32314 Federal Register / Vol. 72, No. 112 / Tuesday, June 12, 2007 / Notices 

estimated for an average respondent to 

respond: It is estimated that 13,106 

respondents will take 2 hours to 

complete the records. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: There are an estimated 

26,212 annual total burden hours 

associated with this collection. 

If additional information is required 

contact: Lynn Bryant, Department 

Clearance Officer, Policy and Planning 

Staff, Justice Management Division, 

Department of Justice, Patrick Henry 

Building, Suite 1600, 601 D Street NW., 

Washington, DC 20530. 

Dated: June 7, 2007. 

Lynn Bryant, 

Department Clearance Officer, PRA, 

Department of Justice. 

[FR Doc. E7–11308 Filed 6–11–07; 8:45 am] 

BILLING CODE 4410–FY–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Cemex, S.A.B. de C.V., 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Hold Separate 

Stipulation and Order, and Competitive 

Impact Statement have been filed with 

the United States District Court for the 

District of Columbia in United States v. 

Cemex, S.A.B. de C.V., Civil Action No. 

1:07–cv–00640. On April 4, 2007, the 

United States filed a Complaint to 

enjoin Cemex, S.A.B. de C.V. from 

acquiring Rinker Group Limited. On 

May 2, 2007, the United States filed an 

Amended Complaint naming Rinker as 

a defendant in the suit. The Amended 

Complaint alleges that Cemex’s 

acquisition of Rinker would 

substantially lessen competition in the 

production and distribution of ready 

mix concrete in certain metropolitan 

areas of Florida and Arizona, of concrete 

block in certain metropolitan areas of 

Florida, and of aggregate in the 

metropolitan area of Tucson, Arizona, in 

violation of Section 7 of the Clayton 

Act, as amended, 15 U.S.C. 18. The 

proposed Final Judgment requires 

Cemex, once it obtains control of 

Rinker, to divest (1) Ready mix concrete 

plants in the metropolitan areas of Fort 

Walton Beach/Panama City/Pensacola, 

Jacksonville, Orlando, Tampa/St. 

Petersburg, and Fort Myers/Naples, 

Florida and the metropolitan areas 

Flagstaff and Tucson, Arizona; (2) 

concrete block plants in metropolitan 

Tampa/St. Petersburg and Fort Myers/ 

Naples, Florida; and (3) aggregate plants 

in metropolitan Tucson, Arizona. 

Copies of the Amended Complaint, 

proposed Final Judgment, and 

Competitive Impact Statement are 

available for inspection at the 

Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

325 7th Street, NW., Room 215, 

Washington, DC 20530 (telephone: 202–

514–2481), on the Department of 

Justice’s Web site at http:// 

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

the Clerk of the United States District 

Court for the District of Columbia, 

Washington, DC. Copies of these 

materials may be obtained from the 

Antitrust Division upon request and 

payment of a copying fee set by 

Department of Justice regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to Maribeth Petrizzi, 

Chief, Litigation II Section, Antitrust 

Division, U.S. Department of Justice, 

1401 H Street, NW., Suite 3000, 

Washington, DC 20530 (telephone: 202–

307–0924). 

Patricia A. Brink, 

Deputy Director of Operations. 

United States District Court for the 

District of Columbia 

United States of America, Department of 

Justice, Antitrust Division, 1401 H Street, 

NW., Suite 3000, Washington, DC 20530, 

Plaintiff, v. Cemex, S.A.B. de C.V., Av. 

Ricardo Marga`in Zozaya #325, Colonia del 

Valle Campestre, Garza Garcı ́a, Nuevo Leo ́n, 

Mexico 66265, and Rinker Group Limited, 

Level 8, Tower B, 799 Pacific Highway, 

Chatsworth, NSW 2067, Australia, 

Defendants. 

Case No.: 1:07–cv–00640. 

Judge: Hon. Royce C. Lamberth. 

Deck Type: Antitrust. 

Date Stamp: May 2, 2007. 

Amended Complaint 

Plaintiff United States of America 

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

direction of the Attorney General of the 

United States, brings this civil antitrust 

action to obtain equitable and other 

relief against defendants, Cemex, S.A.B. 

de C.V. (‘‘Cemex’’) and Rinker Group 

Limited (‘‘Rinker’’) to prevent Cemex’s 

proposed acquisition of Rinker. Plaintiff 

complains and alleges as follows: 

I. Nature of the Action 

1. On October 27, 2006, Cemex 

Australia Pty Ltd., an entity controlled 

by Cemex, initiated a hostile cash tender 

offer to acquire all of the outstanding 

shares of Rinker. The total enterprise 

value of the transaction offer when 

made on October 27, 2007, including 

Rinker’s debt, was approximately $12 

billion. The offer was due to expire on 

March 30, 2007, but Cemex extended it 

until April 27, 2007. 

2. On April 9, 2007, Cemex 

announced that it had signed an 

agreement with Rinker, pursuant to 

which Cemex increased its offer to make 

the total enterprise value of the 

transaction, including Rinker’s debt, 

approximately $15 billion. This offer 

expired on May 18, 2007, and it is 

subject to the acquisition of 90 percent 

of Rinker’s shares. As part of the 

agreement, Rinker’s Board of Directors 

unanimously agreed to recommend to 

its shareholders that they accept 

Cemex’s increased offer at the higher 

price, in the absence of a superior 

proposal. 

3. Cemex and Rinker both produce 

and distribute building materials, 

including, among other things, ready 

mix concrete, aggregate, and concrete 

block, throughout the world. 

4. The combination of Cemex and 

Rinker would create one of the world’s 

largest building materials companies. 

Cemex’s proposed acquisition of Rinker 

would reduce the number of significant 

suppliers of ready mix concrete in 

various metropolitan areas in Florida 

and Arizona, of concrete block in 

several metropolitan areas in Florida, 

and of aggregate in Tucson, Arizona. 

5. The United States brings this action 

to prevent the proposed acquisition 

because it would substantially lessen 

competition in the production and 

distribution of ready mix concrete in the 

metropolitan areas of Fort Walton 

Beach/Panama City/Pensacola, 

Jacksonville, Orlando, Tampa/St. 

Petersburg, Fort Myers/Naples, Florida, 

and the metropolitan areas of Flagstaff 

and Tucson, Arizona. In addition, the 

acquisition would substantially lessen 

competition in the production and 

distribution of concrete block in 

metropolitan Tampa/St. Petersburg and 

Fort Myers/Naples, Florida. Finally, the 

acquisition would substantially lessen 

competition in the production and 

distribution of aggregate in metropolitan 

Tucson, Arizona. 

II. Parties to the Proposed Transaction 

6. Defendant Cemex is organized 

under the laws of the United Mexican 

States with its principal place of 

business in Nuevo Leo ́n, Mexico. Cemex 

operates in the United States through its 

wholly owned subsidiary, Cemex, Inc., 

which has its principal place of 

business in Houston, Texas. In 2006, 


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Cemex reported total sales of 

approximately $24.6 billion. 

7. Cemex produces and distributes 

cement, ready mix concrete, aggregate, 

concrete block, concrete pipe, and 

related building materials to customers 

in more than 50 countries. 

Approximately 25 percent of Cemex’s 

revenues are earned in the United 

States. Cemex is the largest United 

States supplier of ready mix concrete 

and cement and the seventh largest 

United States supplier of aggregate. 

8. Defendant Rinker is organized 

under the laws of Australia with its 

principal place of business in 

Chatswood, Australia. Rinker operates 

in the United States through its 

subsidiary, Rinker Materials 

Corporation. Rinker Materials 

Corporation has its principal place of 

business in West Palm Beach, Florida. 

In 2006, Rinker reported total sales of 

approximately $4 billion. 

9. Rinker produces and distributes 

aggregate, ready mix concrete, cement, 

concrete block, asphalt, concrete pipe, 

and other construction materials 

through its operations in the United 

States and Australia. Approximately 80 

percent of Rinker’s revenues are earned 

in the United States. Rinker is the 

second largest United States supplier of 

ready mix concrete and the fifth largest 

United States supplier of aggregate. 

III. Jurisdiction and Venue 

10. Plaintiff United States brings this 

action 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. 

11. Defendants produce and distribute 

ready mix concrete, concrete block, and 

aggregate in the flow of interstate 

commerce. Defendants’ activities in 

producing and distributing these 

products substantially affect interstate 

commerce. This Court has subject 

matter jurisdiction over this action 

pursuant to Section 12 of the Clayton 

Act, 15 U.S.C. 22, and 28 U.S.C. 1331, 

1337(a), and 1345. 

12. Venue is proper in this District 

pursuant to 28 U.S.C. 1391(d). Further, 

defendants have consented to venue and 

personal jurisdiction in this judicial 

district. 

IV. Trade and Commerce 

A. The Relevant Product Markets 

1. Ready Mix Concrete 

13. Ready mix concrete is a building 

material made up of a combination of 

cement, fine and coarse aggregate, small 

amounts of chemical additives, and 

water. The amount of cement added to 

a concrete mixture determines its 

strength, which is measured in pounds 

per square inch (‘‘psi’’). Concrete with 

higher psi ratings is typically used for 

large state department of transportation 

highway and bridge projects and highrise buildings. Concrete with lower psi 

ratings is typically used for residential 

and curb-and-gutter construction 

projects. 

14. Ready mix concrete is made at 

production facilities called batch plants. 

A batch plant measures the precise 

amount of dry input products needed to 

manufacture a given type of concrete. 

The mixture is then dumped into a 

rotating drum mounted on a heavy duty 

truck. Immediately before the truck 

departs the plant, a measured amount of 

water is added. Once the water hits the 

dry mixture, an irreversible chemical 

reaction is triggered causing the product 

to begin to set into a rigid building 

substance. The concrete components are 

mixed by the rotating drum while the 

truck is being driven to the job site. At 

the job site, the concrete is poured 

directly from the truck onto the project. 

15. Ready mix concrete is unique 

because it is pliable when freshly 

mixed, can be molded into a variety of 

forms, and it is strong and permanent 

when hardened. For many building 

applications, customers will not 

substitute other building materials, such 

as steel, wood, or asphalt, for ready mix 

concrete. Steel is often not a substitute 

for ready mix concrete because it cannot 

be poured and formed into smooth, 

regular planes. Wood is often not a 

substitute because it does not have the 

structural strength to support heavy 

loads. Asphalt is often not a substitute 

because it cannot be used for the 

structural portions of bridges, cannot be 

used for buildings, and for certain 

applications cannot be used for 

highways. 

16. Ready mix concrete is sold 

pursuant to bids, which are based on 

extensive specifications from the 

customer regarding, among other things, 

the amount of concrete, the various 

strengths of concrete, and the size and 

timing of the concrete pours. The needs 

of the customer can differ significantly 

by each project. 

17. Not all suppliers of ready mix 

concrete can service every kind of 

project. For example, servicing certain 

types of ‘‘large projects,’’ such as large 

state department of transportation 

highway and bridge building projects 

and high-rise building projects, requires 

ready mix concrete suppliers to be able 

to provide: (a) A large number of cubic 

yards of concrete; (b) large daily pours 

of concrete, which require the concrete 

supplier to schedule trucks to arrive 

continuously at a project; (c) concrete 

having multiple psi specifications; and 

(d) testing to insure the concrete meets 

project engineering specifications. 

18. If the concrete does not meet the 

project specifications or the concrete is 

not poured continuously, the customer 

may suffer substantial direct and 

consequential losses as a result of 

defective concrete. Contractors building 

large projects carefully select suppliers 

to minimize the chances of problems 

with the concrete. . 

19. Purchasers of ready mix concrete 

for such large projects require that their 

suppliers have: (a) Multiple ready mix 

concrete plants in a geographic area; (b) 

the ability to produce large amounts of 

concrete with multiple specifications; 

(c) backup plants; (d) a large number of 

concrete trucks; (e) a sizeable and welltrained workforce; (f) the demonstrated 

ability to service such a large project; 

and (g) considerable financial backing to 

remedy any problems relating to 

defective concrete. 

20. Each large project is bid separately 

and ready mix concrete suppliers can 

identify the specific market conditions 

that apply to each large project, 

including the number of competitors 

that potentially could service the 

project’s requirements. Ready mix 

concrete suppliers can and do charge 

different prices to customers based on 

the particular project’s requirements 

and the market conditions. 

21. A small but significant postacquisition increase in the price of 

ready mix concrete that meets the bid 

specifications would not cause the 

purchasers of ready mix concrete for 

large projects to substitute another 

building material in sufficient 

quantities, or to utilize a supplier of 

ready mix concrete without the 

characteristics described in paragraph 

19 above with sufficient frequency so as 

to make such a price increase 

unprofitable. 

22. Accordingly, the production, 

distribution, and sale of ready mix 

concrete for use in large projects is a 

line of commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. 

2. Concrete Block 

23. Concrete block is a construction 

material used to build exterior and 

interior walls in residential and 

commercial structures. Concrete block 

comes in a variety of shapes and sizes. 

Standard concrete blocks measure 8 

inches by 8 inches by 16 inches and are 

composed of two hollow squares joined 

to form a rectangle. 

24. Concrete block is produced by 

pouring concrete into molds and 


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pressing the molded blocks onto a 

conveyor belt for transport to a kiln for 

curing. Concrete blocks are then 

delivered to storage yards for final 

hardening and storage. 

25. In Florida, from Orlando south, 

the walls of residential structures are 

built almost exclusively with concrete 

block. Wood is not a viable substitute 

because of its susceptibility to termite 

and hurricane damage. Poured concrete 

walls (‘‘tilt up’’ walls) are at least 10 

percent more expensive than concrete 

block, except where a large number of 

identical structures with regular shapes 

are built on contiguous lots using a 

single mold. In addition, block made of 

polyurethane is not an economically 

viable substitute because it is difficult to 

install and does not withstand hurricane 

winds as well as concrete block. 

26. For nearly all residential 

construction applications in Florida, 

from Orlando south, a small but 

significant post-acquisition increase in 

the price of concrete block would not 

cause the purchasers of concrete block 

to substitute another product in 

sufficient quantities so as to make such 

a price increase unprofitable. 

27. Accordingly, within the state of 

Florida, from Orlando south, the 

production and distribution of concrete 

block is a line of commerce and a 

relevant product market within the 

meaning of Section 7 of the Clayton Act. 

3. Aggregate 

28. Aggregate is rock mined from 

either quarries or pits. Aggregate is 

crushed, washed, and mixed with sand, 

cement, and water to produce ready mix 

concrete. It is also used to make asphalt 

concrete for use in building roads. 

Different sizes of rock are needed to 

meet different ready mix concrete and 

asphalt specifications. 

29. There are no substitutes for 

aggregate because aggregate differs from 

other types of stone products in its 

physical composition, functional 

characteristics, customary uses, and 

pricing. It must meet the state 

departments of transportation or 

American Society of Testing Materials’

specifications for the specific type of 

asphalt or ready mix concrete being 

produced. 

30. A small but significant postacquisition increase in the price of 

aggregate that meets state departments 

of transportation and American Society 

of Testing Materials’ specifications for 

use in ready mix concrete and asphalt 

projects would not cause the purchasers 

of such aggregate to substitute another 

product in sufficient quantities so as to 

make such a price increase unprofitable. 

31. Accordingly, the production and 

distribution of aggregate that meets state 

departments of transportation and 

American Society of Testing materials’

specifications for use in ready mix 

concrete and asphalt projects is a line of 

commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. 

B. The Relevant Geographic Markets 

1. Ready Mix Concrete 

32. The ready mix concrete needed for 

large projects, such as highways, 

bridges, and high-rise buildings, is bid 

on a project-by-project basis. Ready mix 

concrete suppliers can identify the 

specific market conditions that apply to 

each project, including the number of 

competitors that potentially could 

service the location of the project. Ready 

mix concrete suppliers charge different 

prices to customers based on the 

particular location of a project. 

33. The suppliers with the ability to 

bid on large projects are those with 

plants located within the metropolitan 

area in which the project is located. The 

cost of transporting ready mix concrete 

is high compared to the value of the 

product. As concrete is hauled greater 

distances, the transportation costs begin 

to diminish the profitability of a load of 

concrete. Therefore, suppliers attempt to 

stay close to their batch plants to 

minimize the cost of hauling concrete. 

34. Further, because concrete begins 

to set while being driven to the job site, 

it is highly perishable. Therefore, 

contractors and state departments of 

transportation typically limit the time 

concrete can spend in a truck to 90 

minutes or less. This time may be even 

shorter in hot weather conditions. This 

time period is measured from the 

moment the water hits the dry concrete 

inputs in the truck until the concrete is 

poured out of the truck. Because of this 

90-minute window, contractors and 

state departments of transportation 

typically allow only a portion—often 

only 30 minutes—to be consumed by 

driving time. If the concrete is driven for 

a longer period of time, there may be 

insufficient time for the concrete to be 

completely poured onto the project 

within the 90-minute window. 

35. Due to its perishability and the 

cost of hauling concrete, depending on 

the size of the city and the associated 

traffic, the distance concrete can 

reasonably be transported for large 

projects, such as highways, bridges, and 

high-rise buildings in a metropolitan 

area is limited to the metropolitan area 

and, in many cases, to only portions of 

that area. 

36. The relevant geographic markets, 

within the meaning of Section 7 of the 

Clayton Act, consist of the locations 

within the metropolitan areas of Fort 

Walton Beach/Panama City/Pensacola, 

Jacksonville, Orlando, Tampa/St. 

Petersburg, Fort Myers/Naples, Florida, 

and the metropolitan areas of Flagstaff 

and Tucson, Arizona, to which Cemex 

and Rinker are among a small number 

of firms that compete to supply ready 

mix concrete for large projects. 

2. Concrete Block 

37. The cost of transporting concrete 

block is high compared to the value of 

the product. Manufacturers or thirdparty haulers deliver concrete block to 

customer job sites by truck. As delivery 

distance increases, the ratio of 

transportation costs to the price of 

concrete block increases. In urban areas, 

this most often confines the transport of 

concrete block to the metropolitan area. 

38. A small but significant postacquisition increase in the price of 

concrete block in metropolitan Tampa/ 

St. Petersburg would not cause 

customers of concrete block to procure 

concrete block from outside this area in 

sufficient quantities so as to make such 

a price increase unprofitable. 

39. Accordingly, metropolitan Tampa/ 

St. Petersburg is a relevant geographic 

market within the meaning of Section 7 

of the Clayton Act. 

40. Similarly, a small but significant 

post-acquisition increase in the price of 

concrete block in metropolitan Fort 

Myers/Naples would not cause 

customers of concrete block to procure 

concrete block from outside this area so 

as to make such a price increase 

unprofitable. 

41. Accordingly, metropolitan Fort 

Myers/Naples is a relevant geographic 

market within the meaning of Section 7 

of the Clayton Act. 

3. Aggregate 

42. Aggregate is a bulky, heavy, and 

relatively low-cost product. The cost of 

transporting aggregate is high compared 

to the value of the product. 

43. Suppliers cannot economically 

transport aggregate to the Tucson area 

from locations outside of metropolitan 

Tucson. First, transportation costs limit 

the distance aggregate can be 

economically transported from an 

aggregate pit to a ready mix concrete 

plant (for aggregate pits that are not colocated with ready mix concrete plants) 

or from an aggregate pit to the job site. 

Second, the location of other aggregate 

suppliers limits the distance that 

aggregate can economically travel. 

Finally, in metropolitan Tucson, the 

ready mix concrete plants are typically 


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co-located with the aggregate pits to 

minimize transportation costs. 

44. A small but. significant postacquisition increase in the price of 

aggregate in metropolitan Tucson would 

not cause customers of aggregate to 

procure aggregate in sufficient 

quantities from outside this area so as to 

make such a price increase unprofitable. 

45. Accordingly, metropolitan Tucson 

is a relevant geographic market within 

the meaning of Section 7 of the Clayton 

Act. 

C. Anticompetitive Effects 

1. The Proposed Transaction Will Harm 

Competition in the Markets for Ready 

Mix Concrete, Concrete Block, and 

Aggregate in the Specified Geographic 

Markets. 

a. Ready Mix Concrete 

46. Vigorous price competition 

between Cemex and Rinker in the 

production and sale of ready mix 

concrete has benefitted customers. 

47. The competitors that could 

constrain Cemex and Rinker from 

raising prices for ready mix concrete to 

be used on large projects, such as 

highways, bridges, and high-rise 

buildings, are limited to those that meet 

the requirements imposed by purchasers 

for large ready mix concrete projects. 

48. The proposed acquisition will 

eliminate the competition between 

Cemex and Rinker and reduce the 

number of suppliers of ready mix 

concrete that might bid on certain types 

of large projects, such as highways, 

bridges, and high-rise buildings, from 

three to two in metropolitan Tampa/St. 

Petersburg and metropolitan Fort 

Walton Beach/Panama City/Pensacola, 

Florida, and in metropolitan Tucson, 

Arizona. The proposed acquisition will 

eliminate the competition between 

Cemex and Rinker and reduce the 

number of suppliers of ready mix 

concrete that might bid on certain types 

of large projects, such as highways, 

bridges and high-rise buildings, from 

four to three generally, and in some 

areas or for some projects from three to 

two, in metropolitan Orlando, 

metropolitan Fort Myers/Naples, and 

metropolitan Jacksonville, Florida. 

Further, the proposed acquisition will 

substantially increase the likelihood 

that Cemex will unilaterally increase the 

price of ready mix concrete to a 

significant number of customers in these 

areas. 

49. In metropolitan Flagstaff, Arizona, 

the proposed acquisition will eliminate 

the competition between Cemex and 

Rinker and reduce the number of 

suppliers of ready mix concrete that 

might bid on certain types of large 

projects, such as highways, bridges, and 

high-rise buildings, from two to one. 

50. The response of other ready mix 

concrete producers in the relevant areas 

would not be sufficient to constrain a 

unilateral exercise of market power by 

Cemex after the acquisition. 

51. In addition, a combined Cemex 

and Rinker would have the ability to 

increase prices for ready mix concrete to 

certain customers. Ready mix concrete 

producers know the locations of their 

competitors’ batch plants and the 

distance from their own plants and their 

competitors’ plants to a customer’s job 

site. Generally, because of 

transportation costs, the farther a 

supplier’s closest competitor is from a 

job site, the less price competition that 

supplier faces for that project. Postacquisition, in instances where Cemex 

and Rinker plants were the 11 closest 

plants to a customer’s project, the 

combined firm, using the knowledge of 

its competitors’ plant locations, would 

be able to charge such customers higher 

prices in instances in which the next 

closest ready mix concrete supplier’s 

plant is farther from the customer’s 

project than were the Cemex and Rinker 

plants. 

52. Without the competitive 

constraint of competition between 

Cemex and Rinker, post-acquisition 

Cemex will have a greater ability to 

exercise market power by raising prices 

to customers for whom Rinker and 

Cemex were their closest and secondclosest sources of ready mix concrete. 

53. Further, Cemex’s elimination of 

Rinker as an independent competitor in 

the production and distribution of ready 

mix concrete is likely to facilitate 

anticompetitive coordination among the 

remaining producers that can bid on 

large projects in each relevant 

geographic market. Mixes of the same 

strength of concrete are relatively 

standard and homogeneous, and 

producers have access to information 

about competitors’ output, capacity, and 

costs. Moreover, participants in ready 

mix concrete markets have successfully 

engaged in anticompetitive coordination 

in the past. Given these market 

conditions, eliminating one of the few 

ready mix concrete suppliers that can 

bid on large projects is likely to further 

increase the ability of the remaining 

competitors to successfully coordinate. 

54. The transaction will therefore 

substantially lessen competition in the 

market for ready mix concrete in the 

affected areas, which is likely to lead to 

higher prices for the ultimate consumers 

of such products, in violation of Section 

7 of the Clayton Act. 

b. Concrete Block 

55. Vigorous price competition 

between Cemex and Rinker in the 

production and sale of concrete block 

has benefitted customers. 

56. In metropolitan Tampa/St. 

Petersburg, Florida, the proposed 

acquisition will eliminate the 

competition between Cemex and Rinker. 

The acquisition will give Cemex control 

of approximately 60 percent of the 

concrete block capacity in metropolitan 

Tampa/St. Petersburg. The proposed 

acquisition will substantially increase 

the likelihood that Cemex will 

unilaterally increase the price of 

concrete block to a significant number 

of customers in metropolitan Tampa/St. 

Petersburg. 

57. In metropolitan Fort Myers/ 

Naples, Florida, the proposed 

acquisition will eliminate the 

competition between Cemex and Rinker. 

The acquisition will give Cemex control 

of approximately 69 percent of the 

concrete block capacity in metropolitan 

Fort Myers/Naples. The proposed 

acquisition will substantially increase 

the likelihood that Cemex will 

unilaterally increase the price of 

concrete block to a significant number 

of customers in metropolitan Fort 

Myers/Naples. 

58. In addition, in each of these 

markets, a combined Cemex and Rinker 

would have the ability to increase prices 

for concrete block to certain customers. 

As with ready mix concrete, concrete 

block manufacturers know the locations 

of their competitors’ plants and the 

distance from their own plants and their 

competitors’ plants to a customer’s job 

site. Generally, because of 

transportation costs, the farther a 

supplier’s closest competitor is from the 

job site, the less price competition that 

supplier faces for that project. Postacquisition, in instances where Cemex 

and Rinker plants were the closest 

plants to a customer’s project, the 

combined firm, using the knowledge of 

its competitors’ plant locations, would 

be able to charge such customers higher 

prices in instances in which the next 

closest concrete block supplier’s plant is 

farther from the customer’s project than 

were the Cemex and Rinker plants. 

59. Without the constraint of 

competition between Cemex and Rinker, 

post-acquisition Cemex will have a 

greater ability to exercise market power 

by raising prices to customers for whom 

Rinker and Cemex were their closest 

and second-closest sources of concrete 

block supply. 

60. Further, Cemex’s elimination of 

Rinker as an independent competitor in 

the production and distribution of 


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concrete block is likely to facilitate anticompetitive coordination among the 

remaining concrete block producers in 

each relevant geographic market. 

Concrete block is a homogeneous 

commodity and producers have access 

to information about competitors’

output, capacity, and costs. Given these 

market conditions, eliminating one of 

the few concrete block competitors is 

likely to further increase the ability of 

the remaining competitors to 

successfully coordinate. 

61. The response of other concrete 

block producers in the relevant areas 

would not be sufficient to constrain a 

unilateral exercise of market power by 

Cemex after the acquisition. 

62. The transaction will therefore 

substantially lessen competition in the 

market for concrete block, which is 

likely to lead to higher prices for the 

ultimate consumers of such products, in 

violation of Section 7 of the Clayton 

Act. 

c. Aggregate 

63. Vigorous price competition 

between Cemex and Rinker in the 

production and sale of aggregate in 

metropolitan Tucson, Arizona has 

benefitted customers. 

64. In metropolitan Tucson, the 

proposed acquisition will eliminate the 

competition between Cemex and Rinker. 

The proposed acquisition will also 

reduce the number of significant 

suppliers of aggregate from five to four 

in the Tucson market generally and, 

depending on the location of the 

aggregate pit and the transportation 

costs, the number of suppliers could be 

reduced to as few as three or two. 

Further, the proposed acquisition will 

substantially increase the likelihood 

that Cemex will unilaterally increase the 

price of aggregate to a significant 

number of customers. 

65. Further, Cemex’s elimination of 

Rinker as an independent competitor in 

the production and distribution of 

aggregate is likely to facilitate anticompetitive coordination among the 

remaining aggregate producers in 

Tucson. Aggregate is a homogeneous 

commodity and producers have access 

to information about competitors’

output, capacity, and costs. Given these 

market conditions, eliminating one of 

the few aggregate competitors is likely 

to further increase the ability of the 

remaining competitors to successfully 

coordinate. 

66. The transaction will therefore 

substantially lessen competition in the 

market for aggregate, which is likely to 

lead to higher prices for the ultimate 

consumers of such products, in 

violation of Section 7 of the Clayton 

Act. 

2. Entry Is Not Likely To Deter the 

Exercise of Market Power 

a. Ready Mix Concrete 

67. Successful entry or expansion into 

the production and distribution of ready 

mix concrete for large projects is 

difficult, time-consuming, and costly. In 

order to be able to bid on large projects, 

such as highways, bridges, and high-rise 

buildings, it is not sufficient simply to 

be able to produce ready mix concrete. 

In order to bid on these large projects, 

a new entrant or an existing producer 

must have multiple ready mix concrete 

plants in a geographic area, the ability 

to produce large amounts of concrete 

with multiple specifications, backup 

plants, a large number of concrete 

trucks, a sizeable and well-trained 

workforce, the demonstrated ability and 

reputation to be able to service such a 

large project and considerable financial 

backing to remedy any problems 

relating to defective concrete. 

68. In addition, opening a ready mix 

concrete batch plant in a metropolitan 

area is difficult because of the need to 

acquire the land for the site of such a 

batch plant. The location of a batch 

plant is very important because of the 

perishability of the ready mix concrete. 

In Florida, batch plants typically require 

approximately three to five acres of land 

to comply with environmental and land 

use regulations. Finding the appropriate 

site for such a plant close enough to the 

large projects is difficult, because in 

metropolitan areas such land is already 

utilized or does not have the 

appropriate zoning. Obtaining the land 

use permits or zoning variances is 

difficult, costly, and time-consuming, as 

well. Furthermore, in addition to 

building the new batch plant, an entrant 

would also have to secure sources of 

cement and aggregate, which are inputs 

into ready mix concrete. 

69. Therefore, entry or expansion by 

any other firm so that it is able to bid 

on large ready mix concrete projects 

will not be timely, likely, or sufficient 

to defeat an anti-competitive price 

Increase. 

b. Concrete Block 

70. In metropolitan Tampa/St. 

Petersburg and metropolitan Fort 

Myers/Naples, successful entry or 

expansion into the production and 

distribution of concrete block is 

difficult, time consuming, and costly. 

Properly zoned parcels of land of the 

necessary size (at least eight acres) are 

scarce. Locating or securing proper 

zoning, development, building, air 

quality, and environmental permits and 

building a concrete block plant can take 

more than two years. Building a new 

concrete block plant costs 

approximately $8 to $12 million. 

71. Therefore, entry or expansion by 

any other firm into the concrete block 

markets in metropolitan Tampa/St. 

Petersburg and metropolitan Fort 

Myers/Naples will not be timely, likely, 

or sufficient to defeat an anticompetitive price increase. 

c. Aggregate 

72. Successful entry or expansion into 

the production and distribution of 

aggregate is difficult, time-consuming, 

and costly. Successful entry or 

expansion into the production and 

distribution of aggregate in metropolitan 

Tucson, Arizona is difficult because 

there are very few new sites on which 

to locate aggregate pits. First, for 

aggregate used on transportation 

projects, the aggregate pits must be 

located in a river bed or wash. Second, 

aggregate is a finite resource in 

metropolitan Tucson, and several 

aggregate pits have been depleted in the 

past several years. Third, requests to 

open new aggregate pits often face fierce 

public opposition. 

73. In addition, Arizona state and 

federal zoning, air quality, and other 

permitting process requirements must 

be met. Obtaining the necessary 

environmental and land-use permits for 

aggregate pits is difficult in Tucson. 

74. Further, the Arizona Aggregate 

Mine Reclamation Act requires financial 

assurances and other requirements for 

companies seeking to open a new 

aggregate pit, continuing to operating an 

existing aggregate pit, or expanding an 

existing aggregate pit. 

75. Therefore, entry or expansion by 

any other firm into the aggregate market 

in metropolitan Tucson would not be 

timely, likely, or sufficient to defeat an 

anti-competitive price Increase. 

V. Violations Alleged 

76. The proposed acquisition of 

Rinker by Cemex would substantially 

lessen competition and tend to create a 

monopoly in interstate trade and 

commerce in violation of Section 7 of 

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

77. Unless restrained, the transaction 

will have the following anticompetitive effects, among others: 

a. Actual and potential competition 

between Cemex and Rinker in the 

production and distribution of ready 

mix concrete, concrete block, and 

aggregate in the relevant geographic 

markets will be eliminated; 

b. competition generally in the 

production and distribution of ready 


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mix concrete, concrete block, and 

aggregate in the relevant geographic 

markets. will be substantially lessened; 

and 

c. Prices for ready mix concrete, 

concrete block, and aggregate in the 

relevant geographic markets will likely 

increase. 

VI. Request for Relief 

78. Plaintiff requests that: 

a. Cemex’s proposed acquisition of 

Rinker be adjudged and decreed to be 

unlawful and in violation of Section 7 

of the Clayton Act, 15 U.S.C. § 18; 

b. Defendants and all persons acting 

on their behalf permanently enjoined 

and restrained from consummating the 

proposed acquisition or from entering 

into or carrying out any contract, 

agreement, plan, or understanding, the 

effect of which would be to combine 

Cemex with the operations of Rinker; 

c. Plaintiff be awarded its costs for 

this action; and 

d. Plaintiff receive such other and 

further relief as the Court deems just 

and proper. 

Respectfully submitted, 

For Plaintiff United States of America: 

/s/ lllllllllllllllllll

Thomas O. Barnett, 

Assistant Attorney General, D.C. Bar 

#426840. 

/s/ lllllllllllllllllll

David L. Meyer, 

Deputy Assistant Attorney General, D.C. Bar 

#414420. 

/s/ lllllllllllllllllll

Patricia A. Brink, 

Deputy Director of Operations. 

/s/ lllllllllllllllllll

Maribeth Petrizzi, 

Chief, Litigation II Section, D.C. Bar #435204. 

/s/ lllllllllllllllllll

Dorothy B. Fountain, 

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

#439469. 

/s/ lllllllllllllllllll

Frederick H. Parmenter, 

Christine A. Hill (D. C. Bar #461 048/ 

inactive) 

Leslie Peritz, 

John Lynch, 

James S. Yoon (D.C. Bar #491309), 

Nicole Mark, 

Helena Joly, 

Attorneys, U.S. Department of Justice, 

Antitrust Division, Litigation II Section, 1401 

H Street, N.W., Suite 3000, Washington, D.C. 

20530, Tel: (202) 307–0924. 

Dated: May 2, 2007. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Cemex, S.A.B. de C.Y. and Rinker Group 

Limited, Defendants. 

Case No.: 1:07-cv-00640. 

Judge: Hon. Royce C. Lamberth. 

Deck Type: Antitrust. 

Date Stamped: May 2, 2007. 

Final Judgment 

Whereas, plaintiff, United States of 

America, filed its Amended Complaint 

on May 2, 2007, and plaintiff and 

defendants, Cemex, S.A.R de C.V. 

(‘‘Cemex’’) and Rinker Group Limited 

(’’Rinker’’), 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, Cemex agrees to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights or assets by 

Cemex to assure that competition is not 

substantially lessened; 

And whereas, plaintiff requires 

Cemex to make certain divestitures for 

the purpose of remedying the loss of 

competition alleged in the Amended 

Complaint; 

And whereas, Cemex has represented 

to the United States that the divestitures 

required below can and will be made 

and that Cemex will later raise no claim 

of hardship or difficulty as grounds for 

asking the Court to modify any of the 

divestiture provisions contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is Ordered, 

adjudged and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Amended Complaint 

states a claim upon which relief may be 

granted against defendants under 

Section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18. 

II. Definitions 

As used in this Final Judgment: 

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

the entity or entities to whom Cemex 

divests some or all of the Divestiture 

Assets. 

B. ‘‘Aggregate’’ means crushed stone 

and gravel produced at quarries, mines, 

or gravel pits used for, among other 

things, the production of ready mix 

concrete and concrete block. c. 

C. ‘‘Cemex’’ means defendant Cemex, 

S.A.B. de C.V., a Mexican corporation 

with its headquarters in Nuevo Leon, 

Mexico, its successors and assigns, and 

its subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

D. ‘‘Concrete block’’ means a building 

material used in the construction of 

residential and commercial structures 

that is produced at a plant by mixing 

cementitious material, aggregate, 

chemical additives, and water, and 

placing that mixture in molds of various 

sizes. 

E. Divestiture Assets’’ means: 

1. the following Ready Mix Concrete 

plants: 

a. Fort Walton Beach/Panama City/ 

Pensacola, Florida Area 

i. Rinker’s Crestview plant, located at 

5420 Fairchild Road, Crestview, FL 

32539; 

ii. Rinker’s Fort Walton plant, located 

at 1787 FIM Boulevard, Fort Walton 

Beach, FL 32547; 

iii. Rinker’s Milton plant, located at 

6250 Da Lisa Road, Milton, FL 32583; 

iv. Rinker’s Panama City plant, 

located at 1901–B East 15th Street, 

Panama City, FL 32405; 

v. Rinker’s Panama City Beach plant, 

located at 17750 Hutchinson Road, 

Panama City Beach, FL 32407; 

vi. Rinker’s Pensacola plant, located 

at 415 Hyatt Street, Pensacola, FL 

32503; 

vii. Rinker’s Port St. Joe plant, located 

at 1145 Industrial Road, Port St. Joe, FL 

32456; 

viii. Rinker’s Point Washington plant, 

located at the intersection of East 

Highway 98 and Old Ferry Road, Santa 

Rosa Beach, FL 32459; 

b. Jacksonville, Florida Area 

i. Cemex’s Main Street plant, located 

at 9214 North Main Street, Jacksonville, 

FL 32218; 

ii. Cemex’s Southside Florida Mining 

Boulevard plant, located at 9715 East 

Florida Mining Boulevard, Jacksonville, 

FL 32223; 

c. Orlando, Florida Area 

i. Cemex’s East Orlando plant, located 

at 7400 Narcoossee Road, Orlando, FL 

32822; 

ii. Cemex’s Goldenrod plant, located 

at 4000 Forsyth Road, Winter Park, FL 

32792; 

iii. Cemex’s Winter Garden plant, 

located at 201 Hennis Road, Winter 

Garden, FL 34787; 

iv. Rinker’s Kennedy plant, located at 

1406 Atlanta Avenue, Orlando, FL 

32806; 

d. Tampa/St. Petersburg, Florida Area 

i. Rinker’s Clearwater plant, located at 

3757 118th Avenue North, Clearwater, 

FL 33762; 


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ii. Rinker’s Odessa plant, located at 

12025 State Road 54, Odessa, FL 33556; 

iii. Rinker’s Odessa Keys plant, 

located at 11913 State Road 54, Odessa, 

FL 33556; 

iv. Rinker’s Riverview plant, located 

at 6723 South 78th Street, Riverview, FL 

33569; 

v. Rinker’s Tampa plant, located at 

6106 East Hanna Avenue, Tampa, FL 

33610; 

vi. Rinker’s Tampa Keys plant, 

located at 1811 North 57th Street, 

Tampa, FL 33619; 

e. Fort Myers/Naples, Florida Area 

i. Rinker’s Ave Maria plant, located at 

4811 Ave Maria Boulevard, Immokalee, 

FL 34142; 

ii. Rinker’s Bonita Springs plant, 

located at 25061 Old U.S. Highway 41 

South, Bonita Springs, FL 34135; 

iii. Rinker’s Canal Street plant, 

located at 4262 Canal Street, Fort Myers, 

FL 33916; 

iv. Rinker’s Cape Coral (Pine Island) 

plant, located at 2401 SW Pine Island 

Road, Cape Coral, FL 33991; 

v. Rinker’s Naples plant, located at 

9210 Collier Boulevard, Naples, FL 

34114; 

vi. Rinker’s South Fort Myers plant, 

located at 7270 Alico Road, Fort Myers, 

FL 33912; 

f. Flagstaff, Arizona Area 

Cemex’s Brannen plant, located at 633 

East Brannen Avenue, Flagstaff, AZ 

86001; 

g. Tucson, Arizona Area 

i. Cemex’s Ina plant, located at 5400 

West Massingale Road, Tucson, AZ 

85743; 

ii. Rinker’s Green Valley plant, 

located at 18701 South Old Nogales 

Highway, Sahuarita, AZ 85629; 

iii. Rinker’s Poorman Road plant, 

located at 6500 South Old Spanish 

Trail, Tucson, AZ 85747; 

iv. Rinker’s Valencia plant, located at 

1011 West Valencia Road, Tucson, AZ 

85706; 

The following concrete block plants: 

a. Tampa/St. Petersburg, Florida 

i. Rinker’s Odessa plant, located at 

12025 State Road 54, Odessa, FL 33556; 

ii. Rinker’s Palmetto plant, located at 

600 9th Street West, Palmetto, FL 34221; 

iii. Rinker’s Tampa plant, located at 

6302 North 56th Street, Tampa, FL 

33610; 

b. Fort Myers/Naples, Florida Area 

i. Rinker’s Bonita Springs plant, 

located at 25091 Old U.S. Highway 41 

South, Bonita Springs, FL 34135; 

ii. Rinker’s Coral Rock plant, located 

at 41451 Cook Brown Road, Punta 

Gorda, FL 33982; 

iii. Rinker’s South Fort Myers plant, 

located at 7270 Alico Road, Fort Myers, 

FL 33912; 

3. The following Tucson, Arizona area 

aggregate plants: 

a. Cemex’s Ina plant, located at 5400 

West Massingale Road, Tucson, AZ 

85743; 

b. Rinker’s Green Valley plant, located 

at 18701 South Old Nogales Highway, 

Sahuarita, AZ 85629; 

4. All tangible assets used in the 

plants listed in paragraphs II(E)(1 )–(3), 

including all research and development 

activities, manufacturing equipment, 

tooling and fixed assets, real property 

(leased or owned), mining equipment, 

personal property, inventory, aggregate 

reserves, office furniture, materials, 

supplies, on- or off-site warehouses or 

storage facilities relating to the plants; 

all licenses, permits and authorizations 

issued by any governmental 

organization relating to the plants; all 

contracts, agreements, leases (including 

renewal rights), commitments, and 

understandings relating to the plants, 

including supply agreements; all 

customer lists, contracts, accounts, and 

credit records relating to the plants; all 

other records relating to the plants; and 

at the option of the Acquirer or 

Acquirers, a number of trucks and other 

vehicles usable at the plants listed in 

paragraphs II(E)(1)–(3) equal to, for each 

separate type of truck or other vehicle, 

the average number of trucks and other 

vehicles of that type used at each such 

plant per month during the months of 

operation of the plant between January 

1, 2006 and December 31, 2006 

(calculated by averaging the number of 

trucks and other vehicles of each type 

that were used at each plant at any time 

during each month that the plant was in 

operation), but such trucks and vehicles 

need not include any equipment related 

to Cemex’s ‘‘ReadySlump’’ process, so 

long as the trucks and other vehicles are 

fully operable without such equipment; 

and 

5. All intangible assets used in the 

development, production, servicing, and 

distribution of products by the facilities 

listed in paragraphs II(E)(1)–(3), 

including but not limited to all 

contractual rights, patents, licenses and 

sublicenses, intellectual property, 

technical information, computer 

software (including dispatch software 

and management information systems) 

and related documentation, know-how, 

trade secrets, drawings, blueprints, 

designs, design protocols, specifications 

for materials, specifications for parts 

and devices, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, design tools and simulation 

capability, all manuals and technical 

information provided to the employees, 

customers, suppliers, agents or 

licensees, and all research data 

(including aggregate reserve testing 

information) concerning historic and 

current research and development 

efforts relating to the plants listed in 

paragraphs II(E)(1)–(3), including, but 

not limited to designs of experiments, 

and the results of successful and 

unsuccessful designs and experiments. 

F. ‘‘Ready mix concrete’’ means a 

building material used in the 

construction of buildings, highways, 

bridges, tunnels, and other projects that 

is produced by mixing a cementitious 

material and aggregate with sufficient 

water to cause the cement to set and 

bind. 

G. ‘‘Rinker’’ means defendant Rinker 

Group Limited, an Australian 

corporation with its headquarters in 

Chatswood, Australia, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

H. ‘‘Divestiture Trigger’’ means the 

day on which Cemex elects a majority 

of the Board of Directors of Rinker or 

forty-five (45) days after Cemex obtains 

a number of shares of Rinker stock in 

excess of 50 percent of the outstanding 

shares of Rinker, whichever is sooner. 

III. Applicability 

A. This Final Judgment applies to 

Cemex, as defined above, and all other 

persons in active concert or 

participation with Cemex who receive 

actual notice of this Final Judgment by 

personal service or otherwise. 

B. Cemex shall require, as a condition 

of the sale or other disposition of all or 

substantially all of its assets or of lesser 

business units that include the 

Divestiture Assets, that the purchaser 

agrees to be bound by the provisions of 

this Final Judgment. 

IV. Divestitures 

A. Cemex is ordered and directed, 

within one hundred twenty (120) 

calendar days after the Divestiture 

Trigger, or five (5) days after notice of 

the entry of this Final Judgment by the 

Court, whichever is later, to divest the 

Divestiture Assets in a manner 

consistent with this Final Judgment to 

an Acquirer or Acquirers acceptable to 

the United States in its sole discretion. 

The United States, in its sole discretion, 

may agree to one or more extensions of 

this time period, not to exceed in total 

sixty (60) calendar days, and shall notify 


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the Court in each such circumstance. 

Cemex agrees to use its best efforts to 

divest the Divestiture Assets as 

expeditiously as possible. 

B. In accomplishing the divestitures 

ordered by the Final Judgment, Cemex 

promptly shall make known, by usual 

and customary means, the availability of 

the Divestiture Assets. Cemex shall 

inform any person making inquiry 

regarding a possible purchase of the 

Divestiture Assets that they are being 

divested pursuant to this Final 

Judgment and provide that person with 

a copy of this Final Judgment. Unless 

the United States otherwise consents in 

writing, Cemex shall offer to furnish to 

all prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divestiture Assets that 

customarily are provided in a due 

diligence process except such 

information or documents subject to the 

attorney-client or work-product 

privilege. Cemex shall make available 

such information to the United States at 

the same time that such information is 

made available to any other person. 

C. Unless the United States otherwise 

consents in writing, Cemex shall 

provide the Acquirer or Acquirers and 

the United States information relating to 

personnel involved in production, 

operations, and sales at the Divestiture 

Assets to enable the Acquirer or 

Acquirers to make offers of 

employment. Cemex will not interfere 

with any negotiations by the Acquirer or 

Acquirers to employ any employee of 

the Divestiture Assets whose primary 

responsibility is production, operations, 

or sales at the Divestiture Assets. 

D. Unless the United States otherwise 

consents in writing, Cemex shall permit 

prospective Acquirers of the Divestiture 

Assets to have reasonable access to 

personnel and to make inspections of 

the physical facilities of the Divestiture 

Assets; access to any and all 

environmental, zoning, and other permit 

documents and information; and access 

to any and all financial, operational, and 

other documents and information 

customarily provided as part of a due 

diligence process. 

E. Cemex shall warrant to the 

Acquirer or Acquirers that those 

Divestiture Assets owned by Cemex 

prior to an acquisition of Rinker will be 

operational on the date of the 

divestiture. In addition, with respect to 

those Divestiture Assets owned by 

Rinker prior to an acquisition by Cemex, 

Cemex shall warrant to the Acquirer or 

Acquirers that those Divestiture Assets 

will be operational on the date of the 

divestiture, if they were operational on 

the date Cemex acquires a number of 

shares of Rinker stock in excess of 50 

percent of the outstanding shares of 

Rinker. 

F. Cemex shall not take any action 

that will impede in any way the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

G. Cemex shall warrant to the 

Acquirer or Acquirers that there are no 

material defects in the environmental, 

zoning, or other permits pertaining to 

the operation of those Divestiture Assets 

owned by Cemex prior to an acquisition 

of Rinker. In addition, with respect to 

those Divestiture Assets owned by 

Rinker prior to an acquisition by Cemex, 

Cemex shall warrant to the Acquirer or 

Acquirers that there are no material 

defects in the environmental, zoning, or 

other permits pertaining to the 

operation of those Divestiture Assets, if 

there are no material defects in the 

environmental, zoning, or other permits 

pertaining to the operation of those 

Divestiture Assets on the date Cemex 

acquires a number of shares of Rinker 

stock in excess of 50 percent of the 

outstanding shares of Rinker. Cemex 

shall not undertake, directly or 

indirectly, any challenges to the 

environmental, zoning, or other permits 

relating to the operation of the 

Divestiture Assets. 

H. If for any reason Cemex is unable 

within the time period required by 

paragraph IV(A) to divest any of the 

Divestiture Assets or make any of the 

Divestiture Assets available for sale by 

the trustee appointed pursuant to 

Section V, or if for any reason Cemex 

does not make the warranties in 

paragraphs IV(E) and (G) with respect to 

the assets owned by Rinker prior to an 

acquisition by Cemex, for each such 

asset, the United States, in its sole 

discretion, may select one or more 

alternative assets owned by Cemex that 

are located or used in the same 

geographic area (as identified in 

boldface type in section II(E)) to be 

divested in lieu of the Divestiture Asset 

that could not be divested. Unless the 

United States consents otherwise in 

writing, divestiture of an alternative 

Cemex asset shall include all tangible 

and intangible assets associated with 

that asset, as defined in paragraph II(E). 

I. Unless the United States otherwise 

consents in writing, any divestiture 

pursuant to Section IV, or by trustee 

appointed pursuant to Section V, of this 

Final Judgment, shall include the entire 

Divestiture Assets, and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion, 

that the Divestiture Assets can and will 

be used by the Acquirer or Acquirers as 

viable, ongoing businesses engaged in 

producing and distributing ready mix 

concrete, concrete block, and/or 

aggregate, that the Divestiture Assets 

will remain viable, and that the 

divestiture of such assets will remedy 

the competitive harm alleged in the 

Amended Complaint. The sale of the 

Divestiture Assets may be made to one 

or more Acquirers, so long as: (1) All of 

the ready mix concrete plants in a 

geographic area (as identified in 

boldface type in section II(E)) are 

divested to a single Acquirer; (2) all of 

the concrete block plants in a 

geographic area are divested to a single 

Acquirer; (3) both aggregate plants listed 

in paragraph II(E)(3) are divested to the 

same Acquirer that acquires the ready 

mix concrete plants listed in paragraphs 

II(E)(l)(g)(i)–(iii); and (4) in each 

instance it is demonstrated in a manner 

acceptable to the United States in its 

sole discretion that the Divestiture 

Assets will remain viable and the 

divestiture of such Divestiture assets 

will remedy the competitive harm 

alleged in the Amended Complaint. The 

divestitures, whether pursuant to 

Section IV or Section V of this Final 

Judgment, 

1. Shall be made to an Acquirer or 

Acquirers that, in the United States’s 

sole judgment, has the intent and 

capability (including the necessary 

managerial, operational, technical and 

financial capability) to compete 

effectively in the production and 

distribution of ready mix concrete, 

concrete block, and/or aggregate; and 

2. Shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, that none of the terms of any 

agreement between an Acquirer or 

Acquirers and Cemex gives Cemex the 

ability to unreasonably raise the 

Acquirer’s costs, to lower the Acquirer’s 

efficiency, or otherwise to interfere in 

the ability of the Acquirer to compete 

effectively in the production and 

distribution of ready mix concrete, 

concrete block, and/or aggregate. 

J. If Cemex does not acquire a number 

of shares of Rinker stock in excess of 50 

percent of the outstanding shares of 

Rinker, Cemex shall divest all its 

interest in Rinker within six months 

from the date this Final Judgment is 

signed by the Court. Pending such 

divestiture, Cemex shall not, directly or 

indirectly: (1) Exercise dominion or 

control over, or otherwise seek to 

influence, the management, direction, or 

supervision of the business of Rinker; 

(2) seek or obtain representation on the 

Board of Directors of Rinker; (3) exercise 

any voting rights attached to the shares; 

(4) seek or obtain access to any 

confidential or proprietary information 

of Rinker; or (5) take any action or omit 

to take any action that would have an 


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effect different than if Cemex’s interest 

in Rinker were that of a purely passive 

investor. 

V. Appointment of Trustee to Effect 

Divestitures 

A. If Cemex has not divested the 

Divestiture Assets within the time 

period specified in paragraph IV(A), 

Cemex shall notify the United States of 

that fact in writing. Upon application of 

the United States, the Court shall 

appoint a trustee selected by the United 

States and approved by the Court to 

effect the divestiture of the Divestiture 

Assets. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Divestiture 

Assets. The trustee shall have the power 

and authority to accomplish the 

divestiture to an Acquirer acceptable to 

the United States at such price and on 

such terms as are then obtainable upon 

reasonable effort by the trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to paragraph 

V(D) of this Final Judgment, the trustee 

may hire at the cost and expense of 

Cemex any investment bankers, 

attorneys, or other agents, who shall be 

solely accountable to the trustee, 

reasonably necessary in the trustee’s 

judgment to assist in the divestiture. 

C. Cemex shall not object to a sale by 

the trustee on any ground other than the 

trustee’s malfeasance. Any such 

objection by Cemex must be conveyed 

in writing to the United States and the 

trustee within ten (10) calendar days 

after the trustee has provided the notice 

required under Section VI. 

D. The trustee shall serve at the cost 

and expense of Cemex, 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 Cemex and the trust shall then 

be terminated. The compensation of the 

trustee and any professionals and agents 

retained by the trustee shall be 

reasonable in light of the value of the 

Divestiture Assets and based on a fee 

arrangement providing the trustee with 

an incentive based on the price and 

terms of the divestiture and the speed 

with which it is accomplished, but 

timeliness is paramount. 

E. Cemex shall use its best efforts to 

assist the trustee in accomplishing the 

required divestiture. The trustee and 

any consultants, accountants, attorneys, 

and other persons retained by the 

trustee shall have full and complete 

access to the personnel, books, records, 

and facilities of the business to be 

divested, and Cemex shall develop 

financial and other information relevant 

to such business as the trustee may 

reasonably request, subject to reasonable 

protection for trade secrets or other 

confidential research, development, or 

commercial information. Cemex shall 

take no action to interfere with or to 

impede the trustee’s accomplishment of 

the divestiture. 

F. After its appointment, the trustee 

shall file monthly reports with the 

United States and the Court setting forth 

the trustee’s efforts to accomplish the 

divestiture ordered under this Final 

Judgment. To the extent such reports 

contain information that the trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. Such reports shall include the 

name, address, and telephone number of 

each person who, during the preceding 

month, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring the Divestiture Assets, and 

shall describe in detail each contact 

with any such person. The trustee shall 

maintain full records of all efforts made 

to divest the Divestiture Assets. 

G. If the trustee has not accomplished 

such divestiture within six months after 

its appointment, the trustee shall 

promptly file with the Court a report 

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

accomplish the required divestiture; (2) 

the reasons, in the trustee’s judgment, 

why the required divestiture has not 

been accomplished; and (3) the trustee’s 

recommendations. To the extent such 

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 the 

plaintiff, who shall have the right to 

make additional recommendations 

consistent with the purpose of the trust. 

The Court thereafter shall enter such 

orders as it shall deem appropriate to 

carry out the purpose of the Final 

Judgment, which may, if necessary, 

include extending the trust and the term 

of the trustee’s appointment by a period 

requested by the United States. 

VI. Notice of Proposed Divestiture 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, Cemex or the 

trustee, whichever is then responsible 

for effecting the divestiture required 

herein, shall notify the United States of 

any proposed divestiture required by 

Section IV or V ofthis Final Judgment. 

If the trustee is responsible, it shall 

similarly notify Cemex. The notice shall 

set forth the details of the proposed 

divestiture and list the name, address, 

and telephone number of each person 

not previously identified who offered or 

expressed an interest in or desire to 

acquire any ownership interest in the 

Divestiture Assets, together with full 

details of the same. 

B. Within fifteen (15) calendar days of 

receipt by the United States of such 

notice, the United States may request 

from Cemex, the proposed Acquirer or 

Acquirers, any other third party, or the 

trustee, if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer or 

Acquirers, and any other potential 

Acquirer. Cemex and the trustee shall 

furnish any additional information 

requested within fifteen (15) calendar 

days of the receipt of the request, unless 

the parties shall otherwise agree. 

c. Within thirty (30) calendar days 

after receipt of the notice, or within 

twenty (20) calendar days after the 

United States has been provided the 

additional information requested from 

Cemex, the proposed Acquirer or 

Acquirers, any third party, or the 

trustee, whichever is later, the United 

States shall provide written notice to 

Cemex and the trustee, if there is one, 

stating whether or not it objects to the 

proposed divestiture. If the United 

States provides written notice that it 

does not object, the divestiture may be 

consummated, subject only to Cemex’s 

limited right to object to the sale under 

paragraph V(C) of this Final Judgment. 

Absent written notice that the United 

States does not object to the proposed 

Acquirer or upon objection by the 

United States, a divestiture proposed 

under Section IV or Section V shall not 

be consummated. Upon objection by 

Cemex under paragraph V(C), a 

divestiture proposed under Section V 

shall not be consummated unless 

approved by the Court. 

VII. Financing 

Cemex shall not finance all or any 

part of any purchase by an Acquirer of 

any Divestiture Asset pursuant to 

Section IV or V of this Final Judgment. 

VIII. Hold Separate 

Until the divestiture required by this 

Final Judgment has been accomplished, 

Cemex shall take all steps necessary to 

comply with the Amended Hold 

Separate Stipulation and Order entered 

by this Court. Cemex shall take no 

action that would jeopardize the 

divestiture ordered by this Court. 


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IX. Affidavits 

A. Within twenty (20) calendar days 

of the Divestiture Trigger, and every 

thirty (30) calendar days thereafter until 

the divestitures have been completed 

under Section IV or V, Cemex shall 

deliver to the United States an affidavit 

as to the fact and manner of its 

compliance with Section IV or V of this 

Final Judgment. Each such affidavit 

shall include the name, address, and 

telephone number of each person who, 

during the preceding thirty days, made 

an offer to acquire, expressed an interest 

in acquiring, entered into negotiations 

to acquire, or was contacted or made an 

inquiry about acquiring, any interest in 

the Divestiture Assets, and shall 

describe in detail each contact with any 

such person during that period. Each 

such affidavit shall also include a 

description of the efforts Cemex has 

taken to solicit buyers for the 

Divestiture Assets, and to provide 

required information to any prospective 

Acquirer, including the limitations, if 

any, on such information. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States to information provided 

by Cemex, including limitations on the 

information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Amended Complaint 

in this matter, Cemex shall deliver to 

the United States an affidavit that 

describes in reasonable detail all actions 

Cemex has taken and all steps Cemex 

has implemented on an ongoing basis to 

comply with Section VIII of this Final 

Judgment. Cemex shall deliver to the 

United States an affidavit describing any 

changes to the efforts and actions 

outlined in Cemex’s earlier affidavits 

filed pursuant to this section within 

fifteen (15) calendar days after the 

change is implemented. 

C. Cemex shall keep all records of all 

efforts made to preserve and divest the 

Divestiture Assets until one year after 

such divestitures have been completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

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 Cemex, be 

permitted: 

1. Access during Cemex’s office hours 

to inspect and copy, or at plaintiff’s 

option, to require Cemex to provide 

copies of, all books, ledgers, accounts, 

records and documents in the 

possession, custody, or control of 

Cemex, relating to any matters 

contained in this Final Judgment; and 

2. To interview, either informally or 

on the record, Cemex’s officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

Cemex. 

B. Upon the written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, Cemex shall 

submit written reports or responses to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), 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 Cemex to 

the United States, Cemex represents and 

identifies in writing the material in any 

such information or documents to 

which a claim of protection may be 

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

Federal Rules of Civil Procedure, and 

Cemex marks each pertinent page of 

such material, ‘‘Subject to claim of 

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

Federal Rules of Civil Procedure,’’ then 

the United States shall give Cemex ten 

(10) calendar days notice prior to 

divulging such material in any legal 

proceeding (other than a grand jury 

proceeding). 

XI. No Reacquisition 

Cemex may not reacquire any part of 

the Divestiture Assets during the term of 

this Final Judgment. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

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

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’ responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: lllll 

Court approval subject to procedures of the 

Antitrust Procedures and Penalties Act, 15 

U.S.C. § 16. 

lllllllllllllllllllll

United States District Judge. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Cemex, S.A.B. de C.V. and Rinker Group 

Limited, Defendants. 

Case No.: 1:07–cv–00640. 

Judge: Hon. Royce C. Lamberth. 

Deck Type: Antitrust. 

Date Stamped: 

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 

The United States filed a civil 

antitrust Complaint on April 4, 2007, 

seeking to obtain equitable and other 

relief against defendant Cemex, S.A.B. 

de C.V. (‘‘Cemex’’) to prevent its 

proposed acquisition of defendant 

Rinker Group Limited (‘‘Rinker’’) by 

hostile cash tender offer. The Complaint 

alleges that the likely effect of this 

acquisition would be to lessen 

competition substantially in the 

production and distribution of ready 

mix concrete in certain areas of Florida 


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1Paragraph VIII(B) of the original proposed Final 

Judgment provided that if Cemex and Rinker 

subsequently reached an agreement relating to 

Cemex’s acquisition of Rinker, Cemex would 

require Rinker to sign and become a party to an 

amended Hold Separate Stipulation and Order. 

2 In addition, Paragraph VIII(B) of the original 

proposed Final Judgment was deleted in the 

amended Final Judgment because Rinker has been 

added to the Amended Hold Separate Stipulation 

and Order. There were no other substantive changes 

to the Amended Complaint or amended proposed 

Final Judgment. 

and Arizona, of concrete block in 

certain areas of Florida, and of aggregate 

in Tucson, Arizona, in violation of 

Section 7 of the Clayton Act. This loss 

of competition would likely result in 

higher prices for these products in the 

affected areas. At the same time the 

Complaint was filed, the United States 

filed a Hold Separate Stipulation and 

Order and a proposed Final Judgment, 

which were designed to eliminate the 

anticompetitive effects of the 

acquisition. 

Subsequently, on April 9, 2007, 

Cemex signed an agreement with 

Rinker, pursuant to which, among other 

things, Cemex agreed to increase its 

offer price for the shares of Rinker stock 

and the Rinker Board of Directors agreed 

to recommend to its shareholders that 

they accept Cemex’s increased offer. 

Accordingly, on May 2, 2007, the 

United States filed an Amended 

Complaint adding Rinker as a defendant 

and an Amended Hold Separate 

Stipulation and Order that obligated 

Rinker to abide by the terms of that 

Stipulation and Order.1 Finally, the 

United States filed an amended 

proposed Final Judgment (hereafter, the 

‘‘proposed Final Judgment’’), reflecting 

the fact that Rinker is a defendant in 

this action.2

Under the proposed Final Judgment, 

which is explained more fully below, 

Cemex is required to divest 31 ready 

mix concrete plants in the metropolitan 

areas of Fort Walton Beach/Panama 

City/Pensacola, Jacksonville, Orlando, 

Tampa/St. Petersburg, and Fort Myers/ 

Naples, Florida, and the metropolitan 

areas of Flagstaff and Tucson, Arizona. 

In addition, Cemex is required to divest 

six concrete block plants in the Tampa/ 

St. Petersburg and Fort Myers/Naples, 

Florida metropolitan areas and two 

aggregate plants in the Tucson, Arizona 

metropolitan area. Under the terms of 

the Amended Hold Separate Stipulation 

and Order, Cemex and Rinker are 

required to: (1) Take certain steps to 

ensure that the plants discussed above 

(hereafter, the ‘‘Divestiture Assets’’) are 

operated as ongoing, economically 

viable competitive businesses; (2) 

maintain the management, sales, and 

operations of all assets owned by each 

entirely separate, distinct, and apart 

from the assets owned by the other; and 

(3) refrain from coordinating the 

production, marketing, or terms of sale 

of any of their products with those 

produced or distributed by any assets 

owned by the other defendant prior to 

the acquisition. 

The United States, Cemex, and Rinker 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APP A. 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 

Cemex and Rinker both produce and 

distribute building materials, including, 

among other things, ready mix concrete, 

aggregate, and concrete block 

throughout the world. Cemex is 

organized under the laws of the United 

Mexican States with its principal place 

of business in Nuevo Leo ́n, Mexico. In 

2006, Cemex reported total sales of 

approximately $24.6 billion. Cemex is 

the largest United States supplier of 

ready mix concrete and cement and the 

seventh largest United States supplier of 

aggregate. Approximately 25 percent of 

Cemex’s revenues are earned in the 

United States. Cemex operates in the 

United States through its wholly-owned 

subsidiary, Cemex, Inc., which has its 

principal place of business in Houston, 

Texas. 

Rinker is organized under the laws of 

Australia with its principal place of 

business in Chatswood, Australia. In 

2006, Rinker reported total sales of 

approximately $4 billion. Rinker is the 

second largest United States supplier of 

ready mix concrete and the fifth largest 

United States supplier of aggregate. 

Approximately 80 percent of Rinker’s 

revenues are earned in the United 

States. Rinker operates in the United 

States through its subsidiary, Rinker 

Materials Corporation. Rinker Materials 

Corporation has its principal place of 

business in West Palm Beach, Florida. 

On October 27, 2006, Cemex Australia 

Pty Ltd., an entity controlled by Cemex, 

initiated a hostile cash tender offer to 

acquire all of the outstanding shares of 

Rinker for $13 per share. The total 

enterprise value of the transaction when 

made on October 27, 2006, including 

Rinker’s debt, was approximately $12 

billion. This offer was due to expire on 

March 30, 2007, but Cemex extended it 

until April 27, 2007. 

On April 9, 2007, Cemex announced 

that it signed an agreement with Rinker, 

pursuant to which Cemex agreed to 

increase its offer price for the shares of 

Rinker stock to $15.85 per share. This 

increased the total enterprise value of 

the transaction to approximately $15 

billion. This offer expired on May 18, 

2007, and is subject to Cemex’s 

acquisition of 90 percent of the Rinker 

shares. As part of the agreement, the 

Rinker Board of Directors unanimously 

agreed to recommend to its shareholders 

that they accept Cemex’s increased offer 

in the absence of a superior proposal. 

B. The Competitive Effects of the 

Transaction on the Markets for Ready 

Mix Concrete, Concrete Block, and 

Aggregate 

1. Relevant Product Markets 

a. Production, Distribution, and Sale of 

Ready Mix Concrete 

The Amended Complaint alleges that 

the production, distribution, and sale of 

ready mix concrete for use in large 

projects is a relevant product market 

within the meaning of Section 7 of the 

Clayton Act. Ready mix concrete is a 

building material made up of a 

combination of cement, fine and coarse 

aggregate, small amounts of chemical 

additives, and water. Ready mix 

concrete is unique because it is pliable 

when freshly mixed, can be molded into 

a variety of forms, and is strong and 

permanent when hardened. For many 

building applications, there is no 

substitute for ready mix concrete. 

Ready mix concrete is sold pursuant 

to bids, which are based on extensive 

specifications from the customer 

regarding, among other things, the 

amount of concrete, the various 

strengths of concrete, and the size and 

timing of the concrete pours. Not all 

suppliers of ready mix concrete can 

service every kind of project. For 

example, servicing certain types of large 

projects, such as large state department 

of transportation highway and bridge 

building projects and high-rise building 

projects, requires ready mix concrete 

suppliers to be able to provide: (a) A 

large number of cubic yards of concrete; 

(b) large daily pours of concrete, which 

require the concrete supplier to 

schedule trucks to arrive continuously 

at a project; (c) concrete having multiple 

pounds per square inch specifications; 

and (d) tests to ensure that the concrete 

meets project engineering specifications. 

If the concrete does not meet the project 

specifications or the concrete is not 

poured continuously, the customer may 

suffer direct and consequential losses as 


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a result of defective concrete. 

Purchasers of ready mix concrete for 

such large projects require that the 

suppliers have: (a) Multiple ready mix 

concrete plants in a geographic area; (b) 

the ability to produce large amounts of 

concrete with multiple specifications; 

(c) backup plants; (d) a large number of 

concrete trucks; (e) a sizeable and welltrained workforce; (f) the demonstrated 

ability to service such a large project; 

and (g) considerable financial backing to 

remedy any problems relating to 

defective concrete. 

Each large project is bid separately 

and ready mix concrete suppliers can 

identify the specific market conditions 

that apply to each large project, 

including the number of competitors 

that potentially could service the 

project’s requirements. Ready mix 

concrete suppliers can and do charge 

different prices to customers based on 

the particular project’s requirements 

and market conditions. 

The Amended Complaint alleges that 

a small but significant post-acquisition 

increase in the price of ready mix 

concrete that meets particular bid 

specifications would not cause the 

purchasers of ready mix concrete for 

large projects to substitute another 

building material in sufficient 

quantities, or to utilize a supplier of 

ready mix concrete without the 

characteristics described above with 

sufficient frequency, so as to make such 

a price increase unprofitable. 

Accordingly, the production, 

distribution, and sale of ready mix 

concrete for use in large projects is a 

line of commerce and a relevant product 

market. 

b. Concrete Block 

The Amended Complaint alleges that 

concrete block is a relevant product 

market within the meaning of Section 7 

of the Clayton Act in the state of Florida 

from Orlando south. Concrete block is a 

construction material used to build 

exterior and interior walls in residential 

and commercial structures. In the state 

of Florida, from Orlando south, the 

walls of residential structures are built 

almost exclusively with concrete block. 

For nearly all residential construction 

applications in this area, a small but 

significant post-acquisition increase in 

the price of concrete block would not 

cause the purchasers of concrete block 

to substitute another product such as 

poured concrete or polyurethane block 

in sufficient quantities so as to make 

such a price increase unprofitable. 

Accordingly, within the state of Florida, 

from Orlando south, concrete block is a 

relevant product market. 

c. Aggregate 

The Amended Complaint alleges that 

the production and distribution of 

aggregate that meets specifications set 

by state departments of transportation 

and the American Society of Testing 

Materials for use in ready mix concrete 

and asphalt projects is a relevant 

product market within the meaning of 

Section 7 of the Clayton Act. Aggregate 

is rock mined from either quarries or 

pits that is crushed, washed, and mixed 

with sand, cement, and water to 

produce ready mix concrete. It is also 

used to make asphalt concrete for use in 

building roads. Different sizes of rock 

are needed to meet different concrete 

and asphalt specifications. There are no 

substitutes for aggregate because it 

differs from other types of stone 

products in its physical composition, 

functional characteristics, customary 

uses, and pricing. It must meet 

specifications of state departments of 

transportation or the American Society 

of Testing Materials for the specific type 

of asphalt or ready mix concrete being 

produced. The Amended Complaint 

further alleges that a small but 

significant post-acquisition increase in 

the price of aggregate that meets such 

specifications for use in ready mix 

concrete and asphalt projects would not 

cause the purchasers of aggregate to 

substitute another product in sufficient 

quantities so as to make such a price 

increase unprofitable. Accordingly, the 

production and distribution of aggregate 

that meets specifications of state 

departments of transportation or the 

American Society of Testing Materials 

for use in ready mix concrete and 

asphalt projects is a relevant product 

market. 

2. Relevant Geographic Markets 

a. Ready Mix Concrete 

The ready mix concrete needed for 

large projects, such as highways, 

bridges, and high-rise buildings, is bid 

on a project-by-project basis. Ready mix 

concrete suppliers can identify the 

specific market conditions that apply to 

each project, including the number of 

competitors that potentially could 

service the location of the project. Ready 

mix concrete suppliers charge different 

prices to customers based on the 

particular location of a project. 

The suppliers with the ability to bid 

on large projects are those with plants 

located within the metropolitan area in 

which the project is located. The cost of 

transporting ready mix concrete is high 

compared to the value of the product. 

As concrete is hauled greater distances, 

the transportation costs begin to 

diminish the profitability of a load of 

concrete. Therefore, suppliers attempt to 

stay close to their batch plants to 

minimize the cost of hauling concrete. 

Further, because concrete begins to 

set while being driven to the job site, it 

is highly perishable. Therefore, 

contractors and state departments of 

transportation typically limit the time 

concrete can spend in a truck to 90 

minutes or less. Of this 90-minute 

window, contractors and state 

departments of transportation typically 

allow only a portion—often only 30 

minutes—to be consumed by driving 

time. 

Due to its perishability and the cost of 

hauling concrete, depending on the size 

of the city and the associated traffic, the 

distance concrete can reasonably be 

transported for large projects, such as 

highways, bridges, and high-rise 

buildings in a metropolitan area, is 

limited to the metropolitan area and, in 

many cases, to only portions of that 

area. Accordingly, the relevant markets 

consist of the locations within the 

metropolitan areas of Fort Walton 

Beach/Panama City/Pensacola, 

Jacksonville, Orlando, Tampa/St. 

Petersburg, and Fort Myers/Naples, 

Florida, and the metropolitan areas of 

Flagstaff and Tucson, Arizona, to which 

Cemex and Rinker are among a small 

number of firms that compete to supply 

ready mix concrete. 

b. Concrete Block 

The cost of transporting concrete 

block is high compared to the value of 

the product. Manufacturers or thirdparty haulers deliver concrete block to 

customer job sites by truck. As delivery 

distance increases, the ratio of 

transportation costs to the price of 

concrete block increases. In urban areas, 

this ratio most often confines the 

transport of concrete block to the 

metropolitan area. 

The Amended Complaint alleges that 

a small but significant post-acquisition 

increase in the price of concrete block 

in either the metropolitan Tampa/St. 

Petersburg area or the metropolitan Fort 

Myers/Naples area would not cause 

customers of concrete block to procure 

concrete block from outside these areas 

in sufficient quantities so as to make 

such a price increase unprofitable. 

Accordingly, metropolitan Tampa/St. 

Petersburg and metropolitan Fort 

Myers/Naples are relevant geographic 

markets. 

c. Aggregate 

Aggregate is a bulky, heavy, and 

relatively low-cost product. The cost of 

transporting aggregate is high compared 

to the value of the product. Suppliers 

cannot economically transport aggregate 


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to the Tucson area from locations 

outside of metropolitan Tucson. First, 

transportation costs limit the distance 

aggregate can be economically 

transported from an aggregate pit to a 

ready mix concrete plant (for aggregate 

pits that are not co-located with ready 

mix concrete plants) or from an 

aggregate pit to the job site. In 

metropolitan Tucson, the ready mix 

concrete plants are typically co-located 

with the aggregate pits to minimize 

transportation costs. Second, the 

location of other aggregate suppliers 

limits the distance that aggregate can 

economically travel. 

The Amended Complaint alleges that 

a small but significant post-acquisition 

increase in the price of aggregate in 

metropolitan Tucson would not cause 

customers of aggregate to procure 

aggregate in sufficient quantities from 

outside this area so as to make such a 

price increase unprofitable. 

Accordingly, metropolitan Tucson is a 

relevant geographic market. 

3. Anticompetitive Effects of the 

Acquisition 

a. Ready Mix Concrete 

The Amended Complaint alleges that 

the proposed acquisition will eliminate 

competition between Cemex and Rinker 

and reduce the number of suppliers of 

ready mix concrete that might bid on 

certain types of large projects, such as 

highways, bridges, and high-rise 

buildings, from three to two in 

metropolitan Tampa/St. Petersburg and 

metropolitan Fort Walton Beach/ 

Panama City/Pensacola, Florida, and in 

metropolitan Tucson, Arizona. The 

proposed acquisition will eliminate the 

competition between Cemex and Rinker 

and reduce the number of suppliers of 

ready mix concrete that might bid on 

certain types of large projects, such as 

highways, bridges, and high-rise 

buildings, from four to three generally, 

and in some areas or for some projects 

from three to two, in metropolitan 

Orlando, metropolitan Fort Myers/ 

Naples, and metropolitan Jacksonville, 

Florida. Accordingly, the Amended 

Complaint alleges that the proposed 

acquisition will substantially increase 

the likelihood that Cemex will 

unilaterally increase the price of ready 

mix concrete to a significant number of 

customers in the affected metropolitan 

areas. Moreover, in metropolitan 

Flagstaff, Arizona, the proposed 

acquisition will reduce the number of 

suppliers of ready mix concrete that 

might bid on certain types of large 

projects, such as highways, bridges, and 

high-rise buildings, to only one. 

Absent the constraint of competition 

between Cemex and Rinker, postacquisition Cemex will have a greater 

ability to exercise market power by 

raising prices to customers for whom 

Rinker and Cemex were their closest 

and second-closest sources of ready mix 

concrete. The responses of other ready 

mix concrete producers in the relevant 

areas would not be sufficient to 

constrain a unilateral exercise of market 

power by Cemex after the acquisition. 

Further, Cemex’s elimination of 

Rinker as an independent competitor in 

the production and distribution of ready 

mix concrete is likely to facilitate 

anticompetitive coordination among the 

remaining producers that can bid on 

large projects in each relevant 

geographic market. Mixes of the same 

strength of concrete are relatively 

standard and homogeneous, and 

producers have access to information 

about competitors’ output, capacity, and 

pricing. Moreover, participants in ready 

mix markets have successfully engaged 

in anticompetitive coordination in the 

past. Given these market conditions, 

eliminating one of the few ready mix 

concrete suppliers that can bid on large 

projects is likely to increase further the 

ability of the remaining competitors to 

coordinate successfully. 

Successful entry or expansion into the 

production and distribution of ready 

mix concrete for large projects is 

difficult, time-consuming, and costly. In 

order to be able to bid on large projects, 

such as highways, bridges, and high-rise 

buildings, it is not sufficient simply to 

be able to produce ready mix concrete. 

A new entrant or an existing producer 

must have multiple ready mix concrete 

plants in a geographic area, the ability 

to produce large amounts of concrete 

with multiple specifications, backup 

plants, a large number of concrete 

trucks, a sizeable and well trained 

workforce, the demonstrated ability and 

reputation to be able to service such a 

large project, and considerable financial 

backing to remedy any problems 

relating to defective concrete. 

In addition, opening a ready mix 

concrete batch plant in a metropolitan 

area is difficult because of the need to 

acquire the land for the site of such a 

batch plant. The location of a batch 

plant is important because of the 

perishability of the ready mix concrete. 

In Florida, batch plants typically require 

approximately three to five acres of land 

to comply with environmental and land 

use regulations. Finding the appropriate 

site for such a plant close enough to the 

large projects is difficult, because in 

metropolitan areas such land is already 

utilized or does not have the 

appropriate zoning. Obtaining the land 

use permits or zoning variances is 

difficult, costly, and time-consuming, as 

well. Furthermore, in addition to 

building the new batch plant, an entrant 

would also have to secure sources of 

cement and aggregate, which are inputs 

into ready mix concrete. Accordingly, 

entry or expansion by any other firm so 

that it is able to bid on large ready mix 

concrete projects will not be timely, 

likely, or sufficient to deter an 

anticompetitive price increase by Cemex 

after the acquisition. 

b. Concrete Block 

In metropolitan Tampa/St. Petersburg 

and metropolitan Fort Myers/Naples, 

Florida, the acquisition will eliminate 

competition between Cemex and Rinker. 

The acquisition will give Cemex control 

of approximately 60 percent of the 

concrete block capacity in metropolitan 

Tampa/St. Petersburg, and 

approximately 69 percent of the 

concrete block capacity in metropolitan 

Fort Myers/Naples. The acquisition will 

substantially increase the likelihood 

that Cemex will unilaterally increase the 

price of concrete block to a significant 

number of customers in metropolitan 

Tampa/St. Petersburg and metropolitan 

Naples/Fort Myers. The responses of 

other concrete block producers in the 

relevant areas would not be sufficient to 

constrain a unilateral exercise of market 

power by Cemex after the acquisition. In 

addition, without the constraint of 

competition between Cemex and Rinker, 

post-acquisition Cemex will have a 

greater ability to exercise market power 

by raising prices to customers for whom 

Rinker and Cemex were their closest 

and second-closest sources of concrete 

block supply. 

Further, Cemex’s elimination of 

Rinker as an independent competitor in 

the production and distribution of 

concrete block is likely to facilitate 

anticompetitive coordination among the 

remaining concrete block producers in 

each relevant geographic market. 

Concrete block is a homogeneous 

commodity and producers have access 

to information about competitors’

output, capacity, and costs. Given these 

market conditions, eliminating one of 

the few concrete block competitors is 

likely to increase further the ability of 

the remaining competitors to coordinate 

successfully. 

Moreover, in metropolitan Tampa/St. 

Petersburg and metropolitan Fort 

Myers/Naples, successful entry or 

expansion into the production and 

distribution of concrete block is 

difficult, time-consuming, and costly, 

and such entry would not be timely, 

likely, or sufficient to defeat an 

anticompetitive price increase in the 


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event that Cemex acquires Rinker. 

Properly zoned parcels of land of the 

necessary size are scarce. Locating or 

securing proper zoning, development, 

building, air quality, and environmental 

permits and building a concrete block 

plant can take more than two years. 

Building a new concrete block plant 

costs approximately $8 to $12 million. 

Accordingly, entry or the threat of entry 

into the concrete block market is not 

likely to deter an anticompetitive price 

increase by Cemex after the acquisition. 

c. Aggregate 

In metropolitan Tucson, the proposed 

acquisition will eliminate competition 

between Cemex and Rinker. The 

proposed acquisition will also reduce 

the number of significant suppliers of 

aggregate from five to four in the market 

generally, and, in some locations for 

which the third or fourth most 

proximate supplier faces higher 

transportation costs than the nearest 

two, the number of suppliers could be 

reduced to as few as two or three. The 

acquisition will substantially increase 

the likelihood that Cemex will 

unilaterally increase the price of 

aggregate to a significant number of 

customers. 

Moreover, Cemex’s elimination of 

Rinker as an independent competitor in 

the production and distribution of 

aggregate is likely to facilitate anticompetitive coordination among the 

remaining aggregate producers in 

Tucson. Aggregate is a homogeneous 

commodity and producers have access 

to information about competitors’

output, capacity, and costs. Given these 

market conditions, eliminating one of 

the few aggregate competitors is likely 

to increase further the ability of the 

remaining competitors to coordinate 

successfully. 

Further, in Tucson, successful entry 

or expansion into the production and 

distribution of aggregate is difficult, 

time-consuming, and costly, and such 

entry would not be timely, likely, or 

sufficient to defeat an anticompetitive 

price increase in the event that Cemex 

acquires Rinker. There are few new sites 

on which to locate aggregate pits in 

metropolitan Tucson. First, for aggregate 

used on transportation projects, the 

aggregate pits must be located in a river 

bed or wash. Second, aggregate is a 

finite resource in metropolitan Tucson, 

and several aggregate pits have been 

depleted in the past several years. 

Third, requests to open new aggregate 

pits often face fierce public opposition. 

Fourth, obtaining the necessary 

environmental and land use permits for 

aggregate pits is difficult in 

metropolitan Tucson. Fifth, the Arizona 

Aggregate Mine Reclamation Act 

requires financial assurances and other 

requirements for companies seeking to 

open a new aggregate pit, continuing to 

operate an existing pit, or expanding an 

existing pit. Accordingly, entry or the 

threat of entry into the aggregate market 

is not likely to deter an anticompetitive 

price increase by Cemex after the 

acquisition. 

III. Explanation of the Proposed Final 

Judgment 

A. The Divestiture Assets 

The divestitures provided for in the 

proposed Final Judgment will eliminate 

the anticompetitive effects of the 

acquisition in the markets for the 

production and distribution of: (1) 

Ready mix concrete in the metropolitan 

areas of Fort Walton Beach/Panama 

City/Pensacola, Jacksonville, Orlando, 

Tampa/St. Petersburg, and Fort Myers/ 

Naples, Florida, and the metropolitan 

areas of Flagstaff and Tucson, Arizona; 

(2) concrete block in the metropolitan 

areas of Tampa/St. Petersburg and Fort 

Myers/Naples, Florida; and (3) aggregate 

in metropolitan Tucson, Arizona. In 

each metropolitan area for ready mix 

concrete, the divestitures will establish 

a new, independent, and economically 

viable competitor that can bid on large 

projects, such as highways, bridges, and 

high-rise buildings. In metropolitan 

Tampa/St. Petersburg and Fort Myers/ 

Naples, the divestitures will also 

establish new, independent, and 

economically viable competitors that 

can produce and distribute concrete 

block. Further, the divestitures will 

provide the new ready mix concrete 

competitor in Tucson, Arizona, with 

sufficient aggregate reserves to compete 

effectively in that market. 

The Divestiture Assets are: 

A. Ready mix concrete plants: 

1. Fort Walton Beach/Panama City/ 

Pensacola, Florida Area 

a. Rinker’s Crestview plant, located at 

5420 Fairchild Road, Crestview, FL 

32539; 

b. Rinker’s Fort Walton plant, located 

at 1787 FIM Boulevard, Fort Walton 

Beach, FL 32547; 

c. Rinker’s Milton plant, located at 

6250 Da Lisa Road, Milton, FL 32583; 

d. Rinker’s Panama City plant, located 

at 1901–B East 15th Street, Panama City, 

FL 32405; 

e. Rinker’s Panama City Beach plant, 

located at 17750 Hutchinson Road, 

Panama City Beach, FL 32407; 

f. Rinker’s Pensacola plant, located at 

415 Hyatt Street, Pensacola, FL 32503; 

g. Rinker’s Port St. Joe plant, located 

at 1145 Industrial Road, Port St. Joe, FL 

32456; 

h. Rinker’s Point Washington plant, 

located at the intersection of East 

Highway 98 and Old Ferry Road, Santa 

Rosa Beach, FL 32459; 

2. Jacksonville, Florida Area 

a. Cemex’s Main Street plant, located 

at 9214 North Main Street, Jacksonville, 

FL 32218; 

b. Cemex’s Southside Florida Mining 

Boulevard plant, located at 9715 East 

Florida Mining Boulevard, Jacksonville, 

FL 32223; 

3. Orlando, Florida Area 

a. Cemex’s East Orlando plant, located 

at 7400 Narcoossee Road, Orlando, FL 

32822; 

b. Cemex’s Goldenrod plant, located 

at 4000 Forsyth Road, Winter Park, FL 

32792; 

c. Cemex’s Winter Garden plant, 

located at 201 Hennis Road, Winter 

Garden, FL 34787; 

d. Rinker’s Kennedy plant, located at 

1406 Atlanta Avenue, Orlando, FL 

32806; 

4. Tampa/St. Petersburg, Florida Area 

a. Rinker’s Clearwater plant, located 

at 3757 118th Avenue North, 

Clearwater, FL 33762; 

b. Rinker’s Odessa plant, located at 

12025 State Road 54, Odessa, FL 33556; 

c. Rinker’s Odessa Keys plant, located 

at 11913 State Road 54, Odessa, FL 

33556; 

d. Rinker’s Riverview plant, located at 

6723 South 78th Street, Riverview, FL 

33569; 

e. Rinker’s Tampa plant, located at 

6106 East Hanna Avenue, Tampa, FL 

33610; 

f. Rinker’s Tampa Keys plant, located 

at 1811 North 57th Street, Tampa, FL 

33619; 

5. Fort Myers/Naples, Florida Area 

a. Rinker’s Ave Maria plant, located at 

4811 Ave Maria Boulevard, Immokalee, 

FL 34142; 

b. Rinker’s Bonita Springs plant, 

located at 25061 Old U.S. Highway 41 

South, Bonita Springs, FL 34135; 

c. Rinker’s Canal Street plant, located 

at 4262 Canal Street, Fort Myers, FL 

33916; 

d. Rinker’s Cape Coral (Pine Island) 

plant, located at 2401 SW Pine Island 

Road, Cape Coral, FL 33991; 

e. Rinker’s Naples plant, located at 

9210 Collier Boulevard, Naples, FL 

34114; 

f. Rinker’s South Fort Myers plant, 

located at 7270 Alico Road, Fort Myers, 

FL 33912; 


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3 In this matter, the proposed Final Judgment 

provides that Cemex has 120 days after the 

Divestiture Trigger to accomplish the divestitures 

because they involve multiple geographic markets 

and several different types of assets. During the 

period before Cemex effectuates the divestitures, 

the Amended Hold Separate Stipulation and Order 

will preserve the assets to be divested and require 

that each defendant continue to operate its assets 

separately from the other’s assets, thereby 

maintaining competition. 

6. Flagstaff, Arizona Area 

Cemex’s Brannen plant, located at 633 

East Brannen Avenue, Flagstaff, AZ 

86001; 

7. Tucson, Arizona Area 

a. Cemex’s Ina plant, located at 5400 

West Massingale Road, Tucson, AZ 

85743; 

b. Rinker’s Green Valley plant, located 

at 18701 South Old Nogales Highway, 

Sahuarita, AZ 85629; 

c. Rinker’s Poorman Road plant, 

located at 6500 South Old Spanish 

Trail, Tucson, AZ 85747; 

d. Rinker’s Valencia plant, located at 

1011 West Valencia Road, Tucson, AZ 

85706; 

B. Concrete Block plants: 

1. Tampa/St. Petersburg, Florida Area 

a. Rinker’s Odessa plant, located at 

12025 State Road 54, Odessa, FL 33556; 

b. Rinker’s Palmetto plant, located at 

600 9th Street West, Palmetto, FL 34221; 

c. Rinker’s Tampa plant, located at 

6302 North 56th Street, Tampa, FL 

33610; 

2. Fort Myers/Naples, Florida Area 

a. Rinker’s Bonita Springs plant, 

located at 25091 Old U.S. Highway 41 

South, Bonita Springs, FL 34135; 

b. Rinker’s Coral Rock plant, located 

at 41451 Cook Brown Road, Punta 

Gorda, FL 33982; 

c. Rinker’s South Fort Myers plant, 

located at 7270 Alico Road, Fort Myers, 

FL 33912; 

C. Aggregate plants: 

1. Cemex’s Ina plant, located at 5400 

West Massingale Road, Tucson, AZ 

85743; and 

2. Rinker’s Green Valley plant, located 

at 18701 South Old Nogales Highway, 

Sahuarita, AZ 85629. 

The sale of the Divestiture Assets 

according to the terms of the proposed 

Final Judgment will ensure that Cemex’s 

acquisition does not harm competition 

in any of the affected geographic areas 

for ready mix concrete, concrete block, 

and aggregate. In the following 

geographic areas, Cemex is required to 

divest all of the ready mix concrete 

plants it would acquire from Rinker: 

Fort Walton Beach/Panama City/ 

Pensacola, Tampa/St. Petersburg, and 

Fort Myers/Naples, Florida. In addition, 

in Tampa/St. Petersburg and Fort/ 

Myers/Naples, Florida, Cemex is 

required to divest all of the concrete 

block plants it would acquire from 

Rinker. Further, in Flagstaff, Arizona, 

Cemex is required to divest its only 

ready mix concrete plant and will 

acquire only one ready mix concrete 

plant from Rinker. 

In the other three metropolitan areas 

of concern, the proposed Final 

Judgment requires divestiture of a 

sufficient number of ready mix concrete 

plants to ensure that competition is 

preserved. In metropolitan Orlando, 

Florida, Cemex operates five plants and 

Rinker operates four plants. The 

proposed Final Judgment requires the 

divestiture of four plants: (1) Three 

Cemex plants located northwest, 

northeast, and southeast of downtown 

Orlando; and (2) one Rinker plant 

located in downtown Orlando. With 

these four plants, the acquirer will be 

able to service large projects anywhere 

in metropolitan Orlando, and for each of 

the divested plants, another of those 

plants could serve as an effective backup facility. The proposed Final 

Judgment does not require the 

divestiture of Cemex’s downtown 

facility because it is co-located with one 

of Rinker’s two downtown facilities, and 

Cemex anticipates achieving efficiencies 

in raw material supply by retaining its 

plant and the downtown Rinker plant at 

the same location. 

Within the Jacksonville, Florida, 

metropolitan area, Cemex currently 

operates three plants and Rinker 

operates four plants. The proposed Final 

Judgment requires the divestiture of two 

of Cemex’s plants—one south of 

downtown and the other north. 

Together these two plants will be able 

to preserve pre-merger competition 

between Cemex and Rinker in 

Jacksonville. The proposed Final 

Judgment does not require the 

divestiture of Cemex’s downtown plant 

because Rinker has no plant in the 

downtown area, and the two plants to 

be divested can service the downtown 

area as or more effectively than Rinker’s 

plants. Moreover, Cemex’s downtown 

facility is co-located with a concrete 

block plant that Cemex will retain and 

a divestiture of the ready mix concrete 

facilities at that location would not 

allow Cemex to achieve efficiencies 

related to the co-location. 

In the Tucson, Arizona, metropolitan 

area, Cemex operates four ready mix 

concrete facilities and Rinker operates 

five. The proposed Final Judgment 

requires the divestiture of four ready 

mix concrete facilities: three Rinker 

facilities and one Cemex facility. This 

relief is adequate to preserve 

competition because it provides the 

acquirer with the same number of ready 

mix concrete facilities as Cemex 

operates and ensures that the acquirer 

will have access to supplies of 

aggregates needed to compete 

effectively. In particular, by requiring 

the divestiture of Cemex’s Ina plant 

instead of one of Rinker’s other two 

plants, and by separately requiring that 

all of the divested ready mix concrete 

plants be sold to the same acquirer that 

purchases Rinker’s aggregate facilities at 

Green Valley and Cemex’s aggregate 

facilities at Ina, the proposed Final 

Judgment will give the acquirer access 

to aggregates that is at least equivalent 

to that of Rinker. 

B. Selected Provisions of the Proposed 

Final Judgment 

In antitrust cases involving mergers in 

which the United States seeks a 

divestiture remedy, it requires 

completion of the divestiture within the 

shortest time period reasonable under 

the circumstances. A quick divestiture 

has the benefits of restoring competition 

lost in the acquisition and reducing the 

possibility of dissipation of the value of 

the assets. Paragraph (A) of the 

proposed Final Judgment requires 

Cemex to divest the Divestiture Assets 

as viable ongoing businesses within 120 

days after the Divestiture Trigger,3 or 

five days after notice of the entry of the 

Final Judgment by the Court, whichever 

is later. The Divestiture Trigger is the 

earlier of two dates: the date on which 

Cemex elects a majority of the Board of 

Directors of Rinker, or 45 days after 

Cemex obtains a number of shares of 

Rinker stock in excess of 50 percent of 

the outstanding shares of Rinker. The 

120-day time period to effectuate the 

divestitures begins to run from the 

Divestiture Trigger, rather than the filing 

of the Complaint, because the deal 

originally involved a hostile, cash 

tender offer. Cemex represented to the 

United States that under Australian law, 

it could not effectuate the divestitures 

until it had obtained in excess of 50 

percent of the outstanding Rinker shares 

and had elected a majority of Rinker’s 

Board of Directors. The Divestiture 

Trigger thus requires Cemex to start the 

120-day clock as soon as it elects a 

majority of the Rinker Board and can 

effectuate the divestitures, while 

establishing an outer time limit of 45 

days if Cemex obtains the majority of 

outstanding shares but delays electing a 

new Board. 

Given that the proposed transaction is 

a tender offer, the proposed Final 

Judgment contains provisions to ensure 

that relief will be effective. Paragraph 


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4Paragraph IV(H) does not apply to the Fort 

Walton Beach/Panama City/Pensacola area, where 

Cemex’s ready mix concrete assets are owned and 

operated through a joint venture between Cemex 

and Ready Mix USA, Inc. Accordingly, Cemex is 

not able unilaterally to sell any of its ready mix 

concrete plants in that area and it would be 

extremely difficult and costly for Cemex to 

terminate its interest in the joint venture. The 

United States determined that the benefit of 

requiring Cemex to terminate its interest in the joint 

venture or to make these assets available for sale 

would be significantly outweighed by the negative 

impact on the joint venture, which operates in a 

large number of areas that are unaffected by 

Cemex’s acquisition of Rinker. 

IV(J) of the proposed Final Judgment 

requires that Cemex divest all its 

interest in Rinker within six months 

from the date that the Final Judgment is 

signed by the Court if Cemex does not 

acquire a number of shares of Rinker 

stock in excess of 50 percent of the 

outstanding shares of Rinker. This 

provision ensures that if Cemex does 

not acquire a sufficient number of 

shares to effectuate the divestiture of the 

assets owned by Rinker prior to an 

acquisition by Cemex, then Cemex will 

not be permitted to own enough shares 

of Rinker to allow Cemex to have some 

form of control over Rinker even though 

it is unable to effectuate the divestitures. 

In addition, if for any reason Cemex 

is unable to divest any of the Divestiture 

Assets or make those assets available for 

sale by the trustee, or if Cemex cannot 

warrant that the Divestiture Assets will 

be operational on the date of the 

divestiture and that there are no 

material defects in the environmental, 

zoning, or other permits pertaining to 

the operation of the Divestiture Assets, 

paragraph IV(H) provides that for each 

affected asset, the United States, in its 

sole discretion, may select one or more 

alternative assets owned by Cemex that 

are located in the same geographic area 

to be divested in lieu of the affected 

Divestiture Asset.4 This provision is 

necessary to protect against a variety of 

situations in which a Divestiture Asset 

owned by Rinker prior to the acquisition 

by Cemex could not be divested. This 

will ensure that each acquirer has 

sufficient assets to be able to compete 

for the projects for which Cemex and 

Rinker currently compete. 

Further, paragraph IV(I) of the 

proposed Final Judgment provides that 

all the ready mix concrete plants in a 

geographic area must be divested to a 

single acquirer, all the concrete block 

plants in a geographic area must be 

divested to a single acquirer, and both 

aggregate plants in Tucson must be 

divested to the same acquirer that 

purchases the Tucson-area divested 

ready mix concrete plants. This 

provision ensures that Cemex’s 

acquisition does not harm competition 

in the affected product and geographic 

markets. 

Paragraph IV(I) of the proposed Final 

Judgment also provides that the assets 

must be divested in such a way as to 

satisfy the United States in its sole 

discretion that the operations can and 

will be operated by the purchaser as a 

viable, ongoing business that can 

compete effectively in the relevant 

market. Cemex must take all reasonable 

steps necessary to accomplish the 

divestitures quickly and shall cooperate 

with prospective purchasers. 

Finally, section V of the proposed 

Final Judgment provides that in the 

event that Cemex does not accomplish 

the divestitures within the periods 

prescribed in the proposed Final 

Judgment, the Court will appoint a 

trustee selected by the United States to 

effect the divestitures. If a trustee is 

appointed, the proposed Final Judgment 

provides that Cemex 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 divestitures 

are accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and the United States setting 

forth his or her efforts to accomplish the 

divestitures. If the divestitures have not 

been accomplished at the end of the six 

months, 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. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act (15 

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

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

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

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against the defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least sixty days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within sixty days of the 

date of publication of this Competitive 

Impact Statement in the Federal 

Register. All comments received during 

this period will be considered by the 

Department of Justice, which remains 

free to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of the 

United States will be filed with the 

Court and published in the Federal 

Register. 

Written comments should be 

submitted to: Maribeth Petrizzi, Chief, 

Litigation II Section, 1401 H St. NW., 

Suite 3000, Antitrust Division, United 

States Department of Justice, 

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 

proposed 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 Cemex’s acquisition 

of Rinker. The United States is satisfied, 

however, that the divestiture of assets 

described in the proposed Final 

Judgment will preserve competition for 

the production and distribution of ready 

mix concrete, concrete block, and 

aggregate in the markets identified by 

the United States and that such a 

remedy would achieve all or 

substantially all the relief the United 

States would have obtained through 

litigation, but avoids the time and 

expense of a trial. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The APPA requires that proposed 

consent judgments in antitrust cases 

brought by the United States be subject 

to a sixty-day comment period, after 


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5Cf. BNS, 858 F.2d at 463 (holding that the 

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

limited to approving or disapproving the consent 

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

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

overall picture not hypercritically, nor with a 

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

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

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

so inconsonant with the allegations charged as to 

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

which the Court shall determine 

whether entry of the proposed Final 

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

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

determination, the Court shall consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration or relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). As the 

United States Court of Appeals for the 

District of Columbia Circuit has held, 

under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s complaint, whether the 

decree is sufficiently clear, whether 

enforcement mechanisms are sufficient, 

and whether the decree may positively 

harm third parties. See United States v. 

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

(D.C. Cir. 1995). 

With respect to the adequacy of the 

relief secured by the decree, a court may 

not ‘‘engage in an unrestricted 

evaluation of what relief would best 

serve the public.’’ United States v. BNS, 

Inc., 858 F.2d 456, 462 (9th Cir. 1988) 

(citing United States v. Bechtel Corp., 

648 F.2d 660, 666 (9th Cir. 1981)); see 

also Microsoft, 56 F.3d at 1460–62. 

Courts have held that: 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).5 In making 

its public interest determination, a 

district court must accord due respect to 

the government’s prediction as to the 

effect of proposed remedies, its 

perception of the market structure, and 

its views of the nature of the case. 

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

(D.D.C. 2003). 

Court approval of a final judgment 

requires a standard that is more flexible 

and less strict than the standard 

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

proposed decree must be approved even 

if it falls short of the remedy the court 

would impose on its own, as long as it 

falls within the range of acceptability or 

is ‘within the reaches of public 

interest.‘‘ United States v. Am. Tel. & 

Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 

1982) (citations omitted) (quoting 

United States v. Gillette Co., 406 F. 

Supp. 713, 716 (D. Mass. 1975)), aff’d 

sub nom. Maryland v. United States, 

460 U.S. 1001 (1983); see also United 

States v. Alcan Aluminum Ltd., 605 F. 

Supp. 619, 622 (W.D. Ky. 1985) 

(approving the consent decree even 

though the court would have imposed a 

greater remedy). The Court ‘‘must 

accord deference to the government’s 

predictions about the efficacy of its 

remedies, and may not require that the 

remedies perfectly match the alleged 

violations because this may only reflect 

underlying weakness in the 

government’s case or concessions made 

during negotiation.’’ United States v. 

SBC Commc’ns, Inc., Nos. 05–2102 and 

05–2103, 200FWL 1020746, at *16 

(D.D.C. Mar. 29, 2007). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

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

‘‘the court is only authorized to review 

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

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. As this Court 

recently confirmed in SBC Commc’ns, 

courts ‘‘cannot look beyond the 

complaint in making the public interest 

determination unless the complaint is 

drafted so narrowly as to make a 

mockery of judicial power.’’ 2007 WL 

1020746, at *14. 

In 2004, Congress amended the APPA 

to ensure that courts take into account 

the above-quoted list of relevant factors 

when making a public interest 

determination. Compare 15 U.S.C. 16(e) 

(2004) with 15 U.S.C. 16(e)(1) (2006) 

(substituting ‘‘shall’’ for ‘‘may’’ in 

directing relevant factors for court to 

consider and amending list of factors to 

focus on competitive considerations and 

to address potentially ambiguous 

judgment terms). 

These amendments, however, did not 

change the fundamental role of courts in 

reviewing proposed settlements. To the 

contrary, Congress made clear its intent 

to preserve the practical benefits of 

utilizing consent decrees in antitrust 

enforcement, adding the unambiguous 

instruction ‘‘[n]othing in this section 

shall be construed to require the court 

to conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2). This 

language codified the intent of the 

original 1974 statute, expressed by 

Senator Tunney in the legislative 

history: ‘‘[t]he court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’

119 Cong. Rec. 24,598 (1973) (statement 

of Senator Tunney). Rather: 

[a]bsent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

* * * carefully consider the explanations of 

the government in the competitive impact 

statement and its responses to comments in 

order to determine whether those 

explanations are reasonable under the 

circumstances. 

United States v. Mid-Am. Dairymen, 

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

at 71,980 (W.D. Mo. 1977). 

This Court recently examined the role 

of the district court in reviewing 

proposed final judgments in light of the 

2004 amendments, confirming that the 

amendments ‘‘effected minimal 

changes[ ] and that this Court’s scope of 

review remains sharply proscribed by 

precedent and the nature of Tunney Act 

proceedings.’’ SBC Commc’ns, 2007 WL 

1020746, at *9. This Court concluded 

that the amendments did not alter the 

articulation of the public interest 

standard in Microsoft. See id. at *15. 

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 


cprice-sewell on PROD1PC67 with NOTICES
Federal Register / Vol. 72, No. 112 / Tuesday, June 12, 2007 / Notices 32331 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: May 23, 2007. 

Respectfully submitted, 

Frederick H. Parmenter, VA Bar No. 18184, 

Attorney, U.S. Department of Justice, 

Antitrust Division, Litigation II Section, 1401 

H Street, NW., Suite 3000, Washington, DC 

20530, (202) 307–0620. 

Certificate of Service 

I, Frederick H. Parmenter, hereby certify 

that on May ll, 2007, I caused a copy of 

the foregoing Competitive Impact Statement 

to be served on defendants Cemex, S.A.B. de 

C.V. and Rinker Group Limited by mailing 

the document electronically to the duly 

authorized representative of the defendant as 

follows: 

Counsel for Defendant Cemex, S.A.B. de C.V. 

John E. Beerbower, Esquire, Cravath, 

Swaine & Moore LLP, Worldwide Plaza, 825 

Eighth Avenue, New York, New York 

110019, jbeerbower@cravath.com. 

Counsel for Defendant Rinker Group Limited 

Kevin J. Arquit, Esquire, Peter C. Thomas, 

Esquire, Simpson Thacher & Bartlett LLP, 

425 Lexington Avenue, New York, New York 

10017, karquit@stblaw.com, 

pthomas@stblaw.com. 

Frederick H. Parmenter, VA Bar No. 

18184, 

Attorney, U.S. Department of Justice, 

Antitrust Division, Litigation II Section, 

1401 H Street, NW., Suite 3000, 

Washington, DC 20530, (202) 307–0620. 

[FR Doc. 07–2856 Filed 6–11–07; 8:45 am] 

BILLING CODE 4410–11–M 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Advisory Committee on the Records of 

Congress; Meeting 

AGENCY: National Archives and Records 

Administration. 

ACTION: Notice of meeting. 

SUMMARY: In accordance with the 

Federal Advisory Committee Act, the 

National Archives and Records 

Administration (NARA) announces a 

meeting of the Advisory Committee on 

the Records of Congress. The committee 

advises NARA on the full range of 

programs, policies, and plans for the 

Center for Legislative Archives in the 

Office of Records Services. 

DATES: June 25, 2007 from 10 a.m. to 11 

a.m. 

ADDRESSES: The U.S. Capitol Building, 

Room S–211, Washington, DC. 

FOR FURTHER INFORMATION CONTACT: 

Richard H. Hunt, Director; Center for 

Legislative Archives; (202) 357–5350. 

SUPPLEMENTARY INFORMATION:

Agenda: 

Introduction of New Members 

Discussion of Committee Goals 

Update on the Center for Legislative 

Archives 

Other current issues and new business 

The meeting is open to the public. 

Dated: June 7, 2007. 

Mary Ann Hadyka, 

Committee Management Officer. 

[FR Doc. E7–11284 Filed 6–11–07; 8:45 am] 

BILLING CODE 7515–01–P 

NUCLEAR REGULATORY 

COMMISSION 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request 

AGENCY: U.S. Nuclear Regulatory 

Commission (NRC). 

ACTION: Notice of pending NRC action to 

submit an information collection 

request to OMB and solicitation of 

public comment. 

SUMMARY: The NRC is preparing a 

submittal to OMB for review of 

continued approval of information 

collections under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35). 

Information pertaining to the 

requirement to be submitted: 

1. The title of the information 

collection: NRC Form 327, Special 

Nuclear Material (SNM) and Source 

Material (SM) Physical Inventory 

Summary Report, and NUREG/BR–0096, 

Instructions and Guidance for 

Completing Physical Inventory 

Summary Reports. 

2. Current OMB approval number: 

3150–0139. 

3. How often the collection is 

required: The frequency of reporting 

corresponds to the frequency of required 

inventories, which depends essentially 

on the strategic significance of the SNM 

covered by the particular license. 

Certain licensees possessing strategic 

SNM are required to report inventories 

every 6 months. Licensees possessing 

SNM of moderate strategic significance 

must report every 9 months in 

accordance with the revised regulation 

in 10 CFR part 74.43. Licensees 

possessing SNM of low strategic 

significance must report annually, 

except two licensees must report their 

dynamic inventories every 2 months 

and a static inventory on an annual 

basis. 

4. Who is required or asked to report: 

Fuel facility licensees possessing special 

nuclear material. 

5. The number of annual respondents: 

9. 

6. The number of hours needed 

annually to complete the requirement or 

request: 100 hours (an average of 

approximately 4 hours per response for 

25 responses). 

7. Abstract: NRC Form 327 is 

submitted by fuel facility licensees to 

account for special nuclear material. 

The data is used by NRC to assess 

licensee material control and accounting 

programs and to confirm the absence of 

(or detect the occurrence of) special 

nuclear material theft or diversion. 

NUREG/BR–0096 provides specific 

guidance and instructions for 

completing the form in accordance with 

the requirements appropriate for a 

particular licensee. 

Submit, by August 13, 2007, 

comments that address the following 

questions: 

1. Is the proposed collection of 

information necessary for the NRC to 

properly perform its functions? Does the 

information have practical utility? 

2. Is the burden estimate accurate? 

3. Is there a way to enhance the 

quality, utility, and clarity of the 

information to be collected? 

4. How can the burden of the 

information collection be minimized, 

including the use of automated 

collection techniques or other forms of 

information technology? 

A copy of the draft supporting 

statement may be viewed free of charge 

at the NRC Public Document Room, One 

White Flint North, 11555 Rockville 

Pike, Room O–1 F21, Rockville, MD 

20852. OMB clearance requests are 

available at the NRC worldwide Web 

site: http://www.nrc.gov/public-involve/ 

doc-comment/omb/index.html. The 

document will be available on the NRC 

home page site for 60 days after the 

signature date of this notice. 

Comments and questions about the 

information collection requirement may 

be directed to the NRC Clearance 

Officer, Margaret A. Janney (T–5 F52), 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555–0001, by 

telephone at 301–415–7245, or by 

Internet electronic mail to 

INFOCOLLECTS@NRC.GOV. 

Dated at Rockville, Maryland, this 5th day 

of June, 2007. 

For the Nuclear Regulatory Commission. 

Margaret A. Janney, 

NRC Clearance Officer, Office of Information 

Services. 

[FR Doc. E7–11301 Filed 6–11–07; 8:45 am] 

BILLING CODE 7590–01–P 


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