational, or other documents 
and information customarily provided as part of a due diligence 
process. Amsted shall provide information giving the identity and 
function of the personnel involved in the operation and management of 
both Amsted and FMI to enable the Acquirer to make offers of 
employment. Amsted will not interfere with any negotiations by the 
Acquirer to employ any Amsted employee.
    D. Amsted shall unilaterally release all persons from any 
Restrictive Covenants related to the production, development, or sale 
of EOCCs. If after one year from the entry of this Final Judgment, the 
Acquirer has failed to deliver an EOCC manufactured or reconditioned by 
the Acquirer to a railroad industry customer, Amsted shall also 
unilaterally release Progress Rail from Section 8.7 of Amsted's Asset 
Purchase Agreement with Progress Rail dated December 1, 2005 (''Post-
Closing Non-Compete'').
    E. Amsted shall preserve and maintain the Divested Assets and the 
assets licensed under the Supplemental Asset License and shall not 
license, transfer, encumber, or otherwise impair the value of such 
assets while the divestiture is pending.
    F. Amsted shall use commercially reasonable efforts to facilitate 
the transfer of EOCC cores from Amsted's facilities at the request of 
railroad customers. Amsted shall take no action the effect of which is 
to interfere with or impede the transfer of EOCC cores owned by 
railroad customers to the Acquirer or the ability of the Acquirer to 
compete effectively in the sale of reconditioned EOCCs.
    G. Amsted shall not take any action that will impede in any way the 
permitting, operation, or divestiture of the Divested Assets or 
Supplemental Asset License.
    H. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV of this Final Judgment shall include 
the entire Divested Assets and Supplemental Asset License, and shall be 
accomplished in such a way as to satisfy the United States, in its sole 
discretion, that the Divested Assets and Supplemental Asset License can 
and will be used by the Acquirer as part of an economically viable, 
ongoing business engaged in the production and sale of EOCCs in the 
United States. The divestiture shall be accomplished so as to satisfy 
the United States, in its sole discretion, that:
    1. The Divestiture Assets and Supplemental Asset License will 
remain viable and that the divestiture will remedy the competitive harm 
alleged in the Complaint; and
    2. None of the terms of any agreement between the Acquirer and 
Amsted gives Amsted the ability unreasonably to raise the Acquirer's 
costs, to lower the Acquirer's efficiency, or otherwise to interfere in 
the ability of the Acquirer to compete effectively in the production 
and sale of EOCCs.

V. Appointment of Trustee To Effect Divestiture

    A. In the event that the Acquirer is unable or unwilling to receive 
the Divested Assets and Supplemental Asset License, Amsted 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 
Divested Assets and the grant of the Supplemental Asset License in a 
manner consistent with this Final Judgment to an Alternative Acquirer 
approved by the United States in its sole discretion.
    B. Amsted shall use commercially reasonable efforts to facilitate 
the transfer of EOCC cores from Amsted's facilities at the request of 
railroad customers. Amsted shall take no action the effect of which is 
to interfere with or impede the transfer of EOCC cores owned by 
railroad customers to the Alternative Acquirer or the ability of the 
Alternative Acquirer to compete effectively in the sale of 
reconditioned EOCCs.
    C. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section V of this Final Judgment shall include 
the entire Divested Assets and Supplemental Asset License, and shall be 
accomplished in such a way as to satisfy the United States, in its sole 
discretion, that the Divested Assets and Supplemental Asset License can 
and will be used by the Alternative Acquirer as part of an economically 
viable, ongoing business engaged in the production and sale of EOCCs in 
the United States. The divestiture shall be accomplished so as to 
satisfy the United States, in its sole discretion, that:
    1. The Alternative Acquirer has the intent and capability 
(including the necessary managerial, operational, technical, and 
financial capability) to compete effectively in the production and sale 
of EOCCs;
    2. None of the terms of any agreement between the Alternative 
Acquirer and Amsted gives Amsted the ability unreasonably to raise the 
Alternative Acquirer's costs, to lower the Alternative Acquirer's 
efficiency, or otherwise to interfere in the ability of the Alternative 
Acquirer to compete effectively in the production and sale of EOCCs; 
and
    3. The Divested Assets and Supplemental Asset License will remain 
economically viable and the divestiture will remedy the competitive 
harm alleged in the Complaint.
    D. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to convey the Divested Assets and 
Supplemental Asset License. The trustee shall have the power and 
authority to accomplish the divestiture to an Alternative Acquirer 
approved by the United States, 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. The divestiture of the Divested Assets 
and the grant of the Supplemental Asset License shall be made without 
any cost to the Alternative Acquirer or any compensation to Amsted. 
Subject to Section V(E) of this Final Judgment, the trustee may hire at 
the cost and expense of Amsted any investment bankers, attorneys, 
accountants, or any other agents and outside contractors who shall be 
solely accountable to the trustee, reasonably necessary in the 
trustee's judgment to assist in the divestiture.

[[Page 21292]]

    E. Amsted shall not object to a grant or conveyance by the trustee 
on any ground other than the trustee's malfeasance. Any such objections 
by Amsted must be 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.
    F. The trustee shall serve at the cost and expense of Amsted, on 
such terms and conditions as the United States approves, and shall 
account for all costs incurred from the conveyance of the Divested 
Assets and Supplemental Asset License. The compensation of the trustee 
and any professionals and agents retained by the trustee shall be 
reasonable in light of the fair market value of the Divested Assets and 
Supplemental Asset License, and based on a fee arrangement providing 
the trustee with an incentive based on the speed with which the 
divestiture is accomplished.
    G. Amsted shall use its best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities relating to the assets to be divested, and the 
Supplemental Asset License; and Amsted shall develop financial and 
other information relevant to such business as the trustee may 
reasonably request, subject to customary confidentiality protection. 
Amsted shall take no action to interfere with or to impede the 
trustee's accomplishment of the divestiture.
    H. After appointment, the trustee shall file monthly reports with 
the United States and the Court setting forth the trustee's efforts to 
accomplish the divestiture ordered under this Final Judgment. To the 
extent such reports contain information that the trustee deems 
confidential, such reports shall not be filed in the public docket of 
the Court. Such reports shall include the name, address, and telephone 
number of each person who, during the preceding month, made an offer to 
acquire, expressed an interest in acquiring, entered into negotiations 
to acquire, or was contacted or made an inquiry about acquiring, any 
interest in the Divested Assets or Supplemental Asset License and shall 
describe in detail each contact with any such person. The trustee shall 
maintain full records of all efforts made to divest the Divested Assets 
or grant the Supplemental Asset License.
    I. If the trustee has not accomplished such divestiture within six 
(6) months after its appointment, the trustee shall promptly file with 
the Court a report setting forth (1) the trustee's efforts to 
accomplish the required divestiture; (2) the reasons, in the trustee's 
judgment, why the required divestiture has not been accomplished; and 
(3) the trustee's recommendations. To the extent such reports contain 
information that the trustee deems confidential, such reports shall not 
be filed in the public docket of the Court. The trustee shall at the 
same time furnish such report to the United States who shall have the 
right to make additional recommendations consistent with the purpose of 
the trust. The Court thereafter shall enter such orders as it shall 
deem appropriate to carry out the purpose of the Final Judgment, which 
may, if necessary, include 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, the trustee shall notify the United States and 
Amsted of any proposed divestiture required by Section V of this Final 
Judgment. The notice shall set forth the details of the proposed 
divestiture and grant of the Supplemental Asset License, 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 Divested Assets or the Supplemental Asset 
License 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 Amsted, the 
proposed Alternative Acquirer, any other third party, or the trustee if 
applicable, additional information concerning the proposed divestiture, 
the proposed Alternative Acquirer, and any other potential Alternative 
Acquirer. Amsted 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 (a) thirty (30) calendar days after receipt of the notice 
or (b) twenty (20) calendar days after the United States has been 
provided the additional information requested from Amsted, the proposed 
Alternative Acquirer, any third party, or the trustee, whichever is 
later, the United States shall provide written notice to Amsted and the 
trustee 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 Amsted's limited 
right to object to the conveyance under Section V(E) of this Final 
Judgment. Absent written notice that the United States does not object 
to the proposed Alternative Acquirer or upon objection by the United 
States, the divestiture proposed under Section V shall not be 
consummated. Upon objection by Amsted under Section V(E), the 
divestiture proposed under Section V shall not be consummated unless 
approved by the Court.

VII. Financing

    Amsted shall not finance all or any part of any purchase or 
divestiture made pursuant to Section IV or V of this Final Judgment.

VIII. Hold Separate

    Until the divestiture required by this Final Judgment has been 
accomplished, Amsted shall take all steps necessary to comply with the 
Hold Separate Stipulation and Order entered by this Court. Amsted shall 
take no action that would jeopardize the divestiture 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 divestiture has been completed under Section IV or V, Amsted 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 describe in detail each contact with any person who, 
during the preceding thirty (30) 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 Divested Assets or Supplemental Asset License including 
the Acquirer or any potential Alternative Acquirer. Each such affidavit 
shall also include a description of the efforts Amsted has taken to 
convey the Divested Assets and Supplemental Asset License, and to 
provide required information to the Acquirer, including the 
limitations, if any, on such information. Assuming the information set 
forth in the affidavit is true and complete, any objection by the 
United States to information provided by Amsted, including limitations 
on the information, shall be made within fourteen (14) calendar days of 
receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, Amsted shall deliver to the United States an affidavit 
that describes all actions Amsted has taken and all

[[Page 21293]]

steps Amsted has implemented on an ongoing basis to comply with Section 
VIII of this Final Judgment. Amsted shall deliver to the United States 
an affidavit describing any changes to the efforts and actions outlined 
in Amsted's earlier affidavits filed pursuant to this section within 
fifteen (15) calendar days after the change is implemented.
    C. Amsted shall keep all records of all efforts made to preserve 
the Divested Assets and to convey the Divested Assets and Supplemental 
Asset License until one year after such divestiture has been completed.

X. Compliance Inspection

    A. For the purpose 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 duly authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the United States, shall, upon written request of a duly authorized 
representative of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to Amsted, be permitted:
    1. Access during Amsted's office hours to inspect and copy, or at 
the United States' option, to require Amsted to provide copies of, all 
books, ledgers, accounts, records and documents in the possession, 
custody, or control of Amsted, relating to any matters contained in 
this Final Judgment; and
    2. To interview, either informally or on the record, Amsted's 
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 Amsted.
    B. Upon the written request of a duly authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division, 
Amsted shall submit written reports, under oath if requested, relating 
to any of the matters contained in this Final Judgment as may be 
requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the United States to any person other 
than an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by Amsted 
to the United States, Amsted represents and identifies in writing the 
material in any such information or documents to which a claim of 
protection may be asserted under Rule 26(c)(7) of the Federal Rules of 
Civil Procedure, and Amsted marks each pertinent page of such material, 
``Subject to claim of protection under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure,'' then the United States shall give Amsted 
ten (10) calendar days notice prior to divulging such material in any 
legal proceeding (other than a grand jury proceeding).

XI. Notification of Future Transactions

    A. Unless such transaction is otherwise subject to the reporting 
and waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. 18a (the ``HSR Act''), 
Amsted shall not, without notifying the United States, directly or 
indirectly acquire any assets of or any interest, including any 
financial, security, loan, equity, or management interest, in the 
development, production, or sale of EOCCs in the United States if the 
value of such acquisition exceeds $1,000,000. This notification 
requirement shall run for a period of ten years.
    B. Such notification shall be provided to the United States 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 EOCCs. Notification shall be provided at least thirty (30) 
days prior to acquiring any such assets or 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 United States make a written 
request for additional information, Amsted shall not consummate the 
proposed transaction or agreement until twenty (20) 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

    Amsted may not reacquire any part of the Divested Assets or any 
right, title or interest in the Supplemental Asset License 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 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' responses to comments. 
Based upon the record before the Court, which includes the Competitive 
Impact Statement and any comments and response to comments filed with 
the Court, entry of this Final Judgment is in the public interest.

Date:------------------------------------------------------------------

Court approval subject to procedures of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16.

-----------------------------------------------------------------------

United States District Judge.

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

    This case was brought because Defendant Amsted Industries, Inc. 
(``Amsted'') acquired all of the assets of

[[Page 21294]]

FM Industries, Inc. (``FMI''), a business unit of Progress Rail 
Services Holding Corporation, Inc. (``Progress Rail'').\1\ On April 25, 
2006, Amsted dismantled FMI by firing its employees and disposing of 
virtually all FMI plant equipment through an auction. The United States 
filed a civil antitrust Complaint on April 18, 2007, alleging that the 
acquisition lessened competition substantially for the design, 
manufacture, and sale of new and reconditioned end-of-car cushioning 
units (``EOCCs'') in violation of Section 7 of the Clayton Act, 15 
U.S.C. 18, and Section 2 of the Sherman Act, 15 U. S. C. 2. This loss 
of competition has impacted the rail industry through higher prices, 
reduced services, and decreased innovation.
---------------------------------------------------------------------------

    \1\ Progress Rail was subsequently acquired by Caterpillar Inc. 
on May 16, 2006.
---------------------------------------------------------------------------

    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order and proposed Final 
Judgment, which are designed to eliminate the anticompetitive effects 
of the acquisition. Under the proposed Final Judgment, Amsted is 
required to divest without compensation all intellectual property and 
other intangible assets that it acquired from Progress Rail. In 
addition, Amsted is required to grant a perpetual, royalty-free license 
to certain Amsted-generated intellectual property and notify the United 
States of future acquisitions related to EOCCs. Under the terms of the 
Hold Separate Stipulation and Order, Amsted will take steps to ensure 
that the divested assets remain economically viable during the pendency 
of the ordered divestiture.
    The United States and the defendant have stipulated that the 
proposed Final Judgment may be entered after compliance with the APPA. 
Entry of the proposed Final Judgment would terminate this action, 
except that the Court would retain jurisdiction to construe, modify, or 
enforce the provisions of the proposed Final Judgment and to punish 
violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. The Parties to the Consummated Transaction
    Amsted is a diversified manufacturer of industrial components for 
the railroad, vehicular, and construction markets. Its products include 
a range of railroad car parts, including couplers, side frames, 
bolsters, draft gears; and EOCCs. Amsted's EOCC sales in the United 
States are made through its wholly owned subsidiary, ASF-Keystone. ASF-
Keystone is a Delaware corporation with its principal place of business 
in Granite City, IL.
    Progress Rail, a wholly owned subsidiary of Caterpillar, Inc., is 
one of the largest suppliers of new and reconditioned railroad car 
parts, rail and trackwork components, and railroad car repair services 
to the railroad industry in the United States. Progress Rail's EOCC 
sales in the United States were made through its wholly owned 
subsidiary, FMI, formerly a Texas corporation with its principal place 
of business and EOCC manufacturing facility in Fort Worth, Texas.
    Prior to the merger, Amsted and FMI were the only two manufacturers 
of new EOCCs and two of only three manufacturers of reconditioned 
EOCCs. The transaction lessened competition substantially for these 
products. As a result, prices for new and reconditioned EOCCs have 
increased and likely will continue to increase, the quality of EOCCs 
likely will decline, innovation relating to EOCCs likely will decline, 
and services currently offered in the EOCC markets have become and will 
continue to be less favorable to railroad customers.
B. The Relevant Product Market: End-of-Car Cushioning Units
    Railroad freight cars undergo considerable stress during transit 
due to longitudinal forces known as draft and buff forces. Draft forces 
are pulling forces caused by train acceleration when freight cars are 
stretched or pulled apart. Buff forces are compressive forces caused by 
train deceleration when freight cars are pushed together. If not 
absorbed and dissipated, the energy from draft and buff forces can 
cause considerable damage to both car and cargo. Freight cars also 
undergo considerable stress during switching and coupling at train 
depots. In order for a railroad to connect one freight car to another, 
it must collide the cars at significant speed. The impact sustained 
during switching and coupling, like draft and buff forces, can cause 
serious damage to sensitive cargo inside a freight car.
    Railroads must equip all freight cars with energy absorption 
devices to mitigate the effects of draft, buff, and coupling stresses. 
The most common device is known as a draft gear, which provides the 
minimum protection required for safe railroad operation. Draft gears 
rely on friction between two steel plates to absorb and dissipate the 
energy created by longitudinal forces impacting the freight car. 
Another type of device is commonly referred to as an ``elastomeric'' 
device. These devices use an elastic substance (e.g., rubber) and steel 
coils to absorb the draft, buff, and coupling stresses. Elastomeric 
devices are lightweight and low cost, but they are not suitable for all 
applications as they return much of the absorbed energy back into the 
draft system. Neither draft gears nor elastomers are sufficient to 
protect sensitive cargos.
    When transporting sensitive cargos in traditional freight cars, 
railroads must use EOCCs to absorb and dissipate the maximum buff, 
draft, and coupling forces. These devices use hydraulics (e.g., 
pressurized nitrogen gas and oils) to minimize longitudinal forces and 
ensure that sensitive cargo is not damaged during transit. Each EOCC 
unit consists of a piston, shaft, cylinder, end bells, and a rod that 
attaches the piston to the freight car coupler. Each EOCC-equipped 
freight car requires two EOCCs, one at each end of the freight car. 
EOCCs are critical components for freight cars carrying sensitive 
commodities, such as steel products, automobile products, electronics, 
lumber, and paper products. Other energy absorption devices, such as 
draft gears and elastomeric devices, do not provide the necessary level 
of cushioning required by customers shipping sensitive goods on freight 
cars. Railroads and new freight car builders do not consider prices or 
availability of draft gears or elastomeric devices when soliciting 
prices for EOCCs from prospective suppliers.
    Though sensitive cargos can be transported by ``intermodal'' 
freight cars with articulated connectors, railroads cannot substitute 
intermodal transportation for freight cars equipped with EOCCs, 
Intermodal freight cars are specially designed railcars that allow 
standard cargo containers to be stacked for rail transport. The cars 
must travel in groups connected by a ``slackless'' articulated coupling 
system. The coupling system transfers longitudinal forces to the ends 
of the intermodal group, protecting the containers from damage. Despite 
their suitability for certain applications, intermodal freight cars do 
not provide sufficient cushioning for some sensitive commodities, 
cannot physically transport certain sensitive commodities (such as 
automobiles and certain lumber products), and are typically much more 
expensive to own and operate than freight cars equipped with EOCCs. The 
intermodal groups must also travel to the same destination due to their 
slackless connection. Because of these additional costs and operational 
constraints, intermodal rail transportation in North America tends to 
be most economical for large shipments manufactured outside of

[[Page 21295]]

North America and imported by sea. When soliciting prices for EOCCs 
from prospective suppliers, railroad customers do not consider the cost 
of transporting goods using intermodal freight cars with articulated 
connectors.
    Railroad customers may use either new or reconditioned EOCCs when 
equipping freight cars. However, customers building new freight cars 
are almost always required to use only new EOCCs in construction. 
Though higher cost, these new units are highly durable and invariably 
protected by an industry standard ten-year warranty. The vast majority 
of customers building new freight cars would be unable to use 
reconditioned EOCCs in construction. Similarly, customers servicing 
older freight cars that have been in service for more than a decade 
almost always choose reconditioned EOCCs because the cost of 
reconditioned units is substantially lower than the cost of new units. 
Thus, customers are unlikely to substitute new EOCCs for reconditioned 
EOCCs for use on older freight cars.
    A small but significant increase in the price of new EOCCs would 
not cause purchasers to substitute draft gear, elastomeric devices, 
intermodal cars, or reconditioned EOCCs so as to make such a price 
increase unprofitable. Accordingly, the design, manufacture, and sale 
of new EOCCs is a separate and distinct line of commerce and a relevant 
product market for the purpose of analyzing the effects of the 
acquisition under Section 7 of the Clayton Act, 15 U.S.C. 18, and 
Section 2 of the Sherman Act, 15 U.S.C. 2. Likewise, a small but 
significant increase in the price of reconditioned EOCCs would not 
cause purchasers to substitute draft gear, elastomeric devices, 
intermodal cars, or new EOCCs so as to make such a price increase 
unprofitable. Accordingly, the design, manufacture, and sale of 
reconditioned EOCCs is also a separate and distinct line of commerce 
and a relevant product market for the purpose of analyzing the effects 
of the acquisition under Section 7 of the Clayton Act and Section 2 of 
the Sherman Act.
C. The Relevant Geographic Market
    All EOCCs in the United States are designed, manufactured, and sold 
in the United States. Amsted sells, and FMI sold, EOCCs to customers 
located throughout the United States. The United States is the relevant 
geographic market for purposes of analyzing the effects of the 
acquisition under Section 7 of the Clayton Act and Section 2 of the 
Sherman Act.
D. The Competitive Effects of the Transaction on End-of-Car Cushioning
    Prior to Amsted's acquisition of FMI, the markets for EOCCs were 
highly concentrated. For new EOCCs, the merging entities were the only 
two suppliers.\2\ For reconditioned EOCCs, the market was limited to 
three suppliers, and the merging parties controlled over 80% of the 
market. Thus, the markets were highly concentrated and became 
substantially more so following the acquisition. Using the Herfindahl-
Hirschman Index (``HHI''),\3\ the consolidation in the market for 
reconditioned EOCCs resulted in a post-merger concentration of over 
7000 (an increase of over 2700), while the consolidation in the market 
for new EOCCs resulted in a monopoly.
---------------------------------------------------------------------------

    \2\ American Hydraulics, Inc. is the only other manufacturer 
certified by the Association of American Railroads (``AAR'') to 
build new units. However, American Hydraulics historically has had 
no revenue in this product area, and customers uniformly viewed the 
merging parties as the only suppliers of new EOCCs.
    \3\ ``HHI'' means the Herfindahl-Hirschman Index, a commonly 
accepted measure of market concentration. It 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 thirty, thirty, twenty, and 
twenty percent, the HHI is 2600 (30\2\ + 30\2\ + 20\2\ + 20\2\ = 
2600). The HHI takes into account the relative size and distribution 
of the firms in a market and approaches zero when a market consists 
of a large number of firms of relatively equal size. The HHI 
increases both as the number of firms in the market decreases and as 
the disparity in size between those firms increases. Markets in 
which the HHI is between 1000 and 1800 points are considered to be 
moderately concentrated, and those in which the HHI is in excess of 
1800 points are considered to be concentrated. Transactions that 
increase the HHI by more than 100 points in concentrated markets 
presumptively raise antitrust concerns under the Horizontal Merger 
Guidelines issued by the U.S. Department of Justice and the Federal 
Trade Commission. See Merger Guidelines ] 1.51.
---------------------------------------------------------------------------

    Amsted and FMI directly constrained each other's prices, limiting 
overall price increases for new and reconditioned EOCCs. Prior to the 
transaction, Amsted created forecasts that contemplated significant 
price increases resulting from the merger. These price increases were 
aimed at achieving certain margin targets each year that would result 
in total additional profits of over $17 million during the first three 
years following the transaction. According to the forecasts, achieving 
this goal would require an overall price increase of 4% in 2006, 10% in 
2007, and 5% in 2008, beyond materials cost increase surcharges. Amsted 
pricing data shows that Amsted raised prices substantially following 
its acquisition of FMI. For new EOCCs, customers who did not have the 
pricing protection of long-term contracts paid on average approximately 
14% more in February 2006 than they did in November 2005. For 
reconditioned EOCCs, customers without long-term contracts paid an 
average increase of approximately 5% more during the same time period.
    Purchasers of new and reconditioned EOCCs in the United States 
benefitted from vigorous and aggressive competition between Amsted and 
FMI through lower prices, higher quality, more innovation, and better 
service. Without the competitive constraint of head-to-head competition 
from FMI, Amsted has had and will continue to have the ability to 
exercise market power by raising prices, lowering product quality, 
lessening innovation, and decreasing the level of services.
    Entry into the design, manufacture, and sale of new or 
reconditioned EOCCs will not be timely, likely, or sufficient to 
counter the anticompetitive effects of the transaction. A new entrant 
to either market would require certifications and approvals from the 
Association of American Railroads (``AAR''), including facility 
certification and design certification for each EOCC model to be 
manufactured or reconditioned. Additionally, the AAR requires that a 
new entrant undergo a conditional approval period during which 
production is monitored and significantly limited.
    It is also essential that a new entrant into either the new or 
reconditioned EOCC markets have sufficient technical know-how regarding 
the product in order to design and sell EOCCs. Thus, a new entrant must 
invest in significant design and engineering expertise in order to 
create the necessary tooling and intellectual property required to 
successfully manufacture new or reconditioned EOCCs according to AAR 
standards and railroad customer requirements.
    A new entrant into the new or reconditioned EOCC markets also must 
produce EOCCs in sufficient quantities and with sufficiently consistent 
quality to assure railroad customers that the new and reconditioned 
EOCCs will provide the necessary level of cushioning required to 
protect sensitive cargo. Achieving this quality reputation requires an 
additional investment in time and money by any new entrant.
    Although the manufacturing processes for new and reconditioned 
EOCCs are similar, both require unique inputs that are not readily 
available in the marketplace. For example, the manufacture of new EOCCs 
requires the use of patented designs and proprietary molds that are not 
needed in the reconditioning process. Similarly, the

[[Page 21296]]

manufacture of reconditioned EOCCs requires the application of certain 
machining techniques and testing processes that are unique to the EOCC 
reconditioning market.
    For these reasons, entry by any firm into the new or reconditioned 
EOCC markets would not be timely, likely, or sufficient to counter 
anticompetitive price increases imposed by Amsted.

III. Explanation of the Proposed Final Judgment

    Because the FMI business was discontinued as a result of the 
transaction and Amsted now has only one facility that manufactures 
EOCCs, the divestiture of a going concern in this case would be 
difficult and potentially disruptive to the railroad industry. Instead, 
the divestiture and license requirements of the proposed Final Judgment 
are designed to create an independent and economically viable 
competitor by providing to a new entrant the market-specific 
intellectual assets needed for successful competition. The proposed 
Final Judgment requires that Amsted divest these assets, without 
compensation, to a pre-approved acquirer operating in the railroad 
industry. Amsted must divest all of the acquired FMI intangible assets 
and all of the FMI tangible assets used for imparting the shape, form, 
or finish to EOCC components. The divestiture includes all trademarks, 
brands, certifications, patents, blueprints, drawings, castings, dies, 
molds, toolings, fixtures, specifications, quality assurance plans, 
manufacturing plans, and related financial data.
    The proposed Final Judgment also requires Amsted to provide to the 
acquirer a royalty-tree, perpetual license to all Amsted-generated 
intangible assets and a limited license to the use of all Amsted-
generated casting patterns needed for the production of EOCC 
components. The license should effectively fill any intellectual 
property gaps in the FMI divestiture package and resolve questions 
concerning the completeness of the available FMI assets. The license 
includes all patents, blueprints, drawings, castings, dies, molds, 
toolings, fixtures, specifications, quality assurance plans, 
manufacturing plans, and product tracking information.
    Combined with readily available manufacturing equipment, these 
assets will provide the acquirer with immediate access to the technical 
know-how required to make new and reconditioned EOCCs. The engineering 
information should accelerate the AAR certification process, while also 
providing customers with assurance that the designs used by the 
acquirer are field tested and historically successful. The proposed 
Final Judgment provides that for the divestiture to be approved, it 
must be demonstrated to the satisfaction of the United States, in its 
sole discretion, that the acquirer will enter the market to remedy the 
competitive harm alleged in the Complaint. The divestiture must be made 
to an acquirer that in the United States' judgment has the intent and 
capability (including the necessary managerial, operational, technical, 
and financial capability) to compete effectively in the design, 
manufacture, and sale of EOCCs; the divestiture also must be 
accomplished in a manner that satisfies the United States, in its sole 
discretion, that none of the terms of any agreement between an acquirer 
and the defendant gives the defendant the ability unreasonably to raise 
the acquirer's costs, reduce the acquirer's efficiency, or otherwise 
interfere in the ability of the acquirer to compete effectively in the 
design, manufacture, and sale of EOCCs. The defendant must take all 
reasonable steps necessary to accomplish the divestiture quickly and 
must cooperate with the acquirer.
    The proposed Final Judgment requires the defendant, within sixty 
(60) days after the filing of the Complaint, or five (5) days after 
notice of the entry of the Final Judgment by the Court, whichever is 
later, (1) to divest the Divested Assets to the acquirer, and (2) to 
grant the Supplemental Asset License to the acquirer. The defendant 
agrees to use its best efforts to accomplish the license grant and 
divestiture expeditiously.
    In the event that the approved acquirer is unable or unwilling to 
receive the divested assets, the Court will appoint a trustee selected 
by the United States and approved by the Court to effect the 
divestiture of the assets to an alternative acquirer acceptable to the 
United States. Amsted 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 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 60 days, 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 proposed Final Judgment requires Amsted to release all industry 
participants of restrictive covenants that might otherwise inhibit the 
acquirer's access to employees, customers, or suppliers. Amsted must 
also release Progress Rail from an acquisition-related ``covenant not 
to compete'' if the acquirer is unable to deliver its first 
manufactured or reconditioned unit within twelve months after the entry 
of the Final Judgment.
    Finally, the proposed Final Judgment prohibits Amsted from 
acquiring any assets of or any interest in the development, production, 
or sale of EOCCs in the United States if the value of such acquisition 
exceeds $1,000,000 without first notifying the United States through 
procedures set out in the Final Judgment, unless the transaction is 
otherwise subject to the reporting and waiting period requirements of 
the Hart-Scott-Rodino Antitrust Improvements Act. This notification 
requirement runs for a period of ten years.
    The provisions of the proposed Final Judgment will facilitate new 
entry in order to eliminate the anti competitive effects of the 
acquisition in the design, manufacture, and sale of EOCCs.

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 the defendant.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and the defendant have stipulated that the 
proposed Final Judgment may be entered by the Court after compliance 
with the provisions of the APPA, provided that the United States has 
not withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment.

[[Page 21297]]

Any person who wishes to comment should do so within sixty days of the 
date of publication of this Competitive Impact Statement in the Federal 
Register, 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 Department of 
Justice, which remains free to withdraw its consent to the proposed 
Final Judgment at any time prior to the Court's entry of judgment. The 
comments and the response of the United States will be filed with the 
Court and published in the Federal Register.
    Written comments should be submitted to: Maribeth Petrizzi, Chief, 
Litigation II Section, Antitrust Division, United States Department of 
Justice, 1401 H Street, Suite 3000, 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 the defendant. The 
United States could have commenced litigation and sought a judicial 
order requiring Amsted to recreate FMI as a separate business unit that 
could be divested as a going concern. This alternative would have 
substantially delayed relief while introducing a significant risk that 
the divestiture would be unsuccessful. This alternative may have also 
increased the potential for harm to the markets through supply 
disruption and a decrease in available capacity. The United States is 
satisfied that the divestiture and license described in the proposed 
Final Judgment will facilitate entry in order to recreate competition 
for the design, manufacture, and sale of EOCCs in the relevant markets 
identified by the United States, and thus would achieve substantially 
all of the relief that the United States would have obtained through 
litigation, but without the cost and risks associated with trial.

VII. Standard of Review Under the APPA for the Proposed Final Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty-day comment 
period, after which the Court shall determine whether entry of the 
proposed Final Judgment ``is in the public interest.'' 15 U.S.C. 
16(e)(1). In making that determination, the Court shall consider:

    (A) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) The impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A) & (B). As the United States Court of Appeals for 
the District of Columbia Circuit has held, 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 United States v. Microsoft Corp., 56 
F.3d 1448, 1458-62 (D.C. Cir. 1995).

    With respect to the adequacy of the relief secured by the decree, a 
court may not ``engage in an unrestricted evaluation of what relief 
would best serve the public.'' United States v. BNS, Inc., 858 F.2d 
456, 462 (9th Cir. 1988) (citing United States v. Bechtel Corp., 648 
F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62. 
Courts have held that:

    [t]he balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

    Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\4\ 
In making its public interest determination, a district court must 
accord due respect to the government's prediction as to the effect of 
proposed remedies, its perception of the market structure, and its 
views of the nature of the case. United States v. Archer-Daniels-
Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003).

    \4\ Cf. BNS, 858 F.2d at 463 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); Gillette, 406 F. Supp. at 716 
(noting that, in this way, the court is constrained to ``look at the 
overall picture not hypercritically, nor with a microscope, but with 
an artist's reducing glass''). See generally Microsoft, 56 F.3d at 
1461 (discussing whether ``the remedies [obtained in the decree are] 
so inconsonant with the allegations charged as to fall outside of 
the `reaches of the public interest' '').
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    Court approval of a final judgment requires a standard that is more 
flexible and less strict than the standard required for a finding of 
liability. ``[A] proposed decree must be approved even if it falls 
short of the remedy the court would impose on its own, as long as it 
falls within the range of acceptability or is `within the reaches of 
public interest.' `` United States v. 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). The Court ``must accord deference to the 
government's predications about the efficacy of its remedies, and may 
not require the remedies to perfectly match the alleged violations 
because this may only reflect underlying weaknesses in the government's 
case or concessions made during negotiations.'' United States v. SBC 
Commc'ns, Inc., Nos. 05-2102 and 05-2103, 2007 WL 1020746, at *16 
(D.D.C. Mar. 29, 2007).
    Moreover, the Court's role under the APPA is limited to reviewing 
the remedy in relationship to the violations that the United States has 
alleged in its Complaint, and does not authorize the Court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459. Because the ``court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the first 
place, `` it follows that ``the court is only authorized to review the 
decree itself,'' and not to ``effectively redraft the complaint'' to 
inquire into other matters that the United States did not pursue. Id. 
at 1459-60. As this Court recently confirmed in SBC Commc'ns, courts 
``cannot look beyond the complaint in making the public interest 
determination unless the complaint is drafted so narrowly as to make a

[[Page 21298]]

mockery of judicial power.'' SBC Commc'ns, at *14.
    In 2004, Congress amended the APPA to ensure that courts take into 
account the above-quoted list of relevant factors when making a public 
interest determination. Compare 15 U.S.C. 16(e) (2004) with 15 U.S.C. 
16(e)(1) (2006) (substituting ``shall'' for ``may'' in directing 
relevant factors for court to consider and amending list of factors to 
focus on competitive considerations and to address potentially 
ambiguous judgment terms). These amendments, however, did not change 
the fundamental role of courts in reviewing proposed settlements. To 
the contrary, Congress made clear its intent to preserve the practical 
benefits of utilizing consent decrees in antitrust enforcement, adding 
the unambiguous instruction ``[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). 
This language codified the intent of the original 1974 statute, 
expressed by Senator Tunney in the legislative history: ``[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:
    [a]bsent a showing of corrupt failure of the government to 
discharge its duty, the Court, in making its public interest 
finding, should . . . carefully consider the explanations of the 
government in the competitive impact statement and its responses to 
comments in order to determine whether those explanations are 
reasonable under the circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. (CCH) 
] 61,508, at 71,980 (W.D. Mo. 1977).

    This-Court recently examined the role of the district court in 
reviewing proposed final judgments in light of the 2004 amendments, 
confirming that the amendments ``effected minimal changes[] and that 
this Court's scope of review remains sharply proscribed by precedent 
and the nature of Tunney Act proceedings.'' See United States v. SBC 
Commc'ns, Inc., Nos. 05-2102 and 05-2103, 2007 WL 1020746, at *9 
(D.D.C. Mar. 29, 2007). This Court concluded that the amendments did 
not alter the articulation of the public interest standard in 
Microsoft. Id. at *15.

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: April 18, 2007.

     Respectfully submitted,
/s/--------------------------------------------------------------------

C. Scott Hataway Bar No. 473942,

U.S. Department of Justice, Antitrust Division, Lit II Section, 1401 H 
Street NW., Washington, DC 20530 202-514-8380.

[FR Doc. 07-2087 Filed 4-27-07; 8:45am]
BILLING CODE 4410-11-M
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