27652 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States of America v. Bayer AG 

and Monsanto Company; Proposed 

Final Judgment and Competitive 

Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

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

Final Judgment, Stipulation and Order, 

and Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

Bayer AG and Monsanto Company, 

Civil Action No. 1:18–cv–1241. On May 

29, 2018, the United States filed a 

Complaint alleging that Bayer AG’s 

proposed acquisition of Monsanto 

Company would violate Section 7 of the 

Clayton Act, 15 U.S.C. § 18. The 

proposed Final Judgment, filed at the 

same time as the Complaint, requires 

Bayer AG to divest a substantial 

collection of assets relating to seeds and 

traits, crop protection, and digital 

agriculture. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

http://www.justice.gov/atr and at the 

Office of the Clerk of the United States 

District Court for the District of 

Columbia. Copies of these materials may 

be obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, including the name of the 

submitter, and responses thereto, will be 

posted on the Antitrust Division’s 

website, filed with the Court, and, under 

certain circumstances, published in the 

Federal Register. Comments should be 

mailed to Kathleen S. O’Neill, Chief, 

Transportation, Energy & Agriculture 

Section, Antitrust Division, Department 

of Justice, 450 5th Street NW, Suite 

8000, Washington, DC 20530. 

Patricia A. Brink, 

Director of Civil Enforcement. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

United States of America, 450 5th Street 

NW, Suite 8000, Washington, DC 20530, 

Plaintiff, v. Bayer AG, Kaiser-Wilhelm-Allee 

1, Leverkusen, Germany 51368, and 

Monsanto Company, 800 North Lindbergh 

Boulevard, St. Louis, MO 63167, Defendants. 

Civil Action No.: 1:18–cv–1241 

Judge James E. Boasberg 

COMPLAINT 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action to prevent Bayer 

AG from acquiring Monsanto Company. 

The United States alleges as follows: 

I. INTRODUCTION 

1. Bayer’s proposed $66 billion 

acquisition of its rival, Monsanto, would 

combine two of the largest agricultural 

companies in the world. Across the 

globe, Bayer and Monsanto compete to 

sell seeds and chemicals that farmers 

use to grow their crops. This 

competition has bolstered an American 

farming industry that contributes 

hundreds of billions of dollars a year to 

the economy, provides millions of jobs 

across the country, and ensures a safe 

and reliable food supply for consumers 

in the United States and around the 

world. 

2. If allowed to proceed, the proposed 

acquisition would transform the 

agricultural industry and harm 

competition across a broad range of 

products. Most prominently, the 

acquisition would eliminate 

competition to develop and sell 

genetically modified seeds in cotton, 

canola, and soybeans—three of the 

largest crops grown in the United 

States—and the herbicides that are 

paired with these seeds to form the 

foundation of farmers’ weed-control 

strategies. 

3. These agricultural technologies 

emerged in the 1990s when Monsanto 

introduced ‘‘Roundup Ready’’ soybeans, 

which were genetically engineered to 

resist Monsanto’s herbicide, Roundup. 

Monsanto’s invention allowed farmers 

who planted Roundup Ready soybeans 

to spray Roundup over the top of their 

crops, thereby killing the weeds without 

harming the crops. It was a wildly 

popular invention; by 2005, almost 90% 

of U.S. soybean acres were planted with 

Roundup Ready seeds. In response, in 

2009, Bayer launched its own 

‘‘LibertyLink’’ genetically modified 

soybeans, which were engineered to 

withstand Bayer’s Liberty herbicide. 

Both companies have introduced similar 

innovations in cotton and canola, 

generating competition that has resulted 

in higher crop yields, lower prices, and 

greater choice for American farmers. 

Today, Bayer’s weed-control systems are 

the only competitive alternatives to 

Monsanto’s Roundup Ready systems in 

cotton, canola, and soybeans. 

4. Bayer and Monsanto also compete 

head-to-head to develop the next 

generation of transformative products, 

including cotton, canola, and soybean 

seeds with new genetically modified 

traits, as well as other innovative 

products that improve yields for 

farmers. This competition is central to 

their businesses. Monsanto’s chief 

technology officer has said that 

innovation is ‘‘the heart and soul of who 

we are.’’ Similarly, Bayer’s core strategy 

is to become the ‘‘most innovative’’ 

agricultural company in the world. Both 

companies invest significant sums of 

money into research and development 

and monitor each other’s efforts, 

spurring each other to work faster and 

invest more to improve their offerings 

and develop new products. For 

instance, Monsanto recently developed 

a seed treatment product that protects 

crops from destructive worms called 

nematodes, directly challenging Bayer’s 

historic dominance in that space. The 

proposed acquisition would eliminate 

this competition to develop new 

products that farmers will depend on for 

decades into the future. 

5. The merger would also 

substantially lessen competition 

through the vertical integration of the 

two companies. Specifically, by 

combining Monsanto’s strong position 

in seeds with Bayer’s dominant position 

in certain seed treatments, the merger 

would give the combined company the 

incentive and ability to harm its seed 

rivals by raising the price of those seed 

treatments—a key input for genetically 

modified seeds. For example, today, 

Bayer sells the only seed treatment that 

effectively controls a destructive pest 

called corn rootworm. Because Bayer 

does not sell corn seeds itself, it has a 

strong incentive to sell that seed 

treatment to all corn seed companies, 

including Monsanto’s rivals. But the 

merger would change the calculus for 

Bayer because it would now own 

Monsanto, the largest supplier of corn 

seeds in the United States. Armed with 

Monsanto’s strong position in corn 

seeds, the merged company would 

likely charge its seed rivals more for the 

seed treatment, knowing that they rely 

on the product and would be less able 

to compete effectively without it. 

6. Finally, the merger would eliminate 

head-to-head competition between 

Bayer and Monsanto to develop and sell 

seeds for five types of vegetables: 

tomatoes, carrots, cucumbers, onions, 

and watermelons. Although vegetable 

seeds are not genetically modified like 

cotton, canola, and soybeans, Bayer and 

Monsanto compete aggressively with 

one another to breed higher-quality and 

higher-yielding varieties. 

7. By eliminating competition 

between Bayer and Monsanto and 

combining their businesses, the 

proposed acquisition would result in 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27653 

higher prices, less innovation, fewer 

choices, and lower-quality products for 

farmers and consumers throughout the 

United States and around the world. To 

prevent those harms, this unlawful 

acquisition should be enjoined. 

II. DEFENDANTS AND THE 

TRANSACTION 

8. Bayer is a life-sciences company 

based in Leverkusen, Germany. The 

company employs nearly 100,000 

people worldwide and has operations in 

almost 80 countries. Bayer has three 

main business lines: pharmaceuticals, 

which focuses on prescription 

medicines; consumer health, which 

focuses on over-the-counter products; 

and its agricultural business, Bayer Crop 

Science. Over the past decade, Bayer 

Crop Science has become one of the 

largest global agricultural companies. 

Today, its crop protection business is 

the second largest in the world, and its 

seeds and traits business is also among 

the world’s largest. In 2016, Bayer Crop 

Science had about $12 billion in annual 

revenues. 

9. Monsanto, based in St. Louis, 

Missouri, is also a leading producer of 

agricultural products. Monsanto 

employs more than 20,000 people in 

almost 70 countries. As noted, in the 

1990s, Monsanto pioneered a 

revolutionary technology that enables 

certain crops to resist exposure to 

glyphosate, the active ingredient in 

Monsanto’s Roundup herbicide. This 

technology propelled Monsanto’s 

success: today, Monsanto is the leading 

global producer of seeds and traits and 

is among the world’s largest producers 

of crop protection products. In 2017, 

Monsanto had almost $15 billion in 

annual revenues. 

10. On September 14, 2016, Bayer 

agreed to acquire Monsanto for 

approximately $66 billion. 

III. JURISDICTION AND VENUE 

11. The United States brings this 

action, and the Court has subject-matter 

jurisdiction, under Section 15 of the 

Clayton Act, 15 U.S.C. § 25, to prevent 

and restrain Defendants from violating 

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

§ 18. 

12. Defendants are engaged in, and 

their activities substantially affect, 

interstate commerce. Bayer and 

Monsanto sell agricultural products, 

including seeds and crop protection 

products, throughout the United States 

and the world. 

13. Defendants have consented to 

venue and personal jurisdiction in this 

district. Venue is also proper under 

Section 12 of the Clayton Act, 15 U.S.C. 

§ 22, and 28 U.S.C. § 1391. 

IV. RELEVANT MARKETS 

14. As noted, Bayer and Monsanto 

compete across a broad range of 

agricultural products, including 

genetically modified (GM) seeds and 

traits for row crops; crop protection 

products, such as herbicides and seed 

treatments; and vegetable seeds. The 

proposed acquisition would 

substantially lessen competition in the 

following 17 products: 

Bayer–Monsanto: Relevant Products 

GM Seeds and Traits 

Cotton: 

• Herbicide-tolerant traits 

• Insect-resistant traits 

• GM cotton seeds 

Canola: 

• Herbicide-tolerant traits 

• GM canola seeds 

Soybeans: 

• Herbicide-tolerant traits 

• GM soybeans 

Corn: 

• GM corn seeds 

Crop Protection 

Foundational herbicides 

Nematicidal seed treatments: 

• Corn 

• Soybeans 

• Cotton 

Vegetables 

• Carrot seeds 

• Cucumber seeds 

• Onion seeds 

• Tomato seeds 

• Watermelon seeds 

15. Each of these products is a 

relevant product and line of commerce 

under Section 7 of the Clayton Act, 15 

U.S.C. § 18. The industry views these 

products as separate business lines, and 

they satisfy the well-accepted 

hypothetical monopolist test in the U.S. 

Department of Justice and Federal Trade 

Commission Horizontal Merger 

Guidelines, which asks whether a 

hypothetical monopolist likely would 

impose at least a small but significant 

and non-transitory increase in price. 

Such a price increase for these products 

would not be defeated by substitution to 

alternative products. 

16. The relevant geographic markets 

in this case vary by product. For seeds 

and traits generally, the markets are 

regional because seeds are tailored to 

regional growing conditions (such as 

weather and soil type) and suppliers can 

charge different prices for seeds and 

traits to customers in different regions. 

With the exception of soybeans, 

however, virtually all of the regions 

affected by the merger have a similar 

market structure, so in this case it is 

appropriate to aggregate them to a 

national level for convenience. For 

soybeans, the market structure differs 

across regions; thus, the relevant 

geographic market is the southern 

United States, where Bayer has focused 

its soybean breeding program and been 

particularly successful. 

17. For the relevant crop protection 

products (foundational herbicides and 

nematicidal seed treatments), the 

geographic markets are national. Bayer 

and Monsanto sell these products 

throughout the United States. In 

addition, these products require U.S. 

regulatory approval, which is expensive 

and time-consuming, so competition is 

limited to products that have obtained 

the necessary approvals. Similar 

products sold in other countries but not 

approved for use in the United States 

are not reasonable substitutes for 

American farmers. 

18. For these reasons, in each of the 

relevant geographic markets for seeds 

and crop protection products, a 

hypothetical monopolist likely would 

impose at least a small but significant 

and non-transitory increase in price. 

19. Most of the relevant markets are 

already highly concentrated, and in 

each market the merger would 

significantly increase concentration. 

The more concentrated a market and the 

more a transaction increases 

concentration in that market, the more 

likely it is that the transaction will 

reduce competition. Concentration is 

typically measured by market shares 

and by the widely-used HerfindahlHirschman Index (HHI). If the posttransaction HHI would be more than 

2,500 and the change in HHI more than 

200, the transaction is presumed to 

enhance market power and substantially 

lessen competition. See, e.g., United 

States v. Anthem, Inc., 855 F.3d 345, 

349 (D.C. Cir. 2017). Given the high 

concentration levels and increases in 

concentration in the relevant markets in 

this case, the proposed acquisition 

presumptively violates Section 7 of the 

Clayton Act. 

A. Genetically Modified Seeds and 

Traits 

20. Several markets in this case 

involve genetically modified seeds and 

traits. A genetic trait is simply an 

attribute of a plant, such as being tall, 

short, or leafy. Most traits derive from 

a plant’s natural DNA. Over the last 30 

years, however, a small set of highly 

sophisticated biotechnology firms— 

including Bayer and Monsanto—have 

successfully inserted DNA from other 

organisms into the DNA of certain 

crops, giving the crops a desirable trait 

associated with that non-native DNA. 

For example, scientists have developed 

traits that make crops resistant to certain 


amozie on DSK3GDR082PROD with NOTICES2
27654 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

pests, allowing farmers to reduce their 

use of chemical insecticides. And 

scientists have developed herbicidetolerant traits that make crops resistant 

to herbicides like Roundup, allowing a 

farmer to spray the herbicide over an 

entire field and kill the weeds without 

harming the crops. A genetically 

modified seed is simply a seed that 

contains DNA—and hence the desirable 

trait—of a different organism. Farmers 

have embraced this technology: today, 

more than 90% of the corn, soybeans, 

cotton, and canola seeds grown in the 

United States are genetically modified. 

These seeds provide farmers with 

considerable savings in labor and 

expense, increased yields, and reduced 

soil erosion by eliminating the need for 

tilling fields. Thus, a vast majority of 

farmers do not view conventional seeds 

as a reasonable substitute. 

21. With the rise of genetically 

modified crops, it has also become 

harder for smaller companies, which 

lack the massive resources necessary to 

devote to research and development, to 

compete in these high-tech markets. It 

typically takes hundreds of millions of 

dollars and more than a decade to bring 

a genetically modified seed variety or a 

new pesticide to market. A company 

must also have access to an extensive 

library of high-quality seeds that are 

necessary for research and plant 

breeding. Today, such resources are 

increasingly controlled by four 

vertically integrated companies: 

Monsanto, Bayer, DowDuPont, and 

Syngenta, also known as the ‘‘Big Four.’’ 

Although smaller independent seed 

companies also sell genetically modified 

seeds to farmers, most of those 

companies license traits and seed 

varieties from Monsanto, limiting their 

ability to compete. 

22. As described below, Bayer and 

Monsanto are close competitors in three 

important row crops: cotton, canola, and 

soybeans. 

(1) Genetically modified cotton 

23. Cotton is a major crop grown 

across the southern United States, 

particularly in states like Texas and 

Georgia. Cotton seeds are widely used in 

vegetable oil, packaged foods, and 

animal feed, and cotton fibers are 

widely used in clothing. In 2017, U.S. 

farmers planted about 12 million acres 

of cotton and sales of cotton seeds 

totaled over $800 million. For cotton, 

the proposed acquisition would harm 

competition in the markets for (1) 

genetically modified cotton seeds, (2) 

herbicide-tolerant traits for cotton, and 

(3) insect-resistant traits for cotton. 

24. GM cotton seeds. Bayer and 

Monsanto have long been the two 

leading suppliers of genetically 

modified cotton seeds throughout the 

United States. In addition to owning 

critical traits (discussed below), they 

own extensive libraries of elite seed 

varieties, which are essential for 

developing and commercializing 

competitive cotton seeds. If the 

transaction is allowed to proceed, Bayer 

and Monsanto would have a combined 

59% share of genetically modified 

cotton seeds in the United States. The 

post-transaction HHI would be 

approximately 4,100, with an increase 

of approximately 1,500 resulting from 

the transaction. 

25. Herbicide-tolerant traits. Given 

the widespread adoption of genetically 

modified cotton seeds, herbicidetolerant traits are now used on 

approximately 98% of the cotton acres 

in the United States. In 2017, Bayer and 

Monsanto accounted for virtually all of 

those acres, with about 19% of acres 

containing Bayer’s traits and about 80% 

containing Monsanto’s traits. The 

merger would thus give Bayer a 

monopoly in these markets: the posttransaction HHI would be 

approximately 9,600, with an increase 

of approximately 3,000. Bayer and 

Monsanto are also competing 

aggressively to develop the next 

generation of herbicide-tolerant cotton 

traits. Farmers need these innovations to 

combat the growing number of weeds, 

like pigweed, that have become 

increasingly resistant to glyphosate in 

recent years. Without the merger, these 

new traits would likely compete in the 

future. 

26. Insect-resistant traits. Bayer 

and Monsanto also compete for sales of 

insect-resistant traits that protect cotton 

from destructive pests such as moth and 

bollworm larvae. In 2017, insectresistant traits were used on 

approximately 88% of the cotton acres 

in the United States. Bayer and 

Monsanto accounted for approximately 

85% of those acres, with about 10% of 

acres containing Bayer’s traits and about 

75% containing Monsanto’s traits. The 

post-transaction HHI would be 

approximately 7,400, with an increase 

of approximately 1,400. 

(2) Genetically modified canola 

27. Canola is an important crop used 

in vegetable oil, packaged foods, 

biodiesel fuels, and animal feed. In the 

United States, canola is grown on 

approximately 1.7 million acres, mainly 

in North Dakota, but also in several 

other states. The proposed merger 

would harm competition in the markets 

for (1) genetically modified canola seeds 

and (2) herbicide-tolerant traits for 

canola. 

28. GM canola seeds. In 2016, 

genetically modified canola seeds 

accounted for $83 million in sales in the 

United States, and virtually all canola 

seeds contain genetically modified 

traits. Bayer’s canola innovations in 

recent years have allowed it to surpass 

Monsanto. In 2016, Bayer’s share of 

genetically modified canola seeds in the 

United States was 60% and Monsanto’s 

share was 14%. The post-transaction 

HHI would be approximately 5,600, 

with an increase of approximately 

1,700. 

29. Herbicide-tolerant traits. Bayer 

and Monsanto are even more dominant 

in herbicide-tolerant traits for canola, 

where they have a combined share of 

95%. Virtually all canola seeds planted 

in the United States contain either 

Bayer’s LibertyLink trait or Monsanto’s 

Roundup Ready trait. For these traits, 

the post-transaction HHI would be 

approximately 9,200, with an increase 

of over 4,100. 

(3) Genetically modified soybeans 

30. After corn, soybeans are the 

largest crop grown in the United States. 

Soybeans are widely used in vegetable 

oil, packaged foods, and animal feed. In 

2017, U.S. farmers planted almost 90 

million acres of soybeans, accounting 

for $4.6 billion in seed purchases, and 

94% of those acres contained herbicidetolerant traits. The proposed acquisition 

would harm competition in the markets 

for (1) genetically modified soybeans 

and (2) herbicide-tolerant traits for 

soybeans. 

31. GM soybeans. Since launching 

genetically modified soybeans in the 

1990s, Monsanto has been the market 

leader. For years, Monsanto’s only 

competitors were companies that relied 

on Monsanto for licenses to the 

Roundup Ready traits. Since 2009, 

however, Bayer has emerged as a serious 

threat: it has invested over $250 million 

to develop an independent source of 

soybean varieties and in 2014 launched 

its own soybean business, Credenz, 

which sells varieties that perform well 

in the southern United States. In 2017, 

Bayer had a 6% share of soybeans in 

that region and Monsanto had a 39% 

share. The post-transaction HHI in the 

southern United States would be 

approximately 2,800, with an increase 

of approximately 500. 

32. Herbicide-tolerant traits. Bayer 

and Monsanto also have the leading 

herbicide-tolerant traits for soybeans. 

Monsanto’s Roundup Ready trait has 

historically dominated sales, but in 

recent years Bayer’s LibertyLink trait 

has made inroads. In 2017, Monsanto 

had a 67% share of U.S. sales and 

Bayer’s share had risen to 14%. (The 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27655 

remaining market participants use a 

post-patent version of the original 

Roundup Ready trait.) For herbicidetolerant traits, the post-transaction HHI 

would be approximately 6,900 on a 

national basis, with an increase of 

approximately 1,900. Without the 

merger, competition between the two 

companies would likely increase: Bayer 

and Monsanto each have new traits in 

their research pipelines that would 

confer tolerance to additional herbicides 

and compete in the future. 

B. Foundational Herbicides 

33. In addition to competing to sell 

herbicide-tolerant seeds, Bayer and 

Monsanto also compete to sell the 

foundational herbicides—glyphosate 

and glufosinate—that are paired with 

these seeds. 

34. Foundational herbicides are 

herbicides used on row crops that have 

two defining characteristics. First, they 

are ‘‘non-selective,’’ meaning that they 

kill all types of weeds, thus providing 

farmers with the broadest possible 

protection for their crops. In contrast, 

other types of herbicides are ‘‘selective,’’ 

meaning that they kill only certain types 

of weeds. Selective herbicides are often 

used to supplement non-selective 

herbicides but are not generally used in 

lieu of them. Second, foundational 

herbicides can be paired with seeds that 

are engineered to tolerate the herbicide. 

Other non-selective herbicides are not a 

substitute for farmers because no seeds 

are engineered to withstand them, so 

spraying those herbicides over a crop 

would damage it. For these reasons, 

farmers have no good substitutes for 

foundational herbicides. Today, 

glyphosate and glufosinate are the only 

two foundational herbicides, but, as 

discussed further below, new 

foundational herbicides are in 

development. 

35. Bayer and Monsanto are the 

world’s leading producers of 

foundational herbicides. As noted 

above, glyphosate was developed by 

Monsanto and is the active ingredient in 

Roundup; glufosinate was developed by 

Bayer and is the active ingredient in 

Liberty. Since the launch of genetically 

modified crops in the 1990s, Monsanto’s 

Roundup has dominated the market. As 

some weeds have developed resistance 

to glyphosate, however, farmers are 

increasingly turning to Liberty. And 

while glufosinate and glyphosate are 

now off patent, competition from 

generic suppliers has not prevented 

Bayer and Monsanto from maintaining 

branded price premiums. In 2017, Bayer 

had a 7% share of the market for 

foundational herbicides in the United 

States, and Monsanto had a 53% share. 

Thus, this market is already highly 

concentrated and the merger would 

result in a post-transaction HHI of 

approximately 3,700, with an increase 

of over 650. 

36. Going forward, competition 

between Bayer and Monsanto to develop 

next-generation weed-management 

systems is likely to increase. According 

to a Bayer strategy document, the 

company’s number one ‘‘Must Win 

Battle’’ is to ‘‘[e]stablish LibertyLink as 

a foundation trait for broadacre [row] 

crops and position Liberty herbicide as 

the superior weed management tool.’’ 

Bayer is also developing new nonselective herbicides for soybeans and 

corn called N,O-Chelators (NOCs), along 

with traits conferring tolerance to NOCs. 

If successful, NOCs would form the 

basis of a new foundational herbicide 

system that would rival Monsanto’s 

Roundup Ready-based systems. 

37. Likewise, Monsanto is actively 

pursuing innovations in foundational 

herbicides. For example, Monsanto is 

developing an improved formulation of 

Roundup that is expected for release in 

2019. Bayer’s and Monsanto’s incentives 

to independently pursue these future 

products in close competition with each 

other would disappear post-merger. 

C. Seed Treatments 

38. In addition to relying on 

genetically modified seeds and 

herbicides, farmers also protect their 

crops using seed treatments, which are 

coatings applied to seeds before they are 

planted. Seed treatments are a critical 

tool for modern farmers, and today at 

least one seed treatment is applied to 

the vast majority of genetically modified 

seeds grown in the United States. 

Multiple seed treatments can be applied 

to a seed to protect it from various 

threats; seed treatments designed for 

one purpose (such as killing insects) are 

rarely an effective substitute for seed 

treatments designed for a different 

purpose (such as controlling fungal 

diseases). 

39. The merger would likely result in 

three forms of competitive harm related 

to seed treatments: (1) the loss of headto-head competition between Bayer’s 

and Monsanto’s nematicidal seed 

treatments; (2) foreclosure effects 

resulting from the combination of 

Monsanto’s strong position in corn 

seeds with Bayer’s dominant position in 

insecticidal seed treatments for corn 

rootworm; and (3) foreclosure effects 

resulting from the combination of 

Monsanto’s strong position in soybeans 

with Bayer’s dominant position in 

fungicidal seed treatment for sudden 

death syndrome. 

(1) Nematicidal seed treatments for 

corn, cotton, and soybeans 

40. The merger would eliminate headto-head competition for nematicidal 

seed treatments used on corn, cotton, 

and soybeans. Nematicidal seed 

treatments protect crops from parasitic 

roundworms known as nematodes. For 

corn, cotton, and soybean farmers, there 

are no cost-effective alternatives to 

nematicidal seed treatments. And, in 

part because seed treatments must be 

registered on a crop-by-crop basis, the 

treatments for each crop constitute a 

separate market. 

41. All three nematicidal seed 

treatment markets are highly 

concentrated. For years, Bayer has had 

a monopoly in the market for 

nematicidal seed treatments for corn, 

with over a 95% share in 2017. Bayer 

dominates the market for nematicidal 

seed treatments for soybeans, with a 

share over 85%. And, in the market for 

nematicidal seed treatments for cotton, 

Bayer and Syngenta currently share a 

duopoly. 

42. Although Monsanto does not 

currently sell in this market, it is poised 

to launch its first nematicidal seed 

treatment, NemaStrike. NemaStrike is 

expected to challenge Bayer’s market 

position in nematicidal seed treatments 

in all three crops—corn, cotton, and 

soybeans. Both Bayer and Monsanto 

project that NemaStrike will capture 

significant market share from Bayer. By 

acquiring Monsanto, Bayer would thus 

eliminate the most significant 

competitive threat to its dominant 

position in these markets, to the 

detriment of farmers who rely on these 

important products to protect their 

crops. 

(2) Vertical foreclosure—insecticidal 

seed treatments for corn rootworm and 

genetically modified corn seeds 

43. The merger would also likely 

harm competition in the market for 

genetically modified corn by combining 

Monsanto’s strong position in 

genetically modified corn seeds with 

Bayer’s dominant position in 

insecticidal seed treatments for corn 

rootworm. 

44. Corn is the largest crop grown in 

the United States, accounting for over 

$8 billion in seed sales annually. The 

vast majority (92%) of U.S. corn seeds 

are genetically modified. Monsanto is 

the leading supplier of those seeds, 

effectively controlling 50% of the 

market between sales of its own branded 

seeds and sales through its licensees. 

Monsanto’s only significant rival for 

corn seed is DowDuPont (with a 34% 


amozie on DSK3GDR082PROD with NOTICES2
27656 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

share); a few smaller companies also 

have a small share. 

45. Although Bayer does not sell corn 

seeds, it does sell a critical seed 

treatment called Poncho. When Poncho 

is applied at a high rate (with a greater 

amount of the seed treatment coating 

per seed), it protects corn seeds from 

corn rootworm—a pest nicknamed ‘‘the 

billion dollar bug’’ for the amount of 

loss it costs farmers each year. Poncho 

is the only significant seed treatment 

that effectively combats corn rootworm. 

Thus, most of Monsanto’s corn seed 

rivals depend on Poncho and are 

expected to become more dependent as 

the corn rootworm problem grows. 

46. By placing Bayer’s Poncho and 

Monsanto’s leading GM corn seed under 

the control of one company, the 

transaction would give the merged 

company the incentive and ability to 

foreclose its corn seed rivals who lack 

their own seed treatment product and 

rely on an independent Bayer for their 

seed treatment supply. Specifically, the 

merged company would likely hinder 

its corn seed rivals by forcing them to 

pay more for Poncho or by denying 

them access to it entirely. This loss of 

competition would ultimately hit the 

pocketbooks of American farmers. By 

making it harder for Monsanto’s corn 

rivals to compete, farmers would pay 

higher prices and have fewer effective 

choices for genetically modified corn 

seeds throughout the country. 

(3) Vertical foreclosure—fungicidal 

seed treatments for sudden death 

syndrome and genetically modified 

soybeans 

47. Similarly, the merger would harm 

competition by combining Monsanto’s 

leading position in genetically modified 

soybeans with Bayer’s dominant 

position in fungicidal seed treatments. 

48. As discussed above, Monsanto 

leads the market for genetically 

modified soybeans. It is followed by 

DowDuPont, with Bayer emerging as a 

threat and investing heavily to gain 

share. Smaller players, such as Beck’s, 

also serve the market. 

49. Bayer also sells ILeVO, the only 

seed treatment that effectively protects 

soybeans from a fungal disease called 

sudden death syndrome (SDS). 

According to Bayer, SDS costs farmers 

an average of over 44 million bushels in 

lost yield per year, and losses from SDS 

damage are expected to increase, 

making Bayer’s seed treatment a critical 

tool for farmers in areas where SDS is 

a particular risk. Bayer sells ILeVO to 

Monsanto’s soybean rivals, including 

DowDuPont and Beck’s. Since the 

launch of ILeVO in 2015, Bayer’s sales 

of ILeVO have doubled annually and are 

expected to continue to grow steadily 

over the next decade. 

50. If allowed to proceed, the merger 

would combine Monsanto’s leading 

genetically modified soybeans with a 

key input used on those seeds (ILeVO). 

As a result, the merged company would 

likely hinder its soybean rivals by 

forcing them to pay more for ILeVO or 

by denying them access to it entirely. 

This loss of competition would likewise 

make it harder for Monsanto’s rivals to 

compete, and it would result in higher 

prices and fewer choices for genetically 

modified soybeans. 

D. Vegetable Seeds 

51. Finally, the proposed acquisition 

would eliminate vital competition 

between Bayer and Monsanto for the 

sale of vegetable seeds. In the past 25 

years, global vegetable production has 

doubled as breeders have developed 

new varieties of vegetables with better 

disease resistance and higher yields. 

Unlike with row crops, however, these 

improvements are due entirely to 

traditional plant breeding rather than 

genetic modification. Bayer and 

Monsanto are leaders in these efforts. 

Today, Monsanto is the largest vegetable 

seed company in the world and Bayer 

is fourth largest. If the merger is allowed 

to proceed, the combined company 

would dominate the industry, with 

global sales rivaling the combined sales 

of the second- and third-largest 

vegetable producers (Syngenta and 

Limagrain, respectively). In the United 

States, the merger would harm 

competition for five distinct vegetable 

species: carrots, cucumbers, onions, 

tomatoes, and watermelons. 

(1) Carrot seeds 

52. In the United States, Bayer and 

Monsanto are the dominant producers 

of carrot seeds with a combined market 

share of approximately 94%. The posttransaction HHI would be 

approximately 8,800, with an increase 

of approximately 4,000 resulting from 

the transaction. 

53. While competition would be 

harmed in the market for carrot seeds as 

a whole, the effects of the acquisition 

would be particularly acute in the ‘‘cutand-peel’’ carrot segment, which 

consists of certain carrot varieties that 

are processed and sold as ready-to-eat 

baby carrots. Bayer and Monsanto are 

particularly close competitors in this 

segment, which constitutes 

approximately 80% of all carrots 

consumed in the United States. 

(2) Cucumber seeds 

54. The market for cucumber seeds is 

also highly concentrated, with Bayer 

and Monsanto dominating the market 

with 34% and 56% market shares, 

respectively. The post-acquisition HHI 

would be approximately 7,900, with an 

increase of approximately 3,700. 

55. The effects of the acquisition 

would be particularly significant in the 

pickling cucumber seed segment, which 

makes up a large majority of cucumber 

acres in the United States. Bayer and 

Monsanto are two of only three 

suppliers of pickling cucumber seeds in 

the United States, with Monsanto as the 

dominant competitor, followed by Bayer 

and a company called Rijk Zwaan, 

based in the Netherlands. As in other 

markets, Bayer has competed against 

Monsanto in this segment through 

innovation, developing seedless 

varieties of pickling cucumbers to 

compete with Monsanto’s seeded 

varieties. 

(3) Onion seeds 

56. Bayer and Monsanto are the two 

largest onion seed producers in the 

United States and globally, with 

substantial sales across a wide variety of 

onion segments. The U.S. market for 

onion seeds is already highly 

concentrated—besides Bayer and 

Monsanto, the only other producers are 

Bejo Zaden B.V., based in the 

Netherlands, and American Takii, Inc., 

based in California. The merger would 

give the combined company a share of 

approximately 71%. The posttransaction HHI would be 

approximately 5,000, with an increase 

of approximately 2,500. 

(4) Tomato seeds 

57. Bayer and Monsanto are two of the 

largest producers of tomato seeds in the 

United States, with market shares of 

21% and 34%, respectively. The market 

for tomato seeds is moderately 

concentrated, and the merger would 

result in a highly concentrated market. 

The post-transaction HHI would be 

approximately 3,000, with an increase 

of approximately 1,400. 

(5) Watermelon seeds 

58. Lastly, the watermelon seed 

market is already highly concentrated, 

with Bayer and Syngenta, followed by 

Monsanto, as the largest suppliers in the 

United States. Bayer has a 37% market 

share in watermelon seeds, and 

Monsanto has a 6% share. As a result, 

the post-acquisition HHI would be 

approximately 3,300, with an increase 

of approximately 400. Monsanto’s 

market share in watermelon seeds 

understates its competitive significance; 

its recent introduction of competitive 

seedless watermelon varieties, which 

are in high demand and already offered 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27657 

by Monsanto’s competitors, would 

significantly improve its position going 

forward. 

V. ANTICOMPETITIVE EFFECTS 

59. The proposed acquisition would 

substantially lessen competition and 

harm consumers in each of the relevant 

markets, either by eliminating head-tohead competition between Bayer and 

Monsanto or, in the case of certain seed 

treatments, raising the price of a key 

input. In each of these markets, the 

merger would likely result in higher 

prices, lower quality, and reduced 

choice. The price effects in these 

markets would likely result in hundreds 

of millions of dollars per year in harm, 

raising costs to farmers and consumers 

throughout the United States. 

60. But the harm does not stop there. 

The merger would also have a 

significant impact on innovation. 

Today, four companies dominate the 

industry’s research and development 

efforts for seeds and traits. Bayer and 

Monsanto are the industry leaders, with 

Bayer emerging as a threat to 

Monsanto’s dominance. In 2016, for 

example, Bayer spent more on seedsrelated research and development as a 

percentage of sales than any of the other 

Big Four. As leading innovators, Bayer 

and Monsanto push each other to 

improve their current products and 

technologies, monitor each other’s 

research efforts, and compete to develop 

new blockbuster products. 

61. Without the merger, this 

competition would intensify as both 

companies pursue what the industry 

refers to as integrated solutions— 

combinations of seeds, traits, and crop 

protection products, supported by 

digital-farming technologies and other 

services. Although integrated solutions 

are still evolving, it is widely believed 

that only the Big Four companies—each 

with its own unique strengths—will be 

able to offer fully integrated solutions to 

farmers. With this merger, that 

competition would be lost. 

VI. ABSENCE OF COUNTERVAILING 

FACTORS 

62. Entry would not prevent the 

merger’s likely anticompetitive effects. 

It takes many years and hundreds of 

millions of dollars to discover new crop 

protection chemicals and to develop 

and commercialize new traits. Once a 

new trait has been discovered, 

companies cannot successfully 

incorporate that trait and sell seeds 

without access to the extensive libraries 

of elite seed varieties that are already 

owned by Bayer, Monsanto, and a small 

number of other companies. As Bayer’s 

and Monsanto’s executives have 

recognized, barriers to entry in the 

relevant markets are extraordinarily 

high. 

63. In addition to the difficulty of 

entry, the proposed acquisition is 

unlikely to generate verifiable, mergerspecific efficiencies that would offset 

the proposed acquisition’s likely 

anticompetitive effects in the relevant 

markets. 

VII. VIOLATIONS ALLEGED 

64. Bayer’s proposed acquisition of 

Monsanto is likely to substantially 

lessen competition in the relevant 

markets in violation of Section 7 of the 

Clayton Act, 15 U.S.C. § 18. 

65. Unless enjoined, the proposed 

acquisition would likely have the 

following anticompetitive effects in the 

relevant markets: 

(a) eliminate present and future 

competition between Bayer and 

Monsanto; 

(b) lessen innovation; 

(c) raise prices for farmers and other 

purchasers; and 

(d) reduce quality, service, and choice 

for farmers and other purchasers. 

VIII. REQUEST FOR RELIEF 

66. The United States requests that 

this Court do the following: 

(a) adjudge Bayer’s proposed 

acquisition of Monsanto to violate 

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

§ 18; 

(b) permanently enjoin Bayer and 

Monsanto from consummating their 

proposed acquisition or from entering 

into or carrying out any other 

agreement, understanding, or plan by 

which control of the assets or businesses 

of Bayer and Monsanto would be 

combined; 

(c) award the United States its costs 

of this action; and 

(d) award the United States other 

relief that the Court deems just and 

proper. 

Dated: _______ 

Respectfully submitted, 

FOR PLAINTIFF UNITED STATES OF 

AMERICA: 

lllllllllllllllllllll

Makan Delrahim, 

Assistant Attorney General for Antitrust. 

lllllllllllllllllllll

Bernard A. Nigro, Jr. (D.C. Bar #412357), 

Deputy Assistant Attorney General. 

lllllllllllllllllllll

Donald G. Kempf, Jr., 

Deputy Assistant Attorney General. 

lllllllllllllllllllll

Patricia A. Brink, 

Director of Civil Enforcement. 

lllllllllllllllllllll

Kathleen S. O’Neill, 

Chief, Transportation, Energy & Agriculture 

Section. 

lllllllllllllllllllll

Caroline E. Laise, 

Assistant Chief, Transportation, Energy & 

Agriculture Section. 

lllllllllllllllllllll

Scott I. Fitzgerald, 

Benjamin H. Able, 

Don Amlin (D.C. Bar #978349), 

Meagan K. Bellshaw, 

Cory Brader Leuchten, 

Michele B. Cano, 

Barbara W. Cash, 

Katherine A. Celeste, 

Aaron Comenetz (D.C. Bar #479572), 

Erin L. Craig, 

Emma Dick, 

J. Richard Doidge, 

Julie Elmer (D.C. Bar #1520972), 

Jeremy Evans (D.C. Bar #478097), 

Andrew J. Ewalt (D.C. Bar #493433), 

Tracy Fisher, 

Rachel A. Flipse, 

Leah Graham (D.C. Bar #989727), 

Brian Hanna, 

John A. Holler, 

Rachelle R. Ketchum, 

Amanda Klovers, 

Patrick Kuhlmann, 

Robert A. Lepore, 

Michelle Livingston (D.C. Bar #461268), 

Njeri Mugure, 

Michael Nash, 

John R. O’Gorman, 

Scott Reiter, 

James A. Ryan, 

Julia A. Schiller (D.C. Bar #986369), 

Adam T. Severt, 

Patricia L. Sindel (D.C. Bar #997505), 

Chinita M. Sinkler, 

Mark Tobey, 

Scott A. Westrich, 

Christopher M. Wilson, 

Catharine Wright. 

Attorneys for the United States. 

U.S. Department of Justice Antitrust Division 

450 5th Street, NW, Suite 8000 Washington, 

DC 20530 Tel.: (202) 353–3863 Fax: (202) 

616–2441 E-mail: scott.fitzgerald@usdoj.gov. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

United States of America, Plaintiff, v. 

Bayer AG, Monsanto Company, and BASF 

SE, Defendants. 

Civil Action No.: 1:18–cv–1241 

Judge James E. Boasberg 

PROPOSED FINAL JUDGMENT 

WHEREAS, Plaintiff United States of 

America filed its Complaint against 

Bayer AG (‘‘Bayer’’) and Monsanto 

Company (‘‘Monsanto’’) on May 29, 

2018; 

AND WHEREAS, pursuant to a 

Stipulation and Order among Bayer, 

Monsanto, and BASF SE (‘‘BASF’’) 

(collectively, ‘‘Defendants’’) and 

Plaintiff, the Court has joined BASF as 

a defendant to this action for the 

purposes of settlement and for the entry 

of this Final Judgment; 

AND WHEREAS, Plaintiff and 

Defendants, by their respective 


amozie on DSK3GDR082PROD with NOTICES2
27658 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

attorneys, have consented to the entry of 

this Final Judgment without trial or 

adjudication of any issue of fact or law, 

and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

AND WHEREAS, Defendants agree to 

be bound by the provisions of this Final 

Judgment pending its approval by this 

Court; 

AND WHEREAS, the essence of this 

Final Judgment is the prompt and 

certain divestiture of certain businesses, 

rights, and assets by Bayer and 

Monsanto to assure that competition is 

not substantially lessened; 

AND WHEREAS, Plaintiff requires 

Bayer and Monsanto to make certain 

divestitures to BASF for the purpose of 

remedying the loss of competition 

alleged in the Complaint; 

AND WHEREAS, Bayer and Monsanto 

have represented to Plaintiff that all of 

the divestitures required below can and 

will be made as required by this Final 

Judgment, BASF has represented to 

Plaintiff that it can and will acquire the 

Divestiture Assets pursuant to its 

obligations under this Final Judgment, 

and Defendants have represented to 

Plaintiff that they will later raise no 

claim of hardship or difficulty as 

grounds for failing to comply with their 

obligations under this Final Judgment or 

for asking this Court to modify any of 

the provisions contained below; 

NOW THEREFORE, before any 

testimony is taken, without trial or 

adjudication of any issue of fact or law, 

and upon consent of the parties, it is 

ORDERED, ADJUDGED, AND 

DECREED: 

I. JURISDICTION 

This Court has jurisdiction over the 

subject matter of and each of the parties 

hereto with respect to this action. The 

Complaint states a claim upon which 

relief may be granted against Bayer and 

Monsanto under Section 7 of the 

Clayton Act, as amended (15 U.S.C. 

§ 18). Pursuant to the Stipulation and 

Order filed simultaneously with this 

Final Judgment joining BASF as a 

defendant to this action, BASF has 

consented to this Court’s exercise of 

specific personal jurisdiction over BASF 

in this matter solely for the purposes of 

settlement and for the entry and 

enforcement of the Final Judgment. 

II. DEFINITIONS 

As used in this Final Judgment: 

A. ‘‘Bayer’’ means Defendant Bayer 

AG, a German corporation with its 

headquarters in Leverkusen, Germany, 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

B. ‘‘Monsanto’’ means Defendant 

Monsanto Company, a Delaware 

corporation with its headquarters in St. 

Louis, Missouri, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘BASF’’ means Defendant BASF 

SE, a Societas Europaea with its 

headquarters in Ludwigshafen, 

Germany, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

D. ‘‘’839 Business’’ means Bayer’s 

global business of researching, 

developing, and manufacturing the 

BCS–CT12839 pipeline product. 

E. ‘‘Balance Herbicide Business’’ 

means Bayer’s global business of 

researching, developing, manufacturing, 

and selling isoxaflutole-based 

herbicides for use on crops that are 

isoxaflutole-tolerant as a result of 

genetic modification. 

F. ‘‘Balance Herbicide Divestiture 

Assets’’ means the following assets 

related to the Balance Herbicide 

Business: 

(1) all tangible assets used primarily 

by or critical to the operation of the 

Balance Herbicide Business, including, 

but not limited to, all transferable 

licenses, permits, product registrations, 

regulatory submissions, and 

authorizations issued by or submitted to 

any governmental organization; all 

contracts, agreements, leases, 

commitments, certifications, and 

understandings, including supply 

agreements; and all customer lists, 

accounts, credit records, and 

transferable customer contracts; 

(2) all patents used by the Balance 

Herbicide Business; 

(3) a worldwide, exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license to Bayer’s BALANCE trademark 

for marketing and selling isoxaflutolebased herbicides for use on crops that 

are isoxaflutole-tolerant as a result of 

genetic modification; 

(4) a worldwide, non-exclusive, 

royalty-free, paid-up, irrevocable, 

perpetual license (sub-licensable to any 

tollers designated by BASF) to any 

intellectual property, registration data, 

technology, know-how, or other rights 

used in the manufacture or formulation 

of isoxaflutole-based herbicides for use 

on crops that are isoxaflutole-tolerant as 

a result of genetic modification; and 

(5) all other intangible assets owned, 

licensed, controlled, or used primarily 

by or critical to the operation of the 

Balance Herbicide Business, including, 

but not limited to, all data concerning 

historical and current research and 

development efforts, including, but not 

limited to, designs of experiments and 

the results of successful and 

unsuccessful designs and experiments. 

G. ‘‘Broad Acre Seeds and Traits 

Business’’ means Bayer’s global business 

of researching, developing, 

manufacturing, and selling broad acre 

seeds and traits, including, but not 

limited to, the global cotton seed 

business; the global canola seed 

business; the global soybean seed 

business; the global LibertyLink trait 

business for all crops except rice; the 

global research and development 

programs for wheat and ‘‘canola 

quality’’ Brassica juncea; and the global 

trait research and development 

activities. The Broad Acre Seeds and 

Traits Business excludes those assets 

that relate solely to the following: 

hybrid rice sold in Asia, hybrid cotton 

sold in India, traditional juncea 

(mustard) and millet sold in India, 

cotton sold in South Africa, the research 

and development program for sugarcane 

in Brazil, the research and development 

program for sugarbeets in Europe, and 

the LibertyLink event in rice. 

H. ‘‘Broad Acre Seeds and Traits 

Divestiture Assets’’ means the following 

assets related to the Broad Acre Seeds 

and Traits Business: 

(1) all tangible assets that comprise 

the Broad Acre Seeds and Traits 

Business, including, but not limited to, 

research and development activities; all 

manufacturing plants and equipment, 

tooling and fixed assets, personal 

property, inventory, office furniture, 

materials, supplies, and other tangible 

property; all transferable licenses, 

permits, product registrations and 

regulatory submissions (including 

supporting data), certifications, and 

authorizations issued by or submitted to 

any governmental organization; all 

contracts, teaming arrangements, 

agreements, leases, commitments, 

certifications, and understandings, 

including supply agreements; all 

customer lists, accounts, credit records, 

and transferable customer contracts; all 

other business and administrative 

records; all seed production facilities; 

all breeding stations; all research and 

development facilities; all germplasm; 

and all breeding data, including, but not 

limited to, phenotype, genotype, 

molecular markers, and performance 

data; 

(2) all intangible assets owned, 

licensed, controlled, or used by the 

Broad Acre Seeds and Traits Business, 

including, but not limited to, all patents, 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27659 

plant variety certificates, licenses and 

sublicenses, intellectual property, 

copyrights, trademarks, trade names, 

service marks, service names, technical 

information, computer software and 

related documentation, know-how, 

trade secrets, drawings, blueprints, 

designs, design protocols, specifications 

for materials, specifications for parts 

and devices, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, design tools and simulation 

capability, manuals and technical 

information provided by Bayer to its 

own employees, customers, suppliers, 

agents, or licensees; and research data 

concerning historical and current 

research and development efforts, 

including, but not limited to, designs of 

experiments and the results of 

successful and unsuccessful designs and 

experiments; and 

(3) the copy of Bayer’s microbial 

strain collection (‘‘MSC’’) stored in 

Morrisville, North Carolina, including, 

but not limited to, all biological 

materials comprising the MSC and all 

documents, data, information, reference 

materials, and trade secrets related to 

the MSC, and (a) a worldwide, 

exclusive, royalty-free, paid-up, 

irrevocable, perpetual license to use the 

MSC for trait research in any crop and 

(b) a worldwide, non-exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license to use the MSC for any other 

agricultural use. 

Notwithstanding Paragraphs II(H)(1) 

through II(H)(3) above, the Broad Acre 

Seeds and Traits Divestiture Assets do 

not include the facilities identified in 

Appendix A, Paragraphs 1 and 2, or 

trademarks, trade names, service marks, 

or service names containing the name 

‘‘Bayer.’’ 

I. ‘‘Clothianidin Seed Treatment 

Business’’ means Bayer’s global business 

of researching, developing, 

manufacturing, and selling seed 

treatments containing clothianidin, 

Bacillus firmus strain I–1582, or 

Bacillus thuringiensis strain EX 297512. 

The Clothianidin Seed Treatment 

Business excludes Bayer’s business of 

manufacturing and selling seed 

treatment mixture products containing 

clothianidin for canola/oilseed rape, 

potatoes, sugarbeets, cereals, or 

vegetables that have been 

commercialized by Bayer as of the date 

of filing of the Complaint in this matter 

(except Poncho/VOTiVO, Poncho Plus, 

and Poncho Super). For the avoidance 

of doubt, these exclusions do not 

prevent BASF from researching, 

developing, manufacturing, and selling 

seed treatments containing clothianidin 

for canola/oilseed rape, potatoes, 

sugarbeets, cereals, or vegetables. 

J. ‘‘Collaboration’’ means an 

agreement among non-affiliated firms 

involving some sharing of resources, 

management, or risk, including, but not 

limited to, joint ventures or research 

alliances. For the avoidance of doubt, 

Collaboration for the purpose of this 

Final Judgment does not include (1) 

stand-alone intellectual property 

licenses, including patent, trademark, 

software, know-how, variety, 

germplasm, and registration data license 

agreements; (2) stand-alone crop 

protection supply or tolling agreements; 

(3) cooperation agreements related to 

advocacy and public policy issues; (4) 

agreements related to participation in 

industry groups and organizations; and 

(5) material transfer agreements. 

K. ‘‘Digital Agriculture Business’’ 

means Bayer’s global business of 

researching, developing, manufacturing, 

and selling digital agriculture products. 

L. ‘‘Digital Agriculture Divestiture 

Assets’’ means the following assets 

related to the Digital Agriculture 

Business: 

(1) all tangible assets that comprise 

the Digital Agriculture Business, 

including, but not limited to, research 

and development activities; all 

manufacturing plants and equipment, 

tooling and fixed assets, personal 

property, inventory, office furniture, 

materials, supplies, and other tangible 

property; all contracts, teaming 

arrangements, agreements, leases, 

commitments, certifications, and 

understandings, including supply 

agreements; all customer lists, accounts, 

credit records, and transferable 

customer contracts; all other business 

and administrative records; all research 

and development facilities; and 

(2) all intangible assets owned, 

licensed, controlled, or used by the 

Digital Agriculture Business, including, 

but not limited to, all patents, licenses 

and sublicenses, intellectual property, 

copyrights, trademarks, trade names, 

service marks, service names, technical 

information, computer software and 

related documentation, know-how, 

trade secrets, drawings, blueprints, 

designs, design protocols, specifications 

for materials, specifications for parts 

and devices, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, design tools and simulation 

capability, manuals and technical 

information provided by Bayer to its 

own employees, customers, suppliers, 

agents, or licensees; and research data 

concerning historical and current 

research and development efforts 

related to the Digital Agriculture 

Business, including, but not limited to, 

designs of experiments and the results 

of successful and unsuccessful designs 

and experiments. 

Notwithstanding Paragraphs II(L)(1) 

and II(L)(2) above, the Digital 

Agriculture Divestiture Assets do not 

include trademarks, trade names, 

service marks, or service names 

containing the name ‘‘Bayer.’’ 

M. ‘‘Divestiture Assets’’ means: 

(1) the Balance Herbicide Divestiture 

Assets; 

(2) the Broad Acre Seeds and Traits 

Divestiture Assets; 

(3) the Digital Agriculture Divestiture 

Assets; 

(4) the Glufosinate Ammonium 

Divestiture Assets; 

(5) the Midwest Soybean Germplasm 

Divestiture Assets; 

(6) the Pipeline Herbicide Divestiture 

Assets; 

(7) the Seed Treatment Divestiture 

Assets; and 

(8) the Vegetable Seed Divestiture 

Assets. 

N. ‘‘Divestiture Businesses’’ means the 

Balance Herbicide Business, the Broad 

Acre Seeds and Traits Business, the 

Digital Agriculture Business, the 

Glufosinate Ammonium Business, the 

Pipeline Herbicide Business, the Seed 

Treatment Business, and the Vegetable 

Seed Business. 

O. ‘‘Divestiture Closing Date’’ means 

(1) with respect to assets, employees, 

and agreements related to all Divestiture 

Assets except the Vegetable Seed 

Divestiture Assets, the date on which 

Bayer divests those Divestiture Assets to 

BASF, and (2) with respect to assets, 

employees, and agreements related to 

the Vegetable Seed Divestiture Assets, 

the date on which Bayer divests the 

Vegetable Seed Divestiture Assets to 

BASF. 

P. ‘‘Fluopyram Seed Treatment 

Business’’ means Bayer’s global business 

of researching, developing, 

manufacturing, and selling seed 

treatments containing fluopyram. The 

Fluopyram Seed Treatment Business 

excludes Bayer’s business of 

researching, developing, manufacturing, 

and selling cereals seed treatments 

containing fluopyram, claiming only 

fungicidal properties, and claiming no 

nematode control effect. For the 

avoidance of doubt, this exclusion does 

not prevent BASF from researching, 

developing, manufacturing, and selling 

seed treatments for cereals containing 

fluopyram. 

Q. ‘‘Glufosinate Ammonium 

Business’’ means Bayer’s global business 

of researching, developing, 

manufacturing, and selling glufosinate 

ammonium herbicide products. 


amozie on DSK3GDR082PROD with NOTICES2
27660 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

R. ‘‘Glufosinate Ammonium 

Divestiture Assets’’ means the following 

assets related to the Glufosinate 

Ammonium Business: 

(1) Bayer’s glufosinate ammonium 

manufacturing facilities located in 

Hurth/Knapsack, Germany; Muskegon, 

Michigan; Mobile, Alabama; and 

Frankfurt, Germany; Bayer’s glufosinate 

formulation facilities located in Regina, 

Canada and Muskegon, Michigan; and 

these facilities’ associated 

manufacturing equipment, tooling and 

fixed assets, personal property, 

inventory, office furniture, materials, 

supplies, and other tangible property; 

(2) all other tangible assets used 

primarily by or critical to the operation 

of the Glufosinate Ammonium Business, 

including all contracts, teaming 

arrangements, agreements, leases, 

commitments, certifications, and 

understandings, including supply 

agreements; all transferable licenses, 

permits, and authorizations issued by or 

submitted to any governmental 

organization; all customer lists, 

accounts, credit records, and 

transferable customer contracts; and all 

other business and administrative 

records; 

(3) all patents used in the Glufosinate 

Ammonium Business, except for (a) 

patents related to the mixture or 

combined or sequential use of 

glufosinate ammonium with other active 

ingredients (‘‘Glufosinate Mixture and 

Use Patents’’) and (b) patents related to 

the use of glufosinate ammonium, alone 

or in mixtures, on plants containing 

genetically modified events developed 

or to be developed by Bayer or 

Monsanto (‘‘Glufosinate Over-The-Top 

Patents’’); 

(4) a worldwide, exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license for all Glufosinate Mixture and 

Use Patents owned, controlled, licensed, 

or used by Bayer or Monsanto with one 

or more claims covering a BASF 

proprietary active ingredient; 

(5) a worldwide, non-exclusive, 

irrevocable, perpetual covenant not to 

assert against BASF or its direct or 

indirect customers all other Glufosinate 

Mixture and Use Patents owned, 

controlled, licensed, or used by Bayer or 

Monsanto with one or more claims 

covering any other active ingredient, 

except for any active ingredient itself 

covered by a Bayer or Monsanto patent, 

during the life of that patent; 

(6) a worldwide, non-exclusive, 

irrevocable, perpetual covenant not to 

assert against BASF or its direct or 

indirect customers all current or future 

Glufosinate Over-The-Top Patents 

owned, controlled, licensed, or used by 

Bayer or Monsanto; 

(7) all other intangible assets owned, 

licensed, controlled, or used primarily 

by or critical to the operation of the 

Glufosinate Ammonium Business, 

including, but not limited to, all 

licenses and sublicenses, intellectual 

property, copyrights, trademarks, trade 

names, service marks, service names, 

technical information, computer 

software and related documentation, 

know-how, trade secrets, drawings, 

blueprints, designs, design protocols, 

specifications for materials, 

specifications for parts and devices, 

safety procedures for the handling of 

materials and substances, quality 

assurance and control procedures, 

design tools and simulation capability, 

manuals and technical information 

provided by Bayer to its own 

employees, customers, suppliers, agents, 

or licensees; and research data 

concerning historical and current 

research and development efforts, 

including, but not limited to, designs of 

experiments and the results of 

successful and unsuccessful designs and 

experiments; and 

(8) a worldwide, non-exclusive, 

royalty-free, paid-up, irrevocable, 

perpetual license to all other intellectual 

property (owned by Bayer or that Bayer 

has the right to license) that is used by 

the Glufosinate Ammonium Business 

and not addressed earlier in Paragraph 

II.R, including, but not limited to, all 

copyrights, trademarks, trade names, 

service marks, service names, and trade 

secrets. Such license shall grant BASF 

the right to make, have made, use, sell 

or offer for sale, copy, create derivative 

works of, modify, improve, display, 

perform, and enhance the licensed 

intangible assets. Any improvements or 

modifications to these intangible assets 

developed by BASF shall be owned 

solely by BASF. 

Notwithstanding Paragraphs II(R)(1) 

through II(R)(8) above, the Glufosinate 

Ammonium Divestiture Assets do not 

include the thirty (30) general office 

facilities identified in Appendix A, 

Paragraph 1; the fourteen (14) 

formulation and filling sites identified 

in Appendix A, Paragraph 3; or 

trademarks, trade names, service marks, 

or service names containing the name 

‘‘Bayer.’’ 

S. ‘‘Midwest Soybean Germplasm 

Divestiture Assets’’ means the following 

Monsanto assets: 

(1) the four hundred and nineteen 

(419) soybean populations identified in 

Appendix B; 

(2) a worldwide, non-exclusive, 

royalty-free, paid-up, irrevocable, 

perpetual license for breeding purposes 

(subject to the limitations in Paragraph 

II(S)(4)) to twenty (20) soybean varieties 

developed by Monsanto that BASF 

subsequently will choose pursuant to 

the following process: Bayer will 

expeditiously provide BASF with access 

(including to all supporting data) to all 

of the Monsanto Corn States lines (for 

which Monsanto has the ability to offer 

breeding rights) developed by Monsanto 

for each of the years 2019 and 2020. 

BASF may choose two varieties for each 

of maturity zones zero through four, 

resulting in a license for twenty (20) 

lines over the two (2) years; 

(3) all data (including, but not limited 

to, phenotype, genotype, molecular 

markers, and performance data) related 

to the transferred populations or 

licensed breeding varieties in Paragraph 

II(S)(1) above for the purpose of 

developing commercial soybean 

varieties; and a copy of all data 

(including, but not limited to, 

phenotype, genotype, molecular 

markers, and performance data) related 

to the transferred populations or 

licensed breeding varieties in Paragraph 

II(S)(2) above for the purpose of 

developing commercial soybean 

varieties; and 

(4) all rights to develop commercial 

soybean varieties using the transferred 

populations or licensed breeding 

varieties in Paragraphs II(S)(1) and 

II(S)(2) above, which rights shall not be 

limited other than requiring compliance 

with trait license agreements for any 

Monsanto traits remaining in any 

developed line. 

T. ‘‘Pipeline Herbicide Business’’ 

means Bayer’s global business of 

researching, developing, and 

manufacturing ketoenole and N,OChelator (‘‘NOC’’) herbicides for nonselective uses. 

U. ‘‘Pipeline Herbicide Divestiture 

Assets’’ means the following assets 

related to the Pipeline Herbicide 

Business: 

(1) a worldwide, exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license in the field of non-selective uses 

for all Bayer intellectual property rights 

and know-how related to Bayer’s 

ketoenole and to Bayer’s NOC herbicide 

candidates; 

(2) a worldwide, non-exclusive, 

royalty-free, paid-up, irrevocable, 

perpetual license (sub-licensable to any 

tollers designated by BASF) to any 

intellectual property, registration data, 

technology, know-how, or other rights 

used in the manufacture or formulation 

of ketoenole and of NOC herbicides for 

non-selective uses; 

(3) all data, documents, and knowhow from in vitro assays related to the 

use of Bayer’s ketoenole and Bayer’s 

NOC herbicide candidates with Bayer’s 

relevant herbicide-tolerance traits; 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27661 

(4) all field trials conducted on 

Bayer’s ketoenole and Bayer’s NOC 

herbicide candidates for non-selective 

uses; 

(5) samples of all ketoenole and all 

NOC herbicide molecules; and 

(6) all data and information on the 

molecular structure and other 

characteristics of Bayer’s ketoenole and 

Bayer’s NOC herbicide candidates. 

V. ‘‘Relevant Personnel’’ means all 

Bayer employees who have supported or 

whose job related to the Divestiture 

Businesses at any time between January 

1, 2015 and the Divestiture Closing 

Date. 

W. ‘‘Seed Treatment Business’’ means 

the Clothianidin Seed Treatment 

Business, the Fluopyram Seed 

Treatment Business, and the ’839 

Business. 

X. ‘‘Seed Treatment Divestiture 

Assets’’ means the following assets 

related to the Seed Treatment Business: 

(1) Bayer’s Seed Growth Center 

located in Research Triangle Park, North 

Carolina, including all equipment, 

tooling and fixed assets, personal 

property, inventory, office furniture, 

materials, supplies, and other tangible 

property at this facility; 

(2) all other tangible assets used 

primarily by or critical to the operation 

of the Seed Treatment Business, 

including, but not limited to, all 

transferable licenses, permits, 

certifications, product registrations, 

regulatory submissions, and 

authorizations issued by or submitted to 

any governmental organization; all 

contracts, teaming arrangements, 

agreements, commitments, 

certifications, and understandings, 

including supply agreements; all 

customer lists, accounts, credit records, 

and transferable customer contracts; all 

sales and marketing assets, including, 

but not limited to, distribution plans 

and any market research conducted; all 

other business and administrative 

records; samples of all molecules; all 

information on the molecular structure 

and other characteristics of the 

products; and all internal and available 

external studies; 

(3) all patents used in Bayer’s current 

and pipeline Poncho, Poncho Plus, 

Poncho Super, Poncho/VOTiVO, 

Poncho/VOTiVO 2.0, VOTiVO, VOTiVO 

2.0, and TWO.0 seed treatments; 

(4) a worldwide, exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license to any other patent with one or 

more claims covering the combination 

of clothianidin, Bacillus firmus strain I– 

1582, or Bacillus thuringiensis strain EX 

297512 with another active ingredient, 

for BASF to combine clothianidin, 

Bacillus firmus strain I–1582, or 

Bacillus thuringiensis strain EX 297512 

with any such other active ingredient(s) 

for seed treatment uses; provided, 

however, that this license does not 

include any right to make, sell, use, or 

otherwise commercialize any active 

ingredient itself covered by a Bayer or 

Monsanto patent, during the life of that 

patent; 

(5) a worldwide, exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license for seed treatment uses to all 

patents used in Bayer’s current and 

pipeline ILeVO and COPeO seed 

treatments; provided, however, that this 

license will be non-exclusive for cereals 

seed treatments containing fluopyram, 

claiming only fungicidal properties, and 

claiming no nematode control effect; 

(6) a worldwide, exclusive, royaltyfree, paid-up, irrevocable, perpetual 

license to any other patent with one or 

more claims covering the combination 

of fluopyram with another active 

ingredient, for BASF to combine 

fluopyram with any such other active 

ingredient(s) for seed treatment uses; 

provided, however, that (a) this license 

will be non-exclusive for cereals seed 

treatments containing fluopyram, 

claiming only fungicidal properties, and 

claiming no nematode control effect; 

and (b) this license does not include any 

right to make, sell, use, or otherwise 

commercialize any active ingredient 

itself covered by a Bayer or Monsanto 

patent, during the life of that patent; 

(7) all patents used exclusively in the 

’839 Business, and a worldwide, 

exclusive, royalty-free, paid-up, 

irrevocable, perpetual license to all 

other patents with one or more claims 

used in the ’839 Business; 

(8) a worldwide, non-exclusive, 

irrevocable, perpetual covenant not to 

assert against BASF and its direct or 

indirect customers all other patents 

owned, controlled, licensed, or used by 

Bayer or Monsanto with claims covering 

the mixture or combined or sequential 

use of clothianidin, Bacillus firmus 

strain I–1582, Bacillus thuringiensis 

strain EX 297512, fluopyram, or BCS– 

CT12839 with any active ingredient or 

combination of active ingredients, 

except for any active ingredient itself 

covered by a Bayer or Monsanto patent, 

during the life of that patent; 

(9) a worldwide, non-exclusive, 

royalty-free, paid-up, irrevocable, 

perpetual license (sub-licensable to any 

tollers designated by BASF) to any other 

intellectual property, registration data, 

technology, know-how, or other rights 

used in the manufacture or formulation 

of any current or pipeline product 

divested as part of the Seed Treatment 

Business; and 

(10) all other intangible assets owned, 

licensed, controlled, or used by the Seed 

Treatment Business, including, but not 

limited to, all licenses and sublicenses, 

intellectual property, copyrights, 

trademarks, trade names, service marks, 

service names, technical information, 

know-how, trade secrets, drawings, 

designs, design protocols, specifications 

for materials, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, design tools and simulation 

capability, manuals and technical 

information provided by Bayer to its 

own employees, customers, suppliers, 

agents, or licensees, and data 

concerning historical and current 

research and development efforts, 

including, but not limited to, designs of 

experiments and the results of 

successful and unsuccessful designs and 

experiments. 

Notwithstanding Paragraphs II(X)(1) 

through II(X)(10) above, the Seed 

Treatment Divestiture Assets do not 

include (a) active ingredient production 

facilities in Dormagen, Germany; 

Bergkamen, Germany; or Tlaxcala, 

Mexico; (b) formulation, filling, or 

packaging sites in Amatitlan, 

Guatemala; Belford Roxo, Brazil; 

Frankfurt, Germany; Kansas City, 

Missouri; Pinkenba, Australia; or Zarate, 

Argentina; or (c) trademarks, trade 

names, service marks, or service names 

containing the name ‘‘Bayer.’’ 

Y. ‘‘Shared Confidential Information’’ 

means confidential business 

information relayed from Bayer to 

BASF, or vice versa, as a result of any 

agreements entered into pursuant to 

Paragraph IV(G) or Paragraph IV(H) of 

this Final Judgment, including 

quantities, units, and prices of items 

ordered or purchased, and any other 

competitively sensitive information 

regarding Bayer’s or BASF’s 

performance under these agreements. 

Z. ‘‘Vegetable Seed Business’’ means 

Bayer’s global business of researching, 

developing, manufacturing, and selling 

vegetable seeds. 

AA. ‘‘Vegetable Seed Divestiture 

Assets’’ means the following assets 

related to the Vegetable Seed Business: 

(1) all tangible assets that comprise 

the Vegetable Seed Business including, 

but not limited to, research and 

development activities; all 

manufacturing plants and equipment, 

tooling and fixed assets, personal 

property, inventory, office furniture, 

materials, supplies, and other tangible 

property; all transferable licenses, 

permits, product registrations and 

regulatory submissions (including 

supporting data), certifications, and 

authorizations issued by or submitted to 


amozie on DSK3GDR082PROD with NOTICES2
27662 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

any governmental organization; all 

contracts, teaming arrangements, 

agreements, leases, commitments, 

certifications, and understandings, 

including supply agreements; all 

customer lists, accounts, credit records, 

and transferable customer contracts; all 

other business and administrative 

records; seed production facilities; 

breeding stations; all research and 

development facilities; all germplasm; 

and all breeding data, including, but not 

limited to, phenotype, genotype, 

molecular markers, and performance 

data; and 

(2) all intangible assets owned, 

licensed, controlled, or used by the 

Vegetable Seed Business, including, but 

not limited to, all patents, plant variety 

certificates, licenses and sublicenses, 

intellectual property, copyrights, 

trademarks, trade names, service marks, 

service names, technical information, 

computer software and related 

documentation, know-how, trade 

secrets, drawings, blueprints, designs, 

design protocols, specifications for 

materials, specifications for parts and 

devices, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, design tools and simulation 

capability, manuals and technical 

information provided by Bayer to its 

own employees, customers, suppliers, 

agents, or licensees; and research data 

concerning historical and current 

research and development efforts, 

including, but not limited to, designs of 

experiments and the results of 

successful and unsuccessful designs and 

experiments. 

Notwithstanding Paragraphs II(AA)(1) 

and II(AA)(2) above, the Vegetable Seed 

Divestiture Assets do not include the 

thirty-four (34) office facilities identified 

in Appendix A, Paragraph 4, or 

trademarks, trade names, service marks, 

or service names containing the name 

‘‘Bayer.’’ 

BB. ‘‘Yield and Stress Collaboration’’ 

means any agreement between 

Monsanto and BASF existing as of the 

date of filing of the Complaint in this 

matter related to a collaboration to 

develop yield and stress traits for row 

crops. 

III. APPLICABILITY 

This Final Judgment applies to 

Defendants and all other persons in 

active concert or participation with any 

of them who receive actual notice of this 

Final Judgment by personal service or 

otherwise. 

IV. DIVESTITURES 

A. By the later of ninety (90) calendar 

days after the filing of the Complaint in 

this matter or ninety (90) calendar days 

after receiving all international antitrust 

approvals required for the transfer of the 

Divestiture Assets, Bayer and Monsanto 

are ordered and directed to divest the 

Divestiture Assets to BASF in a manner 

consistent with this Final Judgment. 

The United States, in its sole discretion, 

may agree to one or more extensions of 

this period not to exceed sixty (60) 

calendar days in total and shall notify 

this Court in such circumstances. 

Defendants agree to use their best efforts 

to divest the Divestiture Assets as 

expeditiously as possible. 

B. Bayer shall permit BASF to have 

reasonable access to personnel and to 

make inspections of the facilities to be 

acquired by BASF; access to any and all 

environmental, zoning, and other permit 

documents and information; and access 

to any and all financial, operational, or 

other documents and information 

customarily provided as part of a due 

diligence process. 

C. Bayer and Monsanto shall not take 

any action that will impede in any way 

the permitting, operation, or divestiture 

of the Divestiture Assets. 

D. Unless the United States otherwise 

consents in writing, the divestitures 

pursuant to Section IV of this Final 

Judgment shall include the entire 

Divestiture Assets and shall be 

accomplished in such a way as to satisfy 

the United States, in its sole discretion, 

that the Divestiture Assets can and will 

be used by BASF as part of the viable, 

ongoing operation of the Divestiture 

Businesses. The divestitures shall be 

accomplished so as to satisfy the United 

States, in its sole discretion, that none 

of the terms of any agreement between 

BASF and Bayer and Monsanto give 

Bayer and Monsanto the ability 

unreasonably to raise BASF’s costs, to 

lower BASF’s efficiency, or otherwise to 

interfere in the ability of BASF to 

compete effectively. 

E. Employees 

(1) Within ten (10) business days 

following the filing of the Complaint in 

this matter, Bayer shall provide to 

BASF, the United States, and the 

Monitoring Trustee, organization charts 

covering every person providing any 

support for the Divestiture Businesses 

for each year since January 1, 2015. 

Within ten (10) business days of 

receiving a request from BASF, Bayer 

shall provide to BASF, the United 

States, and the Monitoring Trustee, 

additional information related to 

identified Relevant Personnel, including 

name, job title, reporting relationships, 

Hay points, past experience, 

responsibilities from January 1, 2015 

through the Divestiture Closing Date, 

training and educational history, 

relevant certifications, job performance 

evaluations, and current salary and 

benefits information to enable BASF to 

make offers of employment. If Bayer is 

barred by any applicable laws from 

providing any of this information to 

BASF, within ten (10) business days of 

receiving BASF’s request, Bayer shall 

provide the requested information to the 

greatest extent possible under 

applicable laws and also provide a 

written explanation of its inability to 

comply fully with BASF’s request for 

information regarding Relevant 

Personnel. 

(2) Upon request, Bayer shall make 

Relevant Personnel available for 

interviews with BASF during normal 

business hours at a mutually agreeable 

location. Bayer will not interfere with 

any negotiations by BASF to employ 

any Relevant Personnel. Interference 

includes but is not limited to offering to 

increase the salary or benefits of 

Relevant Personnel other than as part of 

a company-wide increase in salary or 

benefits granted in the ordinary course 

of business. 

(3) For any Relevant Personnel who 

elect employment with BASF, Bayer 

shall waive all non-compete and nondisclosure agreements (except as noted 

in Paragraph IV(E)(5)), vest all unvested 

pension and other equity rights, and 

provide all benefits which Relevant 

Personnel would be provided if 

transferred to a buyer of an ongoing 

business. 

(4) For a period of two (2) years from 

the date of filing of the Complaint in 

this matter, Bayer may not solicit to 

hire, or hire, any such person who was 

hired by BASF, unless (a) such 

individual is terminated or laid off by 

BASF or (b) BASF agrees in writing that 

Bayer may solicit or hire that 

individual. 

(5) Nothing in Paragraph IV(E) shall 

prohibit Bayer from maintaining any 

reasonable restrictions on the disclosure 

by any employee who accepts an offer 

of employment with BASF of Bayer’s 

proprietary non-public information that 

is (a) not otherwise required to be 

disclosed by this Final Judgment, (b) 

related solely to Bayer’s businesses and 

clients, and (c) unrelated to the 

Divestiture Assets. 

(6) BASF’s right to hire Relevant 

Personnel pursuant to Section IV(E) and 

Bayer’s obligations under Paragraph 

IV(E)(1), Paragraph IV(E)(2), and 

Paragraph IV(E)(3) shall last for a period 

of one (1) year after the Divestiture 

Closing Date. 

F. Asset Warranties 

(1) In addition to any other warranties 

in the divestiture-related agreements 

entered into by Defendants, Bayer and 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27663 

Monsanto shall warrant to BASF (a) that 

each asset will be operational as of the 

Divestiture Closing Date; (b) that, for 

each of the Divestiture Assets, there are 

no material defects in the 

environmental, zoning, or other permits 

pertaining to the operation of each asset; 

(c) that following the sale of each of the 

Divestiture Assets, Bayer will not 

undertake, directly or indirectly, any 

challenges to the environmental, zoning, 

or other permits related to the operation 

of each of the Divestiture Assets; and (d) 

the Divestiture Assets are sufficient in 

all material respects for BASF, taking 

into account BASF’s assets and 

business, to maintain the viability and 

competitiveness of the Divestiture 

Businesses. 

(2) In addition to any other remedial 

provisions in the divestiture-related 

agreements entered into by Defendants, 

for a period of up to one (1) year 

following the Divestiture Closing Date, 

if BASF determines that any assets not 

included in the Divestiture Assets were 

previously used by the Divestiture 

Businesses and are reasonably necessary 

for the continued competitiveness of the 

Divestiture Businesses, it shall notify 

the United States, the Monitoring 

Trustee, and Bayer in writing that it 

requires such assets. The United States, 

in its sole discretion, taking into 

account BASF’s assets and business, 

shall determine whether any of the 

assets identified should be divested to 

BASF. If the United States determines 

that such assets should be divested, 

Bayer and BASF will negotiate an 

agreement within thirty (30) calendar 

days providing for the divestiture of 

such assets in a period to be determined 

by the United States in consultation 

with Bayer and BASF. The terms of any 

such divestiture agreement shall be 

commercially reasonable and must be 

acceptable to the United States, in its 

sole discretion. 

G. Supply and Tolling Agreements 

(1) Seed Treatment Supply 

Agreements for Broad Acre Seeds and 

Traits Business: At the option of BASF, 

on or before the Divestiture Closing 

Date, Bayer shall enter into one or more 

agreements with BASF for the supply of 

the Bayer seed treatments (except the 

seed treatments divested as part of the 

Clothianidin Seed Treatment Business 

or Fluopyram Seed Treatment Business) 

used by Bayer in the Broad Acre Seeds 

and Traits Business for an initial period 

of up to two (2) years. Bayer will supply 

BASF with these seed treatments at 

variable cost, in priority over other 

purchasers, and in the quantities 

demanded by BASF under any such 

agreement until the expiration of that 

agreement. All other terms and 

conditions of any such agreement must 

be reasonably related to market 

conditions for the supply of seed 

treatments. Upon BASF’s request, the 

United States, in its sole discretion, may 

approve one or more extensions of any 

such agreement for a total of up to an 

additional two (2) years. The United 

States, in its sole discretion, shall 

determine whether supply pursuant to 

any such extension must be at variable 

cost. 

(2) Isoxaflutole Supply Agreement: At 

the option of BASF, on or before the 

Divestiture Closing Date, Bayer shall 

enter into one or more agreements with 

BASF for the supply of isoxaflutole to 

be used on crops that are isoxaflutoletolerant as a result of genetic 

modification for an initial period of two 

(2) years. Bayer will supply BASF with 

formulated isoxaflutole and the 

isoxaflutole active ingredient at variable 

cost, in priority over other purchasers, 

and in the quantities demanded by 

BASF under any such agreement until 

the expiration of that agreement. All 

other terms and conditions of any such 

agreement must be reasonably related to 

market conditions for the supply of 

herbicides and the active ingredients in 

herbicides. Upon BASF’s request, the 

United States, in its sole discretion, may 

approve one or more extensions of any 

such agreement for a total of up to an 

additional four (4) years. The United 

States, in its sole discretion, shall 

determine whether supply pursuant to 

any such extension must be at variable 

cost. 

(3) Tolling Agreement for Glufosinate 

Ammonium: At the option of BASF, on 

or before the Divestiture Closing Date, 

Bayer shall enter into one or more 

tolling agreements with BASF for the 

formulation, filling, and packaging of 

glufosinate ammonium products for an 

initial period of up to two (2) years. 

Bayer will formulate, fill, and package 

glufosinate ammonium products for 

BASF at variable cost, in priority over 

other purchasers, and in the quantities 

demanded by BASF under any such 

agreement until the expiration of that 

agreement. All other terms and 

conditions of any such agreement must 

be reasonably related to market 

conditions for the formulation, filling, 

and packaging of herbicides. Upon 

BASF’s request, the United States, in its 

sole discretion, may approve one or 

more extensions of any such agreement 

for a total of up to an additional one (1) 

year. The United States, in its sole 

discretion, shall determine whether 

tolling pursuant to any such extension 

must be at variable cost. 

(4) Tolling Agreement for Divested 

Seed Treatment Formulations: At the 

option of BASF, on or before the 

Divestiture Closing Date, Bayer shall 

enter into one or more tolling 

agreements with BASF for the 

formulation, filling, and packaging of 

the seed treatments divested as part of 

the Clothianidin Seed Treatment 

Business and the Fluopyram Seed 

Treatment Business for an initial period 

of up to two (2) years. Bayer will toll 

these products for BASF at variable cost, 

in priority over other purchasers, and in 

the quantities demanded by BASF 

under any such agreement until the 

expiration of that agreement. All other 

terms and conditions of any such 

agreement must be reasonably related to 

market conditions for the formulation, 

filling, and packaging of seed 

treatments. Upon BASF’s request, the 

United States, in its sole discretion, may 

approve one or more extensions of any 

such agreement for a total of up to an 

additional two (2) years. The United 

States, in its sole discretion, shall 

determine whether tolling pursuant to 

any such extension must be at variable 

cost. 

(5) Clothianidin Active Ingredient 

Tolling Agreement: At the option of 

BASF, on or before the Divestiture 

Closing Date, Bayer shall enter into one 

or more tolling agreements with BASF 

for the supply of the active ingredients 

used in the seed treatments divested as 

part of the Clothianidin Seed Treatment 

Business for an initial period of up to 

two (2) years. Bayer will toll these active 

ingredients for BASF at variable cost, in 

priority over other purchasers, and in 

the quantities demanded by BASF 

under any such agreement until the 

expiration of that agreement. All other 

terms and conditions of any such 

agreement must be reasonably related to 

market conditions for the tolling of 

active ingredients used in seed 

treatments. Upon BASF’s request, the 

United States, in its sole discretion, may 

approve one or more extensions of any 

such agreement for a total of up to an 

additional four (4) years. The United 

States, in its sole discretion, shall 

determine whether tolling pursuant to 

any such extension must be at variable 

cost. 

(6) Fluopyram Active Ingredient 

Tolling Agreement: At the option of 

BASF, on or before the Divestiture 

Closing Date, Bayer shall enter into a 

tolling agreement with BASF for the 

supply of the fluopyram active 

ingredient for an initial period of up to 

two (2) years. Bayer will toll this active 

ingredient for BASF at variable cost, in 

priority over other purchasers, and in 

the quantities demanded by BASF 

under any such agreement until the 

expiration of that agreement. All other 


amozie on DSK3GDR082PROD with NOTICES2
27664 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

terms and conditions of any such 

agreement must be reasonably related to 

market conditions for the tolling of 

active ingredients used in seed 

treatments. Upon BASF’s request, the 

United States, in its sole discretion, may 

approve one or more extensions of any 

such agreement for a total of up to an 

additional four (4) years. The United 

States, in its sole discretion, shall 

determine whether tolling pursuant to 

any such extension must be at variable 

cost. 

(7) Reverse-Tolling Agreement for 

Bayer Products: At the option of Bayer, 

on or before the Divestiture Closing 

Date, BASF shall enter into a reversetolling agreement with Bayer for the 

formulation, filling, and packaging of 

the Bayer products manufactured at the 

Regina, Canada formulation facility that 

is part of the Glufosinate Ammonium 

Divestiture Assets for an initial period 

of up to two (2) years. All terms and 

conditions of any such agreement must 

be reasonably related to market 

conditions for the formulation, filling, 

and packaging of these crop protection 

products. Upon Bayer’s request, the 

United States, in its sole discretion, may 

approve one or more extensions of such 

agreement for a total of up to an 

additional six (6) months. 

(8) Other Supply and Tolling 

Agreements: At the option of BASF, on 

or before the Divestiture Closing Date, 

Bayer and BASF shall enter into any 

other supply, reverse-supply, tolling, or 

reverse-tolling agreements reasonably 

necessary to allow BASF to operate any 

Divestiture Assets or to facilitate the 

transfer of Bayer facilities to BASF. 

(9) The terms and conditions of all 

agreements reached between Bayer and 

BASF under Paragraph IV(G) must be 

acceptable to the United States, in its 

sole discretion. Any amendment or 

modification of such agreements may be 

entered into only with the approval of 

the United States, in its sole discretion. 

Bayer shall perform all duties and 

provide all services required of Bayer 

under the agreements reached between 

Bayer and BASF under Paragraph IV(G). 

(10) BASF will use best efforts to 

develop or procure alternative sources 

of supply by the end of the initial 

periods identified in Paragraph IV(G) for 

supply and tolling agreements and will 

continue to use best efforts during any 

extension period. 

(11) Bayer will use best efforts to 

develop or procure alternative sources 

of supply by the end of the initial 

periods identified in Paragraph IV(G) for 

reverse-supply and reverse-tolling 

agreements and will continue to use 

best efforts during any extension period. 

H. Transition Services 

(1) Transition Services Agreements for 

Information Technology Support: At the 

option of BASF, on or before the 

Divestiture Closing Date, Bayer shall 

enter into one or more transition 

services agreements to provide 

information technology services and 

support for the Divestiture Assets for an 

initial period of up to one (1) year. 

Bayer will provide the transition 

services under any such agreement at no 

cost to BASF until the expiration of the 

agreement. All other terms and 

conditions of any such agreement must 

be reasonably related to market 

conditions for the provision of the 

relevant services. Upon BASF’s request, 

the United States, in its sole discretion, 

may approve one or more extensions of 

this agreement for a total of up to an 

additional one (1) year. 

(2) Bayer Warranty of Transition 

Services Provided by Tata Consultancy 

Services: Bayer has contracted with a 

third-party vendor, Tata Consultancy 

Services, to create interim, stand-alone 

information and business support 

systems for some components of the 

Divestiture Assets. Bayer shall warrant 

to BASF that the systems developed by 

Tata Consultancy Services will be 

operational on the Divestiture Closing 

Date and support operations of the 

relevant components of the Divestiture 

Assets in a manner that is substantially 

consistent with prior operations of these 

businesses. Except for de minimis 

deficiencies, Bayer shall use best efforts 

to take all necessary actions to correct 

expeditiously any deficiencies 

inconsistent with this warranty and 

shall be solely responsible for all costs 

incurred in resolving the deficiencies, 

including by paying Tata Consultancy 

Services’s fees. 

(3) Distribution Agreements for 

Glufosinate Ammonium and Divested 

Seed Treatment Products: At the option 

of BASF, on or before the Divestiture 

Closing Date, Bayer shall enter into one 

or more agreements to distribute on 

BASF’s behalf products containing 

glufosinate ammonium, clothianidin, 

Bacillus firmus strain I–1582, or 

fluopyram outside the United States. 

BASF shall terminate any such 

agreement within one (1) year. Upon 

BASF’s request, the United States, in its 

sole discretion, may approve one or 

more extensions of the period for BASF 

to terminate any such agreement for a 

total of up to an additional one (1) year. 

(4) Other Transition Services 

Agreements: At the option of BASF, on 

or before the Divestiture Closing Date, 

Bayer shall enter into other transition 

services or reverse transition services 

agreements to provide any other 

transition services reasonably necessary 

to allow BASF to operate any 

Divestiture Assets or to facilitate the 

transfer of Bayer facilities to BASF. 

Unless specifically excepted elsewhere 

in this Final Judgment, Bayer will 

provide transition services under any 

such agreement for an initial period of 

up to two (2) years and on price terms 

no worse than at variable cost until the 

expiration of the agreement. All other 

terms and conditions of any such 

agreement must be reasonably related to 

market conditions for the provision of 

the relevant services. Upon BASF’s 

request, the United States, in its sole 

discretion, may approve one or more 

extensions of any such agreement for a 

total of up to an additional one (1) year. 

(5) The terms and conditions of all 

agreements reached between Bayer and 

BASF under Paragraph IV(H) must be 

acceptable to the United States, in its 

sole discretion. Any amendments or 

modifications of the agreements may be 

entered into only with the approval of 

the United States, in its sole discretion. 

Bayer shall perform all duties and 

provide all services required of Bayer 

under the agreements reached between 

Bayer and BASF under Paragraph IV(H). 

(6) BASF will use best efforts to 

develop alternative solutions by the end 

of the initial periods identified in 

Paragraph IV(H) for transition services 

agreements and will continue to use 

best efforts during any extension period. 

(7) Bayer will use best efforts to 

develop alternative solutions by the end 

of the initial periods identified in 

Paragraph IV(H) for reverse-transition 

services agreements and will continue 

to use best efforts during any extension 

period. 

I. Clothianidin Licenses Back: At the 

option of Bayer, BASF shall enter into 

an agreement to provide Bayer the 

following licenses: 

(1) a worldwide, exclusive, royaltyfree, paid-up license to the rights 

transferred to BASF in Paragraph 

II(X)(3) for (a) all non-seed treatment 

uses of clothianidin, (b) all uses of 

active ingredients other than 

clothianidin, Bacillus firmus strain I– 

1582, or Bacillus thuringiensis strain EX 

297512, and (c) combinations of active 

ingredients that do not include 

clothianidin, Bacillus firmus strain I– 

1582, or Bacillus thuringiensis strain EX 

297512; and 

(2) a worldwide, non-exclusive, 

royalty-free, paid-up license to the 

rights transferred to BASF in Paragraphs 

II(X)(3) and II(X)(4) for the use of 

clothianidin in any Bayer seed 

treatment mixture product for canola/ 

oilseed rape, potatoes, sugarbeets, 

cereals, and vegetables that has been 

commercialized by Bayer as of the date 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27665 

of the filing of the Complaint in this 

matter (except Poncho/VOTiVO, Poncho 

Plus, and Poncho Super). 

J. Digital Agriculture License Back: 

At the option of Bayer, BASF shall enter 

into an agreement to provide Bayer a 

non-exclusive, royalty-free, paid-up 

license to the Digital Agriculture 

Divestiture Assets for the limited 

purpose of allowing Bayer to sell 

outside North America the following 

digital agriculture products: Expert.com 

web application; Weedscout mobile 

application; Xarvio FieldManager web 

application; Xarvio FieldManager 

mobile application; and Xarvio Scouting 

mobile application. This license shall 

not give Bayer (1) any rights to any 

improvements made by BASF to the 

Digital Agriculture Divestiture Assets or 

(2) any rights to use any trademarks or 

brand names divested as part of the 

Digital Agriculture Divestiture Assets, 

including, but not limited to, 

Expert.com, Weedscout, or Xarvio. 

K. Third-Party Agreements: At BASF’s 

option, on or before the Divestiture 

Closing Date, Bayer shall assign or 

otherwise transfer to BASF all 

transferable or assignable agreements, or 

any assignable portions thereof, related 

to the Divestiture Assets, including, but 

not limited to, all customer contracts, 

licenses, and collaborations. Bayer shall 

use best efforts to expeditiously obtain 

from any third parties any consent 

necessary to transfer or assign to BASF 

all agreements related to the Divestiture 

Assets. To the extent consent cannot be 

obtained and the agreement is not 

otherwise assignable, in addition to the 

existing mitigation rules agreed upon 

between Bayer and BASF, Bayer shall 

use best efforts to obtain for BASF, as 

expeditiously as possible, the full 

benefit of any such agreement as it 

relates to the Divestiture Businesses by 

assisting BASF to secure a new 

agreement and by taking any other steps 

necessary to ensure that BASF obtains 

the full benefit of the agreement as it 

relates to the Divestiture Businesses. 

Bayer will not assert, directly or 

indirectly, any legal claim that would 

interfere with BASF’s ability to obtain 

the full benefit from any transferred 

third-party agreement to the same extent 

enjoyed by Bayer prior to the transfer. 

L. Licenses, Registrations, and 

Permits 

(1) Where necessary, BASF will apply 

for licenses, registrations, and permits 

that support the Divestiture Businesses 

to replace those held by Bayer as 

expeditiously as possible and, in any 

event, no later than six (6) months from 

the Divestiture Closing Date. The United 

States, in its sole discretion, may 

approve one or more extensions of this 

period, for a total of up to an additional 

six (6) months, for BASF to satisfy this 

requirement. BASF will make best 

efforts to obtain such licenses, 

registrations, and permits as 

expeditiously as possible. 

(2) Bayer will make best efforts to 

assist BASF with acquiring new 

licenses, registrations, and permits to 

support the Divestiture Businesses and, 

until BASF has the necessary licenses, 

registrations, and permits, Bayer will 

provide BASF with the benefit of 

Bayer’s licenses, registrations, and 

permits in BASF’s operation of the 

Divestiture Assets. 

(3) Bayer will globally maintain all 

product registrations for isoxaflutole, 

fluopyram, and any other retained 

product registrations related to the 

Divestiture Businesses, and Bayer will 

make best efforts to obtain regulatory 

approvals for isoxaflutole formulations 

used on isoxaflutole-tolerant cotton and 

soybeans. 

M. Modification of Monsanto-BASF 

Yield and Stress Collaboration: The 

Yield and Stress Collaboration will be 

modified consistent with the following: 

(1) Defendants shall not contribute any 

more genes to the Yield and Stress 

Collaboration; (2) the Yield and Stress 

Collaboration will continue as before 

with respect to genes or events in the 

three active research and development 

projects, except that BASF will receive 

a license with stacking rights to use in 

its own seeds any Yield and Stress 

Collaboration trait commercialized by 

Monsanto, on terms acceptable to the 

United States, in its sole discretion; (3) 

both Bayer and BASF shall receive (a) 

copies of all other genes and related 

research records in the Yield and Stress 

Collaboration regardless of crop, and (b) 

non-exclusive research, development, 

breeding, and commercialization rights 

to these genes in any crop with no cost, 

revenue, or profit sharing; and (4) the 

terms related to DroughtGard shall be 

unchanged. 

N. Monsanto Midwest Soybean 

Germplasm: At the option of BASF, on 

or before the Divestiture Closing Date, 

Bayer and Monsanto shall enter into one 

or more agreements facilitating the 

transfer and licensing of the Midwest 

Soybean Germplasm Divestiture Assets. 

The terms and conditions of any such 

agreement reached between Bayer and 

Monsanto and BASF must be acceptable 

to the United States, in its sole 

discretion. Any amendment or 

modification of any such agreement may 

be entered into only with the approval 

of the United States, in its sole 

discretion. Bayer and Monsanto shall 

perform all duties and provide all 

services required of them under any 

such agreement reached between Bayer 

and BASF. 

V. FINANCING 

Neither Bayer nor Monsanto shall 

finance all or any part of any purchase 

made pursuant to Section IV of this 

Final Judgment. 

VI. HOLD SEPARATE AND ASSET 

PRESERVATION 

Until all the divestitures required by 

this Final Judgment have been fully 

accomplished, Defendants shall take all 

steps necessary to comply with the 

Stipulation and Order entered by this 

Court. Defendants shall take no action 

that would jeopardize any divestiture 

ordered by this Court. 

VII. AFFIDAVITS 

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestitures 

have been accomplished under Section 

IV, Bayer and Monsanto shall deliver to 

the United States and the Monitoring 

Trustee an affidavit, signed by each of 

Bayer’s and Monsanto’s Chief Financial 

Officer and General Counsel, which 

shall describe the fact and manner of 

Bayer’s and Monsanto’s compliance 

with Section IV. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States to information provided 

by Bayer and Monsanto, including 

limitation on information, shall be made 

within fourteen (14) calendar days of 

receipt of such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, each of the Defendants shall 

deliver to the United States and the 

Monitoring Trustee an affidavit that 

describes in reasonable detail all actions 

it has taken and all steps it has 

implemented on an ongoing basis to 

comply with this Final Judgment and 

the Stipulation and Order. Each of the 

Defendants shall deliver to the United 

States and the Monitoring Trustee an 

affidavit describing any changes to the 

efforts and actions outlined in its earlier 

affidavits filed pursuant to this Final 

Judgment within fifteen (15) calendar 

days after the change is implemented. 

C. In addition to providing affidavits 

to the United States and the Monitoring 

Trustee as required under Paragraph 

VII(A) and Paragraph VII(B), Defendants 

shall immediately notify the United 

States and the Monitoring Trustee 

verbally and in writing of any potential 

problems or delays in meeting any of 

the obligations set forth in this Final 

Judgment and the Stipulation and 

Order. 


amozie on DSK3GDR082PROD with NOTICES2
27666 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

D. Bayer and Monsanto shall keep all 

records of all efforts made to preserve 

and divest each of the Divestiture Assets 

until one year after such divestitures 

have been completed. BASF shall keep 

all records of all efforts made to acquire 

each of the Divestiture Assets until one 

year after such divestitures have been 

completed. 

VIII. APPOINTMENT OF 

MONITORING TRUSTEE 

A. Upon filing of this Final Judgment, 

the United States may, in its sole 

discretion, appoint a Monitoring 

Trustee, subject to approval by this 

Court. 

B. The Monitoring Trustee shall have 

the power and authority to monitor 

Defendants’ compliance with the terms 

of this Final Judgment and the 

Stipulation and Order entered by this 

Court, and shall have such other powers 

as this Court deems appropriate. The 

Monitoring Trustee shall investigate and 

report on Defendants’ compliance with 

their respective obligations under, and 

efforts to effectuate the purposes of, this 

Final Judgment and the Stipulation and 

Order, including, but not limited to, 

reviewing (1) the implementation and 

execution of the compliance plan 

required by Section IX, and (2) any 

claimed breach by Bayer of any 

agreement entered into pursuant to 

Paragraph IV(G) or Paragraph IV(H). If 

the Monitoring Trustee determines that 

any violation of the Final Judgment or 

the Stipulation and Order or breach of 

any related agreement has occurred, the 

Monitoring Trustee shall recommend an 

appropriate remedy to the United States, 

which, in its sole discretion, can accept, 

modify, or reject a recommendation to 

pursue a remedy. 

C. Subject to Paragraph VIII(E), the 

Monitoring Trustee may hire at Bayer’s 

cost and expense any consultants, 

accountants, attorneys, or other agents 

reasonably necessary in the Monitoring 

Trustee’s judgment and who shall be 

solely accountable to the Monitoring 

Trustee. Any such consultants, 

accountants, attorneys, or other agents 

shall serve on such terms and 

conditions as the United States 

approves, in its sole discretion, 

including confidentiality requirements 

and conflict of interest certifications. 

D. Defendants shall not object to 

actions taken by the Monitoring Trustee 

in fulfillment of the Monitoring 

Trustee’s responsibilities under any 

order of this Court on any ground other 

than the Monitoring Trustee’s 

malfeasance. Any such objections by 

Defendants must be conveyed in writing 

to the United States and the Monitoring 

Trustee within ten (10) calendar days 

after the action taken by the Monitoring 

Trustee giving rise to the Defendants’ 

objection. 

E. The Monitoring Trustee shall serve 

at Bayer’s cost and expense pursuant to 

a written agreement with Bayer and on 

such terms and conditions as the United 

States approves, in its sole discretion, 

including confidentiality requirements 

and conflict of interest certifications. 

The compensation of the Monitoring 

Trustee and any consultants, 

accountants, attorneys, and other agents 

retained by the Monitoring Trustee shall 

be on reasonable and customary terms 

commensurate with the individuals’ 

experience and responsibilities. If the 

Monitoring Trustee and Bayer are 

unable to reach agreement on the 

Monitoring Trustee’s or any agents’ or 

consultants’ compensation or other 

terms and conditions of engagement 

within fourteen (14) calendar days of 

appointment of the Monitoring Trustee, 

the United States may, in its sole 

discretion, take appropriate action, 

including making a recommendation to 

this Court. The Monitoring Trustee 

shall, within three (3) business days of 

hiring any consultants, accountants, 

attorneys, or other agents, provide 

written notice of such hiring and the 

rate of compensation to Bayer and the 

United States. 

F. The Monitoring Trustee shall have 

no responsibility or obligation for the 

operation of Defendants’ businesses. 

G. Defendants shall use their best 

efforts to assist the Monitoring Trustee 

in monitoring Defendants’ compliance 

with their individual obligations under 

this Final Judgment and the Stipulation 

and Order. The Monitoring Trustee and 

any consultants, accountants, attorneys, 

and other agents retained by the 

Monitoring Trustee shall have full and 

complete access to the personnel, books, 

records, and facilities related to 

compliance with this Final Judgment 

and the Stipulation and Order, subject 

to reasonable protection for trade secret 

or other confidential research, 

development, or commercial 

information or any applicable 

privileges. Defendants shall take no 

action to interfere with or to impede the 

Monitoring Trustee’s accomplishment of 

its responsibilities. 

H. After its appointment, the 

Monitoring Trustee shall file reports 

monthly until all the Divestiture Assets 

have been divested and thereafter as 

frequently as the United States 

determines, in its sole discretion, setting 

forth Defendants’ compliance with their 

obligations under this Final Judgment 

and under the Stipulation and Order. 

The Monitoring Trustee shall file such 

reports with the United States and, as 

appropriate, this Court. To the extent 

that any such report contains 

information that the Monitoring Trustee 

deems confidential, that report shall not 

be filed in the public docket of this 

Court. 

I. The Monitoring Trustee shall audit 

Defendants’ compliance with Section IX 

every six (6) months. Defendants will 

provide full access to any documents 

and make employees available for 

interviews requested by the Monitoring 

Trustee pursuant to performing the 

semi-annual audit. The Monitoring 

Trustee shall file a report of the audit 

with the United States and, as 

appropriate, this Court. To the extent 

that any such report contains 

information that the Monitoring Trustee 

deems confidential, that report shall not 

be filed in the public docket of this 

Court. 

J. The Monitoring Trustee shall serve 

until the sale of the Divestiture Assets 

is finalized pursuant to Section IV and 

the expiration of any agreement entered 

into pursuant to Paragraph IV(G) or 

Paragraph IV(H) or other agreements 

between Bayer and BASF that may 

affect the accomplishment of the 

purposes of this Final Judgment, unless 

the United States, in its sole discretion, 

terminates earlier or extends this period. 

K. If the United States determines that 

the Monitoring Trustee has ceased to act 

or failed to act diligently or in a 

reasonably cost-effective manner, it may 

recommend this Court appoint a 

substitute Monitoring Trustee. 

IX. FIREWALL 

A. During the term of any agreement 

entered into pursuant to Paragraph 

IV(G) or Paragraph IV(H), Bayer and 

BASF shall implement and maintain 

reasonable procedures to prevent 

Shared Confidential Information from 

being disclosed by or through 

implementation and execution of these 

agreements to components or 

individuals within the respective 

companies involved in the marketing, 

distribution, or sale of competing 

products. 

B. Bayer and BASF each shall, within 

twenty (20) business days of the entry 

of the Stipulation and Order, submit to 

the United States and the Monitoring 

Trustee a document setting forth in 

detail the procedures implemented to 

effect compliance with Section IX. Upon 

receipt of the document, the United 

States shall notify Bayer and BASF 

within twenty (20) business days 

whether, in its sole discretion, it 

approves of or rejects each party’s 

compliance plan. In the event that 

Bayer’s or BASF’s compliance plan is 

rejected, the United States shall provide 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27667 

Bayer or BASF, as applicable, the 

reasons for the rejection. Bayer or BASF, 

as applicable, shall be given the 

opportunity to submit, within ten (10) 

business days of receiving a notice of 

rejection, a revised compliance plan. If 

Bayer or BASF cannot agree with the 

United States on a compliance plan, the 

United States shall have the right to 

request that this Court rule on whether 

Bayer’s and BASF’s proposed 

compliance plan fulfills the 

requirements of Section IX. 

C. Bayer and BASF shall: 

(1) furnish a copy of this Final 

Judgment and related Competitive 

Impact Statement within sixty (60) 

calendar days of entry of the Final 

Judgment to (a) each officer, director, 

and any other employee that will 

receive Shared Confidential 

Information; and (b) each officer, 

director, and any other employee that is 

involved in (i) any contacts with the 

other companies that are parties to any 

agreement entered into pursuant to 

Paragraph IV(G) or Paragraph IV(H), or 

(ii) making decisions under any 

agreement entered into pursuant to 

Paragraph IV(G) or Paragraph IV(H); 

(2) furnish a copy of this Final 

Judgment and related Competitive 

Impact Statement to any successor to a 

person designated in Paragraph IX(C)(1) 

upon assuming that position; 

(3) annually brief each person 

designated in Paragraph IX(C)(1) and 

Paragraph IX(C)(2) on the meaning and 

requirements of this Final Judgment and 

the antitrust laws; and 

(4) obtain from each person 

designated in Paragraph IX(C)(1) and 

Paragraph IX(C)(2), within thirty (30) 

calendar days of that person’s receipt of 

the Final Judgment, a certification that 

he or she (a) has read and, to the best 

of his or her ability, understands and 

agrees to abide by the terms of this Final 

Judgment; (b) is not aware of any 

violation of the Final Judgment that has 

not been reported to the company; and 

(c) understands that any person’s failure 

to comply with this Final Judgment may 

result in an enforcement action for civil 

or criminal contempt of court against 

each Defendant or any person who 

violates this Final Judgment. 

X. COMPLIANCE INSPECTION 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of any related orders such 

as any Stipulation and Order, or of 

determining whether the Final 

Judgment should be modified or 

vacated, and subject to any legally 

recognized privilege, from time to time 

authorized representatives of the United 

States Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon written 

request of an authorized representative 

of the Assistant Attorney General in 

charge of the Antitrust Division, and on 

reasonable notice to Defendants, be 

permitted: 

(1) access during Defendants’ office hours to 

inspect and copy, or at the option of the 

United States, to require Defendants to 

provide hard copy or electronic copies of, 

all books, ledgers, accounts, records, data, 

and documents in the possession, custody, 

or control of Defendants, related to any 

matters contained in this Final Judgment; 

and 

(2) to interview, either informally or on the 

record, Defendants’ officers, employees, or 

agents, who may have their individual 

counsel present, regarding such matters. 

The interviews shall be subject to the 

reasonable convenience of the interviewee 

and without restraint or interference by 

Defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, Defendants shall 

submit written reports or responses to 

written interrogatories, under oath if 

requested, related to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in 

Section X shall be divulged by the 

United States to any person other than 

an authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If at the time information or 

documents are furnished by Defendants 

to the United States, Defendants shall 

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)(l)(G) of the Federal Rules of Civil 

Procedure and mark each pertinent page 

of such material, ‘‘Subject to claim of 

protection under Rule 26(c)(l)(G) of the 

Federal Rules of Civil Procedure,’’ then 

the United States shall give Defendants 

ten (10) calendar days’ notice prior to 

divulging such material in any legal 

proceeding (other than a grand jury 

proceeding). 

XI. NO REACQUISITION OR 

RECOMBINATION OF 

DIVESTITURE ASSETS 

Bayer may not reacquire any part of 

the Divestiture Assets during the term of 

this Final Judgment. Except for an 

acquisition pursuant to Paragraph 

IV(F)(2), BASF may not acquire from 

Bayer during the term of this Final 

Judgment any assets or businesses that 

compete with the Divestiture Assets. In 

addition, Bayer and BASF shall not, 

without the prior written consent of the 

United States, enter into any new 

Collaboration involving any of the 

Divestiture Assets or expand the scope 

of any existing Collaboration involving 

any of the Divestiture Assets during the 

term of this Final Judgment. The United 

States will notify Bayer and BASF of its 

decision within sixty (60) calendar days 

of receiving written notification from 

Bayer and BASF of the proposed new or 

expanded Collaboration. The decision 

whether or not to consent to a 

Collaboration shall be within the sole 

discretion of the United States. 

XII. NOTIFICATION OF FUTURE 

TRANSACTIONS 

A. For transactions that are not 

subject to the reporting and waiting 

period requirements of the Hart-ScottRodino Antitrust Improvements Act of 

1976, as amended, 15 U.S.C. § 18a (the 

‘‘HSR Act’’), Bayer and Monsanto shall 

not, without providing advanced 

notification to the United States, 

directly or indirectly acquire a financial 

interest, including through securities, 

loan, equity, or management interest, in 

any company that researches, develops, 

manufactures, or sells digital agriculture 

products or soybean, cotton, canola, or 

corn seeds or traits. In addition, Bayer 

and Monsanto shall not acquire any 

digital agriculture assets, any trait 

assets, or all or substantially all of the 

germplasm assets from any such 

company without providing advanced 

notification to the United States. 

B. Such notification shall be provided 

to the United States in the same format 

as, and per the instructions relating to, 

the Notification and Report Form set 

forth in the Appendix to Part 803 of 

Title 16 of the Code of Federal 

Regulations as amended, except that the 

information requested in Items 5 

through 8 of the instructions must be 

provided only about digital agriculture 

products or soybean, cotton, canola, or 

corn seeds or traits. Notification shall be 

provided at least thirty (30) calendar 

days prior to acquiring any such 

interest, and shall include, beyond what 

may be required by the applicable 

instructions, the names of the principal 

representatives of the parties to the 

agreement who negotiated the 

agreement, and any management or 

strategic plans discussing the proposed 

transaction. If within thirty (30) 

calendar days after notification, the 

United States makes a written request 

for additional information, Bayer and 


amozie on DSK3GDR082PROD with NOTICES2
27668 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

Monsanto shall not consummate the 

proposed transaction or agreement until 

thirty (30) calendar days after 

submitting and certifying, in the manner 

described in Part 803 of Title 16 of the 

Code of Federal Regulations as 

amended, the truth, correctness, and 

completeness of all such additional 

information. Early termination of the 

waiting periods in this paragraph may 

be requested and, where appropriate, 

granted in the same manner as is 

applicable under the requirements and 

provisions of the HSR Act and rules 

promulgated thereunder. Section XII 

shall be broadly construed and any 

ambiguity or uncertainty regarding the 

filing of notice under Section XII shall 

be resolved in favor of filing notice. 

XIII. RETENTION OF 

JURISDICTION 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIV. ENFORCEMENT OF FINAL 

JUDGMENT 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including its right to seek an order of 

contempt from this Court. Defendants 

agree that in any civil contempt action, 

any motion to show cause, or any 

similar action brought by the United 

States regarding an alleged violation of 

this Final Judgment, the United States 

may establish a violation of this Final 

Judgment and the appropriateness of 

any remedy therefor by a preponderance 

of the evidence, and they waive any 

argument that a different standard of 

proof should apply. 

B. The Final Judgment should be 

interpreted to give full effect to the 

procompetitive purposes of the antitrust 

laws and to restore all competition 

harmed by the challenged conduct. 

Defendants agree that they may be held 

in contempt of, and that the Court may 

enforce, any provision of this Final 

Judgment that, as interpreted by the 

Court in light of these procompetitive 

principles and applying ordinary tools 

of interpretation, is stated specifically 

and in reasonable detail, whether or not 

it is clear and unambiguous on its face. 

In any such interpretation, the terms of 

the Final Judgment should not be 

construed against either party as the 

drafter. 

C. In any enforcement proceeding in 

which the Court finds that the 

Defendants have violated this Final 

Judgment, the United States may apply 

to the Court for a one-time extension of 

this Final Judgment, together with such 

other relief as may be appropriate. In 

connection with any successful effort by 

the United States to enforce this Final 

Judgment against a Defendant, whether 

litigated or resolved prior to litigation, 

that Defendant agrees to reimburse the 

United States for any attorneys’ fees, 

experts’ fees, and costs incurred in 

connection with that enforcement effort, 

including the investigation of the 

potential violation. 

XV. EXPIRATION OF FINAL 

JUDGMENT 

Unless this Court grants an extension, 

this Final Judgment shall expire ten (10) 

years from the date of its entry, except 

that after six (6) years from the date of 

its entry, this Final Judgment may be 

terminated upon notice by the United 

States to the Court and Defendants that 

the divestitures have been completed 

and that the continuation of the Final 

Judgment no longer is necessary or in 

the public interest. 

XVI. PUBLIC INTEREST 

DETERMINATION 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

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

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’ responses to 

comments. Based upon the record 

before this Court, which includes the 

Competitive Impact Statement and any 

comments and responses to comments 

filed with this Court, entry of this Final 

Judgment is in the public interest. 

Date: 

[Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. § 16] 

llllllllllllllllllll

United States District Judge 

Appendix A 

1. Bayer will retain thirty (30) office facilities 

largely dedicated to non-divested Bayer 

businesses in Argentina (Buenos Aires and 

Chacabuco), Brazil (Paulinia), Canada 

(Calgary, Ottawa, Rosthern, Saskatoon, and 

Winnipeg), Czech Republic (Prague), France 

(two sites in Lyon), Germany (Langenfeld and 

Monheim), Great Britain (Cambridge), Greece 

(Athens and Thessaloniki), Hungary 

(Budapest), Latvia (Riga), Poland (Warsaw), 

Romania (Bucharest), Russia (Moscow), 

Turkey (Adana, Gebze, Istanbul, Izmir, and 

Sanliurfa), Ukraine (Kiev), and the United 

States (Champaign, Clayton, and Inaha). 

2. Bayer will retain one seed cleaning and 

bagging facility that is part of Bayer Crop 

Science headquarters in Monheim, Germany 

(known as ‘‘EOPC’’). 

3. Bayer will retain fourteen (14) formulation 

and filling sites largely dedicated to nondivested Bayer products in Argentina 

(Zarate), Australia (Kwinana and Pinkenba), 

Brazil (Belford Roxo), China (Hangzhou), 

Colombia (Barranquilla), Germany 

(Frankfurt), Guatemala (Amatitla ́n), Japan 

(Hofu), Korea (Daejeon), South Africa (Nigel), 

Spain (Quart de Poblet), Thailand (Bangpoo), 

and the United States (Kansas City). 

4. Bayer will retain thirty-four (34) general 

office facilities largely dedicated to nondivested businesses in Algeria (Algiers), 

Argentina (Munro), Australia (Pinkenba), 

Belgium (Diegem), Canada (Guelph), Chile 

(Santiago de Chile), Colombia (Bogota ́), Costa 

Rica (San Jose ́), Denmark (Copenhagen), 

Egypt (Cairo), Germany (Monheim), Great 

Britain (Saffron Walden), Guatemala (Mixco), 

Hungary (Budapest), Iran (Tehran), Japan 

(Fukuoka), Kazakhstan (Astana), Kenya 

(Nairobi), Morocco (Casablanca and El 

Jadida), Panama (David), Peru (Ica and Lima), 

Poland (Warsaw), Portugal (Carnaxide), 

Romania (Bucharest), Russia (Krasnodar), 

Singapore (Singapore), South Korea 

(Anseong-si), Spain (Paterna), Ukraine (Kiev), 

the United States (two sites in West 

Sacramento), and Vietnam (Hanoi). 

Appendix B: Monsanto Population Numbers 

(1) JVK13764 

(2) JVK13662 

(3) JVK13647 

(4) JVK13604 

(5) JVK13363 

(6) JVK13294 

(7) JVK13624 

(8) JVK13564 

(9) JVK13301 

(10) JVK13302 

(11) JVK13304 

(12) JVK13303 

(13) JVK13305 

(14) JVK13306 

(15) JVK13307 

(16) JVK13279 

(17) JVK13281 

(18) JVK13282 

(19) JVK13283 

(20) JVK13278 

(21) JVK13280 

(22) JVK13284 

(23) JVK13592 

(24) JVK13593 

(25) JVK13596 

(26) JVK13591 

(27) JVK13594 

(28) JVK13595 

(29) JVK13598 

(30) JVK13205 

(31) JVK13224 

(32) JVK13450 

(33) JVK13455 

(34) JVK13457 

(35) JVK13458 

(36) JVK13251 

(37) JVK13451 

(38) JVK13452 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27669 

(39) JVK13453 

(40) JVK13456 

(41) JVK13761 

(42) JVK13762 

(43) JVK13763 

(44) JVK13755 

(45) JVK13756 

(46) JVK13757 

(47) JVK13758 

(48) JVK13732 

(49) JVK13733 

(50) JVK13734 

(51) JVK13735 

(52) JVK13569 

(53) JVK13570 

(54) JVK13571 

(55) JVK13572 

(56) JVK13573 

(57) JVK13446 

(58) JVK13449 

(59) JVK13153 

(60) JVK13157 

(61) JVK13176 

(62) JVK13197 

(63) JVK13209 

(64) JVK13253 

(65) JVK13272 

(66) JVK13273 

(67) JVK13274 

(68) JVK13275 

(69) JVK13276 

(70) JVK13388 

(71) JVK13389 

(72) JVK13390 

(73) JVK13391 

(74) JVK13394 

(75) JVK13387 

(76) JVK13392 

(77) JVK13393 

(78) JVK13231 

(79) JVK13669 

(80) JVK13670 

(81) JVK13675 

(82) JVK13252 

(83) JVK13673 

(84) JVK13396 

(85) JVK13397 

(86) JVK13400 

(87) JVK13395 

(88) JVK13398 

(89) JVK13401 

(90) JVK13402 

(91) JVK13379 

(92) JVK13380 

(93) JVK13382 

(94) JVK13383 

(95) JVK13384 

(96) JVK13386 

(97) JVK13385 

(98) JVK13723 

(99) JVK13721 

(100) JVK13634 

(101) JVK13635 

(102) JVK13638 

(103) JVK13639 

(104) JVK13640 

(105) JVK13641 

(106) JVK13583 

(107) JVK13584 

(108) JVK13585 

(109) JVK13586 

(110) JVK13587 

(111) JVK13588 

(112) JVK13590 

(113) JVK13612 

(114) JVK13615 

(115) JVK13617 

(116) JVK13618 

(117) JVK13619 

(118) JVK13692 

(119) JVK13699 

(120) JVK13207 

(121) JVK13230 

(122) JVK13259 

(123) JVK13574 

(124) JVK13576 

(125) JVK13577 

(126) JVK13578 

(127) JVK13579 

(128) JVK13582 

(129) JVK13434 

(130) JVK13428 

(131) JVK13429 

(132) JVK13430 

(133) JVK13431 

(134) JVK13432 

(135) JVK13433 

(136) JVK13435 

(137) JVK13204 

(138) JVK13216 

(139) JVK13370 

(140) JVK13371 

(141) JVK13372 

(142) JVK13373 

(143) JVK13375 

(144) JVK13376 

(145) JVK13377 

(146) JVK13378 

(147) JVK13374 

(148) JVK13504 

(149) JVK13505 

(150) JVK13506 

(151) JVK13507 

(152) JVK13508 

(153) JVK13509 

(154) JVK13510 

(155) JVK13503 

(156) JVK13702 

(157) JVK13703 

(158) JVK13700 

(159) JVK13701 

(160) JVK13707 

(161) JVK13258 

(162) JVK13459 

(163) JVK13460 

(164) JVK13461 

(165) JVK13462 

(166) JVK13463 

(167) JVK13464 

(168) JVK13465 

(169) JVK13466 

(170) JVK13257 

(171) JVK13408 

(172) JVK13410 

(173) JVK13404 

(174) JVK13405 

(175) JVK13406 

(176) JVK13407 

(177) JVK13409 

(178) JVK13353 

(179) JVK13354 

(180) JVK13355 

(181) JVK13357 

(182) JVK13356 

(183) JVK13358 

(184) JVK13359 

(185) JVK13360 

(186) JVK13710 

(187) JVK13711 

(188) JVK13715 

(189) JVK13709 

(190) JVK13713 

(191) JVK13767 

(192) JVK13768 

(193) JVK13751 

(194) JVK13753 

(195) JVK13754 

(196) JVK13725 

(197) JVK13726 

(198) JVK13730 

(199) JVK13731 

(200) JVK13683 

(201) JVK13688 

(202) JVK13684 

(203) JVK13685 

(204) JVK13687 

(205) JVK13689 

(206) JVK13690 

(207) JVK13691 

(208) JVK13661 

(209) JVK13664 

(210) JVK13667 

(211) JVK13668 

(212) JVK13663 

(213) JVK13150 

(214) JVK13649 

(215) JVK13650 

(216) JVK13652 

(217) JVK13653 

(218) JVK13654 

(219) JVK13655 

(220) JVK13605 

(221) JVK13606 

(222) JVK13607 

(223) JVK13608 

(224) JVK13609 

(225) JVK13610 

(226) JVK13611 

(227) JVK13551 

(228) JVK13552 

(229) JVK13554 

(230) JVK13557 

(231) JVK13553 

(232) JVK13555 

(233) JVK13556 

(234) JVK13196 

(235) JVK13542 

(236) JVK13544 

(237) JVK13547 

(238) JVK13549 

(239) JVK13550 

(240) JVK13523 

(241) JVK13524 

(242) JVK13525 

(243) JVK13526 

(244) JVK13527 

(245) JVK13528 

(246) JVK13171 

(247) JVK13180 

(248) JVK13188 

(249) JVK13211 

(250) JVK13559 

(251) JVK13560 

(252) JVK13563 

(253) JVK13529 

(254) JVK13530 

(255) JVK13531 

(256) JVK13532 

(257) JVK13499 

(258) JVK13500 

(259) JVK13501 

(260) JVK13502 

(261) JVK13471 

(262) JVK13472 

(263) JVK13473 

(264) JVK13474 

(265) JVK13476 

(266) JVK13477 


amozie on DSK3GDR082PROD with NOTICES2
27670 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

1Bayer, Monsanto, and BASF are referred to 

collectively as ‘‘Defendants.’’ 

(267) JVK13475 

(268) JVK13478 

(269) JVK13416 

(270) JVK13417 

(271) JVK13420 

(272) JVK13421 

(273) JVK13418 

(274) JVK13419 

(275) JVK13422 

(276) JVK13423 

(277) JVK13424 

(278) JVK13425 

(279) JVK13426 

(280) JVK13427 

(281) JVK13178 

(282) JVK13182 

(283) JVK13223 

(284) JVK13361 

(285) JVK13362 

(286) JVK13367 

(287) JVK13369 

(288) JVK13364 

(289) JVK13366 

(290) JVK13323 

(291) JVK13325 

(292) JVK13327 

(293) JVK13330 

(294) JVK13326 

(295) JVK13328 

(296) JVK13256 

(297) JVK13331 

(298) JVK13332 

(299) JVK13333 

(300) JVK13335 

(301) JVK13336 

(302) JVK13334 

(303) JVK13341 

(304) JVK13342 

(305) JVK13308 

(306) JVK13309 

(307) JVK13310 

(308) JVK13311 

(309) JVK13312 

(310) JVK13158 

(311) JVK13295 

(312) JVK13297 

(313) JVK13298 

(314) JVK13227 

(315) JVK13293 

(316) JVK13296 

(317) JVK13300 

(318) JVK13313 

(319) JVK13314 

(320) JVK13315 

(321) JVK13316 

(322) JVK13155 

(323) JVK13174 

(324) JVK13185 

(325) JVK13199 

(326) JVK13203 

(327) JVK13225 

(328) JVK13320 

(329) JVK13321 

(330) JVK13322 

(331) JVK13264 

(332) JVK13266 

(333) JVK13270 

(334) JVK13271 

(335) JVK13285 

(336) JVK13286 

(337) JVK13290 

(338) JVK13291 

(339) JVK13288 

(340) JVK13746 

(341) JVK13747 

(342) JVK13750 

(343) JVK13743 

(344) JVK13744 

(345) JVK13645 

(346) JVK13646 

(347) JVK13682 

(348) JVK13656 

(349) JVK13625 

(350) JVK13626 

(351) JVK13621 

(352) JVK13599 

(353) JVK13600 

(354) JVK13602 

(355) JVK13603 

(356) JVK13566 

(357) JVK13567 

(358) JVK13568 

(359) JVK13533 

(360) JVK13534 

(361) JVK13535 

(362) JVK13536 

(363) JVK13537 

(364) JVK13512 

(365) JVK13514 

(366) JVK13515 

(367) JVK13513 

(368) JVK13516 

(369) JVK13517 

(370) JVK13518 

(371) JVK13519 

(372) JVK13520 

(373) JVK13494 

(374) JVK13495 

(375) JVK13496 

(376) JVK13497 

(377) JVK13498 

(378) JVK13490 

(379) JVK13491 

(380) JVK13492 

(381) JVK13493 

(382) JVK13467 

(383) JVK13469 

(384) JVK13479 

(385) JVK13480 

(386) JVK13481 

(387) JVK13482 

(388) JVK13483 

(389) JVK13484 

(390) JVK13486 

(391) JVK13487 

(392) JVK13488 

(393) JVK13411 

(394) JVK13412 

(395) JVK13413 

(396) JVK13414 

(397) JVK13415 

(398) JVK13436 

(399) JVK13437 

(400) JVK13438 

(401) JVK13440 

(402) JVK13441 

(403) JVK13442 

(404) JVK13443 

(405) JVK13445 

(406) JVK13194 

(407) JVK13254 

(408) JVK13348 

(409) JVK13540 

(410) JVK13541 

(411) JVK13629 

(412) JVK13630 

(413) JVK13632 

(414) JVK13633 

(415) JVK13344 

(416) JVK13346 

(417) JVK13347 

(418) JVK13349 

(419) JVK13352 

UNITED STATES DISTRICT COURT FOR 

THE DISTRICT OF COLUMBIA 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

United States of America, Plaintiff, v. 

BAYER AG, MONSANTO COMPANY, and 

BASF SE, Defendants. 

Civil Action No.: 1:18–cv–1241 

Judge James E. Boasberg 

COMPETITIVE IMPACT STATEMENT 

Pursuant to Section 2(b) of the 

Antitrust Procedures and Penalties Act 

(‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C. 

§ 16(b), Plaintiff United States of 

America files this Competitive Impact 

Statement relating to the proposed Final 

Judgment submitted on May 29, 2018, 

for entry in this civil antitrust 

proceeding. 

I. NATURE AND PURPOSE OF THE 

PROCEEDING 

On September 14, 2016, Defendant 

Bayer AG (‘‘Bayer’’) agreed to acquire 

Defendant Monsanto Company 

(‘‘Monsanto’’) in a merger valued at 

approximately $66 billion. The United 

States filed a civil antitrust Complaint 

against Bayer and Monsanto on May 29, 

2018, seeking to enjoin the proposed 

merger. The Complaint alleges that the 

proposed merger would lessen 

competition substantially across various 

markets in the agricultural industry, 

resulting in higher prices, less 

innovation, fewer choices, and lowerquality products for American farmers 

and consumers, in violation of Section 

7 of the Clayton Act, 15 U.S.C. § 18. 

Simultaneously with the filing of the 

Complaint, the United States has filed a 

proposed Final Judgment and a 

Stipulation and Order designed to 

prevent the merger’s likely 

anticompetitive effects. As detailed 

below, the proposed Final Judgment 

requires Bayer to divest its businesses 

that compete with Monsanto, the seed 

treatment businesses that the merged 

firm would use to harm competition in 

certain seed markets, and assets 

supporting those businesses 

(collectively, the ‘‘Divestiture Assets’’). 

Bayer has agreed to divest the 

Divestiture Assets to BASF SE 

(‘‘BASF’’), a global chemical company 

with a multi-billion-dollar crop 

protection business.1 The required 

divestitures will ensure that BASF 

replaces Bayer as an independent and 

vigorous competitor in each of the 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27671 

markets in which the proposed merger 

would otherwise lessen competition. 

The terms of the Stipulation and 

Order require Defendants to take certain 

steps to ensure that, pending the 

required divestitures, all of the 

Divestiture Assets will be preserved and 

that Monsanto will continue to be 

operated independently as a separate 

business concern. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, although the Court 

would continue to retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. DESCRIPTION OF THE EVENTS 

GIVING RISE TO ALLEGED 

VIOLATION 

A. The Defendants and the Merger 

Bayer is a life-sciences company 

based in Leverkusen, Germany. The 

company employs nearly 100,000 

people worldwide and has operations in 

nearly 80 countries. Bayer has three 

main business lines: (1) 

pharmaceuticals, (2) consumer health, 

and (3) agriculture, the last of which is 

the Bayer Crop Science division. Over 

the past decade, Bayer Crop Science has 

become one of the largest global 

agricultural firms. Today, its crop 

protection business is the second largest 

in the world, and its seeds and traits 

business is also among the world’s 

largest. Bayer Crop Science generated 

almost $12 billion in annual revenues in 

2017. 

Monsanto is a leading producer of 

agricultural products based in St. Louis, 

Missouri. Over 20,000 people work for 

the company in almost 70 countries. 

Monsanto’s innovative technologies 

have established it as a global leader in 

agriculture; today, it is the leading 

global producer of seeds and traits and 

is among the world’s largest producers 

of crop protection products. In 2017, 

Monsanto had almost $15 billion in 

annual revenues. 

On September 14, 2016, Bayer agreed 

to acquire Monsanto for approximately 

$66 billion. In recognition of the 

significant competitive concerns raised 

by the proposed merger, Bayer has 

agreed to divest agricultural assets 

valued at approximately $9 billion to 

BASF. As discussed in Section III.K, 

infra, BASF has agreed to be bound by 

the terms of the proposed Final 

Judgment. 

B. The Competitive Effects of the 

Proposed Merger across Agricultural 

Markets in the United States 

The Complaint alleges that the 

proposed merger would reduce 

competition in the United States in 17 

distinct agricultural product markets. 

These markets fit into four broad 

categories: (1) genetically modified 

(‘‘GM’’) seeds and traits, (2) 

foundational herbicides, (3) seed 

treatments, and (4) vegetable seeds. In 

addition to anticompetitive effects in 

each of the product markets resulting 

from the loss of head-to-head 

competition or vertical foreclosure, the 

Complaint also alleges that the merger 

would have a significant impact on 

innovation. Without the merger, 

competition between Bayer and 

Monsanto would intensify as both 

companies pursue what the industry 

refers to as ‘‘integrated solutions’’— 

combinations of seeds, traits, and crop 

protection products, supported by 

digital farming technologies and other 

services. Without the proposed Final 

Judgment, that competition would be 

lost. 

1. GM Seeds and Traits 

Bayer and Monsanto are close 

competitors in the GM seeds and traits 

markets for three important U.S. row 

crops: cotton, canola, and soybeans. As 

described in the Complaint, the 

proposed merger would likely lead to a 

substantial lessening of competition in 

each of these markets, resulting in 

hundreds of millions of dollars in harm 

each year to American farmers and 

consumers. 

Cotton is a major crop grown across 

the southern United States. Cotton seeds 

are widely used in vegetable oil, 

packaged foods, and animal feed, and 

cotton fibers are widely used in 

clothing. In 2017, U.S. farmers planted 

about 12 million acres of cotton 

accounting for over $800 million in seed 

purchases. 

Canola is an important crop used in 

vegetable oil, packaged foods, biodiesel 

fuels, and animal feed. In the United 

States, canola is grown on 

approximately 1.7 million acres, mainly 

in North Dakota but also in several other 

states. GM canola seeds accounted for 

$83 million in domestic sales in 2016. 

Soy is the second-largest crop grown 

in the United States. Soybeans are 

widely used in vegetable oil, packaged 

foods, and animal feed. In 2017, U.S. 

farmers planted almost 90 million acres 

of soybeans accounting for $4.64 billion 

in seed purchases. 

A genetic trait is simply an attribute 

of a plant, such as being tall, short, or 

leafy. In most cases, plant traits derive 

from the plant’s natural DNA; however, 

a small number of highly sophisticated 

biotechnology firms can insert DNA 

from other organisms into the DNA of a 

plant, giving the plant a desirable trait 

associated with that non-native DNA. A 

GM seed is a seed that contains DNA, 

and hence a desirable trait, of a different 

organism. Scientists have developed 

herbicide-tolerant traits that give crops 

the ability to withstand exposure to 

herbicides that would normally damage 

or kill them, allowing a farmer to spray 

the herbicide over an entire field and 

efficiently kill weeds without harming 

the crop. Scientists also have developed 

traits that make crops resistant to certain 

insect pests, allowing farmers to prevent 

these pests from damaging their crops 

while also reducing farmers’ use of 

chemical insecticides. Today, more than 

90% of the soybeans, cotton, and canola 

grown in the United States is grown 

from GM seeds. 

a) Relevant Markets 

As alleged in the Complaint, GM 

cotton seeds, GM canola seeds, and GM 

soybeans are each relevant product 

markets under Section 7 of the Clayton 

Act. In canola and soy, nearly all GM 

seeds contain herbicide-tolerant traits, 

but no seeds contain insect-resistant 

traits. In cotton, most GM seeds contain 

both herbicide-tolerant traits and insectresistant traits (found on 98% and 88% 

of all cotton acres, respectively). The 

vast majority of farmers do not view 

conventional (i.e., non-GM) seeds as a 

substitute for GM cotton, GM canola, or 

GM soybeans because GM seeds 

eliminate much of the labor and 

expense associated with more 

traditional means of weed and pest 

management, offer higher yields, and 

reduce soil erosion by decreasing tillage 

requirements. Accordingly, a 

hypothetical monopolist of any of these 

GM seeds markets could profitably raise 

prices. 

The Complaint also alleges that 

insect-resistant traits for cotton and 

herbicide-tolerant traits for cotton, 

canola, and soybeans are relevant 

product markets under Section 7 of the 

Clayton Act. Again, the vast majority of 

farmers growing cotton, canola, and 

soybeans in the United States choose to 

purchase GM seeds and do not consider 

conventional seeds an acceptable 

alternative. Consequently, GM traits are 

necessary inputs for most seed 

companies, and a hypothetical 

monopolist of any of the trait markets 

listed above could profitably raise 

prices. 

The Complaint alleges that the 

relevant geographic markets for these 


amozie on DSK3GDR082PROD with NOTICES2
27672 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

GM seeds and traits markets are regional 

because seeds are tailored to local 

growing conditions (such as weather 

and soil type), and suppliers can charge 

different prices to customers in different 

regions. In cotton and canola, however, 

virtually all of the regions affected by 

the merger have similar market 

conditions, so the regions can 

reasonably be aggregated to a national 

level for purposes of analysis. For 

soybeans, the market structure differs 

across regions, and the relevant 

geographic market in which the merger 

will lead to harm is the southern United 

States, where Bayer has focused its 

soybean breeding program and been 

particularly successful. 

b) Competitive Effects—GM Seeds 

The market for GM cotton seeds in the 

United States is highly concentrated and 

would become significantly more so if 

Bayer were allowed to acquire 

Monsanto. Bayer and Monsanto have 

long been the two leading suppliers of 

GM cotton seeds throughout the United 

States. In addition to owning critical 

herbicide-tolerant and insect-resistant 

traits, discussed in more detail below, 

the companies each own extensive 

libraries of elite seed varieties, which 

are essential for breeding and 

commercializing competitive cotton 

seeds. If the proposed merger were 

allowed to proceed, Bayer and 

Monsanto would have a combined 59% 

share of GM cotton seeds in the United 

States. 

In the market for GM canola seeds in 

the United States, Bayer and Monsanto 

are by far the two largest competitors, 

with a combined share of approximately 

74%. Bayer and Monsanto compete 

aggressively, and Bayer’s canola 

innovations in recent years have 

allowed it to surpass Monsanto, 

previously the largest firm in this 

market. 

In the market for GM soybeans, the 

proposed merger would eliminate Bayer 

as a uniquely positioned challenger to 

Monsanto, which has dominated the 

market since traits were first 

commercialized in soybeans in the 

1990s. For years, Monsanto’s 

competitors relied on Monsanto for 

licenses to GM traits and, in most cases, 

for licenses to seed varieties as well. 

Bayer, however, invested over $250 

million to develop an independent 

source of soybean varieties and 

launched its own branded soybean 

business, Credenz, which sells varieties 

that perform well in the southern 

United States. In 2017, Monsanto had a 

39% market share in that region, with 

Bayer holding a 6% share that it 

planned to grow in the future. 

Even these figures significantly 

understate the level of dominance the 

merged company would have in each of 

these markets. Monsanto licenses seeds 

with traits to certain smaller seed 

companies (referred to in the industry as 

‘‘independent seed companies’’), 

leaving these smaller rivals with limited 

ability to exert competitive pressure on 

the merged firm. 

c) Competitive Effects—GM Traits 

In addition to effects in each GM seed 

market, the proposed merger would 

harm American farmers by eliminating 

head-to-head competition between 

Bayer and Monsanto to develop and sell 

GM traits. These trait markets are even 

more highly concentrated than the GM 

seed markets. Bayer and Monsanto 

effectively have a duopoly in cotton 

herbicide-tolerant traits, and the 

proposed merger would lead to a 

monopoly. In 2017, Bayer’s herbicidetolerant cotton traits accounted for 19% 

of the market, and Monsanto’s 

accounted for 80%. The proposed 

merger would also lead to a substantial 

increase in concentration in the market 

for canola herbicide-tolerant traits; 

virtually all canola seeds planted in the 

United States contain either a Bayer or 

a Monsanto trait. In the soybean 

herbicide-tolerant trait market, Bayer 

has chipped away at Monsanto’s 

position, and the merger threatens to 

eliminate Monsanto’s only serious 

challenger. In 2017, Bayer and 

Monsanto represented 14% and 67% of 

the market, respectively, with the 

remainder attributable to market 

participants using an off-patent version 

of Monsanto’s original Roundup Ready 

trait. Finally, the merger would also 

significantly increase concentration in 

the already highly concentrated market 

for insect-resistant traits for cotton; 

Bayer and Monsanto accounted for 10% 

and 75% of that market, respectively, in 

2017. 

Without the merger, competition 

between the two companies across the 

GM trait markets would likely increase 

over time. Bayer and Monsanto each 

have new traits in their research 

pipelines that would confer tolerance to 

additional herbicides, and farmers 

would benefit as Bayer and Monsanto 

continued to develop these new 

innovations. 

d) Entry and Expansion in GM 

Seeds and Traits Markets 

Entry is unlikely to counteract the 

anticompetitive effects of the proposed 

merger in any of the GM seed or GM 

trait markets. To compete in a GM seed 

market, a company must have highquality varieties for the current growing 

season and access to a deep and diverse 

collection of high-quality seeds for 

breeding future varieties. The varieties 

must also be suitable for the particular 

geographic region. Elite seed varieties 

suitable for regions in the United States 

are increasingly difficult to procure and 

are controlled largely by a handful of 

vertically integrated companies, 

including Monsanto, Bayer, 

DowDuPont, and Syngenta. In addition, 

the time, expense, and expertise 

required to commercialize a GM trait is 

prohibitive for all but these four 

companies. Although certain smaller 

companies may participate in some 

limited aspect of initially discovering a 

trait, they do not have the ability to 

commercialize these traits. 

2. Foundational Herbicides 

In addition to competing to sell 

herbicide-tolerant seeds, Bayer and 

Monsanto also compete to sell the 

herbicides that are paired with them. 

Monsanto’s Roundup Ready seeds are 

engineered to tolerate the herbicide 

glyphosate, which Monsanto sells under 

its Roundup brands, while Bayer’s 

LibertyLink seeds are engineered to 

tolerate glufosinate ammonium, the 

herbicide that Bayer sells under the 

Liberty brand. These ‘‘foundational’’ 

herbicides, glyphosate and glufosinate, 

have unique characteristics that make 

them important competitive alternatives 

for farmers. 

a) Relevant Market 

The Complaint alleges that 

foundational herbicides constitute a 

relevant product market under Section 7 

of the Clayton Act. Foundational 

herbicides are herbicides used on row 

crops that have two defining 

characteristics. First, they are ‘‘nonselective,’’ meaning that they kill all 

types of weeds, thus providing farmers 

with the broadest possible protection for 

their crops. In contrast, other types of 

herbicides are ‘‘selective,’’ meaning that 

they kill only certain types of weeds. 

Selective herbicides are often used to 

supplement non-selective herbicides but 

are not generally used in lieu of them. 

Second, foundational herbicides can be 

paired with seeds that are engineered to 

tolerate the herbicide. Other nonselective herbicides are not a substitute 

for farmers because no seeds are 

engineered to withstand them, so 

spraying those herbicides over a crop 

would damage it. For these reasons, 

farmers have no good substitutes for 

foundational herbicides, and a 

hypothetical monopolist would find it 

profitable to increase the price of some 

foundational herbicides by a small but 

significant amount. Today, glyphosate 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27673 

and glufosinate are the only two 

foundational herbicides, but, as 

discussed further below, new 

foundational herbicides are in 

development. 

b) Competitive Effects 

The proposed merger would combine 

the world’s leading producers of 

foundational herbicides and would lead 

to a presumptively anticompetitive 

increase in market concentration. Since 

the launch of herbicide-tolerant crops in 

the 1990s, Monsanto’s Roundup has 

dominated the market. As some weeds 

have developed resistance to 

glyphosate, however, farmers are 

increasingly turning to Liberty. While 

glufosinate and glyphosate are now off 

patent, competition from generic 

suppliers has not prevented Bayer and 

Monsanto from maintaining branded 

price premiums. In 2017, Bayer held a 

7% share and Monsanto held a 53% 

share, with generic manufacturers 

holding the remaining share. 

The proposed merger is also likely to 

eliminate competition between Bayer 

and Monsanto to develop nextgeneration weed management systems. 

The Complaint explains that Bayer is 

developing new foundational herbicides 

and related herbicide-tolerant traits that 

would rival Monsanto’s Roundup 

Ready-based systems. Likewise, 

Monsanto is actively pursuing 

innovations in foundational herbicides, 

including improvements to its Roundup 

formulations. Absent the merger, Bayer 

and Monsanto would each have 

incentives to pursue these competing 

pipeline products because any new 

innovations developed would help win 

market share from the other. In contrast, 

the merged firm will have different 

incentives due to heightened concerns 

that new innovations would simply 

cannibalize sales. 

c) Entry and Expansion 

As alleged in the Complaint, the 

anticompetitive effects of the proposed 

merger would not be remedied by entry 

or expansion in the foundational 

herbicide market. The manufacture of 

foundational herbicides is complex and 

hazardous, requiring regulatory and 

safety approvals, which are expensive 

and time-consuming to secure. 

Reputation, brand loyalty, and 

economies of scale also present barriers 

to entry and expansion. 

3. Seed Treatments 

Seed treatments are coatings applied 

to seeds that can protect the seed and 

the young plant from various insects or 

diseases. Seed treatments are a critical 

tool for farmers, and one or more seed 

treatments are applied to the majority of 

GM seeds sold in the United States 

today. Multiple seed treatments can be 

applied to a seed to protect it from 

various threats; seed treatments 

designed for one purpose (e.g., killing 

insects) are rarely an effective substitute 

for seed treatments designed for a 

different purpose (e.g., controlling 

fungal plant diseases). 

The Complaint alleges that the 

proposed merger would likely result in 

three forms of competitive harm related 

to seed treatments: (1) the loss of headto-head competition between Bayer’s 

and Monsanto’s seed treatments for 

nematodes, (2) vertical foreclosure 

effects resulting from the combination of 

Monsanto’s strong position in corn 

seeds with Bayer’s substantial position 

in insecticidal seed treatments for corn 

rootworm, and (3) vertical foreclosure 

effects resulting from the combination of 

Monsanto’s strong position in soybeans 

with Bayer’s substantial position in 

fungicidal seed treatments for soybean 

sudden death syndrome. 

a) Nematicidal Seed Treatments for 

Corn, Cotton, and Soybeans 

Nematicidal seed treatments protect 

crops from parasitic roundworms 

known as nematodes. Farmers have no 

cost-effective alternatives to nematicidal 

seed treatments. Seed treatments are 

approved for use by the government on 

a crop-by-crop basis, so a soybean 

farmer, for example, chooses between a 

different set of competitive alternatives 

than a cotton farmer. Accordingly, the 

Complaint alleges that nematicidal seed 

treatments for corn, cotton, and soybean 

seeds are each relevant markets under 

Section 7 of the Clayton Act and that a 

hypothetical monopolist in each market 

could profitably raise prices. 

All three nematicidal seed treatment 

markets are highly concentrated. For 

years, Bayer has had a monopoly in the 

market for nematicidal seed treatments 

for corn; in 2017, its market share was 

over 95%. Bayer also dominates the 

market for nematicidal seed treatments 

for soybeans, with a share over 85%. 

And in the market for nematicidal seed 

treatments for cotton, Bayer and 

Syngenta currently split the market 

roughly evenly. 

Although Monsanto does not 

currently sell any nematicidal seed 

treatments, it is about to launch its first 

product, NemaStrike. Without the 

merger, both Bayer and Monsanto 

expected NemaStrike to capture 

significant share from Bayer in all three 

seed treatment markets. The Complaint 

alleges that the proposed merger would 

harm competition in the nematicidal 

seed treatment market by removing the 

most significant threat to Bayer’s 

dominance. 

b) Vertical Foreclosure—Seed 

Treatments for Corn Rootworm and 

GM Corn Seeds 

Corn is the largest crop grown in the 

United States, accounting for over $8 

billion in seed sales annually. Over 90% 

of U.S. corn seeds are genetically 

modified, and, like the other GM seeds 

discussed above, GM corn seeds are a 

relevant product market under Section 7 

of the Clayton Act. Although Bayer does 

not sell corn seeds, Monsanto effectively 

controls 50% of the market and faces 

only one major rival. 

Corn rootworm is a destructive pest 

that can devastate a farmer’s fields. To 

deal with this threat, some farmers rely 

on Bayer’s Poncho insecticidal seed 

treatment. For many farmers, there are 

no cost-effective alternatives to 

insecticidal seed treatments. Because 

Poncho is the only seed treatment that 

offers meaningful protection against 

corn rootworm, corn seed companies 

purchase Bayer’s insecticidal seed 

treatment to apply to their seeds so they 

can offer a competitive product. 

The merger would likely harm 

competition in the market for GM corn 

seeds by combining Monsanto’s strong 

position in GM corn seeds with Bayer’s 

dominant position in insecticidal seed 

treatments for corn rootworm. The 

merged firm would have the incentive 

and ability to make its corn seed rivals 

less competitive by forcing them to pay 

more for Poncho or cutting off their 

supply of the product. This would limit 

farmers’ choices, reduce competition, 

and ultimately allow the merged firm to 

increase the price for GM corn seeds. 

c) Vertical Foreclosure—Fungicidal 

Seed Treatments for Sudden Death 

Syndrome and GM Soybeans 

The merger is likely to have similar 

effects in soy. Sudden death syndrome 

(‘‘SDS’’) is a fungal disease afflicting 

millions of soybean acres across the 

United States. In 2015, Bayer began 

selling ILeVO, the only effective 

fungicidal seed treatment combatting 

SDS, and ILeVO’s sales have doubled 

annually since its introduction. The 

merger is likely to reduce competition 

by combining Monsanto’s leading GM 

soybean business with Bayer’s dominant 

position in fungicidal seed treatments 

for SDS. The merged firm would have 

the incentive and ability to make its 

soybean rivals less competitive by 

charging them more for ILeVO or cutting 

off their supply, diminishing 

competition in the market for GM 

soybeans and reducing choices available 

to farmers. 


amozie on DSK3GDR082PROD with NOTICES2
27674 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

d) Entry and Expansion 

As alleged in the Complaint, the 

anticompetitive effects of the proposed 

merger would not be remedied by entry 

or expansion in the relevant seed 

treatment markets. Developing a new, 

effective seed treatment is a slow, 

costly, and difficult process, and new 

seed treatments require extensive 

regulatory approvals before farmers can 

use them. Generic versions of the Bayer 

seed treatments discussed above will 

not be available for at least the next 

several years due to various intellectual 

property protections. Neither expansion 

by existing seed treatments nor new 

seed treatments expected to launch in 

the next several years would prevent the 

anticompetitive effects of the proposed 

merger. 

4. Vegetables 

Finally, the Complaint alleges that the 

proposed merger is likely to 

substantially lessen competition in the 

markets for five types of vegetable seeds: 

carrots, cucumbers, onions, tomatoes, 

and watermelons. Overall, Monsanto is 

the largest global vegetable seed 

company, while Bayer is the fourth 

largest, and the two companies are 

strong competitors in all five of these 

markets. 

a) Relevant Markets 

The Complaint alleges that the seeds 

markets for carrots, cucumbers, onions, 

tomatoes, and watermelons each 

constitute a relevant market under 

Section 7 of the Clayton Act. Each 

vegetable species has unique 

characteristics, and other crops are not 

viable substitutes. Many vegetable seed 

customers rely on access to particular 

types of vegetables to operate their 

businesses. For example, in the United 

States, companies that sell pre-cut baby 

carrots and other carrot products, such 

as juice, purchase carrot seeds to grow 

their carrots. These companies are 

unlikely to begin growing a different 

crop in large quantities in response to a 

price increase. Nor are other farmers 

likely to switch crops in response to a 

price increase because they have 

invested in crop-specific facilities and 

equipment, possess specialized cropspecific knowledge, or live in an area 

best suited to growing that particular 

type of vegetable. A hypothetical 

monopolist of any of the five vegetable 

seed species would find it profitable to 

increase prices by at least a small but 

significant amount because the bulk of 

farmers would not switch away from 

their preferred vegetable crops in 

response. As vegetable seeds are bred to 

thrive in particular regions of the 

country, geographic markets are 

regional, but, similar to row crops, 

virtually all regions affected by the 

merger have similar market structure, so 

in this case it is appropriate to aggregate 

these regions to the national level for 

convenience. 

b) Competitive Effects 

Bayer and Monsanto are among the 

largest domestic producers of all the 

vegetable seeds at issue. The Complaint 

alleges that the proposed merger would 

significantly increase concentration in 

each market, and each market would be 

highly concentrated with few, if any, 

other significant competitors. In carrots 

and cucumbers, the merged firm would 

enjoy near-complete dominance, with 

market shares of 94% and 90%, 

respectively. The combined company 

would also have high market shares in 

onion seeds (71%) and tomato seeds 

(55%). In watermelon seeds, Bayer 

holds a 37% market share while 

Monsanto has a 6% share, with only one 

other significant competitor. Monsanto’s 

market share in watermelon seeds 

understates its competitive significance; 

its recent introduction of competitive 

seedless watermelon varieties, which 

are in high demand and already offered 

by Monsanto’s competitors, will likely 

significantly improve its position going 

forward. In each of these markets, the 

proposed merger would eliminate the 

significant competition between Bayer 

and Monsanto, not only on price, but 

also on quality and innovation, to the 

overall detriment of American farmers 

and consumers. 

c) Entry and Expansion 

Firms that sell vegetable seeds use 

modern breeding techniques that 

require access to advanced technologies 

and elite seed varieties, making entry 

challenging. In addition, entering a new 

vegetable seed market can be expensive 

and time consuming because successful 

vegetable seed companies must invest 

continuously in developing new, 

improved varieties, some of which can 

take over a decade to breed and 

commercialize. Certain vegetable 

markets present additional unique 

challenges; for instance, onions are 

among the hardest vegetable seeds to 

produce, in part, because they are 

biennials, generating seed only every 

other growing season. 

III. EXPLANATION OF THE 

PROPOSED FINAL JUDGMENT 

The proposed Final Judgment 

remedies the anticompetitive effects of 

the merger by requiring Bayer to divest 

its businesses in each relevant market, 

along with various supporting assets, to 

BASF, a global chemical company with 

an existing agricultural crop protection 

business. To ensure that BASF would 

replace Bayer as an effective competitor 

and innovator in each of the 17 markets 

in which the Complaint alleges that the 

proposed merger would harm 

competition, the United States carefully 

scrutinized the merging parties’ and 

BASF’s businesses and operations to 

identify a comprehensive package of 

businesses and supporting assets for 

divestiture. Collectively, these transfers 

encompass the suite of businesses and 

assets that constitute the divestiture 

package. 

In evaluating the remedy, the United 

States recognized that fully preventing 

the competitive effects of a merger in 

some cases requires the inclusion of 

assets or projects that are beyond the 

affected relevant markets. As the U.S. 

Department of Justice Antitrust Division 

Policy Guide to Merger Remedies 

explains, the United States will exercise 

its enforcement discretion to accept a 

divestiture only when it is persuaded 

that the divested ‘‘assets will create a 

viable entity that will effectively 

preserve competition.’’ See Antitrust 

Division Policy Guide to Merger 

Remedies at 9 (June 2011) (available at 

https://www.justice.gov/atr/public/ 

guidelines/272350.pdf). Because Bayer 

does not operate its businesses that 

compete with Monsanto as separate, 

standalone entities, to ensure effective 

relief the United States is also requiring 

the divestiture of assets that are 

complementary to the competitive 

products or that use shared resources. 

See id. at 11 (‘‘[I]ntegrated firms can 

provide scale and scope economies that 

a purchaser may not be able to achieve 

by obtaining only those assets related to 

the relevant product(s).’’). Finally, 

effective relief also requires divestiture 

of those ‘‘pipeline’’ research projects 

that Bayer is pursuing to ensure the 

future competitive significance of the 

divested businesses. 

Guided by these principles, the 

United States identified a divestiture 

package that remedies the various 

dimensions of harm threatened by the 

proposed merger. First, the proposed 

Final Judgment requires Bayer to divest 

those businesses that vigorously 

compete head-to-head with Monsanto 

today. Second, to address certain 

vertical concerns, the proposed Final 

Judgment requires Bayer to divest seed 

treatment businesses that would give 

the combined company the incentive 

and ability to harm competition by 

raising the prices it charges rival seed 

companies. Third, because Bayer and 

Monsanto compete to develop new 

products and services for farmers, the 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27675 

proposed Final Judgment requires the 

divestiture of associated intellectual 

property and research capabilities, 

including ‘‘pipeline’’ projects, to enable 

BASF to replace Bayer as a leading 

innovator in the relevant markets. 

Fourth, the proposed Final Judgment 

requires the divestiture of additional 

assets that will give BASF the scale and 

scope to compete effectively today and 

in the future. 

Because many of the divested assets 

will be separated from Bayer’s existing 

business units and incorporated into 

BASF, the proposed Final Judgment 

includes provisions aimed at ensuring 

that the assets are handed off in a 

seamless and efficient manner. To that 

end, Bayer is required to transfer 

existing third-party agreements and 

customer information to BASF, as well 

as to enter transition services 

agreements that ensure that BASF can 

continue to serve customers 

immediately upon completion of the 

divestitures. The transition services and 

interim supply agreements are timelimited to ensure that BASF will 

become fully independent of Bayer as 

soon as practicable. The proposed Final 

Judgment also requires Bayer to warrant 

that the assets being divested are 

sufficient for BASF to maintain the 

viability and competitiveness of the 

divested businesses following BASF’s 

acquisition of the assets. In addition, it 

gives BASF a one-year window after 

closing to identify any additional assets 

that are reasonably necessary to ensure 

the continued competitiveness of the 

divested businesses. The United States 

will have the sole discretion to 

determine if Bayer must divest these 

additional assets. Finally, the proposed 

Final Judgment gives BASF the ability 

to hire all of the personnel from Bayer 

needed to support these businesses. 

BASF is the only buyer the United 

States has evaluated and deemed 

suitable to resolve the range of 

competitive concerns raised by the 

merger. BASF already has extensive 

agricultural experience, but it lacks a 

seeds and traits business. Combining the 

businesses and assets being divested 

with BASF’s existing portfolio will 

allow it to become an integrated player 

and an effective industry competitor to 

the merged company and the other 

integrated players. BASF will have full 

control over these divested businesses, 

including the ability to assign licenses 

and other rights. 

In sum, the proposed remedies will 

ensure that BASF can step into Bayer’s 

shoes, thereby preserving the 

competition that the merger would 

otherwise destroy. The monitoring 

trustee to be appointed will have close 

oversight over the divestitures to ensure 

they proceed efficiently (see, infra, 

Section III.H). And, as additional 

protection, the proposed Final Judgment 

includes robust mechanisms that will 

allow the United States and the Court to 

monitor the effectiveness of the relief 

and to enforce compliance. 

A. GM Seeds and Traits 

Section IV of the proposed Final 

Judgment requires Bayer to divest all 

assets used by Bayer’s GM seeds and 

traits businesses in the United States, 

including Bayer’s cotton, canola, and 

soybean seeds and traits businesses, as 

well as almost all of the assets 

associated with Bayer’s other global GM 

seeds and traits businesses. Because 

Bayer and Monsanto are currently 

competing to introduce the next 

blockbuster trait or plant variety, BASF 

can replace Bayer as a competitor only 

if BASF obtains all the assets required 

to continue Bayer’s legacy of 

innovation. This includes all assets 

needed to offer farmers the new 

products that Bayer was poised to 

commercialize in the coming years. 

Notably, BASF will receive all of 

Bayer’s trait research centers (including 

facilities in Morrisville, North Carolina; 

Ghent, Belgium; and Astene, Belgium). 

The proposed Final Judgment also 

requires Bayer to transfer all intangible 

assets used by these businesses, such as 

patents, know-how, and licenses or 

permits issued by government agencies. 

There are limited exceptions to 

Bayer’s obligation to divest all of the 

assets used by its global GM seeds and 

traits businesses. Certain assets used 

exclusively to support a handful of 

Bayer’s small seed businesses or 

research programs outside of the United 

States are excluded from the Divestiture 

Assets. These exceptions are related to 

(1) rice seed, which Bayer sells only in 

Asia; (2) Bayer’s millet, mustard, and 

cotton seed businesses in India; (3) R&D 

programs for Brazilian sugarcane and 

European sugarbeets; and (4) Bayer’s 

cotton seed business in South Africa. 

None of these is closely related to the 

divested U.S. seeds and traits 

businesses. Bayer will also retain a 

number of general office facilities that 

house employees of businesses not 

affected by the divestitures, as well as 

one seed cleaning and bagging facility in 

Germany that is part of Bayer’s Crop 

Science headquarters. 

The proposed Final Judgment also 

requires Bayer to provide BASF with 

certain complementary assets, which 

will give scale and scope benefits to the 

divested GM seeds and traits businesses, 

and supply agreements, which will 

allow BASF to maintain the 

competitiveness of those businesses as 

they are transitioned from Bayer. 

First, the proposed Final Judgment 

requires divestiture of Bayer’s R&D 

programs associated with wheat. Bayer 

does not currently sell wheat in the 

United States, but it has been pursuing 

wheat-related research to expand the 

scope of its global seeds and traits 

portfolio and sustain the level of R&D 

investment these businesses require. 

Because seed and trait innovations can 

often be applied across multiple crops, 

a broader seed and trait portfolio will 

provide the promise of higher returns on 

investment and increase the incentive to 

innovate. The proposed Final Judgment 

preserves the scope efficiencies that 

Bayer enjoys today by keeping these 

businesses together. Moreover, 

separating the wheat business from 

Bayer’s other seeds and traits businesses 

would have required disentangling and 

dividing integrated operations and 

assets. For instance, Bayer’s research 

facility in Ghent, Belgium is used to 

support R&D for wheat as well as other 

crops. By requiring the divestiture of 

Bayer’s wheat R&D programs and 

related facilities, the proposed Final 

Judgment ensures that BASF has all of 

the tools needed to run the divested 

businesses and can leverage these 

common resources as effectively as 

Bayer does today. 

Second, under Paragraph IV.G of the 

proposed Final Judgment, Bayer will 

supply BASF with the seed treatments 

Bayer currently applies to its row crop 

seeds for a period of up to two years, 

with extensions subject to approval by 

the United States. This will allow BASF 

to offer farmers the same combinations 

of seeds and seed treatments that Bayer 

offers today without interruption. 

During the term of these supply 

agreements, BASF will transition to 

using (1) its own seed treatments, (2) the 

seed treatments it is acquiring from 

Bayer pursuant to the proposed Final 

Judgment (discussed in more detail 

below), (3) seed treatments from 

alternate suppliers, or (4) a combination 

thereof. 

Third, Paragraph IV.N of the proposed 

Final Judgment requires Bayer to divest 

certain groups of Monsanto soybeans 

used for research and breeding (referred 

to in the industry as ‘‘germplasm’’). As 

discussed in the Complaint, Bayer has 

aggressively challenged Monsanto in the 

soybean market, and planned to 

continue to expand. However, Bayer 

currently lacks soybeans suitable for the 

Midwest, an important soybean growing 

region in the United States. By 

providing BASF with a richer pool of 

genetic material, the proposed Final 

Judgment creates a strong incentive for 


amozie on DSK3GDR082PROD with NOTICES2
27676 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

BASF to continue Bayer’s efforts to 

disrupt the market and provide new 

benefits to farmers and consumers. 

B. Foundational Herbicides 

Section IV of the proposed Final 

Judgment also requires Bayer to divest 

assets relating to its foundational 

herbicides business. The proposed Final 

Judgment requires Bayer to divest all 

intellectual property related to 

glufosinate, the active ingredient in 

Bayer’s Liberty herbicide, including 

intellectual property relating to 

mixtures of glufosinate with other 

chemicals. Bayer is also required to 

divest its R&D projects, which will 

incentivize BASF to continue to develop 

new innovations for farmers. 

In addition, Bayer will be required to 

divest all facilities used to manufacture 

glufosinate. Bayer will also divest 

certain facilities used to ‘‘formulate’’ 

(i.e., mix with water and other inactive 

ingredients) and package glufosinate to 

create Liberty for sale to customers. 

Specifically, the proposed Final 

Judgment requires Bayer to divest its 

large North American facilities in 

Regina, Canada and Muskegon, 

Michigan, which formulate and package 

a significant percentage of the Liberty 

sold in the United States. Because 

Bayer’s global formulation facilities are 

also used for unrelated products not 

being divested and supply very little of 

the Liberty used in the United States, 

the proposed Final Judgment permits 

Bayer to retain some formulation 

facilities, most of which are located 

outside the United States. However, 

Paragraph IV.G of the proposed Final 

Judgment requires Bayer to enter into an 

agreement to formulate Liberty for 

BASF, at cost, for up to three years to 

ensure that BASF can meet farmer 

demand for the product during the 

transition. The proposed Final Judgment 

limits the duration of these formulation 

services to ensure that BASF will 

become fully independent of Bayer as 

soon as practicable. 

In certain countries outside of the 

United States, the proposed Final 

Judgment also provides that Bayer will 

distribute glufosinate products on 

BASF’s behalf for a limited period. This 

accommodation affects only a small 

portion of total glufosinate sales and 

ensures business continuity in those 

international jurisdictions in which 

BASF requires time to develop the 

business infrastructure or to secure the 

local regulatory authorizations 

necessary to sell the product. To 

encourage BASF to become fully 

independent from Bayer as soon as 

practicable, the proposed Final 

Judgment limits the duration of these 

services, and BASF can terminate these 

distribution contracts on a country-bycountry basis as soon as it is able to 

distribute these products on its own. 

C. Pipeline Herbicides 

The proposed Final Judgment requires 

the divestiture of certain crop protection 

products that are complementary to 

Bayer’s trait business. Today, Bayer 

engages in parallel research across its 

various seeds and crop protection 

businesses, developing new herbicides 

and new traits that confer tolerance to 

those herbicides. Bayer is motivated to 

pursue trait research in part because 

successful commercialization of a trait 

will generate additional returns through 

the sale of the associated herbicide, and 

vice versa. Therefore, Section IV of the 

proposed Final Judgment also requires 

Bayer to divest its R&D projects relating 

to ketoenole and N,O-chelator (‘‘NOC’’) 

herbicides. These herbicides, if 

successful, would be sold in 

conjunction with the ketoenole- and 

NOC-tolerant traits Bayer is developing, 

which also are being divested. By 

requiring divestiture of both the trait 

projects and the associated herbicide 

projects, the proposed Final Judgment 

preserves BASF’s incentive to pursue 

these innovations. 

The proposed Final Judgment also 

provides BASF full access to Bayer’s 

Balance Bean herbicide. Bayer recently 

introduced BalanceGT soybeans, which 

contain a GM trait conveying tolerance 

to both glyphosate and isoxaflutole, a 

selective herbicide contained in Bayer’s 

Balance Bean product. BalanceGT 

soybeans are poised to compete with 

Monsanto’s herbicide-tolerant soybeans, 

but Balance Bean is not yet approved for 

spraying over the top of crops. The 

proposed Final Judgment requires Bayer 

to transfer intellectual property 

associated with its Balance Bean 

herbicide business to BASF; Paragraph 

IV.G gives BASF the option of entering 

a temporary isoxaflutole supply 

agreement with Bayer; and Paragraph 

IV.L commits Bayer to using best efforts 

to obtain the remaining regulatory 

approvals for use of isoxaflutole over 

the top of crops. These requirements 

ensure that BASF will have the same 

ability to offer farmers the combination 

of both the BalanceGT trait and the 

Balance Bean herbicide as Bayer would 

have if the merger had not occurred. 

D. Seed Treatments 

Section IV of the proposed Final 

Judgment also requires Bayer to divest 

assets relating to its seed treatment 

businesses. Collectively, these 

divestitures remedy the likely 

anticompetitive effects of the merger 

that would arise both from the 

horizontal combination of Bayer’s and 

Monsanto’s nematicidal seed 

treatments, as well as from the vertical 

integration of Bayer’s dominant seed 

treatments and Monsanto’s dominant 

seed businesses. 

First, the proposed Final Judgment 

requires Bayer to divest all intellectual 

property associated with its Poncho, 

VOTiVO, and TWO.0 seed treatment 

brands. The Complaint alleges that the 

merged firm could use its control over 

Poncho, which is uniquely effective 

against corn rootworm, to disadvantage 

its corn seed rivals and diminish 

competition in the GM corn seed 

market. VOTiVO is an important 

nematicidal seed treatment for corn, 

soy, and cotton, and in combination 

with other divestitures described below, 

its divestiture to BASF remedies the 

merger’s likely harm in the market for 

nematicidal seed treatments. Because 

VOTiVO and TWO.0 are each typically 

sold in combination with Poncho, 

divestiture of the intellectual property 

associated with all three products will 

allow BASF to offer American farmers 

the same packages of Poncho-branded 

seed treatments as Bayer does today. 

The proposed Final Judgment also 

requires Bayer to divest intellectual 

property associated with its ILeVO and 

COPeO seed treatments, which are both 

based on the same active ingredient, 

fluopyram. ILeVO and COPeO protect 

soybeans and cotton seeds, respectively, 

from nematodes; ILeVO is also the first 

seed treatment to combat soybean SDS 

effectively. The ILeVO and COPeO 

divestitures, in combination with the 

divestiture of VOTiVO, will address the 

merger’s likely harm in the markets for 

nematicidal seed treatments. The 

divestiture of ILeVO will also prevent 

Bayer from using its control over ILeVO 

to disadvantage Monsanto’s soybean 

seed rivals and diminish competition in 

the market for GM soybean seeds, as 

alleged in the Complaint. 

Bayer also will transfer all intellectual 

property used by these divested seed 

treatment businesses, including all 

patents, licenses, know-how, trade 

names, and data or information 

collected on the products. The only 

exception is patents related to 

fluopyram, which Bayer primarily uses 

in other non-seed treatment products, 

such as fungicides applied to foliage. 

Therefore, the proposed Final Judgment 

requires Bayer to provide BASF with a 

perpetual, royalty-free license for all 

patents related to the use of fluopyram 

in seed treatments. The proposed Final 

Judgment also requires Bayer to divest 

all R&D projects associated with these 

seed treatment products, as well as a 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27677 

product in development that would 

expand and improve on these existing 

seed treatment businesses. 

Paragraph IV.G of the proposed Final 

Judgment requires Bayer, at BASF’s 

option, to toll manufacture the active 

ingredients used in the divested seed 

treatments for an initial period of up to 

two years, and to provide formulation 

and distribution services for the seed 

treatments for up to two years. With 

prior approval of the United States, 

certain of these arrangements may be 

extended for up to an additional four 

years. These agreements ensure that 

BASF can immediately replace Bayer as 

an effective competitor with the 

divested seed treatments. BASF has its 

own existing seed treatment businesses 

and will use the time under the 

agreements to prepare its own facilities 

to manufacture and distribute the seed 

treatments, or to arrange for other 

suppliers to do so. 

E. Digital Agriculture 

Section IV of the proposed Final 

Judgment also requires Bayer to divest 

its digital agriculture business to BASF. 

Currently, the leading global 

agricultural businesses project that the 

industry will move toward ‘‘integrated 

solutions,’’ which are combinations of 

traditional agricultural input products 

that are optimized for use with one 

another or combined with other 

services. These companies have 

described digital agriculture as the 

‘‘glue’’ that binds the products together 

and the core of any future integrated 

solution. This trend has led them to 

develop digital agriculture products to 

protect their position in traditional 

agricultural markets, including GM seed 

markets. To provide BASF with the 

digital agriculture capabilities needed to 

replace Bayer as a competitor going 

forward, the proposed Final Judgment 

requires Bayer to divest all assets related 

to its digital agriculture portfolio and 

pipeline of products. 

F. Vegetables 

Finally, Section IV of the proposed 

Final Judgment requires Bayer to divest 

a comprehensive set of tangible and 

intangible assets representing Bayer’s 

entire global vegetable seed business. 

Bayer’s vegetable seed business operates 

under the Nunhems brand name, a 

business acquired by Bayer in 2002. 

The assets to be divested include all 

of Bayer’s vegetable seed breeding 

capabilities, which encompass 24 

different crops (including tomatoes, 

onions, carrots, cucumbers, and 

watermelons, among others) and 

approximately 2,400 varieties. 

Additional assets to be divested include 

Bayer’s worldwide headquarters in 

Nunhem, Netherlands, and all global 

R&D facilities, sales offices, and 

operations centers. This will provide 

BASF with the necessary assets and 

infrastructure to continue vigorously 

competing, innovating, and developing 

new vegetable varieties. All customer 

information, including lists, accounts, 

and credit records will also be 

transferred to ensure that existing 

customers receive uninterrupted 

service. 

Bayer also will divest intangible 

assets currently used by the vegetable 

seed business. Critically, all intellectual 

property—including patents, licenses, 

and copyrights—will be transferred to 

BASF. In addition, BASF will receive 

research data relating to historic and 

current R&D efforts. These divestitures 

will allow BASF to develop new and 

innovative vegetable seeds for current 

and future customers. 

G. Employees 

As part of the divestitures, over four 

thousand Bayer employees who 

currently support the various divestiture 

businesses will become BASF 

employees. These employees will 

immediately bring critical business 

experience to BASF. As an added 

safeguard, Paragraph IV.E of the 

proposed Final Judgment provides 

BASF the right to hire additional 

personnel to ensure that BASF can 

become as effective a competitor and 

innovator as Bayer is today in each of 

the relevant markets. Bayer is required 

to make information available to BASF 

about the employees supporting the 

businesses and assets to be divested, 

subject to applicable privacy and 

confidentiality protections. BASF then 

will have the right to make offers of 

employment to these individuals. To 

ensure that BASF will have the ability 

to hire experienced personnel, the 

proposed Final Judgment prohibits 

Bayer from interfering with BASF’s 

efforts to hire any Bayer or Monsanto 

employees with relevant expertise. 

H. Monitoring Trustee 

Section VIII of the proposed Final 

Judgment provides the United States the 

option to seek the appointment of a 

Monitoring Trustee subject to the 

Court’s approval. The United States 

intends to recommend a trustee for the 

Court’s approval. The person selected 

will have the necessary expertise and 

experience to ensure that competition 

continues unabated across the various 

markets. Given the scope of the required 

divestitures, it is critical that the trustee 

be in a position to review and resolve 

any issues that may arise beginning 

immediately after the divestitures are 

completed. 

The Monitoring Trustee will ensure: 

(1) that Defendants expeditiously 

comply with all of their obligations and 

perform all of their responsibilities 

under the proposed Final Judgment and 

the Stipulation and Order, (2) that the 

Divestiture Assets remain economically 

viable, competitive, and ongoing 

businesses prior to being fully divested 

to BASF, and (3) that competition in the 

relevant businesses is maintained 

throughout the United States. The 

Monitoring Trustee will have the power 

and authority to monitor the 

Defendants’ compliance with the terms 

of the proposed Final Judgment. The 

Monitoring Trustee also will have the 

authority to investigate complaints 

relating to Bayer and Monsanto’s 

compliance with the proposed Final 

Judgment including, but not limited to, 

any complaints relating to the 

agreements Bayer and Monsanto have or 

will enter into with BASF. The 

Monitoring Trustee will have access to 

all personnel, books, records, and 

information necessary to monitor 

Defendants’ compliance with the 

proposed Final Judgment, and will serve 

at the cost and expense of Bayer. 

The Monitoring Trustee will file 

reports every 30 days with the United 

States and, as appropriate, the Court 

until the completion of the required 

divestitures. The reports will set forth 

the efforts by Bayer and Monsanto to 

comply with their obligations under the 

proposed Final Judgment and the 

Stipulation and Order. After completion 

of the divestitures, the Monitoring 

Trustee will provide reports as 

requested by the United States. 

I. Firewall 

Section IX of the proposed Final 

Judgment requires Bayer and BASF to 

implement firewall procedures to 

prevent each company’s confidential 

business information from being used 

by the other for any purpose that could 

harm competition. Within twenty days 

of the Court approving the Stipulation 

and Order, Bayer and Monsanto must 

submit their planned procedures for 

maintaining firewalls. Additionally, 

Bayer and BASF must explain the 

requirements of the firewalls to certain 

officers and other business personnel 

responsible for the commercial 

relationships between the two 

companies about the required treatment 

of confidential business information. 

Bayer’s and BASF’s adherence to these 

procedures is subject to a semi-annual 

audit by the Monitoring Trustee. These 

measures are necessary to ensure that 

the supply and transition services 


amozie on DSK3GDR082PROD with NOTICES2
27678 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

agreements between Bayer and BASF do 

not facilitate coordination or other 

anticompetitive behavior during the 

interim period before BASF becomes 

fully independent of Bayer. 

J. Prohibition on Recombinations 

To ensure that BASF and Bayer 

remain independent competitors, 

Section XI of the proposed Final 

Judgment prohibits Bayer and BASF 

from recombining any of the Divestiture 

Assets with competing Bayer 

businesses. First, Bayer is prohibited 

from reacquiring any of the Divestiture 

Assets during the term of the Final 

Judgment. Second, BASF may not 

acquire from Bayer any assets or 

businesses that compete with the 

Divestiture Assets. These provisions 

ensure that Bayer and BASF cannot 

undermine the purpose of the proposed 

Final Judgment by later entering into a 

new transaction that would reduce the 

competition that the divestitures have 

preserved. Finally, Section XI prohibits 

Bayer and BASF from entering into any 

new collaboration, such as a research 

and development joint venture, or from 

expanding the scope of any existing 

collaboration, involving the Divestiture 

Assets. This provision prevents Bayer 

and BASF from circumventing the 

purpose of the proposed Final Judgment 

by, for example, entering into a 

partnership to jointly develop new 

traits, which could reduce or eliminate 

BASF’s incentive to innovate 

independently in some or all of the 

relevant markets. The provision permits 

BASF and Bayer to engage in certain 

ordinary-course-of-business commercial 

relationships, such as crop protection 

product supply agreements. They also 

may engage in other collaborations if 

approved by the United States in its sole 

discretion. 

K. Enforcement Provisions 

The proposed Final Judgment 

contains provisions designed to promote 

compliance and make the enforcement 

of consent decrees as effective as 

possible. As set forth in the Stipulation 

and Order, BASF has agreed to be joined 

to this action for purposes of the 

divestiture. Including BASF is 

appropriate because, after extensive 

analysis, the United States has 

determined that BASF is a necessary 

party to effectuate complete relief; the 

divestiture package was crafted 

specifically taking into consideration 

BASF’s existing assets and capabilities, 

and divesting the package to another 

purchaser would not preserve 

competition. Thus, as discussed above, 

the proposed Final Judgment imposes 

certain obligations on BASF to ensure 

that the divestitures take place 

expeditiously and that BASF and Bayer 

reduce entanglements as quickly as 

possible after BASF acquires the 

Divestiture Assets. 

Paragraph XIV.A provides that the 

United States retains and reserves all 

rights to enforce the provisions of the 

proposed Final Judgment, including 

rights to seek an order of contempt from 

the Court. Under the terms of this 

Paragraph, all Defendants, including 

BASF, have agreed that in any civil 

contempt action, any motion to show 

cause, or any other similar action 

brought by the United States regarding 

an alleged violation of the Final 

Judgment, the United States may 

establish the violation and the 

appropriateness of any remedy by a 

preponderance of the evidence, and that 

the Defendants have waived any 

argument that a different standard of 

proof should apply. This provision 

aligns the standard for compliance 

obligations with the standard of proof 

that applies to the underlying offense 

that the compliance commitments 

address. 

Paragraph XIV.B provides additional 

clarification regarding the interpretation 

of the provisions of the proposed Final 

Judgment. The proposed Final Judgment 

was drafted to restore all competition 

that would otherwise be harmed by the 

merger. The Defendants agree that they 

will abide by the proposed Final 

Judgment, and that they may be held in 

contempt of this Court for failing to 

comply with any provision of the 

proposed Final Judgment that is stated 

specifically and in reasonable detail, as 

interpreted in light of this 

procompetitive purpose. 

Paragraph XIV.C of the proposed 

Final Judgment further provides that 

should the Court find in an enforcement 

proceeding that the Defendants have 

violated the Final Judgment, the United 

States may apply to the Court for a onetime extension of the Final Judgment, 

together with such other relief as may be 

appropriate. In addition, in order to 

compensate American taxpayers for any 

costs associated with the investigation 

and enforcement of violations of the 

proposed Final Judgment, Paragraph 

XIV.C provides that in any successful 

effort by the United States to enforce 

this Final Judgment against a Defendant, 

whether litigated or resolved prior to 

litigation, that Defendant agrees to 

reimburse the United States for 

attorneys’ fees, experts’ fees, or costs 

incurred in connection with any 

enforcement effort, including the 

investigation of the potential violation. 

Finally, Section XV of the proposed 

Final Judgment provides that the Final 

Judgment will expire ten years from the 

date of its entry, except that after six (6) 

years from the date of its entry, the Final 

Judgment may be terminated upon 

notice by the United States to the Court 

and Defendants that the divestitures 

have been completed and that the 

continuation of the Final Judgment is no 

longer necessary or in the public 

interest. 

L. Stipulation and Order 

Bayer, Monsanto, and BASF have 

entered into the Stipulation and Order, 

which was filed with the Court at the 

same time as the Complaint, to ensure 

that, pending the divestitures, the 

Divestiture Assets are maintained such 

that the divestitures will be effective. 

The Stipulation and Order also requires 

Bayer to hold Monsanto as a separate 

entity until the divestitures are 

complete, so that the merger can be 

unwound if Bayer fails to complete the 

required divestitures to BASF. This step 

is necessary in this case because the 

divestiture package was crafted 

specifically taking into consideration 

BASF’s existing assets and capabilities, 

and if BASF is unable to acquire the 

assets, simply divesting the package to 

another purchaser would not preserve 

competition. The Stipulation and Order 

also binds all three defendants to the 

terms of the proposed Final Judgment 

pending the Judgment’s entry by the 

Court. 

IV. REMEDIES AVAILABLE TO 

POTENTIAL PRIVATE LITIGANTS 

Section 4 of the Clayton Act, 15 

U.S.C. § 15, provides that any person 

who has been injured as a result of 

conduct prohibited by the antitrust laws 

may bring suit in federal court to 

recover three times the damages the 

person has suffered, as well as costs and 

reasonable attorneys’ fees. Entry of the 

proposed Final Judgment will neither 

impair nor assist the bringing of any 

private antitrust damages action. Under 

the provisions of Section 5(a) of the 

Clayton Act, 15 U.S.C. § 16(a), the 

proposed Final Judgment has no prima 

facie effect in any subsequent lawsuit 

that may be brought against Defendants. 

V. PROCEDURES AVAILABLE FOR 

MODIFICATION OF THE PROPOSED 

FINAL JUDGMENT 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 


amozie on DSK3GDR082PROD with NOTICES2
Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 27679 

2The 2004 amendments substituted ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for courts to 

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

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

(2006); see also SBC Commc’ns, 489 F. Supp. 2d at 

11 (concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

3Cf. BNS, 858 F.2d at 464 (holding that the 

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

limited to approving or disapproving the consent 

decree’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’). See generally 

Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

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

The APPA provides a period of at 

least 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 60 days of the date 

of publication of this Competitive 

Impact Statement in the Federal 

Register, or the last date of publication 

in a newspaper of the summary of this 

Competitive Impact Statement, 

whichever is later. All comments 

received during this period will be 

considered by the United States, which 

remains free to withdraw its consent to 

the proposed Final Judgment at any 

time prior to the Court’s entry of 

judgment. The comments and the 

response of the United States will be 

filed with the Court. In addition, 

comments will be posted on the 

Antitrust Division’s internet website 

and, in certain circumstances, published 

in the Federal Register. 

Written comments should be 

submitted by mail to: 

Kathleen S. O’Neill 

Chief, Transportation, Energy & 

Agriculture Section 

Antitrust Division 

United States Department of Justice 

450 5th Street, NW, Suite 8000 

Washington, DC 20530 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

necessary or appropriate modification, 

interpretation, or enforcement of the 

Final Judgment. 

VI. ALTERNATIVES TO THE 

PROPOSED FINAL JUDGMENT 

The United States considered, as an 

alternative to the proposed Final 

Judgment, seeking preliminary and 

permanent injunctions against the 

merger and proceeding to a full trial on 

the merits. The United States is 

satisfied, however, that the relief in the 

proposed Final Judgment will preserve 

competition in each relevant market in 

the United States. Thus, the proposed 

Final Judgment will protect competition 

as effectively as, and will achieve all or 

substantially all of the relief the United 

States would have obtained through, 

litigation, but avoids the time, expense, 

and uncertainty of a full trial on the 

merits. 

VII. STANDARD OF REVIEW UNDER 

THE APPA FOR THE PROPOSED 

FINAL JUDGMENT 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a 60-day 

comment period, after which the court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

public interest.’’ 15 U.S.C. § 16(e)(1). In 

making such a determination, the court, 

in accordance with the statute as 

amended in 2004, is required to 

consider: 

(A) the competitive impact of such judgment, 

including termination of alleged violations, 

provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy 

of such judgment that the court deems 

necessary to a determination of whether 

the consent judgment is in the public 

interest; and 

(B) the impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from 

the violations set forth in the complaint 

including consideration of the public 

benefit, if any, to be derived from a 

determination of the issues at trial. 

15 U.S.C. § 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

court’s inquiry is necessarily a limited 

one as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); see generally United 

States v. SBC Commc’ns, Inc., 489 F. 

Supp. 2d 1, 15–17 (D.D.C. 2007) 

(assessing public interest standard 

under the Tunney Act); United States v. 

U.S. Airways Group, Inc., 38 F. Supp. 3d 

69, 75 (D.D.C. 2014) (explaining that the 

‘‘court’s inquiry is limited’’ in Tunney 

Act settlements); United States v. InBev 

N.V./S.A., No. 08–1965 (JR), 2009–2 

Trade Cas. (CCH) ¶ 76,736, 2009 U.S. 

Dist. LEXIS 84787, at *3, (D.D.C. Aug. 

11, 2009) (noting that the court’s review 

of a consent judgment is limited and 

only inquires ‘‘into whether the 

government’s determination that the 

proposed remedies will cure the 

antitrust violations alleged in the 

complaint was reasonable, and whether 

the mechanisms to enforce the final 

judgment are clear and manageable’’).2

As the United States Court of Appeals 

for the District of Columbia Circuit has 

held, under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

government’s complaint, whether the 

decree is sufficiently clear, whether 

enforcement mechanisms are sufficient, 

and whether the decree may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. 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. 1981)); see also Microsoft, 56 F.3d 

at 1460–62; United States v. Alcoa, Inc., 

152 F. Supp. 2d 37, 40 (D.D.C. 2001); 

InBev, 2009 U.S. Dist. LEXIS 84787, at 

*3. Courts have held that: 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in the 

first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in consenting 

to the decree. The court is required to 

determine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).3 In 

determining whether a proposed 

settlement is in the public interest, a 

court ‘‘must accord deference to the 

government’s predictions about the 

efficacy of its remedies, and may not 

require that the remedies perfectly 

match the alleged violations.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17; see 

also U.S. Airways, 38 F. Supp. 3d at 75 

(noting that a court should not reject the 

proposed remedies because it believes 

others are preferable); Microsoft, 56 F.3d 

at 1461 (noting the need for courts to be 

‘‘deferential to the government’s 

predictions as to the effect of the 

proposed remedies’’); United States v. 

Archer-Daniels-Midland Co., 272 F. 

Supp. 2d 1, 6 (D.D.C. 2003) (noting that 

the court should grant due respect to the 

United States’ prediction as to the effect 


amozie on DSK3GDR082PROD with NOTICES2
27680 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices 

4See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); United States v. Mid-Am. 

Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade 

Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977) 

(‘‘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.’’); S. Rep. No. 

93–298, at 6 (1973) (‘‘Where the public interest can 

be meaningfully evaluated simply on the basis of 

briefs and oral arguments, that is the approach that 

should be utilized.’’). 

of proposed remedies, its perception of 

the market structure, and its views of 

the nature of the case). 

Courts have greater flexibility in 

approving proposed consent decrees 

than in crafting their own decrees 

following a finding of liability in a 

litigated matter. ‘‘[A] proposed decree 

must be approved even if it falls short 

of the remedy the court would impose 

on its own, as long as it falls within the 

range of acceptability or is ‘within the 

reaches of public interest.’’’ United 

States v. Am. Tel. & Tel. Co., 552 F. 

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

omitted) (quoting United States v. 

Gillette Co., 406 F. Supp. 713, 716 (D. 

Mass. 1975)), aff’d sub nom. Maryland 

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

see also U.S. Airways, 38 F. Supp. 3d at 

76 (noting that room must be made for 

the government to grant concessions in 

the negotiation process for settlements 

(citing Microsoft, 56 F.3d at 1461)); 

United States v. Alcan Aluminum Ltd., 

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

(approving the consent decree even 

though the court would have imposed a 

greater remedy). To meet this standard, 

the United States ‘‘need only provide a 

factual basis for concluding that the 

settlements are reasonably adequate 

remedies for the alleged harms.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17. 

Moreover, the court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, and does not authorize the 

court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459; see also U.S. Airways, 38 

F. Supp. 3d at 75 (noting that the court 

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he 

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. As a 

court in this district confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ 489 

F. Supp. 2d at 15. 

In its 2004 amendments, Congress 

made clear its intent to preserve the 

practical benefits of utilizing consent 

decrees in antitrust enforcement, adding 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. § 16(e)(2); see also 

U.S. Airways, 38 F. Supp. 3d at 76 

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). The language 

wrote into the statute what Congress 

intended when it enacted the Tunney 

Act in 1974, as Senator Tunney 

explained: ‘‘[t]he court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’ 

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

of Sen. Tunney). Rather, the procedure 

for the public interest determination is 

left to the discretion of the court, with 

the recognition that the court’s ‘‘scope 

of review remains sharply proscribed by 

precedent and the nature of Tunney Act 

proceedings.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 11.4 A court can make its 

public interest determination based on 

the competitive impact statement and 

response to public comments alone. 

U.S. Airways, 38 F. Supp. 3d at 76. 

VIII. DETERMINATIVE DOCUMENTS 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: May 29, 2018 

Respectfully Submitted, 

Scott I. Fitzgerald 

Robert A. Lepore 

Katherine A. Celeste 

Jeremy Evans (D.C. Bar #478097) 

Attorneys for the United States 

U.S. Department of Justice 

Antitrust Division 

450 5th Street, NW, Suite 8000 

Washington, DC 20530 

Tel.: (202) 353–3863 

Fax: (202) 616–2441 

E-mail: scott.fitzgerald@usdoj.gov 

[FR Doc. 2018–12202 Filed 6–12–18; 8:45 am] 

BILLING CODE 4410–11–P 


amozie on DSK3GDR082PROD with NOTICES2