Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices 49527

1OMB Approval Number 1103–0030.

abstract: Primary: State, Local or Tribal

Governments. Other: None.

The information collected is used to

determine grantee progress on its COPS

Hiring grant. Completion of such report

is a condition of all COPS hiring

programs. The COPS Office achieves the

goals hiring of the crime bill by offering

the Universal Hiring grant program. It is

designed to assist with the

implementation of community policing

by providing funding for up to $75,000

of the salaries and benefits of newly

hired officers for a three year period.

Throughout the grant period, law

enforcement agencies are expected to

plan, in good faith, to retain the funded

positions through full local funding.

As the COPS Office’s grants mature, it

is important that it monitor the progress

of this good faith planning for retention.

Thus, the COPS Office has expanded its

Department Annual Report by adding a

question specific to retention planning.

The remainder of the information

collected under the previously

approved 1 Department Annual Report

will remain the same: questions aimed

at collecting the minimum information

necessary to monitor the progress of law

enforcement agencies as successfully

hiring their COPS funded officers and

implementing community policing as

they indicated they would in their grant

application. With the anticipated OMB

approval of the revised Department

Annual Report, the COPS Office will

retire its predecessor from

dissemination to its grantees.

The information collected in the

Department Annual Report will

continue to be collected once per year

so long as the law enforcement agency

receives COPS program hiring monies.

The Instruments will be mailed to the

grantees with instructions and a sample

completed Progress Report Document.

(5) An estimate of the total number of

respondents and the amount of time

estimated for an average respondent to

respond: 10,000 responses; 1.3 hours

per response. The information will be

collected one time per year from each

respondent.

(6) An estimate of the total public

burden (in hours) associated with the

collection: 38,000 annual burden hours.

If additional information is required

contact: Mr. Robert B. Briggs, Clearance

Officer, United States Department of

Justice, Information Management and

Security Staff, Justice Management

Division, Suite 850, Washington Center,

1001 G Street, NW, Washington, DC

20530.

Dated: September 16, 1997.

Robert B. Briggs,

Department Clearance Officer, United States

Department of Justice.

[FR Doc. 97–25058 Filed 9–19–97; 8:45 am]

BILLING CODE 4410–21–M

DEPARTMENT OF JUSTICE

Antitrust Division

Proposed Final Judgment and

Competitive Impact Statement; United

States v. Mid-America Dairymen, Inc.,

Southern Foods Group LP, and Milk

Products LLC

Notice is hereby given pursuant to the

Antitrust Procedures and Penalties Act,

15 U.S.C. § 16 (b)–(h), that a proposed

Final Judgment, Stipulation, and

Competitive Impact Statement have

been filed with the United States

District Court for the Northern District

of Texas in United States v. MidAmerica Dairymen, Inc., Southern

Foods Group LP, and Milk Products,

LLC, Civil No. 3:97 CV 2162–P. The

proposed Final Judgment is subject to

approval by the Court after the

expiration of the statutory 60-day public

comment period and compliance with

the Antitrust Procedures and Penalties

Act, 15 U.S.C. § 16 (b)–(h).

On September 3, 1997, the United

States filed a Complaint seeking to

enjoin a transaction in which MidAmerica Dairymen, Inc. (‘‘MidAmerica’’) would acquire the voting

stock of Borden/Meadow Gold Dairies

Holdings, Inc. (‘‘Borden/Meadow

Gold’’). Mid-America, through its

affiliate Southern Food Group LP

(‘‘Southern Foods’’), and Borden/

Meadow Gold are two of the primary,

and often the only, bidders to supply

milk to school districts in Eastern Texas

and Louisiana, and this transaction

would have combined them to create a

monopoly in many of those school

districts. The Complaint alleged that the

proposed acquisition would

substantially lessen competition in

providing milk to school districts in

Eastern Texas and Louisiana in

violation of Section 7 of the Clayton

Act, 15 U.S.C. § 18.

The proposed Final Judgment orders

Mid-America to sell the Texas,

Louisiana and New Mexico assets to be

acquired from Borden/Meadow Gold

and, to the extent it sells them to a

purchaser who has already agreed to

buy them (Milk Products LLC), to limit

the financing that Mid-America had

agreed to provide to the purchaser. In

the event Mid-America does not sell to

that purchaser, it must divest the assets

to a purchaser who has the capability to

compete effectively in the manufacture,

sale and distribution of dairy products

in New Mexico, Texas and Louisiana. A

Competitive Impact Statement filed by

the United States describes the

Complaint, the proposed Final

Judgment, and remedies available to

private litigants.

The public is invited to comment

within the statutory 60-day comment

period. Written comments should be

addressed to Roger W. Fones, Chief,

Transportation, Energy and Agriculture

Section, U.S. Department of Justice,

Antitrust Division, 325 Seventh Street,

N.W., Suite 500, Washington, D.C.

20530 (telephone: (202) 307–6351).

Comments must be received within 60

days. Such comments, and the

responses thereto, will be published in

the Federal Register and filed with the

Court.

Copies of the Complaint, Stipulation,

proposed Final Judgment, and

Competitive Impact Statement are

available for inspection in Room 215 of

the U.S. Department of Justice, Antitrust

Division, 325 Seventh Street, N.W.,

Washington, D.C. 20530 (telephone:

(202) 514–2481), and at the office of the

Clerk of the United States District Court

for the Northern District of Texas, 1100

Commerce Street, Dallas, Texas 75242.

Copies of these materials may be

obtained upon request and payment of

a copying fee.

Constance K. Robinson,

Director of Operations, Antitrust Division.

Stipulation and Order

It is stipulated by and between the

undersigned parties, through their

respective attorneys, that:

1. The Court has jurisdiction over the

subject matter of this action and over

each of the parties hereto, and venue of

this action is proper in the Northern

District of Texas.

2. The parties consent that a Final

Judgment in the form hereto attached

may be filed and entered by the Court,

upon the motion of any party or upon

the Court’s own motion, at any time

after compliance with the requirements

of the Antitrust Procedures and

Penalties Act (15 U.S.C. § 16(b)–(h)),

and without further notice to any party

or other proceedings, provided that

plaintiff United States has not

withdrawn its consent, which it may do

at any time before the entry of the

proposed Final Judgment by serving

notice thereof on defendants and by

filing that notice with the Court.

3. The defendants shall abide by and

comply with the provisions of the

proposed Final Judgment pending entry
49528 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices

of the Final Judgment, or until

expiration of time for all appeals of any

court ruling declining entry of the

proposed Final Judgment and shall,

from the date of signing of this

Stipulation, comply with all terms and

provisions of the proposed Final

Judgment thereof as though the same

were in full force and effect as an order

of the Court.

4. This Stipulation shall apply with

equal force and effect to any amended

proposed Final Judgment agreed upon

in writing by the parties and submitted

to the Court.

5. In the event plaintiff United States

withdraws its consent, as provided in

Paragraph 2, above, or if the proposed

Final Judgment is not entered pursuant

to this Stipulation, the time has expired

for all appeals of any Court ruling

declining entry of the Final Judgment

and if the Court has not otherwise

ordered continued compliance with the

terms and provision of the Final

Judgment, then the parities are released

from all further obligations under this

Stipulation, and the making of this

Stipulation shall be without prejudice to

any party in this or any other

proceeding.

6. Defendants represent that the

divestiture ordered in the proposed

Final Judgment can and will be made,

and that they will later raise no claims

of hardship or difficulty as grounds for

asking the Court to modify any of the

divestiture provisions contained

therein.

7. The parties request that the Court

acknowledge the terms of this

Stipulation by entering the Order in this

Stipulation and Order.

Respectfully submitted.

For Plaintiff United States of America:

Joel I. Klien,

Assistant Attorney General.

A. Douglas Melamed,

Deputy Assistant Attorney General.

Roger W. Fones,

Chief, DC Bar # 303255.

Donna N. Kooperstein,

Assistant Chief, PA Bar # 26770.

Joan S. Huggler,

DC Bar # 927244.

Michael P. Harmonis,

PA Bar # 17994.

Robert D. Young,

DC Bar # 248260.

Attorneys, Antitrust Division, U.S.

Department of Justice, 325 Seventh St.

N.W., Washington, D.C., (202) 307–6456,

(202) 616–2441.

Dated: September 2, 1997.

For Defendant Mid-America Dairymen, Inc.

W. Todd Miller,

DC Bar # 414930.

Baker & Miller PLLC, Suite 615, 700 Eleventh

Street, NW, Washington, D.C. 20001,

(202)–637–9499, (202–637–9394

(Facsimile).

Attorneys for Mid-America Dairymen, Inc.

Dated: September 2, 1997.

For Defendant Southern Foods Group LP:

Jerry L. Beane,

TX Bar #01966000.

Strasburger & Price LLP, Suite 4300, 901

Main Street, Dallas, Texas 75202, (214–

651–4521), (214)–651–4330 (Facsimile).

Attorneys for Southern Foods Group LP

Dated: September 2, 1997.

For Defendant Milk Products LLC:

Jerry L. Beane,

TX Bar #01966000.

Strasburger & Price LLP, Suite 4300, 901

Main Street, Dallas, Texas 75202, (214–

651–4521), (214)–651–4330 (Facsimile).

Attorneys for Milk Products LLC

Dated: September 2, 1997.

Upon Review of this Stipulation by the

parties, the Court acknowledges by this Order

that the parties have consented to the terms

specified in this Stipulation and the entry of

the Final Judgment subject to the provisions

of the Antitrust Procedures and Penalties Act

(15 U.S.C. § 16 (b)–(h)).

So Ordered on this llll day of

llllllll, 1997.

lllllllllllllllllllll

United States District Court Judge

Final Judgment

Whereas, plaintiff, United States of

America (hereinafter ‘‘United States’’),

having filed its complaint herein on

September 3, 1997, and plaintiff and

defendants, by their respective

attorneys, having consented to the entry

of this Final Judgment without trial or

adjudication of any issue of fact or law

herein and without this Final Judgment

constituting any evidence against or an

admission by any party with respect to

any issue of law or fact herein;

And Whereas, defendants have agreed

to be bound by the provisions of this

Final Judgment pending its approval by

the Court;

And Whereas, prompt and certain

divestiture is the essence of this

agreement to assure that competition is

not substantially lessened;

And Whereas, defendants have

represented to plaintiff that the

divestiture required below and the relief

related thereto can and will be made

and that defendants will later raise no

claim of hardship or difficulty as

grounds for asking the Court to modify

any of the provisions contained below:

Now, Therefore, before the taking of

any testimony and without trial or

adjudication of any issue of fact or law

herein, and upon consent of the parties

thereto, it is hereby

Ordered, Adjudged and Decreed:

I

Jurisdiction

This Court has jurisdiction of the

subject matter of this action and each of

the defendants hereto. The complaint

states a claim upon which relief may be

granted against each defendant under

Section 7 of the Clayton Act, as

amended, 15 U.S.C. § 18.

II

Definitions

As used in this final judgment:

A. Mid-America means Mid-America

Dairymen, Inc., a Kansas corporation

with headquarters in Springfield,

Missouri, its members, directors,

officers, employees, affiliates, joint

venture or limited liability company

partners, successors or assigns, and any

agent or representative thereof.

B. Southern Foods means Southern

Foods Group LP, a partnership

organized under the laws of Delaware

with headquarters in Dallas, Texas, its

members, directors, officers, employees,

affiliates, joint venture or limited

liability company partners, successors

or assigns, or any agent or representative

thereof.

C. Milk Products means Milk Products

LLC, the limited liability company

formed by Allen A. Meyer to receive

certain dairy processing assets located

in New Mexico, Texas and Louisiana

formerly owned by Borden/Meadow

Gold Dairies Holdings, Inc., its

members, directors, officers, employees,

affiliates, joint venture or limited

liability company partners, successors

or assigns, or any agent or representative

thereof.

D. Divestiture Asserts or the Assets

means the Borden/Meadow Gold assets

located in New Mexico, Texas and

Louisiana that Mid-America will

acquire through purchase of the voting

stock of Borden/Meadow Gold Dairies

Holdings, Inc.

E. The Marks means certain

trademarks described in a Sublicense

Agreement between Southern Foods and

Milk Products, which include Borden,

Elsie and other trademarks granted to

Mid-America and/or Southern Foods by

license from Borden, Inc. and BDH Two,

Inc.

F. Divest or Divestiture means the

complete relinquishing of all rights and

equity and other interests in the

Divestiture Assets, provided that if MidAmerica divests the Assets to Milk

Products, it may extend to Milk
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices 49529

Products the Loan defined herein.

Divestiture also means to grant an

exclusive, royalty-free sublicense to use

the Marks in Texas, Louisiana and New

Mexico and a non-exclusive, royaltyfree sublicense to use the Marks in

Alabama, Arkansas, Florida,

Mississippi, Tennessee, and Mexico.

G. Milk Products Loan or the Loan

means the approximately $40 million

advanced by Mid-America or Mid-Am

Capital LLC for the purchase by Milk

Products of the assets located in New

Mexico, Texas and Louisiana held by

Borden/Meadow Gold Dairies Holdings,

Inc., and for which Milk Products has

executed Note Purchase Agreements

and other related debt instruments

setting forth the terms of the loan

arrangements.

III

Applicability

A. The provisions of this final

judgment shall apply to the defendants,

Mid-America Dairymen, Southern

Foods Group, and Milk Products, their

respective successors and assigns, and

to all other persons in active concert or

participation with any of them who

shall have received actual notice of this

final judgment by personal service or

otherwise.

B. Each defendant shall provide

written notice to the plaintiff no later

than 10 days subsequent to the effective

date of any action whereby the

defendant (1) changes its name or

corporate or organizational structure; (2)

liquidates or otherwise ceases operation;

or (3) declares bankruptcy. Such notice

shall include a full explanation of the

action that invokes this provision and

shall include full documentation

required to be filed with any judicial,

administrative or other official entity in

connection with that action.

IV

Divestiture

A. Defendant Mid-America is hereby

ordered and directed in accordance with

the terms of this Final Judgment, within

65 days of the filing of this Final

Judgment, or five days after notice of

entry of this Final Judgment by the

Court, whichever is later, to divest the

Divestiture Assets and the Marks to a

purchaser acceptable to the United

States. Plaintiff may, in its sole

discretion, extend the time period for an

additional period of time, not to exceed

90 calendar days in total.

B. Unless the United States otherwise

consents in writing, the divestiture of

the Assets and the Marks pursuant to

Paragraph IV (A), or by a trustee

appointed pursuant to Paragraph V of

this Final Judgment, shall include all of

the Assets and the Marks to be divested

to a purchaser in such a way as to

satisfy the United States in its sole

discretion that the Assets and the Marks

can and will be used by the purchaser

as part of a viable, ongoing business

engaged in the manufacture, sale and

distribution of dairy products in New

Mexico, Texas and Louisiana. The

divestiture, whether pursuant to

Paragraph IV or V of this Final Judgment

shall be made to a purchaser for whom

it is demonstrated to the sole

satisfaction of the United States that (1)

the purchaser has the capability and

intent of competing effectively in the

manufacture, sale and distribution of

dairy products in New Mexico, Texas

and Louisiana; (2) the purchaser has or

soon will have the managerial,

operational, and financial capability to

compete effectively in the manufacture,

sale and distribution of dairy products

in New Mexico, Texas and Louisiana;

and (3) none of the terms of any

agreement between the purchaser and

Mid-America give Mid-America the

ability unreasonably to raise the

purchaser’s cost, to lower the

purchaser’s efficiency, or otherwise to

interfere in the ability of the purchaser

to compete effectively in the

manufacture, sale and distribution of

dairy products in New Mexico, Texas

and Louisiana.

C. The Divestiture of the Assets and

the Marks to Milk Products, if

accomplished in accordance with this

Final Judgment within twenty-four

hours following the acquisition by MidAmerica of the voting stock of Borden/

Meadow Gold, is acceptable to the

United States and no further approval of

plaintiff pursuant to this Paragraph IV

or Paragraph IX is required.

V

Apppointment of Trustee

A. In the event that Mid-America has

not divested the Divestiture Assets and

the Marks within the time specified in

Paragraph IV (A) of this Final Judgment,

the Court shall appoint, on application

of the United States, a trustee selected

by the United States to effect the

divestiture of the Divestiture Assets and

the Marks.

B. After the appointment of a trustee

becomes effective, only the trustee shall

have the right to accomplish the

divestiture of the Assets and the Marks.

The trustee shall have the power and

authority to accomplish the divestiture

at the best price then obtainable upon a

reasonable effort by the trustee, subject

to the provisions of Paragraphs V and IX

of this Final Judgment, and shall have

such other powers as the Court shall

deem appropriate. Subject to Paragraph

V (C) of this Final Judgment, the trustee

shall have the power and authority to

hire at the cost and expense of MidAmerica any investment bankers,

attorneys, or other agents reasonably

necessary in the judgment of the trustee

to assist in the divestiture, and such

professionals and agents shall be

accountable solely to the trustee. The

trustee shall have the power and

authority to accomplish the divestiture

at the earliest possible time to a

purchaser acceptable to the United

States, and shall have such other powers

as this Court shall deem appropriate.

Mid-America shall not object to a sale

by the trustee on any grounds other than

the trustee’s malfeasance. Any such

objections by defendants must be

conveyed in writing to plaintiffs and the

trustee within ten (10) calendar days

after the trustee has provided the notice

required under Paragraph IX of this

Final Judgment.

C. The trustee shall serve at the cost

and expense of Mid-America, on such

terms and conditions as the Court may

prescribe, 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 MidAmerica and the trust shall then be

terminated. The compensation of such

trustee and of any professionals and

agents retained by the trustee shall be

reasonable in light of the value of the

Divestiture Assets and the Marks 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.

D. Mid-America 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 defendants, and defendants shall

develop financial or other information

relevant to such assets as the trustee

may reasonably request, subject to

reasonable protection for trade secret or

other confidential research,

development, or commercial

information. Mid-America shall take no

action to interfere with or to impede the

trustee’s accomplishment of the

divestiture.
49530 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices

E. After its appointment, the trustee

shall file monthly reports with the

parties and the Court setting forth the

trustee’s efforts to accomplish the

divestiture ordered under this Final

Judgment. If the trustee has not

accomplished such divestiture within

six (6) months after its appointment, the

trustee thereupon shall file promptly

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, that the required

divestiture has not been accomplished,

and (3) the trustee’s recommendations;

provided, however, that to the extent

such reports contain information that

the trustee deems confidential, such

reports shall not be filed in the public

docket of the Court. The trustee shall at

the same time furnish such report to the

parties, who shall each have the right to

be heard and to make additional

recommendations consistent with the

purpose of the trust. The Court shall

enter thereafter such orders as it shall

deem appropriate in order to carry out

the purpose of the trust, which may, if

necessary, include extending the trust

and the term of the trustee’s

appointment by a period requested by

the plaintiffs.

VI

Divestiture of the Loan

If Mid-America sells the Divestiture

Assets to Milk Products,

A. Mid-America shall reduce its

holdings in the Milk Products Loan as

follows:

(1) to $30 million or less by December

31, 1997;

(2) to $13 million or less by

September 1, 1998; and

(3) to zero by September 1, 1999.

B. Mid-America may sell off any

portion of the Milk Products Loan in

order to meet the requirements of

Paragraph VI(A), provided that no third

party purchaser of all or part of the Loan

shall (1) be affiliated in any way with

Mid-America or (2) be a person engaged

in the production, sale or delivery of

milk in the sales area of Milk Products.

C. In connection with sale of the Milk

Products Loan pursuant to Paragraph

VI(A), Mid-America shall not provide a

guarantee to any third party purchaser,

provided, however, that Mid-America

may, in its discretion, after it has

reduced its holdings in the Loan to not

more than $13 million, guarantee some

or all of the remaining $13 million. Any

guarantee by Mid-America must be

without recourse against Milk Products

for any sums paid by Mid-America by

virtue of the guarantee.

D. At no time while Mid-America

holds all or part of the Milk Products

Loan shall Mid-America (1) require that

Milk Products seek approval from, or

give notice to, Mid-America before

incurring any indebtedness, or (2) place

any restriction on Milk Products’ ability

to conduct its operations as it sees fit.

VII

Acquisitions and Access to Information

During any period in which MidAmerica retains an ownership interest

in Southern Foods,

A. No member, officer, employee or

agent of Southern Foods or MidAmerica (other than members, officers,

employees, or agents of Land-O-Sun

Dairy LLC, who are not otherwise

affiliated with Mid-America or Southern

Foods) shall be employed by or serve as

an officer, director, member, or agent of

Milk Products.

B. No member, officer, employee or

agent of Milk Products shall be

employed by or serve as an officer,

director, member or agent of MidAmerica or Southern Foods (other than

members, officers, employees or agents

of Land-O-Sun Dairy LLC, who are

otherwise not affiliated with MidAmerica or Southern Foods).

C. Neither Mid-America nor Southern

Foods shall merge or consolidate with,

acquire membership in or securities or

assets of, or provide loans or other

financing to (except for trade credit

extended in the ordinary course of

business) Milk Products, without having

first obtained the written approval of the

United States. Any request for such

approval shall be directed to the

Antitrust Division, U.S. Department of

Justice, Transportation, Energy and

Agriculture Section, with a copy to the

Director of Operations.

D. Mid-America, Southern Foods, and

Milk Products shall not disclose to each

other, directly or indirectly, any

competitively sensitive information

including, but not limited to,

information concerning present or

future prices or other terms or

conditions of sale including discounts,

slotting allowances, bids or price lists,

costs, capacity, distribution, marketing

plans or territories, supply, sales

forecasts, customer relationships

(including the identity of actual or

potential customers or quantities sold to

any particular customer).

E. Notwithstanding Paragraph VII(D),

Mid-America may, during any period in

which it is a creditor of Milk Products,

obtain and retain copies of the following

information, solely to protect its

interests as a creditor:

(1) Copies of Milk Products’ federal

income tax returns for each year; and

(2) quarterly financial statements,

including a balance sheet, a statement of

profits and losses, and a statement of

cash flow, aggregated for the entire

company. Nothing in this provision

shall limit the information that a

purchaser of any portion of the Milk

Products Loan may request and obtain,

subject to reasonable commercial credit

practices.

F. Nothing in this Final Judgment

shall prohibit the orderly transfer of

business records, reports or accounting

materials from Borden/Meadow Gold to

Southern Foods or to Milk Products,

which shall be accomplished within 120

days of the closing of the transaction.

VIII

Sublicense Agreement

A. Southern Foods, as sublicensor of

the Marks, shall promptly notify

Borden, Inc. and BDH Two, Inc., the

owners of the Marks, of any

unauthorized use of the Marks when

such use comes to the attention of

Southern Foods from any source,

including Milk Products, and Southern

Foods shall take all actions as may be

required by Borden, Inc. and BDH Two,

Inc. regarding the unauthorized use of

the Marks.

B. Neither Mid-American nor

Southern Foods shall assert or claim

that on any sublicensee of the Marks’

sale of any equity interest in the

sublicensee or any change in control or

ownership in the sublicensee will affect

or diminish the sublicensee’s rights in

or use of the Marks.

C. Mid-American and Southern Foods

shall ensure that the rights that any

sublicensee obtains in the Marks are

equal to all the rights and privileges that

Southern Foods obtains for itself in its

license of the Marks from Borden, Inc.

and BDH Two, Inc.

IX

Notification

Within two (2) business days

following execution of a definition

agreement, contingent upon compliance

with the terms of this Final Judgment,

any proposed divestiture pursuant to

Paragraph IV, V or VI of this Final

Judgment, Mid-America or the trustee,

whoever is responsible for the

divestiture, shall notify plaintiff of the

proposed divestiture and provide

documentation that the conditions set

forth in Paragraphs IV through VII have

been met.

If the trustee is responsible, it shall

similarly notify Mid-America. The

notice shall set forth the details of the

proposed transaction and list the name,

address, and telephone number of each
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices 49531

person not previously identified who

offered to, or expressed an interest in or

a desire to, acquire any ownership

interest in the Assets, together with full

details of same. Within fifteen (15)

calendar days of receipt by plaintiff of

such notice, plaintiff may request from

Mid-America, the proposed purchaser,

any other third party, or the trustee if

applicable, additional information

concerning the proposed divestiture and

the proposed purchaser. Mid-America

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. Within thirty (30)

calendar days after receipt of the notice

or within twenty (20) calendar days

after plaintiff has been provided the

additional information requested from

Mid-America, the proposed purchaser,

any third party, and the trustee,

whichever is later, the United States

shall provide written notice to MidAmerica and the trustee, if there is one,

stating whether or not it objects to the

proposed divestiture. If the United

States provides written notice to MidAmerica and the trustee that it does not

object, then the divestiture may be

consummated, subject only to MidAmerica’s limited right to object to the

sale under Paragraph V(B) of this Final

Judgment. Absent written notice that the

United States does not object to the

proposed purchaser or upon objection

by the United States, a divestiture

proposed under Section IV shall not be

consummated. Upon objection by the

United States, or by Mid-America in

accordance with Section V(B), a

divestiture proposed under Section V

shall not be consummated unless

approved by the Court.

X

Affidavits

A. Within twenty (20) calendar days

of the closing of any transaction in

which Mid-America directly or

indirectly acquires all or any part of the

assets or capital stock of Borden/

Meadow Gold, and every thirty (30)

calendar days thereafter until the

divestiture of the Divestiture Assets and

the Loan has been completed pursuant

to Paragraphs IV, V and VI of this Final

Judgment, Mid-America shall deliver to

plaintiff an affidavit as to the fact and

manner of compliance with Paragraph

IV, V and VI of this Final Judgment.

Each such affidavit shall include the

name, address, and telephone number of

each person who, at any time after the

period covered by the last report, 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 or in the Loan,

and shall describe in detail each contact

with any such person during that

period.

B. Mid-America shall preserve all

records of all efforts made to divest the

Loan and the Assets. This provision

shall not apply to divestiture of the

Assets if they are sold pursuant to

Paragraph IV(C) herein.

XI

Compliance Inspection

Only for the purposes of determining

or securing compliance with the Final

Judgment and subject to any legally

recognized privilege, from time to time:

A. Duly authorized representatives of

the plaintiff, including consultants and

other persons retained by the United

States, upon written request of the

Assistant Attorney General in charge of

the Antitrust Division, and on

reasonable notice to defendants made to

their principal offices, shall be

permitted:

(1) Access during office hours of

defendants to inspect and copy all

books, ledgers, accounts,

correspondence, memoranda, and other

records and documents in the

possession or under the control of

defendants, who may have counsel

present, relating to enforcement of this

Final Judgment; and

(2) Subject to the reasonable

convenience of defendants and without

restraint or interference from them, to

interview their officers, employees, and

agents, who may have counsel present,

regarding any such matters.

B. Upon the written request of the

Assistant Attorney General in charge of

the Antitrust Division made to

defendants’ principal offices,

defendants shall submit such written

reports, under oath if requested, with

respect to enforcement of this Final

Judgment.

C. No information or documents

obtained by the means provided in

Paragraph XI of this Final Judgment

shall be divulged by a representative of

the plaintiff to any person other than a

duly authorized representative of the

Executive Branch of the United States,

except in the course of legal proceedings

to which the plaintiff is a party

(including grand jury proceedings), or

for the purpose of securing compliance

with this Final Judgment, or as

otherwise required by law.

D. If at the time information or

documents are furnished by defendants

to plaintiff, defendants represent and

identify in writing the material in any

such information or documents to

which a claim of protection may be

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

Federal Rules of Civil Procedure, and

defendants mark each pertinent page of

such material, ‘‘Subject to claim of

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

Federal Rules of Civil Procedure,’’ then

ten (10) calendar days notice shall be

given by plaintiff to defendants prior to

divulging such material in any legal

proceeding (other than a grand jury

proceeding).

XII

Retention of Jurisdiction

Jurisdiction is retained by this Court

for the purpose of enabling any of the

parties to this Final Judgment to apply

to this Court at any time for such further

orders and directions as may be

necessary or appropriate for the

construction or carrying out of this Final

Judgment, for the modification of any of

the provisions hereof, for the

enforcement of compliance herewith,

and for the punishment of any

violations hereof.

XIII

Termination

Unless this Court grants an extension,

this Final Judgment will expire on the

tenth anniversary of the date of its entry.

XIV

Public Interest

Entry of this Final Judgment is in the

public interest.

Dated: lllllllllllllllll

lllllllllllllllllllll

United States District Judge

Certificate of Service

I hereby certify that a copy of the

foregoing has been served upon the

attorneys for Mid-America Dairymen,

Inc., Southern Foods Group LP, and

Milk Products LLC by placing a copy in

the U.S. Mail, directed to each of the

above named parties at the addresses

given below, this 3rd day of September

1997.

Mid-America Dairymen, Inc., c/o W.

Todd Miller, Baker & Miller PLLC,

Suite 615, 700 Eleventh Street, NW.,

Washington, DC 20001.

Southern Foods Group LP, c/o Jerry L.

Beane, Strasburger & Price LLP, Suite

4300, 901 Main Street, Dallas, Texas

75202.
49532 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices

Milk Products LLC, c/o Jerry L. Beane,

Strasburger & Price LLP, Suite 4300,

901 Main Street, Dallas, Texas 75202.

Joan S. Huggler,

DC Bar #927244, Attorney, Antitrust Division,

U.S. Department of Justice, 325 Seventh St.

NW., Suite 500, Washington, DC 20530, (202)

307–6456, (202) 661–2441 (Facsimile).

Competitive Impact Statement

The United States, pursuant to

Section 2(b) of the Antitrust Procedures

and Penalties Act (‘‘APPA’’), 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 September 3,

1997, alleging that the proposed

acquisition by Mid-America Dairymen,

Inc. (‘‘Mid-America’’) of the voting stock

of Borden/Meadow Gold Dairies

Holdings, Inc. (‘‘Borden/Meadow Gold’’)

would violate Section 7 of the Clayton

Act, 15 U.S.C. § 18, by combining the

two main suppliers of milk to schools in

Eastern Texas and Louisiana.

The Complaint alleges that the

acquisition of Borden/Meadow Gold’s

fluid milk processing plants in Eastern

Texas and Louisiana by Mid-America,

owner of a substantial interest in

Southern Foods Group LP (‘‘Southern

Foods’’), would substantially lessen

competition in the production, sale and

distribution of milk to schools in the

area where Borden/Meadow Gold and

Southern Foods each has operations and

competes for school milk business.

The Complaint also alleges that the

parties’ proposed remedy—divestiture

of the overlapping facilities formerly

held by Borden/Meadow Gold to a

newly-formed company called Milk

Products LLC that would be financed in

large part by a loan to Milk Products

from Mid-America affiliate Mid-Am

Capital LLC—would not adequately

replace the competition now provided

by Borden/Meadow Gold in Eastern

Texas and Louisiana.

At the same time the suit was filed,

a proposed settlement was filed that

would permit Mid-America to complete

the acquisition of Borden/Meadow

Gold, yet preserve competition in the

areas where the transaction would raise

significant competitive concerns.

The proposed Final Judgment orders

Mid-America to divest the Borden/

Meadow Gold assets in Texas, Louisiana

and New Mexico to a purchaser

acceptable to the United States. The

Final Judgment would allow divestiture

to Milk Products if the loan to Milk

Products by Mid-Am Capital is

appropriately conditioned and sold off

in its entirety within two years. If MidAmerica divests the overlapping assets

to Milk Products within 24 hours of its

acquisition of the voting stock of

Borden/Meadow Gold in accordance

with the Final Judgment, no further

approvals would be needed.

If Mid-America does not divest to

Milk Products, the assets must be

divested to another purchaser within 65

days of the closing of the acquisition of

the Borden/Meadow Gold voting stock

(‘‘the stock transaction’’), which period

may be extended by the United States to

no more than 90 days. If the divestiture

still has not occurred after 90 days, the

United States may ask the Court to

appoint a trustee who shall assume the

responsibility for selling those assets.

The Final Judgment sets out the

conditions for reduction of the loan

amount advanced to Milk Products by

Mid-Am Capital. The loan amount may

be reduced in three segments, to reach

zero by September 1, 1999. The Final

Judgment also imposes other restrictions

on Mid-America’s ability to affect the

competitive performance of Milk

Products because of its creditor

relationship through Mid-Am Capital.

Finally, the Final Judgment contains

provisions that limit communications

and other interaction among MidAmerica, Southern Foods, and Milk

Products, with the purpose of

minimizing or eliminating the

opportunity or ability of any of them to

affect competitive outcomes in school

milk bid markets in Eastern Texas and

Louisiana.

The United States, Southern Foods

and Milk Products have stipulated that

the proposed Final Judgment may be

entered after compliance with the

APPA. Entry of the proposed Final

Judgment would terminate this action,

except that the Court would retain

jurisdiction to construe, modify or

enforce the provisions of the Final

Judgment and to prevent violations of it.

II

Description of the Events Giving Rise to

the Alleged Violation

A. The Defendants and the Proposed

Transaction

Mid-America is the nation’s largest

cooperative of diary farmers, with some

18,000 members in 30 states. In addition

to marketing the milk of its members,

Mid-America has extensive ownership

and other interests in dairy

manufacturing and processing

operations and in the sale of products

and services related to dairying, such as

farm equipment and cleaning supplies.

Mid-America had revenues of more than

$4 billion in 1996.

Southern Foods in one of MidAmerica’s joint venture affiliates. It is

organized as a partnership whose

owners are Mid-America (50%) and,

until recently, two individual owners of

the remaining 50% share of the

partnership. (One of these individuals is

Allen A. Meyer, who will sell his

interest in Southern Foods to Pete

Schenkel, the other 25% owner, as a

precondition to the divestiture of the

Borden/Meadow Gold assets in Eastern

Texas and Louisiana into Milk Products,

of which Meyer will be the sole owner.)

From its plants in Eastern Texas and

Louisiana, Southern Foods sells a

variety of dairy products including fluid

milk for schools. In 1996, Southern

Foods had revenues of more than $550

million. Southern Foods operates eight

fluid milk processing plants—five in

Eastern Texas and three in Louisiana.

Southern Foods sells under a number of

brand names including Oak Farms,

Golden Royal, Midwest Farms,

Sunnydell, Texas Bluebonnet, Schepps,

Dairyland, Gooddy, Brown’s Velvet,

Medallion, Foremost, Barbe, and Guth.

Milk Products is a newly-formed

limited liability company that will

purchase the Borden/Meadow Gold

facilities whose marketing areas in

Eastern Texas and Louisiana overlap

with the marketing area of Southern

Foods in these states.

On May 22, 1997 Mid-America and

Borden/Meadow Gold entered into an

agreement whereby Mid-America would

acquire all of the voting stock of

Borden/Meadow Gold for $435 million.

Mid-America would thereby acquire 25

processing plants and related facilities

in all states. On May 28, 1997, MidAmerica agreed that it would sell the tobe-acquired assets in Texas, Louisiana

and New Mexico to Milk Products for

$65 million and that the purchase

would be financed in part by a loan

from Mid-Am Capital of at least $35

million. The Loan amount was later

increased to $40 million.

B. Fluid Milk Sold to Schools

Fluid milk is pasteurized milk sold

for human consumption in liquid form.

In addition to supermarkets and grocery

stores, other major buyers of fluid milk

are institutional customers such as

schools, hospitals, military installations

and prisons. Whereas supermarkets and

other large grocery stores buy most of

their milk packaged in gallon, half

gallon an quart size containers, other

customers, particularly schools,

purchase most, if not all, of their milk

in half pint containers, which is a
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices 49533

convenient size for storage and for

serving to children in school cafeterias.

Virtually all fluid milk processing

plants package milk in gallons and half

gallons, but not all of them produce half

pints. Therefore, school districts that are

looking for suppliers have a smaller

universe of potential of potential sellers

than do most retail outlets, warehouses

and other customers.

Most schools participate in the

federally-funded National School Lunch

Program and School and Breakfast

Program. In order to receive

reimbursement for meals served at

lower than cost to eligible children in

these programs, schools must offer eight

ounces of milk as part of each meal they

serve. It is thus important for many

school districts, which often operate on

limited budgets, to have a steady and

reliable source of milk. There are no

substitutes for milk that schools can use

still received such reimbursement.

Therefore, even a substantial rise in the

price of milk to schools would not cause

a school district to turn to another

product.

Schools also have special delivery

and service needs that other buyers of

fluid milk often do not have. Because

their storage space and equipment such

as coolers are often limited, many

schools require frequent deliveries,

sometimes as many as five days a week.

Many schools specify that the milk be

delivered at particular hours during the

day. These factors, plus the seasonal

nature of their purchases, generally

dictate the methods to be used by their

milk suppliers in servicing them. Most

often, school milk is delivered on small

(14 feet to 18 feet) route trucks that also

carry milk and other dairy products for

non-school customers such as small

grocery or convenience stores,

restaurants, or hospitals.

School districts that require such

service can obtain supplies only from a

milk processor that has both the ability

and the desire to package milk in half

pint containers and also has an

established small route truck

distribution system in or near the school

district. As a general rule, only such a

processor can economically serve those

districts.

School districts purchase their milk

on the basis of competitive bids that are

requested annually. Contracts are

usually awarded for a one-year term.

Each bid cycle may produce a new set

of bidders for that business in that time

period.

C. Competition Between Southern

Foods and Borden/Meadow Gold

Southern Foods and Borden/Meadow

Gold are the primary, and often the

only, actual or potential suppliers of

fluid milk to schools in Eastern Texas

and Louisiana. These firms also

compete with other processors for sales

to supermarkets and grocery stores.

These other processors do not compete

for school milk, however, because they

lack half-pint packaging equipment,

small delivery truck routes, or both.

Both Southern Foods and Borden/

Meadow Gold also compete with others

for the private label milk business of

large wholesalers and retailers.

In the school milk markets, however,

Southern Foods and Borden/Meadow

Gold are often the only bidders for a

particular school district. This is true

both in large metropolitan areas such as

Dallas/Fort Worth, Waco, and San

Antonio and in many other less

populated areas of Eastern Texas. In the

Houston area, and around Bryan and

College Station, Southern Foods and

Borden/Meadow Gold sometimes

compete with one other milk processor.

In most of Louisiana, the only third

bidder to school districts is a small

dairy processing firm located in Baton

Rouge whose ability to serve schools is

limited to an area about 50 miles around

Baton Rouge.

The Complaint alleges that, were MidAmerica to retain the Borden/Meadow

Gold assets it will own as a result of the

stock transaction, there would be a

significant loss of competition for

school milk business in Eastern Texas

and Louisiana. This is because MidAmerica would replace an independent

firm (Borden/Meadow Gold) that is the

most significant school milk competitor

of Southern Foods, a Mid-America

affiliate.

The Complaint also alleges that the

parties’ proposed remedy—divestiture

of the Texas, Louisiana and New Mexico

assets to Milk Products with a loan to

Milk Products by a Mid-America

affiliate, Mid-Am Capital—is inadequate

to cure the anticompetitive effects of the

stock transaction. Mid-America has a

substantial ownership interest in

Southern Foods. The size and terms of

the loan as originally proposed, together

with Mid-America’s financial interest in

Southern Foods, could give MidAmerica’s financial interest in Southern

Foods, could give Mid-America both the

incentive and the ability to inhibit

competition between Southern Foods

and Milk Products.

The Complaint alleges that school

milk markets in many areas of the

country have been subject to collusive

behavior by dairy firms and that where

collusion in these markets has been

detected it has been shown to persist for

many years. Thus, according to the

Complaint, new entry into the provision

of milk to schools in Eastern Texas and

Louisiana by other processors is

unlikely to counteract the

anticompetitive effects of the stock

transaction, even with the remedy as

proposed by the parties.

III

Explanation of the Proposed Final

Judgment

The proposed Final Judgment would

preserve competition in the sale of fluid

milk to schools in Eastern Texas and

Louisiana. The Judgment reflects the

intention of Mid-America to sell the

Borden/Meadow Gold assets in Texas,

Louisiana and New Mexico to Milk

Products promptly following the closing

of the stock transaction. Should that

divestiture not occur, the proposed

Final Judgment requires divestiture of

these assets within 65 days of the stock

transaction of the stock transaction or

five days after notice of the entry of this

Final Judgment by the Court, whichever

is later, to a purchaser acceptable to the

United States. That period could be

extended by the United States to 90

days. Should Mid-America be unable to

divest the assets to an acceptable

purchaser within the appointed time,

the Final Judgment requires that the

United States request the Court to

appoint a trustee, who will assume the

responsibility of selling the assets to a

purchaser acceptable to the United

States. Under the terms of the proposed

trusteeship, the trustee will have the

incentive to quickly conclude a sale of

the assets. After the appointment, the

trustee will file monthly reports with

the parties and the Court regarding the

efforts made to sell the assets. If

divestiture has not occurred within six

months, the trustee and the parties will

make recommendations to the Court,

which shall enter such orders as are

appropriate.

The Final Judgment also places

restrictions on the size and terms of the

loan that Mid-America or its affiliate,

Mid-Am Capital, will make to Milk

Products in connection with divestiture

of the assets to Milk Products. Financing

for the purchase of the assets by Milk

Products will come from two sources.

One is a secured revolving loan

provided by Bank of America. The other

is a $40 million loan provided by MidAm Capital that is unsecured and not

convertible to equity. The Final

Judgment prohibits Mid-America and

Mid-Am Capital from requiring that

Milk Products obtain their approval

before incurring any indebtedness and

from interfering in any way in the

operation of Milk Products’ business

because of the creditor relationship.
49534 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices

The proposed Final Judgment also

places limits on the length of time that

Mid-American or Mid-Am Capital may

hold the loan and restricts the amount

of the loan that either may hold at any

particular time. The Final Judgment

requires Mid-America or Mid-Am

Capital to terminate its interest in the

loan by selling it to a third party

purchaser or purchasers if necessary by

no later than September 1, 1999, and to

reduce its interest in the loan before that

at least by amounts sufficient to meet

two interim goals. The Final Judgment

recognizes that sale of the last portion

of the loan (not to exceed $13 million)

may be facilitated if Mid-American were

to guarantee that part of the loan.

Nevertheless, the Judgment prohibits

any guarantee that would allow MidAmerican to recover from Milk Products

any monies paid in its role as guarantor.

The Final Judgment contains

additional provisions that are designed

to protect against anticompetitive effects

that might occur because of MidAmerica’s relationships with Southern

Foods and Milk Products. The Final

Judgment prohibits Milk Products. The

Final Judgment prohibits Milk Products,

Southern Foods and Mid-America from

exchanging competitively sensitive

information among themselves and

thereby dampening competition

between Milk Products and Southern

Foods in Eastern Texas and Louisiana.

The Final Judgment also enjoins

Southern Foods and Mid-America, in

any period while Mid-America has an

interest in Southern Foods, from sharing

employees, members, officers, or agents

with Milk Porducts. Such intermingling

of personnel could easily inhibit

vigorous competition between Milk

Products and Southern Foods. Because

the owner of Milk Products will retain

his ownership interest in Land-O-Sun

Dairy LLC, a Mid-American joint

venture based in Tennessee which does

not operate in Texas or Louisiana, the

prohibition against sharing officers,

employees or agents does not apply to

Land-O-Sun’s employees, members,

officers or agents.

Finally, the Final Judgment contains

provisions that are designed to ensure

that Milk Products or any purchaser of

the divested assets will have full rights

in and use of certain trademarks of

Borden, Inc. and BDH Two, Inc.

(‘‘Borden’’). Borden will grant to MidAmerican and/or Southern Foods an

exclusive, royalty-free license to use the

Borden, Elsie and other trademarks in

Texas, Louisiana, and New Mexico and

a non-exclusive license to use them in

Alabama, Arkansas, Florida,

Mississippi, Tennessee, and Mexico.

The Final Judgment provides that

Southern Foods, in term, will sublicense

the Borden and Elsie marks to Milk

Products and that Mid-American and

Southern Foods will ensure that Milk

Product’s (or another purchaser’s) rights

in the marks will be equal to all the

rights and privileges that Southern

Foods obtains for itself in its license of

the marks from Borden. Mid-American

and Southern also are enjoined from

asserting or claiming that a sale of an

equity interest in Milk Products will

affect or diminish Milk Products’ rights

in the marks.

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 attorney’s fees. Entry of the

proposed Final Judgment will neither

impair nor assist the bringing of any

private antitrust damage action. Under

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 the 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 that there be a

period of at least sixty (60) days prior

to the effective date of a proposed Final

Judgment within which any person may

submit to the United States written

comments regarding the proposed Final

Judgment. All comments will be given

due consideration by the United States,

which remains free to withdraw its

consent to the Final Judgement at any

time prior to entry. The United States

will respond to the comments and file

both the comments and the responses

with the court.

Any person believing that the

proposed Final Judgment should be

modified may submit written comments

to: Roger W. Fones, Chief,

Transportation, Energy, and Agriculture

Section, Antitrust Division, United

States Department of Justice, Suite 500,

325 Seventh Street, N.W., Washington,

D. C. 20530.

The proposed Final Judgment

provides that the Court retains

jurisdiction over this action, and the

parties may apply to the Court for any

order necessary or appropriate for the

modification, interpretation, or

enforcement of the Final Judgment.

VI

Alternative to the Proposed Final

Judgment

The United States considered, as an

alternative to the proposed Final

Judgment, a full trial on the merits of its

Complaint in this case. Such litigation

would involve all of the issues in this

case, including the proposed remedy of

the parties. In the view of the

Department of Justice, a full trial on the

merits is not warranted in this case

because divestiture of the assets and

loan, under the terms of the Final

Judgment, as well as the additional

relief relating to possible spillover

effects stemming from the relationships

of Mid-America, Southern Foods and

Milk Products, would preserve the

competition adversely affected by the

acquisition of the Borden/Meadow Gold

voting stock by Mid-America. The

proposed Final Judgment is designed to

achieve fully adequate relief, while

avoiding the expense and uncertainty of

a full trial on the merits.

VII

Standard of Review Under the APPA for

Proposed Final Judgment

The APPA requires that proposed

consent judgments in antitrust cases

brought by the United States be subject

to a sixty (60) day comment period, after

which the court shall determine

whether entry of the proposed Final

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

making that determination, the court

may consider—

(1) 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, and any other

considerations bearing upon the adequacy of

such judgment;

(2) the impact of entry of such judgment

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). As the United States

Court of Appeals for the D.C. Circuit has

held, this statute permits a court to

consider, among other things, the

relationship between the remedy
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices 49535

1 119 Cong. Rec. 24598 (1973). See United States

v. Gillette Co., 406 F. Supp. 713, 715 (D. Mass.

1975). A ‘‘public interest’’ determination can be

made properly on the basis of the Competitive

Impact Statement and Response to Comments filed

pursuant to the APPA. Although the APPA

authorizes the use of additional procedures, 15

U.S.C. § 16(f), those procedures are discretionary. A

court need not invoke any of them unless it believes

that the comments have raised significant issues

and that further proceedings would aid the court in

resolving those issues. See H.R. Rep. 93–1463, 93rd

Cong. 2d Sess. 8–9, reprinted in (1974) U.S. Code

Cong. & Ad. News 6535, 6538.

2United States v. Bechtel, 648 F.2d at 666

(citations omitted) (emphasis added); see United

States v. BNS, Inc., 858 F2d at 463; United States

v. National Broadcasting Co., 449 F. Supp. 1127,

1143 (C.D. Cal. 1978); United States v. Gillette Co.,

406 F. Supp. at 716; see also Microsoft, 56 F.3d at

1461 (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.’ ’’) (citations omitted).

3United States v. American Tel. and Tel. Co.; 552

F. Supp. 131, 150 (D.D.C. 1982), aff’d sub nom,

Maryalnd v. United States, 460 U.S. 1001 (1983),

quotating United States v. Gillette Co., supra, 406

F. Supp. at 716; United States v. Alcan Aluminum,

Ltd., 605 F. Supp. 619, 622 (W.D. Key. 1985).

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, 56 F.3d 1448,

1461–62 (D.C. Cir. 1995).

In conducting this inquiry, ‘‘[t]he

court is nowhere compelled to go to trial

or to engage in extended proceedings

which might have the effect of vitiating

the benefits of prompt and less costly

settlement through the consent decree

process.1 Rather,

absent a showing of corrupt failure of the

government to discharge its duty, the Court,

in making its public interest finding, should

* * * carefully consider the explanations of

the government in the competitive impact

statement and its responses to comments in

order to determine whether those

explanations are reasonable under the

circumstances.

United States v. Mid-America

Dairymen, Inc., 1977–1 Trade Cas.

¶ 61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, with respect to the

adequacy of the relief secured by the

decree, a court may not ‘‘engage in an

unrestricted evaluation of what relief

would best serve the public.’’ United

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

(9th Cir. 1988), quoting United States v

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

Cir.), cert. denied, 454 U.S. 1083 (1981);

see also Microsoft, 56 F.3d at 1460–62.

Precedent requires that

the 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.2

The proposed Final Judgment,

therefore, should not be reviewed under

a standard of whether it is certain to

eliminate every anticompetitive effect of

a particular practice or whether it

mandates certainty of free competition

in the future. Court approval of a final

judgment requires a standard more

flexible and less strict than the standard

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

proposed decree mut 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.’

(citations omitted).’’ 3

VII

Determinative Documents

There are no determinative materials

or documents within the meaning of the

APPA that were considered by the

United States in formulating the

proposed Final Judgment.

Dated: September 5, 1997.

Respectfully submitted.

Joan S. Huggler,

DC Bar #927244.

Michael P. Harmonis,

PA Bar #17994.

Robert D. Young,

DC Bar #248260.

Attorneys, Antitrust Division, U.S.

Department of Justice, Transportation,

Energy and Agriculture Section, Suite

500, 325 Seventh Street, N.W.,

Washington, D.C. 20530, (202) 307–6456.

Certificate of Service

I hereby certify that I have caused a

copy of the foregoing Competitive

Impact Statement to be served on

counsel for defendants in this matter in

the manner set forth below:

By first class mail, postage prepaid:

W. Todd Miller, Esquire, Baker & Miller

PLLC, Suite 615, 700 Eleventh Street,

N.W., Washington, D.C. 20530

(Counsel for Mid-America Dairymen,

Inc.)

Jerry L. Beane, Esquire, Strasburger &

Price LLP, Suite 4300, 901 Main

Street, Dallas, Texas 75202

(Counsel for Southern Foods Group LP

and Milk Products LLC)

Dated: September 5, 1997.

Joan S. Huggler,

DC Bar #9272244.

Antitrust Division, U.S. Department of

Justice, 325 Seventh Street, N.W., Suite

500, Washington, D.C. 20530, (202) 307–

6456, (202) 616–2441.

[FR Doc. 97–25077 Filed 9–19–97; 8:45 am]

BILLING CODE 4410–01–M

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

Meeting

AGENCY: National Aeronautics and

Space Administration.

ACTION: Notice of meeting.

SUMMARY: NASA will conduct an open

forum meeting to solicit questions,

views and opinions of interested

persons or firms concerning NASA’s

procurement policies and practices. The

purpose of the meeting is to have an

open discussion between NASA’s

Associate Administrator for

Procurement, industry, and the public.

DATES: November 12, 1997, from 2:00

p.m. to 4:00 p.m.

ADDRESSES: The meeting will be held at

the Florida Solar Energy Center

Auditorium located at 1679 Clearlake

Road, Cocoa, Florida.

FOR FURTHER INFORMATION CONTACT:

Joy Colston, NASA Kennedy Space

Center, Code OP, Kenndey Space

Center, FL 32899, (407) 867-7212.

SUPPLEMENTARY INFORMATION:

Format

There will be a presentation by the

Associate Administrator for

Procurement, followed by a question

and answer period. Procurement issues

will be discussed including NASA

policies used in the award and

administration of contracts.

Admittance

Doors will open at 1:30 p.m.

Admittance will be on a first-come, firstserved basis. Auditorium capacity is

limited to approximately 120 persons;

therefore, a maximum of two

representatives per firm is requested. No

reservations will be accepted. Questions

for the open forum should be presented

at the meeting and should not be

submitted in advance. Position papers

are not being solicited.

Initiatives

In addition to the general discussion

mentioned above, NASA invites

comments or questions relative to its