33336 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Monsanto Co.; 

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 Complaint, 

proposed Final Judgment, Hold Separate 

and Preservation of Assets 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. 

Monsanto Co., Civ. Action No. 

1:07CV00992. On May 31, 2007, the 

United States filed a Complaint alleging 

that the proposed acquisition by 

Monsanto Company (‘‘Monsanto’’) of 

Delta and Pine Land Company (‘‘DPL’’) 

would violate Section 7 of the Clayton 

Act, 15 U.S.C. 18. The Complaint alleges 

that the acquisition would substantially 

reduce competition for the 

development, breeding, and sale of 

traited cottonseed in the MidSouth 

(Mississippi, Arkansas, Louisiana, 

Missouri, and Tennessee) and Southeast 

(Alabama, Georgia, Florida, South 

Carolina, North Carolina, and Virginia) 

United States. Specifically, the 

Complaint alleges that Monsanto’s 

acquisition of Delta and Pine Land 

would enhance Monsanto’s ability and 

incentive to raise traited cottonseed 

prices and eliminate Delta and Pine 

Land as a partner independent of 

Monsanto for competing trait 

developers. The proposed Final 

Judgment, lodged at the same time as 

the Complaint, requires the parties to 

divest (1) Monsanto’s Stoneville 

Pedigreed Seed Company; (2) other 

Monsanto cotton breeding assets; (3) 

specified lines of Delta and Pine Land 

cottonseed to the acquirer of the 

Stoneville assets; (4) and specified lines 

of Delta and Pine Land cottonseed 

containing the VipCot transgenic trait to 

Syngenta AG. It also requires Monsanto 

to modify certain licenses. A 

Competitive Impact Statement filed by 

the United States describes the 

Complaint, the proposed Final 

Judgment, and the remedies available to 

private litigants who may have been 

injured by the alleged violation. 

Copies of the Complaint, proposed 

Final Judgment, Hold Separate and 

Preservation of Assets Stipulation and 

Order, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, 325 7th Street, NW., Suite 215, 

Washington, DC 20530 (202–514–2481), 

on the Internet 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. 

Public comment is invited within 

sixty (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 & Agriculture Section, Antitrust 

Division, Department of Justice, 325 7th 

Street, NW., Suite 500, Washington, DC 

20530 (202–307–6349). 

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, 325 7th 

Street, NW., Suite 500, Washington, DC 

20530, Plaintiff, v. Monsanto Company, 

800 North Lindbergh Boulevard, St. 

Louis, MO 63167, and Delta and Pine 

Land Company, 1 Cotton Row, Scott, 

MS 38772, Defendants 

Civil Case No.: 

Case: 1:07–cv–00992. 

Assigned To: Urbina, Ricardo M. 

Assign. Date: 5/31/2007. 

Description: Antitrust. 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil action to enjoin the merger of 

defendants Monsanto Company 

(‘‘Monsanto’’) and Delta and Pine Land 

Company (‘‘DPL’’) and allege as follows: 

1. In 2006, cottonseed was planted on 

more than 15 million acres in the 

United States and generated more than 

$5 billion in annual revenues for United 

States farmers. Cotton is grown across 

the Southern United States from 

Virginia, the Carolinas, Georgia, and 

Florida on the East Coast to California 

on the West Coast. 

2. Farmers grow substantially all of 

this important crop from cottonseed that 

has been enhanced through the 

introduction of biotechnology traits 

(‘‘traited cottonseed’’). Traited 

cottonseed results from combining 

cottonseed stock that has attractive 

growing characteristics (such as 

producing a high yield of cotton per 

acre) with performance traits foreign to 

cotton that are inserted through genetic 

engineering. 

3. Monsanto is the largest producer 

and supplier of biotechnology traits sold 

in cottonseed in the United States, with 

over 96% of United States traited 

cottonseed containing Monsanto traits. 

Monsanto is also one of the largest 

sellers of traited cottonseed in the 

United States, primarily through its 

Stoneville Pedigreed Seed Company 

(‘‘Stoneville’’). 

4. DPL is the largest producer of 

cottonseed in the United States. DPL is 

the leading seller in the MidSouth 

(Mississippi, Arkansas, Louisiana, 

Missouri, and Tennessee), where DPL 

sells 79% of all traited cottonseed, and 

the Southeast (Alabama, Georgia, 

Florida, South Carolina, North Carolina, 

and Virginia), where DPL sells 87% of 

all traited cottonseed. 

5. In the 1980s, Monsanto partnered 

with DPL to introduce cottonseed 

containing Monsanto traits. DPL’s 

experienced and knowledgeable cotton 

breeders and large collection of highquality germplasm (the genetic material 

of a cottonseed that gives the plant its 

characteristics) provided Monsanto with 

an unparalleled avenue through which 

to commercialize and market its traits. 

The combination of Monsanto traits and 

DPL cottonseed has been highly 

successful, particularly in the MidSouth 

and Southeast, due to the performance 

of DPL’s cottonseed and the value of 

Monsanto’s biotechnology traits in those 

regions. 

6. Monsanto’s position as the 

dominant supplier of traits used in 

cottonseed was jeopardized in the early 

2000s when DPL began to partner with 

other biotechnology companies. 

Through these partnerships, DPL’s 

germplasm library and breeding 

capabilities were available to alternative 

trait developers, allowing them to work 

toward introducing new traits in DPL 

cottonseed that would compete with 

Monsanto’s traits. DPL publicly stated 

its intent to replace Monsanto traits in 

its products and planned to launch 

products with non-Monsanto traits as 

early as the 2009 growing season, with 

additional products to follow. 

7. Spurred by this competitive threat 

and recognizing the potential for a 

successful pairing of DPL’s cottonseed 

with competing traits, Monsanto 

purchased Stoneville to position 

Monsanto to compete vigorously with 

DPL. Monsanto aggressively worked to 

develop Stoneville’s germplasm and its 

traited cottonseed sales and also 

continued its efforts to develop 

germplasm and expand traited 

cottonseed sales through its Cotton 

States business unit. 

8. The proposed merger will 

consolidate Monsanto’s and DPL’s 

traited cottonseed sales, eliminating 

competition between these firms in the 

sale of cottonseed. DPL and Monsanto 


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together would control over 95% of 

sales in the important MidSouth and 

Southeast regions, where harvested 

cotton garners higher prices per bale, 

and where cottonseed traits are most 

valued by farmers. The proposed merger 

will also eliminate DPL as a partner 

independent of Monsanto for competing 

trait developers, substantially delaying 

or preventing the development and 

introduction of cottonseed containing 

non-Monsanto traits. Accordingly, 

Monsanto’s merger with DPL would 

substantially lessen competition in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

Jurisdiction and Venue 

9. This action is filed by the United 

States under Section 15 of the Clayton 

Act, as amended, 15 U.S.C. 25, to 

prevent and restrain Defendants from 

violating Section 7 of the Clayton Act, 

15 U.S.C. 18. 

10. Monsanto and DPL are engaged in 

interstate commerce and in activities 

substantially affecting interstate 

commerce. The Court has jurisdiction 

over this action and the parties pursuant 

to Sections 15 and 16 of the Clayton 

Act, 15 U.S.C. 25, 26; and 28 U.S.C. 

1331, 1337. 

11. The Defendants have consented to 

personal jurisdiction and venue in this 

judicial district. 

II. The Defendants 

12. Defendant Monsanto is a Delaware 

corporation, with its headquarters 

located in St. Louis, Missouri. Monsanto 

is a leading global provider of 

agricultural products for farmers, 

including seeds for cotton, soybeans, 

and corn; traits that help farmers control 

insects and weeds; and crop protection 

chemicals such as the herbicide 

Roundup, a branded version of the 

chemical glyphosate. Monsanto had 

total company revenues of more than 

$7.3 billion in 2006. 

13. Defendant DPL is a Delaware 

corporation, with its headquarters 

located in Scott, Mississippi. DPL is the 

largest cottonseed producer in the 

world. DPL’s sales in the United States 

in 2006 exceeded $400 million. 

III. Trade and Commerce 

A. Affected Commerce 

Cottonseed Varieties 

14. Cottonseed varieties differ in their 

performance, including the yield, the 

strength and the length of the cotton 

fibers, and the adaptability of the 

cottonseed to specific weather 

conditions and soil types. Varieties that 

perform best in certain regions of the 

country, such as the drier areas of the 

Southwest (including West Texas, 

Kansas, and Oklahoma) do not typically 

perform well in other regions, such as 

the MidSouth and the Southeast. 

Farmers select cottonseed varieties that 

have the best performance 

characteristics for the area in which the 

cottonseed will be planted, with the 

primary focus on yield. 

15. To be competitive, cottonseed 

companies must continually work on 

developing new and improved 

cottonseed varieties through their 

breeding programs. Cotton breeding is a 

costly and time-consuming process in 

which the cottonseed company selects 

lines to breed together (or ‘‘cross’’), 

plants the cottonseed produced from 

that initial cross, and then selects the 

best plants for further crossing to create 

a variety with the desired 

characteristics. In most cases, it takes 

eight to ten years from the initial cross 

until a new cottonseed variety is ready 

for market. 

16. The success of a cottonseed 

company’s breeding program is 

dependent on many factors, the most 

important of which is the quantity and 

quality of available breeding materials, 

i.e. germplasm. A company with a large 

collection of high quality, or elite, 

germplasm has a competitive advantage 

because the company has the ability to 

identify the best genetic material and 

use it in a wide variety of possible 

crossing combinations, resulting in a 

greater likelihood of developing a 

successful variety. 

17. DPL has the largest cotton 

germplasm collection, with by far the 

greatest track record of success in the 

important MidSouth and Southeast 

regions, and an extensive breeding 

program for cottonseed. It has eight 

research or breeding facilities in the 

United States and five located elsewhere 

in the world. It has more breeding 

capabilities than any competitor and 

over ninety years of germplasm 

development. 

Traits for Cottonseed 

18. Historically, farmers grew cotton 

from conventional cottonseed that 

contained naturally occurring 

characteristics. Cotton farming with 

conventional cottonseed involved labor 

intensive and costly herbicide and 

insecticide spraying programs that 

required multiple applications at very 

specific times in the growing season. 

Failure to spray or to correctly time the 

applications could result in substantial 

crop damage. 

19. In the 1980s, Monsanto developed 

a trait that could be inserted into cotton 

plants to make plants resistant to certain 

insects. It also developed an herbicidetolerant trait that would make cotton 

plants grown from cottonseed with the 

trait resistant to certain herbicides 

sprayed to kill weeds, allowing farmers 

to spray herbicides less precisely 

without killing the young plants. 

20. To gain acceptance by farmers, the 

traits had to be delivered in cottonseed 

lines that performed well in the growing 

area where the farmer was located. In 

1988, Monsanto approached DPL to 

develop and commercialize cottonseed 

with the Monsanto insect-resistant and 

herbicide-tolerant traits. DPL was then, 

and still is, the market leader in 

cottonseed, with what was considered 

the best germplasm and the most 

sought-after varieties. 

21. The companies proceeded with 

the development and commercialization 

process, which involved inserting the 

Monsanto trait into DPL germplasm, 

evaluating plant lines grown from that 

germplasm, and breeding promising 

candidate plants to produce varieties 

with desired characteristics. In 1996, 

DPL began to sell the first cottonseed 

with Monsanto’s initial insect-resistant 

trait (marketed under the name 

‘‘Bollgard’’), and, the following year, it 

introduced a variety with Monsanto’s 

initial herbicide-tolerant trait (marketed 

under the name ‘‘Roundup Ready’’). 

22. Farmers, particularly those in the 

MidSouth and Southeast, quickly 

adopted traited cottonseed because its 

use significantly lowered overall 

farming costs, increased yields, and 

reduced the risk of crop loss. Today, 

almost all cottonseed varieties planted 

in the United States are traited, and, in 

2006, over 96% of the traited cottonseed 

sold in the United States contained 

traits developed by Monsanto. 

23. When farmers acquire traited 

cottonseed, they pay a price per bag to 

the seed distributor, who pays the seed 

manufacturer for the seed, and a 

separate license fee (commonly referred 

to as the ‘‘technology fee’’) to the 

developer of the trait. Typically, the 

trait developer shares a portion of the 

technology fee with the seed 

manufacturer. The technology fee can 

constitute as much as 80% of farmers’

total costs for a bag of traited 

cottonseed. 

DPL’s Trait Development With 

Monsanto’s Competitors 

24. Following Monsanto’s and DPL’s 

successful introduction oftraited 

cottonseed, they agreed in 1998 that 

Monsanto would acquire DPL. The 

Antitrust Division of the United States 

Department of Justice investigated the 

proposed transaction. In late 1999, 

while the transaction was still under 

review, Monsanto decided to abandon 


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the transaction. DPL thus remained an 

independent company. 

25. Despite ensuing litigation from the 

companies’ failed attempt to merge, DPL 

continued to develop and market 

cottonseed varieties with Monsanto’s 

traits. DPL also commenced a strategy to 

replace (or ‘‘trade-out’’) the Monsanto 

traits in DPL cottonseed with traits of 

other companies. DPL believed that this 

strategy would be profitable for DPL 

because competing trait developers 

would offer DPL a higher percentage of 

the technology fee for traits than would 

Monsanto. In DPL’s suit against 

Monsanto for breach of the merger 

agreement, DPL alleged significant 

financial losses resulting from the delay 

that the failed merger caused to DPL’s 

efforts to develop traits with companies 

other than Monsanto. 

26. Pursuant to the trade-out strategy, 

DPL has worked with several other 

biotechnology companies, including 

Dow AgroSciences, DuPont, Syngenta 

Crop Protection AG and Bayer 

CropScience, to develop and 

commercialize cottonseed containing 

the traits developed by these companies 

that would compete with cottonseed 

containing Monsanto’s traits. DPL is an 

attractive partner that is well suited to 

quickly introduce new trait technologies 

due to the strength and breadth of its 

germplasm base and breeding programs 

as well as its technical service 

capabilities, know-how, brand 

recognition and market position. 

27. DPL’s trait license with Monsanto 

also makes DPL an attractive partner for 

competing trait developers. Most 

farmers in the United States buy 

cottonseed containing traits that provide 

both herbicide tolerance and insect 

resistance. In the MidSouth and 

Southeast United States, the vast 

majority of farmers use both traits. 

DPL’s trait licenses with Monsanto 

allow DPL to offer competing trait 

developers the ability to combine or 

‘‘stack’’ their traits in DPL cottonseed 

along with Monsanto traits. This 

stacking right would allow, for example, 

the developer of an insect-resistant trait 

to bring that trait to market in 

cottonseed that also contains a 

Monsanto herbicide-tolerant trait (i.e., 

Roundup Ready or the more-recent 

version, Roundup Ready Flex). 

Monsanto’s trait licenses with most 

other cottonseed companies, by 

contrast, severely restrict the ability of 

these companies to work with other trait 

developers, with some of these licenses 

prohibiting the stacking of cottonseed 

containing Monsanto traits with another 

company’s traits and others subjecting 

the licensees to severe penalties if they 

stack non-Monsanto traits with 

Monsanto traits. 

28. Even with the advantages that 

partnering with DPL offers Monsanto’s 

competing trait developers, the process 

to develop, breed and commercialize 

cotton varieties with traits typically 

takes eight to twelve years and costs 

over $40 million. The process often 

requires thousands of attempts before 

developing a traited cottonseed that 

then can be used to breed commercial 

varieties. In addition, extensive 

regulatory approvals, both in the United 

States and abroad, are required. 

29. DPL’s trait-development work 

with Monsanto’s competitors has 

recently begun to show results. DPL’s 

developmental work with Syngenta 

resulted in a 2004 agreement to 

commercialize cottonseed with 

Syngenta’s VipCot insect-resistant traits. 

DPL expects to begin marketing such 

cottonseed as early as 2009. The DPL/ 

Syngenta agreement provides that DPL 

will receive 70% of the net trait 

technology fees earned through sales of 

this product, compared with the 30% 

that DPL earns pursuant to its Monsanto 

agreement. 

Monsanto’s Competitive Reaction to 

DPL’s ‘‘Trade-Out’’ Plan 

30. Monsanto recognized that its and 

DPL’s ‘‘paths will continue to diverge’’

as DPL continues its strategy to replace 

Monsanto traits in DPL cottonseed with 

traits developed by Monsanto’s 

competitors. Driven by the competitive 

threat posed by DPL’s work with these 

other companies, Monsanto set about 

building its own cottonseed business. 

31. In 2002, Monsanto began Cotton 

States, through which Monsanto obtains 

licenses on germplasm developed by 

private breeders and universities, breeds 

its traits into the germplasm, and outlicenses the resulting traited varieties to 

sellers of cottonseed for sale under their 

private labels. 

32. In 2005, Monsanto repurchased 

Stoneville, the second-largest traited 

cottonseed company in the MidSouth 

and Southeast United States. Monsanto 

had previously owned Stoneville but 

sold it in 1999 before abandoning its 

attempt to acquire DPL. Upon 

reacquiring Stoneville, Monsanto 

immediately invested capital to improve 

Stoneville’s competitive position. 

33. Monsanto aggressively worked to 

strengthen its cottonseed business by, 

among other things, focusing on 

advanced breeding techniques and 

germplasm development and investing 

in breeding facilities. Monsanto 

predicted internally that these 

investments would enable Monsanto to 

increase its share of the cottonseed 

business at the expense of DPL and 

other companies. 

B. Relevant Markets 

34. Across regions such as the 

MidSouth and Southeast, growing 

conditions for cotton differ due to 

weather conditions, soil type, and 

varied demands for weed and insect 

control. Fanners demand cottonseed 

varieties that produce high yield for 

their particular growing conditions. 

Monsanto and DPL recognize this 

demand and market cottonseed varieties 

by region. 

35. In many regions of the country, 

including the MidSouth and Southeast, 

farmers demand that cottonseed have 

traits to provide insect resistance and 

herbicide tolerance. Monsanto prices 

traits by region. 

36. Cotton fanners consider cotton the 

most valuable crop for their land, and 

the cost of the traited cottonseed 

amounts to only a fraction of the total 

cost of growing cotton. If there were a 

small but significant increase in price of 

traited cottonseed within regions such 

as the MidSouth and Southeast, it is not 

likely that farmers would switch to 

other crops or switch purchases to 

conventional (non-traited) cottonseed or 

cottonseed varieties not well suited for 

their regions in sufficient volumes to 

make the price increase unprofitable. 

The development, commercialization, 

and sale of traited cottonseed 

constitutes a line of commerce or 

product market, and the MidSouth and 

Southeast United States are sections of 

the country or geographic markets, 

within the meaning of Section 7 of the 

Clayton Act. 

IV. Anticompetitive Effects 

A. Concentration 

37. DPL is the largest firm in the 

traited cottonseed market in the United 

States. It is even more dominant in the 

MidSouth United States market, with 

79% of the traited cottonseed sales, and 

the Southeast United States market, 

with over 87% of the traited cottonseed 

sales. 

38. Monsanto is the second-largest 

traited cottonseed company in the 

MidSouth and Southeast United States 

markets, with 17% of sales in the 

MidSouth United States market and 8% 

of sales in the Southeast United States 

market. 

39. After the merger, Monsanto would 

account for more than 95% of sales of 

traited cottonseed in the MidSouth 

United States market and 95% of sales 

in the Southeast United States market. 

40. Using a measure of market 

concentration called the HerfindahlVerDate Aug<31>2005 20:04 Jun 14, 2007 Jkt 211001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\15JNN2.SGM 15JNN2

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Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 33339 

Hirschman Index (‘‘HHI’’), explained in 

Appendix A, Monsanto’s merger with 

DPL would result in a post-merger HHI 

of 9110 in the MidSouth United States 

market, with an increase of 331O, and 

a post-merger HHI of 9184 in the 

Southeast United States, with an 

increase of 1489. 

B. Effect of Transaction 

41. The merger will eliminate 

competition between DPL and 

Monsanto for the development, 

breeding, and sale of traited cottonseed. 

As a result, farmers likely will have 

fewer choices of, and face higher prices 

for, traited cottonseed. 

42. The merger will also eliminate 

DPL as a partner independent of 

Monsanto for developers of traits that 

would compete against Monsanto. DPL’s 

current efforts to develop and 

commercialize cottonseed with 

Syngenta’s VipCot insect-resistant 

technology, which would be 

competitive with Monsanto’s Bollgard 

and more-recent Bongard II traits, will 

be substantially delayed or prevented. 

Further, the merger will likely delay if 

not deter efforts to develop other traits 

that would compete with Monsanto 

traits and that would provide benefits to 

United States cotton farmers, including 

other insect-resistant traits, herbicidetolerant traits, and potentially other 

cottonseed traits. As a result, farmers 

likely will have fewer choices of, and 

face higher prices for, traited 

cottonseed. 

V. Entry 

43. Entry into the traited cottonseed 

business requires the assets and 

expertise both to breed high-performing 

varieties of cottonseed and to develop or 

access herbicide-tolerant and insectresistant traits to breed into the 

cottonseed. Each of those steps requires 

many years and the investment of tens 

of millions of dollars. 

44. Entry into the traited cottonseed 

business would not be timely, likely, or 

sufficient in its magnitude, character, 

and scope to deter or counteract an 

anticompetitive increase in the price of 

traited cottonseed by the merged 

Monsanto or DPL. 

VI. Violation Alleged 

45. The effect of Monsanto’s merger 

with DPL may be substantially to lessen 

competition in the market for the 

development, production, and sale of 

traited cottonseed in violation of 

Section 7 of the Clayton Act. Unless 

restrained, the transaction would likely 

have the following effects, among 

others: 

a. Competition in the market for the 

development, production, and sale of 

traited cottonseed in the MidSouth and 

Southeast United States would be 

substantially lessened; and 

b. Cotton farmers will suffer harm as 

a result of fewer choices and higher 

prices for traited cottonseed. 

VII. Request for Relief 

Plaintiff requests that this Court 

adjudicate and decree as follows: 

1. That Monsanto’s proposed merger 

with DPL would violate Section 7 of the 

Clayton Act, as amended, 15 U.S.C. 18; 

2. That Monsanto and DPL be 

permanently enjoined from carrying out 

their proposed merger, or from entering 

into or carrying out any agreement, 

understanding, or plan, the effect of 

which would be to combine the 

businesses or assets of Monsanto and 

DPL; 

3. That Plaintiff be awarded the costs 

of this action; and 

4. Such other relief as the Court may 

deem just and proper. 

Dated: May 31, 2007. 

Respectfully submitted, 

For Plaintiff United States 

Thomas O. Barnett, 

Assistant Attorney General. 

David L. Meyer, 

Deputy Assistant Attorney General. 

J. Robert Kramer II, 

Director of Operations. 

Donna N. Kooperstein, 

Chief, Transportation, Energy & Agriculture 

Section. 

William H. Stallings, 

Assistant Chief, Transportation, Energy & 

Agriculture Section. 

Jill A. Ptacek (WA Bar #18756) 

Angela L. Hughes (DC Bar #303420) 

J. Richard Doidge (MA Bar #600158) 

Michael D. Billiel (DC Bar #394377) 

David A. Blotner (WI Bar #1008674) 

Ian R. Conner (V A Bar #65349) 

John W. Elias (CA Bar #244620) 

Tracy L. Fisher (MN Bar #315837) 

Mark J. Niefer (DC Bar #470370) 

Sarah L. Wagner (TX Bar #24013700) 

Trial Attorneys, U.S. Department of Justice, 

Antitrust Division, Transportation, Energy & 

Agriculture Section, 325 7th Street, NW., 

Suite 500, Washington, DC 20004 Telephone: 

(202) 307–6607, Facsimile: (202) 307–2784. 

Appendix A—Definition of HHI 

‘‘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 

30, 30, 20, and 20 percent, the HHI is 2,600 

(302 + 302 +202 + 202 = 2,600). (Note: 

Throughout the Complaint, market share 

percentages have been rounded to the nearest 

whole number, but HHIs have been estimated 

using unrounded percentages in order to 

accurately reflect the concentration of the 

various markets.) The HHI takes into account 

the relative size distribution of the firms in 

a market and approaches zero when a market 

consists of a large number of small firms. 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 those 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 concentrated 

markets presumptively raise antitrust 

concerns under the guidelines issued by the 

U.S. Department of Justice and Federal Trade 

Commission. See id. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, 

Monsanto Company and Delta and Pine 

Land Company, Defendants. 

Case: 1:07–cv–00992 Assigned To: 

Urbina, Ricardo M. Assign Date: 5/31/ 

2007 Description: Antitrust. 

Proposed Final Judgment 

Whereas, Plaintiff United States of 

America filed its Complaint on May 31, 

2007, Plaintiff and Defendants, 

Monsanto Company (‘‘Monsanto’’) and 

Delta and Pine Land Company (‘‘DPL’’), 

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 and assets 

and alterations of certain existing 

license terms by Defendants to assure 

that competition is not substantially 

lessened; 

And whereas, Plaintiff requires 

Defendants to make certain divestitures 

and alter certain existing license terms 

for the purpose of remedying the loss of 

competition alleged in the Complaint; 

And whereas, Defendants have 

represented to Plaintiff that the 

divestitures and license term alterations 

required below can and shall be made 

and that Defendants shall later raise no 

claim of hardship or difficulty as 

grounds for asking the Court to modify 

any of the divestiture or license 

alteration provisions contained below; 


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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, 15 U.S.C. 18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer of the Enhanced 

Stoneville Assets’’ means the entity or 

entities to whom Defendant Monsanto 

divests the Enhanced Stoneville Assets. 

B. ‘‘Cotton States’’ means Defendant 

Monsanto’s cotton variety licensing 

business pursuant to which Defendant 

Monsanto licenses other cottonseed 

companies to produce or sell Defendant 

Monsanto’s own cotton varieties, cotton 

varieties Defendant Monsanto inlicenses from other breeders, or cotton 

varieties Defendant Monsanto produces 

from such varieties. 

C. ‘‘DPL’’ means Defendant Delta and 

Pine Land Company, a Delaware 

corporation with its headquarters in 

Scott, Mississippi, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, interests in 

partnerships and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

D. ‘‘DPL Acquirer’’ means the entity 

to whom Defendant Monsanto divests 

Defendant DPL. 

E. ‘‘Monsanto’’ means Defendant 

Monsanto Company, a Delaware 

corporation with its headquarters in St. 

Louis, Missouri, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

F. ‘‘Stoneville’’ means all assets used 

exclusively or primarily in, or to 

support, the U.S. business of Stoneville 

Pedigreed Seed Company, including, 

but not limited to the assets described 

in Schedule A. 

G. ‘‘Enhanced Stoneville Assets’’

means Stoneville and the additional 

assets, properties, and rights listed in 

Schedule B. 

H. ‘‘Syngenta’’ means Syngenta Crop 

Protection AG, a Swiss corporation with 

its headquarters in Basel, Switzerland, 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

I. ‘‘Vip Cot Assets’’ means the assets, 

properties, and rights listed in Schedule 

C. 

III. Applicability 

A. This Final Judgment applies to 

Defendants Monsanto and DPL, 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 Sections 

IV and V of this Final Judgment, 

Defendants sell or otherwise dispose of 

all or substantially all of their assets that 

include the Enhanced Stoneville Assets 

or the VipCot Assets, they shall require, 

as a condition of the sale or other 

disposition, that the purchaser(s) agree 

to be bound by the provisions of this 

Final Judgment. Defendants need not 

obtain such an agreement from the 

acquirers of the assets divested pursuant 

to this Final Judgment. 

IV. Divestiture of Enhanced Stoneville 

Assets 

A. Defendants are ordered and 

directed, in accordance with the terms 

of this Final Judgment, within ninety 

(90) calendar days after the filing of the 

Complaint in this matter, to divest the 

Enhanced Stoneville Assets to an 

acquirer acceptable to Plaintiff in 

Plaintiff’s sole discretion. Defendants 

shall use their best efforts to accomplish 

the divestiture of the Enhanced 

Stoneville Assets as expeditiously as 

possible. Plaintiff, in its sole discretion, 

may grant one or more extensions of this 

time period, not to exceed sixty (60) 

calendar days in total, and shall notify 

the Court in each such circumstance. 

B. Within two (2) business days 

following execution of a definitive 

agreement or agreements for the 

divestiture of the Enhanced Stoneville 

Assets, or the filing of this Final 

Judgment, whichever is later, 

Defendants shall notify Plaintiff in 

writing of the proposed divestiture. The 

notice shall set forth the details of the 

proposed divestiture, including a list of 

the name, address, and telephone 

number of each person who offered, or 

expressed an interest in or desire, to 

acquire any ownership interest in the 

Enhanced Stoneville Assets, together 

with full details of the same. Defendants 

need not include in this notice 

information about any persons 

previously identified in an affidavit 

filed in compliance with this Final 

Judgment as offering, or expressing an 

interest in or desiring, to acquire any 

ownership interest in the Enhanced 

Stoneville Assets. Defendants shall 

include with the notice a copy of the 

divestiture agreement or agreements and 

copies of any other agreements entered 

into by either or both of the Defendants 

and the proposed Acquirer of the 

Enhanced Stoneville Assets since the 

Complaint in this matter was filed, or 

up to three (3) months before the filing 

of the Complaint in this matter. 

Defendants may incorporate by 

reference in this notice any responsive 

information or documents previously 

provided to Plaintiff, provided that 

Defendants identify with specificity 

when the information or documents 

were previously provided and, if the 

information or documents were part of 

a larger submission, where in the 

submission the information or 

documents may be located. 

C. Within fifteen (15) calendar days of 

receipt by Plaintiff of such notice, 

Plaintiff may request from Defendants, 

the proposed Acquirer of the Enhanced 

Stoneville Assets, or any other third 

party, additional information 

concerning the proposed divestiture, the 

proposed Acquirer of the Enhanced 

Stoneville Assets, and any other 

potential acquirer. Defendants shall 

furnish any additional information 

requested of Defendants within fifteen 

(15) calendar days of the receipt of the 

request, unless Defendants and Plaintiff 

shall otherwise agree. 

D. Within fifteen (15) calendar days 

after receipt of the notice or within ten 

(10) calendar days after Plaintiff has 

been provided the additional 

information requested from Defendants, 

the proposed Acquirer of the Enhanced 

Stoneville Assets, and any third party, 

whichever is later, Plaintiff shall 

provide written notice to Defendants 

stating whether or not it objects to the 

proposed divestiture. If Plaintiff 

provides written notice that it does not 

object, the divestiture may be 

consummated. Absent written notice 

that Plaintiff does not object to the 

proposed Acquirer of the Enhanced 

Stoneville Assets or upon objection by 

Plaintiff, the divestiture of the Enhanced 

Stoneville Assets to that proposed 

Acquirer shall not be consummated. 

E. The divestiture of the Enhanced 

Stoneville Assets shall be accomplished 

in such a way as to satisfy Plaintiff, in 

its sole discretion, that the Enhanced 

Stoneville Assets can and shall be used 

by the Acquirer of the Enhanced 

Stoneville Assets to operate a viable, 

ongoing business engaged in the 

development, production and sale of 

traited cottonseed. The divestiture of the 

Enhanced Stoneville Assets: 

(1) Shall be made to an Acquirer of 

the Enhanced Stoneville Assets that, in 

Plaintiff’s sole judgment, has the intent 

and capability (including the necessary 


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managerial, operational, technical, and 

financial capability and intellectual 

property rights) of competing effectively 

in the business of developing, 

producing and selling traited cottonseed 

in the United States, including a 

credible commitment to the traited 

cottonseed market; 

(2) Shall be accomplished so as to 

satisfy Plaintiff, in its sole discretion, 

that the divestiture shall not result in 

the substantial lessening of competition 

for the development, production, and 

sale of traited cottonseed in any 

geographic area; and 

(3) Shall be accomplished so as to 

satisfy Plaintiff, in its sole discretion, 

that none of the terms of any agreement 

between an Acquirer of the Enhanced 

Stoneville Assets and Defendants give 

Defendants the ability unreasonably to 

raise the Acquirer’s costs, to lower the 

Acquirer’s efficiency, or otherwise to 

interfere in the ability of the Acquirer to 

compete effectively. 

F. Defendants shall provide to the 

Acquirer of the Enhanced Stoneville 

Assets and Plaintiff information relating 

to the personnel primarily involved in 

the operation of Stoneville to enable the 

Acquirer of the Enhanced Stoneville 

Assets to make offers of employment. 

Defendants shall not interfere with any 

negotiations by the Acquirer of the 

Enhanced Stoneville Assets to employ 

any such personnel. 

G. For a period of two (2) years from 

the filing of the Complaint in this 

matter, Defendants shall not solicit to 

hire, or hire, any individual primarily 

involved in the operation of Stoneville 

on the date of the filing of the 

Complaint in this matter who receives a 

substantially equivalent offer of 

employment from the Acquirer, unless 

such individual is terminated or laid off 

by the Acquirer, or the Acquirer agrees 

that Defendants may solicit and employ 

that individual. 

H. Defendants shall not take any 

action that shall impede in any way the 

operation, use or divestiture of the 

Enhanced Stoneville Assets. 

I. Defendants shall warrant to the 

Acquirer of the Enhanced Stoneville 

Assets that there are no material defects 

in the environmental, zoning or other 

permits pertaining to the operation of 

each asset that shall have a material 

adverse effect on the operation of the 

Enhanced Stoneville Assets, and that 

following the sale of the Enhanced 

Stoneville Assets, Defendants shall not 

undertake, directly or indirectly, any 

challenges to the environmental, zoning, 

or other permits relating to the use or 

operation of the Enhanced Stoneville 

Assets based on actions or inactions that 

existed prior to the date of divestiture. 

V. Divestiture of VipCot Assets 

A. Defendants are ordered and 

directed, in accordance with the terms 

of this Final Judgment, to offer Syngenta 

the VipCot Assets listed in the attached 

Schedule C within thirty (30) calendar 

days of the filing of the Complaint in 

this matter. The offer shall remain open 

for at least six (6) months. Defendants 

shall use their best efforts to accomplish 

the divestiture of the VipCot Assets as 

expeditiously as possible, but in any 

event no later than ninety (90) calendar 

days after the divestiture of the 

Enhanced Stoneville Assets or thirty 

(30) calendar days after Syngenta 

accepts the offer, whichever is latest. 

Plaintiff, in its sole discretion, may 

extend the time period for Defendants to 

divest the VipCot Assets to Syngenta by 

granting one or more extensions, not to 

exceed ninety (90) calendar days in 

total, and shall notify the Court in each 

such circumstance. 

B. Prior to transmitting to Syngenta 

the offer for the assets described in the 

attached Schedule C, Defendants shall 

provide Plaintiff with copies of the offer 

for the approval of the Plaintiff in its 

sole discretion. Along with the offer, 

Defendants shall provide Plaintiff 

copies of any other agreements not 

previously provided to Plaintiff entered 

into by either or both of the Defendants 

and Syngenta since the Complaint in 

this matter was filed, or up to three (3) 

months before the filing of the 

Complaint in this matter. Within five (5) 

business days following receipt of the 

offer, Plaintiff shall provide written 

notice to Defendants stating whether the 

offer must be amended to meet the 

objectives of the divestiture of the 

VipCot Assets. Absent written notice 

that Plaintiff does not object to the offer, 

the divestiture of the VipCot Assets to 

Syngenta pursuant to the offer shall not 

proceed. Upon objection by Plaintiff, 

Defendants shall alter the terms of the 

offer to satisfy Plaintiff in its sole 

discretion. 

C. Defendants shall permit Syngenta 

to have reasonable access to personnel 

and to any and all financial, operational, 

or other documents and information 

relating to the VipCot Assets 

customarily provided as part of a due 

diligence process. 

D. Defendants shall not take any 

action that shall harm the VipCot Assets 

or impede in any way the divestiture of 

the VipCot Assets. 

VI. Changes in Third Party Licenses 

A. Defendant Monsanto agrees to offer 

to its licensees, within thirty (30) 

calendar days of the date of the sale of 

the Enhanced Stoneville Assets, to make 

the following changes to its third-party 

cottonseed trait and Cotton States 

licenses, subject to the approval of 

Plaintiff in its sole discretion: 

1. Current Cotton Insect Resistance 

and Herbicide Tolerance Trait 

Licensing—Agreements: Defendant 

Monsanto shall modify its current 

cottonseed trait licenses to provide the 

licensees with the flexibility Defendant 

DPL currently has to develop, market or 

sell cottonseed containing nonMonsanto traits by removing any 

provisions that require or incentivize 

the licensee to develop, market or sell 

cottonseed containing only traits from 

Defendant Monsanto. 

2. Cotton States Licenses: Defendant 

Monsanto shall modify its Cotton—

States licenses to eliminate any 

provision that allows Defendant 

Monsanto to terminate the license if the 

licensee sells cottonseed containing 

non-Monsanto traits in brands not 

licensed under the Cotton States license. 

B. Prior to making the offers, and no 

later than five (5) days after the date of 

sale of the Enhanced Stoneville Assets, 

Defendant Monsanto shall provide 

Plaintiff with copies of the offers for the 

approval of Plaintiff in its sole 

discretion. Within five (5) days of 

receipt of the offers to modify the 

license agreements, Plaintiff shall 

provide written notice to Defendant 

Monsanto stating whether the offers 

must be amended. Absent written notice 

that Plaintiff does not object to the 

offers, Defendant Monsanto may not 

proceed with offering the modifications 

to the licensees. Upon objection by 

Plaintiff, Defendant Monsanto shall alter 

the terms of the offers to satisfy Plaintiff 

in its sole discretion. In the event any 

of the licensees do not accept the offer 

containing the modifications described 

in Section VI.A. as approved by Plaintiff 

in its sole discretion, Defendant 

Monsanto shall act as though such 

modification has been made and shall 

not enforce any license provision that is 

the subject of any such modification. 

VII. Divestiture of Defendant DPL 

A. If Defendants have not divested the 

Enhanced Stoneville Assets by the end 

of the time period permitted by this 

Final Judgment, Defendants shall notify 

Plaintiff of that fact in writing. 

Defendant Monsanto shall then divest 

DPL within sixty (60) days. If Defendant 

Monsanto has not divested Defendant 

DPL by the end of the sixty-day period, 

Defendant Monsanto shall notify 

Plaintiff of that fact in writing. Upon 

application of Plaintiff, the Court shall 

appoint a trustee selected by Plaintiff 

and approved by the Court to effect the 

divestiture of Defendant DPL. 


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B. Defendant Monsanto shall use its 

best efforts to assist the trustee in 

accomplishing the required divestiture 

of Defendant DPL, including its best 

efforts to effect all necessary regulatory 

approvals. 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 assets 

at the facilities to be divested, and 

Defendant Monsanto shall develop 

financial or other information relevant 

to the assets to be divested customarily 

provided in a due diligence process as 

the trustee may reasonably request, 

subject to reasonable protection for 

confidential commercial information. In 

addition, Defendant Monsanto shall: 

(1) Permit prospective acquirers of 

Defendant DPL who have been invited 

to submit binding bids for Defendant 

DPL to have reasonable access to 

Defendant DPL’s personnel and to make 

such inspection of Defendant DPL and 

any and all financial, operational, or 

other documents and other information 

as may be relevant to the divestiture of 

Defendant DPL, subject to reasonable 

protection for confidential commercial 

information; 

(2) Provide the DPL Acquirer and 

Plaintiff information relating to the 

personnel of Defendant DPL to enable 

the DPL Acquirer to make offers of 

employment; 

(3) Take no action to interfere with 

any negotiations by the DPL Acquirer to 

employ any Defendant DPL employee; 

(4) Take no action to interfere with or 

to impede the trustee’s accomplishment 

of the divestiture of Defendant DPL; 

(5) Warrant to the DPL Acquirer that 

on the date of sale each asset shall be 

in the same condition as when 

Defendant Monsanto acquired 

Defendant DPL, except for the 

harvesting of cotton plants and selection 

lines in the ordinary course of business, 

and ordinary wear and tear of assets and 

facilities; 

(6) Warrant to the DPL Acquirer that 

there are no material defects in the 

environmental, zoning or other permits 

pertaining to the operation of each asset 

that have arisen since Defendant 

Monsanto acquired Defendant DPL; and 

(7) Shall not, following divestiture of 

Defendant DPL, undertake, directly or 

indirectly, any challenges to the 

environmental, zoning, or other permits 

relating to the operation of Defendant 

DPL, or otherwise take any action that 

shall impede in any way the permitting, 

operation, or divestiture of Defendant 

DPL. 

C. Unless Plaintiff otherwise consents 

in writing, the divestiture of Defendant 

DPL pursuant to this Section of the 

Final Judgment, whether accomplished 

by Defendant Monsanto or a trustee, 

shall include the entirety of Defendant 

DPL, and shall be accomplished in such 

a way as to satisfy Plaintiff, in its sole 

discretion, that (a) Defendant DPL shall 

remain no less viable than when 

Defendant Monsanto acquired it, (b) the 

divestiture of Defendant DPL shall 

remedy the competitive harm alleged in 

the Complaint, and (c) none of the terms 

of any agreement between a DPL 

Acquirer and Defendant Monsanto give 

Defendant Monsanto the ability 

unreasonably to raise that person’s 

costs, to lower that person’s efficiency, 

or otherwise to interfere in the ability of 

that person to compete effectively. 

D. The trustee shall have the power 

and authority to accomplish the 

divestiture of Defendant DPL at the 

earliest possible time to an acquirer 

acceptable to Plaintiff, in its sole 

discretion, at such price and on such 

terms as are then obtainable upon 

reasonable effort by the trustee, and 

shall have such other powers as the 

Court deems appropriate. Subject to 

Section VII.F of this Final Judgment, the 

trustee shall have the power and 

authority to hire at the cost and expense 

of Defendant Monsanto any investment 

bankers, attorneys, or other agents who 

are reasonably necessary in the 

judgment of the trustee to assist in the 

divestiture of Defendant DPL and who 

shall be solely accountable to the 

trustee. 

E. Defendant Monsanto shall not 

object to a sale by the trustee on any 

ground other than the trustee’s 

malfeasance. Any such objections by 

Defendant Monsanto must be conveyed 

in writing to Plaintiff and the trustee 

within ten (10) calendar days after the 

trustee has provided the notice required 

under this Section. 

F. The trustee shall serve at the cost 

and expense of Defendant Monsanto, on 

such terms and conditions as Plaintiff 

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 

Defendant Monsanto, and the trust shall 

then be terminated. The compensation 

of the trustee and of any professionals 

and agents retained by the trustee shall 

be reasonable in light of the value of 

Defendant DPL and based on a fee 

arrangement providing the trustee with 

an incentive based on the price and 

terms of the divestiture of Defendant 

DPL and the speed with which it is 

accomplished, but timeliness is 

paramount. 

G. After its appointment, the trustee 

shall file monthly reports with Plaintiff, 

Defendant Monsanto, and the Court 

setting forth the trustee’s efforts to 

accomplish the divestiture of Defendant 

DPL, provided however, that 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 and Defendant 

Monsanto’s copy of the report shall have 

such confidential information redacted. 

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 Defendant 

DPL, and shall describe in detail each 

contact with any such person during 

that period. The trustee shall maintain 

full records of all efforts made to divest 

Defendant DPL. 

H. If the trustee has not accomplished 

such divestiture of Defendant DPL 

within ninety (90) calendar days after its 

appointment, the trustee shall file 

promptly with the Court a report setting 

forth (1) The trustee’s efforts to 

accomplish the required divestiture of 

Defendant DPL; (2) the reasons, in the 

trustee’s judgment, why the required 

divestiture of Defendant DPL has not 

been accomplished; and (3) the trustee’s 

recommendations. To the extent such 

report contains information that the 

trustee deems confidential, such report 

shall not be filed in the public docket 

of the Court. The trustee shall at the 

same time furnish such report to 

Plaintiff. Plaintiff shall have the right to 

make additional recommendations 

consistent with the purpose of the trust. 

The Court shall enter thereafter such 

orders as it shall deem appropriate to 

carry out the purpose of this Final 

Judgment which may, if necessary, 

include extending this Final Judgment 

and the term of the trustee’s 

appointment by a period requested by 

Plaintiff. 

I. The trustee shall notify Plaintiff and 

Defendant Monsanto within two (2) 

business days following execution of a 

definitive agreement for the sale of 

Defendant DPL. The notice shall set 

forth the details of the proposed 

divestiture of Defendant DPL 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 Defendant DPL, 

together with full details of the same. 


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J. Within fifteen (15) calendar days of 

receipt by Plaintiff of such notice, 

Plaintiff may request from Defendants, 

the proposed DPL Acquirer, any other 

third party, or the trustee, additional 

information concerning the proposed 

divestiture of Defendant DPL, the 

proposed DPL Acquirer, 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 Defendants and 

Plaintiff shall otherwise agree. 

K. Within thirty (30) calendar days 

after receipt of the notice or within 

twenty (20) calendar days after Plaintiff 

has been provided the additional 

information requested from Defendant 

Monsanto, the proposed DPL Acquirer, 

any third party, and the trustee, 

whichever is later, Plaintiff shall 

provide written notice to Defendant 

Monsanto and the trustee stating 

whether or not it objects to the proposed 

divestiture of Defendant DPL. If Plaintiff 

provides written notice that it does not 

object, the sale of Defendant DPL may 

be consummated, subject only to 

Defendant Monsanto’s limited right to 

object to the sale under Section VII.E of 

this Final Judgment. Absent written 

notice that Plaintiff does not object to 

the proposed DPL Acquirer or upon 

objection by Plaintiff, the sale of 

Defendant DPL shall not be 

consummated. Upon objection by 

Defendant Monsanto under Section 

VII.E, a sale of Defendant DPL proposed 

under this Section shall not be 

consummated unless approved by the 

Court. 

VIII. Financing 

Defendants shall not finance all or 

any part of any purchase made pursuant 

to Section IV or Section VII of this Final 

Judgment. 

IX. 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 and Preservation of Assets 

Stipulation and Order entered by this 

Court. Defendants shall take no action 

that would jeopardize the divestitures 

ordered by this Court. 

X. Affidavits 

A. Within ten (10) 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 Sections IV 

and V, Defendants shall deliver to 

Plaintiff an affidavit as to the fact and 

manner of its compliance with Sections 

IV, V, and VI of this Final Judgment. 

Each such affidavit shall include the 

name, address, and telephone number of 

each person who, during the preceding 

thirty days, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring, any interest in the Enhanced 

Stoneville Assets, and shall describe in 

detail each contact with any such 

person during that period, including a 

summary of all conversations (1) 

Between Defendants and any Acquirer 

of the Enhanced Stoneville Assets, and 

(2) between Defendants and Syngenta 

with respect to the VipCot Assets. 

Defendants may incorporate by 

reference in any such affidavit any 

responsive information or documents 

previously provided to Plaintiff, 

provided however, that Defendants 

identify with specificity when the 

information or documents were 

previously provided and, if the 

information or documents were part of 

a larger submission, where in the 

submission the information or 

documents may be located. Assuming 

the information set forth in the affidavit 

is true and complete, any objection by 

Plaintiff to information provided by 

Defendants, including any limitation on 

information, shall be made within 

fourteen (14) days of receipt of such 

affidavit. 

B. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Enhanced Stoneville Assets and 

VipCot Assets until one year after each 

such divestiture has been completed. 

XI. 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 

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 Defendants, be 

permitted: 

(1) Access during Defendants’ office 

hours to inspect and copy, or at 

Plaintiffs option, to require Defendants 

to provide copies of all books, ledgers, 

accounts, records 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 a duly 

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 Plaintiff 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 Defendants 

to Plaintiff, Defendants represent and 

identify in writing the material in any 

such information or documents to 

which a claim of protection may be 

asserted under Rule 26(c)(7) of the 

Federal Rules of Civil Procedure, and 

Defendants mark each pertinent page of 

such material, ‘‘Subject to claim of 

protection under Rule 26( c)(7) of the 

Federal Rules of Civil Procedure,’’ then 

Plaintiff shall give Defendants ten (10) 

calendar days’ notice prior to divulging 

such material in any legal proceeding 

(other than a grand jury proceeding). 

XII. Notification 

A. Unless such transaction is 

otherwise subject to the reporting and 

waiting period requirements of the HartScott-Rodino Antitrust Improvements 

Act of 1976, as amended, 15 U.S.C. 18a 

(the ‘‘HSR Act’’), Defendant Monsanto, 

without providing advance notification 

to Plaintiff, shall not directly or 

indirectly acquire (1) Voting securities, 

(2) all or substantially all of the cotton 

germplasm, or (3) substantially all of the 

assets relating to cottonseeds or 

cottonseed traits, of any company that 

develops and sells cottonseed in the 

United States, or any company that has 

developed, or has under development 

traits for commercialization in 

cottonseed in the United States, where 

such acquisition would be reportable 

under the HSR Act but for a failure to 

satisfy the thresholds of 15 U.S.C. 

l8a(a)(2). 


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B. Such notification shall be provided 

to Plaintiff 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 cottonseeds or transgenic traits 

that shall be or could be used in 

cottonseeds. Notification shall be 

provided at least thirty (30) 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 thirty (30) day period after 

notification, representatives of Plaintiff 

make a written request for additional 

information, Defendant Monsanto 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. 

XIII. No Reacquisition 

If Defendant Monsanto divests the 

Enhanced Stoneville Assets and the 

VipCot Assets, Defendant Monsanto 

may not reacquire any part of the 

Enhanced Stoneville Assets or the 

VipCot Assets during the term of this 

Final Judgment. If Defendant Monsanto 

divests Defendant DPL, it may not 

reacquire any part of Defendant DPL 

during the term of this Final Judgment. 

XIV. 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. 

XV. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten (10) 

years from the date of its entry. 

XVI. 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 Plaintiff’s 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: llllllllllllllll

Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16. 

lllllllllllllllllll

United States District Judge 

Definitions for Schedules 

1. ‘‘Advanced Exotic Yield Lines’’

means the Breeding populations and 

proprietary Lines created by Defendant 

Monsanto from a cross between 

Gossypium hirsutum and Gossypium 

barbadense that are identified in 

Schedule D. 

2. ‘‘Backcross’’ means to cross a 

hybrid with one of its parents and then 

to cross the resulting progeny with the 

same parent Line (perhaps multiple 

times) in order to develop progeny with 

a genetic makeup that approximates the 

genetic make up of that parent while 

retaining certain desirable 

characteristics of the genetic makeup of 

the other parent of the hybrid. 

3. ‘‘Breed’’ means to purposefully 

modify the Germplasm of a plant so as 

to alter its genetic make up, and to 

develop the progeny from the altered 

Germplasm. 

4. ‘‘DPL Marker Data’’ means 

Fingerprints that Defendant Monsanto 

shall create for the DPL Germplasm 

being divested pursuant to Schedule 

B.2. 

5. ‘‘Donor Lines’’ means the cotton 

Lines used by Defendant Monsanto to 

create or transmit novel cotton traits or 

events, and identified in Schedule F. 

6. ‘‘Fingerprint’’ means a record of the 

presence or absence of genetic markers 

for which a Line has been tested. 

7. ‘‘Germplasm’’ means a collection of 

heterozygous and homozygous cotton 

plants or parts thereof. For purposes of 

Schedules B and C of this Final 

Judgment, when the Defendants are 

required to convey Germplasm to a 

party, the Defendant may satisfy that 

obligation by conveying that Germplasm 

in seed form, or if necessary, in potted 

plant form. 

8. ‘‘Introgress’’ means to move a gene 

from one cotton plant into another. 

9. ‘‘Line’’ means a set of cottonseed or 

plants that share a common reasonably 

homogenous genotype that originate 

from a cross between two cotton plants. 

10. ‘‘MAB Populations’’ means the 

Germplasm populations for which 

Defendant Monsanto has conducted 

significant marker analyses that are 

identified in Schedule E. 

11. ‘‘Monsanto B.t. Gene’’ means a 

DNA molecule, or a replicate thereof, 

developed and out-licensed by 

Defendant Monsanto for use in 

commercial cottonseed in the United 

States, and which encodes a B.t. toxin 

that when present in cotton plants 

results in those plants being toxic to 

lepidopteran insects. 

12. ‘‘Monsanto Cotton Traits’’ means: 

(1) The transgenic event denominated 

‘‘Event 531’’ currently sold under the 

‘‘Bollgard’’ brand; (2) the transgenic 

event denominated ‘‘Event 15985’’

currently sold under the ‘‘Bollgard II’’

brand; (3) the transgenic event 

denominated ‘‘Event 1445’’ currently 

sold under the ‘‘Roundup Ready’’ brand; 

and (4) the transgenic event 

denominated ‘‘Event 88913’’ currently 

sold under the ‘‘Roundup Ready Flex’’

brand, or any combination thereof. 

13. ‘‘Monsanto Marker Library’’

means (1) Two collections of genetic 

information concerning variations in the 

genetic makeup of Gossypium, 

specifically a set of SSRs and a set of 

SNPs, and (2) cotton mapping data 

owned by Defendant Monsanto prior to 

its acquisition of Defendant DPL 

pursuant to the Merger Agreement. 

14. ‘‘Monsanto Roundup Ready Gene’’

means a DNA molecule, or a replicate 

thereof, developed and out-licensed by 

Defendant Monsanto for use in 

commercial cottonseed in the United 

States, and which when present in 

cotton plants results in those plants 

exhibiting commercial tolerance to 

glyphosate herbicides. 

15. ‘‘Null Line’’ shall mean a 

reasonably genetically homogenous Line 

of cotton that is selected from a cross in 

which one of the parents was from the 

Advanced Exotic Yield Lines or MAB 

populations and that does not contain 

one or more of the Monsanto Cotton 

Traits that was contained in the parental 

Advanced Exotic Yield Line or MAB 

population. A grant of a right to create 

a Null Line to the Acquirer of the 

Enhanced Stoneville Assets includes an 

obligation by Defendant Monsanto to 

provide the Acquirer of the Enhanced 

Stoneville Assets with assays, materials, 

and information regarding the Monsanto 

Cotton Trait(s) formerly in the Null Line 

necessary to obtain requisite regulatory 


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approvals, provided the Acquirer of the 

Enhanced Stoneville Assets reimburses 

Defendant Monsanto its reasonable 

expenses in providing such assistance. 

16. ‘‘Publicly Available Cotton 

Germplasm’’ means any non-Monsanto 

proprietary cotton Germplasm that has 

not been exclusively in-licensed by 

Defendant Monsanto. 

17. ‘‘Recurrent Parent’’ means the 

parent to which successive Backcrosses 

are made in Backcross Breeding. 

18. ‘‘Roundup Ready Flex’’ means the 

Monsanto Roundup Ready Gene 

denominated ‘‘Event 88913.’’

19. ‘‘SNP’’ (or Single Nucleotide 

Polymorphisms) means variations at a 

single position in a given DNA 

sequence, which occur within a 

population of cotton plants. 

20. ‘‘SSR’’ (or Simple Sequence 

Repeat) means variations in the number 

of repetitions of a DNA sequence. 

21. ‘‘Transform’’ means to alter the 

genetic makeup of a cotton plant variety 

through means other than Breeding, for 

example, by the introduction of foreign 

genetic material. 

Schedule A—Stoneville 

1. Cotton Germplasm: All U.S. 

Stoneville cotton Germplasm, including, 

for each variety, Line and population to 

be divested: all patents, patent 

applications and Plant Variety 

Protection Act certificates applied for or 

granted with respect to that Germplasm 

(and excluding any patents or patent 

applications on Monsanto cotton traits); 

and copies of all performance and other 

test results, phenotypic data, product 

descriptions, research data and any 

Fingerprint information. 

2. Physical Assets: 

a. Defendant Monsanto’s interest in 

the real property at the following sites 

or locations: 

(1) The manufacturing, storage and 

delinting facility at Stoneville, 

Mississippi; 

(2) The research & development 

facility at Arcola, Mississippi; 

(3) The research & development 

facility, including greenhouse and labs, 

at Memphis, Tennessee; and 

(4) The manufacturing, storage and 

delinting and the Breeding and testing 

facilities at N. Powerline Road, 

Maricopa, Arizona. 

b. Defendant Monsanto’s interest in 

the leased real property at the following 

sites or locations: 

(1) The land at Maricopa, Arizona; 

(2) The AgriCenter international 

research facility at Memphis, Tennessee; 

(3) The Memphis Redbirds Suite; 

(4) The Columbus & Greenville 

Railway Lease; 

(5) The delinting plant at Marble Hall, 

South Africa; 

(6) The property described in the W.B. 

Sutton Farms Partnership Lease; 

(7) The storage facility described in 

the Farmers Feed Storage Agreement; 

(8) The storage facility described in 

the David Storage Company Industrial 

Space Lease; and 

(9) The storage facility described in 

the Cascio Refrigerated Warehouse 

Agreement. 

c. At the option of the Acquirer of the 

Enhanced Stoneville Assets, Defendant 

Monsanto’s interest in the real property 

at the following sites or locations: 

(1) The farm at Lubbock, Texas; 

(2) The manufacturing, storage, and 

delinting facility at Big Spring, Texas; 

(3) The research and development 

facility at Idalou, Texas; 

(4) 7.2 acres in Idalou, Texas (leased); 

and 

(5) 80 acres in Idalou, Texas (leased). 

d. All tangible assets other than 

Germplasm located at each of the 

locations identified in a. and b. above 

that are exclusively or primarily used in 

connection with the Stoneville U.S. 

branded business, including: 

(1) All manufacturing and agricultural 

equipment, tooling and fixed assets; 

personal property; materials; supplies; 

and other tangible property. 

(2) All existing drawings; blueprints; 

designs; plans for improvements or 

expansion; design protocols; 

specifications for materials; and 

specifications for parts and devices. 

(3) All safety procedures for the 

handling of materials and substances; 

and quality assurance and control 

procedures relating to the locations 

listed in a. and b. above or the tangible 

assets listed in this paragraph d. 

(4) Business records relating to the 

Stoneville U.S. branded cottonseed 

business, including stock record books, 

minute books, direct customer or direct 

distributor lists; a list of names and 

addresses of U.S. cotton growers with 

Monsanto trait licenses; and other 

information to the extent related to the 

operation of the business during the 

past three years which is in the 

possession of or available to the 

Defendants. 

e. At the option of the Acquirer of the 

Enhanced Stoneville Assets, all tangible 

assets other than Germplasm located at 

each of the locations identified in c. 

above that are exclusively or primarily 

used in connection with the Stoneville 

U.S. branded business, including: 

(1) All manufacturing and agricultural 

equipment, tooling and fixed assets; 

personal property; materials; supplies; 

and other tangible property. 

(2) All existing drawings; blueprints; 

designs; plans for improvements or 

expansion; design protocols; 

specifications for materials; and 

specifications for parts and devices. 

(3) All safety procedures for the 

handling of materials and substances; 

and quality assurance and control 

procedures relating to the locations 

listed in c. above or the tangible assets 

listed in this paragraph e. 

(4) Business records relating to the 

Stoneville U.S. branded cottonseed 

business, including stock record books, 

minute books, direct customer or direct 

distributor lists; a list of names and 

addresses of U.S. cotton growers with 

Monsanto trait licenses; and other 

information to the extent related to the 

operation of the business during the 

past three years which is in the 

possession of or available to the 

Defendants. 

f. At the option of the Acquirer of the 

Enhanced Stoneville Assets, all 

equipment used exclusively or 

primarily in connection with the 

Stoneville branded cottonseed business 

stored at Monsanto sites at Leesburg, 

Georgia, Mt. Olive, North Carolina and 

Leland, Mississippi. 

3. Intangible Assets: 

a. Brand Names, Goodwill and Trade 

Secrets—The Stoneville brand names, 

goodwill, and trade secrets relating to 

Stoneville’s U.S. branded cottonseed 

business. Defendant Monsanto may 

retain exclusive rights to the Stoneville 

brand in connection with the sale of 

Germplasm in Spain, Greece, and 

Turkey, such rights expire on a countryby-country basis with the term of the 

relevant current distributor agreements 

in Spain and Greece, and one (1) year 

from the date of divestiture of the 

Enhanced Stoneville Assets in Turkey, 

provided that in all cases the relevant 

distributors shall be allowed to sell any 

inventory of goods already packaged in 

containers bearing the Stoneville 

trademarks as of the relevant 

termination date. 

b. Intangible and Contractual Rights: 

(1) Exclusive rights to (a) Breeder 

records and/or notebooks, including 

pedigrees, relating to Stoneville U.S. 

cotton Germplasm, identities of nonpublic lines of Stoneville U.S. cotton 

Germplasm in breeding and trial results, 

including yield results (subject to the 

redaction of any data that may be 

included in such records relating to the 

identity of any non-public lines other 

than Stoneville U.S. cotton Germplasm), 

(b) existing fingerprints for Stoneville 

U.S. cotton Germplasm, and (c) quality 

control data relating to Stoneville U.S. 

cotton Germplasm (subject to Defendant 

Monsanto’s right to keep under the 

control of its Law Department (i) one 

copy of such quality control data and 

(ii) access to the identities of any 


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Stoneville U.S. cotton Germplasm 

present in trial results that also include 

results relating to non-public lines of 

Germplasm other than Stoneville U.S. 

cotton Germplasm; Monsanto’s Law 

Department may not disclose this 

information to any other component of 

Monsanto). 

(2) Non-exclusive rights to, and the 

tangible embodiments of, (i) Nonproprietary procedures, methods, 

techniques, know-how, specifications, 

processes, analyses, and protocols used 

in Stoneville’s U.S. branded cottonseed 

business (such as Monsanto’s 

procedures for the inspection, sampling 

and delivery of cottonseed at production 

facilities, procedures for analyzing job 

safety and complying with 

environmental regulations, and 

specifications for production-related 

data entry), and (ii) Monsanto’s low acid 

delinting process. 

(3) All assignable licenses, permits, 

and authorizations issued by any 

governmental organization relating to 

the Stoneville U.S. branded cottonseed 

business. 

(4) All contracts to which Stoneville 

Pedigreed Seed Company is a party, 

including supply and distribution 

agreements. 

(5) All other intangible and 

contractual rights used exclusively or 

primarily in Stoneville’s U.S. branded 

cottonseed business not otherwise 

specifically addressed in b.(1 )–(4). 

4. Exclusions: 

Excluded from the assets to be 

divested that are listed in this Schedule 

A are: (1) Real property not specifically 

identified in Schedule A.2., and (2) 

software owned by or licensed to 

Defendant Monsanto (except that 

Stoneville will receive a non-exclusive 

license to TaqPro), and hardware used 

exclusively to access such software. 

Schedule B—Enhanced Stoneville 

Assets 

1. Stoneville: As defined in the Final 

Judgment. 

2. DPL Germplasm: Defendants shall 

divest all interests in the DPL varieties 

listed in Table B, including, for each 

variety, any Plant Variety Protection Act 

certificates applied for or granted, 

patents applied for or granted, copies of 

all performance and other test results, 

phenotypic data, product descriptions, 

research data and DPL Marker Data. 

a. With respect to this DPL 

Germplasm, Defendant Monsanto may: 

(1) Continue to sell during 2007 any 

existing inventories of these DPL 

varieties that Defendant DPL currently 

offers for sale in the United States; 

(2) Take back an exclusive license to 

commercialize varieties that (i) Contain 

only traits out-licensed by Defendant 

Monsanto, and (ii) are essentially 

derived from these DPL varieties, or are 

essentially derived from a cross between 

any of these DPL varieties, which 

license may require the Acquirer of the 

Enhanced Stoneville Assets to seek U.S. 

patents for the DPL varieties listed in 

Table B, and may provide for 

enforcement of Monsanto’s exclusive 

rights with respect to these varieties; 

(3) Retain exclusive rights (i) To 

continue to sell these DPL varieties in 

countries outside the United States in 

which Defendant DPL currently offers 

the varieties for sale, but such rights 

shall terminate with respect to a 

particular country and variety if 

Defendant Monsanto discontinues sales 

of that variety in that country, and (ii) 

to sell 05X460, 05Y063, and 05Z629 

outside of the United States; 

(4) Retain sufficient quantities of 

cottonseed to enable it to continue its 

current sales of seed relating to sales 

made pursuant to subparagraph 3 above 

(provided that any such retention by 

Defendant Monsanto shall only be 

permitted to the extent it does not 

adversely affect the Acquirer of the 

Enhanced Stoneville Assets); 

(5) Retain sufficient quantities of 

cottonseed for Breeding purposes 

(provided that any such retention by 

Defendant Monsanto shall only be 

permitted to the extent it does not 

adversely affect the Acquirer of the 

Enhanced Stoneville Assets), and take 

back a non-exclusive license to use 

these DPL varieties in its Breeding 

program; 

(6) Take back a license that grants 

Defendant Monsanto only those rights 

necessary to accomplish the divestiture 

of the VipCot Assets described in 

Schedule C; and 

(7) Require the Acquirer of the 

Enhanced Stoneville Assets to agree that 

for seven (7) years after the divestiture 

of the Enhanced Stoneville Assets it 

shall not commercialize a variety that is 

essentially derived from one of the DPL 

varieties listed in Table B, if that variety 

contains a Monsanto glyphosate 

tolerance trait, a Monsanto insect 

resistance trait, and any non-glyphosate 

herbicide tolerance trait commercialized 

in cottonseed in the United States as of 

the date of the filing of this Final 

Judgment. 

b. Defendants’ divestiture of the DPL 

varieties 00W12, 02T15, 02Z55, 03Y047, 

03Y056, 03Y062, 04T048, 04W019, 

04Y341, 05X460, 05Y063, 05Z629, 

25105N, and DP491 to the Acquirer of 

the Enhanced Stoneville Assets is 

subject to the license to Syngenta 

described in Schedule C.2. 

3. Syngenta Germplasm: Defendants 

shall divest all interests in the 

conventional Germplasm originating 

from the United States cotton Breeding 

program purchased by Defendant DPL 

from Syngenta pursuant to an agreement 

dated May 15, 2006, along with any 

conventional progeny of that material. 

4. Advanced Exotic Yield Lines: 

Defendants shall divest exclusive rights 

to commercialize, and non-exclusive 

rights to Breed with, the Advanced 

Exotic Yield Lines set forth in Schedule 

D, including the right, subject to 

reasonable indemnification 

requirements, to create Null Lines (other 

than a Null Line that contains only one 

of the B.t. Genes of Bollgard II). In 

connection with this divestiture: 

a. Defendants shall divest copies of all 

performance and other test results, 

phenotypic data, product descriptions, 

research data and Fingerprint 

information for those populations and 

Lines, excluding data regarding the 

presence or function of any genetic 

material from Gossypium barbadense 

present in the Lines. 

b. Defendants may not assert against 

the Acquirer of the Enhanced Stoneville 

Assets any rights Defendants may have 

or acquire with respect to (1) The 

Germplasm used in the Advanced 

Exotic Yield Lines, and (2) any nontransgenic yield trait contained in those 

Lines. 

c. Defendants may retain research 

quantities of the Advanced Exotic Yield 

Lines to enable them to continue their 

trait development research (provided 

that any such retention by Defendant 

Monsanto shall only be permitted to the 

extent it does not adversely affect the 

Acquirer of the Enhanced Stoneville 

Assets); and 

d. Defendants may (1) Prohibit the 

Acquirer of the Enhanced Stoneville 

Assets from conveying Lines from the 

Advanced Exotic Yield Lines or their 

progeny to third parties, other than for 

contract production work or for 

distribution to growers as commercial 

seed, and (2) require the Acquirer of the 

Enhanced Stoneville Assets to seek U.S. 

patents and enforce Breeding and resale 

restrictions on any varieties that are 

commercialized from the Advanced 

Exotic Yield Lines. Defendants shall 

lose the ability to require these terms 

(4.d.1 & 2) if Defendants have not 

licensed to a third party a nontransgenic cotton yield trait contained 

in one or more of the Advanced Exotic 

Yield Lines within five (5) years of the 

date of this Final Judgment. 

5. MAB Populations: Defendants shall 

divest the MAB Populations set forth in 

Schedule E, including copies of all 

performance and other test results, 


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phenotypic data, product descriptions, 

research data and Fingerprint 

information, and the right, subject to 

reasonable indemnification 

requirements, to create Null Lines (other 

than a Null Line that contains only one 

of the B.t. genes of Bollgard II). 

6. Cotton States Germplasm: 

Defendant Monsanto shall grant the 

Acquirer of the Enhanced Stoneville 

Assets a non-exclusive, royalty-free 

license to sell under the Stoneville and 

NexGen brand names and Breed with 

the four (4) Cotton States varieties 

currently being sold by Stoneville. 

Defendant Monsanto shall relinquish 

evaluation rights to the Acquirer of the 

Enhanced Stoneville Assets for material 

comprised of Germplasm from preexisting Breeding crosses between 

Cotton States’ in-licensed Lines and any 

Lines being transferred exclusively to 

Stoneville pursuant to this Final 

Judgment. 

a. In connection with its divestiture of 

this Cotton States Germplasm, 

Defendant Monsanto may retain 

exclusive rights to Germplasm already 

in-licensed to or commercialized 

through Cotton States at the date of this 

Final Judgment, or Germplasm from preexisting Breeding crosses between two 

Cotton States’ in-licensed Lines or 

between one of those Lines and a public 

variety, except that Defendant Monsanto 

may only retain non-exclusive rights to 

the Stoneville variety designated 

STX0502 which has been 

commercialized solely through Cotton 

States. Defendant Monsanto may only 

commercialize the Stoneville variety 

designated STX0502 to licensees other 

than Defendant DPL. 

7. Other Monsanto Germplasm: 

Defendants shall divest all cotton 

Germplasm in the United States held by 

Defendant Monsanto prior to its 

acquisition of Defendant DPL and not 

otherwise addressed in Schedules A and 

B, subject to the following exceptions: 

a. Any Publicly Available Cotton 

Germplasm, provided that if the 

Acquirer of the Enhanced Stoneville 

Assets does not otherwise possess the 

Germplasm and cannot otherwise 

reasonably obtain it, Defendant 

Monsanto must, if the Acquirer of the 

Enhanced Stoneville Assets requests, 

provide the Acquirer of the Enhanced 

Stoneville Assets with sufficient 

quantities for use in a Breeding 

program; 

b. Exclusive rights to (1) The Donor 

Lines for Defendant Monsanto’s 

commercialized transgenic traits, (2) 

Germplasm Transformed or Introgressed 

with cotton transgenic traits other than 

Monsanto’s Cotton Traits, (3) any 

Germplasm containing experimental 

transgenic events, and (4) Germplasm 

used in Monsanto’s non-transgenic trait 

research and development program, 

with the exception of the Advanced 

Exotic Yield Lines, as addressed above; 

and 

c. Rights to any third party 

Germplasm held in connection with the 

provision of trait Introgression services 

to third parties. 

8. Monsanto Marker Library: 

Defendants shall provide access to the 

information in, and a non-exclusive, 

royalty-free license to use, Monsanto’s 

Marker Library. 

9. Licenses: Defendants shall grant 

licenses to the Acquirer of the Enhanced 

Stoneville Assets to develop, produce, 

have produced, and sell under the 

Stoneville and NexGen brands 

cottonseed containing Monsanto’s 

Cotton Traits for use in the United 

States. Such licenses shall be based on 

commercially reasonable terms, and in 

particular shall provide that the 

licensee: 

a. Shall be entitled to a proportion of 

the net license revenue for those traits 

at least as great as the net license 

revenue Defendant DPL is entitled to 

under its current licenses for those 

traits; 

b. May, subject to reasonable 

regulatory and stewardship conditions, 

Breed into and sell cottonseed 

containing Monsanto Cotton Traits, nonMonsanto genes not naturally occurring 

in cotton; 

c. Shall have an option to license 

future Monsanto B.t. Genes on the same 

terms as those used in the current DPL 

licenses. Defendants may terminate this 

option at such time as the Acquirer of 

the Enhanced Stoneville Assets’ total 

annual sales of cottonseed containing a 

non-Monsanto B.t. Gene being marketed 

by the Acquirer of the Enhanced 

Stoneville Assets as conferring 

lepidopteran resistance under the 

Stoneville and NexGen brands, exceed 

60% of the Acquirer of the Enhanced 

Stoneville Assets’ annual sales of 

cottonseed that is marketed as 

lepidopteran resistant under the 

Stoneville and NexGen brands; and 

d. Shall have an option to license 

future Monsanto Roundup Ready Genes 

on the same terms as those used in the 

current DPL licenses. Defendants may 

terminate this option at such time as the 

Acquirer of the Enhanced Stoneville 

Assets’ total annual sales of cottonseed 

containing a non-Monsanto glyphosate 

tolerance gene being marketed by the 

Acquirer of the Enhanced Stoneville 

Assets as conferring glyphosate 

tolerance under the Stoneville and 

NexGen brands, exceed 60% of the 

Acquirer of the Enhanced Stoneville 

Assets’ annual sales of cottonseed that 

is marketed as glyphosate tolerant under 

the Stoneville and NexGen brands. 

Defendants need not grant an option to 

any non-glyphosate herbicide tolerance 

trait stacked with any such glyphosate 

tolerance gene. 

TABLE B.—DPL GERMPLASM

00W12 (DP393): 

02T15 

02Z55 

03Y047 

03Y056 

03Y062 

04T048 

04W019 

04Y341 

05X460 

05Y063 

05Z629 

Delta Pearl 

DP 5690 

DP 491 

DP2156 

DP565 

DP5305 

DP5415 

AZ2099 

Schedule C—The VipCot Assets 

1. All DPL Germplasm identified in 

Table C containing only a Syngenta 

trait; and, provided that Syngenta has 

obtained a license (identified in Section 

C.4. below) to the Roundup Ready Flex 

trait, all DPL Germplasm Lines 

identified in Table C containing a 

Syngenta trait and the Roundup Ready 

Flex trait. The Germplasm Lines 

identified in Table C shall be conveyed 

along with: 

a. Exclusive rights to commercialize 

varieties developed from the traited DPL 

Germplasm Lines identified in Table C, 

provided that any varieties 

commercialized from this Germplasm 

include, in addition to any other traits, 

the Cry67B event, Cry69D event, 

Cry02A event, or the Cot102 event; 

b. Exclusive rights to Breed with the 

traited DPL Germplasm Lines identified 

in Table C, provided that any varieties 

commercialized from such Breeding 

include, in addition to any other traits, 

either the Cry67B event, Cry69D event, 

Cry02A event, or the Cot102 event; 

c. Reports that provide all 

performance and other test results, 

phenotypic data, product descriptions, 

purity information, breeding histories, 

pedigrees and statuses for the 

Germplasm that is conveyed; 

d. At Syngenta’s request, Fingerprint 

information regarding the Recurrent 

Parents of each of the DPL Germplasm 

Lines listed in Table C sufficient to 

allow Syngenta to reasonably perform 

Backcrossing with this Germplasm 


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(subject to reasonable compensation 

from Syngenta for such services), if 

Syngenta does not possess, cannot 

reasonably develop itself or contract for, 

the capability to develop this 

Fingerprint information; and 

e. An exclusive license to 

commercialize varieties that contain the 

Cry67B event, Cry69D event, Cry02A 

event, or Cot102 event that are 

essentially derived from the Recurrent 

Parent Lines identified in Table C that 

are not otherwise being divested 

pursuant to Schedule B, which license 

shall require Monsanto to seek U.S. 

patents for those Recurrent Parent Lines 

and provide for enforcement of 

Syngenta’s exclusive rights with respect 

to those lines. 

2. Breeding quantities of the 

Recurrent Parents of each of the DPL 

Germplasm Lines identified in Table C, 

subject to a license to Syngenta (a) 

Permitting use of the Recurrent Parents 

only for crossing or Backcrossing 

between a Line and its relevant 

Recurrent Parent; (b) requiring that the 

Recurrent Parent Germplasm be 

returned or destroyed no later than 

December 31, 2014; and (c) prohibiting 

transfer of the Recurrent Parent 

Germplasm to any third party other than 

with an exclusive license to the relevant 

Line derived from that Recurrent Parent, 

with the same limitations on use of the 

Recurrent Parent Germplasm. 

3. A non-exclusive royalty-free license 

to a PCR assay and/or an ELISA assay 

to enable detection of Monsanto’s 

Roundup Ready Flex trait. 

4. A non-exclusive license to (a) 

Develop, produce, and sell cottonseed 

containing the Roundup Ready Flex 

trait under the standard commercial 

terms offered by Defendant Monsanto, 

including changes required by this 

Decree to the standard license, and (b) 

transfer such cottonseed to a third party 

with a commercial Roundup Ready Flex 

license. 

5. Defendant DPL’s interest in 

Germplasm populations Introgressed 

with the Cry67B event, Cry69D event, 

Cry02A event, and/or the Cot102 in the 

U.S. cotton Breeding program that 

Defendant DPL purchased from 

Syngenta pursuant to an agreement 

dated May 15, 2006, along with any 

progeny of that material. 

6. Defendant Monsanto may condition 

the divestitures on Syngenta’s 

acknowledgment that Defendant 

Monsanto is not conveying to Syngenta 

any rights not held by Defendant DPL 

prior to Defendant Monsanto’s 

acquisition of Defendant DPL. 

7. Defendants acknowledge that 

nothing in this Final Judgment relating 

to the divestiture of the VipCot Assets 

shall, in and of itself, modify, alter, 

terminate or otherwise affect any rights 

and obligations in any contract between 

Syngenta and either of the Defendants 

in effect as of the date of the filing of 

the Complaint in this matter. 


rwilkins on PROD1PC63 with NOTICES2
Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 33349 

TABLE

C

—

VIP

COT

GERMPLASM

[V1 = Cot102; C1 = Cry67B; C2 = Cry69D, C3 =Cry02A; RF = Roundup Ready Flex] 

Recurrent parent V1C1RF V1C1 C1 V1 C1RF V1RF C2 C3 C2V1RF C3V1RF C2V1 C3V1 

00H29 ...................................................... X ................ X ................ ................ ................ X X X X ................ ................00S07 ....................................................... ................ X X X X ................ X X ................ ................ ................ ................00W12 ...................................................... X X X X ................ X X X X X X ................01W34 ...................................................... ................ X ................ X ................ X ................ ................ ................ ................ ................ ................02T15 ....................................................... ................ X X X ................ ................ X X ................ ................ X X 02Z55 ....................................................... ................ X X X ................ X X X ................ ................ ................ ................02Z89 ....................................................... ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................03H070 .................................................... ................ X X X ................ ................ X X ................ ................ ................ ................03Q066 .................................................... ................ X X X ................ ................ X X ................ ................ ................ ................03Y047 ..................................................... ................ X X X ................ ................ X X ................ ................ ................ ................03Y056 ..................................................... ................ X X X X ................ X X ................ ................ ................ ................03Y062 ..................................................... ................ X X X ................ ................ X X ................ ................ ................ ................04P011 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................04P024 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................04Q035 .................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................04T042 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................04T048 ..................................................... ................ X X X ................ ................ X X ................ ................ ................ ................04T056 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................04T067 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................04V073 ..................................................... ................ X X X X ................ X X ................ ................ ................ ................04W019 .................................................... ................ X X X ................ ................ X X ................ ................ X ................04Y288 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ X ................04Y341 ..................................................... ................ X X X X ................ X X ................ ................ ................ ................04Z007 ..................................................... ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................04Z353 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................05H210 .................................................... ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................05H229 .................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................05H270 .................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................05H284 .................................................... ................ X X X ................ ................ X X ................ ................ ................ ................05Q153 .................................................... ................ X X ................ ................ ................ X X ................ ................ ................ ................05T103 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................05V341 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................05X460 ..................................................... ................ X X X ................ ................ X X ................ ................ ................ ................05Y063 ..................................................... ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................05Y067 ..................................................... ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................05Y070 ..................................................... ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................05Z629 ..................................................... ................ X X X ................ ................ X X ................ ................ ................ ................05Z855 ..................................................... ................ X ................ X ................ ................ ................ ................ ................ ................ ................ ................25105N .................................................... ................ X X ................ ................ ................ ................ ................ ................ ................ ................ ................DP491 ...................................................... X ................ X X X X X X X X X X DP6207 .................................................... ................ X X ................ ................ ................ X X ................ ................ ................ ................SG747 ...................................................... ................ X X X ................ ................ X X ................ ................ X X UA–4 ........................................................ ................ X ................ ................ ................ ................ ................ ................ ................ ................ ................ ................


rwilkins on PROD1PC63 with NOTICES2
33350 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 

SCHEDULE D.—ADVANCED EXOTIC YIELD LINES

[The Lines identified by the following serial numbers or variety name in Defendant Monsanto’s Breeding database] 

MCS0719B2RF 60066403610 60066410398 

MSC0720B2RF 60066403634 60066410475 

MCS0721B2RF 60066404080 60066410502 

MCS0722B2RF 60066404181 60066410552 

MCS0723B2RF 60066404294 60066410588 

MCS0724B2RF 60066404395 60066411326 

MCS0725B2RF 60066404434 60066411883 

MCS0726B2RF 60066404446 60066412001 

MCS0727B2RF 60066404559 60066412164 

MCS0728B2RF 60066404840 60066412380 

MCS0729RF 60066405082 60066414586 

MCS0730RF 60066404207 60066414649 

MCS0731RF 60066405676 60066406666 

MCS0732RF 60066405703 60066406767 

MCS0733RF 60066406399 60066407644 

MCS0734RF 60066406515 60066416821 

MCS0735RF 60066407442 60066409686 

MCS0736RF 60066415021 60066409701 

MCS0737RF 60066415122 60066410146 

MCS0738RF 60066415285 60067807314 

MCS0739RF 60066407846 60067807720 

MCS0740RF 60066416124 60067808924 

60066412443 60066408519 60067809433 

60066412455 60066408608 60067809774 

60066412532 60066408747 60067810082 

60066412683 60066409129 60067810208 

60066412859 60066409131 60067810347 

60066403254 60066409220 60067810501 

60066403367 60066409585 60067811325 

60066403418 60066410350 60067811642 

60067812303 100000002189566943270000 100000002189651484710000 

60067812620 100000002189570220070000 100000002189652140070000 

60067813494 100000002189570875430000 100000002189654761510000 

60067813646 100000002189573496870000 100000002189658038310000 

60067814903 100000002189575462950000 100000002189659349030000 

60067815638 100000002189576118310000 100000002189661315110000 

60067815791 100000002189580705830000 100000002189664591910000 

60067816147 100000002189581361190000 100000002189665247270000 

60067817050 100000002189586604070000 100000002189669834790000 

60067818115 100000002189587259430000 100000002189678354470000 

60067818571 100000002189591191590000 100000002189679009830000 

60067819193 100000002189593157670000 100000002189680975910000 

60067806259 100000002189597745190000 100000002189682286630000 

60067806297 100000002189598400550000 100000002189682286630000 

60067809534 100000002189600366630000 100000002189683597350000 

60067809661 100000002189601677350000 100000002189684908070000 

60067810676 100000002189604954150000 100000002189686874150000 

60067810878 100000002189608230950000 100000002189696704550000 

60067810979 100000002189614784550000 100000002189699325990000 

60067810993 100000002189615439910000 100000002189700636710000 

60067811185 100000002189616095270000 100000002189709811750000 

60067813228 100000002189618716710000 100000002189712433190000 

60067813444 100000002189620682790000 100000002189714399270000 

60067814268 100000002189621338150000 100000002189717020710000 

60067815296 100000002189623959590000 100000002189718986790000 

60067815981 100000002189624614950000 100000002189719642150000 

60067816058 100000002189629857830000 100000002189720297510000 

60067816692 100000002189631168550000 100000002189722263590000 

60067818711 100000002189637722150000 100000002189725540390000 

60067819371 100000002189638377510000 100000002189726195750000 

100000002189562355750000 100000002189642309670000 100000002189730783270000 

100000002189564321830000 100000002189649518630000 100000002189731438630000 

100000002189734715430000 100000002189819912230000 100000002189914939430000 

100000002189736681510000 100000002189825155110000 100000002189916905510000 

100000002189738647590000 100000002189829087270000 100000002189917560870000 

100000002189739958310000 100000002189834330150000 100000002189923459110000 

100000002189748477990000 100000002189836951590000 100000002189926080550000 

100000002189751099430000 100000002189837606950000 100000002189930012710000 

100000002189753720870000 100000002189839573030000 100000002189932634150000 

100000002189757653030000 100000002189843505190000 100000002189935910950000 

100000002189758963750000 100000002189844815910000 100000002189936566310000 

100000002189766172710000 100000002189847437350000 100000002189938532390000 


rwilkins on PROD1PC63 with NOTICES2
Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 33351 

SCHEDULE D.—ADVANCED EXOTIC YIELD LINES—Continued 

[The Lines identified by the following serial numbers or variety name in Defendant Monsanto’s Breeding database] 

100000002189769449510000 100000002189853335590000 100000002189943119910000 

100000002189772070950000 100000002189853990950000 100000002189945085990000 

100000002189773381670000 100000002189855957030000 100000002189947707430000 

100000002189776003110000 100000002189857267750000 100000002189949018150000 

100000002189778624550000 100000002189862510630000 100000002189952294950000 

100000002189781901350000 100000002189865132070000 100000002189954261030000 

100000002189784522790000 100000002189867098150000 100000002189958848550000 

100000002189787144230000 100000002189870374950000 100000002189960159270000 

100000002189790421030000 100000002189876273190000 100000002189962780710000 

100000002189792387110000 100000002189876928550000 100000002189970645030000 

100000002189794353190000 100000002189880860710000 100000002189976543270000 

100000002189798285350000 100000002189885448230000 100000002189979820070000 

100000002189798940710000 100000002189887414310000 100000002189983752230000 

100000002189800251430000 100000002189888725030000 100000002190001446950000 

100000002189801562150000 100000002189891346470000 100000002190005379110000 

100000002189803528230000 100000002189894623270000 100000002190009311270000 

100000002189805494310000 100000002189897244710000 100000002190015209510000 

100000002189806149670000 100000002189897900070000 100000002190019141670000 

100000002189808771110000 100000002189899210790000 100000002190020452390000 

100000002189812047910000 100000002189901176870000 100000002190021763110000 

100000002189815980070000 100000002189912973350000 100000002190027661350000 

100000002189816635430000 100000002189914284070000 100000002190029627430000 

100000002190036683630000 100000002190144970790000 100000002190264246310000 

100000002190038147110000 100000002190150213670000 100000002190268178470000 

100000002190038802470000 100000002190150869030000 100000002190268833830000 

100000002190040113190000 100000002190152835110000 100000002190270144550000 

100000002190048632870000 100000002190161354790000 100000002190275387430000 

100000002190054531110000 100000002190162010150000 100000002190276042790000 

100000002190055841830000 100000002190167908390000 100000002190277353510000 

100000002190059773990000 100000002190171840550000 100000002190279974950000 

100000002190061084710000 100000002190175117350000 100000002190281285670000 

100000002190065672230000 100000002190177738790000 100000002190286528550000 

100000002190066327590000 100000002190181670950000 100000002190293082150000 

100000002190075502630000 100000002190187569190000 100000002190298325030000 

100000002190076157990000 100000002190190190630000 100000002190298980390000 

100000002190082056230000 100000002190192156710000 100000002190302912550000 

100000002190086643750000 100000002190192812070000 100000002190304223270000 

100000002190089920550000 100000002190193467430000 100000002190308155430000 

100000002190091886630000 100000002190196088870000 100000002190312087590000 

100000002190097129510000 100000002190196744230000 100000002190316675110000 

100000002190099750950000 100000002190212472870000 100000002190319296550000 

100000002190101717030000 100000002190213128230000 100000002190320607270000 

100000002190104993830000 100000002190215749670000 100000002190325194790000 

100000002190110236710000 100000002190220337190000 100000002190327816230000 

100000002190110892070000 100000002190223613990000 100000002190328471590000 

100000002190113513510000 100000002190225580070000 100000002190330437670000 

100000002190115479590000 100000002190232789030000 100000002190331093030000 

100000002190118101030000 100000002190234099750000 100000002190336991270000 

100000002190123343910000 100000002190238687270000 100000002190338301990000 

100000002190123999270000 100000002190239979990000 100000002190339612710000 

100000002190127276070000 100000002190245896230000 100000002190340268070000 

100000002190127931430000 100000002190247206950000 100000002190345793190000 

100000002190133174310000 100000002190256381990000 100000002190366482470000 

100000002190137106470000 100000002190257692710000 100000002190367779310000 

100000002190371069990000 100000002190460198950000 100000002190547361830000 

100000002190377623590000 100000002190463475750000 100000002190548017190000 

100000002190378278950000 100000002190470029350000 100000002190553915430000 

100000002190380900390000 100000002190471340070000 100000002190557847590000 

100000002190384832550000 100000002190471995430000 100000002190561779750000 

100000002190385487910000 100000002190474616870000 100000002190563090470000 

100000002190387453990000 100000002190478549030000 100000002190565711910000 

100000002190388109350000 100000002190481825830000 100000002190567022630000 

100000002190393352230000 100000002190482481190000 100000002190570954790000 

100000002190394007590000 100000002190486413350000 100000002190571610150000 

100000002190396629030000 100000002190489690150000 100000002190576853030000 

100000002190398595110000 100000002190491656230000 100000002190582095910000 

100000002190399905830000 100000002190493622310000 100000002190582751270000 

100000002190401871910000 100000002190494933030000 100000002190583406630000 

100000002190403182630000 100000002190500175910000 100000002190584061990000 

100000002190406459430000 100000002190501486630000 100000002190584717350000 

100000002190407114790000 100000002190503452710000 100000002190592581670000 

100000002190409080870000 100000002190508040230000 100000002190593892390000 

100000002190411702310000 100000002190511317030000 100000002190597824550000 


rwilkins on PROD1PC63 with NOTICES2
33352 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 

SCHEDULE D.—ADVANCED EXOTIC YIELD LINES—Continued 

[The Lines identified by the following serial numbers or variety name in Defendant Monsanto’s Breeding database] 

100000002190414979110000 100000002190513283110000 100000002190598479910000 

100000002190415634470000 100000002190514593830000 100000002190602412070000 

100000002190422188070000 100000002190520492070000 100000002190603067430000 

100000002190431363110000 100000002190522458150000 100000002190603722790000 

100000002190432673830000 100000002190523768870000 100000002190612242470000 

100000002190433329190000 100000002190524424230000 100000002190620106790000 

100000002190433984550000 100000002190525079590000 100000002190620762150000 

100000002190435950630000 100000002190527045670000 100000002190622072870000 

100000002190439882790000 100000002190533599270000 100000002190623383590000 

100000002190449713190000 100000002190536220710000 100000002190627315750000 

100000002190451023910000 100000002190538186790000 100000002190627971110000 

100000002190454300710000 100000002190540152870000 100000002190629281830000 

100000002190455611430000 100000002190545395750000 100000002190631903270000 

100000002190633213990000 100000002190717755430000 100000002190801641510000 

100000002190637146150000 100000002190719721510000 100000002190802952230000 

100000002190638456870000 100000002190725619750000 100000002190804262950000 

100000002190643044390000 100000002190726275110000 100000002190805573670000 

100000002190646976550000 100000002190728241190000 100000002190812782630000 

100000002190649597990000 100000002190729551910000 100000002190818680870000 

100000002190650253350000 100000002190730862630000 100000002190821957670000 

100000002190653530150000 100000002190734139430000 100000002190823268390000 

100000002190654185510000 100000002190734794790000 100000002190823923750000 

100000002190654840870000 100000002190740037670000 100000002190824579110000 

100000002190655496230000 100000002190744625190000 100000002190825234470000 

100000002190656151590000 100000002190745935910000 100000002190826545190000 

100000002190656806950000 100000002190747901990000 100000002190829821990000 

100000002190658773030000 100000002190749868070000 100000002190833098790000 

100000002190659428390000 100000002190751178790000 100000002190837686310000 

100000002190664015910000 100000002190752489510000 100000002190840963110000 

100000002190665326630000 100000002190757077030000 100000002190841618470000 

100000002190670569510000 100000002190759043110000 100000002190847516710000 

100000002190675157030000 100000002190761009190000 100000002190848172070000 

100000002190676467750000 100000002190762319910000 100000002190849482790000 

100000002190677778470000 100000002190763630630000 100000002190854070310000 

100000002190678433830000 100000002190764285990000 100000002190854725670000 

100000002190679089190000 100000002190764941350000 100000002190856036390000 

100000002190681055270000 100000002190769528870000 100000002190856691750000 

100000002190682365990000 100000002190774116390000 100000002190858002470000 

100000002190688264230000 100000002190780669990000 100000002190859313190000 

100000002190689574950000 100000002190782636070000 100000002190859968550000 

100000002190696128550000 100000002190785257510000 100000002190861279270000 

100000002190700716070000 100000002190789189670000 100000002190861934630000 

100000002190703992870000 100000002190789845030000 100000002190865866790000 

100000002190706614310000 100000002190793777190000 100000002190866522150000 

100000002190712512550000 100000002190798364710000 100000002190867177510000 

100000002190871109670000 100000002190909775910000 100000002190954340390000 

100000002190871765030000 100000002190913052710000 100000002190959583270000 

100000002190873075750000 100000002190914363430000 100000002190963515430000 

100000002190873731110000 100000002190915674150000 100000002190966136870000 

100000002190876352550000 100000002190917640230000 100000002190966792230000 

100000002190877007910000 100000002190920917030000 100000002190973345830000 

100000002190878318630000 100000002190922883110000 100000002190975967270000 

100000002190878973990000 100000002190923538470000 100000002190978588710000 

100000002190880284710000 100000002190926815270000 100000002190981865510000 

100000002190884216870000 100000002190929436710000 100000002190982520870000 

100000002190884872230000 100000002190932713510000 100000002190985142310000 

100000002190887493670000 100000002190933368770000 ICA000000003347367788989 

100000002190888804390000 100000002190934679590000 ICA000000003347473105341 

100000002190903877670000 100000002190937301030000 ICA000000003347683279293 

100000002190905843750000 100000002190945165350000 ICA000000003348103168445 

100000002190909120550000 100000002190953029670000 P00000000000123710341565 

P00000000000123713880509 P00000000000123714666941 P00000000000123714994621 

P00000000000123717091773 P00000000000123717419453 P00000000000123717943741 

P00000000000123718795709 P00000000000123720630717 P00000000000123722662333 

P00000000000123724497341 P00000000000123726856637 P00000000000123727184317 

60044433150 60035225831 60035225879 

60035225881 60035225906 60035225920 

60043573686 


rwilkins on PROD1PC63 with NOTICES2
Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices 33353 

SCHEDULE E.—MAB POPULATIONS

[The Lines identified by the following code numbers in Defendant Monsanto’s Breeding database] 

L0001 L0025 L0049 L0235 L0271 L0310 L0334 L0357 L0380 L0404 

L0002 L0027 L0050 L0236 L0282 L0311 L0335 L0358 L0381 L0406 

L0003 L0028 L0051 L0237 L0283 L0312 L0336 L0359 L0382 L0407 

L0004 L0029 L0052 L0238 L0284 L0313 L0337 L0360 L0383 L0408 

L0005 L0030 L0053 L0239 L0290 L0314 L0338 L0361 L0384 L0409 

L0006 L0031 L0054 L0240 L0291 L0315 L0339 L0362 L0385 L0410 

L0007 L0032 L0055 L0241 L0292 L0317 L0340 L0363 L0386 L0411 

L0008 L0033 L0056 L0242 L0293 L0318 L0341 L0364 L0387 L1002 

L0009 L0034 L0057 L0243 L0294 L0319 L0342 L0365 L0388 L1003 

L0010 L0035 L0059 L0244 L0295 L0320 L0343 L0366 L0390 L1004 

L0012 L0036 L0100 L0245 L0296 L0321 L0344 L0367 L0391 L1005 

L0013 L0037 L0175 L0246 L0297 L0322 L0345 L0368 L0392 L1008 

L0014 L0038 L0224 L0247 L0298 L0323 L0346 L0369 L0393 L1009 

L0015 L0039 L0225 L0248 L0299 L0324 L0347 L0370 L0394 

L0016 L0040 L0226 L0249 L0301 L0325 L0348 L0371 L0395 

L0017 L0041 L0227 L0250 L0302 L0326 L0349 L0372 L0396 

L0018 L0042 L0228 L0251 L0303 L0327 L0350 L0373 L0397 

L0019 L0043 L0229 L0252 L0304 L0328 L0351 L0374 L0398 

L0020 L0044 L0230 L0253 L0305 L0329 L0352 L0375 L0399 

L0021 L0045 L0231 L0254 L0306 L0330 L0353 L0376 L0400 

L0022 L0046 L0232 L0255 L0307 L0331 L0354 L0377 L0401 

L0023 L0047 L0233 L0256 L0308 L0332 L0355 L0378 L0402 

L0024 L0048 L0234 L0257 L0309 L0333 L0356 L0379 L0403 

Schedule F—Donor Lines 

MON 531 in Coker 312 

MON 757 in any variety 

MON 1445 in Coker 312 

MON 1698 in any variety 

MON 15985 in DP50B or PS7 

MON 88913 in Coker 130, PS7 or 

Suregro 125 

MON 15985 x MON 88913 in PS7 or 

Suregro 125 

MON 1076 in any variety 

MON 15947 in any variety 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Monsanto Company and Delta and Pine 

Land Company, Defendants. 

Case: 1:07–cv–00992. 

Assigned To: Urbina, Ricardo M. 

Assign Date: 5/31/2007. 

Description: Antitrust. 

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 entered into an Agreement 

and Plan of Merger dated August 14, 

2006, pursuant to which Monsanto 

Company (‘‘Monsanto’’) will acquire 

Delta and Pine Land Company (‘‘DPL’’). 

The United States filed a civil antitrust 

Complaint on May 31, 2007, seeking to 

enjoin the proposed acquisition. The 

Complaint alleges that the likely effect 

of this acquisition would be to 

substantially lessen competition in the 

market for the development, production, 

and sale of traited cottonseed—

cottonseed genetically modified to 

contain desirable characteristics from 

non-cottonseed sources—in violation of 

Section 7 of the Clayton Act, 15 U.S.C. 

18. This loss of competition would 

likely result in higher prices and fewer 

choices for cotton farmers in the 

MidSouth (Mississippi, Arkansas, 

Louisiana, Missouri, and Tennessee) 

and Southeast (Alabama, Georgia, 

Florida, North Carolina, South Carolina, 

and Virginia). 

At the same time the Complaint was 

filed, the United States also filed a Hold 

Separate and Preservation of Assets 

Stipulation and Order (‘‘Hold Separate’’) 

and proposed Final Judgment, which 

are designed to eliminate the anti 

competitive effects of the acquisition. 

Under the proposed Final Judgment, 

which is explained more fully below, (1) 

Defendants must divest Stoneville 

Pedigreed Seed Company 

(‘‘Stoneville’’), certain cottonseed lines 

developed by DPL for the MidSouth and 

Southeast, and additional cotton 

breeding assets of Monsanto 

(collectively, the ‘‘Enhanced Stoneville 

Assets’’) to an acquirer or acquirers 

acceptable to the United States; (2) 

Defendants must divest to Syngenta 

Crop Protection AG (‘‘Syngenta’’) fortythree DPL cottonseed lines containing 

Vip Cot, Syngenta’s insect-resistant trait 

technology that DPL was developing for 

cottonseed (the ‘‘VipCot Assets’’); and 

(3) Defendant Monsanto must modify its 

cottonseed trait licenses with seed 

companies to permit licensees to breed 

and sell, without penalty, cottonseed 

containing non-Monsanto traits and 

cottonseed containing both licensed 

Monsanto traits and non-Monsanto 

traits, and modify its Cotton States 

licenses to remove any provision that 

allows Monsanto to terminate the 

license if the licensee sells cottonseed 

containing other traits. 

Until the divestiture of the Enhanced 

Stoneville Assets has been 

accomplished, the Hold Separate 

requires Defendants to take all steps 

necessary to ensure that DPL is operated 

as an independent, ongoing, 

economically viable competitive 

business held entirely separate, distinct 

and apart from Monsanto’s commercial 

operations. The proposed Final 

Judgment provides that if the Enhanced 

Stoneville Assets are not sold within the 

time period prescribed in the proposed 

Final Judgment to an acquirer or 

acquirers acceptable to the United 

States, Monsanto will divest DPL. 

The Hold Separate also requires 

Defendants to preserve the divestiture 

assets. Until the divestiture of the 

Enhanced Stoneville Assets, Defendants 

must take all steps necessary to ensure 

that Stoneville will be maintained and 

operated as an ongoing, economically 

viable and active competitor in the 

development, production, and sale of 

traited cottonseed. Until the divestiture 

of the VipCot Assets has been 

accomplished, Defendants must 

preserve the VipCot Assets and use all 

reasonable efforts to proceed with their 


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development, including maintaining all 

production processes for the assets, so 

as not to unduly delay the 

commercialization and sale of 

cottonseed containing VipCot in the 

United States. 

The settlement ensures the 

continuation of current competition in 

the MidSouth and Southeast between 

Stoneville and DPL. It also preserves 

Syngenta’s ability to bring cottonseed 

with VipCot to the market with minimal 

delay. And, it provides trait developers 

a seed company independent of 

Monsanto offering a platform of highquality germplasm for the development 

of non-Monsanto traited cottonseed for 

the MidSouth and Southeast, preserving 

the prospects for trait competition in 

cottonseed. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendants and the Proposed 

Transaction 

Defendant Monsanto is a Delaware 

corporation with its headquarters in St. 

Louis, Missouri. Monsanto is a leading 

global provider of agricultural products 

for farmers, including seeds for cotton, 

soybeans, and corn; in-the-seed trait 

technologies that protect crops against 

damage from insects and weeds; and 

crop protection chemicals such as the 

herbicide Roundup. Monsanto’s total 

revenues in 2006 exceeded $7.3 billion. 

The vast majority of cotton grown in the 

U.S. contains biotech traits, and over 

96% of the traited cottonseed sold 

domestically contains Monsanto traits. 

Monsanto’s two groups of cottonseed 

traits are marketed under the brand 

names (a) Roundup Ready, and its 

successor Roundup Ready Flex, both of 

which make cotton resistant to harm 

from glyphosate-based herbicides like 

Monsanto’s Roundup, and (b) Bollgard, 

and its successor Bollgard II, both of 

which make cotton plants toxic to 

lepidopteran insect pests such as the 

cotton bollworm. Monsanto licenses its 

traits to seed companies, including DPL. 

Monsanto’s cottonseed sales, 

primarily through its Stoneville 

subsidiary, account for approximately 

16% of the traited cottonseed sold in the 

United States in 2006, making Monsanto 

one of the largest sellers of traited 

cottonseed in the United States. In the 

MidSouth and Southeast, Monsanto 

accounted for 17% and 8%, 

respectively, of all traited cottonseed 

sales. 

Defendant DPL is a Delaware 

corporation with its headquarters in 

Scott, Mississippi. DPL is the largest 

supplier of traited cottonseed in the 

United States. In 2006, DPL accounted 

for approximately 56% of the traited 

cottonseed sold in the United States, 

with sales exceeding $417 million. In 

the MidSouth and Southeast, DPL 

accounted for 79% and 87%, 

respectively, of all traited cottonseed 

sales. DPL does not itself produce traits, 

but works with biotechnology 

companies to develop cottonseed traits 

and to breed the resulting traits into 

DPL germplasm (the genetic material 

containing the inherent qualities of 

cottonseed, such as yield and fiber 

quality). 

The combination of Monsanto and 

DPL would create the largest provider of 

traited cottonseed in the United States 

and give the combined firm about 95% 

of traited cottonseed sales in the 

MidSouth and Southeast. The proposed 

transaction would also eliminate DPL as 

a partner independent of Monsanto for 

competing trait developers, thereby 

substantially delaying or preventing the 

development and introduction of 

cottonseed containing non-Monsanto 

traits. Thus, the proposed transaction 

would lessen competition substantially 

in violation of Section 7 of the Clayton 

Act. 

B. The Cotton Industry 

Cotton is currently grown on over 

fifteen million acres in the United 

States, in seventeen states across the 

Southern United States from Virginia to 

California. The industry recognizes four 

distinct growing regions: the MidSouth, 

Southeast, Southwest (Texas, Kansas, 

and Oklahoma), and West (Arizona, 

New Mexico, and California). The 

cottonseed varieties grown vary by 

region because growing conditions, such 

as soil type and climate, affect seed 

performance. Farmers choose 

cottonseed varieties that perform best in 

their geographic area, placing the 

greatest emphasis on a variety’s yield 

(i.e., the expected amount of cotton 

produced per acre). 

Cottonseed companies continually 

work on developing improved 

cottonseed varieties through their 

breeding programs. Cotton breeding is a 

costly and time-consuming process in 

which the cottonseed company selects 

lines to breed together (or ‘‘cross’’), 

plants cottonseed generated by that 

initial cross, and then selects the best 

plants for further crossing to create a 

variety with the desired characteristics. 

In most cases, it takes eight to ten years 

from the initial cross until a new 

conventional cottonseed variety (i.e., 

seed containing no transgenic traits) is 

ready for market, while a traited version 

of that same conventional variety may 

take an additional two to three years. 

The success of a cottonseed 

company’s breeding program is 

dependent on many factors, the most 

important of which are the quantity and 

quality of available breeding materials, 

i.e., germplasm. A company with a large 

collection of high-quality, or elite, 

germplasm has a significant advantage 

because it is able to identify the best 

genetic material and use it in a wide 

variety of possible crossing 

combinations, resulting in a greater 

likelihood of developing a successful 

variety. 

1. The Development of Traited 

Cottonseed 

Monsanto and DPL partnered in the 

1980s to develop and produce traited 

cottonseed. DPL contributed its highquality germplasm and experienced 

cotton breeders; Monsanto, its insectresistant and herbicide-tolerant traits. In 

1996, DPL began to sell the first 

cottonseed with Monsanto’s insectresistant trait (Bollgard) and, the 

following year, introduced a variety 

with Monsanto’s herbicide-tolerant trait 

(Roundup Ready). 

Farmers quickly adopted Monsantotraited cottonseed because its use 

significantly lowered fanning costs and 

reduced the risk of crop loss. Farming 

with conventional seed involved laborintensive, costly herbicide and 

insecticide applications at specific times 

in the growing season. Farmers had to 

target herbicide applications only on 

weeds to avoid killing the cotton plants. 

By planting cottonseed containing an 

herbicide-tolerant trait, such as 

Roundup Ready, farmers can spray 

herbicide over the entire crop to kill 

weeds without killing the young cotton 

plants. Cottonseed containing an insectresistant trait, such as Bollgard, reduces 

insecticide purchases and spraying. 

Today, almost all of the cottonseed 

planted in the MidSouth and Southeast, 

where insects and weeds pose 

significant problems, contains traits that 

provide both insect resistance and 

herbicide tolerance. 

When farmers acquire traited 

cottonseed, they pay a price per bag to 

the seed distributor, who, in turn, pays 

the seed manufacturer (e.g., DPL) for the 

seed and a separate license fee to the 

developer of the trait (e.g., Monsanto). 


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This license fee, commonly referred to 

as the ‘‘technology fee,’’ is usually 

collected by the seed distributor for the 

trait developer. Typically, the trait 

developer shares a portion of the 

technology fee with the seed distributor 

and the seed manufacturer. The 

technology fee can constitute as much 

as 80% of farmers’ total costs for a bag 

of traited cottonseed. 

Only two non-Monsanto cotton traits 

are currently commercialized. 

WideStrike is an insect-resistant trait 

developed by Dow AgroSciences to 

compete with Monsanto’s Bollgard trait. 

WideStrike is only available in Dow’s 

Phytogen cottonseeds, which are 

primarily used in California where they 

perform well. LibertyLink, a trait 

developed by Bayer CropScience to 

make cotton tolerant to glufosinate 

herbicides, competes with Monsanto’s 

Roundup Ready glyphosate herbicidetolerant trait. LibertyLink is only 

available in Bayer’s FiberMax 

cottonseeds, which are primarily used 

in the Southwest where they perform 

well. Together, cottonseed containing 

WideStrike or LibertyLink accounted for 

less than 5% of total United States 

traited cottonseed sales in 2006. 

2. DPL’s Trait Development With 

Monsanto’s Competitors 

After a failed attempt to merge with 

Monsanto in the late 1990s, DPL 

commenced a strategy to replace (or 

‘‘trade-out’’) the Monsanto traits in DPL 

cottonseed with traits developed by 

Monsanto’s competitors. DPL has 

worked with several biotechnology 

companies, including Syngenta, 

DuPont, Bayer, and Dow, to develop 

cottonseed containing the traits 

developed by these companies that 

would compete with cottonseed 

containing Monsanto traits. 

The process to develop a cotton trait 

and breed and commercialize 

cottonseed varieties with that trait 

typically takes eight to twelve years and 

costs over $100 million. The process 

often requires thousands of attempts 

before developing a traited cottonseed 

that can be used to breed commercial 

varieties. In addition, extensive 

regulatory approvals, both in the United 

States and abroad, are required. 

Trait developers consider DPL an 

attractive partner for two reasons. First, 

DPL is in a strong position to introduce 

new trait technologies due to its 

extensive breeding programs, elite 

germplasm collection, technical service 

capabilities, know-how, brand 

recognition, and market position. 

Second, DPL’s trait licenses with 

Monsanto allow DPL to offer competing 

trait developers the ability to combine 

or ‘‘stack’’ their traits in DPL cottonseed 

with Monsanto traits. This stacking right 

would allow, for example, the developer 

of an insect-resistant trait to bring that 

trait to market in cottonseed that also 

contains Monsanto’s Roundup Ready (or 

Roundup Ready Flex) herbicide-tolerant 

trait. Most United States farmers choose 

cottonseed that contains both an insectresistant trait and an herbicide-tolerant 

trait. Monsanto’s trait licenses with 

cottonseed companies other than DPL 

severely restrict the ability of those 

companies to work with other trait 

developers, with some licenses 

prohibiting stacking of Monsanto’s traits 

with another company’s traits. 

DPL’s most advanced work with nonMonsanto trait developers is with 

Syngenta. DPL’s developmental work 

with Syngenta resulted in a 2004 

agreement to commercialize cottonseed 

with Syngenta’s VipCot insect-resistant 

traits. VipCot has been incorporated into 

some of DPL’s best germplasm, and DPL 

had expected, before Monsanto’s 

proposed acquisition was announced, to 

begin marketing such cottonseed as 

early as 2009. 

Monsanto’s Cottonseed Business 

Facing DPL’s strategy to replace 

Monsanto traits in DPL seed with traits 

developed by Monsanto’s competitors, 

Monsanto set about building its own 

cottonseed business to compete 

vigorously against DPL. Pursuant to this 

strategy, Monsanto began its Cotton 

States program in early 2002. Through 

Cotton States, Monsanto obtains 

licenses for cotton germplasm that small 

seed companies, private breeders and 

universities have developed; improves 

the germplasm through selective 

breeding; introduces Monsanto traits; 

and out-licenses the resulting traited 

cottonseed varieties to distributors and 

small cottonseed companies for sale 

under private labels. 

In 2005, Monsanto repurchased 

Stoneville, the second-largest traited 

cottonseed company in the MidSouth 

and Southeast. (Monsanto had 

previously purchased Stoneville in 

1996, and sold it in 1999 shortly before 

abandoning its attempt to acquire DPL.) 

Upon reacquiring Stoneville, Monsanto 

immediately invested capital to improve 

Stoneville’s competitive position. With 

the acquisition of Stoneville, Monsanto 

became the second largest seller of 

traited cottonseed in the important 

MidSouth and Southeast regions. 

Monsanto aggressively worked to 

strengthen its cottonseed business by, 

among other things, focusing on 

advanced breeding techniques and 

germplasm development and investing 

in breeding facilities. Monsanto 

predicted internally that these 

investments would enable Monsanto to 

increase its share of the cottonseed 

business in competition with DPL. 

C. Product and Geographic Markets 

The relevant antitrust product and 

geographic markets are the 

development, commercialization, and 

sale of traited cottonseed for the 

MidSouth and Southeast. Growing 

conditions for cotton differ across 

regions due to weather conditions, soil 

type, and varied demands for weed and 

insect control. Farmers demand 

cottonseed varieties that produce high 

yield for their particular growing 

conditions. Monsanto and DPL 

recognize this demand and market 

cottonseed varieties by region. 

In many regions of the country, 

particularly the MidSouth and 

Southeast, farmers demand that 

cottonseed have traits that provide 

insect resistance and herbicide 

tolerance. In the MidSouth and 

Southeast, approximately 90% of traited 

seed purchased by farmers contains 

both types of traits. Monsanto prices 

traits by region. 

Cotton is a particularly high-value 

crop in the MidSouth and Southeast, 

where over 50% of domestic cotton is 

grown. The cost of cottonseed amounts 

to only a fraction of the total cost of 

growing cotton. A small but significant 

increase in the price of traited 

cottonseed in the MidSouth and 

Southeast regions would not cause 

sufficient farmers to plant other crops, 

or switch sufficient cottonseed 

purchases to conventional (non-traited) 

cottonseed or cottonseed varieties not 

well suited for their regions to make the 

price increase unprofitable. 

D. The Competitive Effects of the 

Transaction on the Market for the 

Development, Production, and Sale of 

Traited Cottonseed in the MidSouth and 

Southeast 

Monsanto’s acquisition of DPL would 

substantially lessen competition for the 

development, commercialization, and 

sale of traited cottonseed in the 

MidSouth and Southeast. First, the 

combination would increase the merged 

firm’s ability and incentive to raise 

prices and reduce choices for traited 

cottonseed in the MidSouth and 

Southeast. In the MidSouth, DPL and 

Stoneville account for approximately 

79% and 16%, respectively, of traited 

cottonseed sales. In the Southeast, DPL 

and Stoneville account for 

approximately 87% and 8%, 

respectively, of traited cottonseed sales. 

After the proposed acquisition, the 

combined Monsanto and DPL would 


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1The MidSouth and Southeast traited cottonseed 

markets are highly concentrated. As measured by 

the Herfindahl-Hirschman Index (‘‘HHI’’), which is 

commonly used in merger analysis and explained 

in Appendix A of the Complaint, Monsanto’s 

acquisition of DPL would increase the HHI by 3310 

in the MidSouth, resulting in a postmerger HHI of 

9110. In the Southeast, the proposed acquisition 

would increase the HHI by 1489, resulting in a 

postmerger HHI of 9184. 

have a market share of approximately 

95% for traited cottonseed sales in both 

the MidSouth and Southeast.1

Second, the merger would eliminate 

DPL as a partner independent of 

Monsanto for developers of cotton traits 

that would compete against Monsanto’s 

traits. Syngenta’s current efforts to 

develop and commercialize with DPL 

cottonseed with Syngenta’s VipCot 

insect-resistant technology to compete 

with Monsanto’s Bollgard traits would 

be substantially delayed or prevented, 

preserving Monsanto’s current 

dominance. And, the merger would 

likely delay, if not deter, efforts to 

develop other traits that would provide 

benefits to United States cotton farmers, 

including herbicide-tolerant traits that 

would compete with Monsanto’s 

Roundup Ready traits. As a result, 

farmers likely would have fewer choices 

of, and face higher prices for, traited 

cottonseed. 

E. Entry 

Entry into the traited cottonseed 

business would be difficult, time 

consuming, and expensive. It requires 

the assets and expertise both to breed 

high-performing varieties of cottonseed 

and to develop or obtain traits providing 

insect resistance and herbicide 

tolerance. For a company that has 

developed a trait, de novo entry to 

develop, breed, and commercialize 

cottonseed varieties with the trait takes 

approximately twelve years, costs 

millions of dollars, requires a sufficient 

supply of high-quality germplasm, and 

is uncertain. Therefore, entry into the 

traited cottonseed business would not 

be timely, likely, or sufficient in its 

magnitude, character, and scope to deter 

or counteract an anticompetitive 

increase in the price of traited 

cottonseed by a combined Monsanto 

and DPL. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment 

remedies the anticompetitive effects of 

the acquisition alleged in the 

Complaint—the elimination of 

competition between DPL and 

Monsanto for the development, 

breeding, and sale of traited cottonseed 

and the elimination of DPL as a partner 

independent of Monsanto for developers 

of traits that would compete against 

Monsanto—by requiring Defendants to 

divest the Enhanced Stoneville Assets to 

an approved acquirer, to divest to 

Syngenta over forty DPL cottonseed 

breeding lines containing VipCot, and to 

make certain licensing term 

modifications to Monsanto’s Cotton 

States and seed company licenses. 

Taken together, these provisions will 

preserve existing competition in the 

market for traited cottonseed in the 

MidSouth and Southeast, will allow 

Syngenta to market cottonseed with 

VipCot with no more than minimal 

delay, and will ensure the continued 

presence of a cottonseed company 

independent of Monsanto with 

sufficient germplasm and breeding 

capabilities to serve as an effective 

platform for development of cottonseed 

traits in competition with Monsanto. 

The proposed Final Judgment and its 

accompanying schedules set forth the 

specific assets to be divested (including 

certain limitations to the assets being 

divested), the modifications that 

Defendant Monsanto must make to its 

third-party licenses, and the other 

obligations of Defendants. The following 

describes these remedy provisions: 

A. The Enhanced Stoneville Assets 

The Enhanced Stoneville Assets 

consist of Monsanto’s Stoneville 

business, promising Monsanto 

cottonseed germplasm, and twenty lines 

of elite DPL germplasm, including a 

dozen of DPL’s most promising 

developmental lines for the MidSouth 

and Southeast as well as Delta Pearl, the 

parent of DPL’s highly-popular DPL555 

variety. The proposed Final Judgment 

requires Defendants to divest the 

Enhanced Stoneville Assets to an 

acquirer acceptable to the United States 

in its sole discretion. The acquirer must 

have a credible commitment to the 

traited cottonseed market and have the 

intent and capability of competing 

effectively in the market. The 

Defendants must divest the assets in 

such a way as to satisfy the United 

States, in its sole discretion, that the 

assets can and will be used by the 

acquirer as part of a viable, ongoing 

business engaged in the development, 

production, and sale of traited 

cottonseed. These provisions are 

designed to ensure that the Enhanced 

Stoneville Assets will be used to 

preserve competition that would 

otherwise be lost as a result of the 

acquisition. 

This divestiture will provide the 

acquirer of the Enhanced Stoneville 

Assets the tools it needs—including 

valuable germplasm from Stoneville, 

Monsanto and DPL—to be a viable and 

active competitor in the MidSouth and 

Southeast, restoring the traited 

cottonseed competition that would 

otherwise be lost as a result of the 

acquisition. The Enhanced Stoneville 

Assets will provide the acquirer a 

significant base of current and 

developmental varieties that would be 

attractive to trait developers looking to 

introduce traits into cottonseed, 

particularly cottonseed well suited to 

the MidSouth and Southeast. The 

remedy in the proposed Final Judgment 

will give the acquirer capabilities that 

exceed those of Stoneville and a 

foundation on which to replicate the 

platform for trait development and 

commercialization that DPL previously 

provided. 

The Enhanced Stoneville Assets 

include: 

1. Stoneville 

Defendants will divest Monsanto’s 

U.S. Stoneville business, including all 

U.S. Stoneville cotton germplasm. This 

divestiture will give the acquirer the 

benefit of Stoneville’s existing presence 

in the MidSouth and its germplasm 

development pipeline, which includes 

approximately 35 mid-to-full- and fullseason lines for potential 

commercialization in the MidSouth and 

Southeast between 2008 and 2012. The 

divestiture will also include Stoneville’s 

breeding facilities, tangible assets, brand 

names, breeder records and other 

intangible assets. 

The proposed Final Judgment also 

requires Monsanto to grant the acquirer 

licenses to Monsanto’s current Roundup 

Ready and Bollgard traits on terms at 

least as favorable as DPL’s current terms 

with respect to stacking rights, revenue 

sharing, and options for licensing future 

traits. This licensing requirement will 

provide the acquirer of Stoneville the 

same ability as DPL to offer other trait 

developers a platform upon which to 

stack non-Monsanto traits with 

Monsanto traits. 

2. Additional Monsanto Cotton 

Germplasm 

Divesting Stoneville by itself would 

not fully restore the lost competition 

between Monsanto and DPL as it would 

fail to capture the breadth of Monsanto’s 

cotton breeding program that supported 

Monsanto’s projected share growth. In 

addition to Monsanto’s improvements to 

Stoneville (which included adding a 

breeding station and personnel), 

Monsanto worked on advanced breeding 

techniques and germplasm development 

to strengthen its future competitive 

position. The proposed Final Judgment 

requires Monsanto to divest the 

germplasm and technology related to 


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2Although the Advanced Exotic Yield Lines and 

MAB Populations provide the acquirer with 

promising germplasm for expanding Stoneville’s 

market share, they provide a limited platform for 

introducing non-Monsanto traits because many of 

these lines are already introgressed with Monsanto 

traits. The proposed Final Judgment addresses this 

limitation by requiring Defendants to allow the 

acquirer to breed out Monsanto traits from these 

lines (creating ‘‘Null Lines’’). Further, Defendants 

are also required to provide any information 

necessary for the acquirer to obtain regulatory 

approval for varieties developed from Null Lines. 

3The proposed Final Judgment, however, does 

not require Monsanto to divest its Cotton States 

program. Insisting upon divestiture of the program 

would have required obtaining consent from all of 

the Cotton States Licensors and could have resulted 

in disruption to the licensors’ financially beneficial 

current contractual and business relationships with 

Monsanto. Rather, this divestiture provides 

Stoneville the ability to continue working with the 

germplasm that it had been developing prior to the 

acquisition. 

4 In 2006, DPL purchased rights to germplasm 

owned by Syngenta. Under the proposed Final 

Judgment, Defendants will divest these 

conventional lines to the acquirer in addition to the 

twenty lines discussed above. 

5The proposed Final Judgment limits the acquirer 

in one respect with regard to non-Monsanto traits. 

For seven years, Monsanto may prevent it from 

‘‘triple-stacking’’ in the twenty varieties a Monsanto 

glyphosate-tolerant trait, a Monsanto insectresistant trait, and any non-glyphosate herbicidetolerant trait available at the time the Complaint 

was filed. Nothing in the decree, however, prohibits 

Monsanto or the acquirer from commercializing 

such a triple-stacked cottonseed if licenses could be 

obtained from all affected rights-holders. 

these programs, as described below. As 

some of this work was undertaken in 

connection with Monsanto’s trait 

development efforts, the proposed Final 

Judgment allows Monsanto to retain 

assets (and research rights to 

germplasm) that directly relate to trait 

development. 

Advanced Exotic Yield Lines: 

Defendants will divest the exclusive 

right to commercialize varieties from the 

Advanced Exotic Yield Lines set forth in 

Schedule D of the proposed Final 

Judgment. Monsanto developed this 

germplasm as part of its ongoing nontransgenic yield trait discovery project, 

which seeks to discover traits in exotic 

cotton plants that could be bred into 

commercial varieties to increase yield. 

This project has resulted in the creation 

of promising developmental germplasm 

lines. Monsanto anticipated that 

varieties developed from these lines 

would be well suited for the MidSouth 

and Southeast and could be introduced 

as early as 2009. The acquirer will be 

able to commercialize such varieties and 

use the lines for additional breeding. As 

these lines were part of Monsanto’s 

ongoing trait research project, Monsanto 

will be allowed to obtain a license back 

from the acquirer to continue to use 

these lines for that research effort. 

Marker Assisted Breeding (‘‘MAB’’) 

Populations: Defendants will divest all 

of the germplasm from Monsanto’s MAB 

program, as listed in Schedule E of the 

proposed Final Judgment. This program 

was intended to enable breeders to use 

sophisticated molecular technology to 

aid in the selection of promising lines 

to advance to the next breeding stage. 

Monsanto anticipated that Stoneville 

varieties developed through the MAB 

program would reach the market by 

2011, and that MAB would be the 

primary development source for the 

varieties that Stoneville would 

commercialize throughout the next 

decade.2

Cotton States Germplasm: Defendants 

will divest to the acquirer a nonexclusive, royalty-free license to sell 

and breed with varieties from 

Monsanto’s recently established Cotton 

States program that Stoneville currently 

sells today. In addition, as Monsanto 

typically uses germplasm in the Cotton 

States program that is owned by other 

entities (the ‘‘Cotton States Licensors’’), 

Monsanto will relinquish to the acquirer 

the rights it possesses to work with the 

Cotton States Licensors to 

commercialize varieties that result from 

pre-existing crosses of Stoneville 

germplasm and Cotton States Licensors 

germplasm.3

Other Germplasm: Defendants will 

divest all other germplasm in Defendant 

Monsanto’s possession, except that 

Monsanto may retain, with certain 

limitations, certain categories of 

germplasm used predominantly in its 

trait development and licensing 

business. 

3. DPL Germplasm 

DPL’s success is due in significant 

part to its large collection of highquality cotton germplasm from which it 

breeds high-yielding varieties. To 

ensure that the acquirer will have the 

scale and scope necessary in the 

Southeast and MidSouth to be an 

effective and competitive platform for 

trait development, Defendants will 

divest twenty DPL conventional 

varieties.4

Eight of the twenty varieties are in the 

pedigrees of many of DPL’s popular 

current varieties in the MidSouth and 

Southeast. In particular, four of these 

varieties (AZ2099, DP491, Delta Pearl, 

and DP565) are the recurrent 

conventional parents for DPL 

commercial traited varieties that today 

account for approximately 55% of the 

cottonseed sold in the Southeast (where 

Stoneville presently holds only an 8% 

share of sales). Delta Pearl is the parent 

of the high-yielding DPL555, which is 

by far the dominant cottonseed variety 

in the Southeast. 

The twelve other divested DPL 

varieties constitute a significant portion 

of DPL’s breeding pipeline for the 

MidSouth and Southeast and represent 

the varieties, and breeding stock for the 

varieties, that DPL had chosen to bring 

to market over the next decade. These 

twelve varieties were bred at the DPL 

breeding stations that focus on 

developing germplasm well suited for 

the MidSouth and Southeast. Over the 

past four years, each of these twelve 

varieties has been ranked by DPL during 

the regular course of business as falling 

within DPL’s top category for 

conventional lines based on the 

variety’s performance characteristics, 

such as yield, fiber quality, and disease 

resistance. The superiority of these 

twelve lines is underscored by the fact 

that DPL selected them for introgression 

with the traits that DPL was developing 

with Syngenta, as well as for 

introgression with Monsanto’s latest 

insect-resistant and herbicide-tolerant 

traits. 

The proposed Final Judgment permits 

Defendants to retain a license to 

continue using these twenty lines to 

breed new varieties and to sell 

exclusively varieties that contain only 

Monsanto’s traits. This exception to 

total divestiture (i.e., permitting 

Defendants to continue selling varieties 

currently in the market and continue 

breeding with the divested varieties) is 

necessary to preserve DPL’s current 

competitiveness, prevent disruption to 

its breeding program, and provide DPL 

the ability to compete effectively in the 

future. The acquirer of the Enhanced 

Stoneville Assets will have use of these 

varieties for its breeding program and 

will have rights to commercialize 

varieties (including in the MidSouth 

and Southeast) that contain traits being 

developed by other trait providers, 

either alone or in combination with 

Monsanto’s traits.5 With these rights, 

the acquirer will be in a position to 

provide trait developers with a 

competitive alternative to DPL going 

forward. 

The proposed Final Judgment allows 

Defendants to continue, for a limited 

period of time, to sell conventional 

versions of some of the divested DPL 

varieties currently being sold by DPL in 

and outside of the United States, 

providing for a continuity of supply of 

conventional cottonseed. 

4. Defendant Monsanto Must Divest DPL 

if Enhanced Stoneville Assets Are Not 

Divested in a Timely Manner 

In merger cases where the United 

States seeks a divestiture remedy, it 

requires completion of the divestitures 


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6One of the forty-three lines is a line that DPL 

purchased from Syngenta in 2006 into which DPL 

introduced VipCot. 

within the shortest time period 

reasonable under the circumstances. In 

this case, the proposed Final Judgment 

provides that Defendants must complete 

the divestiture within ninety (90) 

calendar days after the filing of the 

Complaint. Defendants must use their 

best efforts to divest the Enhanced 

Stoneville Assets as expeditiously as 

possible. The United States, in its sole 

discretion, may grant one or more 

extensions of time, not to exceed sixty 

(60) calendar days in total. 

In the event that Defendants do not 

accomplish the divestiture of the 

Enhanced Stoneville Assets within the 

time period permitted in the proposed 

Final Judgment, the proposed Final 

Judgment provides that Defendant 

Monsanto shall divest DPL within sixty 

(60) days. Requiring divestiture of the 

acquired company would be necessary 

to ensure the full restoration of 

competition as quickly as possible 

should Defendants not be able to divest 

the Enhanced Stoneville Assets in an 

acceptable manner. 

If the Defendant Monsanto has not 

divested DPL within the time period 

permitted by the proposed Final 

Judgment, then a trustee shall be 

appointed by the Court upon 

application of the United States. The 

proposed Final Judgment provides that 

Monsanto will pay all costs and 

expenses of the trustee. The trustee’s 

commission will be structured so as to 

provide an incentive for the trustee 

based on the price obtained and the 

speed with which the divestiture is 

accomplished. After the trustee’s 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and the United States setting 

forth the trustee’s efforts to accomplish 

the divestiture of DPL. At the end of 

ninety (90) calendar 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. 

B. The Syngenta/VipCot Divestiture 

The proposed Final Judgment requires 

Defendants to divest to Syngenta the 

VipCot Assets listed in Schedule C of 

the proposed Final Judgment. This 

divestiture seeks to minimize any delay 

the acquisition could cause in the 

commercialization of cottonseed 

containing VipCot, Syngenta’s insectresistant trait technology that would 

compete against Monsanto’s Bollgard 

family of traits. The VipCot assets 

include forty-three lines of DPL 

germplasm into which DPL has 

incorporated VipCot, along with 

performance data and other 

information.6 These lines are based on 

the most promising germplasm that DPL 

has in its development pipeline for 

geographies across the Cotton Belt, 

including the MidSouth and Southeast. 

They are at various stages of 

development, with DPL anticipating 

commercializing varieties from five of 

these lines as early as 2009, three in 

2010 or 2011, and the remainder in 2011 

and beyond. 

The lines will be transferred to 

Syngenta along with certain rights to 

allow Syngenta, by itself or working 

with others, to bring these varieties to 

market. Syngenta will have exclusive 

rights to commercialize varieties 

developed from these lines so long as 

the variety has at least one of the 

Syngenta trait events listed in Schedule 

C of the proposed Final Judgment, 

which includes the events that form 

VipCot. Syngenta will also have 

exclusive rights to breed with the 

Syngenta-traited versions of these lines. 

To facilitate breeding, Monsanto will 

provide Syngenta the ‘‘recurrent parent’’

conventional germplasm for each of the 

divested lines until December 21, 2014, 

which will allow Syngenta to complete 

development of these lines and add 

other traits. 

The proposed Final Judgment also 

requires Monsanto to offer Syngenta a 

license to Roundup Ready Flex so that 

Syngenta can commercialize these 

VipCot lines stacked with Roundup 

Ready Flex. Such a license will permit 

Syngenta to advance these lines by 

introgressing Roundup Ready Flex into 

them. It will also permit Syngenta to 

sell, either independently or in 

conjunction with an established 

cottonseed company with a Roundup 

Ready Flex license, varieties stacked 

with VipCot and Flex. 

The VipCot divestiture to Syngenta 

will therefore allow Syngenta to 

commercialize VipCot on the same 

schedule as DPL’s anticipated 

commercialization and with the same 

range of options regarding stacking 

herbicide tolerance or other traits. 

Defendants must use their best efforts to 

divest the VipCot Assets as 

expeditiously as possible and shall not 

take any action that would harm the 

VipCot Assets or in any way impede 

their divestiture. 

Changes in Third Party Licenses 

The proposed Final Judgment requires 

Monsanto to modify its third-party 

cottonseed trait and Cotton States Lines 

licenses no later than ten (10) days after 

the date of sale of the Enhanced 

Stoneville Assets, subject to the 

approval of the United States in its sole 

discretion. Monsanto will modify its 

third-party cottonseed trait licenses to 

remove restrictions on the ability of 

licensees to develop, market, or sell 

cottonseed containing traits of 

companies other than Monsanto, or to 

combine the licensed Monsanto traits in 

cottonseed with the traits of other 

companies. Monsanto will also modify 

the Cotton States Lines licenses to 

eliminate any provision that allows 

Monsanto to terminate the license if the 

licensee sells cottonseed containing 

other traits. 

These changes will give these 

competing cottonseed companies the 

ability to partner with trait developers 

other than Monsanto without any 

financial penalty and to offer traits 

desired by farmers. Trait developers will 

thereby have access to close to half of 

the current U.S. cottonseed market, 

without having to deal with the 

combined Monsanto/DPL. These 

changes will ensure that Monsanto 

cannot prevent trait developers from 

bringing competing, non-Monsanto 

traits to the market. 

D. Notice Provisions 

The proposed Final Judgment 

provides that Defendant Monsanto shall 

provide notice to the United States prior 

to acquiring any company that develops 

and sells cottonseed in the United States 

or has developed, or has under 

development, traits for 

commercialization in cottonseed in the 

United States, unless the transaction is 

otherwise subject to Hart-Scott-Rodino 

reporting requirements. This provision 

will allow the United States to assess 

whether any such transaction would be 

likely to substantially lessen 

competition. 

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 


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7Compare 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). The 2004 amendments 

do not affect the substantial precedent in this and 

other circuits analyzing the scope and standard of 

review for APPA proceedings. See SBC Commc’ns, 

2007 WL 1020746, at *9 (‘‘[A] close reading of the 

law demonstrates that the 2004 amendments 

effected minimal changes. * * * ’’). 

8The Microsoft court explained that a court 

making a public interest determination under the 

APPA should consider, among other things, the 

relationship between the remedy secured and the 

specific allegations set forth in the government’s 

complaint, whether the decree is sufficiently clear, 

whether enforcement mechanisms are sufficient, 

and whether the decree may positively harm third 

parties. Microsoft, 56 F.3d at 1458–62. 

9Cf 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’’), aff’d sub nom. Maryland v. 

United States, 460 U.S. 1001 (1983). 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’ ’’). 

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 

Register. 

Written comments should be 

submitted to: Donna N. Kooperstein, 

Chief, Transportation, Energy & 

Agriculture Section, Antitrust Division, 

United States Department of Justice, 325 

Seventh Street, NW., Suite 500, 

Washington, DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against Defendants. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against Monsanto’s 

acquisition of DPL. The United States is 

satisfied, however, that the divestiture 

of assets and other relief described in 

the proposed Final Judgment will 

preserve competition in the market for 

the development, production, and sale 

of traited cottonseed. 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 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, in accordance 

with amendments to the APPA in 2004, 

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); see generally 

United States v. SBC Commc’ns, Inc., 

Nos. 05–2102 and 05–2103,2007 WL 

1020746, at *9–16 (D.D.C. Mar. 29, 

2007) (assessing public interest standard 

under APPA and effect of 2004 

amendments).7 Courts in this circuit 

have held—both before and after the 

2004 amendments—that the United 

States is entitled to deference in crafting 

its antitrust settlements, especially with 

respect to the scope of its complaint and 

the adequacy of its remedy, which are 

the ‘‘two most significant legal 

questions’’ relating to a public interest 

determination. United States v. 

Microsoft Corp., 56 F.3d 1448, 1458–62 

(D.C. Cir. 1995); SBC Commc’ns, 2007 

WL 1020746, at *12–*16.8

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).9 In making 

its public interest determination, a 

district court must accord due respect to 

the United States’ prediction as to the 

effect of proposed remedies, its 

perception of the market structure, and 

its views of the nature of the case. SBC 

Commc’ns, 2007 WL 1020746, at *16 

(United States entitled to ‘‘deference’’ as 

to ‘‘predictions about the efficacy of its 

remedies’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 

6 (D.D.C. 2003). 

Court approval of a final judgment 

requires a standard more flexible and 

less strict than the standard required for 

a finding of liability. ‘‘[A] proposed 

decree must be approved even if it falls 

short of the remedy the court would 

impose on its own, as long as it falls 


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10United States v. Mid-Am. Dairymen, Inc., 

1977–1 Trade Cas. (CCH) ¶ 61,508, at 71,980 (W.D. 

Mo. 1977) (‘‘[T]he 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.’’). 

within the range of acceptability or is 

‘within the reaches of public interest.’ ’’

United States v. AT&T Co., 552 F. Supp. 

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

omitted) (quoting Gillette, 406 F. Supp. 

at 716); 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). To 

meet this standard, 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, 2007 

WL 1020746, at *16. 

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 

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.’’ SBC 

Commc’ns, 2007 WL 1020746, at *14. 

In its 2004 amendments to the 

Tunney Act, 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, 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, 2007 WL 1020746, at 

*9.10

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: May 31, 2007. 

Respectfully submitted, 

For Plaintiff 

Jill A. Ptacek (WA Bar #18756), 

Trial Attorney, U.S. Department of Justice, 

Antitrust Division, Transportation, Energy & 

Agriculture Section, 325 7th Street, NW., 

Suite 500, Washington, DC 20004, 

Telephone: (202) 307–6607, Facsimile: (202) 

307–2784. 

[FR Doc. 07–2897 Filed 6–14–07; 8:45 am] 

BILLING CODE 4410–11–M 


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