Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 1 of 114 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL TRADE COMMISSION, 

 Plaintiff, 

v. 

RAG-STIFTUNG, 

EVONIK INDUSTRIES AG, 

EVONIK CORPORATION, 

EVONIK INTERNATIONAL HOLDING 

B.V., 

ONE EQUITY PARTNERS SECONDARY 

FUND, L.P., 

ONE EQUITY PARTNERS V, L.P., 

LEXINGTON CAPITAL PARTNERS VII 

(AIV I), L.P., 

PEROXYCHEM HOLDING COMPANY 

LLC, 

PEROXYCHEM HOLDINGS, L.P., 

PEROXYCHEM HOLDINGS LLC, 

PEROXYCHEM LLC,

 AND 

PEROXYCHEM COOPERATIEF U.A.,

 Defendants. 

Civil Action No. 19-cv-2337-TJK 

REDACTED VERSION OF 

DOCUMENT FILED UNDER SEAL 

PLAINTIFF’S PROPOSED FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 2 of 114 

PROPOSED FINDINGS OF FACT – TABLE OF CONTENTS 

I. BACKGROUND.............................................................................................................1 

A. Evonik and PeroxyChem ................................................................................................. 1 

B. The Acquisition................................................................................................................ 2 

II. THE SALE OF H2O2 EXCLUDING ELECTRONICS-GRADE H2O2, IS A 

RELEVANT PRODUCT MARKET............................................................................2 

A. Customers of H2O2 Would Not Substitute to Another Chemical or Product ................. 2 

B. H2O2 Formulated for a Given End Use Is a Relevant Product Market According to the 

Hypothetical Monopolist Test.......................................................................................... 3 

C. Aggregating H2O2 Formulated for Different End Uses into the Same Market Is 

Appropriate ...................................................................................................................... 5 

i. Pre-Electronics Grade H2O2 Should Be Included in the Relevant Product 

Market ................................................................................................................ 9 

ii. Other Specialty Grades (Excluding Electronics Grade) Should Be Included in 

the Relevant Product Market............................................................................ 13 

D. The Sale of Electronics Grade H2O2 Should Not Be Included in the Same Market as 

Other Grades of H2O2................................................................................................... 17 

III. THE SOUTHERN AND CENTRAL UNITED STATES AND THE PACIFIC 

NORTHWEST ARE RELEVANT GEOGRAPHIC MARKETS............................19 

A. Regional Geographic Markets Are Appropriate.............................................................19 

B. The Sale of H2O2 to Customers in the Southern and Central United States Is a Relevant 

Geographic Market ........................................................................................................ 22 

C. The Sale of H2O2 to Customers in the Pacific Northwest Is a Relevant Geographic 

Market............................................................................................................................ 25 

IV. MARKET PARTICIPANTS.......................................................................................26 

A. H2O2 Suppliers.............................................................................................................. 26 

i. Arkema ............................................................................................................. 26 

ii. Solvay............................................................................................................... 27 

iii.Nouryon.............................................................................................................27 

i 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 3 of 114 

B. Evonik, PeroxyChem, Solvay, Arkema, and Nouryon Compete in the Southern and 

Central United States ..................................................................................................... 28 

C. Only Evonik, PeroxyChem, and Solvay Compete in the Pacific Northwest................. 28 

. THE ACQUISITION IS PRESUMPTIVELY UNLAWFUL...................................29 

A. The Acquisition is Presumptively Unlawful in the Southern and Central United States 

........................................................................................................................................ 30 

B. The Acquisition is Presumptively Unlawful in the Pacific Northwest .......................... 31 

I. THE ACQUISITION INCREASES THE RISK OF COORDINATION................32 

A. The Markets for H2O2 Are Vulnerable to Coordination............................................... 32 

i. The Quantities of H2O2 that Customers Purchase Are Not Very Sensitive to 

Changes in Price............................................................................................... 32 

ii. H2O2 Products Are Largely Undifferentiated ................................................. 33 

iii.The H2O2 Market is Highly Transparent and Suppliers Closely Monitor Their 

Competitor’s Behavior ..................................................................................... 34 

iv.Suppliers Recognize Their Strategic Interdependence..................................... 38 

v. The Markets Are Concentrated With Small Numbers of Competitors ............ 42 

vi.There is a Past History of Collusion and Conditions in the Market Have Not 

Changed Significantly Since the Period of Collusion...................................... 42 

B. The Acquisition Would Increase the Risk of Coordination........................................... 45 

i. The Acquisition Would Reduce the Number of Competitors and Eliminate the 

Competitive Pressure From PeroxyChem ........................................................ 45 

ii. The Acquisition Would Create a Market Leader ............................................. 45 

II. THE MERGER WOULD SUBSTANTIALLY LESSEN HEAD-TO-HEAD 

COMPETITION...........................................................................................................48 

A. The Acquisition Would Substantially Lessen Competition in the Southern and Central 

United States .................................................................................................................. 48 

i. Evonik and PeroxyChem Compete Across End Use Applications for H2O2 in 

the Southern and Central United States............................................................ 48 

ii. Evonik and PeroxyChem are Close Competitors in the Southern and Central 

United States..................................................................................................... 51 

V

V

V

ii 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 4 of 114 

iii.Evonik and PeroxyChem are Frequently the Two Lowest Bidders, and 

Sometimes the Only Bidders, for Particular Customers................................... 51 

iv.Customers Have Benefited From Competition Between Evonik and 

PeroxyChem in the Form of Lower Prices....................................................... 52 

v. Other H2O2 suppliers cannot constrain a post-merger Evonik........................ 54 

B. The Merger Would Substantially Lessen Competition in the Pacific Northwest.......... 55 

i. Evonik and PeroxyChem are each other’s closest competitors for many 

customers in the Pacific Northwest .................................................................. 55 

ii. Customers have benefited from competition between Evonik and PeroxyChem 

.......................................................................................................................... 57 

iii.Other H2O2 producers are inferior options...................................................... 58 

C. Economic Analysis Confirms Likely Unilateral in Both Markets in Both the Southern 

and Central United States and the Pacific Northwest .................................................... 60 

i. Dr. Rothman’s Analysis Demonstrates that Elimination of Head-to-Head 

Competition will Lead to Price Increases......................................................... 60 

ii. Dr. Rothman’s Second-Score Procurement Model Demonstrates that PostAcquisition Prices Will Increase ...................................................................... 61 

iii.Dr. Hill’s Relative Distance Model is Ad-Hoc and Unreliable, and Cannot 

Measure the Effect of the Acquisition on H2O2 Pricing ................................. 62 

iv.Dr. Hill’s Bidding Analysis in Unreliable and Cannot Measure the Closeness 

of Competition Between Evonik and PeroxyChem ......................................... 63 

VIII. UI’S PURCHASE OF PRINCE GEOGRE WILL NOT SUFFICIENTLY 

REMEDY THE LOSS OF COMPETITION IN THE PACIFIC 

NORTHWEST..............................................................................................................64 

A. UI Lacks Relevant Experience in the Production and Sale of H2O2 ............................ 65 

B. UI Agreed to Purchase Prince George Without Sufficient Due Diligence.................... 66 

C. Serious and Substantial Questions Remain as to Prince George’s Viability................. 67 

D. UI Has No Concrete Business Plans for Prince George ................................................ 69 

E. UI Has Ongoing Commercial Relationships With Evonik and PeroxyChem ............... 70 

F. UI Is Purchasing Prince George for Well Below Fair Value......................................... 71 

iii 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 5 of 114 

G. Other Bidders for the Prince George Business Declined Due to Risk........................... 71 

IX. DEFENDANTS FAILED TO REBUT THE STRONG PRESUMPTION OF 

ILLEGALITY...............................................................................................................72 

A. Entry and Expansion Are Unlikely to be Timely, Likely and Sufficient to Mitigate the 

Anticompetitive Effect of the Acquisition..................................................................... 72 

B. Efficiency Claims Are Insufficient to Offset the Competitive Harm From the 

Acquisition..................................................................................................................... 76 

C. Defendants Failed to Show that Customers have the Power to Discipline a PostAcquisition Price Increase ............................................................................................. 78 

iv 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 6 of 114 

PROPOSED CONCLUSIONS OF LAW – TABLE OF CONTENTS 

I. THE COURT HAS JURISDICTION OVER THIS ACTION.................................79 

II. THE STANDARD FOR A PRELIMINARY INJUNCTION IS MET....................79 

III. THE PLAINTIFF HAS SHOWN A LIKELIHOOD OF SUCCESS ON THE 

MERITS.........................................................................................................................80 

A. The Proposed Acquisition is Presumptively Unlawful.................................................. 80 

i. The Relevant Product Market Is the Sale of Non-Electronics H2O2............... 82 

ii. Defendants’ Current Product Mixes Do Not Disprove the Relevant Market... 85 

iii.The Relevant Geographic Markets are the Southern and Central United States 

and the Pacific Northwest................................................................................. 86 

iv.The Acquisition is Presumptively Illegal Because it Would Lead to Undue 

Concentration in the Relevant Markets ............................................................ 89 

v. Evidence of Competitive Effects Corroborates the Presumption of Illegality. 91 

B. Defendants Failed to Rebut the Presumption of Illegality............................................. 95 

i. The Proposed Divestiture Fails to Address Competitive Concerns ................. 95 

ii. There Is No Likelihood of Entry or Expansion in the Market ......................... 97 

iii.Defendants’ Claimed Efficiencies Are Not Cognizable................................... 97 

iv.Large Buyers Do Not Rebut the Presumption of Harm ................................... 99 

IV. THE EQUITIES FAVOR A PRELIMINARY INJUNCTION................................99 

v 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 7 of 114 

TABLE OF AUTHORITIES 

Cases 

Brown Shoe Co. v. United States, 370 U.S. 294 (1962) ............................................. 81, 82, 85, 87 

FTC v. Advocate Health Care Network, 841 F.3d 460 (7th Cir. 2016)........................................ 87 

FTC v. Advocate Health Care, 2017 WL 1022015 (N.D. Ill. March 16, 2017)........................... 88 

FTC v. Arch Coal, 329 F. Supp. 2d 109 (D.D.C. 2004) ............................................................... 92 

FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 46 (D.D.C. 1998).........................86, 87, 88, 90 

*FTC v. CCC Holdings Inc., 605 F. Supp. 2d 26 (D.D.C. 2009) .......................................... passim 

FTC v. Dean Foods Co., 384 U.S. 597 (1966) ........................................................................... 100 

*FTC v. Elders Grain, Inc., 868 F.2d 901 (7th Cir. 1989) .................................................... passim 

*FTC v. H.J. Heinz Co., 246 F.3d 708 (D.C. Cir. 2001) ....................................................... passim 

FTC v. Illinois Cereal Mills, Inc., 691 F. Supp. 1131 (N.D. Ill. 1988) ...................................... 100 

FTC v. Indiana Fed’n of Dentists, 476 U.S. 447 (1986) .............................................................. 81 

FTC v. OSF Healthcare Sys., 822 F. Supp. 2d 1069 (N.D. Ill. 2012) .......................................... 92 

FTC v. PPG Indus., 798 F.2d 1500 (D.C. Cir. 1986) ................................................................... 99 

FTC v. ProMedica Health Sys., 3:11-cv-47, 2011 WL 1219281 (N.D. Ohio Mar. 29, 2011) ..... 99 

FTC v. Staples, Inc., 190 F. Supp. 3d 100 (D.D.C. 2016) (“Staples II”).......................... 83, 84, 94 

FTC v. Swedish Match, 131 F. Supp. 2d 151 (D.D.C. 2000).................................................. 89, 90 

*FTC v. Sysco Corp., 113 F. Supp. 3d 1 (D.D.C. 2015)........................................................ passim 

*FTC v. Tronox Ltd., 332 F. Supp. 3d 187 (D.D.C. 2018).................................................... passim 

*FTC v. Whole Foods Mkt., Inc., 548 F.3d 1028 (D.C. Cir. 2008) ....................................... passim 

*FTC v. Wilh. Wilhelmsen ASA, 341 F. Supp. 3d 27 (D.D.C. 2018)..................................... passim 

In re Tronox Ltd., Dkt. No. 9377, 2018 WL 6630200 (F.T.C. Dec. 14, 2018) ............................ 91 

Rebel Oil Co. v. Alt. Richfield Co., 51 F.3d 1421 (9th Cir. 1995).............................. 83, 84, 85, 86 

vi 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 8 of 114 

*United States v. Aetna Inc., 240 F. Supp. 3d 1 (D.D.C. 2017) ............................................ passim 

United States v. Anthem, Inc., 855 F.3d 345 (D.C. Cir. 2017) ............................................... 81, 90 

United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir. 1990)................................ 81, 82, 95 

United States v. H&R Block, Inc., 833 F. Supp. 2d 36 (D.D.C. 2011) ................................... 83, 90 

United States v. Marine Bancorp., 418 U.S. 602 (1974)........................................................ 81, 82 

United States v. Phila. Nat’l Bank, 374 U.S. 321 (1963) ................................................. 82, 89, 99 

Virtual Maintenance, Inc. v. Prime Computer, Inc., 11 F.3d 660 (6th Cir. 1993) ....................... 83 

Statutes 

15 U.S.C. § 12............................................................................................................................... 79 

15 U.S.C. § 18......................................................................................................................... 79, 81 

15 U.S.C. § 44............................................................................................................................... 79 

15 U.S.C. § 45......................................................................................................................... 79, 81 

15 U.S.C. § 53............................................................................................................................... 79 

28 U.S.C. § 1391........................................................................................................................... 79 

Other Authorities 

*U.S. Dep't of Justice and Federal Trade Commission Horizontal Merger Guidelines (2010) 

............................................................................................................................................ passim 

vii 
GLOSSARY OF ABBREVIATED TERMS, DEFINED TERMS, AND WITNESSES 

1. Exhibits and Transcripts 

Abbreviation Meaning 

Deel. Declaration 

Dep. Tr. Deposition Transcript 

DX Defendants' Exhibit 

Hrg. Tr. Preliminary Injunction Hearing Transcript 

IH Tr. Investigational Hearing Transcript 

JX Joint Exhibit 

PX Plaintiff's Exhibit 

Rpt. Repo1t 

2. Documents and Filings 

Document Full Reference 

Compl. Complaint for T emporruy Restraining Order and Preliminaiy 

Injunction Pursuant to Section 13(b) of the Federal Trade 

Commission Act (ECF No. 1) 

Defs.' Br. Defendants' Memorandum in Opposition to Plaintiff's Motion for 

Preliminary Injunction (ECF No. 56) 

Guidelines U.S. Deprutment of Justice and Federal Trade Commission 

Horizontal Merger Guidelines (August 19, 2010) 

3. Names and Terms 

Sh01tened Form Full Form 

Acquisition The proposed acquisition of PeroxyChem by Evonik 

Al-Pac Albe1ta-Pacific Forest Industries, Inc. 

Arkema Arkema Inc. 

Bergstrom Bergstrom Nutrition 

Canfor Canfor Pulp Ltd. 

CHS CHS, Inc. 

DOJ United States Depaitment of Justice Antitmst Division 

Downhole Downhole Chemical Solutions 

Vlll 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 10 of 114 

EC European Commission 

FTC Federal Trade Commission 

Georgia-Pacific Georgia-Pacific LLC 

GPI Graphic Packaging International, Inc. 

GUPPI Gross Upward Pricing Pressure Index 

H2O2 Hydrogen peroxide 

Harcros Harcros Chemicals Inc. 

HHI Herfindahl-Hirschman Index 

HMT Hypothetical Monopolist Test 

IHS IHS Markit Ltd. 

IP International Paper Company 

MGC MGC Pure Chemicals America, Inc. 

Nouryon Nouryon Pulp and Performance Chemicals LLC 

Paper Excellence Paper Excellence Group 

Procter & Gamble Procter & Gamble Company 

RFP Request for Proposal 

Resolute Resolute Forest Products 

RYAM Rayonier Advanced Materials 

Solugen Solugen, Inc. 

Solvay Solvay USA Inc. 

SSNIP Small but Significant Non-Transitory Increase in Price 

STERIS STERIS Corporation 

UI United Initiators GmbH & Co., KG 

UNIVAR UNIVAR Solutions 

USP USP Technologies 

Valtris Valtris Specialty Chemicals 

Verso Verso Corporation 

WestRock WestRock Company 

ix 
4. Hearing Witnesses (in order of appearance) 

Name Affiliation 

Michael Maeder, Manager of Raw Materials Verso Cmporation 

Clarke Anderson, Purchasing and Invento1y Team Lead Canf or Pulp Ltd. 

Sadia Dumas, Sales Account Manager, Southeast Region PeroxyChem 

Michael Engram, Manager of Supply Chain and Quality USP Technologies 

Linda Myrick, General Manager, Americas Hydrogen 

Peroxide 

Arkema Inc. 

Joel Suter, North America Sales Leader Solvay USA Inc. 

Paul Radlinski, General Manager, Bleaching Chemicals, 

N01th America, Europe, and Asia 

Nomyon Pulp and 

Perfonnance Chemicals 

LLC 

Marieke Corson, Marketing Manager, No1th America, 

Active Oxygens Business Line 

Evonik 

Dov Rothman, Ph.D. Plaintiff's Expe1t 

David Niessner, Director, Strategic Sourcing- Mill Raw 

Materials 

Graphic Packaging 

International, Inc. 

Claus Rettig, Chain.nan, Resource Efficiency Evonik 

Stephen Costanzo, VP & General Manager, Americas, 

Active Oxygens Business Line 

Evonik 

Ingo Hamann, VP of Production & Engineering, 

Americ.as, Active Oxygens Business Line 

Evonik 

Bmce Lerner, President & CEO PeroxyChem 

Stephanie Montag, Global Business Director PeroxyChem 

Walt Kramer, VP, No1th America Operations PeroxyChem 

Steve Gripp, Director of Materials Management Harems Chemicals Inc. 

Jonathan Cummins, VP, USA Manufacturing United Initiators GmbH & 

Co., KG 

Noelle Shirley, Co1porate Buyer, Raw Materials International Paper 

Company 

Chris Ewolski, Director, Strategic Sourcing STERIS Corporation 

Joel Hockenbmy (by video), Vice President, Operations Jasper Products 

Nicholas Hill, Ph.D. Defendants' Expert 

X 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 11 of 114 
5. Deponents and Declarants (in alphabetical order) 

Name, Title Affiliation 

Thomas Ball, EVP Commercial Sales & 

Marketing 

PeroxyChem 

Ryan Bowen, Sales Manager US & Canada PeroxyChem 

Patricia Charns, Corporate Purchasing Manager 

for Commodity and Pulping Chemicals 

WestRock Company 

Cliff Cowan, Chemicals and Ingredients 

Purchases Associate 

Procter & Gamble Company 

Wayne Cutrer, Chairman, Board of Directors Downhole Chemical Solutions 

Hamish Doughty, Vice President of Supply 

Chain 

Paper Excellence Group 

Tim Gardner, VP, Operations Bergstrom Nutrition 

Gaurab Chakrabarti, CEO Solugen, Inc. 

Mark Gilbe11son, Purchasing Specialist Albe1ta-Pacific Forest Industries, 

Inc. 

Amanda Goodchild, Processing and Food 

Ingredients Purchasing Manager 

CHS, Inc. 

Scott Hancock, VP and Chief Financial Officer MGC Pure Chemicals America, Inc. 

Patrick Hurd, Chemical Sourcing Director Georgia-Pacific LLC 

Steven Johnston, Senior Director of Strategic 

Sourcing 

Rayonier Advanced Materials 

Robert Katzer, Director of Strategic Marketing 

and Business Development 

Evonik 

Robe11 Kulp, North America Sales Director, 

Active Oxygens Business Line 

Evonik 

Roy Kyte, Eastern Canada Sales Manager, 

Active Oxygens Business Line 

Evonik 

Don Newman, Senior Product Manager UNIV AR Solutions 

Martin Senechal, Vice President of Procurement Resolute Forest Products 

Ajay Vashisht, Western Canada Sales Manager, 

Active Oxygens Business Line 

Evonik 

Jim Vick, Director, Procurement Valtris Specialty Chemicals 

Dave Willis, Sales Account Manager, No1i hwest 

Region 

PeroxyChem 

Xl 

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PLAINTIFF’S PROPOSED FINDINGS OF FACT 

I. BACKGROUND 

A. Evonik and PeroxyChem 

1. Defendant RAG-Stiftung owns Defendant Evonik Industries AG, which in turn owns 

Defendant Evonik International Holding B.V., and Defendant Evonik Corporation (collectively, 

“Evonik”). Compl. ¶ 17. In 2006, RAG-Stiftung acquired Degussa GmbH (“Degussa”) and 

renamed it Evonik. Rettig (Evonik) Hrg. Tr. 1040:23-1041:16. Evonik produces and sells 

hydrogen peroxide (“H2O2”) through its Active Oxygen business line, operating 13 production 

plants around the world. JX0132 (Evonik) at 070; PX9005 (Evonik) at 001. Evonik reported 

worldwide revenues of €13.3 billion in 2018. Rettig (Evonik) Hrg. Tr. 1040:13-15. In 2017, 

Evonik reported in H2O2 sales globally and in H2O2 sales in North 

America. PX1287 (Evonik) at 010. Evonik operates three H2O2 plants in North America, located 

in Mobile, Alabama; Gibbons, Alberta; and Maitland, Ontario. PX1287 (Evonik) at 011. 

2. Defendant Lexington Capital Partners VIII (AIV), L.P. indirectly holds a majority of the 

limited partnership interest in Defendant One Equity Partners Secondary Fund, L.P., which holds 

all of the limited partnership interests of Defendant One Equity Partners V, L.P. One Equity 

Partners owns Defendant PeroxyChem Holding Company LLC, which in turn owns Defendant 

PeroxyChem Holdings LLC, Defendant PeroxyChem Holdings, L.P., Defendant PeroxyChem 

LLC and Defendant PeroxyChem Cooperatief (collectively, “PeroxyChem”). Compl. ¶ 18. In 

2014, One Equity Partners acquired FMC Global Peroxygens (“FMC”) and renamed it 

PeroxyChem. JX0077 (PeroxyChem) at 039; PX2335 (PeroxyChem) at 001. In the twelve-month 

period ending on March 31, 2018, PeroxyChem reported in revenue, 

of which it derived from the sale of H2O2, and of which it derived from the sale of 

H2O2 in North America. PX1141 (PeroxyChem) at 007, 011, 044. In North America, 

1 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 14 of 114 

PeroxyChem produces H2O2 at two plants, located in Bayport, Texas and Prince George, British 

Columbia. JX0077 (PeroxyChem) at 016. PeroxyChem also operates a purification plant in 

Saratoga Springs, New York, which purifies H2O2 produced at PeroxyChem’s Bayport facility 

to create electronics grade H2O2. JX0077 (PeroxyChem) at 016. 

B. The Acquisition 

3. Pursuant to an Agreement and Plan of Merger dated November 7, 2018, Evonik proposes 

to acquire 100 percent of the voting securities in PeroxyChem for approximately $625 million in 

cash (the “Acquisition”). JX0078 (Evonik) at 011-13. 

II. THE SALE OF H2O2 EXCLUDING ELECTRONICS-GRADE H2O2 IS A 

RELEVANT PRODUCT MARKET 

4. The relevant product market is the sale of H2O2, excluding electronics-grade H2O2. 

JX0075 (Rothman Rpt.) ¶¶ 48, 58-81. H2O2 is a commodity chemical used in a range of 

industrial applications, including in the pulp and paper, textile, mining, energy, food and 

beverage, and consumer products industries. See, e.g., PX1012 (Evonik) at 001. 

A. Customers of H2O2 Would Not Substitute to Another Chemical or Product 

5. Customers of H2O2 would not substitute to other chemicals from H2O2 if the prices of 

H2O2 were to rise by a small but significant non-transitory increase in price (“SSNIP”), or about 

5 percent. Anderson (Canfor) Hrg. Tr. 192:18-25; Maeder (Verso) Hrg. Tr. 138:23-139:11; 

JX0075 (Rothman Rpt.) ¶¶ 59-61. 

6. There are no functional substitutes for H2O2. Customers in a variety of industries have 

testified that they could not replace H2O2 with other chemicals. Anderson (Canfor) Hrg. Tr. 

192:4-11 (no substitutes for pulp and paper applications); Engram (USP) Hrg. Tr. 329:11-14 (no 

substitutes for environmental applications); (no substitutes 

for personal care applications); JX0006 (CHS Decl.) ¶¶ 7-8 (no substitutes for food applications). 

2 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 15 of 114 

7. Customers in a variety of industries have testified that they do not use the price of other 

chemicals when negotiating the price of H2O2. Anderson (Canfor) Hrg. Tr. 192:2-17 (pulp and 

paper customer); Maeder (Verso) Hrg. Tr. 136:17-24 (pulp and paper customer); Engram (USP) 

Hrg. Tr. 330:20-331:4 (environmental customer). 

8. Suppliers of H2O2 have acknowledge that customers have never threatened to switch to 

other chemicals. See, e.g., (study concluding 

that there is “no substitution risk” to other chemicals). 

9. H2O2 is an environment

-

ally friendly chemical that breaks down into water and oxygen. 

JX0081 (IHS) at 007. executive testified that “there’s nothing that really can do the 

same job in terms of bleaching like [H2O2] does that is also, you know, as – as friendly to the 

environment.” . Other customers and competitors 

have also testified that there is no alternative to H2O2 that is as environmentally friendly. 

JX0006 (CHS Decl.) ¶ 7; JX0005 (Arkema Decl.) ¶¶ 5-6. 

10. Further, once a customer has designed a plant and production process around H2O2, 

switching to a different chemical would be prohibitively costly. ; 

; JX0020 (Lerner (PeroxyChem) IH Tr. 190:13-20). Pulp and paper 

customers have testified that changing their bleaching processes would require significant capital 

investment and be economically unfeasible. JX0007 (Canfor Decl.) ¶¶ 4-5; JX0008 (Al-Pac 

Decl.) ¶ 5. Other customers have stated that they would not risk losing customers or jeopardizing 

quality by changing their formulations and switching to other chemicals. See, e.g.,

 (H2O2 is used in formulations for personal care applic

-

ations). 

B. H2O2 Formulated for a Given End Use Is a Relevant Product Market According 

to the Hypothetical Monopolist Test 

11. The FTC’s expert, Dr. Rothman, conducted the hypothetical monopolist test (“HMT”) 

3 
 

 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 16 of 114 

described in the Horizontal Merger Guidelines (“Guidelines”) and found that a hypothetical 

monopolist of H2O2 formulated for any given use would impose at least a SSNIP. Rothman Hrg. 

Tr. 730:13-23; JX0075 (Rothman Rpt.) ¶¶ 62-69. 

12. The H2O2 production process is largely the same for each producer, and involves moving 

a working solution through three basic steps: 1) hydrogenation, 2) oxidation, and 3) extraction, 

which result in “crude” H2O2. Hamann (Evonik) Hrg. Tr. 1310:23-1311:19; Kramer 

(PeroxyChem) Hrg. Tr. 1624:8-1625:12; see also JX0100 (PeroxyChem) at 016 (diagramming 

production process). Crude H2O2 is then purified (through distillation or filtration), brought to a 

specific concentration level, and stabilized with chemical additives. Hamann (Evonik) Hrg. Tr. 

1312:4-1313:6; Kramer (PeroxyChem) Hrg. Tr. 1625:17-1627:6; Suter (Solvay) Hrg. Tr. 406:16-

407:6. The precise combination of purity level, concentration, and stabilization package varies 

depending on the formulation of H2O2, but within each formulation, H2O2 sold by each 

producer is very similar. JX0005 (Arkema Decl.) ¶ 5; JX0009 (Nouryon Decl.) ¶ 6; Solvay 

(Suter) Hrg. Tr. 408:25-409:2, 409:24-410:1, 410:6-22. 

13. “Standard grade” H2O2, which has the highest level of impurities, is generally sold to 

pulp and paper customers, as well as customers in oil and gas, mining, and environmental end 

uses. Maeder (Verso) Hrg. Tr. 137:20-138:1; Dumas (PeroxyChem) Hrg. Tr. 224:2-10, 235:1-2; 

Montag (PeroxyChem) Hrg. Tr. 1600:23-1601:3. The substantial majority of H2O2 is sold as 

standard grade, in part due to market demand, Rothman Hrg. Tr. 755:19-25, but also because the 

production process requires firms to produce a significant amount of standard grade. See Kramer 

(PeroxyChem) Hrg. Tr. 1637:22-1638:8 (PeroxyChem’s process produces 

standard grade at Bayport due to limits on the amount of more highly purified H2O2 that can be 

produced from a given volume of crude H2O2); Hamann (Evonik) Hrg. Tr. 1279:5-1280:14 

4 
-

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 17 of 114 

(Evonik’s process must produce at least standard grade). 

14. Producers often refer to higher purity H2O2 as “specialty” grades, and these products 

may be finished with different chemical stabilizers depending on the specific end use. Hamann 

(Evonik) Hrg. Tr. 1278:11-12; 1281:7-10; Suter (Solvay) 406:16-407:14. Specialty grades of 

H2O2 are sold to customers in food, cosmetic, chemical, and environmental end-use 

applications. Suter (Solvay) 405:12-16; Corson (Evonik) 713:8-714:10. 

C. Aggregating H2O2 Formulated for Different End Uses into the Same Market Is 

Appropriate 

15. Dr. Rothman and Dr. Hill agree that the purpose of defining a relevant market is to 

illuminate competitive effects. Rothman Hrg. Tr. 728:18-729:7; Hill Hrg. Tr. 2100:16-2101:6. 

The most informative way to assess the competitive significance of each H2O2 supplier is to 

consider each supplier’s total sales of all non-electronics formulations of H2O2 because each 

supplier is able to adjust their production between different formulations of non-electronics 

H2O2. JX0075 (Rothman Rpt.) ¶ 78; Rothman Hrg. Tr. 735:12-16. While H2O2 formulated for 

specific end uses could be defined as separate relevant product markets, this would be an inferior 

approach. Rothman Hrg. Tr. 730:13-23; JX0075 (Rothman Rpt.) ¶ 70. A supplier’s sales into a 

particular end use could overstate or understate that particular supplier’s competitive significance 

depending on how that supplier has allocated its production capacity and sales efforts at a 

particular moment in time. Rothman Hrg. Tr. 735:6-12; JX0075 (Rothman Rpt.) ¶ 78. 

16. It is appropriate to aggregate different formulations of non-electronics H2O2 because 

suppliers of non-electronics H2O2 are “rapid entrants.” Rothman Hrg. Tr. 732:19-733:11; 

JX0075 (Rothman Rpt.) ¶ 78; see Guidelines § 5.1. Suppliers of non-electronics H2O2 can easily 

and profitably swing capacity between different formulations of H2O2, and such supply-side 

substitution is nearly universal among producers of non-electronics H2O2. Rothman Hrg. Tr. 

5 
73 2: 19-733: 11. Defendants' expert, Dr. Hill, admitted that he did not see any "impediment" to 

swinging from specialty grade to standard grade, Hill Hrg. Tr. 2163:18-2164:6, and that putting 

aside opportunity cost, a supplier can move from specialty grade to standard grade and viceversa. Id. at 2165:11-2166:4. 

17. Testimony and documentaiy evidence from Evonik, PeroxyChem, and other producers of 

H2O2 show that it is easy to swing capacity between different fo1mulations ofH2O2 at little to 

no cost. Kramer (PeroxyChem) Hrg. Tr. 1653:11-15, 1685:4-14, 1685:21-1686:6, 1686:10-13; 

Hamann (Evonik) Hrg. Tr. 1322:3-1323:15; Suter (Solvay) Hrg. Tr. 406:9-14; -

testified that a reduction in the output of specialty grades of H2O2 requires a simple valve 

change to disconnect some of the filters. 

- testified that it is easy to swing between any fo1mulations ofH2O2 as long 

·

as

-­

has available capacity. 

18. - confumed the ease of swinging capacity 

- "[a]n increase in the relative profitability of standai·d-grade would create incentives to 

divelt some production from specialty-grade to standard-grade H2O2. And this diversion could 

be easily and quickly accomplished at no significant cost." ; JX0075 

(Rothman Rpt.) ,r 77. 

19. Similai·ly, 

"segmentation of H2O2 by end-use application is not 

appropriate. " . According to _ , aggregating H2O2 fo1mulated for 

different end uses into the same mai·ket is appropriate because "[t]here is strong supply-side 

substitutability for all end-use applications for H202." - · 

6 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 18 of 114 
20. is appropriate to aggregate H2O2 formulated for different 

end uses into the same market because "[t]he concentration of H2O2 products can be rather 

easily manipulated (e.g., by purifying, concentrnting, or diluting). Eve1y H2O2 producer is 

therefore in principle capable of supplying H2O2 at various concentrations levels, thus being 

able to cater for multiple end use applications." . Similarly, North 

American H2O2 producers purify, concentrate, and dilute H2O2 to cater to multiple end-use 

applications. JX0075 (Rothman Rpt.) ,i,i 73-74; PX7102 (Rothman Rebuttal Rpt.) ,i 17; Hamann 

(Evonik) Hrg. Tr. 1312:4-1313:6, 1315:18-1317:15, 1319:4-1320:15, 1322:3-1323:2; Kramer 

(PeroxyChem) Hrg. Tr. 1682: 11-1684: 12. 

21. , it is appropriate to aggregate H2O2 formulated for different end 

uses into the same market because "H2O2 with a ce1tain concentration level can often be used 

for several end use applications. For example, H2O2 with a 35% concentration can be used for 

Pulp, Textile, Mining as well as Environmental and Food applications. Thus, even if 

hypothetically a producer would only produce one concentration ofH2O2, it would still be able 

to supply H2O2 for multiple end use applications." . "[A] single H2O2 

product can in principle be marketed and used for various uses in different industries." - · 

22. confiim that chemically identical products can be sold into 

different end uses under different labels. 

7 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 19 of 114 
; see also 

23. it is appropriate to aggregate 

H2O2 formulated for different end uses into the same market because "pulp, paper and 

packaging and chemical synthesis applications constitute almost 80% of the [European 

Economic Area]-wide H2O2 volume and all main competitors are active in these end-use 

applications." . This is strikingly similar to North America, where pulp 

and paper and chemical synthesis applications constitute approximately 75% of volume, and 

where it is undisputed that all five H2O2 producers are active in those same end-use applications. 

JX0081 (IHS) at 017 (pulp/paper and chemical synthesis accounted for 489,000 metric tons out 

of total consumption of 656,000 metric tons in 2019); see also 

(pulp and paper and chemicals accounted for 69 percent of H2O2 market in 2018). 

24. H2O2 production plants are set up to seamlessly shift production between different 

fo1mulations without incmTing any significant costs or delays. Suter (Solvay) Hrg. Tr. 406:9-14; 

see also 

- · This allows suppliers to produce different f01mulations according to customer demand. 

Suter (Solvay) Hrg. Tr. 406: 1-8; ;-

testified that can 

"make X amount of a pa1ticular grade one month and two X the next month if - and cut back on 

something else. The overall capacity is - is limited, but we can - within that, we can go back and 

8 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 20 of 114 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 21 of 114 

forth between the different grades.” . 

25.

 testified that strategic plan projected increasing its 

sales into specialty markets from 2019 to 2020, without undertaking any significant expenditures 

on new capaci

-

ty. . 

testified that is currently selling some o

-

f its higher purity H2O2 into lowe

-

r-margin end 

uses due to lack of customer demand, and that would increase its sales into highermargin specialty end uses if customer demand supported it. 

(“Current product mix utilizing concentrate over spec for the 

production need.”). 

26. A testified that he could not re

-

call a single instance in which 

declined to bid for a customer because did not believe it could make an H2O2 

-

formulation that would meet the specification. 

27. testified that the process of 

purifying standard grade to specialty or pre-electronics grade takes just a matter of a few 

minutes. . It would be easy for an engineer (or even a 

lawyer) to adjust the output of the different H2O2 formulations by turning a valve. 

I . testified that- plants have capacity and flexibility to 

produce more high-purity grades, or instead make more standard grade products. 

. -

i. Pre-Electronics Grade H2O2 Should Be Included in the Relevant Product 

Market 

28. It is appropriate to include pre-electronics grade H2O2 in the relevant product market 

because all suppliers are present or would be rapid entrants for pre-electronics grade H2O2. 

9 
29. "All North American producers of 

H2O2] are in principle capable of producing pre-electronics grade [H2O2] today or with a 

elatively modest investment." 

chnology to produce pre-electronics grade H2O2 "is attainable with relatively modest 

dditional investment and time, and is attractive if there is customer demand." Id. -

stimates an investment of no more than- . Id. 

0. The process for purifying pre-electronics grade H2O2 is similar to other specialty grades. 

produces specialty grades and pre-electronics H2O2 using the same reverse osmosis 

ystem to filter out impurities. . The 

ey difference between- production of pre-electronics grade H2O2 and specialty grades 

that specialty grades are purified once and pre-electronics grade is purified a second time. Id. ; 

; PX7102 (Rothman Rebuttal Rpt.) ,I 42. 

1. Likewise, testified that pre-electronics grade 

2O2 is produced on the same equipment that they use to produce specialty grades of H2O2. 

· testified that H2O2 is 

urified into rectified product, which is then used to make specialty grades of H2O2, along with 

re-electronics grade H2O2 (sometimes refeITed to as electronics grade "feedstock"). -

; see also, 

2. Although PeroxyChem and Solvay do not sell pre-electronics grade H2O2 today, they 

roduce significant volumes of pre-electronics grade H2O2 that are consumed internally in their 

roduction of electronics grade H2O2. Rothman Hrg. Tr. 788:5-8; 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 22 of 114 
. In recent years, 

; JX000l (MGC Deel.) ,nf 22-23. 

;-

33. In fact, 

after MGC announced plans to build additional facilities in 

North America for purifying electronics-grade H2O2. 

34. Additionally, in 2016, reached out to bout a 

-

potential 

· 

opp01tunity to supply pre-electronics grade H2O2 to an on-site production facility at 

. While the opp01tunity never 

1 MGC is the largest supplier of electronics grade H2O2 in No1th America. PX1025 (Evonik) at 

009; PX2058 (PeroxyChem) at 014. MGC does not produce H2O2, but rather purchases it from 

H2O2 producers and futther mi.fies it to reduce electronics ·ade H2O2. Rothman Hr . Tr. 

793: 14-794: l ; 

11 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 23 of 114 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 24 of 114 

materialized, informed that

“[was] very capable of being a feedstock supplier.” . 

also attempted to supply pre-electronics grade H2O2 to - in 2016. 

. 

35. Evonik’s own strategic documents acknowledge 

. PX1156 (Evonik) at 010. In contrast, 

Id. makes 

up the balance not supplied by with the smallest share. 

-

Id. 

36. Further, Evonik acknowledged that PeroxyChem has a product that could meet MGC’s 

needs. 

 Hamann (Evonik) Hrg. Tr. 1326:25-1327:17. 

Id. at 1327:18-1328:25. 

37. Although Nouryon does not currently market pre-electronics grade H2O2, it does not 

mean that Nouryon could not do so if it so chose. Rothman Hrg. Tr. 788:8-11. 

38. Dr. Hill is incorrect when he asserts that it would not be profitable for producers of preelectronics grade H2O2 to swing to other grades of H2O2 because the average margins of preelectronics grade H2O2 are higher than that of other grades. See Hill Hrg. Tr. 2081:21-2082:17; 

JX0066 (Hill Rpt.) ¶ 79, Figure 10. Average margins mask a lot of variation. For example, 

of Evonik’s sales of H2O2 are at a higher margin than Evonik’s average mar

-

gin 

on H2O2. Rothman Hrg. Tr. 791:24-792:10; PX7102 (Rothman Rebuttal 

12 
-

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 25 of 114 

Rpt.) ¶ 40. Similarly, for every 100 units of pre-electronics grade H2O2 that Evonik produces, it 

ells of standard grade H2O2 at a higher margin than its average margin of prelectronics grade H2O2. Rothman Hrg. Tr. 792:11-19; PX7102 (Rothman Rebuttal Rpt.) ¶ 40. 

ii. Other Specialty Grades (Excluding Electronics Grade) Should Be 

Included in the Relevant Product Market 

9. All H2O2 suppliers currently compete in virtually all grades of H2O2, excluding 

lectronics grade. Suter (Solvay) Hrg. Tr. 406:16-407:6, 408:4-7, 434:1-6; Corson (Evonik) Hrg. 

r. at 713:8-714:14; JX0075 (Rothman Rpt.) ¶ 73. 

0. Dr. Hill notes that Evonik does not currently sell certain specialty H2O2 grades that 

eroxyChem sells in the United States, such as aseptic packaging, “tin-free” formulations, 

ropulsion grade, and EPA approved biocides. Hill Hrg. Tr. 2071:8-2072:3; JX0066 (Hill Rpt.) 

¶ 42-45. However, the evidence indicates that Evonik should be considered a rapid entrant into 

ose specialty grades. 

1. As an initial matter, the majority of H2O2 by volume produced by all suppliers in 

orth America is standard grade. JX0081 (IHS) at 010, 017, 021. 

 Dr. Hill admits that

 make a significant amount of standard grade, Hill Hrg. Tr. 2193:21-

194:3, and that standard grade H2O2 is likely a relevant product market. Id. at 2103:7-12. 

2. Additionally, many of the “specialty” end uses that PeroxyChem points to require 

tandard grade H2O2. PeroxyChem also sells H2O2 to Downhole, for use as a breaker in the 

racking process, a customer Defendants promised the Court it would hear from. Defs.’ Op. 

tmnt. Hrg. Tr. 89:9-90:7. Defense counsel represented that PeroxyChem performs services and 

chniques to Downhole that “our competitors simply cannot do.” Id. In fact, Downhole’s CEO 

13 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 26 of 114 

testified that Downhole alone came up with an additive pack of chemicals designed to improve 

the efficacy of H2O2 as a friction-reducing polymer breaker. JX0059 (Cutrer (Downhole) Dep. 

Tr. 34:18-19; 77:7-10; 77:11-18; 83:9-18; 83:23-84:3). Downhole approached PeroxyChem 

. Id. at 

36:20-37:12; 38:15-39:3; 62:20-63:2; 77:11-15; 78:24-79:10; 104:5-12. Downhole could “switch 

to a different [H2O2] provider to mix its breaker product,” id. at 62:24-63:2. And PeroxyChem 

brings nothing to the partnership other than blending and packaging services. Id. at 72:21-24. 

Downhole was clear that if PeroxyChem did not exist, many other blenders and H2O2 suppliers 

could do exactly what PeroxyChem is currently doing. Id. at 68:12-18; 96:8-98:1. Indeed, such 

blenders and suppliers are “a dime-a-dozen.” Id. at 96:13-17. 

43. With respect to aseptic grade H2O2, Evonik could be a rapid entrant in that particular 

end use. Rothman Hrg. Tr. 794:8-18. Although Evonik does not currently have sales of aseptic 

grade H2O2 in the United States, it sells aseptic-grade H2O2 in much of the rest of the world. 

Corson (Evonik) Hrg. Tr. 596:9-14, 597:6-12; Rothman Hrg. Tr. 794:8-18. Indeed, Evonik’s 

aseptic packaging H2O2, OXTERIL, is well-known globally. Corson (Evonik) Hrg. Tr. 596:9-

14. Further, Evonik already produces two types of aseptic grade H2O2 (spray and bath 

formulations) at its Mobile, Alabama plant, and sells those products in Mexico today. Id. at 

597:7-12; 598:2-4. 

44. In December 2018, Evonik conducted a study on aseptic packaging H2O2 in North 

America. JX0115 (Evonik) at 003-04. According to the study, 

. Id. at 

14 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 27 of 114 

031; Corson (Evonik) Hrg. Tr. at 604:25-605:9, 605:17-606:1. 

45. 

. Corson (Evonik) Hrg. Tr. at 

610:3-9. 

. Id. at 608:1-6, 608:20-24; JX0115 (Evonik) at 039-40. 

. Corson (Evonik) Hrg. Tr. 609:18-23; JX0115 (Evonik) at 039. 

46. The Evonik executive responsible for the aseptic packaging study concluded that 

-. Corson (Evonik) Hrg. Tr. 603:13-16; JX0115 (Evonik) at 040, 042. 

. Corson (Evonik) Hrg. Tr. 

706:19-707:7; JX0115 (Evonik) at 042. 

47. While Defendants claim that Evonik is unable to produce “tin-free” H2O2, ordinary 

course documents suggest that if the market opportunity were attractive, 

. PX1522 (Evonik) at 001. 

Further, 

. Hamann (Evonik) 

Hrg. Tr. 1300:9-1301:3. Indeed, 

. See DX0348 (Evonik) at 

001-02 ( 

). 

48. Further, Dr. Hamann, Evonik’s VP of Production and Engineering, testified that -

15 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 28 of 114 

. Hamann (Evonik) Hrg. Tr. 1298:18-1299:22. 

Id. at 

1299:25-1300:7. 

49. With respect to EPA registered biocides, Evonik already sells H2O2 for environmental 

applications in the United States via a distributor. Corson (Evonik) Hrg. Tr. 611:2-6. In fact, 

Evonik testified that 

. Id. at 

616:1-23; PX1342 (Evonik) at 065. An Evonik executive testified that it would take “a year or 

so” to get the EPA approval for products that Evonik is already capable of producing. Corson 

(Evonik) Hrg. Tr. 666:6-17. 

50. Other specialty H2O2 applications, where Defendants claim Evonik does not currently 

serve customers in North America, Defs.’ Br. at 11-12, serve niche end markets and account for 

only a tiny fraction of all H2O2 in North Americ

yport plant in 2018. PX2497 (Perox

-

a. Propulsion-grade H2O2 represented less than 

one of the total output ( out of more than ) of 

PeroxyChem’s Ba yChem) at 003; Lerner (PeroxyChem) Hrg. 

1409:1-11; see also Kramer (PeroxyChem) Hrg. Tr. 1678:13-25 (propulsion grade is “a very 

small percentage of [PeroxyChem’s] overall production”). Similarly, H2O2 used for sterilization 

represents only a fraction of all H2O2 and accounted for about of Bayport’s 

revenues in 2018. See 

; PX2497 (PeroxyChem) at 003 (Bayport revenues were 

16 
-

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 29 of 114 

approximately million in 2018). Even if these niche uses were to grow, Evonik’s Marketing 

Manager for North America testified that the company will typically conduct a market study and 

consider entering any markets it sees growing. Corson (Evonik) Hrg. Tr. 623:7-13. 

51. The record is clear that all suppliers, is making an effo

pulp and paper applications into a variet

-, like rt to diversify from 

-

y of growing standard grade and specialty end uses. 

 recently began selling to customers in ne

-

w enduse applications, such as 

-

oil and gas, . 

 has also begun marketing to mining customers and customers in other 

end uses. 

52. admitted that developing new products and entering new 

markets “is definitely a big part of competition.” 

D. The Sale of Electronics Grade H2O2 Should Not Be Included in the Same 

Market as Other Grades of H2O2 

53. The sale of electronics grade H2O2 to semiconductor manufacturers should not be 

included in the same market as other formulations of H2O2. Rothman Hrg. Tr. 736:13-24; 

JX0075 (Rothman Rpt.) ¶¶ 79-81. 

54. In contrast to other formulations, electronics grade H2O2 is produced by a different set of 

suppliers. Rothman Hrg. Tr. 737:15-21. The leading producer of electronics grade H2O2 is 

MGC. PX1025 (Evonik) at 009 (cha

-

racterizing MGC as ); PX2058 

(PeroxyChem) at 014 (MGC has market share in electronics). The only other producers of 

electronics grade H2O2 are PeroxyChem, Solvay, and Honeywell. ; 

PX1025 (Evonik) at 008; PX2358 (PeroxyChem) at 021; PX2106 (PeroxyChem) at 003. 

55. Evonik, Arkema, and Nouryon do not produce electronics grade H2O2, nor do they have 

the capability to do so. ; PX1025 (Evonik) at 008; Myrick (Arkema) 

17 
Hrg. Tr. 468:9-15; Radlinksi (Nouryon) Hrg. Tr. 542:14-543:8, 544:21-24; JX0075 (Rothman 

Rpt.) ,r 79. producing electronics grade H2O2 years ago, but concluded that it 

would not be feasible due to "significant patent protection," complexity, and cost. -

("[W]e decided - this was very complicated, costly, and 

so we decided not to pursue this further."); see also 

56. Electronics grade H2O2 is different from other fonnulations ofH2O2. Semiconductor 

manufacturers have lower tolerances for impurities than other H2O2 customers, often not to 

exceed 1 part per trillion. ; JX0020 (Lerner (PeroxyChem) IH Tr. 

32:22-33:8); JX0075 (Rothman Rpt.) ,r 80. 

57. Producing electronics grade H2O2 requires complex purification procedures that are 

highly confidential and proprietary to each supplier. See, e.g. , ; JX0020 

(Lerner (PeroxyChem) IH Tr. 34: 1-35:3). Producers of electronics grade H2O2 must use 

different equipment and purification techniques than other grades ofH2O2. 

; PX1232 (Evonik) at 002-004. This is in stark contrast to pre-electronics 

grade H2O2, which uses the exact same equipment as all other specialty grades.-

testified that H2O2 is purified into rectified product, which is then used 

to make specialty grades ofH2O2, along with pre-electronics grade. 

58. Customers of electronics grade H2O2 must also undergo a rigorous approval process. 

JX0020 (Lerner (PeroxyChem) IH Tr. 119:25-120:15). PeroxyChem's CEO, Mr. Lerner, 

testified that "[t]he approval process of electronics clients is much more rigorous than any other 

grade of any other client." JX0020 (Lerner (PeroxyChem) IH Tr. 119:25-120:15). 

18 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 30 of 114 
 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 31 of 114 

59. Unlike other types of H2O2, electronics grade H2O2 is frequently produced at separate 

facilities. PeroxyChem’s Saratoga Springs, New York plant receives pre-electronics H2O2 from 

Bayport, which it further purifies into electronics grade H2O2 for its nearby customer. JX0020 

(Lerner (PeroxyChem) IH Tr. 27:16-25). MGC’s facilities in Mesa, Arizona; Killeen, Texas; and 

Forest Grove, Oregon process pre-electronics grade H2O2 into electronics grade H2O2. JX0001 

(MGC Decl.) ¶ 4. MGC is not capable of manufacturing H2O2 or any other grades of H2O2. 

JX0001 (MGC Decl.) ¶ 4; JX0075 (Rothman Rpt.) ¶ 81. 

III. THE SOUTHERN AND CENTRAL UNITED STATES AND THE PACIFIC 

NORTHWEST ARE RELEVANT GEOGRAPHIC MARKETS 

A. Regional Geographic Markets Are Appropriate 

60. H2O2 is delivered to customers’ locations. Suppliers ship H2O2 by either truck or rail 

car. Dumas (PeroxyChem) Hrg. Tr. 227:4-12. Given the expense of shipping H2O2 by truck, 

suppliers often ship H2O2 via rail to terminals, and the repackage the product into smaller 

quantities. Maeder (Verso) Hrg. Tr. 146:5-23; Niessner (GPI) Hrg. Tr. 1011:12-23. 

61. H2O2 is shipped diluted with water, which makes shipping expensive relative to the 

value of the product. As Nouryon’s General Manager explained, “[o]ne of the major issues 

when selling [H2O2] is the freight cost to deliver [H2O2] to a customer. Since it’s diluted with 

water that can – freight can dramatically affect the price of the product and your 

competitiveness.” Radlinksi (Nouryon) Hrg. Tr. 541:7-13. Customers understand that it is “cost 

prohibitive to ship [H2O2] all that way across the country” given the high water content, and 

thus do not solicit bids from distant suppliers. Anderson (Canfor) Hrg. Tr. 199:17-200:4. 

62. H2O2 suppliers offer individually negotiated pricing to customers. H2O2 producers 

individually negotiate prices with customers and prices can differ based on customer locations. 

Dumas (PeroxyChem) Hrg. Tr. 227:4-19; Maeder (Verso) Hrg. Tr. 146:24-147:1; JX0041 

19 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 32 of 114 

(Shirley (IP) Dep. Tr. 109:24-110:6). Given the high water content of H2O2, greater shipping 

distances add greater freight costs, which, in turn, affect the customer’s delivered pricing for 

H2O2. Dumas (PeroxyChem) Hrg. Tr. 227:4-19; Myrick (Arkema) Hrg. Tr. 476:18-21. 

63. One customer explained, “logistics costs can become a large component of the overall 

delivered price that we receive.” JX0033 (Maeder (Verso) Dep. Tr. 106:3-6). Other market 

participants universally confirm the importance of freight and logistics costs in the customers’ 

ultimate price for H2O2. See Anderson (Canfor) Hrg. Tr. 199:17-200:4; Corson (Evonik) Hrg. 

Tr. 651:22-652:4; Hamann (Evonik) Hrg. Tr. 1236:2-6; ; 

Engram (USP) Hrg. Tr. 332:11-14. 

64. H2O2 producers prefer to serve customers close to their plants. Arkema prefers to 

serve customers located near Arkema’s H2O2 plants in Memphis, Tennessee and Becancour, 

Quebec. Myrick (Arkema) Hrg. Tr. 476:18-21, 503:13-504:3. Likewise, Evonik targets 

customers with “the right locations,” meaning customers closer to Evonik’s plants. Corson 

(Evonik) Hrg. Tr. 651:22-652:4. Ms. Montag, PeroxyChem’s Global Business Director, testified 

that customer location is a factor in determining a response to a Request for Proposal (“RFP”), as 

is the proximity of a competitor’s supply location to a customer’s receiving location. Montag 

(PeroxyChem) Hrg. Tr. 1539:15-25. Customers, in turn, recognize that geographic proximity to a 

supplier’s plant can be advantageous. . 

65. H2O2 plant locations are important. Plant locations are important both with respect to 

the price (given the importance of transportation costs) and security of supply (with additional 

plants providing additional supply options). H2O2 plants experience both planned and unplanned 

outages, and customers value a supplier that is able to guarantee consistent service in order to 

minimize disruptions to the customer’s operations. See, e.g., Maeder (Verso) Hrg. Tr. 143:6-8, 

20 
 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 33 of 114 

143:15-144:10; Anderson (Canfor) Hrg. Tr. 198:4-199:14; . 

66. Customers could not defeat a price increase by purchasing indirectly from or 

through other customers. Due to the high cost of H2O2 delivery, customers within a region 

would not travel outside of it to procure H2O2. GPI would not consider purchasing H2O2 at a 

terminal and transporting it back to its own facility. Niessner (GPI) Hrg. Tr. 1011:24-1012:8. 

67. H2O2 producers recognize regional markets. Ordinary course documents and 

testimony from Defendants’ executives show that suppliers view the North American H2O2 

markets as regional. See, e.g., PX2058 (PeroxyChem) at 057; JX0020 (Lerner (PeroxyChem) IH 

Tr. 96:2-101:5). For example, PeroxyChem’s CEO testified that there are “roughly, four regions 

that would encompass some local supply point freight logical . . . meaning reasonable equivalent 

logistics to those market spaces.” JX0020 (Lerner (PeroxyChem) IH Tr. 96:21-97:1. 

Furthermore, “competition for the sale of 

H2O2 varies significantly by customer location.” 

68. Different H2O2 producers serve different regions. As one PeroxyChem presentation 

describing “Regional Supply Dynamics” illustrates, different H2O2 producers supply distinct 

regions within North America. PX2058 (PeroxyChem) at 057. All five suppliers serve the 

Southern and Central United States, while Evonik, PeroxyChem, and Solvay are the dominant 

suppliers in the Pacific Northwest. See infra Section IV; JX0075 (Rothman Rpt.) ¶ 95; Costanzo 

(Evonik) Hrg. Tr. 1158:17-1162:7. 

69. Both Dr. Rothman and Dr. Hill agree that in theory, markets could be defined around 

individual customers. Rothman Hrg. Tr. 738:8-19; Hill Hrg. Tr. 2087:12-16; JX0075 (Rothman 

Rpt.) ¶¶ 84, 86. However, it is appropriate to group customers together if customers in a given 

area face largely the same competitive conditions. Rothman Hrg. Tr. 738:8-19; JX0075 

21 
 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 34 of 114 

(Rothman Rpt.) ¶ 86. 

70. Dr. Rothman also described how if a customer only had one supplier, a geographic 

market defined around that customer location would generate a market share of 100%, even if 

other suppliers had actually bid. Rothman Hrg. Tr. 940:4-941:1 Thus, it is not just analytically 

convenient, but critical to generating the best measure of competitive significance and 

illumination of competitive effects, that we aggregate customers who face similar competitive 

conditions. Rothman Hrg. Tr. 941:2-8, 947:5-21, 997:25-998:8. Focusing too narrowly would 

lead to very noisy estimates, while broadening too much can create the illusion of harm where it 

otherwise does not exist. See id. at 947:5-21. 

71. As such, Dr. Rothman has defined two relevant geographic markets, the Southern and 

Central United States and the Pacific Northwest. Rothman Hrg. Tr. 737:22-738:2; JX0075 

(Rothman Rpt.) ¶¶ 87, 98. Dr. Hill admits that these two geographic markets likely pass the 

HMT, Hill Hrg. Tr. 2086:6-9, although he has not performed the HMT on any geographic 

markets in which Defendants propose that the Court should analyze the competitive effects of the 

Acquisition. Id. at 2101:19-2013:2. 

B. The Sale of H2O2 to Customers in the Southern and Central United States Is a 

Relevant Geographic Market 

72. Dr. Rothman analyzed the Acquisition’s probable effect on competition for the sale of 

H2O2 to customers within the following states: Alabama, Arkansas, Arizona, California, 

Colorado, the District of Columbia, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, 

Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Mississippi, North Carolina, 

North Dakota, Nebraska, New Mexico, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, 

Tennessee, Texas, Utah, Virginia, Wisconsin, and West Virginia. JX0075 (Rothman Rpt.) ¶ 87; 

Rothman Hrg. Tr. 738:23-739:17. These states comprise the relevant geographic market referred 

22 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 35 of 114 

to as “the Southern and Central United States.” 

73. A hypothetical monopolist of H2O2 sold to customers that are located in these states 

likely would impose at least a SSNIP. Rothman Hrg. Tr. 741:7-25; JX0075 (Rothman Rpt.) ¶¶ 

92-93. Dr. Hill agrees that a hypothetical monopolist in the Southern and Central United States 

would be able to implement significant price increases. Hill Hrg. Tr. 2194:20-2195:20. 

74. PeroxyChem’s ordinary course business documents confirm that the Southern and 

Central United States is a nexus of competition among H2O2 producers with plants in the south. 

Rothman Hrg. Tr. 739:18-741:6. A PeroxyChem strategic presentation slide titled “Regional 

Supply Dynamics” shows a map of North America with four ovals superimposed on the map 

representing four areas in which to analyze the balance between supply and demand. PX2058 

(PeroxyChem) at 057. One oval covers the Southeast, Mid-Continent, Mid-Atlantic, and the 

Southwest United States. PX2058 (PeroxyChem) at 057. Mr. Lerner, PeroxyChem’s CEO, 

testified that this oval should also cover the West Coast of the United States. JX0020 (Lerner 

(PeroxyChem) IH Tr. 97:14-98:13); see also Lerner (PeroxyChem) Hrg. Tr. 1458:19-1459:21 

(testifying that PeroxyChem’s Bayport, Texas facility is freight-logical to both California and 

Delaware). This oval roughly corresponds to the Southern and Central United States region that 

Dr. Rothman has defined as a relevant geographic market. JX0075 (Rothman Rpt.) ¶ 90. 

75. An Evonik strategic presentation from 2019 also supports Dr. Rothman’s geographic 

market definition. JX0129 (Evonik) at 018-22. In this presentation, Evonik prepared maps 

identifying which Evonik or competitor plants supply individual H2O2 customer locations in the 

United States or Canada. Id. The map shows PeroxyChem serving customers in California and 

Nevada out of its Bayport, Texas plant instead of its plant in Prince George, BC. JX0129 

(Evonik) at 021; see also Hill Hrg. Tr. 2172:4-15 (acknowledging that PeroxyChem’s Bayport 

23 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 36 of 114 

plant serves customers in a variety of locations across the Southern and Central United States). 

Similarly, the Evonik presentation shows Solvay serving customers in California and Nevada out 

of its Deer Park, Texas plant rather than its Longview, Washington plant. JX0129 (Evonik) at 

019. This presentation also shows that customers in Virginia, North Carolina and other locations 

in the southeast purchase primarily from the same plants. JX0129 (Evonik) at 018-022. 

76. Customers in the Southern and Central United States receive shipments primarily from 

one of the five H2O2 plants in the south—Evonik’s Mobile plant, PeroxyChem’s Bayport plant, 

Solvay’s Deer Park plant, Arkema’s Memphis plant, and Nouryon’s Columbus plant. JX0075 

(Rothman Rpt.) ¶ 95. In total, of the H2O2 volume purchased in the Southern and 

Central United States is from Evonik’s, PeroxyChem’s, Solvay’s, Arkema’s, or Nouryon’s 

southern plants. JX0075 (Rothman Rpt.) ¶ 95. 

77. Additionally, Dr. Rothman conducted sensitivity analyses to test whether measures of 

market share are materially different for narrower groupings of customers in the Southern and 

Central United States, including for customers in the Southern United States (Alabama, 

Arkansas, the District of Columbia, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, 

Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West 

Virginia), the Central United States (Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, 

Missouri, North Dakota, Nebraska, Ohio, South Dakota, and Wisconsin), and the Western United 

States (Arizona, California, Colorado, New Mexico, Nevada, and Utah). JX0075 (Rothman Rpt.) 

¶ 96. This sensitivity analysis confirms that customers in these regions face largely the same 

competitive conditions. Rothman Hrg. Tr. 977:9-13; JX0075 (Rothman Rpt.) ¶ 96, Exh. 2-3. 

Importantly, Evonik and PeroxyChem compete to supply customers in each of the narrower 

regions, so grouping customers throughout the Southern and Central United States does not 

24 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 37 of 114 

create an illusion of competition. Rothman Hrg. Tr. 797:6-798:11; 981:13-19. 

C. The Sale of H2O2 to Customers in the Pacific Northwest Is a Relevant Geographic 

Market 

78. The second geographic market that Dr. Rothman defined is the Pacific Northwest, which 

includes customers located in Idaho, Oregon, Montana, Washington, and Wyoming in the United 

States and Alberta, British Columbia, Manitoba, and Saskatchewan in Canada. Rothman Hrg. Tr. 

742:8-22; JX0075 (Rothman Rpt.) ¶ 98. 

79. A hypothetical monopolist of H2O2 sold to customers in the Pacific Northwest likely 

would impose at least a SSNIP. Rothman Hrg. Tr. 743:6-18; JX0075 (Rothman Rpt.) ¶ 100. 

80. Dr. Rothman’s definition of the Pacific Northwest as a relevant geographic market is 

consistent with how market participants view competition. The same PeroxyChem strategic 

presentation identifying “Regional Supply Dynamics” also includes an oval covering the Pacific 

Northwest and some of the central and western provinces of Canada in an area roughly 

analogous to Dr. Rothman’s Pacific Northwest region. PX2058 (PeroxyChem) at 057. Mr. 

Lerner confirmed that the oval representing the Pacific Northwest includes states in the U.S. 

Pacific Northwest as well as provinces in Central and Western Canada. JX0020 (Lerner 

(PeroxyChem) IH Tr. 97:14-98:13). 

81. Customers in the Pacific Northwest purchase almost exclusively from one of the three 

suppliers that have plants in the Pacific Northwest—Evonik, PeroxyChem, and Solvay—and 

receive shipments predominantl

-

y from these suppliers’ plants in the Pacific Northwest. JX0075 

(Rothman Rpt.) ¶ 102. In total, of the H2O2 volume purchased in the Pacific 

Northwest comes from Pacific Northwest plants. JX0075 (Rothman Rpt.) ¶ 102. 

82. testified that 

primarily serves customers in the Pacific Northwest from its plant in 

25 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 38 of 114 

; see also 

. Likewise, Ms. Montag indicated 

that PeroxyChem 

. PX2113 (PeroxyChem) at 001. Customers confirm that the competitive 

conditions in the Pacific Northwest are distinct. See, e.g., 

(noting that pays higher prices in Eastern Canada with only two supply options 

when compared with Western Canada, where there are three suppliers). 

IV. MARKET PARTICIPANTS 

A. H2O2 Suppliers 

83. Evonik operates three plants that manufacture H2O2 in North America, located in 

Mobile, Alabama; Gibbons, Alberta; and Maitland, Ontario. JX0132 (Evonik) at 006. The 

Mobile and Gibbons plants have annual nameplate capacities of  million pounds apiece and 

the Maitland plant has an annual nameplate capacity of  million pounds. Id. Evonik produces 

H2O2 for approximately all end uses except electronics grade in North America. Id. at 015. 

84. PeroxyChem operates two H2O2 production plants in North America, located in Bayport, 

Texas and Prince George, British Columbia. PX2361 (PeroxyChem) at 032. The Bayport plant 

has an annual nameplate capacity of  million pounds and the Prince George plant has an 

annual nameplate capacity of  million pounds per year. Id. PeroxyChem produces H2O2 for 

virtually all end uses in North America, including electronics grade. Id. 

85. In addition to Evonik and PeroxyChem, there are only three other producers of H2O2 in 

North America: Arkema, Solvay, and Nouryon. 

i. Arkema 

86. Headquartered in France, Arkema’s 2018 total global revenues were €8.8 billion. PX9050 

26 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 39 of 114 

(Arkema) at 005, 038. In 2018, Arkema’s North American revenues for H2O2 were 

approximately . JX0151 (Arkema) at 018. 

87. Arkema operates two H2O2 plants in North America, located in Memphis, Tennessee, 

and Becancour, Quebec. Myrick (Arkema) Hrg. Tr. 474:4-9; JX0005 (Arkema Decl.) ¶ 4. The 

annual nameplate capacities of the two plants are approximately- metric tons each. 

JX0005 (Arkema Decl.) ¶ 4. 

88. Arkema produces H2O2 for substantially all end uses except electronics grade in North 

America. JX0028 (Hamann (Evonik) IH Tr. 64:25-65:11). 

ii. Solvay 

89. Headquartered in Brussels, Belgium, Solvay has annual revenues of €10.3 billion. 

PX9053 (Solvay) at 171, 280. 

90. Solvay operates two H2O2 production plants in North America, located in Deer Park, 

Texas and Longview, Washington. Suter (Solva

-

y) Hrg. Tr. 404:17-20. The Deer Park plant has a 

nameplate capacity of approx

-

imately metric tons and the Longview plant has nameplate 

capacity of approximately . Suter (Solvay) Hrg. Tr. 416:417:3. 

91. Solvay produces H2O2 for substantially all end uses in North America, including 

electronics grade. Suter (Solvay) Hrg. Tr. 405:12-20. 

iii. Nouryon 

92. Formerly the Specialty Chemicals Group of AkzoNobel, Nouryon is headquartered in 

Amsterdam, Netherlands. JX0009 (Nouryon Decl.) ¶ 2. In 2017, Nouryon’s revenues were 

approximately €5 billion. PX9052 (Nouryon) at 001; JX0009 (Nouryon Decl.) ¶ 2. 

93. Nouryon operates one H2O2 plant in North America, located in Columbus, Mississippi, 

with an annual nameplate capacity of approximately metric tons per year. JX0009 

(Nouryon Decl.) ¶ 4. 

27 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 40 of 114 

94. Nouryon produces H2O2 for substantially all end uses in North America, except 

electronics grade. Radlinski (Nouryon) Hrg. Tr. 538:16-539:15, 540:16-25. 

B. Evonik, PeroxyChem, Solvay, Arkema, and Nouryon Compete in the Southern 

and Central United States 

95. There are five major firms supplying H2O2 in the Southern and Central United States: 

Evonik, PeroxyChem, Solvay, Arkema, and Nouryon. Rothman Hrg. Tr. 38:2-17; Myrick 

(Arkema) Hrg

-

. Tr. 470:15-20; see also JX0081 (IHS) at 007. 

96. About of the H2O2 sold by Arkema in the United States supplies customers 

located east of or bordering the Mississippi River. JX0005 (Arkema Decl.) ¶ 11. However, 

Arkema also has customers in California and Arizona, Myrick (Arkema) Hrg. Tr. 475:1-6, and 

other states as far north as Minnesota and North Dakota. See PX7102 (Rothman Rebuttal Rpt.) 

Exh. 2, Exh. 4-3; . 

97. Solvay’s Deer Park facility serves customers throughout the Southern and Central United 

States, including customers in California, Nevada, Wisconsin, Illinois, Georgia and the 

Carolinas. JX0129 (Evonik) at 019. 

98. Most of - customers are located in the southeastern United States or along the 

Gulf Coast. ; PX1342 

(Evonik) at 076 (describing 

). However, - also supplies customers outside of the 

southeastern United States in states including Utah, Minnesota, and Wisconsin. See PX7102 

(Rothman Rebuttal Rpt.) Ex. 2, Ex. 4-4; JX0083 (Evonik) at 021. 

C. Only Evonik, PeroxyChem, and Solvay Compete in the Pacific Northwest 

99. There are three firms supplying H2O2 in the Pacific Northwest: Evonik, PeroxyChem, 

and Solvay. Rothman Hrg. Tr. 742:8-22; Anderson (Canfor) Hrg. Tr. 194:17-195:10 (Canfor did 

28 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 41 of 114 

not solicit bids from Arkema or Nouryon because the plant locations of these firms are too 

distant from Canfor’s British Columbia plants). 

100. Due to the location of Arkema’s plants, Arkema has no major direct customers in the 

Pacific Northwest, but may have minimal sales into the region via distributors. Myrick (Arkema) 

Hrg. Tr. 475:7-13, 476:6-17; . 

101. Nouryon does not solicit customers in the Pacific Northwest because these customers are 

too far away from Nouryon’s single plant in Columbus, Mississippi. 

I ; see also Radlinski (Nouryon) Hrg. Tr. 541:7-13. 

102. From 2016 to 2018, customers located in the Pacific Northwest purchased of 

their H2O2 volume from 

-

Evonik’s Gibbons plant, from PeroxyChem’s Prince G

-

eorge 

plant, and from Solvay’s Longview plant. J

-

X0075 (Rothman Rpt.) ¶ 102. 

V. THE ACQUISITION IS PRESUMPTIVELY UNLAWFUL 

103. Dr. Rothman calculated market shares using supplier’s sales (in dollars). JX0075 

(Rothman Rpt.) ¶ 110. Using these market shares, Dr. Rothman calculated HHIs for nonelectronics grade H2O2 in the Southern and Central United States and the Pacific Northwest. 

JX0075 (Rothman Rpt.) § V. Dr. Rothman’s calculations demonstrate that the Acquisition is 

presumptively unlawful for non-electronics grade H2O2 in both the Southern and Central United 

States and the Pacific Northwest. 

104. As a robustness check, Dr. Rothman also calculated HHIs for various alternate markets: 

(1) a product market consisting of only standard grade H2O2; (2) standard and specialty H2O2 

excluding pre-electronics grade; (3) separate geographic markets for the Southern United States, 

Central United States, and Western United States; and (4) the United States and North America 

as a whole. JX0075 (Rothman Rpt.) ¶¶ 112-13; PX7102 (Rothman Rebuttal Rpt.) ¶¶ 23-24. The 

results of each of these calculations satisfy the thresholds set forth in the Guidelines by which the 

29 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 42 of 114 

Acquisition is presumptively unlawful. 

105. The market shares used in Dr. Rothman’s HHI analysis are consistent with those found in 

inary course documents. An Evonik presentation prepared in 2018 shows that Evonik had the 

gest market share in North America, based on production capacity, in a highly concentrated 

rket. JX0132 (Evonik) at 006. A Solvay document shows similar market shares (based on 

acity) in North America with Evonik, the industry leader, at - and PeroxyChem at . 

0140 (Solvay) at 012. 

-

. Evonik also acknowledged that the Acquisition offers 

ortunities. PX1321 (Evonik) at 008. 

A. The Acquisition is Presumptively Unlawful in the Southern and Central United 

States 

. In the Southern and Central United States

Chem’s share is -

, Evonik’s share of non-electronics H2O2 is 

 and Peroxy ; the pre-merger HHI is 2,258. JX0075 (Rothman Rpt.) ¶ 

. Post-Acquisition, the combined firm would have a 49% share of sales of non-electronics 

O2 in the Southern and Central United States. Post-Acquisition, the HHI will be 3,335, an 

rease of 1,077. Id. ¶ 116. The Acquisition is presumptively illegal and likely to enhance 

rket power in the sale of non-electronics grade H2O2 in the Southern and Central United 

tes as the post-Acquisition HHI and change in HHI far exceed the thresholds outlined in the 

idelines. Rothman Hrg. Tr. 746:4-18. 

. Dr. Rothman conducted sensitivity tests that confirm that the Acquisition is also 

sumptively unlawful in the Southern and Central United States. Rothman Hrg. Tr. 800:25-

:16; JX0075 (Rothman Rpt.) ¶ 118. If the product market were to exclude pre-electronics 

de, as Defendants suggest, the post-Acquisition HHI would be 3,188 with a change in HHI of 

19, far in excess of the thresholds outlined in the Guidelines. PX7102 (Rothman Rebuttal 

ord

lar

ma

cap

JX

106

opp

107

111

H2

inc

ma

Sta

Gu

108

pre

802

gra

1,0

30 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 43 of 114 

Rpt.) ¶ 24. If the product market were to include only standard grade H2O2, the post-Acquisition 

HHI would be 3,056 with an increase of 788, again far in excess of the thresholds outlined in the 

Guidelines. Rothman Hrg. Tr. 800:25-801:14; JX0075 (Rothman Rpt.) ¶ 118. 

109. Dr. Rothman conducted additional sensitivity checks using alternate geographic markets 

defined separately as the Southern United States, Central United States, and Western United 

States. Rothman Hrg. Tr. 800:25-802:16; JX0075 (Rothman Rpt.) ¶ 118. In the Southern United 

States, the post-Acquisition HHI would be 3,153 with an increase of 967; in the Central United 

States, the post-Acquisition HHI would be 3,424 with an increase of 1,104; and in the Western 

United States, the post-Acquisition HHI would be 4,145 with a change in HHI of 1,317. 

Rothman Hrg. Tr. 799:7-19; JX0075 (Rothman Rpt.) Exh. 2-3. The Acquisition is also 

presumptively anticompetitive in the Southern, Central, and Western United States even if 

excluding pre-electronics grade H2O2. PX7102 (Rothman Rebuttal Rpt.) ¶ 48. 

B. The Acquisition is Presumptively Unlawful in the Pacific Nor

-

thwest 

110. In the Pacific No

Post-Acquisition, the combined firm would have 

-

rthwest, Evonik’s share of non-electronics H2O2 is and 

PeroxyChem’s share is ; the pre-Acquisition HHI is 3,344. JX0075 (Rothman Rpt.) ¶ 111. 

a les of non-ele

in the Pacific No

- market share of sa ctronics 

H2O2 rthwest. Post-Acquisition, the HHI will be 4,918, an increase of 1,573. 

JX0075 (Rothman Rpt.) ¶ 117. The Acquisition is presumptively illegal and likely to enhance 

market power in the non-electronics H2O2 market in the Pacific Northwest as the postAcquisition HHI and change in HHI far exceed the thresholds outlined in the Guidelines. 

Rothman Hrg. Tr. 746:11-18. 

111. The Acquisition is also presumptively unlawful in the Pacific Northwest using alternate 

product markets as a robustness check. If the product market were to exclude pre-electronics 

31 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 44 of 114 

grade, as defendants suggest, the post-Acquisition HHI would remain exactly the same (4,918 

with a change in HHI of 1,573) since there are no sales of pre-electronics H2O2 in the Pacific 

Northwest. PX7102 (Rothman Rebuttal Rpt.) ¶ 24. If the product market were to include only 

standard grade H2O2, it would result in, a post-Acquisition HHI of 4,918 and an increase of 

1,539, exceeding the thresholds outlined in the Guidelines. JX0075 (Rothman Rpt.) ¶ 118; 

Rothman Hrg. Tr. 801:18-802:10. 

VI. THE ACQUISITION INCREASES THE RISK OF COORDINATION 

112. Coordinated interaction is one means by which the Acquisition likely lessens competition 

substantially. Rothman Hrg. Tr. 760:15-24. A merger is likely to increase the risk of coordinated 

interaction if three conditions are met: (1) the merger significantly increases concentration in a 

concentrated market; (2) the market is vulnerable to coordination; and (3) the merger enhances 

that vulnerability. Id. at 747:20-748:6; see also Guidelines § 7.2. The markets for non-electronics 

H2O2 in the Southern and Central United States and in the Pacific Northwest exhibit these 

characteristics. Rothman Hrg. Tr. 749:4-7. 

A. The Markets for H2O2 Are Vulnerable to Coordination 

i. The Quantities of H2O2 that Customers Purchase Are Not Very Sensitive 

to Changes in Price 

113. Customers require H2O2 to produce their end-use products and are therefore unable to 

switch to another product, or reduce the amount of H2O2 used, in response to a price increase. 

Anderson (Canfor) Hrg. Tr. 191:20-192:6; Engram (USP) Hrg. 

Tr. 329:11-14; JX0056 (Goodchild (CHS) Dep. Tr. 111:4-20); JX0037 (Senechal (Resolute) 

Dep. Tr. 84:2-85:08); see also supra Section II. 

114. Overall, industry demand for H2O2 generally remains stable from year to year. See 

; ; 

32 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 45 of 114 

. 

115. Elasticity of demand is an economics term that describes the responsiveness of unit sales 

to changes in price. JX0075 (Rothman Rpt.) ¶ 63. Because the quantities of H2O2 that customers 

purchase are not very sensitive to changes in price, Dr. Rothman describes H2O2 as having a low 

elasticity of demand. Id. ¶¶ 68-69. 

116. Because the demand for H2O2 is not sensitive to fluctuations in price, H2O2 suppliers 

are largely competing for a “fixed pie” of sales. Rothman Hrg. Tr. 749:13-35. When suppliers 

compete for a fixed pie of sales, the “potential gains from avoiding aggressive competition for 

slices of the pie can be – can tend to be high.” Id. at 749:13-25. 

117. Dr. Hill did not calculate demand elasticity for any product in which to assess the 

competitive effect of the Acquisition, yet he acknowledges that the H2O2 market has features 

that tend to lead to lower elasticity of demand, which would tend to make a market more 

vulnerable to coordination. Hill Hrg. Tr. 2123:23-2124:11. 

ii. H2O2 Products Are Largely Undifferentiated 

118. Firms are better able to observe aggressive competition and respond to aggressive 

competition when their product offerings are similar. Rothman Hrg. Tr. 750:22-751:7. As many 

market participants testified, within any given end-use for H2O2, the product offerings of the 

five H2O2 suppliers are largely undifferentiated. 

(distributor selling across end uses); Niessner (GPI) Hrg. Tr. 1010:4-17 (pulp and paper 

customer); JX0033 (Maeder (Verso) Dep. Tr. 21:8-21:16) (pulp and paper customer); 

(food customer). While H2O2 is sold in different 

grades and concentrations, H2O2 is homogenous within each grade. Suter (Solvay) Hrg. Tr. 

408:19-409:21; JX0023 (Montag (PeroxyChem) IH Tr. 114:8-115:14). Customers generally do 

33 
not have to qualify H2O2 suppliers. 

-

119. Beca

; 

use H2O2 does not differ among suppliers, customers store H2O2 from different 

suppliers in the same storage tank. 

. Fmiher, customers 

incm minimal costs in switching from one supplier to another. 

I ("no, there would not be any costs associated [with switching suppliers] other than just the 

minor paperwork that's required to set up a new supplier at a new location."); JX0037 (Senechal 

(Resolute) Dep. Tr. 84:22-85:8); . When Evonik 

did not have H2O2 available to serve was able to use product 

obtained from PeroxyChem and Solvay. 

120. H2O2 suppliers acknowledge that H2O2 is an undifferentiated commodity. -

testified that the industry still rnns on "old school commodity" 

values. ("The 

space continues to 1un on old school commodity supply/demand and market share grab 

dynamics.") .• , in an email to the Canadian government, acknowledged that H2O2 "is a 

commodity product which in tum means we compete on price." 

iii. The H202 Market is Highly Transparent and Suppliers Closely Monitor 

Their Competitor's Behavior 

121. H2O2 suppliers can and do monitor each other's behavior closely, which contr·ibutes to 

fmns' ability to maintain discipline through detenence. Rothman Hrg. Tr. 7 53 :2-11. 

122. H202 suppliers maintain detailed information on customers, competitors, and bid 

;-

34 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 47 of 114 

events. Evonik maintains multiple databases tracking 

Corson (Evonik) Hrg. Tr. 617:4-16, 622:10-

15, 626:13-627:5; Costanzo (Evonik) Hrg. Tr. 1157:7-1158:16; JX0111 (Evonik) at 001-020; 

JX0083 (Evonik) at 017-21, 065-118; PX1003 (Evonik) at 001-02. 

123. Evonik also tracks the competitive activity of its rivals, including which customer 

accounts they won or lost, which supplier they competed against, and available volume. Corson 

(Evonik) Hrg. Tr. 617:4-16, 622:10-15, 626:13-627:5; Costanzo (Evonik) Hrg. Tr. 1157:7-

1158:16, 1162:8-21; JX0111 (Evonik) at 001-020; JX0083 (Evonik) at 017-21, 065-118; 

PX1003 (Evonik) at 001-02. 

124. In ordinary course documents, PeroxyChem also tracks demand trends, price trends, 

customer contract timing, and whether customers have switched suppliers. PX2330 

(PeroxyChem) at 006-07; JX0102 (PeroxyChem) at 003. 

125. The other H2O2 producers also track competition. For example, keeps a working 

file that tracks each supplier’s share and volume at each customer location. 

. testified that they draw on an 

array of sources to gather details about which of their competitors participate in bidding events. 

. 

126. H2O2 suppliers know their competitors’ production capacity. Evonik estimates the 

total H2O2 capacity of its competitors alongside the demand for H2O2 in North America. 

Costanzo (Evonik) Hrg. Tr. 1162:22-1163:12. PeroxyChem tracks its competitors’ capacity, 

including any plans to expand. PX2188 (PeroxyChem) at 007; PX2194 (PeroxyChem) at 007; 

PX2059 (PeroxyChem) at 003. 

35 
127. H202 suppliers know their competitors' production costs. The major production costs 

in producing H2O2 are natural gas and electricity. JX0028 (Hamann (Evonik) IH Tr. 138:19-

139: 10). Producers can therefore estimate their competitors' costs based on the local rates 

prevailing at the location of competitor plants. Id. 

testified that- is able to estimate total cash costs, including variable costs, at 

each H2O2 plant in North America based on publicly available inf01mation (about the cost of 

natural gas and electricity) and- own professional knowledge about the H2O2 industiy. 

; see also 

128. PeroxyChem's documents indicate that PeroxyChem also estimates production costs of 

its competitors. PX2344 (PeroxyChem) at 0 11-17; PX2084 (PeroxyChem) at 001. 

129. The RFP process provides H202 suppliers with market intelligence. H2O2 producers 

learn the volumes each customer requires when that customer issues their RFP or othe1wise 

solicits bids for their business. JX0018 (Kulp (Evonik) IH Tr. 65: 18-22); PX1075 (Evonik) at 

004-05; , which was sent to all five N011h American H2O2 

suppliers, showed projected annual 2020 volume for ); JX0019 (Bowen 

(PeroxyChem) IH Tr. 215:13-25); JX0026 (Dumas (PeroxyChem) IH Tr. 93:6-19). Through the 

bid process, producers also learn customer locations, delivery requirements, and a rough estimate 

of the pricing sought. JX0018 (Kulp (Evonik) IH Tr. 92:15-95:21). Following the bid process, 

customers may tell bidders which H2O2 suppliers submitted bids and which supplier ultimately 

won the business. JX0025 (Willis (PeroxyChem) IH Tr. 165-15-167: 19); 

; JX0034 (Kyte (Evonik) Dep. Tr. 117:11-18, 119:16-22). 

130. Customers provide suppliers with market intelligence. Evonik populates its databases 

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-

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 49 of 114 

with information learned from customers. JX0027 (Costanzo (Evonik) IH Tr. 74:17-75:3); 

JX0050 (Corson (Evonik) Dep. Tr. 112:9-113:4). PeroxyChem similarly learns competitive 

intelligence from its customers. JX0099 (PeroxyChem) at 002. Customers will frequently tell 

H2O2 suppliers when they have received a lower bid from one of their competitors. 

. While will not share the exact bid they received 

from another competitor, they will indicate whether a supplier’s pricing is competitive or not. 

. While IP will not provide its suppliers with the exact prices 

of their competitors, they will use the terms “green light,” “yellow light,” and “red light” to 

communicate whether pricing is acceptable, close to acceptable, or unacceptable, respectively. 

Shirley (IP) Hrg. Tr. 1923:22-1924:25. 

131. Distributors provide suppliers with market intelligence. Distributors regularly 

communicate with H2O2 suppliers regarding which other suppliers have bid for third-party 

business and the specific prices quoted. Dumas (PeroxyChem) Hrg. Tr. 269:18-270:11, 271:3-5; 

JX0027 (Costanzo (Evonik) IH Tr. 75:4-23); PX2115 (PeroxyChem) at 001; JX0133 (Evonik) at 

001. For example, a commercial manager for UNIVAR told Ms. Dumas, PeroxyChem’s Sales 

Account Manager for the Southeast, that Evonik was supplying UNIVAR’s Cincinnati location 

and confirmed Evonik’s price. Dumas (PeroxyChem) Hrg. Tr. 269:18-270:11; PX2247 

(PeroxyChem) at 001. Additionally, in early 2016, PeroxyChem attempted to raise prices by

 for UNIVAR’s into-stock H2O2, and when UNIVAR accepted the price increase, 

PeroxyChem was able to infer that Evonik had also raised UNIVAR’s into-stock prices. JX0032 

(Ball (PeroxyChem) Dep. Tr. 75:5-76:25). 

132. Industry publications provide producers with market intelligence. Industry 

publications such as IHS, Grant Thornton, and FisherSolve collect market information about the 

37 
Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 50 of 114 

H2O2 industry from suppliers then organize and publish that information. 

; JX0018 (Kulp (Evonik) IH Tr. 65:4-13). The information published includes 

supply and demand trends, pricing trends, and changes in contract terms such as length. PX1297 

(Evonik) at 001. Industry publications may also publish aggregate capacity and consumption 

figures, expansion plans, and details of corporate restructuring. JX0081 (IHS) at 016-19. For 

example, a December 2015 IHS report indicated that Solvay, PeroxyChem, and Evonik were all 

planning to pursue $0.05/lb increases in 2016. PX1297 (Evonik) at 001. H2O2 producers rely on 

these sources to understand the capacity utilization of the competitors, as well as to understand 

customer demand volumes and other details of customer operations. 

; ; JX0023 (Montag 

(PeroxyChem) IH Tr. 19:13-20:25); . 

133. Other third parties provide suppliers with market intelligence. Terminal operators 

and truck drivers, who often serve multiple H2O2 suppliers, will also provide suppliers with 

market intelligence. JX0018 (Kulp (Evonik) IH Tr. 63:24-65:3). 

iv. Suppliers Recognize Their Strategic Interdependence 

134. Firms can benefit from avoiding aggressive competition with one another, but doing so 

requires discipline. Discipline, in turn, can be enforced through deterrence, which is the 

expectation that aggressive competition will beget aggressive competition. Rothman Hrg. Tr. 

746:25-747:19. 

135. As Dr. Rothman testified, recognition of strategic interdependence is the “idea . . . that 

the firms understand that they are potentially better off if they can avoid getting [into] the things 

like price wars.” Rothman Hrg. Tr. 754:7-22. Documentary and testimonial evidence makes clear 

that H2O2 suppliers recognize their strategic interdependence, which increases a market’s 

38 
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vulnerability to coordinated conduct. JX0075 (Rothman Rpt.) ¶ 150. 

136. H2O2 suppliers prefer long-term stable relationships with customers and would 

prefer to retain existing customers rather than acquire new customers. As 

testified, H2O2 suppliers able to achieve an acceptable level of capacity utilization have less of 

an incentive to cut prices in an effort to grab share from competitors. 

.

 Evonik, too, prefers to have long-term stable relationship with customers. 

Corson (Evonik) Hrg. Tr. 651:13-21. In fact, Ms. Corson, Evonik’s Marketing Manager, testified 

that for Evonik’s 10 top customers, . Corson 

(Evonik) Hrg. Tr. 116:22-117:1. 

137. PeroxyChem’s executives recognize the risk that gaining a significant customer from a 

rival will cause the rival to compete more aggressively to make up for the lost volume. 

PeroxyChem’s EVP testified that 

see also id. at 84:6-85:24; PX2070 (PeroxyChem) at 002. This recognition 

impacts PeroxyChem’s incentives and willingness to compete for rivals’ customers; for example, 

in 2017, when considering whether to compete for a customer that was at the time supplied by 

Nouryon, PeroxyChem executives 

138. Evonik likewise recognized that taking a significant account from PeroxyChem would 

risk causing “ 

39 
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 PX1027 (Evonik) at 008. Evonik’s General Manager of 

the North American business acknowledged that this meant Evonik “would expect PeroxyChem 

to aggressively pursue other volume opportunities and if we weren’t we would not be prepared.” 

Costanzo (Evonik) Hrg. Tr. 1119:14. 

139. Executives from competitors testified to a similar strategy. See, e.g., 

. Testimony from is illustrative: 

Q. And in determining how to sell its capacity, does prefer to retain 

customers it already has or would it prefer to go win new customers? 

A. Typically, we would prefer to keep our customers that we already have. 

Q. And why is that? 

A. We have a relationship -- a commercial relationship with the customer. We 

know that our product works well with those customers. We know what the 

process is for supplying them and their needs -- specific needs that they may have. 

So for us, that is one good reason why that we want to 

maintain our existing customers. 

The other reason would be, when you take a new customer, you have to 

develop the same relationship. You have to understand their specs, and also, what 

their delivery requirements are. So that's a little bit more effort. 

And, finally, when you take somebody's other customer, you may have 

some sort of retaliation or reaction in the market at the next RFQ. 

Q. And if there's a response or retaliation in the market, 

what effect does that have on the market price? 

A. Typically, that could have a price that would usually 

lower the pricing into the market. 

(emphasis added); see also 

(“Typically we don’t prefer churn where we take a customer and 

we lose a customer and we take a customer because that typically will drive the price of the 

product down in the marketplace because there will be a reaction for what happens into the 

market”). 

140. H2O2 suppliers will decline to compete for rivals’ customers to avoid price wars: 

40
did not continue to pursue additional volume - to 

"avoid getting into a price war" with 

was pretty confident 

- was lower, so I was backing off to avoid getting into a price war."). Similarly, -

- email chain includes the following: "Once finds out they lost- I 

expect one more player getting aggressive." 

• UNIV AR: In 2016, a PeroxyChem sales manager escalated a pricing request from UNIV AR 

to Ms. Montag, PeroxyChem's Global Business Director, 

X2190 (PeroxyChem) at 001. Ms. 

Montag 

Id. FU1ther, in 2017, a PeroxyChem Sales Manager agreed to coordinate 

PeroxyChem's messaging with UNIV AR so as to avoid price competition with Evonik and 

risk dropping the customer's price "to the low end of the market." Dumas (PeroxyChem) 

Hrg. Tr. 273:23-274:23; PX2480 (PeroxyChem) at 001; see also PX2261 (PeroxyChem) at 

001-06 ( a PeroxyChem Sales Manager was disappointed to see that a representative from 

UNIV AR intended to play Evonik and PeroxyChem off one another to get lower prices). 

• - In 2017, tried to avoid a "small battle" over price with-

- in order to maintain its profit mai·gin. 

• - : In 2018,_ declined to bid on two mills because- did 

not want to "piss off'- · 

• declined to bid on an account in 

where- was the incumbent supplier. 

explained, "I don't 

41 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 53 of 114 
• -= 

think we should set a new low for this product and I think it's highly unlikely thawill let this go." 

In 2018, - considered bidding a "very high price" for-to "help 

- thinking they have a great deal in place" with their cmTent supplier. -

141. One- executive described their strategy for customers served by- as follows: 

"historically, we have tried to stay in touch with these accounts to get info1mation, but when it 

came to submitting bids we have said that we don't have product available to adequately service 

their needs." ; see also 

submitted a bid that "was so high to be unrealistic, so- didn't consider them to 

-

competitively bid"). - expressed similar reluctance to suppo1i a 

-

UNIV AR price request because it would 

v. The Markets Are Concentrated With Small Numbers of Competitors 

142. The H2O2 market is highly concentrated with a small number of competitors. See supra 

Section V. As Dr. Rothman explained, "maintaining discipline through deterrence is more 

straightfo1ward when there are fewer fums." Rothman Hrg. Tr. 750:20-21. 

vi. There is a Past History of Collusion and Conditions in the Market Have 

Not Changed Significantly Since the Period of Collusion 

143. There is a past history of collusion in the H202 market. In 2006, Evonik's 

predecessor, Degussa, entered into an antitmst leniency agreement with the Depaitment of 

Justice ("DOJ"). PX1293 (Evonik) at 003; PX1294 (Evonik) at 008-09. Degussa's coconspirators, Solvay and AkzoNobel (Nomyon's predecessor) entered guilty pleas for price 

fixing in the H2O2 market. PX9031 (DOJ) at 001-04; PX2348 (PeroxyChem) at 010-11 ; PX2347 

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(PeroxyChem) at 067. Following the guilty pleas in the DOJ’s criminal price fixing 

investigation, H2O2 customers filed nearly three dozen private class action lawsuits against all 

producers of H2O2 in the United States, alleging antitrust harm from the price fixing conspiracy. 

PX2328 (PeroxyChem) at 001; see also generally DX0413 (PeroxyChem). Degussa settled the 

class action for $21 million, and PeroxyChem’s predecessor, FMC, settled with direct purchaser 

plaintiffs for $10 million. PX9036 (Law360) at 001. Market conditions have not changed 

significantly since the period of express collusion. 

144. The H2O2 production plants are the same. No new plants have come online since the 

collusive period. JX0109 (Evonik) at 020; JX0022 (Ball (PeroxyChem) IH Tr. 168:9-11). 

145. The H2O2 producers are the same. To the extent the market has changed since 2006, 

there are even fewer firms producing H2O2 since Kemira exited North America in 2011 by 

selling its H2O2 plant to Evonik. Rothman Hrg. Tr. 755:8-18; PX9033 (Kemira) at 001-02; 

PX1277 (Evonik) 004; JX0081 (IHS) at 033. 

146. North American H2O2 capacity is roughly the same. IHS reports capacity remaining 

relatively consistent between 2000 and 2018. JX0109 (Evonik) at 019-20; JX0081 (IHS) at 016. 

The only example of capacity expansion over the last decade was Solvay’s expansion at 

Longview in 2016. JX0127 (Evonik) at 001; . While 

initially the expansion added additional capacity to the market, Solvay acknowledges that, since 

then, and . 

; JX0127 (Evonik) at 001; see also 

; infra Section IX.A. IHS also predicts that H2O2 capacity will remain the same at all 

H2O2 plants in North America. JX0081 (IHS) at 018. 

147. End-use applications for H2O2 are largely the same. Many of the end uses for H2O2 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 56 of 114 

today were present during the price fixing period. PX9031 (DOJ) at 002 (noting the following 

applications for H2O2: electronics, energy production, mining, cosmetics, food processing, 

textiles, and pulp and paper manufacturing). 

148. While there are some additional uses for H2O2 since the period of explicit price fixing, 

the majority of H2O2 sales continue to be of standard grade product. Rothman Hrg. Tr. 755:19-

756:4. In the period of express collusion, approximately 67% of H2O2 sales were standard grade 

while today 61% of H2O2 sales are standard grade. Id. 

149. H2O2 producers still make some public price increase announcements. H2O2 

producers occasionally make public price increases. A PeroxyChem document from 2016 noted 

that Solvay announced a $0.05/lb. price increase in North America and 

-

. PX2055 (Per

-

oxyChem) at 004. A

 executive also testified that he was aware of a price increase communicated to 

customers in 2018. . 

When the same firms issue public price announcements in Europe, they are closely monitored by 

rivals—when PeroxyChem received Evonik’s July 2018 European price increase announcement, 

a senior PeroxyChem executive 

 PX2420 (PeroxyChem) at 

001; see also PX2135 (PeroxyChem) at 001 ( 

); PX2140 (PeroxyChem) at 001 ( -

). 

150. There is a past history of collusion in Europe as well. The EC has twice found price 

fixing behavior in the H2O2 market in Europe, in 1984 and 2006. PX9032 (EC) at 001-03. 

PeroxyChem’s predecessor was found guilty of price fixing in 2006, while Evonik’s predecessor 

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received immunity for providing information about the behavior. Id. The participants in the price 

fixing conspiracy paid combined fines of over €338 million. Id. 

B. The Acquisition Would Increase the Risk of Coordination 

i. The Acquisition Would Reduce the Number of Competitors and 

Eliminate the Competitive Pressure From PeroxyChem 

151. As Dr. Rothman explained, reaching an explicit or tacit agreement is more 

straightforward among a smaller number of competitors. JX0075 (Rothman Rpt.) ¶ 175. This 

merger will eliminate PeroxyChem as an independent competitor and significantly increase 

concentration in already concentrated markets, thereby enhancing vulnerability to coordination. 

Rothman Hrg. Tr. 756:14-757:5; see also Hill Hrg. Tr. 2123:19-22. 

152. acknowledges that, “[t]he number of viable competitors impacts the pricing 

in a region. . . .” . Further, 

acknowledged that “the smaller the number of competitors, the more likely 

that lawful oligopoly results can be achieved.” . In a strategy 

presentation analyzing the Acquisition, acknowledged that the H2O2 market in the 

United States was oligopolistic. . 

153. An Evonik document prepared prior to its acquisition of Kemira’s Maitland plant 

acknowledges that the rationale behind the deal was to and 

 PX1488 (Evonik) at 046. Indeed, following the Maitland 

acquisition in 2011, Evonik successfully increased prices to customers between 

noting that there was PX1277 (Evonik) at 017. 

ii. The Acquisition Would Create a Market Leader 

154. Post-Acquisition, Evonik will be the largest producer of H2O2 in North America. JX0075 

(Rothman Rpt,) ¶¶ 178-82. Evonik will have more to gain from coordination and more to lose 

45 
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from a breakdown in coordination. JX0075 (Rothman Rpt.) ¶¶ 178-82. 

155. Evonik has historically maintained a strategy of prioritizing price over volume. 

Evonik JX0134 (Evonik) at 001. Mr. Costanzo 

testified that one of the key elements for Evonik’s competitive strategy is to 

 Costanzo (Evonik) Hrg. Tr. 1121:8-13. 

156. In a 2019 Evonik presentation, Evonik recognized that 

Id. 

. JX0129 (Evonik) at 037-

38. As Mr. Costanzo explained the analysis, “

 JX0027 (Costanzo 

(Evonik) IH Tr. 164:4-6, 164:123-125). 

157. Following the Maitland acquisition 2011, Evonik pursued a strategy, 

which led to PX1277 (Evonik) at 018. 

158. PeroxyChem’s strategy has been similar. A PeroxyChem presentation notes, 

 and that 

 PX2412 (PeroxyChem) at 002. Likewise a 

PeroxyChem executive testified that 

 JX0032 (Ball (PeroxyChem) Dep. Tr. 26:20-24. 

159. The industry recognizes that market leaders set price. During the price fixing 

litigation, acknowledged that, “as a market leader,” “was in a 

46 
 

 

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-

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position to exert unilateral price leadership when market conditions favored higher prices and 

margins.” . On a public earnings call, Solvay’s CEO observed that 

Solvay has “been able to increase our prices” and that she was “very, very glad to see that 

[Solvay is] leading the way. [Solvay is a] market leader[] and what market leaders do is that they 

go and they can increase prices whenever supply demand is tight and that is exactly what [the 

Solvay] team did.” PX9007 (Solvay) at 007. 

160. The remaining firms are more likely to follow Evonik than they are likely to act as 

disruptive competitors. While Dr. Hill testified that Nouryon is positioned to disrupt any 

potential coordination in the H2O2 industry, Hill Hrg. Tr. 2063:2-13, this contradicts 

Defendants’ prior advocacy to the FTC that suggested was the most likely maverick. 

PX0019 (Evonik) at 010. However, documentary and testimonial evidence shows that none of 

the remaining firms is likely to act as a disruptive competitor. 

161. documents note that the Acquisition “[m]ay lead to market stabilization 

opportunities,” , and “could have a silver lining on pricing,” 

. testified that would consider raising its price if it 

learned that all the other H2O2 suppliers were charging prices 5% higher than price. 

see also

 (“If we found that the market was going up by 5 percent across the board, we would 

have to seriously consider whether or not we would also raise our prices in order to get the most 

value for our produce based on the supply and demand.”). Finally, a third-party consultant 

retained by concluded that the Acquisition “would result in a price increase that would 

benefit to all players in the market.” . The consultant further found 

that the merged firm “should have an interest to behave rationally to get more synergies and 

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higher EBITDA. All competitors would benefit from this merger.” 

VII. THE MERGER WOULD SUBSTANTIALLY LESSEN HEAD-TO-HEAD 

COMPETITION 

162. The record shows that customers benefit from competition between Evonik and 

PeroxyChem in both the Southern and Central United States and in the Pacific Northwest. 

163. H2O2 customers typically use a combination of formal bidding and informal negotiation 

to source H2O2, through contracts of one to five years. JX0075 (Rothman Rpt.) ¶ 43; see also 

Maeder (Verso) Hrg. Tr. 141-15-18; JX0008 (Al-Pac Decl.) ¶ 10. Customers typically issue a 

RFP that outlines its H2O2 needs—concentration, purity, stability, volume, and delivery 

locations. JX0075 (Rothman Rpt.) ¶ 43; see also Maeder (Verso) Hrg. Tr. 140:7-141:14, 143:1-

24; . After customers receive bids, they 

may proceed with additional rounds of bidding and negotiation, where they try to play competing 

suppliers against each other to get the best deal possible. JX0075 (Rothman Rpt.) ¶ 43; see also 

Maeder (Verso) Hrg. Tr. 140:7-23; . When evaluating bids, 

customers consistently value price and security of supply above other factors. Maeder (Verso) 

Hrg. Tr. 143:1-146:2; . 

A. The Acquisition Would Substantially Lessen Competition in the Southern and 

Central United States 

i. Evonik and PeroxyChem Compete Across End Use Applications for 

H2O2 in the Southern and Central United States 

164. Evonik’s Mobile plant and PeroxyChem’s Bayport plant produce H2O2 to serve 

substantially the same end-use applications. Evonik’s Marketing Manager testified that

 of Evonik’s H2O2 production at the Mobile plant is a mix of standard and specialty 

grades sold into various non-pulp and paper end-use applications, including pre-electronics, 

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chemicals, environmental, textiles, food/aseptic, distribution, home and personal care, mining, 

and oil and gas. Corson (Evonik) Hrg. Tr. at 713:4-714:14; see also JX0083 (Evonik) at 016. The 

remaining H2O2 produced at Mobile is standard grade H2O2 sold to pulp and paper customers. 

Id. 

165. PeroxyChem’s Vice President of North America Operations testified that the Bayport 

plant can currently allocate a maximum of of its output to rectified product, the raw 

material for H2O2 used in specialty end-use applications, including food safety, cosmetic, 

environmental, and energy grades. Kramer (PeroxyChem) Hrg. Tr. 132:1-5, 134:3-135:4, 

137:22-138:8; see also PX2361 (PeroxyChem) at 032. The remaining of Bayport’s 

output is standard grade H2O2. Kramer (PeroxyChem) Hrg. Tr. 1632:1-5, 1634:3-1635:4, 

1637:22-1638:8. 

166. Dr. Hill admits that both PeroxyChem’s Bayport plant and Evonik’s Mobile plant make a 

significant amount of standard grade H2O2. Hill Hrg. Tr. 2193:21-2194:3. 

167. However, Evonik and PeroxyChem compete across grades. Testimony from both 

Evonik and PeroxyChem executives shows they compete against each other across a wide array 

of H2O2 end-use applications, including both standard and specialty grades. Lerner 

(PeroxyChem) Hrg. Tr. 1431:3-1432:5, 1455:2-18; PX2187 (PeroxyChem) at 040, 056, 061; 

Corson (Evonik) Hrg. Tr. 646:22-647:5; Montag (PeroxyChem) Hrg. Tr. 1552:6-17. In fact, 

Evonik’s General Manager for North America confirmed that 

Costanzo (Evonik) Hrg. Tr. 1186:19-1189:17; PX1055 (Evonik) at 001-02. 

Environmental Applications: Evonik and PeroxyChem compete against one another to 

supply customers with environmental grade H2O2. Corson (Evonik) Hrg. Tr. 611:2-6; 

49 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 62 of 114 

Montag (PeroxyChem) Hrg. Tr. 1558:9-15. In fact,

 Corson (Evonik) Hrg. Tr. 616:1-23; 

PX1342 (Evonik) at 065. 

x Chemical Synthesis: Evonik and PeroxyChem compete against each other for customers 

using H2O2 for chemical synthesis. PX2001 (PeroxyChem) at 001 (Galta); DX0636 

(PeroxyChem) at 015 (Chemours). 

x Cosmetic and Personal Care Applications: PeroxyChem considers Evonik a key 

competitor for customers using H2O2 for cosmetic applications. Dumas (PeroxyChem) Hrg. 

Tr. 231:16-232:9; PX2119 (PeroxyChem) at 002; 

( purchases from both suppliers). 

Distribution: PeroxyChem referred to Evonik as its “key competitor” for business at its 

distribution account UNIVAR. Dumas (PeroxyChem) Hrg. Tr. 234:1-13; PX2289 

(PeroxyChem) at 016. Ordinary course documents confirm that PeroxyChem competes 

against Evonik for business at UNIVAR both for UNIVAR’s stock locations and at thirdparty direct accounts, often resulting in lower prices. PX2309 (PeroxyChem) at 001; PX2221 

(PeroxyChem) at 001. 

168. While Defendants have pointed to a few of end-use applications where Evonik does not 

currently sell H2O2 in North America, see supra Section II.C, Evonik’s Marketing Manager 

admitted that developing new products and entering new markets “is definitely a big part of 

competition.” Corson (Evonik) Hrg. Tr. 706:25-707:1. For example, Evonik’s Marketing 

Manager concluded that aseptic packaging H2O2 

Id. at 603:13-16; JX0115 (Evonik) at 040, 042. Evonik will 

typically conduct a market study and consider entering any markets it sees growing. Corson 

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(Evonik) Hrg. Tr. 623:7-13. 

ii. Evonik and PeroxyChem are Close Competitors in the Southern and 

Central United States 

169. Evonik and PeroxyChem are close competitors, for many customers in the Southern and 

Central United States. , a pulp and paper customer, described Evonik and PeroxyChem as 

its “two primary suppliers.” another pulp 

and paper customer, sources its H2O2 from Evonik and PeroxyChem. . 

, a wastewater treatment customer, procures 70 percent of its H2O2 from Evonik and 

PeroxyChem. . 

170. Numerous customers across end-use applications have expressed concern over the loss of 

competition between Evonik and PeroxyChem in the Southern and Central United States. 

 (environmental customer testifying to a concern that the 

transaction will increase Evonik’s leverage in contract negotiations); ;

 (pulp and paper customer testifying that it is “concerned that a reduction 

in the number of available [H2O2] suppliers may lead to less competition in the [H2O2] 

market”); (pulp and paper customer testifying that it sees the 

Acquisition as “a reduction in the competitive field, which could impact ability to 

procure [H2O2] at competitive prices”); (pulp and paper customer 

expressing concern “that the proposed acquisition of PeroxyChem by Evonik could cause 

harmful competitive impacts to purchasers of [H2O2]”); (pulp and 

paper customer testifying that it is concerned “that the merger could result in higher prices in 

[H2O2] for ”); JX0006 (CHS Decl.) ¶ 12 (food customer expressing concern “that prices 

may increase due to a reduction in the number of [H2O2] producers”). 

iii. Evonik and PeroxyChem are Frequently the Two Lowest Bidders, and 

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Sometimes the Only Bidders, for Particular Customers 

171. In 2019 RFP, Evonik and PeroxyChem were the only two bidders for 

. . Evonik was the only 

supplier to bid on all five of the mills put out for bid; PeroxyChem bid on four mills and 

Solvay on two mills. . In 2017 RFP, Evonik and PeroxyChem were the 

two lowest bidders at four out of five of mills in the Southern and Central United States; 

at the fifth mill, Evonik was tied with Solvay for the second lowest price. 

. 

172. Evonik and PeroxyChem had the two lowest bids for 

during 2019 RFP. . did not consider Solvay’s bid 

for the mill to be competitive. (“[W]e got an offer, but it was so high 

to be unrealistic, so we didn’t consider them to competitively bid”); (noting 

that Solvay “is not even close” to Evonik or PeroxyChem). 

173. Evonik and PeroxyChem were the only two bidders for in 

2017. . 

174. PeroxyChem describes Evonik as a “key competitor” for business at distribution account 

UNIVAR. Dumas (PeroxChem) Hrg. Tr. 234:1-13; PX2289 (PeroxyChem) at 016. PeroxyChem 

and Evonik competed at UNIVAR’s Cincinnati, Ohio stock location. Dumas (PeroxyChem) Hrg. 

Tr. 269:18-270:8; PX2247 (PeroxyChem) at 001; 

. 

iv. Customers Have Benefited From Competition Between Evonik and 

PeroxyChem in the Form of Lower Prices 

175. Head-to-head competition between Evonik and PeroxyChem leads to lower prices for 

H2O2 customers in the Southern and Central United States. In fact, Defendants’ expert, Dr. Hill, 

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acknowledged that the North American H2O2 industry is competitive, and that customers are 

able to play suppliers off against one another to get lower prices. Hill Hrg. Tr. 2025:8-14. 

176. Customers in the Southern and Central United States testified that they use competitive 

bidding events to play H2O2 producers off of one other to achieve the lowest possible price. 

; ; 

. 

177. Examples of customers who have benefitted from head-to-head competition between 

Evonik and PeroxyChem include: 

x In 2017, saved more than $600,000 compared to its existing contract by 

negotiating with Evonik and PeroxyChem. 

(“The [H2O2 RFP] turned out to be much more competitive than expected, 

chiefly between the two incumbents of PeroxyChem and Evonik, resulting in a $613,000 in 

annualized savings.”); see also PX2002 (PeroxyChem) at 003 (citing “competitive bidding 

process” and noting “pricing declined about 10% from current pricing”). At its 

mill, switched from Evonik to PeroxyChem, resulting in an estimated 

$145,000 in savings. ; see also 

(PeroxyChem offers additional discounts to pick up mill previously supplied by Evonik). 

 used a competitive offer from Evonik to negotiate a lower price from PeroxyChem 

during its 2019 RFP for its mill. . 

benefited from having both Evonik and PeroxyChem quote this mill. 

x saved nearly $15,000 due to competitive bidding between Evonik and PeroxyChem at 

its mill in 2017. 

 (“PeroxyChem ceases to retain volume in because of noncompetitive pricing 

x

. 

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. . . .”). This marked a 22 percent price reduction. 

x Covidien: PeroxyChem rolled back a price increase at Covidien, a medical 

customer in Augusta, Georgia in early 2016 after learning through a distributor that the 

customer was threatening to switch to Evonik. Dumas (PeroxyChem) Hrg. Tr. 279:22-

289:11; PX2243 (PeroxyChem) at 001. 

x UNIVAR: PeroxyChem lowered its prices at two UNIVAR stock locations, in Houston, 

Texas, and City of Commerce, California to maintain business at those locations against 

competition from Evonik in late 2017 or early 2018. Montag (PeroxyChem) Hrg. Tr. 

1576:25-1577:10; PX2004 (PeroxyChem) at 007; PX2183 (PeroxyChem) at 006 

(“Competitive offers from Evonik to several UNIVAR locations have led us to offer reduced 

‘into stock’ prices to UNIVAR Commerce and Houston in order to maintain our majority 

share position.”). 

178. Defendants’ own executives recognize head-to-head competition between Evonik and 

PeroxyChem increases customers’ leverage. See Dumas (PeroxyChem) Hrg. Tr. 278:4-20 

(discussing email from UNIVAR suggesting they “play PeroxyChem versus Evonik”). 

v. Other H2O2 Suppliers Cannot Constrain a Post-Acquisition Evonik 

179. Nouryon is smaller than Evonik and PeroxyChem and does not pursue new H2O2 

customers. Nouryon testified that it is the smallest H2O2 producer in North America by both 

capacity and sales. Radlinski (Nouryon) Hrg. Tr. 538:7-15. Nouryon’s competitive strategy is to 

. Id. at 545:15-21 

Id. at 547:9-11. 

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180. Some customers in the Southern and Central United States do not consider Nouryon to be 

a major supplier. (environmental customer 

considers Nouryon “second tier” based on “limited supply network, limited material 

availability”); (“The major suppliers in the US market have been Evonik 

(Degussa), PeroxyChem, Solvay, and Arkema”). Other customers acknowledge that Nouryon is 

“not very well positioned” to serve certain mill locations, depending on geography.

 (Nouryon is better able to compete for a mill in than 

it is to serve a mill in ). 

181. H2O2 suppliers are operating at or near their capacity limitations in the Southern 

and Central United States. Solvay’s Deer Park, Texas production plant is currently operating 

above of its capacity. . 

182. . JX0046 (Myrick 

(Arkema) Dep. Tr. 68:19-21). Customers in the Southern and Central United States do not 

believe that Arkema has the capacity available to meet their needs. See 

 (environmental customer does not believe Arkema could supply enough material to 

bring the combined Evonik-PeroxyChem share of its business below 50 percent); 

 (“Arkema will not participate in business because they are sold out”). 

183. Ordinary course documents confirm that H2O2 suppliers see less available capacity in the 

market. (“It really appears that our three primary competitors are 

generally at capacity”). 

B. The Merger Would Substantially Lessen Competition in the Pacific Northwest 

i. Evonik and PeroxyChem are Each Other’s Closest Competitors for Many 

Customers in the Pacific Northwest 

184. Customers in the Pacific Northwest primarily purchase standard grade H2O2. The 

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Pacific Northwest is a major geographic center for the pulp and paper industry in North America. 

Corson (Evonik) Hrg. Tr. 637:23-638:24; JX0141 (UI) at 004. Pulp and paper customers 

purchase standard grade H2O2. Corson (Evonik) Hrg. Tr. 638:1-2; Dumas (PeroxyChem) Hrg. 

Tr. 224:8-10. Accordingly, the predominant grade of H2O2 sold into the Pacific Northwest is 

standard grade. JX0075 (Rothman Rpt.) ¶ 102; Kramer Hrg. Tr. 1680:1-3; JX0024 (Vashisht 

(Evonik) IH Tr. 21:4-12). In fact, 

. Lerner (PeroxyChem) Hrg. Tr. 1430:5-17; 

JX0024 (Vashisht (Evonik) IH Tr. 21:4-12). 

185. Defendants are significant competitors in the Pacific Northwest. Evonik and 

PeroxyChem executives testified that they have taken significant business from each other in this 

region. Lerner (PeroxyChem) Hrg. Tr. 1456:13-20 (PeroxyChem lost the large-volume Suncor 

account to Evonik), 1445:16-21 (competitive offers from Evonik at reduced 

PeroxyChem’s profitability in the region by ), 1446:10-17 (Evonik competed head to 

head with PeroxyChem at ); Corson (Evonik) Hrg. Tr. 648:22-649:1 

(Evonik has lost multiple top 10 customers to PeroxyChem, including a pulp and paper customer 

in Western Canada). 

186. Ordinary course documents confirm that Evonik and PeroxyChem compete directly at 

major accounts. PX2002 (PeroxyChem) at 003 (“Evonik was able to leverage their substantial 

majority position . . . to gain additional volume”); JX0098 

(PeroxyChem) at 008 (PeroxyChem and Evonik competed against each for business at 

). 

187. Third parties confirm that Defendants are close competitors in the Pacific 

Northwest. One pulp and paper customer in the Pacific Northwest, Canfor, has switched back 

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and forth between Evonik and PeroxyChem as their H2O2 supplier. Anderson (Canfor) Hrg. Tr. 

191:9-19. Other customers have split their H2O2 business between Evonik and PeroxyChem. 

JX0048 (Gilbertson (Al-Pac) Dep. Tr. 44:8-21); . 

188. Customers have expressed concern about the loss of competition in the Pacific Northwest 

due to the Acquisition. Anderson (Canfor) Hrg. Tr. 200:18-24 (the Acquisition would “reduce 

the number of players in the [H2O2] market,” which “would make it more challenging for 

[Canfor]”); JX0049 (Gilbertson (Al-Pac) Dep. Tr. 85:14-86:23) (“There wouldn’t be any 

competition, there would just be one supplier, and they would dictate the market price, and that 

would be that.”); JX0012 (Paper Excellence Decl.) ¶ 28 (“Based on recent sourcing exercises and 

contract negotiations, there is serious concern that if Evonik acquires PeroxyChem, it would lead 

to a lack of competition and increased prices.”). 

ii. Customers Have Benefited from Competition between Evonik and 

PeroxyChem 

189. Evonik and PeroxyChem are frequently the only two bidders for particular 

customers. Evonik and PeroxyChem were the only two bidders for three of Canfor’s four mills 

in its 2019 RFP. Anderson (Canfor Pulp) Hrg. Tr. 196:1-4. Likewise, Evonik and PeroxyChem 

were the only competitive bidders in 2016 RFP for three mills 

. . They were also the only two 

bidder’s for Al-Pac’s mill in 2012. JX0048 (Gilbertson (Al-Pac) Dep. Tr. 47:8-16). 

190. Competition between Evonik and PeroxyChem benefits customers in the Pacific 

Northwest. Canfor benefitted from competitive pressure from Evonik, which helped Canfor 

achieve savings in its 2019 RFP for its four mills. Anderson (Canfor) Hrg. Tr. 200:5-9. 

PeroxyChem executives concede that competition from Evonik constrained their ability to raise 

Canfor’s prices. Lerner (PeroxyChem) Hrg. Tr. 1445:9-15; PX2076 (PeroxyChem) at 032 ( 

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191. In 2019, Suncor switched H2O2 supply from PeroxyChem to Evonik. Montag 

(PeroxyChem) Hrg. Tr. 1559:25-1560:12. The switch occurred despite PeroxyChem not 

increasing Suncor’s prices given Evonik’s spare capacity in the region. Id. at 1560:13-18. 

192. In 2016, PeroxyChem lowered its pricing to by to retain the business 

against a competitive threat from Evonik. Lerner (PeroxyChem) Hrg. Tr. 1444:5-13; JX0023 

(Montag (PeroxyChem) IH Tr. 106:19-107:9); PX2000 (PeroxyChem) at 004 (“ price 

will be reduced by in 2 stages once a new contract is signed.”); PX2003 (PeroxyChem) at 

006 (“Evonik competitive at led to substantial price reduction”). 

193. In 2012, Al-Pac switched from a 50/50 split between PeroxyChem and Evonik to sole 

sourcing with Evonik and saved close to $1 million. JX0048 (Gilbertson (Al-Pac) Dep. Tr. 

97:13-98:3); JX0008 (Al-Pac Decl.) ¶¶ 10-11. 

194. Evonik and PeroxyChem both supply mills. 

. In 2018, PeroxyChem specifically targeted Evonik’s volume at , offering a lower 

price, PX2130 (PeroxyChem) at 002, and gaining share at Evonik’s expense. PX2120 

(PeroxyChem) at 008. 

iii. Other H2O2 Suppliers are Inferior Options 

195. Nouryon is a distant competitor. Nouryon’s General Manager testified that Nouryon 

has no customers in the Pacific Northwest and no plans to serve customers in the Pacific 

Northwest. Radlinski (Nouryon) Hrg. Tr. 541:14-542:3; see also JX0051 (Radlinski (Nouryon) 

Dep. Tr. 56:4-10 

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). Customers in the 

Pacific Northwest universally report that Nouryon has not bid on their business and would not be 

competitive due to freight costs. Anderson (Canfor) Hrg. Tr. 195:2-9; JX0048 (Gilbertson (AlPac) Dep. Tr. 82:8-83:9); . 

196. Arkema is a distant competitor. Arkema has no significant direct customers in the 

Pacific Northwest. Myrick (Arkema) Hrg. 476:6-17. Customers in the Pacific Northwest report 

that Arkema has not bid on their business and that Arkema would not be competitive due to 

distance. Anderson (Canfor) Hrg. Tr. 541:14-542:3; JX0048 (Gilbertson (Al-Pac) Dep. Tr. 82:8-

83:9); . 

197. Solvay cannot constrain a post-Aquisition Evonik. While Solvay will still be a 

competitive presence in the Pacific Northwest post-Acquisition, Solvay has declined to bid on 

major business in the Pacific Northwest during recent RFPs. See Anderson (Canfor) Hrg. Tr. 

195:14-196:5 (in Canfor’s 2019 RFP, Evonik and PeroxyChem submitted bids for all four of 

Canfor’s mills, while Solvay bid to supply one mill); 

(Solvay did not bid on mills during 2019 RFP). 

198. Some customers in the Pacific Northwest believe Solvay lacks capacity to meet their H2O2 

needs. Anderson (Canfor) Hrg. Tr. 78:13-17 (“Solvay didn’t have enough volume for all of our 

mills”); (“ learned from its discussions with 

Solvay that Solvay does not have enough volume to supply the mills.”). 

iv. Canadian Pacific Northwest Customers Sell into the United States 

199. Many of Defendants’ Canadian customers in the Pacific Northwest make substantial sales 

to the United States. See Anderson (Canfor) Hrg. Tr. 190:21-191:4 (approximately 30 percent of 

the pulp that Canfor produces is sold into the United States); JX0008 (Al-Pac Decl.) ¶ 3 

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(approximately 75 percent of Al-Pac’s customers are located in North America, and of those 

customers, nearly all are located in the United States); JX0012 (Paper Excellence Decl.) ¶ 3 

(Paper Excellence acquired Catalyst in 2019, and Catalyst’s mills sell extensively into the United 

States). These three customers alone account for approximately 25 percent of sales of H2O2 in 

the Canadian Pacific Northwest. PX7102 (Rothman Rebuttal Rpt.) ¶ 57 n. 56. 

C. Economic Analysis Confirms Likely Unilateral Effects in Both the Southern and 

Central United States and the Pacific Northwest 

i. Dr. Rothman’s Analysis Demonstrates that Elimination of Head-to-Head 

Competition will Lead to Price Increases 

200. To study the likely effect of the proposed merger, Dr. Rothman used two models of headto-head competition, one of which was the Gross Upward Pricing Pressure Index methodology 

(“GUPPI”). Rothman Hrg. Tr. 761:18-762:12; JX0075 (Rothman Rpt.) ¶ 191. The GUPPI is a 

standard methodology, which is discussed in the Guidelines and accepted by the antitrust 

agencies. Rothman Hrg. Tr. 762:1-17; JX0075 (Rothman Rpt.) ¶ 193. The GUPPI model predicts 

how the merger will change Evonik’s incentive to compete aggressively. Rothman Hrg. 762:18-

763:4. 

201. As described in detail in his reports and summarized in his testimony, Dr. Rothman 

performed the GUPPI analysis using multiple reasonable estimates of the necessary inputs to 

ensure the robustness of his results. JX0075 (Rothman Rpt.) ¶¶ 196-206; Rothman Hrg. Tr. 

767:24-768:6. Across all the input estimates he analyzed, Dr. Rothman found that the GUPPI for 

H2O2 are well above zero, confirming that the merged firm will have strong incentives to raise 

prices. JX0075 (Rothman Rpt.) ¶¶ 214-15. 

202. When combined with a reasonable estimate of the rate at which H2O2 suppliers pass 

through cost changes into prices. Dr. Rothman’s GUPPI model implies the merger will lead to 

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customer harm of $14.5 million to $15.2 million per year in the Southern and Central United 

States. Rothman Hrg. Tr. 771:20-25; JX0075 (Rothman Rpt.) ¶ 211. 

203. Similarly, the GUPPI model combined with a pass-through rate implies that the merger 

will lead to customer harm in the Pacific Northwest ranging from $11.6 million to $13.1 million 

per year. Rothman Hrg. Tr. 771:20-25; JX0075 (Rothman Rpt.) ¶ 215. 

ii. Dr. Rothman’s Second-Score Procurement Model Demonstrates that 

Post-Acquisition Prices Will Increase 

204. Dr. Rothman also employed a second-score procurement model, which has been accepted 

by the antitrust agencies and the courts, and is generally described in the Guidelines. Rothman 

Hrg. Tr. 769:16-21. The second-score procurement model quantifies the magnitude of likely 

competitive harm without the need for additional assumptions about the pass-through rate. 

Rothman Hrg. Tr. 769:11-15. 

205. As described in detail in his reports and summarized in his testimony, Dr. Rothman 

employed the second-score procurement model to measure the effect that the Acquisition would 

have on the pricing of H2O2 in the Southern and Central United States and the Pacific 

Northwest. JX0075 (Rothman Rpt.) ¶¶ 229-251; PX7102 (Rothman Rebuttal Rpt.) ¶¶ 118, 122-

131; Rothman Hrg. Tr. 768:7-771:25. 

206. The second score procurement model predicts that the loss of head-to-head competition 

between Evonik and PeroxyChem in the Southern and Central United States would cause prices 

to rise by approximately 12 percent, resulting in harm of $13.3 million to $14.1 million per year. 

JX0075 (Rothman Rpt.) ¶ 241. 

207. The second score procurement model predicts the loss of head-to-head competition 

between Evonik and PeroxyChem in the Pacific Northwest would cause prices to rise by 17-29 

percent, resulting in harm of $11.6 million to $ 19.3 million per year. JX0075 (Rothman Rpt.) ¶ 

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243. 

iii. Dr. Hill’s Relative Distance Model is Ad-Hoc and Unreliable, and Cannot 

Measure the Effect of the Acquisition on H2O2 Pricing 

208. Dr. Hill used a regression analysis to model the relationship between the price that a 

customer pays for H2O2 and the locations of its actual and potential suppliers, and then 

attempted to infer the likely effects of the Acquisition from the estimates produced by that 

regression. Hill Hrg. Tr. 2033:1-2035:23; JX0066 (Hill Rpt.) ¶ 132. However, this “relativedistance model” cannot reliably predict the effects of the Acquisition because it dramatically 

oversimplifies the manner in which customers select suppliers, causing it to make incorrect 

predictions about the frequency that Evonik and PeroxyChem will be customers’ top alternatives. 

PX7102 (Rothman Rebuttal Rpt.) ¶¶ 102-114. 

209. Dr. Rothman and Dr. Hill agree that the key question regarding the extent of unilateral 

harm from the Acquisition is identifying the proportion of customers that consider Evonik and 

PeroxyChem to be their two best alternatives. PX7102 (Rothman Rebuttal Rpt.) ¶ 110; Hill Hrg. 

Tr. 2038:19-2039:8. Furthermore, Dr. Rothman and Dr. Hill agree that numerous factors, 

including distance, influence a customer’s selection of a supplier. PX7102 (Rothman Rebuttal 

Rpt.) ¶ 110; JX0066 (Hill Rpt.) ¶ 120. 

210. However, the only way the Acquisition changes customers’ rankings of suppliers in Dr. 

Hill’s relative distance model is through the relative distance variables. Hill Hrg. Tr. 2038:19-24. 

This approach is ad hoc and unreliable—Dr. Hill is assuming that after a customer has chosen its 

given supplier, its ranking of remaining suppliers is determined entirely by distance. PX7102 

(Rothman Rebuttal Rpt.) ¶¶ 105, 110; Rothman Hrg. Tr. 772:25-773:22. 

211. While Dr. Rothman agrees with Dr. Hill that distance is important to customer choice, it 

is certainly not deterministic. Rothman Hrg. Tr. 773:19-774:4; see also Hill Hrg. Tr. 2036:17-

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2037:7. The evidence shows that suppliers can be competitive for customers even when they are 

far away, and even when multiple rivals may be closer. PX7102 (Rothman Rebuttal Rpt.) ¶¶ 

106-109. The approach of focusing so heavily on distance as a determinant of supplier choice 

leads Dr. Hill to dramatically understate the likelihood that customers view Evonik and 

PeroxyChem as their two best alternatives, and hence dramatically understate the unilateral harm 

that would be caused by the Acquisition. PX7102 (Rothman Rebuttal Rpt.) ¶¶ 110. By contrast, 

Dr. Rothman employs two distinct approaches—one with diversion proportional to market share, 

and one estimating demand (including the effect of distance) directly via a multinomial logit 

choice model—to calculate the proportion of customers who view Evonik and PeroxyChem as 

their top two choices. JX0075 (Rothman Rpt.) ¶¶ 235-238. 

212. Dr. Hill’s relative distance model suffers from additional flaws, because his model does 

not incorporate any variable cost information for any supplier aside from Evonik and 

PeroxyChem. Hill Hrg. Tr. 2206:14-17. Further, Dr. Hill’s relative distance model does not make 

any attempt to model or predict any post-Acquisition price increases that might arise from 

coordinated effects, or from unilateral effects. See JX0066-078 (Hill Rpt.) ¶ 160 (Dr. Hill’s 

“relative distance” model makes price predictions without “accounting for any merger-specific 

increase in prices”). 

iv. Dr. Hill’s Bidding Analysis in Unreliable and Cannot Measure the 

Closeness of Competition Between Evonik and PeroxyChem 

213. Dr. Hill also attempted to analyze bidding data to study the Acquisition’s likely effect on 

prices. JX0066 (Hill Rpt.) ¶ 163. The numerous ways in which Dr. Hill misrepresented some of 

the bidding events in this analysis are addressed in Dr. Rothman’s Reply Report. PX7102 

(Rothman Rebuttal Rpt.) ¶¶ 115-16. 

214. Dr. Hill considered bid data for just five customers and 25 bidding events that account for 

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approximately 10 percent of sales in the United States. Hill Hrg. Tr. 2204:23-2205:8; PX7102 

(Rothman Rebuttal Rpt.) ¶ 115. While most of Dr. Hill’s sample of five customers are large 

customers, Dr. Hill made no effort to account for this when predicting average harm to all 

customers in the Southern and Central United States (most of which are not large “powerful 

buyers”). Hill Hrg. Tr. 2205:9-19. 

215. A number of these bidding events occurred outside of the relevant market in the Southern 

and Central United States, including customers in Tacoma, Washington; Androscoggin, Maine; 

and Ticonderoga, New York. In all three instances, Dr. Hill found zero harm, which reduced the 

average harm he calculated for the customer locations that are actually in the Southern and 

Central United States. Hill Hrg. Tr. 2199:5-2200:23, 2201:20-2202:2. 

216. Finally, Dr. Hill’s bidding analysis did not address how often PeroxyChem lowered its 

price in response to competition from Evonik and retained the business. Hill Hrg. Tr. at 2197:16-

22. Nor did Dr. Hill conduct any analysis of the volume of product on which PeroxyChem cut its 

prices in order to retain business in response to competition from Evonik. Id. at 2197:23-2198:4. 

VIII. UI’S PURCHASE OF PRINCE GEOGRE WILL NOT SUFFICIENTLY 

REMEDY THE LOSS OF COMPETITION IN THE PACIFIC NORTHWEST 

217. UI agreed to purchase PeroxyChem’s Prince George plant, pursuant to a Share Purchase 

Agreement executed on August 11, 2019, if Evonik succeeded in acquiring PeroxyChem. 

Cummins (UI) Hrg. Tr. 1862:15-1863:6, 1906:25-1907:13; see also generally JX0147 (UI); 

PX1518 (Evonik). 

218. UI employs Jonathan Cummins as the Vice President of Manufacturing for the Americas, 

and he is UI’s most senior employee located in the United States. Cummins (UI) Hrg. Tr. 

1721:6-10, 1722:22-24. Mr. Cummins reports to the CEO of UI. Id. at 1722:25-1723:1. UI 

designated Mr. Cummins to testify as its corporate representative on UI’s decision to purchase 

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the Prince George business. Id. at 1777:18-22; PX5039 (FTC) at 008; JX0058 (Cummins (UI) 

Dep. Tr. 25:13-26:4, 116:10-117:5). 

A. UI Lacks Relevant Experience in the Production and Sale of H2O2 

219. UI used to produce H2O2 in Germany, but stopped producing H2O2 anywhere in the 

world around the end of World War II. Cummins (UI) Hrg. Tr. 1897:21-1898:4. UI completed its 

acquisition of a single H2O2 plant located in Turkey in the middle of August 2019. Id at 

1737:23-25. The Turkish H2O2 plant is the only H2O2 business UI operates anywhere. Id. at 

1897:8-12. Prior to this acquisition, UI has no experience producing H2O2 since the end of 

World War II. Id. at 1898:5-12. 

220. UI has never produced H2O2 in North America. Cummins (UI) Hrg. Tr. 1897:5-7. UI 

currently sells organic peroxides and persulfates in North America, and H2O2 is neither an 

organic peroxide nor a persulfate. Id. at 1796:17-25. UI’s North American sales team includes 

ten to twelve people, but none of them has ever sold H2O2. Id. at 1896:24-1897:4. 

221. Mr. Cummins has limited experience with H2O2 manufacturing. He worked on shipping, 

receiving, and stabilizing H2O2 at AkzoNobel from 2000 to 2001.4 Cummins (UI) Hrg. Tr. 

1894:5-19. He was not involved with H2O2 from 2001 to 2003. Id. at 1894:20-22. Starting in 

2003, Mr. Cummins divided his attention between H2O2 and sodium chlorate manufacturing. Id. 

at 1894:23-1895:1. Mr. Cummins’ last experience with H2O2 ended in 2010, id. at 1895:5-7, and 

he has no experience in H2O2 sales. Id. at 1895:5-2. 

222. The only experience anyone at UI has with the sale or marketing of H2O2 relates solely 

to the recent Turkish acquisition. Cummins (UI) Hrg. Tr. at 1897:13-17. There is no evidence of 

any shipments of H2O2 from the Turkish plant to any customer in North America. Id. at 

4 AkzoNobel is now Nouryon, the smallest H2O2 producer in North America. See supra Section 

IV. 

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1898:23-1899:1. 

. Id. at 1889:14-1900:3; JX0058 

(Cummins (UI) Dep. Tr. 150:24-151:5). 

B. UI Agreed to Purchase Prince George Without Sufficient Due Diligence 

223. UI first learned of the Prince George opportunity in . Cummins (UI) Hrg. 

Tr. 1777:23-1778:1. UI began due diligence after its CEO signed a non-disclosure agreement on 

. PX2504 (PeroxyChem) at 001; Cummins (UI) Hrg. Tr. 1780:1-16. At this time, 

UI had PX2504 (PeroxyChem) 

at 001; Cummins (UI) Hrg. Tr. 1780:17-1781:3. UI submitted a final offer letter for Prince 

George on . PX1515 (Evonik) at 002-056; Cummins (UI) Hrg. Tr. 1783:22-25. UI, 

Evonik and PeroxyChem executed the Share Purchase Agreement for the purchase of Prince 

George as of . JX0147 (UI) at 001-105; Cummins (UI) Hrg. Tr. 1784:1-3. This 

was approximately after UI’s CEO said 

. Cummins (UI) Hrg. Tr. 1784:4-10. 

224. Mr. Cummins recommended that UI purchase the Prince George plant. Cummins (UI) 

Hrg. Tr. at 1748:17-24, 1777:3-10. The basis for his recommendation was 

Id. at 1748:25-

1749:5, 1777:11-17. However, 

. JX0058 (Cummins (UI) Dep. Tr. 114:7-9). 

225. 

. Cummins (UI) Hrg. Tr. at 1795:12-16. 

. Id. at 1749:10-

16, 1785:24-1786:7; JX0142 (UI) at 001-36; JX0146 (UI) at 001-26. 

66 
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226. 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 79 of 114 

. Cummins (UI) Hrg. Tr. 1781:7-17. 

. Id. at 109:18-23. 

 JX0146 (UI) at 003. 

. Id. at 1781:18-23. 

Id. at 1782:13-14, 1783:15-16. 

227.

228. 

. Cummins (UI) Hrg. Tr. 1874:19-21. 

. JX0142 at 002-03; Cummins (UI) Hrg. Tr. 1787:25-

1788:6, 1789:17-21, 1790:1-6. 

. PX1515 at 002; Cummins (UI) Hrg. Tr. 1790:11-13. 

C. Serious and Substantial Questions Remain as to Prince George’s Viability 

229. Prince George is losing its largest and most profitable customer. In the second half of 

2019, Prince George’s will lose its single largest customer—Suncor. Cummins (UI) Hrg. Tr. 

1804:12-18, 1805:11-14. Suncor was Prince George’s highest profit margin customer and 

comprised of Prince George’s revenues in 2019. JX0141 (UI) at 017; Cummins (UI) Hrg. 

Tr. 1785:3-10, 1807:3-7. Evonik will now supply Suncor with H2O2. JX0141 (UI) at 055; 

Lerner (PeroxyChem) Hrg. Tr. 1431:19-25. 

 Prince George would be able to replace 

the lost Suncor volume. Cummins (UI) Hrg. Tr. 1809:15-1810:3. 

230. is not joining UI should UI obtain the Prince George business. 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 80 of 114 

Cummins testified 

. Cummins (UI) Hrg. Tr. 1823:22-25. However, 

 will not be joining UI if it acquires Prince George. 

; Cummins (UI) Hrg. Tr. 1831:17-25. 

 PX1515 (UI) at 004. Mr. Cummins offered no basis to disagree 

with UI’s CEO and CFO’s assessment of . Cummins (UI) Hrg. Tr. 1905:4-7. 

. Id. at 1832:1-5; see also PX1519 (UI) at 001. 

231. will transfer to UI if it acquires 

Prince George, 

 PX1515 (UI) at 003; Cummins (UI) Hrg. Tr. 1767:15-17. 

232. UI expressly stated that 

. 

PX1515 (UI) at 003. Mr. Cummins offered no basis for disagreeing with the statement 

. Cummins 

(UI) Hrg. Tr. 1829:5-12. 

68 
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233. 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 81 of 114 

raise concerns about UI’s ability to maintain or win customers following 

acquisition of Prince George. 

039-040. 

. JX0147 (UI) at 038, 

234. 

Cummins (UI) Hrg. Tr. 1864:19-1866:5. 

. JX0147 (UI) at 057; 

235. 

JX0147 (UI) at 058. 

D. UI Has No Concrete Business Plans for Prince George 

236. 

1891:1. 

. Cummins (UI) Hrg. Tr. 1890:16-

. Id. at 

1891:2-24. 

. Id. at 

1891:25-1892:10. 

69 
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237. 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 82 of 114 

. Cummins (UI) Hrg. Tr. at 1804:1-9. 

238. . Cummins (UI) Hrg. Tr. at 1823:10-13. 

. 

Id. at 1892:11-16. 

239. . 

Cummins (UI) Hrg. Tr. at 1892:17-20. 

240. . Id. at 1812:2-

1820:8. 

. Id. at 1817:16-20. 

. Id. at 1816:13-23. 

, see supra 

Section III.A, and . 

Cummins (UI) Hrg. Tr. 1818:8-18. 

. Id. at 1819:6-8. 

E. UI Has Ongoing Commercial Relationships With Evonik and PeroxyChem 

241. Evonik and UI both derive from the same predecessor company, Degussa. Cummins (UI) 

Hrg. Tr. 1741:20-25. UI and Evonik continue to have commercial relationships, including buying 

products from one another. Id. at 1742:8-10, 1774:22-1775:3, 1775:10-12. UI’s sales to Evonik 

are worth to UI. Id. at 1775:10-18. UI also has ongoing commercial 

relationships with PeroxyChem. Id. at 1742:21-23. 

242. Additionally, UI 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 83 of 114 

Cummins (UI) Hrg. Tr. at 1775:24-1776:2. 

Id. at 1776:3-5. 

Id. at 1776:6-9. 

. Id. at 1776:10-20. 

F. UI Is Purchasing Prince George for Well Below Fair Value 

243. UI engaged , an investment bank with expertise in pricing and valuing assets and 

advising companies on mergers and acquisitions, to advise it in connection with the Prince 

George transaction. Cummins (UI) Hrg. Tr. 1792:25-1793:12. 

 JX0146 (UI) at 004; Cummins (UI) Hrg. Tr. 1761:14-22. 

244. 

. 

Cummins (UI) Hrg. Tr. 1877:13-1878:20; JX0058 (Cummins (UI) Dep. Tr. 221:19-222:2). Mr. 

Cummins admitted that he does not have any basis to disagree with the work did in 

producing the summary valuation assessment. Cummins (UI) Hrg. Tr. 1885:23-1886:9. 

245. UI has agreed to pay for Prince George, less other amounts specified in the 

Share Purchase Agreement. JX0147 (UI) at 017. 

. Cummins (UI) Hrg. Tr. 1893:4-10. 

G. Other Bidders for the Prince George Business Declined Due to Risk 

246. declined Evonik’s invitation to submit a bid for the Prince George plant. 

71 
 

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-

-  

-

- -

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 84 of 114 

. A executive testified that the company 

declined to bid because “there were too many risks that were involved with the business . . .” 

including the loss of Suncor. . concluded “it would be very difficult” 

to make up the business lost at Suncor in the near term. Id. at 552:8-17. Even with these risks 

attached, however, internal valuation of Prince George placed the plant’s value at 

. . 

IX. DEFENDANTS FAILED TO REBUT THE STRONG PRESUMPTION OF 

ILLEGALITY 

A. Entry and Expansion Are Unlikely to be Timely, Likely and Sufficient to 

Mitigate the Anticompetitive Effect of the Acquisition 

247. Dr. Rothman concluded that de novo entry of a new H2O2 firm would not be timely, 

likely or sufficient to mitigate the effect of the Acquisition. Rothman Hrg. Tr. 776:22-777:3; 

JX0075 (Rothman Rpt.) ¶ 255. Similarly, Dr. Rothman concluded that expansion by the current 

suppliers of H2O2 would be unlikely to mitigate the anticompetitive effects of the Acquisition. 

Rothman Hrg. Tr. 778:3-6; JX0075 (Rothman Rpt.) ¶ 262. 

248. The prospect of new entry in North America is remote. A new entrant would need to 

build at least one H2O2 plant to compete in the Southern and Central United States or the Pacific 

Northwest. Building a new H2O2 plant would take an investment of upwards of $100 million. 

Rothman Hrg. Tr. 777:10-13. Evonik estimates that the cost of building a new production plant 

would be approximately million per metric tons of annual H2O2 capacity, not 

including the cost of land and infrastructure. PX0002 (Evonik) at 030. Likewise, PeroxyChem 

estimates that the replacement cost of its Prince George plant is and its Bayport plant 

million. JX0077 (PeroxyChem) at 014. Other market participants make similar assessments. See

 (“My understanding is that building a new [H2O2] plant would be 

72 
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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 85 of 114 

very capital intensive.”); (“I estimate that the addition of another 

line would cost $1-1.2 million per 1,000 metric tons of additional expansion.”). Further, building 

a new production plant would take several years. Rothman Hrg. Tr. 777:14-17; PX0002 (Evonik) 

at 030; JX0077 (PeroxyChem) at 014. There has been no new entry in North America since the 

1990s. JX0018 (Kulp (Evonik) IH Tr. at 150:19-22); JX0025 (Willis (PeroxyChem) IH Tr. 

179:12-180:6); JX0075 (Rothman Rpt.) ¶ 256. 

249. Customers are unlikely to vertically integrate. While H2O2 is an important product for 

customers, it represents a relatively small portion of their overall spending. Rothman Hrg. Tr. 

780:2-12; JX0075 (Rothman Rpt.) ¶¶ 259-60; Maeder (Verso) Hrg. Tr. 138:23-139:1 (H2O2 

accounts for less than five percent of Verso’s spend); Niessner (GPI) Hrg. Tr. 1007:19-23 (H2O2 

accounts for less than two percent of GPI’s total chemical spend). As a result, it is unlikely that 

customers would be willing to make the necessary investments of time and capital to construct a 

H2O2 plant. See, e.g., ( “has never 

considered producing its own [H2O2]”); (“I understand 

that conducted research into buying a small-scale [H2O2] satellite plant, 

located at a mill, but that the investment required for even a small plant was estimated at 

approximately $15 million. would not consider this investment unless [H2O2] 

was no longer available from domestic suppliers.”); 

(vertical integration in the North American market is not likely to be viable). 

250. H2O2 production in North America has expanded minimally over the last decade. 

According to IHS, North American production of H2O2 has varied little since around 2000. 

JX0081 (IHS) at 019-21, 034. 

251. The only expansion within the last decade was in 2016, when Solvay expanded capacity 

73 
at its Longview, Washington plant. 

Suter (Solvay) 

Hrg. Tr. 442:20-443:3. However, 

Suter (Solvay) Hrg. Tr. 443:18-444:1 ; JX0118 (Evonik) at 

003. 

- Suter (Solvay) Hrg. Tr. 444:2-4. 

252. Aside from the Longview expansion, the only H2O2 capacity expansion has been the 

-

result of debottlenecking efforts. JX0102 (PeroxyChem) at 003; 

253. None of the major North American suppliers of H202 have plans to expand H202 

capacity. - has no plans to build a new plant or to do any major capital expansions . 

. Similarly, - has no plans to expand capacity I 

6. - has no plans to expand its capacity 

. While - could engage in debottlenecking 

effo1ts, this would increase- capacity by- at most. 

254. Expanding capacity would be costly and time consuming, and a supplier would be 

unlikely to recover the investment at current prices. Any expansion effo1ts would cost 

suppliers " in the double digit millions." Rothman Hrg. Tr. 779:15-23. Solvay's Longview 

expansion provides a prime example of this costliness: Solvay invested approximately $23 

million to increase Longview's capacity by 20 percent. JX0077 (PeroxyChem) at 014;-

. Fmther, expansions of existing plants take years. Rothman Hrg. 779:24-780:1; 

255. notes that the H2O2 market has no need for additional capacity 

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-

- -

-

I 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 87 of 114 

and that an additional plant will bring prices down. . Likewise, an

 document advises against expanding capacity at because demand is 

unlikely to increase beyond the industry’s current capacity. . 

 does not believe that current capacity 

warrants expansion at any plant in North America. 

. A study commissioned by similarly concluded that capacity expansion by Evonik, 

post-Acquisition would be unlikely at current prices. 

256. There is no evidence of imports. Due to freight and logistics costs, imports of H2O2 are 

very rare and industry participants do not view imports as a competitive threat. Costanzo 

(Evonik) Hrg. Tr. 1106:25-1107:23; Maeder (Verso) Hrg. Tr. 147:2-10; JX0025 (Willis 

(PeroxyChem) IH Tr. 181:12-18); ; JX0002 

(RYAM Decl.) ¶ 8; ; JX0005 (Arkema Decl.) ¶ 9; 

; JX0007 (Canfor Decl.) ¶ 6; JX0009 (Nouryon Decl.) ¶ 10. 

257. There is recent history of market participants exiting, not entering, the H2O2 

market. In 2011, Kemira exited the H2O2 market by selling its Maitland plant to Evonik. 

JX0077 (PeroxyChem) at 039. Similarly, PeroxyChem closed a H2O2 production facility in 

South Charleston, West Virginia in the late 1990s. JX0018 (Kulp (Evonik) IH Tr. 151:5-13). In 

2009, PeroxyChem closed a plant located in Santa Clara, Mexico, which had a capacity of 

approximately million pounds per year. JX0032 (Ball (PeroxyChem) Dep. Tr. 8:5-9:10). 

258. Solugen, a small, specialty chemicals company in Houston, Texas, in unlikely to be a 

viable option for many customers. Solugen produces virtually no H2O2 for sale today. JX0057 

(Chakrabarti (Solugen) Dep. Tr. 9:23-25, 31:6-32:18 85:6-11). In fact, Solugen currently 

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purchases H2O2 from Arkema to resell to customers. Id. at 19:3-20:11, 21:25-22:20. At most, 

Solugen believes it might be able to produce as much as 30 metric tons by 2024, which 

Solugen’s CEO testified was “very optimistic.” Id. at 121:18-123:18. This is less than 

PeroxyChem’s Prince George facility, the smallest H2O2 facility in North America, which 

produces metric tons annually. JX0077 (PeroxyChem) at 016. Therefore, even if 

Solugen’s full plans comes to fruition without delay, Solugen will continue to be a very small 

producer of H2O2 for the foreseeable future. JX0057 (Chakrabarti (Solugen) Dep. Tr. 106:14-

107:5). Further, PeroxyChem’s Global Business director evaluated Solugen as follows: 

 PX2342 (PeroxyChem) at 002. 

Similarly, one Evonik executive was not even aware of whether Solugen produced H2O2 in 

North America. JX0028 (Hamann (Evonik) IH Tr. 127:24-128:13). 

B. Efficiency Claims Are Insufficient to Offset the Competitive Harm From the 

Acquisition 

259. Defendant’s efficiencies arguments are speculative and unsubstantiated. Evonik 

executives admit that the efficiencies estimates for this Acquisition were done at a very high 

level, without a great deal of analysis. Rettig (Evonik) Hrg. Tr. 1054:14-1055:6; 

. Indeed, in an Evonik document, one Evonik executive admits 

some of the projected efficiencies resulting from the acquisition are PX1067 

(Evonik) at 001. 

260. Many of Evonik’s estimates are based on assumptions that are not subject to reasonable 

verification. While preparing its efficiencies analysis, Evonik lacked information concerning 

PeroxyChem’s delivery methods, logistics setup, equipment, utility prices, and consumption 

figures, so instead relied on assumptions based on previous acquisitions. JX0028 (Hamann 

(Evonik) IH Tr. 37:10-38:9); JX0021 (Katzer (Evonik) IH Tr. 83:23-84:10, 90:16-91:8). 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 89 of 114 

261. Dr. Rothman also testified that the claimed cost savings are not substantiated. Rothman 

Hrg. Tr. 783:5-16. While Defendants produced an Excel spreadsheet with claimed efficiencies, 

many of the numbers were “hard-coded,” thereby making it impossible to determine how the 

number was calculated or to verify the assumptions that went into the calculation. Id. 

262. Defendants’ claimed efficiencies are not merger specific. PeroxyChem could realize 

many of these cost-savings on its own in the absence of the merger. JX0075 (Rothman Rpt.) ¶ 

278. For example, a PeroxyChem executive testified that that PeroxyChem would be able to 

optimize its logistics network independently, but, in anticipation of the merger, has declined to 

do so. JX0022 (Ball (PeroxyChem) IH Tr. 38:6-39:20). 

263. The claimed efficiencies are unlikely to be passed onto customers. Defendants have 

failed to make any showing that the claimed cost-savings will benefit customers. In fact, when 

Evonik acquired the Maitland plaint in 2011, Evonik raised customer prices. PX1277 (Evonik) at 

017-18, 021-22. One Evonik executive testified that 

. JX0021 

(Katzer (Evonik) IH Tr. 139:13-141:8). 

264. Some of the claimed efficiencies are outside the relevant markets. Many of 

Defendants’ claimed efficiencies relate to cost savings outside of the relevant product market (in 

the peracetic acid business and) outside of the relevant geographic market (in Brazil, Europe, or 

Asia). JX0027 (Costanzo (Evonik) IH Tr. 202:22-203:8); JX0021 (Katzer (Evonik) IH Tr. 26:23-

27:7, 38:13-39:13); JX0079 (Evonik) at 008-10. 

265. Dr. Hill’s predicted logistics savings are not grounded in reality. As part of his 

relative distance model, Dr. Hill predicted logistics savings as a result of the merged entity 

serving customers from the closest plant. Hill Hrg. Tr. 2041:1-12. However, Dr. Hill’s predicted 

77 
savings are higher than the logistics savings that Evonik calculated. Id. at 2209:18-2212: 10 (Dr. 

Hill's predicted logistics savings were in excess of_ , compared to- in 

2020 predicted by Evonik). Finally, Dr. Hill 

.Id. at2213:2-17. 

266. The harm resulting from the Acquisition outweighs the benefit of any claimed 

efficiencies. Dr. Rothman testified that, even putting aside the other flaws in Defendants' 

efficiencies claims, the claimed efficiencies do not outweigh his estimate of the competitive 

hrum resulting from this merger. Rothman Ifrg. Tr. 784:5-22; JX0075 (Rothman Rpt.) ,i 330. Dr. 

Rothman predicts hrum in the range of $25 million to $33 million per year, which is considerably 

larger than any estimate of efficiencies. Rothman Hrg. Tr. 784:5-22. 

C. Defendants Failed to Show that Customers have the Power to Discipline a 

Post-Acquisition Price Increase 

267. Dr. Hill testified that powerful buyers create incentives for films to cheat on a common 

understanding because each supplier has an incentive to try to win that lru·ge buyer. Hill Hrg. Tr. 

2058:8-17. However, this ignores mru·ket realities. 

268. Even large pulp and paper customers, who purchase the most H2O2, testified that while 

they typically conduct RFPs for all of their mills simultaneously, they awru·d business on a millby-mill basis. Maeder (Verso) Hrg. 140:7-14; 

. Thus, different suppliers often supply the same custome

;-

r at 

different mills, and are competing for po1iions of that customer's total volume. 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 91 of 114 

PLAINTIFF’S PROPOSED CONCLUSIONS OF LAW 

I. THE COURT HAS JURISDICTION OVER THIS ACTION 

1. This action seeks a preliminary injunction pending an administrative adjudication on the 

merits of whether the proposed transaction violates Section 7 of the Clayton Act, 5 U.S.C. § 18, 

and Section 5 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 45. This Court has 

subject matter jurisdiction pursuant to 15 U.S.C. § 53(b). 

2. Defendants are, and at all relevant times have been, engaged in activities in or affecting 

“commerce” as defined in Section 4 of the FTC Act, 15 U.S.C. § 44, and Section 1 of the 

Clayton Act, 15 U.S.C. § 12. 

3. Defendants Evonik and PeroxyChem have consented to personal jurisdiction in the 

District of Columbia. Venue is proper in this District under 28 U.S.C. § 1391(b) and (c), as well 

as under 15 U.S.C. § 53(b). 

II. THE STANDARD FOR A PRELIMINARY INJUNCTION IS MET 

4. Plaintiff “seek[s] a preliminary injunction to prevent a merger pending the Commission’s 

administrative adjudication of the merger’s legality.” FTC v. H.J. Heinz Co., 246 F.3d 708, 714 

(D.C. Cir. 2001) (internal quotations omitted). Preliminary injunctions are “readily available” 

under Section 13(b) of the FTC Act “to preserve the status quo while the FTC develops its 

ultimate case.” FTC v. Whole Foods Mkt., Inc., 548 F.3d 1028, 1036 (D.C. Cir. 2008); see 15 

U.S.C. § 53(b). 

5. The Court should issue a preliminary injunction under Section 13(b) “where such action 

would be in the public interest—as determined by a weighing of the equities and a consideration 

of the Commission’s likelihood of success on the merits.” Heinz, 246 F.3d at 714. Under Section 

13(b)’s “unique public interest standard,” the FTC is “not held to the high thresholds applicable 

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where private parties seek interim restraining orders.” FTC v. Tronox Ltd., 332 F. Supp. 3d 187, 

197 (D.D.C. 2018) (quoting Heinz, 246 F.3d at 714). 

6. To evaluate the FTC’s “likelihood of success on the merits,” this Court need only 

“measure the probability that, after an administrative hearing on the merits, the [FTC] will 

succeed in proving that the effect of the [proposed transaction] may be substantially to lessen 

competition . . . in violation of the Clayton Act.” Tronox, 332 F. Supp. 3d at 197 (quoting FTC v. 

Sysco Corp., 113 F. Supp. 3d 1, 22 (D.D.C. 2015)) (emphasis added). The FTC “is not required 

to establish that the proposed merger would in fact violate” the Act, Heinz, 246 F.3d at 714, as 

the district court “is not authorized to determine whether the antitrust laws . . . are about to be 

violated. That responsibility lies with the FTC.” Whole Foods, 548 F.3d at 1035. 

7. The district court “balance[s] the likelihood of the FTC’s success against the equities, 

under a sliding scale.” Whole Foods, 548 F.3d at 1035. “The equities will often weigh in favor of 

the FTC, since the public interest in effective enforcement of the antitrust laws was Congress’s 

specific public equity consideration in enacting” Section 13(b). Id. (internal quotations omitted). 

8. If the FTC demonstrates a likelihood that it will prevail after an administrative hearing on 

the merits, an injunction should issue, as the “public interest in effective enforcement of the 

antitrust laws is of primary importance,” and “a showing of likely success on the merits will 

presumptively warrant an injunction.” Tronox, 332 F. Supp. 3d at 198. 

9. Here, Plaintiff has demonstrated a strong likelihood of success on the merits, and the 

equities weight strongly in favor of relief under Section 13(b). 

III. THE PLAINTIFF HAS SHOWN A LIKELIHOOD OF SUCCESS ON THE 

MERITS 

A. The Proposed Acquisition is Presumptively Unlawful 

10. Plaintiff’s underlying antitrust claims, to be adjudicated in an administrative hearing, are 

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brought under Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 5 of the FTC Act, 15 

U.S.C. § 45.5 Section 7 of the Clayton Act prohibits mergers and acquisitions whose “effect . . . 

may be substantially to lessen competition, or to tend to create a monopoly” in “any line of 

commerce . . . in any section of the country.” 15 U.S.C. § 18. 

11. Congress intended Section 7 to stop anticompetitive mergers “in their incipiency,” Brown 

Shoe v. United States, 370 U.S. 294, 318, 346 (1962) and “used the words ‘may be substantially 

to lessen competition’ . . . to indicate that its concern was with probabilities, not certainties.” Id. 

at 323 (quoting 15 U.S.C. § 18). As a result, “[a] certainty, even a high probability, need not be 

shown,” and “doubts are to be resolved against the transaction.” FTC v. Elders Grain, 868 F.2d 

901, 906 (7th Cir. 1989). 

12. At the merits stage, courts typically assess whether a merger violates Section 7 of the 

Clayton Act by determining: (1) the “line of commerce,” or relevant product market; (2) the 

“section of the country,” or relevant geographic market; and (3) the merger’s probable effect on 

competition in the relevant product and geographic markets. See United States v. Marine 

Bancorp., Inc., 418 U.S. 602, 618-23 (1974). 

13. Courts in this Circuit employ a burden-shifting approach to determine if a merger violates 

Section 7. The government bears the initial burden of “showing that a transaction will lead to 

undue concentration in” the relevant product and geographic markets, which “establishes a 

presumption that the merger will substantially lessen competition.” United States v. Baker 

Hughes, 908 F.2d 981, 982 (D.C. Cir. 1990). By meeting its initial burden, the government 

makes out a prima facie case. United State v. Anthem, Inc., 855 F.3d 345, 349 (D.C. Cir. 2017). 

14. Once the government makes out its prima facie case, the burden shifts to the defendant to 

5 An acquisition that violates the Clayton Act also violates Section 5 of the FTC Act. FTC v. 

Indiana Fed’n of Dentists, 476 U.S. 447, 454 (1986). 

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produce evidence rebutting the presumption of illegality. Marine Bancorp, 418 U.S. at 631. A 

presumptively unlawful merger “must be enjoined,” United States v. Phila. Nat’l Bank, 374 U.S. 

321, 363 (1963), unless the defendants produce evidence “that the market-share statistics [give] 

an inaccurate account of the [merger’s] probable effects on competition in the relevant market.” 

Heinz, 246 F.3d at 715. A “more compelling . . . prima facie case” increases the amount of 

“evidence the defendant must present to rebut it successfully.” Baker Hughes, 908 F.2d at 991. 

15. Only “[i]f the defendant successfully rebuts the presumption” does “the burden of 

producing additional evidence of anticompetitive effect [shift] to the government,” where it 

“merges with the ultimate burden of persuasion, which remains with the government at all 

times.” Baker Hughes, 908 F.2d at 983. 

i. The Relevant Product Market Is the Sale of Non-Electronics H2O2 

16. A product market’s “outer boundaries . . . are determined by the reasonable 

interchangeability of use or the cross-elasticity of demand between the product itself and 

substitutes for it.” Brown Shoe, 370 U.S. at 325. A properly defined antitrust product market 

includes “all goods that are reasonable substitutes, even though the products themselves are not 

entirely the same.” Sysco, 113 F. Supp. 3d at 25. 

17. To determine if products are reasonable substitutes, courts consider “the extent to which 

buyers view similar products as substitutes and thus can substitute the use of one for the 

other” and “the extent to which variations in the price of one product . . . affects demand for 

another.” FTC v. Wilh. Wilhelmsen Holding ASA, 341 F. Supp. 3d 27, 45-46 (D.D.C. 2018). 

18. In addition to demand side factors, courts consider supply-side substitution—the ability 

of production facilities to adjust product mix—when defining the relevant market. Brown Shoe, 

370 U.S. at 325 n.42. When suppliers can easily adjust their output to produce different products 

in response to changes in market conditions, a relevant product market should comprise those 

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products even though they are not demand substitutes. Elders Grain, 868 F.2d at 907; Rebel Oil 

Co. v. Atl. Richfield Co., 51 F.3d 1421, 1436 (9th Cir. 1995). 

19. Indeed, “[i]f producers of Product X can readily switch their production facilities to 

produce Product Y, then both should be included in the same product market.” Rebel Oil, 51 

F.3d at 1436. A proposed market definition that fails to account for supply-side substitutes is 

“erroneous because such an approach fails to consider the supply side of the market.” Virtual 

Maintenance, Inc. v. Prime Computer, Inc., 11 F.3d 660, 665 (6th Cir. 1993). 

20. Firms “who, given product similarity, have the ability to take significant business from 

each other” compete in the same product market. FTC v. CCC Holdings, Inc., 605 F. Supp. 2d 

26, 38 (D.D.C. 2009). A firm that can “easily and profitably” shift its production to supply the 

relevant market “may be a rapid entrant” in that market. U.S. Dep’t of Justice & Fed. Trade 

Comm’n, Horizontal Merger Guidelines § 5.1 (hereinafter Guidelines).6 The Guidelines allow 

for some flexibility and allow for aggregation of different products in the same market when 

supply side substitution is “nearly universal.” Id. at fn 8. 

21. In assessing the boundaries of an antitrust relevant product market, ordinary course 

business documents, testimony from market participants, and economic analysis can all guide the 

court’s inquiry. See United States v. H&R Block, Inc., 833 F. Supp. 2d 36, 52 (D.D.C. 2011). 

22. Courts employ the Hypothetical Monopolist Test (“HMT”) to test if a candidate product 

market accounts for all reasonable substitutes. Wilhelmsen, 341 F. Supp. 3d at 47; FTC v. 

Staples, Inc., 190 F. Supp. 3d 100, 121 (D.D.C. 2016) (“Staples II”); Whole Foods, 548 F.3d at 

1038; see also Guidelines § 4.1. The test is an analytical method that “queries whether a 

6 Although the Guidelines are not binding, “they have been repeatedly relied on by the courts” in 

evaluating merger challenges. FTC v. Tronox Ltd., 332 F. Supp. 3d 187, 206 (D.D.C. 2018); 

accord FTC v. Staples, 190 F. Supp. 3d 100, 117 (D.D.C. 2016) (“Staples II”) ; United States v. 

H&R Block, Inc., 833 F. Supp. 2d 36, 52 (D.D.C. 2011) . 

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hypothetical monopolist who has control over the products in an alleged market could profitably 

raise prices on those products.” Staples II, 190 F. Supp. 3d at 121. If a firm with a monopoly 

over a set of products in a candidate market could profitably impose a small but significant nontransitory increase in price (“SSNIP”), those products constitute a relevant product market. 

Guidelines § 4.1.1. A SSNIP is normally 5% of the prevailing price. Id. § 4.1.2. 

23. The relevant product market is the sale of H2O2, excluding electronics-grade H2O2. 

H2O2 is a commodity chemical with a range of end-use applications for which there are no 

“reasonable substitutes.” See Sysco, 113 F. Supp. 3d at 25. Unrebutted testimony from customers 

across industry segments demonstrates that other chemicals cannot perform the same function as 

H2O2. PFF ¶¶ 5-9. Many customers design their processes around the use of H2O2 and report 

that it would be prohibitively expensive to switch to another chemical. Id. ¶ 10. 

24. Grouping both standard and specialty grades of non-electronics H2O2 into the same 

product market is appropriate in light of strong supply-side substitutability between grades. See 

Rebel Oil, 51 F.3d at 1436; Elders Grain, 868 F.2d at 907; Guidelines § 5.1. Evidence from 

Defendants’ own executives and ordinary course documents show that all H2O2 producers can 

easily alter their production facilities to swing capacity into virtually all H2O2 grades. PFF 

¶¶ 17-21. Competitor testimony confirms that producers’ emphases on different grades reflect 

their varying competitive strategies and not technical limitations. Id. ¶¶ 24-26. Defendants’ 

expert has argued that swinging capacity from a higher grade to a lower grade would not be 

“profitable” because producers’ average margins on certain H2O2 grades such as pre-electronics 

are higher than average margins on other grades. This argument fails, as it is contradicted by 

Defendants’ prior admissions, see PFF ¶¶ 19-22, and by Dr. Rothman’s demonstration that 

average margins mask considerable variation, as significant quantities of standard grade and 

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other specialty grades generate higher margins than pre-electronics sales. PFF ¶ 38. Moreover, as 

Judge Posner recognized, Defendants’ argument “is based on a misunderstanding of 

competition.” Elders Grain, 868 F.2d at 907. As long as H2O2 producers compete for customers 

who “might be lured away by a better offer,” they might potentially find it profitable to swing 

capacity into any grade should market conditions warrant it. Id. Case law and antitrust principles 

dictate that both demand- and supply-side substitution should inform market definition. See id.; 

Rebel Oil, 51 F.3d at 1436. When all H2O2 producers may be rapid entrants for virtually all 

grades of H2O2, ignoring supply-side substitution between H2O2 grades would be legal error. 

Rebel Oil, 51 F.3d at 1436 (“defining a market on the basis of demand considerations alone is 

erroneous”); Guidelines § 5.1. 

25. A product market defined as the sale of non-electronics H2O2 passes the HMT. See 

Guidelines § 4.1.1. Unrebutted economic analysis shows that a hypothetical monopolist of nonelectronics H2O2 could profitably impose a SSNIP. PFF ¶¶ 11-14. 

26. Electronics-grade H2O2 is not in the relevant market. In contrast to non-electronics 

H2O2, industry participants recognize the production and sale of electronics grade H2O2 as 

distinct, facing unique conditions. PFF ¶¶ 53-59; see Brown Shoe, 370 U.S. at 325. Producing 

electronics-grade H2O2 involves proprietary technology that is not shared by all H2O2 

producers. PFF ¶¶ 55-57. H2O2 producers that do not make electronics grade cannot easily 

adjust their product mix to supply electronics grade customers, and therefore are not rapid 

entrants into the market for those customers. See Guidelines § 5.1. 

ii. Defendants’ Current Product Mixes Do Not Disprove the Relevant 

Market 

27. While Defendants have advanced no product market in which to analyze the competitive 

effects of the transaction, they criticize the FTC’s product market based on an argument that 

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H2O2 products and Defendants’ competitive strategies are differentiated. This argument fails, as 

significant evidence contradicts Defendants’ claims that Evonik and PeroxyChem pursue 

different competitive strategies. Evonik’s ordinary course documents demonstrate that it is 

pursuing a competitive strategy of expanding its specialty output, just like PeroxyChem, 

Arkema, and Solvay. PFF ¶ 51. In addition, ordinary course documents show that Defendants 

view each other as competitors across nearly all grades of non-electronics H2O2. PFF ¶¶ 33-52. 

FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 46 (D.D.C. 1998) (“the determination of the 

relevant market in the end is a matter of business reality—[ ]of how the market is perceived by 

those who strive for profit in it.”) (internal quotations omitted). 

28. Even if the Court credits Defendants’ suggestion that they currently sell different product 

mixes, the evidence shows that competition in the H2O2 industry occurs between all producers 

across virtually all grades. PFF ¶¶ 39, 167. Moreover, H2O2 producers’ efforts to expand into 

new end uses is a critical element of competition between them, PFF ¶ 51, confirming that a 

snapshot of the end uses an H2O2 producer serves at a particular moment is an inappropriate 

basis on which to reject the FTC’s product market. See Whole Foods, 548 F.3d at 1039 (“As 

always in defining a market, we must take into account the realities of competition.”). 

29. Unable to rebut the evidence of supply-side substitutability, Defendants ask the Court to 

ignore it. Case law and antitrust principles dictate that both demand- and supply-side substitution 

should inform market definition. See Elders Grain, 868 F.2d at 907; Rebel Oil, 51 F.3d at 1436. 

When all H2O2 producers may be rapid entrants for virtually all grades of H2O2, ignoring 

supply-side substitution between H2O2 grades would be legal error. Id. (“defining a market on 

the basis of demand considerations alone is erroneous”); Guidelines § 5.1. 

iii. The Relevant Geographic Markets are the Southern and Central United 

States and the Pacific Northwest 

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30. The relevant geographic market is “the region in which the seller operates, and to which 

the purchaser can practicably turn for supplies.” Cardinal Health, 12 F. Supp. 2d at 49. Courts 

take a “pragmatic, factual approach” to defining a geographic market that “correspond[s] to the 

commercial realities of the industry and [is] economically significant.” Brown Shoe, 370 U.S. at 

336-37. 

31. As they do when analyzing the relevant product market, courts use the HMT to define the 

bounds of the relevant geographic market. See Tronox, 332 F. Supp. 3d at 204. “That test asks 

what would happen if a single firm became the only seller in a candidate geographic region.” 

FTC v. Advocate Health Care Network, 841 F.3d 460, 468 (7th Cir. 2016) (citing Whole Foods, 

548 F.3d at 1038). “If that hypothetical monopolist could profitably raise prices above 

competitive levels, the region is a relevant geographic market . . . But if customers would defeat 

the attempted price increase by buying from outside the region, it is not a relevant market; the 

test should be rerun using a larger candidate region.” Advocate, 841 F.3d at 468. 

32. When suppliers set prices based on customer location, it is appropriate to define the 

relevant market as the geographic region where those customers are located. Sysco, 113 F. Supp. 

3d at 50-52; Guidelines § 4.2.2. Such regional markets “often apply when suppliers deliver their 

products or services to customers’ locations.” Id. If a hypothetical monopolist in a region can 

impose a SSNIP that “would not be defeated by substitution away from the relevant product or 

by arbitrage,” that region would be a relevant geographic market. Guidelines § 4.2.2. 

33. Here, the FTC has shown, and Defendants agree, that markets defined around customer 

location are appropriate. H2O2 producers set individual prices for each of their customers, and 

these prices include the cost of freight. PFF ¶¶ 62-63. Because H2O2 is shipped diluted in water, 

shipping costs are high, and customers cannot avoid targeted price increases through arbitrage. 

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PFF ¶¶ 60-66. Accordingly, customers in regions around H2O2 plants are likely to face the same 

competitive conditions. Id. 

34. Ordinary course documents, customer testimony, and economic analysis demonstrate that 

the Southern and Central United States is a relevant market. PFF ¶¶ 72-76. Defendants offered 

no rebuttal to ordinary course documents showing that PeroxyChem has long defined a Southern 

and Central United States market similar to the one the FTC proposes. Id. 

35. Defendants argue that the Southern and Central United States market is too broad 

because H2O2 producers’ share of sales vary in different particular states within it, but propose 

no subset of states in which the competitive effects of the transaction appear any different. Dr. 

Rothman’s sensitivity analyses show that the merger’s effect on sub-regions within the Southern 

and Central United States is comparable to its effect on the market as a whole. PFF ¶ 77. 

Economic analysis based on actual customers in the Southern and Central United States shows 

that all customers in the market can turn to the same set of suppliers. Id. ¶ 76. The purpose of 

geographic market definition is not to draw a map “by metes and bounds as a surveyor would lay 

off a plot of ground,” but to ensure “that the Court understands in which part of the country 

competition is threatened.” Cardinal Health, 12 F. Supp. 2d at 49. Cf. FTC v. Advocate Health 

Care, 2017 WL 1022015 (N.D. Ill. March 16, 2017) (following remand, the district court 

concluded that the FTC’s expert in that case “appropriately delineated the relevant geographic 

market,” id. at *6, when he concluded that while “six party hospitals alone constitute a relevant 

geographic market in which it would be appropriate to assess the transaction,” “in an effort to be 

“conservative,” he “focus[ed] [his] analysis on a broader geographic market,” defined to include 

[five] additional competing hospitals,” id. at *3-4). 

36. Ordinary course evidence, customer testimony, and economic analysis demonstrate that 

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the Pacific Northwest is a relevant market. PFF ¶¶ 78-82. 

37. Defendants do not refute the evidence of unique competitive conditions in the Pacific 

Northwest, but instead urge the Court to ignore the transaction’s effect on competition there 

because most of the customers in the market are located in Canada. The Court should reject this 

argument because such considerations relate to agency discretion, and not the application of the 

antitrust laws to this Acquisition. Moreover, the evidence shows that the Canadian customers 

transact a significant volume of business in the United States. PFF ¶¶ 199. 

iv. The Acquisition is Presumptively Illegal Because it Would Lead to Undue 

Concentration in the Relevant Markets 

38. A merger that significantly increases market shares and concentration levels is 

presumptively unlawful under Section 7 of the Clayton Act. Phila. Nat’l Bank, 374 U.S. at 362-

63; Heinz, 246 F.3d at 716. Such a merger “is so inherently likely to lessen competition 

substantially that it must be enjoined” unless defendants successfully rebut the presumption. 

Phila. Nat’l Bank, 374 U.S. at 363. 

39. Courts use the Herfindahl-Hirshman Index (“HHI”) to measure concentration in a market. 

Wilhelmsen, 341 F. Supp. 3d at 58; Heinz, 246 F.3d at 716; FTC v. Swedish Match, 131 F. Supp. 

2d 151, 166-67 (D.D.C. 2000). HHIs are calculated by summing the squares of each market 

participant’s individual market shares both pre- and post- acquisition. Tronox, 332 F. Supp. at 

207; Sysco, 113 F. Supp. 3d at 52-53; Heinz, 246 F.3d at 716; Guidelines § 5.3. Market share 

calculations are necessarily approximate, as “[t]he FTC need not present market shares and HHI 

estimates with the precision of a NASA scientist.” Sysco, 113 F. Supp. 3d at 54. 

40. Under the Guidelines, a market with an HHI above 2,500 is considered “highly 

concentrated.” A merger that that increases the HHI by more than 200 points and results in a 

highly concentrated market is “presumed to be likely to enhance market power” in the absence of 

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“persuasive evidence showing that the merger is unlikely to enhance market power.” Guidelines 

§ 5.3. An acquisition resulting in such a market “establish[es] the government’s prima facie case 

that a merger is anticompetitive.” H&R Block, 833 F. Supp. 2d at 71. 

41. The evidence shows that Evonik, PeroxyChem, Solvay, Arkema, and Nouryon compete 

for non-electronics H2O2 in the Southern and Central United States. PFF ¶¶ 95-98. Dr. Rothman 

calculated market shares using supplier sales data. The pre-Aquisition HHI in the Southern and 

Central United States is 2,258. Id. ¶ 107. The post-Aquisition HHI is 3,335, with an increase of 

1,077. Id. 

42. The evidence shows that Evonik, PeroxyChem, and Solvay compete in the Pacific 

Northwest. PFF ¶¶ 99-102. Dr. Rothman calculated market shares using supplier sales. The preAcquisition HHI in the Pacific Northwest is 3,344. Id. ¶ 110. The post-Acquisition HHI is 4,918, 

an increase in 1,573. Id. 

43. The post-Acquisition HHIs indicate that the Acquisition will result in highly concentrated 

markets in both the Southern and Central United States and the Pacific Northwest. Guidelines 

§ 5.3. The changes in HHI exceed the threshold necessary to trigger a presumption of illegality 

by a factor of five in the Southern and Central United States and by a factor of seven in the 

Pacific Northwest. Id. These increases in concentration are in line with recent cases that courts in 

this Circuit have enjoined. See, e.g., Tronox, 332 F. Supp. 3d 187; Anthem, 885 F.3d 345; H&R 

Block, 833 F. Supp. 2d 36; Heinz, 246 F.3d 708; Swedish Match, 131 F. Supp. 2d 151; Cardinal 

Health, 12 F. Supp. 2d 34. 

44. It is Defendants’ burden “to produce evidence that shows that the market-share statistics 

give an inaccurate account of the merger’s probable effects on competition.” Heinz, 246 F.3d at 

715. Nevertheless, Dr. Rothman conducted sensitivity analyses to determine if the presumption 

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of illegality depends on the precise definition of the relevant market. PFF ¶¶ 104, 108-09, 111. 

Across a variety of hypothetical product and geographic markets, both broader and narrower than 

the markets that the FTC defined, the presumption holds. Id. 

v. Evidence of Competitive Effects Corroborates the Presumption of 

Illegality 

45. Plaintiff bolsters its prima facie case with direct evidence that the merger will 

substantially lessen competition. The Acquisition would increase the market’s vulnerability to 

coordination and eliminate beneficial head-to-head competition between Evonik and 

PeroxyChem. 

1. The Merger Will Increase the Potential for Coordinated Interaction 

in a Market Vulnerable to It 

46. “Merger law rests upon the theory that where rivals are few, firms will be able to 

coordinate their behavior” in anticompetitive ways. Heinz, 246 F.3d at 715 (internal quotations 

omitted). Coordination refers to “conduct by multiple firms that is profitable for each of them 

only as a result of the accommodating reactions of the others.” Guidelines § 7. Coordinated 

interaction may entail an “explicit negotiation of a common understanding” or a tacit agreement 

“enforced by the detection and punishment of deviations.” Id. 

47. Precisely because “there is nothing improper” about firms making independent decisions 

to increase profits, tacit coordination poses an especially potent threat to competition. Tronox, 

332 F. Supp. 3d at 208; see also Guidelines § 7 (“Coordinated interaction includes conduct not 

otherwise condemned by the antitrust laws.”). For this reason, “[i]t is a central object of merger 

policy to obstruct the creation or reinforcement by merger of such oligopolistic market structures 

in which tacit coordination can occur.” Heinz, 246 F.3d at 725. 

48. However, it is not necessary for the FTC to demonstrate that market participants can form 

and enforce an agreement. In re Tronox Ltd., Dkt. No. 9377, 2018 WL 6630200, at *29, (F.T.C. 

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Dec. 14, 2018); see also FTC v. OST Healthcare Sys., 822 F. Supp. 2d 1069, 1088 (N.D. Ill. 

2012) (“To be clear, the court is not finding that the hospitals would necessarily collude after the 

merger, only that this merger adds to the risk of such behavior.”). 

49. A market “prone to collusion by reason of its history and circumstances is unlawful in the 

absence of special circumstances.” Elders Grain, 868 F.2d at 906. Markets with a history of 

express collusion are presumed vulnerable to coordination “unless competitive conditions in the 

market have since changed significantly.” Guidelines § 7.2. When the FTC shows that an 

industry is so concentrated as to raise the potential for coordinated interaction, “the burden is on 

the Defendants to demonstrate ‘structural barriers,’ unique to this industry, that are sufficient to 

defeat” the presumption of vulnerability. CCC Holdings, 605 F. Supp. 2d at 60. 

50. Beyond the market’s structure and history, the Guidelines detail several attributes of 

markets that are typically more vulnerable to collusion, including homogenous products, low 

elasticity of demand, and transparency in the “terms of dealing” or “the identities of firms 

serving particular customers.” Guidelines § 7.2. 

51. Courts assessing if a market is vulnerable to coordination ask if “producers recognize 

their shared economic interests and their interdependence with respect to price and output 

decisions.” FTC v. Arch Coal, 329 F. Supp. 2d 109, 131 (D.D.C. 2004) (internal quotations 

omitted). Further, courts have found a market vulnerable to coordination where competitors are 

“able to maintain price discipline and control supply in a post-merger market simply by 

competing less vigorously against each other for major accounts.” Tronox, 332 F. Supp. 3d at 

210. Further, if producers in a market “have already shown an awareness that implicit 

coordination would be beneficial,” an acquisition will make it “easier to coordinate through 

implicit understanding and sheer market power.” Id. at 209. 

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52. Courts in this Circuit look to “[t]he available real-world evidence” to evaluate whether 

the “merger raises serious and substantial questions about likely anticompetitive effects.” 

Tronox, 332 F. Supp. 3d at 210. 

53. Here, the FTC has established that the H2O2 market is vulnerable to coordinated 

interaction. High levels of concentration and a history of industry price-fixing, including an 

admission of guilt by Evonik’s predecessor, create a presumption that the market is vulnerable to 

coordinated interaction. PFF ¶¶ 142-43. Defendants argue that the market has changed since the 

price-fixing era, but the relevant changes actually render the market more conducive to 

coordination, with one competitor from that era having exited the market. Id. ¶¶ 147-49; Heinz, 

246 F.3d at 715-16 (“Increases in concentration above certain levels are thought to raise a 

likelihood of interdependent anticompetitive conduct.”) (internal quotations omitted). 

54. Ordinary course documents and testimony from competitors and customers reinforce the 

market’s vulnerability to coordination. Relying on third party sources, H2O2 suppliers track each 

other’s price and supply decisions. PFF ¶¶ 121-33. Producers have declined to pursue business 

that could lead to retaliation and drive down prices, a sign that producers recognize their 

interdependence. PFF ¶¶ 133-40; Tronox, 332 F. Supp. 33 at 209. 

55. Defendants point to other industry attributes that they claim hinder coordination, but none 

of their arguments rise to the level of the “special circumstances” they need to overcome the 

presumption of vulnerability. Elders Grain, 868 F.2d at 906. Moreover, in assessing the 

likelihood of coordinated interaction, courts do not require that the factors point universally 

toward coordination. See id. (“Granted, the factors that make a market more or less amenable to 

being cartelized are not all on one side in this case.”); CCC Holdings, 605 F. Supp. 2d at 67. At 

this stage, the FTC need only show a sufficient likelihood of success on the merits to carry its 

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burden. Tronox, 332 F. Supp. 3d at 212. 

2. The Merger Would Eliminate Significant and Beneficial Price 

Competition Between Defendants 

56. The loss of head-to-head competition between merging firms can bolster a presumption 

of competitive harm arising from market concentration levels. Heinz Co., 246 F.3d at 716-17. 

When the eliminated competition “is an important feature of the relevant market, a merger is 

likely to have unilateral anticompetitive effect if the acquiring firm will have the incentive to 

raise prices or reduce quality after the acquisition.” Wilhelmsen, 341 F. Supp. 3d at 59. 

57. The merging entities “need not be the top two firms to cause unilateral effects.” Sysco, 

113 F. Supp. 3d at 62; United States v. Aetna, 240 F. Supp. 3d 1, 43 (D.D.C. 2017) . 

58. To determine if the elimination of head-to-head competition between two firms will 

adversely affect competition, courts look to bidding data, ordinary course documents, and 

testimony from market participants. See, e.g., Staples II, 190 F. Supp. 3d at 131-33; Sysco, 113 F. 

Supp. 3d at 62-65. While a merger of two firms is more likely to result in unilateral harm if more 

customers of one merging firm view the other firm’s products “as their next best choice,” a 

merger may still reduce competition “even though many more sales are diverted to products sold 

by non-merging firms.” Guidelines § 6.1. 

59. Courts also look at economic evidence to estimate the effect of lost competition resulting 

from a merger. A common method of modeling such effects is the Gross Upward Pricing 

Pressure Index (“GUPPI”) methodology. Wilhelmsen, 341 F. Supp. 3d at 64; see also Guidelines 

§ 6.1. The GUPPI “is essentially a bargaining framework that quantifies a firm’s change in 

incentive to raise prices following a merger.” Wilhelmsen, 341 F. Supp. 3d at 64. Another model, 

the second-score procurement model, can be appropriate in markets where customers’ bargaining 

power is significant. See Guidelines § 6.2. 

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60. Ordinary course documents and customer testimony show that Defendants are close 

competitors in both the Southern and Central United States and the Pacific Northwest. PFF ¶¶ 

169-74. Customers use bidding processes designed to play suppliers off each other for better 

prices. Id. ¶ 176. For these customers, head-to-head competition between Evonik and 

PeroxyChem led to significant price concessions. Id. ¶¶ 177-78, 189-94; Sysco, 113 F. Supp. 3d 

at 62 (“If two competitors merge, buyers will be prevented from playing the sellers off one 

another in negotiations.”). Dr. Rothman predicts significant price effects from the loss of thishead-to-head competition under both the GUPPI and second-score procurement models. PFF 

¶¶ 200-07. Competitor and customer testimony indicates a lack of additional capacity in the 

market, making it unlikely that other producers could constrain price increases from the merged 

firm. PFF ¶¶ 181-87. 

B. Defendants Failed to Rebut the Presumption of Illegality 

61. Having shown that the Acquisition will result in undue concentration in the relevant 

markets, and buttressed that conclusion with evidence of competitive effects, the FTC has carried 

its burden in making out a prima facie case. Heinz, 246 F.3d at 715-16. Because the 

government’s prima facie case is compelling, Defendants must produce a greater quantum of 

evidence to carry their burden of production to rebut the presumption. Baker Hughes, 908 F.2d at 

991. Defendants have not met this burden. 

i. The Proposed Divestiture Fails to Address Competitive Concerns 

62. Defendants’ proposal to divest PeroxyChem’s Prince George plant to UI does not remedy 

the loss of competition that will result from the Acquisition. Defendants bear the burden of 

showing that “a proposed divestiture would restore the competition lost by the merger 

counteracting the anticompetitive effects of the merger.” Aetna, 240 F. Supp. 3d at 60. 

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63. To evaluate the sufficiency of a proposed divestiture, courts ask if the divestiture will 

replace the “competitive intensity lost as a result of the merger.” Sysco, 113 F. Supp. 3d at 72 

(internal quotations omitted). A divestiture will not be accepted unless it is “made to a new 

competitor that is in fact . . . a willing, independent competitor capable of effective production in 

the . . . market.” CCC Holdings, 605 F. Supp. 2d at 59. Additionally, “[d]ivestiture of an existing 

business entity might be more likely to effectively preserve the competition that would have been 

lost through the merger.” Aetna, 240 F. Supp. 3d at 60. 

64. Further, a “low purchase price” can “[raise] concerns” about a divestiture buyer’s ability 

to restore competitive intensity because “it reveals the divergent interest between the divestiture 

purchaser and the consumer.” Aetna, 240 F. Supp. 3d at 72. Moreover, courts will consider the 

divestiture buyer’s history in the relevant market. Id. at 72-73. 

65. Defendants do not come close to carrying their burden on the sufficiency of the Prince 

George divestiture. Testimony by UI’s corporate representative demonstrates that the company 

has no concrete plans for running the Prince George plant or competing in the H2O2 market. 

PFF ¶¶ 236-40. Given that the company’s last significant experience in the H2O2 industry ended 

after World War II, UI’s vague notions about Prince George are unsurprising. Id. ¶¶ 219-22. UI’s 

experience and capacity pale in comparison to the proposed buyers in the Aetna and Sysco 

divestitures, both of which were held insufficient. See Aetna, 240 F. Supp. 3d at 64-72 

(divestiture buyer had experience in adjacent markets and brand recognition); Sysco, 113 F. 

Supp. 3d at 73 (divestiture buyer had decades of experience in industry and a commitment to a 

$490 million expansion plan). 

66. The low purchase price that UI agreed to pay for the Prince George plant also casts doubt 

on its commitment to replacing competitive intensity. The purchase price falls far 

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below the independent valuations of the plant prepared by . PFF 

¶¶ 243-45. Coupled with the rushed timeline of the sale, the purchase price is indicative of the 

sort of “fire sale price” suggesting that UI “has doubts about its own ability to manage” the 

Prince George plant. See Aetna, 240 F. Supp. 3d at 72 (D.D.C. 2017). 

67. Finally, Defendants have presented no evidence that the proposed divestiture would 

replace the competitive intensity lost to the merger in the Southern and Central United States. 

ii. There Is No Likelihood of Entry or Expansion in the Market 

68. Entry of a new competitor into the relevant market “will alleviate concerns about adverse 

competitive effects only if such entry will deter or counteract any competitive effects of concern 

so the merger will not substantially harm customers.” Sysco, 113 F. Supp. 3d at 80 (quoting 

Guidelines § 9). “Defendants bear the burden of demonstrating” that new entrants will “fill the 

competitive void that will result from the proposed merger.” Id. 

69. Entry or expansion must be timely, likely, and sufficient to mitigate the loss of 

competition resulting from the merger. Guidelines § 9. 

70. There is no likely entrant into this market, and Defendants have abandoned the argument. 

71. There is no reasonable likelihood of expansion by existing H2O2 producers. 

. PFF ¶¶ 250-52. 

. PFF ¶¶253. 

iii. Defendants’ Claimed Efficiencies Are Not Cognizable 

72. Defendants bear the burden of demonstrating that claimed efficiencies rebut the 

presumption of illegality. Aetna, 240 F. Supp. 3d at 94. Where the merger will result in high 

levels of concentration, “defendants must present proof of extraordinary efficiencies to rebut the 

97 
 

 

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government’s prima facie case.” Sysco, 113 F. Supp. 3d at 81. “[C]ourts have rarely, if ever, 

denied a preliminary injunction solely based on the likely efficiencies,” CCC Holdings, 605 F. 

Supp. 2d at 72, and “the Supreme Court has never recognized the so-called ‘efficiencies’ defense 

in a Section 7 case.” Wilhelmsen, 341 F. Supp. 3d at 71. 

73. Defendants “must demonstrate that their claimed efficiencies would benefit customers, 

and, more particularly, the customers in the challenged markets.” Aetna, 240 F. Supp. 3d at 94. 

The Court should only credit claimed efficiencies to the extent that they are cognizable, meaning 

that they “represent a type of cost saving that could not be achieved without the merger” and that 

“the estimate of the predicted saving must be reasonably verifiable by an independent party.” Id. 

74. Under the Guidelines, efficiencies resulting from a merger are cognizable if they are 

verifiable, merger-specific, and not the result of anticompetitive reductions in output or service. 

Guidelines § 10. For efficiencies to be verifiable, the merging parties have to substantiate the 

assumptions that go into their efficiencies calculations. Id. For efficiencies to be merger-specific, 

efficiencies must be likely to happen with the merger, and unlikely to happen in the absence of a 

merger. Id. 

75. “[T]he Agencies consider whether cognizable efficiencies likely would be sufficient to 

reverse the merger’s potential harm to customers in the relevant market.” Guidelines § 10. 

76. At the outset, Defendants’ claimed efficiencies are smaller than the predicted harm in the 

relevant markets. PFF ¶¶ 266. 

77. In addition, Defendants have failed to demonstrate that any claimed efficiencies resulting 

from the Acquisition are merger-specific. PFF ¶¶ 262; see Guidelines § 10. 

78. Under the Guidelines, efficiencies can only offset the competitive harm resulting from a 

merger if those efficiencies will pass through to customers. Guidelines § 10. 

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. PFF ¶¶ 263. 

iv. Large Buyers Do Not Rebut the Presumption of Harm 

79. “[C]ourts have not typically held that power buyers alone enable a defendant to overcome 

the government’s presumption of anticompetitiveness.” Wilhelmsen, 341 F. Supp. 3d 27 at 70. 

Large buyers’ ability to constrain price increases “depends on the alternatives these large buyers 

have available to them.” Sysco, 113 F. Supp. 3d at 48. 

80. Here, even large-volume buyers frequently award H2O2 supply positions on a mill-bymill basis, so their presence does not inherently impede coordinated conduct. PFF ¶¶ 268; see 

CCC Holdings, 605 F. Supp. 2d at 64-65 (large buyers evidence of static and transparent 

market). Additionally, the evidence shows that the merger will reduce the number of competitive 

options and leave even large customers with inadequate alternatives. PFF ¶¶ 200-07. 

IV. THE EQUITIES FAVOR A PRELIMINARY INJUNCTION 

81. A preliminary injunction is in the public interest. See generally PFF §§ I-VII. No court 

has denied relief in a Section 13(b) proceeding in which the FTC “has demonstrated a likelihood 

of success on the merits.” FTC v. ProMedica Health Sys., 3:11-cv-47, 2011 WL 1219281, at *60 

(N.D. Ohio Mar. 29, 2011); see also FTC v. PPG Indus., 798 F.2d 1500, 1508 (D.C. Cir. 1986). 

82. “[P]ublic interest in effective enforcement of the antitrust laws” is “[t]he principal public 

equity weighing in favor of issuance of preliminary injunctive relief.” Heinz, 246 F.3d at 726. 

After all, “competition is our fundamental national economic policy, offering as it does the only 

alternative to the cartelization or governmental regimentation of large portions of the economy.” 

Phila. Nat’l Bank, 374 U.S. at 372; see also Whole Foods, 548 F.3d at 1035. An equally 

important public equity is the preservation of the FTC’s ability to obtain effective relief if the 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 112 of 114 

Acquisition is ultimately found to violate Section 7 of the Clayton Act. Without a preliminary 

injunction Defendants can “scramble the eggs”—that is, combine their operations and make it 

difficult, if not impossible, for competition to be restored to its previous state. Heinz, 246 F.3d at 

726 (citing FTC v. Dean Foods Co., 384 U.S. 597, 606 n.5 (1966)). This equity is especially 

important in cases, such as this one, where the parties contemplate a divestiture order such that 

the “proposed merger involves two transactions, not just one.” Sysco, 113 F. Supp. 3d at 87. 

83. Private equities are “subordinate to public interests and cannot alone support the denial of 

preliminary relief.” FTC v. Illinois Cereal Mills, Inc., 691 F. Supp. 1131, 1146 (N.D. Ill. 1988). 

Indeed, “[o]nly ‘public equities’ that benefit consumers” can trump the FTC’s showing of likely 

success on the merits. CCC Holdings, 605 F. Supp. 2d at 75-76 (citing Whole Foods, 548 F.3d at 

1041 (Brown, J.)). The “‘risk that the transaction will not occur at all,’ by itself, is a private 

consideration that cannot alone defeat the preliminary injunction.” Whole Foods, 548 F.3d at 

1041 (citing Heinz, 246 F.3d at 726). Defendants’ assertion that they will abandon the 

Acquisition and not proceed with the administrative trial on the merits if a preliminary injunction 

issues does not elevate the FTC’s burden under Section 13(b). See Heinz, 246 F.3d at 727 

(“[T]hat is at best a ‘private’ equity which does not affect our analysis . . . .”). 

* * * * * * * 

84. Weighing the FTC’s likelihood of success and the relevant equities, a preliminary 

injunction enjoining Evonik’s acquisition of PeroxyChem pending a full administrative hearing 

on the merits is in the public interest. 

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Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 113 of 114 

Dated: December 4, 2019 

Of counsel: 

DANIEL MATHESON (D.C. Bar 5042490) 

Deputy Chief Trial Counsel 

Federal Trade Commission 

Bureau of Competition 

DOMINIC VOTE (D.C. Bar 985637) 

Assistant Director 

Federal Trade Commission 

Bureau of Competition 

Mergers II Division 

AMY DOBRZYNSKI 

MICHAEL BLEVINS 

STEVEN COUPER (D.C. Bar 1035229) 

STEVEN DAHM 

SEAN HUGHTO (D.C. Bar 421224) 

FRANCES ANNE JOHNSON 

MICHAEL LOVINGER (D.C. Bar 990801) 

STEPHEN SANTULLI (D.C. Bar 1617916) 

CECELIA WALDECK (D.C. Bar 443969) 

JAMES WEINGARTEN (D.C. Bar 985070) 

Attorneys 

Federal Trade Commission 

Bureau of Competition 

Mergers II Division 

Respectfully Submitted, 

/s/ James Rhilinger 

JAMES RHILINGER 

(D.C. Bar 472255) 

Federal Trade Commission 

Bureau of Competition 

400 Seventh Street, S.W. 

Washington, DC 20024 

Telephone: (202) 326-2871 

Facsimile: (202) 326-2286 

Email: jrhilinger@ftc.gov 

Attorney for Plaintiff Federal Trade 

Commission 
 

 

Case 1:19-cv-02337-TJK Document 137-1 Filed 01/10/20 Page 114 of 114 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on the 4th day of December, 2019, I served the foregoing on the 

following counsel via electronic mail: 

Eric Mahr 

Andrew Ewalt 

Freshfields Bruckhaus Deringer US LLP 

700 13th Street, NW 

10th Floor 

Washington, DC 20005-3960 

Tel: (202) 777-4545 

Email: eric.mahr@freshfields.com 

Email: andrew.ewalt@freshfields.com 

Counsel for Defendants RAG-Stiftung, Evonik 

Industries AG, Evonik Corporation, and Evonik 

International Holding B.V. 

Mike Cowie 

James Fishkin 

Shari Lahlou 

Dechert LLP 

1900 K Street, NW 

Washington, DC 20006 

Tel: (202) 261-3339 

Email: mike.cowie@dechert.com 

Email: james.fishkin@dechert.com 

Email: shari.lahlou@dechert.com 

Counsel for Defendants One Equity Partners 

Secondary Fund, L.P., One Equity Partners V, 

L.P., Lexington Capital Partners VII (AIV I), 

L.P., PeroxyChem Holding Company LLC, 

PeroxyChem Holdings, L.P., PeroxyChem 

Holdings LLC, PeroxyChem LLC, and 

PeroxyChem Cooperatief U.A. 

/s/ Frances Anne Johnson 

Frances Anne Johnson 

Attorney for Plaintiff Federal Trade Commission