10560 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Notices 

DEPARTMENT OF JUSTICE 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives 

[OMB Number 1140–0049] 

Agency Information Collection 

Activities: Proposed Collection; 

Comments Requested: Application for 

National Firearms Examiner Academy 

ACTION: 60-Day notice of information 

collection. 

The Department of Justice (DOJ), 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives (ATF), will be 

submitting the following information 

collection request to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995. 

The proposed information collection is 

published to obtain comments from the 

public and affected agencies. Comments 

are encouraged and will be accepted for 

‘‘sixty days’’ until April 23, 2012. This 

process is conducted in accordance with 

5 CFR 1320.10. 

If you have comments especially on 

the estimated public burden or 

associated response time, suggestions, 

or need a copy of the proposed 

information collection instrument with 

instructions or additional information, 

please contact James Yurgealitis, james.

yurgealitis@atf.gov, 202–648–6060, 

National Laboratory Center, 6000 

Ammendale Road, Ammendale, MD 

20705. 

Written comments and suggestions 

from the public and affected agencies 

concerning the proposed collection of 

information are encouraged. Your 

comments should address one or more 

of the following four points: 

—Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

—Evaluate the accuracy of the agencies 

estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

—Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

—Minimize the burden of the collection 

of information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms 

of information technology, e.g., 

permitting electronic submission of 

responses. 

Summary of Information Collection 

(1) Type of Information Collection: 

Extension of a currently approved 

collection. 

(2) Title of the Form/Collection: 

Application for National Firearms 

Examiner Academy. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Justice sponsoring the 

collection: Form Number: ATF F 6330.1. 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: State, Local, or Tribal 

Government. Other: Federal 

Government. 

Need for Collection 

The information requested on this 

form is necessary to process requests 

from prospective students to attend the 

ATF National Firearms Examiner 

Academy and to acquire firearms and 

toolmark examiner training. The 

information collection is used to 

determine the eligibility of the 

applicant. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: It is estimated that 75 

respondents will complete a 12 minute 

form. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: There are an estimated 15 

annual total burden hours associated 

with this collection. 

If additional information is required 

contact: Jerri Murray, Department 

Clearance Officer, Policy and Planning 

Staff, Justice Management Division, 

Department of Justice, Two Constitution 

Square, 145th Street NE., Room 2E–508, 

Washington, DC 20530. 

Jerri Murray, 

Department Clearance Officer, PRA, United 

States Department of Justice. 

[FR Doc. 2012–4000 Filed 2–21–12; 8:45 am] 

BILLING CODE 4410–FY–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. International Paper 

Company et al.; Proposed Final 

Judgment and Competitive Impact 

Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

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

Final Judgment, Asset Preservation 

Stipulation and Order, and Competitive 

Impact Statement have been filed with 

the United States District Court for the 

District of Columbia in United States v. 

International Paper Company et al., 

Civil Action No. 1:12–cv–00227. On 

February 10, 2012, the United States 

filed a Complaint alleging that the 

proposed acquisition by International 

Paper Company of Temple-Inland Inc. 

would violate Section 7 of the Clayton 

Act, 15 U.S.C. 18. The proposed Final 

Judgment, filed at the same time as the 

Complaint, requires the divestiture of 

Temple-Inland’s containerboard mills in 

Waverly, Tenn., and Ontario, Calif., and 

either International Paper’s 

containerboard mill in Oxnard, Calif., or 

International Paper’s containerboard 

mill in Henderson, Ky., but not both of 

those mills. 

A Competitive Impact Statement filed 

by the United States describes the 

Complaint, the proposed Final 

Judgment, the industry, and the 

remedies available to private litigants 

who may have been injured by the 

alleged violation. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

450 Fifth Street NW., Suite 1010, 

Washington, DC 20530 (telephone: 202– 

514–2481), on the Department of 

Justice’s Web site at http:// 

www.usdoj.gov/atr, and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia. 

Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to Joshua H. Soven, 

Chief, Litigation I Section, Antitrust 

Division, U.S. Department of Justice, 

450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, (telephone: 

202–307–0827). 

Patricia A. Brink, 

Director of Civil Enforcement. 

United States District Court For the 

District of Columbia 

United States of America, U.S. Department 

of Justice, Antitrust Division, Litigation I 

Section, 450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, Plaintiff, v. 

International Paper Company, 6400 Poplar 

Avenue, Memphis, TN 38197, and TempleInland Inc., 1300 MoPac Expressway South, 

Third Floor, Austin, TX 78746, Defendants. 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Notices 10561 

Case: 1:12–cv–00227. 

Assigned To: Collyer, Rosemary M. 

Assign Date: 2/10/2012. 

Description: Antitrust. 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil action to enjoin International Paper 

Company (‘‘International Paper’’) from 

acquiring Temple-Inland Inc. (‘‘TempleInland’’). Plaintiff alleges as follows: 

I. Nature of the Action 

1. On September 6, 2011, 

International Paper agreed to acquire 

Temple-Inland in a transaction valued 

at $4.3 billion. International Paper and 

Temple-Inland are, respectively, the 

largest and third-largest producers of 

containerboard in the United States and 

Canada (which the paper industry and 

this Complaint refer to collectively as 

‘‘North America’’). Containerboard is 

the paper that is used to make 

corrugated boxes. 

2. The proposed merger would 

increase International Paper’s share of 

the containerboard capacity in North 

America from approximately 26 to 37 

percent. After the merger, the combined 

firm would likely reduce containerboard 

output, raising containerboard prices 

throughout North America. 

International Paper would also likely 

accommodate its large rivals’ efforts to 

raise containerboard prices by reducing 

their own output, making such price 

increases more likely. These higher 

containerboard prices would, in turn, 

raise the prices of corrugated boxes. 

3. Because International Paper’s 

proposed merger with Temple-Inland is 

likely to substantially lessen 

competition in violation of Section 7 of 

the Clayton Act, 15 U.S.C. 18, the Court 

should permanently enjoin this merger. 

II. Jurisdiction, Venue, and Interstate 

Commerce 

4. The United States brings this action 

under Section 15 of the Clayton Act, 15 

U.S.C. 25, seeking injunctive and other 

equitable relief from the defendants’ 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

5. International Paper and TempleInland sell containerboard, corrugated 

boxes, and other industrial products 

throughout the United States. They 

engage in interstate commerce and in 

activities substantially affecting 

interstate commerce. 

6. The Court has subject-matter 

jurisdiction over this action under 

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

25; and 28 U.S.C. 1331, 1337(a), and 

1345. 

7. Defendants have consented to 

personal jurisdiction in this District. 

The Court also has personal jurisdiction 

over the defendants under Section 12 of 

the Clayton Act, 15 U.S.C. 22. 

8. Defendants have consented to 

venue in this District. Venue is also 

proper in this District under Section 12 

of the Clayton Act, 15 U.S.C. 22, and 

28 U.S.C. 1391. 

III. Defendants and the Transaction 

9. International Paper is a corporation 

organized and existing under the laws of 

the State of New York, with its 

headquarters in Memphis, Tennessee. 

International Paper owns and operates 

12 containerboard mills and 133 plants 

that convert containerboard into 

corrugated boxes (‘‘box plants’’) in the 

United States. In 2010, International 

Paper’s annual revenues were 

approximately $25.2 billion, with its 

North American Industrial Packaging 

Group, which produces containerboard 

and corrugated products, accounting for 

$8.4 billion. 

10. Temple-Inland is a corporation 

organized and existing under the laws of 

the State of Delaware, with its 

headquarters in Austin, Texas. TempleInland owns and operates seven 

containerboard mills and 53 box plants 

in the United States. In 2010, TempleInland’s annual revenues were 

approximately $3.8 billion, with its 

corrugated-packaging business 

accounting for $3.2 billion. 

IV. The Relevant Market 

A. Relevant Product Market: 

Containerboard 

11. The relevant product market for 

analyzing the likely effects of the 

proposed merger is containerboard. 

There are two types of containerboard: 

(1) Linerboard, the paper that forms the 

inner and outer facings of a corrugated 

sheet; and (2) medium, the paper that is 

inserted between the inner and outer 

linerboards in a wavy, fluted pattern. 

Linerboard is made from virgin wood 

fiber, recycled fiber (usually ‘‘old 

corrugated containers,’’ or ‘‘OCC’’), or a 

combination of both virgin and recycled 

fibers. Medium is typically made from 

recycled fiber, but can also be made 

from virgin fibers or a combination of 

recycled and virgin fibers. 

12. Linerboard and medium are 

relatively undifferentiated products. 

The linerboard made by one North 

American producer is substantially the 

same as the linerboard made by other 

producers. The medium made by the 

various producers is also substantially 

the same. 

13. Although linerboard and medium 

are typically produced on different 

machines and have different 

performance characteristics, it is 

appropriate to view them as a single 

relevant product market because (1) 

containerboard producers and their 

customers generally regard competition 

in terms of a single containerboard 

market, not separate markets for 

linerboard and medium, and (2) 

analyzing them as separate products 

would not significantly alter the market 

shares or the analysis of the proposed 

merger’s competitive effects. 

14. Producers manufacture 

containerboard at mills and then ship it 

to box plants. At box plants, a large 

machine called a corrugator combines 

the linerboard and medium into rigid 

corrugated sheets. Box plants then 

convert the sheets into corrugated 

packaging, including corrugated boxes 

and displays. The work performed at 

box plants is sometimes divided 

between separate facilities called sheet 

feeders (which combine linerboard and 

medium into corrugated sheets) and 

sheet plants (which convert the sheets 

into corrugated boxes). Containerboard 

typically is the largest cost component 

of a corrugated box, accounting for a 

majority of the price. 

15. For box manufacturers, there is no 

reasonable substitute for 

containerboard: Boxes made from other 

types of paper lack the required 

performance characteristics, such as the 

necessary strength, basis weight, and 

thickness. Furthermore, for box 

customers, there is no reasonable 

substitute for corrugated boxes: Other 

products used to carry and transport 

goods, such as returnable plastic 

containers, are typically too expensive 

or lack the required performance 

characteristics to serve as a 

commercially viable alternative. 

16. Consequently, a small but 

significant increase in the price of 

containerboard in North America is 

unlikely to cause a sufficient number of 

containerboard or corrugated box 

customers to switch to other types of 

products such that the price increase 

would be unprofitable. Therefore, 

containerboard is a relevant product 

market and a ‘‘line of commerce’’ within 

the meaning of Section 7 of the Clayton 

Act. 

B. Relevant Geographic Market: North 

America 

17. The relevant geographic market 

for analyzing the likely effects of the 

proposed merger on the production and 

sale of containerboard is North America. 

18. Containerboard produced outside 

of North America is not a commercially 

viable substitute for containerboard 

produced in North America due to 


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10562 Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Notices 

higher transportation costs, volatile and 

unfavorable currency exchange rates, 

lower-quality fiber, and other 

disadvantages. Because of these 

disadvantages, containerboard produced 

outside of North America accounts for 

less than one percent of the 

containerboard sold in North America. 

19. Consequently, a small but 

significant increase in the price of 

containerboard in North America is 

unlikely to cause a sufficient number of 

customers of containerboard or 

corrugated boxes to switch to 

containerboard produced outside of 

North America to make the price 

increase unprofitable. Therefore, North 

America is a relevant geographic market 

and a ‘‘section of the country’’ within 

the meaning of Section 7 of the Clayton 

Act for the production and sale of 

containerboard. 

V. Likely Anticompetitive Effects 

20. The proposed merger would likely 

substantially lessen competition in the 

production and sale of containerboard 

in North America. International Paper 

controls approximately 26 percent of 

North American containerboard 

capacity, and Temple-Inland controls 

approximately 11 percent. Thus, as 

alleged in paragraph 2, the proposed 

merger would give International Paper 

control over approximately 37 percent 

of North American containerboard 

capacity. Post-merger, the four largest 

producers would control approximately 

74 percent of that capacity. A number of 

smaller producers, none with a share 

higher than three percent, account for 

the remainder of the market. 

21. Using a standard concentration 

measure called the Herfindahl– 

Hirschman Index (or ‘‘HHI,’’ defined 

and explained in Appendix A), the 

proposed merger would significantly 

raise market concentration and result in 

a moderately concentrated market, 

producing an HHI increase of 

approximately 605 and a post-merger 

HHI of approximately 2,025. The 

defendants’ combined market share 

(approximately 37 percent), coupled 

with the significant increase in market 

concentration (605), exceed the levels 

that courts have found to create a 

presumption that a proposed merger 

likely would substantially lessen 

competition. 

22. The proposed merger is likely to 

cause International Paper to engage in 

unilateral conduct that would raise the 

market price of containerboard. In the 

containerboard industry, there is a close 

relationship between the market price 

and industry output. All else equal, 

when industry output grows, the market 

price of containerboard falls, and as 

industry output shrinks, the market 

price of containerboard rises. Because of 

this close relationship, a containerboard 

producer can raise the market price of 

containerboard by strategically reducing 

output, for example, by idling 

containerboard machines or closing 

mills. When a producer significantly 

reduces output, it loses profits on the 

output that it removed, but it gains 

profits (from the resulting higher price) 

on the output that remains. 

23. A producer’s willingness to raise 

the market price by reducing output 

depends on its size: As a producer 

grows larger, it is more likely to profit 

from strategically reducing output 

because it will have more sales at the 

higher price to offset the lost sales on 

the reduced output. In contrast, a small 

producer is unlikely to profit from 

reducing output because it will not have 

sufficient remaining sales at the higher 

price, making the reduction 

unprofitable. 

24. By combining the containerboard 

capacity of International Paper and 

Temple-Inland, the proposed merger 

would significantly expand the volume 

of containerboard over which 

International Paper would benefit from 

a price increase. With that additional 

volume, International Paper would 

likely find it profitable to strategically 

reduce containerboard output, for 

example, by idling containerboard 

machines or closing mills. As described 

generally in paragraphs 22–23, although 

International Paper would lose profits 

on the output that it removed, it would 

gain even greater profits on the output 

that remains. 

25. The proposed merger would also 

likely cause International Paper to 

engage in parallel accommodating 

conduct. Due to its additional 

containerboard volume obtained as a 

result of the merger, International Paper 

would benefit more from a price 

increase after the proposed merger. 

Thus, if a large rival attempted to raise 

the market price by reducing output, 

International Paper would likely 

accommodate its rival’s actions by 

reducing or not increasing its own 

output. The rival would thus be likely 

to increase the market price by reducing 

output after International Paper and 

Temple-Inland complete the proposed 

merger. 

VI. Absence of Countervailing Factors 

26. Supply responses from 

competitors or potential competitors 

will not prevent the likely 

anticompetitive effects of the proposed 

merger. Virtually all existing North 

American containerboard producers are 

capacity-constrained and have other 

operational limitations that would 

prevent them from significantly 

expanding output using their existing 

machines in response to a post-merger 

increase in the price of containerboard. 

North American producers are also 

unlikely to respond to a domestic price 

increase by diverting a significant 

amount of their containerboard exports 

to the North American market. 

27. Entry and expansion in the 

containerboard market through the 

construction of new containerboard 

mills or machines also are unlikely to 

occur in a timely manner or on a scale 

sufficient to undo the competitive harm 

that the proposed merger would 

produce. New entry typically requires 

investing hundreds of millions of 

dollars in equipment and facilities, 

obtaining extensive environmental 

permits, and establishing a reliable 

distribution system. Competitors are 

unlikely to build new containerboard 

mills or install new containerboard 

machines in response to a small but 

significant price increase, or do so 

quickly enough to defeat one. 

28. Defendants cannot demonstrate 

cognizable, merger-specific efficiencies 

that are sufficient to reverse the 

proposed merger’s anticompetitive 

effects. 

VII. Violation Alleged 

29. The United States hereby 

incorporates paragraphs 1 through 28. 

30. International Paper’s proposed 

merger with Temple-Inland would 

likely substantially lessen competition 

in the market for containerboard, in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

31. Unless enjoined, the proposed 

merger would likely have the following 

effects, among others: 

a. Competition between International 

Paper and Temple-Inland for the sale of 

containerboard would be eliminated; 

b. Competition generally in the sale of 

containerboard in North America would 

likely be substantially lessened; and 

c. Prices for containerboard in North 

America would likely increase to levels 

above those that would prevail absent 

the proposed merger. 

VIII. Requested Relief 

32. Plaintiff requests that this Court: 

a. Adjudge and decree that the 

proposed merger violates Section 7 of 

the Clayton Act, 15 U.S.C. 18; 

b. Preliminarily and permanently 

enjoin the defendants from carrying out 

the proposed merger or from entering 

into or carrying out any other 

agreement, understanding, or plan, the 

effect of which would be to bring the 

containerboard business of International 


srobinson on DSK4SPTVN1PROD with NOTICES
Federal Register / Vol. 77, No. 35 / Wednesday, February 22, 2012 / Notices 10563 

Paper and Temple-Inland under 

common ownership or control; 

c. Award plaintiff its costs in this 

action; and 

d. Award plaintiff such other relief as 

may be just and proper. 

Dated: February 10, 2012 

Respectfully submitted, 

For Plaintiff United States of America: 

/s/ Sharis A. Pozen lllllllllll

Sharis A. Pozen (D.C. Bar #446732), 

Acting Assistant Attorney General. 

/s/ Leslie C. Overton 

Leslie C. Overton (D.C. Bar #454493), 

Deputy Assistant Attorney General. 

/s/ Patricia A. Brink 

Patricia A. Brink, 

Director of Civil Enforcement. 

/s/ Joshua H. Soven 

Joshua H. Soven (D.C. Bar #436633), 

Chief, Litigation I Section. 

/s/ Peter J. Mucchetti 

Peter J. Mucchetti (D.C. Bar #463202), 

Assistant Chief, Litigation I Section. 

/s/ David C. Kelly 

David C. Kelly,* 

Andrea V. Arias (D.C. Bar #1004270), 

Lawrence E. Buterman (D.C. Bar #998738), 

Justin M. Dempsey (D.C. Bar #425976), 

Lauren I. Dubick, 

Scott I. Fitzgerald, 

Mitchell H. Glende, 

Ryan M. Kantor, 

Karl D. Knutsen, 

John P. Lohrer (D.C. Bar #438939), 

Richard S. Martin, 

Natalie A. Rosenfelt, 

Michelle R. Seltzer (D.C. Bar #475482), 

Julie A. Tenney, 

Kevin Yeh, 

Attorneys, U.S. Department of Justice, 

Antitrust Division, Litigation I Section, 450 

Fifth Street, NW, Suite 4100, Washington, DC 

20530, Tel.: (202) 353–4211, Fax: (202) 307– 

5802. 

* Attorney of Record 

Appendix A—Herfindahl-Hirschman 

Index 

The term ‘‘HHI’’ means the 

Herfindahl-Hirschman Index, a 

commonly accepted measure of market 

concentration. The HHI is calculated by 

squaring the market share of each firm 

competing in the market and then 

summing the resulting numbers. For 

example, for a market consisting of four 

firms with shares of 30, 30, 20, and 20 

percent, the HHI is 2,600 (302 + 302 + 

202 + 202 = 2,600). The HHI takes into 

account the relative size distribution of 

the firms in a market. It approaches zero 

when a market is occupied by a large 

number of firms of relatively equal size 

and reaches its maximum of 10,000 

points when a market is controlled by 

a single firm. The HHI increases both as 

the number of firms in the market 

decreases and as the disparity in size 

between those firms increases. 

Markets in which the HHI is between 

1,500 and 2,500 points are considered to 

be moderately concentrated, and 

markets in which the HHI is in excess 

of 2,500 points are considered to be 

highly concentrated. See U.S. 

Department of Justice & FTC, Horizontal 

Merger Guidelines § 5.3 (2010). 

Transactions that increase the HHI by 

more than 200 points in highly 

concentrated markets presumptively 

raise antitrust concerns under the 

Horizontal Merger Guidelines issued by 

the Department of Justice and the 

Federal Trade Commission. See id. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

International Paper Company and TempleInland Inc., Defendants. 

Case: 1:12–cv–00227. 

Assigned To: Collyer, Rosemary M. 

Assign Date: 2/10/2012. 

Description: Antitrust. 

Competitive Impact Statement 

Plaintiff United States of America 

(‘‘United States’’), pursuant to Section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

Act’’), 15 U.S.C. 16(b)–(h), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

The United States filed a civil 

antitrust lawsuit on February 10, 2012, 

seeking to enjoin Defendant 

International Paper Company 

(‘‘International Paper’’) from acquiring 

Defendant Temple-Inland Inc. 

(‘‘Temple-Inland’’), and alleging that the 

merger would likely substantially lessen 

competition in the market for 

containerboard in North America in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. The loss of 

competition would likely result in 

higher containerboard prices and lower 

containerboard output in the United 

States. 

At the same time the Complaint was 

filed, the United States filed an Asset 

Preservation Stipulation and Order and 

a proposed Final Judgment, which are 

designed to preserve competition for the 

production and sale of containerboard 

in North America. Under the proposed 

Final Judgment, which is explained 

more fully below, Defendants are 

required to divest one International 

Paper mill and two Temple-Inland mills 

that manufacture containerboard. 

Pursuant to the Asset Preservation 

Stipulation and Order, International 

Paper and Temple-Inland must ensure 

that the assets being divested continue 

to be operated as ongoing, economically 

viable, and competitive assets until the 

divestitures required by the proposed 

Final Judgment have been 

accomplished. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. Events Giving Rise to the Alleged 

Violation 

A. Defendants and the Proposed 

Transaction 

On September 6, 2011, International 

Paper agreed to acquire Temple-Inland 

for $4.3 billion. International Paper and 

Temple-Inland are, respectively, the 

largest and third-largest producers of 

containerboard in the United States and 

Canada (which the containerboard 

industry and the Complaint refer to 

collectively as ‘‘North America’’). 

Containerboard is the type of paper that 

is used to make corrugated boxes. 

International Paper, a New York 

corporation headquartered in Memphis, 

Tennessee, owns and operates 12 

containerboard mills and 133 plants that 

convert containerboard into corrugated 

boxes (‘‘box plants’’) in the United 

States. International Paper controls 

approximately 26 percent of North 

American containerboard capacity. In 

2010, International Paper’s revenues 

were approximately $25.2 billion, with 

its North American Industrial Packaging 

Group, which produces containerboard 

and corrugated products, accounting for 

$8.4 billion. 

Temple-Inland, a Delaware 

corporation headquartered in Austin, 

Texas, owns and operates seven 

containerboard mills and 53 box plants 

in the United States. Temple-Inland 

controls approximately 11 percent of 

North American containerboard 

capacity. In 2010, Temple-Inland’s 

annual revenues were approximately 

$3.8 billion, with its corrugatedpackaging business accounting for $3.2 

billion. The proposed merger would 

have created a single firm in control of 

approximately 37 percent of North 

American containerboard capacity. 


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B. Competitive Effects of the Proposed 

Merger 

1. Containerboard Is the Relevant 

Product Market 

The Complaint alleges that 

containerboard is a relevant product 

market within the meaning of Section 7 

of the Clayton Act. There are two types 

of containerboard: (1) Linerboard, the 

paper that forms the inner and outer 

facings of a corrugated sheet; and (2) 

medium, the paper that is inserted 

between the inner and outer linerboards 

in a wavy, fluted pattern. Linerboard is 

made from virgin wood fiber, recycled 

fiber (usually ‘‘old corrugated 

containers,’’ or ‘‘OCC’’), or a 

combination of both virgin and recycled 

fibers. Medium is typically made from 

recycled fiber, but can also be made 

from virgin fibers or a combination of 

recycled and virgin fibers. 

Linerboard and medium are relatively 

undifferentiated products. The 

linerboard made by one North American 

producer is substantially the same as the 

linerboard made by other producers. 

The medium made by the various 

producers is also substantially the same. 

Although linerboard and medium are 

typically produced on different 

machines and have different 

performance characteristics, it is 

appropriate to view them as a single 

relevant product market because (1) 

containerboard producers and their 

customers generally regard competition 

in terms of a single containerboard 

market, not separate markets for 

linerboard and medium, and (2) 

analyzing them as separate products 

would not significantly alter the market 

shares or the analysis of the proposed 

merger’s competitive effects. 

Producers manufacture 

containerboard at mills and then ship it 

to box plants. At box plants, a large 

machine called a corrugator combines 

the linerboard and medium into rigid 

corrugated sheets. Box plants then 

convert the sheets into corrugated 

packaging, including corrugated boxes 

and displays. The work performed at 

box plants is sometimes divided 

between separate facilities called sheet 

feeders (which combine linerboard and 

medium into corrugated sheets) and 

sheet plants (which convert the sheets 

into corrugated boxes). Containerboard 

typically is the largest cost component 

of a corrugated box, accounting for a 

majority of the price. 

For box manufacturers, there is no 

reasonable substitute for 

containerboard: boxes made from other 

types of paper lack the required 

performance characteristics, such as the 

necessary strength, basis weight, and 

thickness. Furthermore, for box 

customers, there is no reasonable 

substitute for corrugated boxes: other 

products used to carry and transport 

goods, such as returnable plastic 

containers, are typically too expensive 

or lack the required performance 

characteristics to serve as a 

commercially viable alternative. 

Therefore, a small but significant 

increase in the price of containerboard 

in North America is unlikely to cause a 

sufficient number of containerboard or 

corrugated box customers to switch to 

other types of products such that the 

price increase would be unprofitable. 

Accordingly, containerboard is a 

relevant product market and a ‘‘line of 

commerce’’ within the meaning of 

Section 7 of the Clayton Act. 

2. North America Is a Relevant 

Geographic Market 

The Complaint alleges that North 

America is a relevant geographic market 

for the production and sale of 

containerboard within the meaning of 

Section 7 of the Clayton Act. 

Containerboard produced outside of 

North America is not a commercially 

viable substitute for containerboard 

produced in North America due to 

higher transportation costs, unfavorable 

currency exchange rates, lower-quality 

fiber, and other disadvantages to 

producers of containerboard outside of 

North America seeking to import 

containerboard into North America. 

Therefore, a small but significant 

increase in the price of containerboard 

produced in North America is unlikely 

to cause a sufficient number of 

customers of containerboard or 

corrugated boxes to switch to 

containerboard produced outside of 

North America to make such a price 

increase unprofitable. Accordingly, 

North America is a relevant geographic 

market for the production and sale of 

containerboard and a ‘‘section of the 

country’’ within the meaning of Section 

7 of the Clayton Act. 

3. Likely Anticompetitive Effects of the 

Proposed Merger 

The Complaint alleges that the 

proposed merger would likely 

substantially lessen competition in the 

production and sale of containerboard 

in North America. International Paper 

controls approximately 26 percent of 

North American containerboard 

capacity, and Temple-Inland controls 

approximately 11 percent. Therefore, 

the proposed merger would give 

International Paper control over 

approximately 37 percent of North 

American containerboard capacity. Postmerger, the four largest producers 

would control approximately 74 percent 

of that capacity. A number of smaller 

producers, none with a share higher 

than three percent, account for the 

remainder of the market. 

Using a standard measure of 

concentration called the Herfindahl– 

Herschman Index (‘‘HHI’’), the proposed 

merger would significantly raise market 

concentration and result in a moderately 

concentrated market, producing an HHI 

increase of approximately 605 and a 

post-merger HHI of approximately 

2,025. The defendants’ combined 

market share (approximately 37 

percent), coupled with the significant 

increase in market concentration (605), 

exceed the levels that courts have found 

to create a presumption that a proposed 

merger likely would substantially lessen 

competition. 

The proposed merger is likely to 

cause International Paper to engage in 

unilateral conduct that would raise the 

market price of containerboard. The 

competitive effects analysis described in 

Section 6.3 of the 2010 Horizontal 

Merger Guidelines (‘‘Merger 

Guidelines’’) is applicable to analyzing 

the unilateral competitive effects of this 

transaction. U.S. Dept. of Justice & FTC, 

Horizontal Merger Guidelines § 6.3 

(2010) (‘‘Merger Guidelines’’). Section 

6.3 of the Merger Guidelines provides 

that ‘‘[i]n markets involving relatively 

undifferentiated products, the Agencies 

may evaluate whether the merged firm 

will find it profitable unilaterally to 

suppress output and elevate the market 

price. A firm may leave capacity idle, 

refrain from building or obtaining 

capacity that would have been obtained 

absent the merger, or eliminate preexisting production capabilities.’’ 

In the containerboard industry, there 

is a close relationship between the 

market price and industry output. All 

else equal, when industry output grows, 

the market price of containerboard falls, 

and as industry output shrinks, the 

market price of containerboard rises. 

Because of this close relationship, a 

containerboard producer can raise the 

market price of containerboard by 

strategically reducing output, for 

example, by idling containerboard 

machines or closing mills. When a 

producer significantly reduces output, it 

loses profits on the output that it 

removed, but it gains profits (from the 

resulting higher price) on the output 

that remains. 

A producer’s willingness to raise the 

market price by reducing output 

depends on its size: As a producer 

grows larger, it is more likely to profit 

from strategically reducing output 

because it will have more sales at the 

higher price to offset the lost sales on 


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the reduced output. In contrast, a small 

producer is unlikely to profit from 

reducing output because it will not have 

sufficient remaining sales at the higher 

price, making the reduction 

unprofitable. 

As alleged in the Complaint, by 

combining the containerboard capacity 

of International Paper and TempleInland, the proposed merger would 

significantly expand the volume of 

containerboard over which International 

Paper would benefit from a price 

increase. With that additional volume, 

International Paper would likely find it 

profitable to strategically reduce 

containerboard output, for example, by 

idling containerboard machines or 

closing mills. Although International 

Paper would lose profits on the output 

that it removed, it would gain even 

greater profits on the output that 

remains. 

The proposed merger would also 

likely cause International Paper to 

engage in parallel accommodating 

conduct. As described in Section 7 of 

the Merger Guidelines, ‘‘[p]arallel 

accommodating conduct [involves] 

situations in which each rival’s 

response to competitive moves made by 

others is individually rational, and not 

motivated by retaliation or deterrence 

nor intended to sustain an agreed-upon 

market outcome, but nevertheless 

emboldens price increases and weakens 

competitive incentives to reduce prices 

or offer customers better terms.’’ 

Due to its additional containerboard 

volume obtained as a result of the 

merger, International Paper would 

benefit more from a price increase after 

the proposed merger. Thus, if a large 

rival attempted to raise the market price 

by reducing output, International Paper 

would likely accommodate its rival’s 

actions by reducing or not increasing its 

own output. The rival would thus be 

likely to increase the market price by 

reducing output after International 

Paper and Temple-Inland complete the 

proposed merger. 

4. Neither Supply Responses Nor Entry 

Would Constrain the Likely 

Anticompetitive Effects of the Proposed 

Merger 

The Complaint alleges that supply 

responses from competitors or potential 

competitors will not prevent the likely 

anticompetitive effects of the proposed 

merger. Virtually all existing North 

American containerboard producers are 

capacity-constrained and have other 

operational limitations that would 

prevent them from significantly 

expanding output using their existing 

machines in response to a post-merger 

increase in the price of containerboard. 

Further, North American producers are 

also unlikely to respond to a domestic 

price increase by diverting a significant 

amount of their containerboard exports 

to the North American market. 

Entry and expansion in the 

containerboard market through the 

construction of new containerboard 

mills or machines also are unlikely to 

occur in a timely manner or on a scale 

sufficient to undo the competitive harm 

that the proposed merger would 

produce. New entry typically requires 

investing hundreds of millions of 

dollars in equipment and facilities, 

obtaining extensive environmental 

permits, and establishing a reliable 

distribution system. Competitors are 

unlikely to build new containerboard 

mills or install new containerboard 

machines in response to a small but 

significant price increase, or do so 

quickly enough to defeat one. Moreover, 

Defendants cannot demonstrate 

cognizable, merger-specific efficiencies 

that are sufficient to reverse the 

proposed merger’s anticompetitive 

effects. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment requires 

Defendants to divest two of TempleInland’s containerboard mills and all 

associated mill assets and one of 

International Paper’s containerboard 

mills and all associated mill assets. 

Defendants must divest (1) both the 

Temple-Inland mill in Waverly, 

Tennessee (the ‘‘New Johnsonville 

Mill’’), with an annual containerboard 

production capacity of approximately 

372,900 tons, and the Temple-Inland 

mill in Ontario, California (the ‘‘Ontario 

Mill’’), with an annual containerboard 

production capacity of approximately 

360,200 tons; and (2) either the 

International Paper mill in Oxnard, 

California (the ‘‘Port Hueneme Mill’’), 

with an annual containerboard 

production capacity of approximately 

210,300 tons, or the International Paper 

mill in Henderson, Kentucky (the 

‘‘Henderson Mill’’), with an annual 

containerboard production capacity of 

approximately 222,400 tons, but not 

both of those mills. The New 

Johnsonville Mill, the Ontario Mill, the 

Port Hueneme Mill, and the Henderson 

Mill are referred to collectively as the 

‘‘Divestiture Mills.’’ It will be in 

Defendants’ discretion to decide 

whether to divest either the Port 

Hueneme Mill or the Henderson Mill 

unless a divestiture trustee is appointed 

pursuant to Section V of the proposed 

Final Judgment. 

Defendants’ divestiture of the 

Divestiture Mills would result in the 

sale of approximately 943,400 to 

955,400 tons of containerboard 

production capacity to a competitor or 

competitors of Defendants. Under the 

proposed Final Judgment, the 

Divestiture Mills may be sold to one or 

more buyers, with the approval of the 

United States in its sole discretion. In 

addition, Defendants are required to 

satisfy the United States in its sole 

discretion that the divested assets will 

be operated as viable ongoing 

businesses that will compete effectively 

in the North American containerboard 

market. 

In evaluating the likely competitive 

effects of the proposed merger, the 

United States considered market shares; 

costs of production; current and 

historical industry capacity, utilization 

rates, margins, and market pricing; 

historical and projected market demand 

for containerboard; and the likelihood of 

supply responses to increased 

containerboard prices. The United 

States concluded that allowing the 

merger as proposed would give the 

merged firm control of a sufficiently 

large amount of industry capacity that 

the firm would likely (a) strategically 

reduce its containerboard output, 

raising containerboard prices 

throughout North America, and (b) 

likely accommodate its large rivals’ 

efforts to raise containerboard prices by 

reducing their own output, making such 

price increases more likely. The 

divestitures required by the proposed 

Final Judgment will decrease this 

incentive by reducing the merged firm’s 

capacity and output and transferring 

that capacity to a competitor or 

competitors. As a result, the divestitures 

will reduce the incentive of the merged 

firm to raise price by reducing output 

and capacity. 

At the option of the Acquirer(s), the 

proposed Final Judgment requires 

Defendants to enter into an agreement 

pursuant to which Defendants shall 

purchase containerboard produced by 

the Divestiture Mills that are sold to the 

Acquirer(s). Under the agreement, the 

Acquirer(s) shall have the right to 

require Defendants to purchase up to 

100 percent of the volume of 

containerboard supplied by the 

particular Divestiture Mill in 2011 to 

Defendants’ box plants or other facilities 

in the first year of the contract, up to 75 

percent of this volume during the 

second year, and up to 50 percent 

during the third year. Any such 

agreement shall have a term of no longer 

than three years. Similarly, at the option 

of the Acquirer(s), and upon the 

approval of the United States, the 

proposed Final Judgment requires 

Defendants to provide certain transition 


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services for up to 12 months as part of 

the divestiture. Both provisions ensure 

that the Acquirer(s) will be able to 

profitably operate the Divestiture Mills, 

and that they will remain a competitive 

constraint on Defendants. 

Section IV of the proposed Final 

Judgment requires Defendants to 

complete the divestiture within 120 

days after the filing of the Complaint in 

this matter with one or more 30-day 

extensions not to exceed 60 calendar 

days in total, which extensions shall be 

granted at the sole discretion of the 

United States. If Defendants do not 

accomplish the divestiture within the 

period prescribed in the proposed Final 

Judgment, the proposed Final Judgment 

provides for the Court to appoint a 

trustee, upon application of the United 

States, to accomplish the divestitures. If 

a trustee is appointed, the proposed 

Final Judgment provides that 

Defendants will pay all of the costs and 

expenses of the trustee. The trustee’s 

commission will be structured so as to 

provide an incentive for the trustee 

based on the price obtained and the 

speed with which the divestiture is 

accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court and the United States setting 

forth his or her efforts to accomplish the 

divestiture. If any of the requisite 

divestitures has not been accomplished 

at the end of the trustee’s term, the 

trustee and the United States will make 

recommendations to the Court, which 

may enter such orders as appropriate to 

carry out the purpose of the trust, 

including extending the trust or the 

term of the trustee’s appointment. 

The proposed Final Judgment also 

provides that the United States may 

appoint a monitoring trustee, subject to 

the approval of the Court, to ensure that 

Defendants expeditiously comply with 

all of their obligations and perform all 

of their responsibilities under the Final 

Judgment and the Asset Preservation 

Stipulation and Order. The monitoring 

trustee shall serve at the cost and 

expense of Defendants, on customary 

and reasonable terms and conditions 

agreed to by the monitoring trustee and 

the United States. 

Pursuant to the Asset Preservation 

Stipulation and Order, until the 

divestitures under the proposed Final 

Judgment have been accomplished, 

Defendants are required to preserve, 

maintain, and operate all four 

Divestiture Mills as ongoing businesses, 

and are prohibited from taking any 

action that would jeopardize the 

divestitures required by the proposed 

Final Judgment. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

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

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against Defendants. 

V. Procedures for Modification of the 

Proposed Final Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least 60 days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within 60 days of the date 

of publication of this Competitive 

Impact Statement in the Federal 

Register or the last date of publication 

in a newspaper of the summary of this 

Competitive Impact Statement, 

whichever is later. All comments 

received during this period will be 

considered by the Department of Justice, 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to the Court’s entry of 

judgment. The comments and the 

response of the United States will be 

filed with the Court and published in 

the Federal Register. Written comments 

should be submitted to: Joshua H. 

Soven, Esq., Chief, Litigation I Section, 

Antitrust Division, United States 

Department of Justice, 450 Fifth Street 

NW., Suite 4100, Washington, DC 

20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against Defendants. The United States 

could have initiated a civil action in 

federal district court seeking a judicial 

order enjoining International Paper’s 

acquisition of Temple-Inland. The 

United States is satisfied, however, that 

the divestiture of the assets described in 

the proposed Final Judgment will 

preserve competition in the production 

and sale of containerboard in North 

America. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a 60-day 

comment period, after which the court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

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

making that determination, the court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) The impact of entry of such 

judgment upon competition in the 

relevant market or markets, upon the 

public generally and individuals 

alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public 

benefit, if any, to be derived from a 

determination of the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). 

In considering these statutory factors, 

the court’s inquiry is necessarily a 

limited one as the government is 

entitled to ‘‘broad discretion to settle 

with the defendant within the reaches of 

the public interest.’’ United States v. 

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

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

States v. SBC Commc’ns, Inc., 489 F. 

Supp. 2d 1 (D.D.C. 2007) (assessing 

public interest standard under the 

Tunney Act); United States v. InBev 

N.V./S.A., 2009–2 Trade Cas. (CCH) 

¶ 76,736, 2009 U.S. Dist. LEXIS 84787, 

No. 08–1965 (JR), at *3 (D.D.C. Aug. 11, 


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1The 2004 amendments substituted ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for a court to 

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); 

see also SBC Commc’ns, 489 F. Supp. 2d at 11 

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

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

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

limited to approving or disapproving the consent 

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

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

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’); see generally 

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

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

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

3See United States v. Enova Corp., 107 F. Supp. 

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

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

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

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of 

corrupt failure of the government to discharge its 

duty, the Court, in making its public interest 

finding, should * * * carefully consider the 

explanations of the government in the competitive 

impact statement and its responses to comments in 

order to determine whether those explanations are 

reasonable under the circumstances.’’); H.R. Rep. 

No. 93–1463, at 4 (1974), as reprinted in 1974 

U.S.C.C.A.N. 6535, 6539 (‘‘Where the public 

interest can be meaningfully evaluated simply on 

the basis of briefs and oral arguments, this is the 

approach that should be utilized.’’). 

2009) (noting that the court’s review of 

a consent judgment is limited and only 

inquires ‘‘into whether the government’s 

determination that the proposed 

remedies will cure the antitrust 

violations alleged in the complaint was 

reasonable, and whether the 

mechanisms to enforce the final 

judgment are clear and manageable’’).1

A court considers under the APPA, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

United States’ complaint, whether the 

decree is sufficiently clear, whether 

enforcement mechanisms are sufficient, 

and whether the decree may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

decree, a court may not ‘‘ ‘engage in an 

unrestricted evaluation of what relief 

would best serve the public.’ ’’ United 

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

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

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

Cir. 1981)); see also Microsoft, 56 F.3d 

at 1460–62; InBev, 2009 U.S. Dist. 

LEXIS 84787, at *3; United States v. 

Alcoa, Inc., 152 F. Supp. 2d 37, 40 

(D.D.C. 2001). Courts have held that: 

[t]he balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in 

the first instance, to the discretion of the 

Attorney General. The court’s role in 

protecting the public interest is one of 

insuring that the government has not 

breached its duty to the public in 

consenting to the decree. The court is 

required to determine not whether a 

particular decree is the one that will 

best serve society, but whether the 

settlement is ‘‘within the reaches of the 

public interest.’’ More elaborate 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).2 In 

determining whether a proposed 

settlement is in the public interest, a 

district court ‘‘must accord deference to 

the government’s predictions about the 

efficacy of its remedies, and may not 

require that the remedies perfectly 

match the alleged violations.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17; see 

also Microsoft, 56 F.3d at 1461 (noting 

the need for courts to be ‘‘deferential to 

the government’s predictions as to the 

effect of the proposed remedies’’); 

United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003) (noting that the court 

should grant due respect to the United 

States’ ‘‘prediction as to the effect of 

proposed remedies, its perception of the 

market structure, and its views of the 

nature of the case’’). 

Courts have greater flexibility in 

approving proposed consent decrees 

than in crafting their own decrees 

following a finding of liability in a 

litigated matter. ‘‘[A] proposed decree 

must be approved even if it falls short 

of the remedy the court would impose 

on its own, as long as it falls within the 

range of acceptability or is ‘within the 

reaches of public interest.’ ’’ United 

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

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

omitted) (quoting United States v. 

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

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

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

see also United States v. Alcan 

Aluminum Ltd., 605 F. Supp. 619, 622 

(W.D. Ky. 1985) (approving the consent 

decree even though the court would 

have imposed a greater remedy). To 

meet this standard, the United States 

‘‘need only provide a factual basis for 

concluding that the settlements are 

reasonably adequate remedies for the 

alleged harms.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 17. 

Moreover, the court’s role under the 

APPA is limited to reviewing the 

remedy in relation to the violations that 

the United States has alleged in its 

complaint, and the APPA does not 

authorize the court to ‘‘construct [its] 

own hypothetical case and then 

evaluate the decree against that case.’’ 

Microsoft, 56 F.3d at 1459; see also 

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

*20 (‘‘the ‘public interest’ is not to be 

measured by comparing the violations 

alleged in the complaint against those 

the court believes could have, or even 

should have, been alleged’’). Because 

the ‘‘court’s authority to review the 

decree depends entirely on the 

government’s exercising its 

prosecutorial discretion by bringing a 

case in the first place,’’ it follows that 

‘‘the court is only authorized to review 

the decree itself,’’ and not to ‘‘effectively 

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Microsoft, 56 F.3d at 1459– 

60. As this Court confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments to the 

Tunney Act, Congress made clear its 

intent to preserve the practical benefits 

of utilizing consent decrees in antitrust 

enforcement, adding the unambiguous 

instruction that ‘‘[n]othing in this 

section shall be construed to require the 

court to conduct an evidentiary hearing 

or to require the court to permit anyone 

to intervene.’’ 15 U.S.C. 16(e)(2). This 

language effectuates what Congress 

intended when it enacted the Tunney 

Act in 1974. As Senator Tunney 

explained, ‘‘[t]he court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’ 

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

of Senator Tunney). Rather, the 

procedure for the public interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains 

sharply proscribed by precedent and the 

nature of Tunney Act proceedings.’’ 

SBC Commc’ns, 489 F. Supp. 2d at 11.3

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: February 10, 2012 

Respectfully submitted, 

/s/David C. Kelly 

David C. Kelly,* 

Andrea V. Arias (DC Bar #1004270), 

Natalie A. Rosenfelt, 

Kevin Yeh, 


srobinson on DSK4SPTVN1PROD with NOTICES
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Attorneys, U.S. Department of Justice, 

Antitrust Division, Litigation I Section, 450 

Fifth Street NW., Suite 4100, Washington, DC 

20530. 

Tel.: (202) 353–4211 

Fax: (202) 307–5802 

*Attorney of Record 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

International Paper Company and TempleInland Inc., Defendants. 

[Proposed] Final Judgment 

Whereas, Plaintiff United States of 

America, filed its Complaint on 

February 10, 2012, and Plaintiff and 

Defendants International Paper 

Company (‘‘International Paper’’) and 

Temple-Inland Inc. (‘‘Temple-Inland’’) 

(collectively ‘‘Defendants’’), by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

And whereas, Defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights and assets 

by Defendants to assure that 

competition is not substantially 

lessened; 

And whereas, the United States 

requires Defendants to make certain 

divestitures for the purpose of 

remedying the loss of competition 

alleged in the Complaint; 

And whereas, Defendants have 

represented to the United States that the 

divestitures required below can and will 

be made and that Defendants will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the parties, it is ordered, 

adjudged, and decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of, and each of the parties 

to, this action. The Complaint states a 

claim upon which relief may be granted 

against Defendants under Section 7 of 

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

18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ or ‘‘Acquirers’’ means 

the person, persons, entity, or entities to 

whom Defendants divest some or all of 

the Divestiture Assets. 

B. ‘‘Containerboard’’ means 

linerboard and medium, the paper that 

is used to make corrugated boxes. 

C. ‘‘Divestiture Assets’’ means the 

Divestiture Mills and all assets relating 

to the Divestiture Mills, including: 

(1) All tangible assets necessary to 

operate, used in or for, or devoted to a 

Divestiture Mill, including, but not 

limited to, assets relating to research 

and development activities; all 

manufacturing equipment, tooling and 

fixed assets, real property (leased or 

owned), personal property, inventory, 

containerboard reserves, information 

technology systems, office furniture, 

materials, supplies, docking facilities, 

warehouses and storage facilities, and 

other tangible property and all assets 

used exclusively in connection with the 

Divestiture Mills; all licenses, permits, 

and authorizations issued by any 

governmental organization relating to 

the Divestiture Mills; all contracts, 

teaming arrangements, agreements, 

leases (including renewal rights), 

commitments, certifications, and 

understandings, relating to the 

Divestiture Mills, including supply or 

purchase agreements; all customer lists, 

contracts, accounts, and credit records; 

all interests in, and contracts relating to, 

power generation; and all repair and 

performance records and all other 

records relating to the Divestiture Mills; 

and 

(2) All intangible assets necessary to 

operate, used in or for, or devoted to a 

Divestiture Mill, including, but not 

limited to, all contractual rights, 

patents, licenses and sublicenses, 

intellectual property, copyrights, 

technical information, computer 

software and related documentation, 

know-how, trade secrets, drawings, 

blueprints, designs, design protocols, 

specifications for materials, 

specifications for parts and devices, 

safety procedures for the handling of 

materials and substances, quality 

assurance and control procedures, 

environmental studies and assessments, 

design tools and simulation capability, 

all manuals and technical information 

Defendants provide to their employees, 

customers, suppliers, agents or 

licensees, and all research data 

concerning historic and current research 

and development efforts relating to the 

Divestiture Mills, including, but not 

limited to, designs of experiments, and 

the results of successful and 

unsuccessful designs and experiments. 

D. ‘‘Divestiture Mills’’ means the 

Defendants’ containerboard mills in the 

following locations: 

(1) Temple-Inland’s containerboard 

mill located at 2877 Scepter Road, 

Waverly, Tennessee 37185 (the ‘‘New 

Johnsonville Mill’’); 

(2) Temple-Inland’s containerboard 

mill located at 5110 East Jurupa Street, 

Ontario, California 91761 (the ‘‘Ontario 

Mill’’); and 

(3) Either International Paper’s 

containerboard mill located at 5936 

Perkins Road, Oxnard, California 93033 

(the ‘‘Port Hueneme Mill’’) or 

International Paper’s containerboard 

mill located at 1500 Commonwealth 

Drive, Henderson, Kentucky 42420 (the 

‘‘Henderson Mill’’). 

E. ‘‘Divestiture Trustee’’ means the 

trustee selected by the United States and 

appointed by the Court pursuant to 

Section V of this Final Judgment. 

F. ‘‘International Paper’’ means 

Defendant International Paper 

Company, a New York corporation with 

its headquarters in Memphis, 

Tennessee, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

G. ‘‘Monitoring Trustee’’ means the 

monitor selected by the United States 

pursuant to Section IX of this Final 

Judgment. 

H. ‘‘Temple-Inland’’ means Defendant 

Temple-Inland, Inc., a Delaware 

corporation with its headquarters in 

Austin, Texas, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

III. Applicability 

A. This Final Judgment applies to 

each Defendant and all persons in active 

concert or participation with any 

Defendant who receives actual notice of 

this Final Judgment by personal service 

or otherwise. 

B. If, prior to complying with Section 

IV or V of this Final Judgment, 

Defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of lesser business units that include the 

Divestiture Assets, Defendants shall 

require the purchaser(s) to be bound by 

the provisions of this Final Judgment. 

Defendants need not obtain such an 

agreement from the Acquirer(s) of the 

assets divested pursuant to this Final 

Judgment. 

IV. Divestitures 

A. Defendants are ordered and 

directed, within 120 calendar days after 

the filing of the Complaint in this matter 


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or five calendar days after notice of 

entry of this Final Judgment by the 

Court, whichever is later, to divest the 

Divestiture Assets in a manner 

consistent with this Final Judgment to 

an Acquirer or Acquirers acceptable to 

the United States in its sole discretion. 

To comply with this requirement, 

Defendants must divest (1) both the 

New Johnsonville Mill and the Ontario 

Mill, and (2) either the Port Hueneme 

Mill or the Henderson Mill, but not both 

mills. Unless a Divestiture Trustee is 

appointed pursuant to Section V of this 

Final Judgment, Defendants shall have 

the discretion to decide whether to 

divest either the Port Hueneme Mill or 

the Henderson Mill. The United States, 

in its sole discretion, may agree to one 

or more 30-day extensions of the 120- 

day time period, not to exceed sixty (60) 

calendar days in total, and shall notify 

the Court in such circumstances. 

Defendants agree to use their best efforts 

to divest the Divestiture Assets as 

expeditiously as possible. 

B. In accomplishing the divestiture 

ordered by this Final Judgment, 

Defendants promptly shall make known, 

by usual and customary means, the 

availability of the Divestiture Assets. 

Defendants shall inform any person who 

inquires about a possible purchase of 

the Divestiture Assets that they are 

being divested pursuant to this Final 

Judgment and provide that person with 

a copy of this Final Judgment. 

Defendants shall offer to furnish to all 

prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divestiture Assets customarily 

provided in a due diligence process 

except such information or documents 

subject to the attorney-client privilege or 

work-product doctrine. Defendants shall 

make available such information to the 

United States at the same time that such 

information is made available to any 

prospective Acquirer. 

C. Defendants shall provide 

prospective Acquirers and the United 

States with information relating to the 

personnel involved in the management, 

production, operation, and sales 

activities relating to the Divestiture 

Assets to enable the Acquirer(s) to make 

offers of employment. Defendants will 

not interfere with any negotiations by 

the Acquirer(s) to employ or contract 

with any Defendant employee whose 

primary responsibility is production, 

operations, or sales at the Divestiture 

Mills. Nor shall Defendants interfere 

with any negotiations by the Acquirer(s) 

to employ or contract with any of the 

Defendants’ sales force whose 

responsibilities include sales of 

containerboard produced by the 

Divestiture Mills to third-party 

customers. 

D. Defendants shall waive all noncompete agreements for any current or 

former employee whom the Acquirer(s) 

employ(s) with relation to the 

Divestiture Assets. 

E. Defendants shall permit 

prospective Acquirers of the Divestiture 

Assets to (1) have reasonable access to 

personnel; (2) make inspections of the 

physical facilities; (3) have access to any 

and all environmental, zoning, and 

other permit documents and 

information; and (4) have access to any 

and all financial, operational, or other 

documents and information customarily 

provided as part of a due diligence 

process. 

F. Defendants shall warrant to the 

Acquirer(s) that the Divestiture Assets 

will be operational on the date of sale, 

that there are no material defects in the 

environmental, zoning, or other permits 

pertaining to the operation of each asset, 

and that following the sale of the 

Divestiture Assets, Defendants will not 

undertake, directly or indirectly, any 

challenges to the environmental, zoning, 

or other permits relating to the 

operation of the Divestiture Assets. 

G. Defendants shall not take any 

action that will impede in any way the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

H. At the option of the Acquirer(s) 

and upon approval by the United States, 

in its sole discretion, Defendants shall 

enter into a transition services 

agreement based upon commercially 

reasonable terms and conditions. Such 

an agreement may not exceed 12 months 

from the date of divestiture. Transition 

services may include information 

technology support, information 

technology licensing, computer 

operations, data processing, logistics 

support, and such other services as 

reasonably necessary to operate the 

Divestiture Assets. Defendants shall 

designate employees, other than 

Defendants’ senior managers, to 

implement any such transition services 

agreement and shall establish, 

implement and maintain procedures 

and take such other steps that are 

reasonably necessary to prevent such 

employees from disclosing any 

confidential, proprietary, or business 

sensitive information of the Acquirer(s) 

to any other employee of Defendants, 

and to prevent such employees from 

using such information except as 

necessary to implement the transition 

services agreement. 

I. Unless the United States otherwise 

consents in writing, any divestiture of a 

mill pursuant to Section IV, or by the 

Divestiture Trustee appointed pursuant 

to Section V of this Final Judgment, 

shall include the mill and all assets 

relating to it, as defined in Section II.C, 

and shall be accomplished in such a 

way as to satisfy the United States, in its 

sole discretion, that the divestiture will 

achieve the purposes of this Final 

Judgment and that the Divestiture 

Assets can and will be used by the 

Acquirer(s) as part of a viable, ongoing 

business engaged in the production and 

sale of containerboard. The divestitures, 

whether pursuant to Section IV or 

Section V of this Final Judgment, 

(1) Shall be made to an Acquirer or 

Acquirers that, in the United States’ sole 

judgment, has or have the intent and 

capability (including the necessary 

managerial, operational, technical, and 

financial capability) of competing 

effectively in the production and sale of 

containerboard; and 

(2) Shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, that none of the terms of any 

agreement between an Acquirer and 

Defendants give Defendants the ability 

to unreasonably raise the Acquirer’s 

costs, to lower the Acquirer’s efficiency, 

or otherwise to interfere with the ability 

of an Acquirer to compete effectively. 

J. As part of a divestiture, and at the 

option of the Acquirer(s), Defendants 

shall negotiate a transitional agreement 

or transitional agreements to purchase 

containerboard on commercially 

reasonable terms and conditions from 

the Divestiture Mills that are sold to the 

Acquirer(s). Such agreement(s) shall 

have a term of no longer than three (3) 

years. The Acquirer of a Divestiture Mill 

shall have the right to require 

Defendants to purchase up to 100 

percent of the volume of containerboard 

supplied by the particular Divestiture 

Mill in 2011 to Defendants in the first 

year of the contract, up to 75 percent of 

this volume during the second year, and 

up to 50 percent during the third year. 

Defendants may agree to purchase more 

containerboard produced by the 

Divestiture Mill(s) than the amounts 

specified. The foregoing limitations and 

requirements do not affect Defendants’ 

ability to (1) maintain or enter into 

current or future ordinary-course 

containerboard trade agreements with 

the Acquirer(s) or (2) enter into 

ordinary-course containerboard supply 

agreements with the Acquirer(s) after 

the end of the three-year term of the 

purchase agreement(s) described in this 

sub-paragraph. 

V. Appointment of Trustee 

A. If Defendants have not divested 

some or all of the Divestiture Assets 

ordered by Section IV(A) of this Final 

Judgment within the time period 


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specified in Section IV(A), Defendants 

shall notify the United States of that fact 

in writing. Upon application of the 

United States, the Court shall appoint a 

Divestiture Trustee selected by the 

United States and approved by the 

Court to effect the divestiture of any 

Divestiture Mills that Defendants have 

not divested (the ‘‘remaining Divestiture 

Assets’’) in the following manner: 

(1) If Defendants have not divested 

the New Johnsonville Mill and/or the 

Ontario Mill, the Divestiture Trustee 

will divest the mill(s). 

(2) If Defendants have not divested 

the Port Hueneme Mill and have not 

divested the Henderson Mill, the 

Divestiture Trustee must divest one of 

these mills, but not both mills. The 

Divestiture Trustee shall have the 

discretion to decide whether to divest 

the Port Hueneme Mill or the 

Henderson Mill. The Divestiture Trustee 

shall make this determination based on 

the price and terms of the divestiture 

and the speed with which it can be 

accomplished, but timeliness is 

paramount. 

B. After the appointment of a 

Divestiture Trustee becomes effective, 

only the Divestiture Trustee shall have 

the right to sell the remaining 

Divestiture Assets. The Divestiture 

Trustee shall have the power and 

authority to accomplish the divestiture 

to Acquirer(s) acceptable to the United 

States at such price and on such terms 

as are then obtainable upon reasonable 

effort by the Divestiture Trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to Section 

V(D) of this Final Judgment, the 

Divestiture Trustee may hire at the cost 

and expense of Defendants any 

investment bankers, attorneys, or other 

agents, who shall be solely accountable 

to the Divestiture Trustee, reasonably 

necessary in the Divestiture Trustee’s 

judgment to assist in the divestiture. 

C. Defendants shall not object to a sale 

by the Divestiture Trustee on any 

ground other than the Divestiture 

Trustee’s malfeasance. Any such 

objections by Defendants must be 

conveyed in writing to the United States 

and the Divestiture Trustee within 10 

calendar days after the Divestiture 

Trustee has provided the notice 

required under Section VI. 

D. The Divestiture Trustee shall serve 

at the cost and expense of Defendants, 

on such terms and conditions as the 

United States approves, and shall 

account for all monies derived from the 

sale of assets sold by the Divestiture 

Trustee and all costs and expenses so 

incurred. After approval by the Court of 

the Divestiture Trustee’s accounting, 

including fees for its services and those 

of any professionals and agents retained 

by the Divestiture Trustee, all remaining 

money shall be paid to Defendants and 

the trust shall then be terminated. The 

compensation of the Divestiture Trustee 

and any professionals and agents 

retained by the Divestiture Trustee shall 

be reasonable in light of the value of the 

remaining Divestiture Assets and based 

on a fee arrangement providing the 

Divestiture Trustee with an incentive 

based on the price and terms of the 

divestiture and the speed with which it 

is accomplished, but timeliness is 

paramount. 

E. Defendants shall use their best 

efforts to assist the Divestiture Trustee 

in accomplishing the required 

divestiture. The Divestiture Trustee and 

any consultants, accountants, attorneys, 

and other persons retained by the 

Divestiture Trustee shall have full and 

complete access to the personnel, books, 

records, and facilities of remaining 

Divestiture Assets, and Defendants shall 

develop financial and other information 

relevant to the remaining Divestiture 

Assets as the Divestiture Trustee may 

reasonably request, subject to reasonable 

protection for trade secrets or other 

confidential research, development, or 

commercial information. Defendants 

shall take no action to interfere with or 

to impede the Divestiture Trustee’s 

accomplishment of the divestiture. 

F. After its appointment, the 

Divestiture Trustee shall file monthly 

reports with the United States and the 

Court setting forth the Divestiture 

Trustee’s efforts to accomplish the 

divestiture ordered under this Final 

Judgment. To the extent such reports 

contain information that the Divestiture 

Trustee deems confidential, such 

reports shall not be filed in the public 

docket of the Court. Such reports shall 

include the name, address, and 

telephone number of each person who, 

during the preceding month, made an 

offer to acquire, expressed an interest in 

acquiring, entered into negotiations to 

acquire, or was contacted or made an 

inquiry about acquiring any interest in 

the remaining Divestiture Assets, and 

shall describe in detail each contact 

with any such person. The Divestiture 

Trustee shall maintain full records of all 

efforts made to divest the remaining 

Divestiture Assets. 

G. If the Divestiture Trustee has not 

accomplished the divestiture ordered 

under this Final Judgment within six 

months after its appointment, the 

Divestiture Trustee shall promptly file 

with the Court a report setting forth: (1) 

The Divestiture Trustee’s efforts to 

accomplish the required divestiture; (2) 

the reasons, in the Divestiture Trustee’s 

judgment, why the required divestiture 

has not been accomplished; and (3) the 

Divestiture Trustee’s recommendations. 

To the extent the report contains 

information that the Divestiture Trustee 

deems confidential, the report shall not 

be filed in the public docket of the 

Court. The Divestiture Trustee shall at 

the same time furnish such report to the 

United States, which shall have the 

right to make additional 

recommendations consistent with the 

purpose of the trust. The Court 

thereafter shall enter such orders as it 

shall deem appropriate to carry out the 

purpose of this Final Judgment, which 

may, if necessary, include extending the 

trust and the term of the Divestiture 

Trustee’s appointment by a period 

requested by the United States. 

VI. Notice of Proposed Divestitures 

A. Within two business days 

following execution of a definitive 

divestiture agreement, Defendants or the 

Divestiture Trustee, whichever is then 

responsible for effecting the divestitures 

required herein, shall notify the United 

States of any proposed divestiture 

required by Section IV or V of this Final 

Judgment. If the Divestiture Trustee is 

responsible, it shall similarly notify 

Defendants. The notice shall set forth 

the details of the proposed divestiture 

and list the name, address, and 

telephone number of each person not 

previously identified who offered or 

expressed an interest in or desire to 

acquire any ownership interest in the 

Divestiture Assets, together with full 

details of the same. 

B. Within 15 calendar days of receipt 

by the United States of such notice, the 

United States may request from 

Defendants, the proposed Acquirer(s), 

any other third party, or the Divestiture 

Trustee, if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer(s), 

and any other potential Acquirer(s). 

Defendants and the Divestiture Trustee 

shall furnish to the United States any 

additional information requested within 

15 calendar days of the receipt of the 

request, unless the parties shall 

otherwise agree. 

C. Within 30 calendar days after 

receipt of the notice, or within 20 

calendar days after the United States has 

been provided the additional 

information requested from Defendants, 

the proposed Acquirer(s), any third 

party, and the Divestiture Trustee, 

whichever is later, the United States 

shall provide written notice to 

Defendants and the Divestiture Trustee, 

if there is one, stating whether or not it 

approves or objects to the proposed 


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divestiture. If the United States provides 

written notice that it does not object, the 

divestiture may be consummated, 

subject only to Defendants’ limited right 

to object to the sale under Section V(C) 

of this Final Judgment. Absent written 

notice that the United States does not 

object to the proposed Acquirer(s) or 

upon objection by the United States, a 

divestiture proposed under Section IV 

or Section V shall not be consummated. 

Upon objection by Defendants under 

Section V(C), a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendants shall not finance all or 

any part of any purchase made pursuant 

to Section IV or V of this Final 

Judgment. 

VIII. Asset Preservation 

Until the divestitures required by this 

Final Judgment have been 

accomplished, Defendants shall take all 

steps necessary to comply with the 

Asset Preservation Stipulation and 

Order entered by this Court. Defendants 

shall take no action that would 

jeopardize the divestitures ordered by 

this Court. 

IX. Appointment of Monitoring Trustee 

A. Upon the filing of this Final 

Judgment, the United States may, in its 

sole discretion, appoint a Monitoring 

Trustee, subject to approval by the 

Court. 

B. The Monitoring Trustee shall have 

the power and authority to monitor 

Defendants’ compliance with the terms 

of this Final Judgment and the Asset 

Preservation Stipulation and Order 

entered by this Court and shall have 

such powers as this Court deems 

appropriate. Subject to Section IX(D) of 

this Final Judgment, the Monitoring 

Trustee may hire any consultants, 

accountants, attorneys, or other persons 

reasonably necessary in the Monitoring 

Trustee’s judgment. These individuals 

shall be solely accountable to the 

Monitoring Trustee. 

C. Defendants shall not object to 

actions taken by the Monitoring Trustee 

in fulfillment of the Monitoring 

Trustee’s responsibilities under any 

Order of this Court on any ground other 

than the Monitoring Trustee’s 

malfeasance. Any such objections by 

Defendants must be conveyed in writing 

to the United States and the Monitoring 

Trustee within 10 calendar days after 

the action taken by the Monitoring 

Trustee giving rise to the Defendants’ 

objection. 

D. The Monitoring Trustee and any 

consultants, accountants, attorneys, and 

other persons retained by the 

Monitoring Trustee shall serve, without 

bond or other security, at the cost and 

expense of Defendants, on such terms 

and conditions as the United States 

approves. The compensation of the 

Monitoring Trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the Monitoring 

Trustee shall be on reasonable and 

customary terms commensurate with 

the individuals’ experience and 

responsibilities. 

E. The Monitoring Trustee shall have 

no responsibility or obligation for the 

operation of Defendants’ businesses. 

F. Defendants shall assist the 

Monitoring Trustee in monitoring 

Defendants’ compliance with their 

individual obligations under this Final 

Judgment and under the Asset 

Preservation Stipulation and Order. The 

Monitoring Trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the Monitoring 

Trustee shall have full and complete 

access to the personnel, books, records, 

and facilities relating to the Divestiture 

Assets, subject to reasonable protection 

for trade secret or other confidential 

research, development, or commercial 

information or any applicable 

privileges. Defendants shall take no 

action to interfere with or to impede the 

Monitoring Trustee’s accomplishment of 

its responsibilities. 

G. After its appointment, the 

Monitoring Trustee shall file monthly 

reports with the United States and the 

Court setting forth the Defendants’ 

efforts to comply with their individual 

obligations under this Final Judgment 

and under the Asset Preservation 

Stipulation and Order. To the extent 

such reports contain information that 

the Monitoring Trustee deems 

confidential, such reports shall not be 

filed in the public docket of the Court. 

H. The Monitoring Trustee shall serve 

until the divestiture of all of the 

Divestiture Assets is finalized pursuant 

to either Section IV or Section V of this 

Final Judgment and any transitional or 

purchase agreements described in 

Sections IV(H) and (J) of this Final 

Judgment have expired. 

I. If the United States determines that 

the Monitoring Trustee has ceased to act 

or failed to act diligently, the United 

States may appoint a substitute 

Monitoring Trustee in the same manner 

as provided in this Section. 

J. The Monitoring Trustee appointed 

pursuant to this Final Judgment may be 

the same person or entity appointed as 

a Divestiture Trustee pursuant to 

Section V of this Final Judgment. 

X. Affidavits 

A. Within 20 calendar days of the 

filing of the Complaint in this matter, 

and every 30 calendar days thereafter 

until the divestiture has been completed 

under Section IV or V, Defendants shall 

deliver to the United States an affidavit 

as to the fact and manner of their 

compliance with Section IV or V of this 

Final Judgment. Each such affidavit 

shall include the name, address, and 

telephone number of each person who, 

during the preceding 30 calendar days, 

made an offer to acquire, expressed an 

interest in acquiring, entered into 

negotiations to acquire, or was 

contacted or made an inquiry about 

acquiring, any interest in the Divestiture 

Assets, and shall describe in detail each 

contact with any such person during 

that period. Each such affidavit shall 

also include a description of the efforts 

Defendants have taken to solicit buyers 

for the Divestiture Assets and to provide 

required information to prospective 

Acquirers, including the limitations, if 

any, on such information. Provided that 

the information set forth in the affidavit 

is true and complete, any objection by 

the United States to information 

provided by Defendants, including 

limitations on the information, shall be 

made within 14 calendar days of receipt 

of such affidavit. 

B. Within 20 calendar days of the 

filing of the Complaint in this matter, 

Defendants shall deliver to the United 

States an affidavit that describes in 

reasonable detail all actions Defendants 

have taken and all steps Defendants 

have implemented on an ongoing basis 

to comply with Section VIII of this Final 

Judgment. Defendants shall deliver to 

the United States an affidavit describing 

any changes to the efforts and actions 

outlined in Defendants’ earlier affidavits 

filed pursuant to this section within 15 

calendar days after the change is 

implemented. 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

the Divestiture Assets until one year 

after such divestiture has been 

completed. 

XI. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

authorized representatives of the United 

States, including consultants and other 

persons retained by the United States, 

shall, upon written request of an 

authorized representative of the 

Assistant Attorney General in charge of 


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the Antitrust Division, and on 

reasonable notice to Defendants, be 

permitted: 

(1) Access during Defendants’ office 

hours to inspect and copy or, at the 

option of the United States, to require 

Defendants to provide hard copy or 

electronic copies of all books, ledgers, 

accounts, records, data, and documents 

in the possession, custody, or control of 

Defendants, relating to any matters 

contained in this Final Judgment; and 

(2) to interview, either informally or 

on the record, Defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

Defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, Defendants shall 

submit written reports or responses to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested, including, but not limited 

to, any transitional service, supply, or 

purchase agreements entered into 

between the Acquirer(s) and the 

Defendants pursuant to Section IV(H) or 

(J) of this Final Judgment. 

C. No information or documents 

obtained by the means provided in this 

Section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If, at the time information or 

documents are furnished by Defendants 

to the United States, Defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

26(c)(1)(G) of the Federal Rules of Civil 

Procedure, and Defendants mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

Rule 26(c)(1)(G) of the Federal Rules of 

Civil Procedure,’’ then the United States 

shall give Defendants 10 calendar days’ 

notice prior to divulging such material 

in any legal proceeding (other than a 

grand jury proceeding). 

XII. No Reacquisition 

Defendants may not reacquire any 

part of the Divestiture Assets during the 

term of this Final Judgment. 

XIII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIV. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire 10 

years from the date of its entry. 

XV. Public Interest Determination 

The parties have complied with the 

requirements of the Antitrust 

Procedures and Penalties Act, 15 U.S.C. 

16, including making copies available to 

the public of this Final Judgment, the 

Competitive Impact Statement, and any 

comments thereon and the United 

States’ responses to those comments. 

Based upon the record before the Court, 

which includes the Competitive Impact 

Statement and any comments and 

responses to comments filed with the 

Court, entry of this Final Judgment is in 

the public interest. 

Date: llllllllllllllllll

Court approval subject to procedures of the 

Antitrust Procedures and Penalties Act, 15 

U.S.C. § 16. 

lllllllllllllllllllll

United States District Judge. 

[FR Doc. 2012–3975 Filed 2–21–12; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF JUSTICE 

Federal Bureau of Investigation 

[OMB Number 1110–0043] 

Agency Information Collection 

Activities; Existing Collection, 

Comments Requested: the Voluntary 

Appeal File (VAF) Brochure 

ACTION: 30-Day Notice of Information 

Collection Under Review. 

The Department of Justice (DOJ) FBI 

Criminal Justice Information Services 

(CJIS) Division’s National Instant 

Criminal Background Check System 

(NICS) Section will be submitting the 

following information collection request 

to the Office of Management and Budget 

(OMB) for review and approval in 

accordance with the Paperwork 

Reduction Act of 1995. The proposed 

information collection is published to 

obtain comments from the public and 

affected agencies. This proposed 

information collection was previously 

published in the Federal Register 

Volume 76, Number 216, on November 

8, 2011, allowing for a 60-day comment 

period. 

The purpose of this notice is to allow 

for an additional 30 days for public 

comment until March 23, 2012. This 

process is conducted in accordance with 

Title 5, Code of Federal Regulations 

(CFR), § 1320.10. 

Written comments and/or suggestions 

regarding the items contained in this 

notice, especially the estimated public 

burden and associated response time, 

should be directed to the Office of 

Management and Budget, Office of 

Information and Regulatory Affairs, 

Attention: Department of Justice Desk 

Officer, Washington, DC, 20503. 

Additionally, comments may be 

submitted to OMB via facsimile to (202) 

395–7285. 

Written comments and suggestions 

from the public and affected agencies 

concerning the proposed collection of 

information are encouraged. Your 

comments should address one or more 

of the following four points: 

(1) Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency/component, 

including whether the information will 

have practical utility; 

(2) Evaluate the accuracy of the 

agency’s/component’s estimate of the 

burden of the proposed collection of the 

information, including the validity of 

the methodology and assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and minimize the burden of 

the collection of information on those 

who are to respond, including the use 

of appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submission of responses. 

Overview of This Information 

(1) Type of Information Collection: 

Approval of an Existing Collection 

(2) Title of the Forms: Voluntary 

Appeal File 

(3) Agency Form Number, if any, and 

the applicable component of the 

department sponsoring the collection: 

Form Number: 1110–0043. 

Sponsor: Criminal Justice Information 

Services (CJIS) Division of the FBI, 

Department of Justice (DOJ). 

(4) Affected Public who will be asked 

or required to respond, as well as a brief 

abstract: 

Primary: Any individual requesting 

entry into the Voluntary Appeal File 

(VAF) of the FBI Criminal Justice 

Information Services (CJIS) Division’s 


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