Complaint ¶ 17. 1

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Jon Leibowitz, Chairman

William E. Kovacic

J. Thomas Rosch

Edith Ramirez

Julie Brill

 In the Matter of

 AGRIUM, INC.,

 a corporation.

Docket No. C-4277

ORDER REOPENING AND SETTING ASIDE ORDERS

Agrium, Inc. filed its Petition To Reopen and Set Aside Orders on November 23, 2010. 

Agrium bases the Petition on the changed fact that Agrium’s pending hostile takeover of CF

Holdings, Inc., upon which the Commission’s final Decision and Order, and the Order to Hold

Separate (“Orders”), were premised, ultimately never occurred and has been abandoned. For the

reasons stated below, the Commission has determined to grant the Petition and has reopened and

set aside the Orders.

I. BACKGROUND - THE COMMISSION’S COMPLAINT AND ORDERS

This matter arose from Agrium’s proposed acquisition of CF. Agrium pursued a hostile

tender offer for CF that began in February 2009, and continued throughout most of 2009. CF,

however, rebuffed Agrium’s advances and launched its own tender offer to acquire the much

larger Terra Industries. Agrium’s proposed acquisition of CF raised competitive concerns in the

anhydrous ammonia terminal markets in Ritzville, Washington, and Marseilles, Illinois.

Agrium agreed to settle the matter, and on December 22, 2009, the Commission accepted

an agreement containing consent orders for public comment. At that time, the Commission

issued its Complaint alleging that the merger between Agrium and CF, if consummated, would

violate Section 7 of the Clayton Act and Section 5 of the FTC Act. At the same time, the 1

Commission also issued and served its Order to Hold Separate and Maintain Assets (“Hold

Separate Order”), which became final. Following a public comment period, the Commission

issued and served the Decision and Order on February 3, 2010. The Decision and Order requires
 Petition at 2-3. 2

 Petition at Exhibit 1: Letter to Premerger Notification Office from Joseph J. Simons,

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November 23, 2010.

 Petition at 4. 4

 Id. 5

 Id. and Petition at Exhibit A, Affidavit of Joni Paulus in Support of Petition of Agrium, 6

Inc. To Reopen and Set Aside Orders (“Affidavit”) ¶¶ 12-13.

 Petition at 5 (“Without the Agrium-CF acquisition, the factual underpinnings of the 7

Commission’s Complaint and subsequent Orders have been eliminated.”).

 Petition at 5. 8

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Agrium to divest CF’s Ritzville, Washington, and Agrium’s Marseilles, Illinois, anhydrous

ammonia terminals to Terra and to terminate its distribution agreement with Rentech Energy

Midwest Corporation – all triggered by completion of Agrium’s acquisition of CF. The Hold

Separate Order requires Agrium to maintain and hold separate Agrium’s Marseilles, Illinois

terminal pending its divestiture. As a part of the divestiture, Agrium also agreed to sell its 50%

interest in the Carseland Nitrogen Operations facility in Alberta, Canada, which produces

anhydrous ammonia and would supply the Ritzville terminal.

Ultimately, Agrium was not successful in acquiring CF. Agrium announced on March

11, 2010, that it would not go forward with the acquisition, and let its outstanding offer for CF

expire on March 22, 2010. CF completed its acquisition of Terra on April 19, 2010. Agrium 2

withdrew its Hart-Scott-Rodino (“HSR”) filing to acquire CF on November 23, 2010. Although 3

Agrium’s obligations to divest never ripened, it has been holding the Marseilles terminal

separate as required by the Hold Separate Order. 

II. AGRIUM’S PETITION

Agrium states that the remedial purpose of the Orders was to remedy the lessening of

competition resulting from the Agrium-CF acquisition as alleged in the Commission’s

Complaint. Agrium adds, “Similarly, the purpose of the Hold Separate Order is to facilitate the 4

purpose of the Consent Agreement in remedying the lessening of competition as alleged in the

Complaint.” Agrium notes that the Agrium-CF acquisition never occurred and that Agrium “no 5

longer intends to purse an acquisition of CF.” Agrium asserts that these circumstances 6

constitute changed conditions of fact that eliminate the need for the Orders. 

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Agrium also asserts that the public interest warrants setting aside the Orders because the

Orders are imposing significant costs on Agrium. Agrium claims to have lost the flexibility to 8

operate the terminal as it chooses. Specifically, Agrium states that the Orders “limit how
 Petition at 5, citing Affidavit ¶ 9. Agrium also states that the periodic reports require a 9

considerable amount of time and impose costs that create no value for Agrium and “are passed

on to Agrium’s customers and its shareholders.” Id.

 See also Supplementary Information, Amendment to the Commission’s Rules of 10

Practice § 2.51(b), 16 CFR 2.51(b) (August 15, 2001).

 S. Rep. No. 96-500, 96th Cong., 2d Sess. 9 (1979) (significant changes or changes 11

causing unfair disadvantage); Louisiana-Pacific Corp., Docket No. C-2956, Letter to John C.

Hart (June 5, 1986), at 4 (unpublished) (“Hart Letter”). See also United States v. LouisianaPacific Corp., 967 F.2d 1372, 1376-77 (9th Cir. 1992) (“A decision to reopen does not

necessarily entail a decision to modify the Order. Reopening may occur even where the petition

itself does not plead facts requiring modification.”). 

 16 C.F.R. § 2.51(b). 12

 Hart Letter at 5; 16 C.F.R. § 2.51. 13

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Agrium conducts business at the Marseilles Terminal: limiting Agrium from transferring or

firing employees; requiring it to maintain current contracts; requiring it to continue existing

levels of maintenance and continue with previously planned improvements; preventing it from

selling any part of the Marseilles Terminal property or using it as collateral; requiring Agrium to

maintain corporate financial support; and requiring it to continue EH&S and engineering support

services.”9

No public comments were filed during the Commission’s public comment period.

III. STANDARD FOR REOPENING AND MODIFYING A FINAL ORDER

A final order may be reopened and modified on the grounds set forth in § 5(b) of the

Federal Trade Commission Act, 15 U.S.C. § 45(b). First, Section 5(b) provides that the

Commission shall reopen an order to consider whether it should be modified if the respondent

“makes a satisfactory showing that changed conditions of law or fact” so require. A 10

satisfactory showing sufficient to require reopening is made when a request to reopen identifies

significant changes in circumstances and shows that the changes eliminate the need for the order

or make continued application of it inequitable or harmful to competition. The Commission’s 11

Rule 2.51(b) requires such “satisfactory showing” to include affidavits setting forth admissible

facts.12

Second, Section 5(b) provides that the Commission may also reopen and modify an order

when, although changed circumstances would not require reopening, the Commission determines

that the public interest so requires. Respondents are therefore invited in petitions to reopen to

show how the public interest warrants the requested modification. In the case of “public

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interest” requests, Rule 2.51(b) requires an initial “satisfactory showing” of how modification
 16 C.F.R. § 2.51. 14

 See United States v. Louisiana-Pacific Corp., 967 F.2d 1372, 1376-77 (9 Cir. 1992) 15 th

(reopening and modification are independent determinations).

 See Federated Department Stores, Inc. v. Moitie, 425 U.S. 394 (1981) (strong public

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interest considerations support repose and finality).

 16 C.F.R. § 2.51(b). 17

 Final Order ¶¶ II.K., III.H., IV.B. 18

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would serve the public interest before the Commission determines whether to reopen an order

and consider all of the reasons for and against its modification.

A “satisfactory showing” requires, with respect to public interest requests, that the

requester make a prima facie showing of a legitimate public interest reason or reasons justifying

relief. A request to reopen and modify will not contain a “satisfactory showing” if it is merely

conclusory or otherwise fails to set forth by affidavit(s) specific facts demonstrating in detail the

reasons why the public interest would be served by the modification. This showing requires

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the requester to demonstrate, for example, that there is a more effective or efficient way of

achieving the purposes of the order, that the order in whole or part is no longer needed, or that

there is some other clear public interest that would be served if the Commission were to grant the

requested relief. Just as for petitions based on changed conditions, this showing must be

supported by evidence that is credible and reliable.

If, after determining that the requester has made the required showing, the Commission

decides to reopen the order, the Commission will then consider and balance all of the reasons for

and against modification. In no instance does a decision to reopen an order oblige the

Commission to modify it, and the burden remains on the requester in all cases to demonstrate 15

why the order should be reopened and modified. The petitioner’s burden is not a light one in

view of the public interest in repose and the finality of the Commission’s orders. All

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information and material that the requester wishes the Commission to consider shall be

contained in the request at the time of filing.17

IV. THE ORDERS WILL BE REOPENED AND SET ASIDE

The Commission has determined to reopen and set aside the Orders as requested by

Agrium. The Orders were premised on the Complaint’s allegation that Agrium’s acquisition of 

CF would be unlawful. The Decision and Order’s divestiture requirements would remedy that

violation, and the Hold Separate Order is intended to be a temporary order to maintain assets and

keep them separate, viable, and competitive pending the divestiture. 

The Decision and Order explicitly states that the purpose of the Order is “to remedy the

lessening of competition alleged in the Commission’s complaint.” As noted above, the 18
 Complaint ¶ 17. 19

 It is very unlikely that Agrium would attempt to acquire CF again. See Petition at 20

Exhibit A, Affidavit ¶ 13: Joni Paulus, General Counsel for Agrium states: “Agrium has

withdrawn its HSR filing and no longer intends to pursue an acquisition of CF.” Any renewed

attempt by Agrium to acquire CF again would require a new HSR Notification. 

 Order Reopening and Setting Aside Order, Johnson & Johnson, Docket No. C-4154, 21

at 4 (“The acquisition agreement between J&J and Guidant has been terminated, and the

acquisition was never consummated. Accordingly, the basic premise of the Order, the unlawful

acquisition that it was designed to remedy, did not come to pass. Therefore there is no reason to

keep the Order in place.”). See also PacifiCorp, File No. 971-0091 (Commission withdrawal

from the consent agreement and closing of the matter when PacifiCorp withdrew its bid for TEG

after the Commission had accepted the consent for public comment, but before the order was

made final); Order Reopening and Setting Aside Order, In the Matter of Entergy Corporation

and Entergy-Koch, L.P., Docket No. C-3998 (2005) (Commission reopened and set aside the

order when Entergy sold its interest in the assets that gave rise to the competitive concerns

addressed by the order). 

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Complaint alleges that the merger between Agrium and CF, if consummated, would violate

Section 7 of the Clayton Act and Section 5 of the FTC Act. Agrium has categorically 19

abandoned its efforts to acquire CF and has withdrawn its HSR Notification for the acquisition. 

This fundamental premise to the Commission’s Complaint is now effectively a nullity. 

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Accordingly, it is altogether unlikely that the Decision and Order’s divestiture

obligations will ever arise, and so they should be set aside. Further, without the divestiture

requirement in place, there is no reason to retain Agrium’s obligations to continue observing the

temporary requirements under the Hold Separate Order. The Hold Separate Order was

implemented as a temporary requirement to keep the assets-to-be-divested in good operating

order pending their divestiture. Its requirements are obviated if the obligation to divest the heldseparate assets is terminated. There is no continuing need to restrict Agrium’s flexibility to

control, operate, or dispose of the Marseilles terminal as it so chooses.

Setting aside the Orders in this case is consistent with the Commission’s determination to

set aside the final order in Johnson & Johnson, C-4154 (2005). In that case, Johnson & Johnson

(“J&J”) had an agreement to acquire Guidant Corporation. Following an investigation, the

Commission entered an order, with J&J’s consent, requiring J&J to divest assets, license

technology, and end certain distribution arrangements. The order became final in December

2005. Before J&J could complete its acquisition of Guidant, however, Boston Scientific

Corporation (“BSC”) made a competing bid for Guidant. Eventually, Guidant agreed to be

acquired by BSC, and on January 25, 2006, Guidant terminated its agreement with J&J. Later in

2006, the Commission accepted for public comment an agreement containing consent order with

BSC, and BSC then completed its acquisition of Guidant. On May 26, 2006, the Commission

granted J&J’s petition to set aside the J&J order.21
 Additionally, CF’s acquisition of Terra has created additional market overlaps that 22

very likely would be implicated by any future combination of Agrium and CF, all of which could

be reviewed pursuant to a new HSR filing.

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Agrium has terminated and abandoned its proposed acquisition of CF and has withdrawn

its HSR filing; and there is no indication that it will be reprised. This constitutes changed facts 22

that eliminate the need to retain the Orders. 

IT IS ORDERED that this matter be, and it hereby is, reopened and that the Decision

and Order and Order to Hold Separate be, and they hereby are, set aside.

By the Commission.

Donald S. Clark

Secretary

ISSUED: March 7, 2011