[Federal Register Volume 62, Number 31 (Friday, February 14, 1997)]
[Notices]
[Pages 7041-7050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3698]


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DEPARTMENT OF JUSTICE

Antitrust Division


Proposed Final Judgment and Competitive Impact Statement; United 
States v. Signature Flight Support Corporation

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec. 16(b)-(h), that a proposed Final 
Judgment, Stipulation, and Competitive Impact Statement have been filed 
with the United States District Court for the District of Columbia in 
United States v. Signature Flight Support Corporation, Civil No. 97-
0248. 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. 
Sec. 16(b)-(h).
    On February 3, 1997, the United States filed a Complaint seeking to 
enjoin a transaction in which Signature Flight Support Corporation 
(``Signature'') agreed to acquire International Aviation Palm Beach, 
Inc. (``International Aviation''). Signature and International Aviation 
are two of three fixed base operators (``FBOs'')

[[Page 7042]]

located at Palm Beach International Airport (``PBI'') in West Palm 
Beach, Florida. FBOs provide terminals, fueling, hangars and other 
services to general aviation customers, such as businesses and 
individuals with private planes. Signature's proposed acquisition of 
International Aviation would have created a duopoly at PBI. The 
Complaint alleged that the proposed acquisition would substantially 
lessen competition in providing FBO services, such as jet fueling and 
hangar and ramp rental space, to general aviation customers at PBI in 
violation of Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
    The proposed Final Judgment orders Signature to sell certain of its 
assets and leaseholds of its FBO business at PBI to a purchaser who has 
the capability to compete effectively in the provision of FBO services 
to general aviation customers at PBI. The Stipulation also imposes a 
hold separate agreement that, in essence, requires the defendant to 
ensure that, until the divestiture mandated by the Final Judgment has 
been accomplished, Signature's FBO business at PBI will be held 
separate and apart from, and operated independently of, any of its 
other FBO assets and businesses. A Competitive Impact Statement filed 
by the United States describes the Complaint, the proposed Final 
Judgment, and remedies available to private litigants.
    Public comment is invited within the statutory 60-day comment 
period. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Written comments should be 
directed to Roger W. Fones, Chief, Transportation, Energy and 
Agriculture Section, Antitrust Division, 325 Seventh Street, N.W., 
Suite 500, Washington, D.C. 20530 (telephone: (202) 307-6351). 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 District of 
Columbia, 333 Constitution Avenue, N.W., Washington, D.C. 20001.
    Copies of any of these materials may be obtained upon request and 
payment of a copying fee.
Constance K. Robinson,
Director of Operations, Antitrust Division.

United States District Court, District of Columbia

    United States of America, Plaintiff, v. Signature Flight Support 
Corporation, Defendant. Civil Action No. 97-0248

Stipulation and Order

    It is stipulated by and between the undersigned parties, by their 
respective attorneys, as follows:
    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 United States District Court for the District of 
Columbia;
    2. The parties stipulate 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), and without further notice to any party or other 
proceedings, provided that plaintiff 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 defendant and by filing that 
notice with the Court;
    3. Defendant Signature (as defined in paragraph II.A of the 
proposed Final Judgment attached hereto) shall abide by and comply with 
the provisions of the proposed Final Judgment pending entry 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 the signing of this Stipulation, comply with all the 
terms and provisions of the proposed Final Judgment as though the same 
were in full force and effect as an order of the Court; provided, 
however, that Signature shall not be obligated to comply with Sections 
IV through VIII of the proposed Final Judgment unless and until the 
closing of any transaction in which Signature directly or indirectly 
acquires all or any part of the assets or capital stock of 
International Aviation (as defined in paragraph II.B of the proposed 
Final Judgment attached hereto);
    4. Defendant shall not consummate the transaction before the Court 
has signed this Stipulation and Order;
    5. In the event plaintiff withdraws its consent, as provided in 
paragraph 2 above, or in the event 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 proposed Final 
Judgment, and the Court has not otherwise ordered continued compliance 
with the terms and provisions of the proposed Final Judgment, then the 
parties 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. The defendant represents that the divestiture ordered in the 
proposed Final Judgment can and will be made, and that the defendant 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
therein.

    Dated: February 5, 1997.
    For Plaintiff United States of America:
Joel I. Klein,
Acting Assistant Attorney General.
Constance K. Robinson,
Director of Operations
Charles Biggio,
Senior Counsel.
Roger W. Fones,
Chief.
Donna N. Kooperstein,
Ass't Chief.
Kelly Signs, Michele B. Cano, Robert McGeorge, Michael Harmonis,
Attorneys, U.S. Departmental of Justice, Antitrust Division, 
Transportation, Energy and Agriculture Department, 325 Seventh Street, 
N.W., Suite 500, Washington, D.C. 20530, (202) 307-6475.
    For Defendant Signature Flight Support Corporation:
Bruce Van Allen,
Senior Vice President--Operations.
Paul J. Mokris,
General Counsel.
Freeborn & Peters

    By: William C. Holmes,
A Member of the Firm, Suite 3000, 311 South Wacker Driver, Chicago, 
Illinois 60606-6677, (312) 360-6000.
    So Ordered:
----------------------------------------------------------------------
United States District Judge

Dated:

Final Judgment

    Whereas, plaintiff, United States of America (hereinafter ``United 
States''), having filed its Complaint herein on February 5, 1997, and 
plaintiff and defendant, 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, defendant has 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, plantiff requires defendant to make this divestiture for 
the purpose

[[Page 7043]]

of remedying the loss of competition alleged in the complaint;
    And whereas, defendant has represented to plaintiff that the 
divestiture required below can and will be made and that defendant will 
later raise no claims of hardship or difficulty as grounds for asking 
the Court to modify any of the divestiture 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 as follows:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of this action 
and over each of the parties hereto. The Complaint states a claim upon 
which relief may be granted against defendant under Section 7 of the 
Clayton Act, as amended (15 U.S.C. Sec. 18).

II. Definitions

    As used in this Final Judgment:
    A. ``Signature'' means Signature Flight Support Corporation, a 
Delaware corporation with its headquarters in Orlando, Florida, and 
includes its successors and assigns, its parents, subsidiaries, 
affiliates, and directors, officers, managers, agents, and employees 
acting for or on behalf of any of them.
    B. ``International Aviation'' means International Aviation Palm 
Beach, Inc., a Florida corporation with its headquarters in West Palm 
Beach, Florida, and includes its successors and assigns, its parents, 
subsidiaries, affiliates, and directors, officers, managers, agents, 
and employees acting for or on behalf of any of them.
    C. ``The Assets to be Divested'' means all rights, titles and 
interests, including all fee, leasehold and real property rights, in 
the following assets, owned or controlled by Signature, that are used 
by Signature to provide fuel and other services to general aviation 
customers at PBI Airport:
    1. The existing Signature terminal and office building (building 
#1626), as shown on the attached map.
    2. Approximately 71,000 square feet of hangar space, consisting of 
the existing Signature hangar buildings #1625, 1627, 1628 and 1629.
    3. The existing Signature fuel farm adjacent to Signature hangar 
building #1627, consisting of approximately one-half acre, as shown on 
the attached map.
    4. Approximately 23.5 acres of ramp space adjacent to the foregoing 
buildings, as shown on the attached map.
    5. Approximately 2.5 acres of parking space, as shown on the 
attached map.
    6. Existing office furniture, lobby furniture, phone system, 
radios, television, towing equipment, golf carts, pickup truck, 
refuellers, ground power units and other equipment and supplies 
necessary and appropriate to provide a viable FBO at the foregoing 
facilities.
    7. Contracts (including, but not limited to, customer contracts) 
and customer lists.
    D. ``PBI Airport'' means Palm Beach International Airport, located 
in West Palm Beach, Florida.
    E. ``FBO'' means any or all services related to providing fixed 
based operator services, including, but not limited to, selling fuel, 
leasing hangar, ramp and office space, providing flight support 
services, performing maintenance, providing access to terminal 
facilities, or arranging for ancillary services such as limousines, 
rental cars or hotels.

III. Applicability

    A. The provisions of this Final Judgment shall apply to defendant, 
its successors and assigns, parents, subsidiaries, affiliates, 
directors, officers, managers, agents, and employees, 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. Defendant shall require, as a condition of the sale or other 
disposition of all or substantially all of the assets of its business, 
that the purchaser of such assets agree to be bound by the provisions 
of the Final Judgment; provided however, that defendant need not obtain 
such an agreement from the acquirer of The Assets to be Divested in the 
divestiture contemplated herein.

IV. Divestiture of the Assets To Be Divested

    A. Defendant is hereby ordered and directed in accordance with the 
terms of this Final Judgment, within one hundred and eighty (180) 
calendar days of the filing of this Final Judgment, or within five (5) 
business days after notice of entry of this Final Judgment, whichever 
is later, to divest The Assets to be Divested to a purchaser acceptable 
to the plaintiff, in its sole discretion.
    B. Divestiture of Signature's leasehold interest in any of The 
Assets to be Divested shall be by transfer of the entire leasehold 
interest which shall be for the entire remaining term of such leasehold 
including all renewal or option rights.
    C. Defendant shall use its best efforts and take all reasonable 
steps to accomplish the divestiture as expeditiously as possible. If 
defendant has not accomplished the required divestiture within the one 
hundred and eight (180) calendar day period specified in section IV.A, 
the plaintiff may, in its sole discretion, extend the time period for 
two (2) additional periods of time, not to exceed ninety (90) calendar 
days in total.
    D. In accomplishing the divestiture ordered by this Final Judgment, 
defendant promptly shall make known, by usual and customary means, the 
availability for sale of The Assets to be Divested. Defendant shall 
notify any person making an inquiry regarding the possible purchase of 
The Assets to be Divested that the sale is being made pursuant to this 
Final Judgment and provide such person with a copy of the Final 
Judgment. Defendant shall make known to any person making an inquiry 
regarding a possible purchase of The Assets to be Divested that the 
assets described in Section II.C. are being offered for sale. Defendant 
shall also offer to furnish to all bona fide prospective purchasers of 
The Assets to be Divested, subject to customary confidentiality 
assurances, all information regarding The Assets to be Divested 
customarily provided in a due diligence process, except information 
subject to attorney-client privilege or attorney work product 
privilege. Defendant shall make available such information to the 
plaintiff at the same time that such information is made available to 
any other person. Subject to customary confidentiality assurance, 
defendant shall permit prospective purchasers of The Assets to be 
Divested to have access to its personnel, to make inspection of The 
Assets to be Divested, and to have access to financial, operational, 
and other documents and information relating to The Assets to be 
Divested, as customarily provided as part of a due diligence process.
    E. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section IV.A, or by the trustee appointed 
pursuant to Section V of this Final Judgment, shall include all of The 
Assets to be Divested and be accomplished by selling or otherwise 
conveying The Assets to be Divested to a purchaser in such a way as to 
satisfy the United States, in its sole discretion, that The Assets to 
be Divested can and will be used by the purchaser as part of a viable, 
ongoing business engaged in the provision of FBO services at PBI. The 
divestiture, whether pursuant to

[[Page 7044]]

Section IV or Section V of this Final Judgment, shall be made to a 
purchaser for whom it is demonstrated to the United States' sole 
satisfaction, that: (1) the purchaser has the capability and intent of 
competing effectively in the provision of FBO services at PBI; (2) the 
purchaser has or soon will have the managerial, operational, and 
financial capability to compete effectively in the provision of FBO 
services at PBI; and (3) none of the terms of any agreement between the 
purchaser and defendant give defendant the ability unreasonably to 
raise the purchaser's costs, to lower the purchaser's efficiency, or 
otherwise to interfere in the ability of the purchaser to compete 
effectively in the provision of FBO service at PBI.

V. Appointment of Trustee

    A. In the event that defendant has not divested The Assets to be 
Divested within the time specified in Sections IV.A or IV.C 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 Assets to be Divested.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell The Assets to be Divested. 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 Sections V and VI of this 
Final Judgment, and shall have such other powers as the Court shall 
deem appropriate. Subject to Section V.C. of this Final Judgment, the 
trustee shall have the power and authority to hire at the cost and 
expense of defendant 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. Defendant shall not object 
to a sale by the trustee on any grounds other than the trustee's 
malfeasance. Any such objections by defendant must be conveyed in 
writing to plaintiffs and the trustee within ten (10) calendar days 
after the trustee has provided the notice required under Section VI of 
this Final Judgment.
    C. The trustee shall serve at the cost and expense of defendant, 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 defendant 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 Assets to be Divested 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. Defendant 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, book, 
records, and facilities of defendant, and defendant 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. Defendant shall take no action to interfere with or to 
impede the trustee's accomplishment of the divestiture.
    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. Notification

    Within two (2) business days following execution of a definitive 
agreement, contingent upon compliance with the terms of this Final 
Judgment, to effect, in whole or in part, any proposed divestiture 
pursuant to Section IV or V of this Final Judgment, defendant or the 
trustee, whichever is then responsible for effecting the divestiture, 
shall notify plaintiff of the proposed divestiture. If the trustee is 
responsible, it shall similarly notify defendant. The notice shall set 
forth the details of the proposed transaction and list the name, 
address, and telephone number of each person not previously identified 
who offered to, or expressed an interest in or a desire to, acquire any 
ownership interest in the assets that are the subject of the binding 
contract, together with full details of same. Within fifteen (15) 
calendar days of receipt by plaintiff of such notice, plaintiff may 
request from defendant, the proposed purchaser, any other third party, 
or the trustee if applicable additional information concerning the 
proposed divestiture and the proposed purchaser. Defendant and the 
trustee shall furnish nay 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 
defendant, the proposed purchaser, any third party, and the trustee, 
whichever is later, the United States shall provide written notice to 
defendant 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 defendants and the trustee that it does not object, 
then the divestiture may be consummated, subject only to defendant's 
limited right to object to the sale under Section 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 defendant under the proviso in 
Section V.B, a divestiture proposed under Section V shall not be 
consummated unless approved by the Court.

VII. Affidavits

    A. Within twenty (20) calendar days of the closing of any 
transaction in which signature directly or indirectly acquires all or 
any part of the assets or

[[Page 7045]]

capital stock of International Aviation, and every thirty (30) calendar 
days thereafter until the divestiture has been completed whether 
pursuant to Section IV or Section V of this Final Judgment, defendant 
shall deliver to plaintiff an affidavit as to the fact and manner of 
defendant's compliance with Section IV or V of this Final Judgment. 
Each such affidavit shall include, inter alia, the name, address, and 
telephone number of each person who, at any time after the period 
covered by the last such 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 
Assets to be Divested, and shall describe in detail each contact with 
any such person during that period.
    B. Within twenty (20) calendar days of the filing of this Final 
Judgment, defendant shall deliver to plaintiff an affidavit which 
describes in detail all actions defendant has taken and all steps 
defendant has implemented on an on-going basis to preserve The Assets 
to be Divested pursuant to Section IX of this Final Judgment and 
describes the functions, duties and actions taken by or undertaken at 
the supervision of the individual(s) described at Section IX.H of this 
Final Judgment with respect to defendant's efforts to preserve The 
Assets to be Divested. The affidavit also shall describe, but not be 
limited to, defendant's efforts to maintain and operate The Assets to 
be Divested as an active competitor, maintain the management, sales, 
marketing and pricing of The Assets to be Divested apart from that of 
defendant's other businesses that provide FBO services, maintain and 
increase sales of defendant's FBO operation at PBI, and maintain The 
Assets to be Divested in operable condition, continuing normal 
maintenance. Defendant shall deliver to plaintiff an affidavit 
describing any changes to the efforts and actions outlined in 
defendant's earlier affidavit(s) filed pursuant to this Section within 
fifteen (15) calendar days after the change is implemented.
    C. Defendant shall preserve all records of all efforts made to 
preserve and divest The Assets to be Divested.

VIII. Financing

    Defendant shall not finance all or nay part of any divestiture made 
pursuant to Sections IV or V of this Final Judgment without the prior 
written consent of the United States.

IX. Preservation of Assets

    Until the divestiture required by the Final Judgment has been 
accomplished:
    A. Defendant shall take all steps necessary to ensure that The 
Assets to be Divested will be maintained and operated as an ongoing, 
economically viable and active competitor in the provision of FBO 
services; and that, except as necessary to comply with Sections IX to 
IX.H of this Final Judgment, the management of The Assets to be 
Divested shall be kept separate and apart form the management of 
defendant's other FBO operations and will not be influenced by 
defendant, and the books, records, and competitively sensitive sales, 
marketing and pricing information associated with The Assets to be 
Divested will be kept separate and apart from that of defendant's other 
businesses that provide FBO services.
    B. Defendant shall take all steps necessary to ensure that The 
Assets to be Divested are fully maintained in operable condition and 
shall maintain and adhere to normal maintenance schedules for The 
Assets to be Divested.
    C. Defendant shall provide and maintain sufficient sources of 
credit to maintain The Assets to be Divested as a viable, ongoing 
business.
    D. Defendant shall provide and maintain sufficient working capital 
to maintain The Assets to be Divested as a viable, ongoing business.
    E. Defendant shall not, except as part of a divestiture approved by 
the United States, remove, sell, or transfer any of The Assets to be 
Divested, other than sales in the ordinary course of business.
    F. Unless it has obtained the prior approval of the United States, 
defendant shall not terminate or reduce the current employment, salary, 
housing, or benefit arrangements for any personnel employed by 
defendant who work at, or have managerial responsibility for, The 
Assets to be Divested, except in the ordinary course of business.
    G. Defendant shall take no action that would jeopardize its ability 
to divest The Assets to be Divested as a viable, ongoing business.
    H. Defendant shall appoint a person or persons to oversee The 
Assets to be Divested, and who will be responsible for defendant's 
compliance with Section IX of this Final Judgment.

X. 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 defendant made to its 
principal offices, shall be permitted:
    (1) Access during office hours of defendant to inspect and copy all 
books, ledgers, accounts, correspondence, memoranda, and other records 
and documents in the possession or under the control of defendant, who 
may have counsel present, relating to enforcement of this Final 
Judgment; and
    (2) Subject to the reasonable convenience of defendant and without 
restraint or interference from it, to interview its 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 defendant's principal offices, 
defendant shall submit such written reports, under oath is requested, 
with respect to enforcement of this Final Judgment.
    C. No information or documents obtained by the means provided in 
Section VII or X 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 
defendant to plaintiff, defendant 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 defendant 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 ten (10) calendar days notice 
shall be given by plaintiff to defendant prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XI. 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.

[[Page 7046]]

XII. Termination

    Unless this Court grants an extension, this Final Judgment will 
expire on the tenth anniversary of the date of its entry.

XIII. Public Interest

    Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------

----------------------------------------------------------------------
United States District Judge

    This page could not be reprinted in the Federal Register, 
however, it may be inspected in Suite 215, U.S. Department of 
Justice, Legal Procedures Unit, 325 7th St., N.W., Washington, D.C. 
at (202) 514-2481 and at the Office of the Clerk of the United 
States Court for the District of Columbia.

Competitive Impact Statement

    The United States, pursuant to Section 2(b) of the Antitrust 
Procedures and Penalties Act (``APPA''), 15 U.S.C. Secs. 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

    On February 5, 1997, the United States filed a Complaint alleging 
that the proposed acquisition of International Aviation Palm Beach, 
Inc. (hereinafter ``International Aviation'') by Signature Flight 
Support Corporation, (hereinafter ``Signature'') would violate Section 
7 of the Clayton Act, 15 U.S.C. Sec. 18. The Complaint alleges that 
Signature and International Aviation are two of three providers of 
fixed base operator (``FBO'') services for general aviation customers 
at Palm Beach International airport (``PBI'') located in West Palm 
Beach, Florida, and that this transaction will combine them. Signature 
and International Aviation compete head-to-head on price and quality of 
services to general aviation customers. This acquisition would 
eliminate this competition, reducing the number of competitors from 
three to two, creating a FBO duopoly at PBI. As a result, the effect of 
the merger would be to give Signature the market power to raise prices 
and lower the quality of services to PBI general aviation customers. 
The merger would also make coordinated behavior by Signature and Jet 
Aviation (the other remaining FBO) easier, resulting in higher prices. 
Thus, the proposed acquisition is likely to lessen competition 
substantially in the market for FBO services at PBI in violation of 
Section 7 of the Clayton Act, as amended, 15 U.S.C. Sec. 18. The prayer 
for relief in the Complaint seeks (1) a judgment that the proposed 
acquisition would violate Section 7 of the Clayton Act; and (2) a 
preliminary and permanent injunction preventing Signature and 
International Aviation from consummating the proposed acquisition.
    At the same time the Complaint was filed, the United States also 
filed a proposed settlement that would permit Signature to complete its 
acquisition of International Aviation, but requires a divestiture that 
would preserve competition for general aviation customers at PBI. This 
settlement consists of a Stipulation and Order, and a proposed Final 
Judgment.
    The proposed Final Judgment orders Signature to sell certain FBO 
assets (hereinafter ``The Assets to be Divested'') to a purchaser who 
has the capability to compete effectively in the provision of FBO 
services to general aviation customers at PBI. The Assets to be 
Divested include Signature's terminal building, four hangars, a fuel 
farm, and adjacent ramp and parking space. Signature must complete the 
divestiture of these FBO assets before the later of one hundred and 
eighty (180) calendar days after the consummation of the proposed 
acquisition of International Aviation of five (5) days after entry of 
the Final Judgment, in accordance with the procedures specified in the 
proposed Final Judgment. If Signature should fail to accomplish the 
divestiture, a trustee appointed by the Court would be empowered to 
divest these assets.
    The Stipulation and Order and the proposed Final Judgment also 
impose a hold separate agreement that requires defendant to ensure 
that, until the divestiture mandated by the Final Judgment has been 
accomplished, The Assets to be Divested will be held separate and apart 
from, and operated independently of, Signature's other FBO assets and 
businesses.
    The United States and Signature have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment would terminate this action, except that 
the Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.

II. Events Giving Rise to the Alleged Violation

A. The Parties and the Proposed Transaction

    On March 22, 1996, Signature, International Aviation, International 
Aviation Teterboro Inc. and IAS Holdings, Inc. (the parent of 
International Aviation and International Aviation Teterboro, Inc.) 
entered into an agreement under which Signature would seek to acquire 
the assets of the three companies for approximately $18 million.
    Signature is a wholly owned subsidiary of BBA Group PLC, a British 
holding company. Signature is a Delaware corporation with its principal 
place of business in Orlando, Florida. Signature operates a nationwide 
network of 34 FBOs throughout the United States, including one at PBI. 
Signature's total revenues for fiscal year 1995 were $233 million.
    International Aviation operates an FBO at PBI airport in West Palm 
Beach, Florida, International Aviation is a subsidiary of IAS Holdings, 
Inc., which, in conjunction with its subsidiary International Aviation 
Teterboro, Inc., also operates FBO facilities at Westchester County 
(NY) airport, and Teterboro (NJ) airport.

B. The FBO Services Market

    FBOs are facilities located at commercial airports that provide 
flight support services, including aircraft fueling, ramp and hangar 
rentals, office space rentals, and other services to general aviation 
customers. General aviation customers include charter, private and 
corporate aircraft operators, as distinguished from scheduled 
commercial airlines. Last year, general aviation customers purchased 
around $1 billion of jet fuel from FBOs nationwide.
    FBO services include sales of jet aviation (``Jet A'') fuel and 
aviation gasoline (``avgas''), and ramp, hangar and office space 
rental. FBOs do not charge separately for many services offered to 
general aviation customers, such as use of customer and pilot lounges, 
baggage handling, and flight planning support; rather, they recover the 
costs for these services in the price that they charge for fuel. There 
are some services for which FBOs do charge separately, such as hangar 
rental, office space rental, ramp parking fees, catering, cleaning the 
aircraft, arranging ground transportation and maintenance on the 
aircraft. General aviation customers generally buy fuel from the same 
FBO from which they obtain other services.
    The largest source of revenue for an FBO is its fuel revenues. FBOs 
sell Jet A fuel for jet aircraft, turboprops and helicopters, and avgas 
for smaller, piston driven planes. In 1995, Jet A fuel sales at PBI 
were approximately $15 million; avgas sales were less than $1 million. 
Revenues for hangar rentals and parking fees at PBI in 1995 were 
approximately $1 million.

[[Page 7047]]

    The Complaint alleges that the provision of FBO services to general 
aviation customers at PBI is a relevant market (i.e., a line of 
commerce and a section of the country) under Section 7 of the Clayton 
Act. General aviation customers cannot obtain fuel, hangar, ramp and 
other services offered at PBI, except through an FBO authorized to sell 
such products and services by the local airport authority. Thus, 
general aviation customers have no alternatives to FBOs for these 
products and services when they land at PBI.
    FBOs at other airports would not provide economically practical 
alternatives for general aviation customers who currently use PBI. 
Although there are a number of smaller airports in the region, they are 
not economically viable substitutes for PBI general aviation customers. 
General aviation customers use PBI because of its location, convenience 
and facilities. General aviation customers have chosen PBI because of 
its proximity to their ultimate destination (whether their residence, 
business or other place); using a different airport would significantly 
increase their driving time. PBI has facilities that other airports 
lack: longer runways, precision instrument landing capability, a 24-
hour landing tower, and a U.S. Customs facility. Because of these and 
other factors, there are not enough general aviation customers who have 
selected PBI as their airport who would switch to other airports to 
prevent anticompetitive price increases for fuel and other services at 
PBI resulting from this acquisition.
    In addition, post-acquisition price increases at PBI for fuel would 
not be prevented by efforts of general aviation customers to decrease 
fuel purchases at PBI by increasing fuel purchases at airports outside 
the region. Carrying more fuel than is necessary to reach the next 
destination is referred to in the industry as ``tankering.'' Most 
pilots tanker to some extent in response to fuel prices; that is, they 
buy more fuel at their origin if it is significantly cheaper so they 
can buy less at their destination (or vice versa). Tankering, however, 
would prevent a post-merger fuel price increase only if it would 
increase significantly after the merger, resulting in significant lost 
fuel sales at PBI. For a number reasons, PBI general aviation customers 
are not likely to change their current tankering practices enough to 
prevent a post-merger fuel price increase at PBI. First, tankering is 
not possible on all flights, particularly on those that are near the 
aircraft's maximum range. Second, some pilots are unwilling to carry 
around excess fuel due to safety concerns. Third, tankering itself is 
costly: fuel is heavy and the extra weight requires that more fuel be 
burned, and there is additional wear and tear on the engine and landing 
gear. These added costs mean that only large fuel price differences can 
induce tankering.
    Available data confirmed that tankering is unlikely to prevent a 
post-merger fuel price increase at PBI. Using information on average 
prices and quantities of jet fuel sold at PBI, we estimated the 
elasticity of demand for Jet A fuel at PBI. The demand for Jet A fuel 
at PBI is inelastic. The elasticity was estimated to be about .7, which 
indicates that tankering, and all other forms of substitution, would 
not lead to a fuel sales decrease at PBI sufficient to deter a price 
increase.

C. Competition Between Signature and International Aviation

    Signature and International Aviation are direct competitors in the 
provision of FBO services to general aviation customers at PBI. All 
three FBOs at PBI compete over price and service packages.
    General aviation customers have benefited from competition between 
Signature and International Aviation at PBI, receiving lower prices and 
improved FBO services. The elimination of this competition would reduce 
competition significantly in the market for FBO services to general 
aviation customers at PBI. Because Signature and International 
Aviation's facilities are close competitive alternatives for a 
substantial number of general aviation customers at PBI, competition 
between these FBOs limits the ability of each FBO to raise prices. This 
merger would eliminate the price constraining impact each has on the 
other.
    In addition, as a result of Signature's acquisition of 
International Aviation, a duopoly would be created at PBI, making it 
easier for the two remaining firms to coordinate with one another and 
raise prices and lower the quality of FBO services to general aviation 
customers at PBI.
    New entry is not likely to check Signature's ability to raise 
prices or reduce service as a result of the acquisition. The airport 
has set aside land for an additional FBO. Although that site is 
currently in use as the airport's antennae farm, the antennae farm 
could, at a cost, be relocated. There are additional sunk costs of 
entering, including costs associated with construction of ramp, 
terminal, hangar and fueling facilities. In this case, all of this 
necessary preparation could be completed within a reasonable period of 
time; that is, there are no insurmountable obstacles to timely entry. 
That new entry could occur within a reasonable period of time, however, 
is a necessary but not sufficient condition for new entry to prevent 
the anticompetitive effects of the merger.
    The ultimate issue is whether a firm would enter the market on a 
scale sufficient to cause prices to fall to pre-merger levels. The 
answer depends not only on whether entry on that scale is possible, but 
whether it would be profitable in the post-acquisition environment. 
Here, after taking into account the sunk costs required for entry on 
the airport, the likely margins an entrant would earn over time at pre-
merger prices, and the discount or ``hurdle'' rates typically used in 
the FBO industry to make similar investment decisions, it appears that 
entry at PBI would be profitable only if the entrant could build a 
significantly smaller facility but still achieve a market share similar 
to that of the three current competitors, all without significantly 
underpricing its PBI rivals. Because an entrant is not likely to be 
able to lure customers away from incumbents without offering 
significant discounts or providing a better facility, post-merger entry 
is unlikely to occur at PBI.

D. Anticompetitive Consequences of the Acquisition

    The Complaint alleges that the combination of Signature and 
International Aviation would substantially increase concentration in 
the market for the provision of FBO services at PBI, using the 
Herfindahl-Hirschman Index (``HHI'') \1\ as a measure of market 
concentration. The post-merger HHI, based on Jet A gallons sold in 1995 
at PBI, would be approximately 5450 with a change in HHI of about 2000 
points. For that year, International Aviation sold approximately 40% of 
the throughput at PBI, and Signature accounted for approximately 25% of 
sales. If the proposed acquisition were consummated, the combined 
company

[[Page 7048]]

would account for 65% of the jet fuel sales at PBI.
---------------------------------------------------------------------------

    \1\ The Herfindahl-Hirschman Index, or ``HHI,'' is a commonly 
accepted measure of market concentration. It is calculated by 
squaring the market share of each firm competing in the market and 
then summing the resulting numbers. For example, for a market 
consisting of four firms with shares of thirty, thirty, twenty, and 
twenty percent, the HHI is 2600 (30\2\+30\2\+20\2\+20\2\=2600). The 
HHI takes into account the relative size and distribution of the 
firms in a market and approaches zero when a market consists of a 
large number of firms of relatively equal size. The HHI increases 
both as the number of firms in the market decreases and as the 
disparity in size between those firms increases. Markets in which 
the HHI is between 1000 and 1800 are considered to be moderately 
concentrated, and those in which the HHI is in excess of 1800 points 
are considered to be concentrated.
---------------------------------------------------------------------------

    The Complaint further alleges that the acquisition of International 
Aviation by Signature would substantially lessen competition. The 
transaction would have the following effects, among others:
    1. actual competition between Signature and International Aviation 
in the market for FBO services at PBI will be eliminated;
    2. competition generally in the market for FBO services at PBI is 
likely to be substantially lessened;
    3. prices for fuel sold to general aviation customers at PBI are 
likely to increase.
    Several sources of data were examined in this case to determine the 
likely effect of reducing the number of FBOs at PBI from three to two. 
Using estimates of the PBI Jet A fuel demand elasticity and other 
information, a standard economic model of competition among sellers of 
differentiated products predicted an overall average increase in the 
price of Jet A fuel at PBI on the order of four percent in the event 
that the merger were allowed to occur without a divestiture. Also, an 
analysis of margins earned by Signature at its many different airports 
suggested that reducing the number of competitors from three to two 
tends to increase average price by about five percent.

III. Explanation of the Proposed Final Judgment

    The United States brought this action because the effect of the 
acquisition of International Aviation by Signature may be substantially 
to lessen competition, in violation of Section 7 of the Clayton Act, in 
the market for FBO services to general aviation customers at PBI. The 
risk to competition posed by this acquisition, however, would be 
eliminated if certain assets and leases currently held by Signature to 
operate its PBI FBO business were sold and assigned to a purchaser that 
could operate them as an active, independent and financially viable 
competitor. To this end, the provisions of the proposed Final Judgment 
are designed to accomplish the sale and assignment of certain assets 
and leaseholds to such a purchaser and thereby prevent the 
anticompetitive effects of the proposed acquisition.
    Section IV of the proposed Final Judgment requires defendant 
Signature, within one hundred and eighty (180) calendar days after 
acquiring International Aviation, to divest the bulk of its FBO 
business, as set out in Section II.C (hereinafter ``The Assets to be 
Divested'') of the proposed Final Judgment. Unless the United States 
otherwise consents in writing, Signature is required to divest its 
interests in its terminal building, four hangars, its fuel farm, and 
ramp and parking space adjacent to these facilities. In addition, 
Signature shall divest such equipment and supplies as is necessary and 
appropriate to operate a viable FBO at PBI. Finally, Signature shall 
transfer its contracts, including customer contracts, and customer 
lists, for providing FBO services at PBI.
    Divestiture of the assets and leaseholds will cure the potential 
anticompetitive consequences of Signature's acquisition of 
International Aviation. The Assets to be Divested include all the ramp, 
hangar, terminal, parking, and fuel farm assets that have been used by 
Signature in providing FBO services at PBI. Together with the 
equipment, supplies and customer contracts and lists, these assets will 
give a qualified purchaser the means to establish itself as a 
competitive alternative to Signature and Jet Aviation. Thus, as a 
result of the divestiture required by the proposed Final Judgment, 
general aviation consumers at PBI will continue to have a choice among 
three competitive FBOs.
    Under the proposed Final Judgment, Signature must take all 
reasonable steps necessary to accomplish quickly the divestiture of The 
Assets to be Divested, and shall cooperate with bona fide prospective 
purchasers by supplying all information relevant to the proposed sale. 
Should Signature fail to complete its divestiture within one hundred 
and eighty (180) calendar days, the Court will appoint, pursuant to 
Section V, a trustee to accomplish the divestiture. The United States 
will have the discretion to delay the appointment of the trustee for up 
to an additional three months should it appear that the assets can be 
sold in the extended time period.
    Following the trustee's appointment, only the trustee will have the 
right to sell the diversiture assets, and defendant Signature will be 
required to pay for all of the trustee's sale-related expenses. The 
trustee's compensation will be structured so as to provide an incentive 
for the trustee to obtain the highest price for the assets to be 
divested, and to accomplish the divestiture as quickly as possible.
    Section VI of the proposed Final Judgment would assure the United 
States an opportunity to review any proposed sale, whether by Signature 
or by the trustee, before it occurs. Under this provision, the United 
States is entitled to receive complete information regarding any 
proposed sale or any prospective purchaser prior to consummation. Upon 
objection by the United States to a sale of the divestiture assets by 
the defendant Signature, a proposed divestiture may not be completed. 
Should the United States object to a sale of the divested assets by the 
trustee, that sale shall not be consummated unless approved by the 
Court.
    Pursuant to Section V.E, should the trustee not accomplish the 
divestiture within six months of appointment, the trustee and the 
parties will make recommendation to the Court, which shall enter such 
orders as it deems appropriate to carry out the purpose of the trust, 
which may include extending the trust of the term of the trustee's 
appointment.
    Under Section IX of the proposed Final Judgment, defendant 
Signature must take certain steps to ensure that, until the required 
divestiture has been completed, the divestiture assets will be 
maintained as a separate, ongoing, viable business and kept distinct 
from Signature's other FBO operations. Until such divestiture, 
Signature must also continue to maintain and operate the divestiture 
assets as a viable, independent competitor at PBI, using all reasonable 
efforts to maintain and increase sales of FBO services to general 
aviation customers. Signature must maintain the business, so that it 
continues to be stable, including maintaining all records, loans, and 
personnel necessary for its operation.
    Section X requires the defendant to make available, upon request, 
the business records and the personnel of its business. This provision 
allows the United States to inspect its facilities and ensure that the 
defendant is complying with the requirements of the proposed Final 
Judgment. Section XII of the proposed Final Judgment provides that it 
will expire on the tenth anniversary of its entry by the Court.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. Sec. 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 the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
Sec. 16(a), the proposed Final Judgment has no prima facie effect in 
any subsequent private

[[Page 7049]]

lawsuit that may be brought against the defendant.

V. Procedure for Commenting on the Proposed Final Judgment

    The United States and defendant have stipulated that the proposed 
Final Judgment may be entered by the Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register. The United States will 
evaluate and respond to the comments. All comments will be given due 
consideration by the Department of Justice, which remains free to 
withdraw its consent to the proposed Final Judgment at any time prior 
to entry. 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: Roger W. Fones, Chief, 
Transportation, Energy & Agriculture Section, Antitrust Division, 325 
Seventh Street, N.W., Suite 500, Washington, D.C. 20530.

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 of its Complaint against 
Signature. The United States is satisfied, however, that the 
divestiture of the assets and other relief contained in the proposed 
Final Judgment will preserve viable competition in the provision of FBO 
services to general aviation customers at PBI that otherwise would be 
affected adversely by the acquisition. Thus, the compliance with the 
proposed Final Judgment and the completion of the sale required by the 
Judgment would achieve the relief the government would have obtained 
through litigation, but avoids the time, expense, and uncertainty of a 
full trial on the merits of the government's Complaint.

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. Sec. 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 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, ``the 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.'' \2\ Rather,

    \2\ 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. Sec. 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.
---------------------------------------------------------------------------

    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. para. 
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.\3\
---------------------------------------------------------------------------

    \3\ United States v. Bechtel, 648 F.2d at 666 (citations 
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d 
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).

    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 
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.' (citations 
omitted).'' \4\
---------------------------------------------------------------------------

    \4\ United States v. American Tel. and Tel. Co., 552 F. Supp. 
131, 150 (D.D.C. 1982), aff'd sub nom, Maryland v. United States, 
460 U.S. 1001 (1983), quoting United States v. Gillette Co., supra, 
406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F. 
Supp. 619, 622 (W.D. Ky. 1985).
---------------------------------------------------------------------------

VIII. Determinative Materials and Documents

    There are no materials or documents that the United States 
considered to be determinative in formulating this proposed Final 
Judgment. Accordingly, none are being filed with this Competitive 
Impact Statement.

    Dated: February 5, 1997.


[[Page 7050]]


      Respectfully submitted,
Kelly Signs, Michele B. Cano, Robert McGeorge, Michael Harmonis,
Trial Attorneys, U.S. Department of Justice, Antitrust Division, 
Transportation, Energy and Agriculture Section, Suite 500, 325 Seventh 
Street, N.W., Washington, D.C. 20530, (202) 307-6351.
[FR Doc. 97-3698 Filed 2-13-97; 8:45 am]
BILLING CODE 4410-11-M