[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Notices]
[Pages 85311-85326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26794]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Koch Foods Incorporated; Proposed Final Judgment 
and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the Northern District of Illinois, 
Eastern Division, in United States v. Koch Foods Incorporated, Civil 
Action No. 23-15813. On November 9, 2023, the United States filed a 
Complaint alleging that Koch Foods Incorporated (``Koch''), one of the 
largest poultry processors in the United States, unlawfully requires 
independent chicken farmers to pay Koch an exit fee if the farmers 
switch from working with Koch to working with one of its rivals. Koch's 
practices are alleged to violate section 202(a) of the Packers and 
Stockyards Act and section 1 of the Sherman Act.
    The proposed Final Judgment, filed at the same time as the 
Complaint, requires Koch to refrain from including a termination 
payment obligation in any farmer contracts and from taking any steps to 
collect any termination payments for the next seven years. It also 
requires Koch to repay all termination payments it has received from 
farmers, and to reimburse farmers for legal costs they incurred in 
responding to Koch's efforts to collect termination payments.
    Koch is required to certify that it has given the required notices 
to farmers, made the required payments and reimbursements within 120 
days of entry of the Final Judgment, and submitted any disputed claims 
for payment or reimbursement to a referee selected by the Division, 
whose decision will be final. Koch will provide an annual certification 
that it continues to comply with provisions of the proposed Final 
Judgment for its duration of seven years, unless it is terminated 
earlier by agreement with the Division and a determination by the Court 
that termination is in the public interest. The proposed Final Judgment 
also imposes other cooperation and reporting requirements.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the Northern District 
of Illinois, Eastern Division. Copies of these materials may be 
obtained from the Antitrust Division upon request and payment of the 
copying fee set by Department of Justice regulations.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, including the name of the submitter, and 
responses thereto, will be posted on the Antitrust Division's website, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be submitted in English and 
directed to Chief, Civil Conduct Task Force, Antitrust Division, 
Department of Justice, 450 Fifth Street NW, Suite 8600, Washington, DC 
20530 (email address: <a href="/cdn-cgi/l/email-protection#edacb9bfa798898a80888399ae82809d81848c838e88ad989e898287c38a829b"><span class="__cf_email__" data-cfemail="5d1c090f1728393a303833291e32302d31343c333e381d282e393237733a322b">[email protected]</span></a>).

Suzanne Morris,
Deputy Director of Civil Enforcement Operations, Antitrust Division.

United States District Court for the Northern District of Illinois 
Eastern Division

    United States of America, 450 Fifth Street NW, Washington, DC 
20530, Plaintiff, v. Koch Foods Incorporated, 1300 W Higgins Road, 
Suite 100, Park Ridge, IL 60068, Defendant.

Case No. 1:23-cv-15813
Judge John F. Kness

Complaint

    Raising chickens is a bet-the-farm proposition. Many chicken 
farmers must borrow hundreds of thousands of dollars to finance the 
construction of chicken houses--huge structures that hold over 50,000 
chickens each. A farmer is largely beholden to a poultry processor, 
which owns the chicks, feed, antibiotics, and other inputs for raising 
chickens. Without a loan from the bank, there is no farm; without a 
contract with a processor, there is no loan; and without the 
processor's fair dealing, the farm may fail.
    To secure better working conditions or pay, a chicken farmer's only 
recourse often is switching processors. Even in the best of 
circumstances, competition for farmers' chicken growing services is 
uncertain because switching processors can be a costly, risky, and 
difficult endeavor. But Koch Foods, a leading poultry processor, has 
suppressed competition even further by imposing exit penalties on its 
chicken farmers who want to switch to a competitor. Koch's conduct 
deprives farmers of the benefits of competition and lowers their 
compensation. Koch's exit penalties are an unfair practice under 
section 202(a) of the Packers and Stockyards Act and violate section 1 
of the Sherman Act. These practices should be enjoined.

I. Introduction

    1. A chicken farmer's success depends on a processor. A farmer must 
invest hundreds of thousands of dollars to build chicken houses to a 
processor's specifications. A bank will loan money for the construction 
only if a processor has agreed to offer the farmer a contract; the bank 
often sees the farmer's contract before the farmer. After obtaining a 
loan and building the houses, the farmer generally has no practical 
alternative but to accept the contract terms for growing chickens 
offered by the processor.
    2. Once built, chickens houses cannot be relocated or readily 
repurposed. If the processor provides insufficient flocks, poor quality 
chicks, or substandard feed, the farmer may not earn enough to meet the 
terms of the loan--and can literally lose the farm.
    3. Broiler chicken farmers, commonly called ``growers,'' generally 
can contract only with a processor operating a processing facility 
close enough to transport chickens and feed cost-effectively.\1\ Few 
growers have more than three other processors close enough to contract 
for their growing services. And when the grower wants to switch 
processors, alternative processors may not need new growers.
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    \1\ Most chicken farmers raise ``broilers,'' the chickens that 
are slaughtered and processed for people to consume. Other chicken 
farmers raise breeder hens or pullets (chicks). In at least some 
cases, Koch imposed its exit fees on breeder-hen and pullet farmers 
as well as broiler farmers.
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    4. For these reasons, processors have substantial leverage over 
contract growers. Where it exists, competition among processors for 
chicken growers can sometimes increase their compensation and motivate 
a processor to provide better terms to farmers. Growers' ability to 
switch processors

[[Page 85312]]

provides some check, even if a limited one.
    5. Beginning in 2014, Koch Foods--one of the five largest chicken 
processors in the United States--introduced an exit penalty in its 
grower contracts to insulate itself from competition. If a farmer 
switches from Koch to a different processor within 10 years (later 
extended to 15 years) of contracting with Koch, the farmer must pay a 
penalty. Depending on the size of the farm, the penalty amount can 
range from $24,000 to $56,000 or, for one facility's farmers, up to 
hundreds of thousands of dollars. Such penalties exceed 50 to 100 
percent of many farmers' annual income given farmers' limited take-home 
pay after deducting operating expenses.
    6. The goal of Koch's exit penalty is clear: Koch wants to make it 
more difficult for its growers to switch to another processor. Koch 
claims that the exit penalty was meant to compensate Koch Foods for the 
real impact growers leaving has on Koch. But that is just another way 
of saying that, without the exit penalty, Koch would have to pay 
farmers competitive rates to keep them from switching to one of Koch's 
competitors.
    7. Koch has enforced its exit penalty to prevent its chicken 
farmers from leaving. Koch has sued or threatened to sue at least 14 
farmers who wanted to switch to a competing processor. Other farmers, 
faced with the exit penalty and threat of litigation, have declined 
better opportunities with other processors and returned to Koch.
    8. The exit penalty is an ``unfair . . . practice or device'' under 
the Packers and Stockyards Act, 7 U.S.C. 192(a), because growers cannot 
reasonably avoid the penalty provision, its existence and enforcement 
substantially harm growers, and any countervailing benefit to growers 
does not outweigh the harm.
    9. In addition, under Packers and Stockyards Act regulations, 9 CFR 
201.100(h)(2), a broiler farmer has the right to terminate its poultry 
growing arrangement in writing with at least 90 days' prior notice. By 
unreasonably burdening farmers' right to terminate their production 
contracts, the Koch exit penalty provision violates this regulation.
    10. The exit penalty has harmed competition, and therefore 
suppressed compensation, for growers. Koch has a sufficient share of 
the relevant markets for the penalty to foreclose competition; its 
purpose for imposing and enforcing the penalty is to prevent or limit 
competition; and the penalty has prevented growers from accepting 
better terms. The exit penalty therefore unreasonably restrains trade 
in violation of section 1 of the Sherman Act.
    11. The Department of Justice brings this action on behalf of the 
United States and the U.S. Department of Agriculture to enjoin Koch's 
unlawful exit penalty practices.

II. Factual Allegations

A. Koch Uses Independent Farmers To Raise Its Broiler Chickens

    12. Koch Foods is the fifth largest broiler chicken processor in 
the United States, with $4.7 billion in sales in 2022. Koch is a 
privately held company, whose CEO owns 99 percent of its shares.
    13. Like most other broiler chicken processors, Koch is vertically 
integrated. This means the company controls most steps in the 
production of chicken meat, from hatching chicks to slaughtering and 
packaging broiler chickens to be consumed in homes, restaurants, and 
other venues. One important exception, however, is that Koch (like 
other major processors) pays independent farmers to raise its broiler 
chickens for delivery to Koch's processing plants. By outsourcing 
chicken growing, Koch shifts the substantial cost, capital 
requirements, and risk to small poultry farmers. Farmers who build 
chicken houses to raise chickens for Koch bear the risks of their 
investment, including risks of weather damage, such as tornados or 
floods. Outsourcing chicken growing also allows Koch to avoid the 
burden and costs associated with employing farmers.
    14. Koch, like other processors, provides chicks and feed to its 
broiler farmers and pays farmers only for the service of growing 
chickens. To reduce transportation costs for feed and chickens, and to 
limit injury or death to chickens during transport, most processors 
contract with farmers located near each processing complex.
    15. Once broiler chickens reach their target weight, Koch collects 
and trucks them to a processing plant, where Koch slaughters and packs 
them for distribution. A farmer providing broiler services for Koch 
gets paid only when a flock is brought to slaughter. The farmer's pay 
depends on the weight of the broiler chickens collected from the 
farmer, the farmer's ``feed-conversion ratio'' (that is, the weight of 
feed consumed by broiler chickens to their full-grown weight) relative 
to other local Koch-contracted farmers, and various other adjustments 
for items such as for fuel costs, litter control, and pest control.
    16. Koch operates eight poultry processing complexes: two in 
Tennessee (Morristown and Chattanooga), four in Alabama (Ashland, 
Montgomery, Collinsville and Gadsden), one in Georgia (Pine Mountain 
Valley), and one in Mississippi (Morton).
    17. Each of Koch's eight complexes enters into contracts with 
independent farmers to provide growing services. In total, more than 
800 farmers grow broiler chickens for Koch. The duration of Koch's 
contractual commitment does not usually exceed five years. Many of 
these farmers operate small family farms. Koch does not allow broiler 
farmers in any way to own, maintain or care for any competitor's birds 
of any kind anywhere--even on property that is not used to grow 
chickens for Koch.

B. Broiler Houses Are Large, Debt-Financed Capital Investments

    18. To operate at a scale sufficient to grow broilers for a major 
processor like Koch, a contract farmer typically needs two to four 
modern broiler houses. These houses are large: Koch specifies that new 
broiler houses should generally be 66 feet wide by 600 feet long, 
nearly the length of two football fields.
    19. Each modern broiler house costs approximately $500,000 to 
build. Most farmers must take out loans to fund 90 percent or more of 
this cost. Many chicken farmers operate as small, highly leveraged 
family farms, and bank debt repayment is their largest expense.
    20. Koch typically provides a prospective farmer with the required 
specifications for the houses and a simple pro forma cash-flow 
statement, or ``payback analysis,'' showing the farmer's projected 
total gross pay before debt service and other operating expenses. Koch 
then notifies a local lender, either by a commitment letter or through 
informal means, that Koch considers the prospective farmer acceptable 
and that Koch is prepared to place flocks with the farmer upon the 
completion of the broiler housing.
    21. A lender will generally evaluate the farmer's projected cash 
flow based on the standard-form Koch contract, with the understanding 
that Koch will require the farmer to sign the contract without 
amendment after the houses are built. The lender generally conditions a 
loan for new-house construction on a farmer's willingness to execute 
the Koch standard contract ``as is'' once the new broiler houses are 
ready to receive their first flocks. Most loans for broiler houses span 
10 or 15 years, while some are longer. As a practical matter, Koch 
offers contracts to farmers on a ``take-it-or-leave-it'' basis, and a 
prospective

[[Page 85313]]

farmer typically has no opportunity to negotiate the compensation terms 
of a Koch contract.
    22. Under its grower contracts, Koch determines a farmer's 
compensation for a flock after it arrives at a Koch processing plant 
and is weighed. Before disbursing payment, however, Koch deducts a 
farmer's loan payment, which it remits directly to the lender, as 
required by the farmer's loan agreement.
    23. Koch wields enormous leverage over the farmers who grow its 
broiler chickens. Indebted farmers generally need at least six flocks 
each year to stay current on their broiler-house loans, yet Koch 
decides the number of flocks to allot to each farmer. If Koch elects 
not to renew a farmer's contract, or merely reduces the number of 
flocks placed per year, many farmers would be unable to make their loan 
repayments. Koch also controls other factors that can significantly 
affect farmer compensation, such as the number and quality of chicks 
provided, the type of feed, the timing of when flocks are collected, 
the use of antibiotics, and various payment adjustments.
    24. The only realistic way for farmers to repay their loans for 
newly constructed broiler houses is by growing broiler chickens. Once 
built, broiler houses cannot be relocated, and farmers can raise 
chickens only for processors that are both nearby and willing to accept 
new farmers. Farmers know that their farm is just one among many 
nearby, and none is an irreplaceable supplier of broiler services for 
Koch or any other processor.

C. Koch Introduces the Exit Penalty To Stifle Competition

    25. Almost all Koch-contracted farmers reside near enough to the 
complex of at least one other processor to raise broilers for that 
processor, so there is potential competition for their broiler growing 
services.
    26. In 2014, Koch introduced the exit penalty provision into its 
grower contracts--a new policy designed to weaken competition between 
Koch and other processors for broiler farmers' services by stymieing 
its farmers' ability to switch to Koch's competitors.
    27. Part of a farmer's compensation is a per-flock payment that 
Koch calls a ``New House Incentive.'' If the farmer switches to one of 
Koch's competitors in the next 10 years, the grower must pay an exit 
penalty:

    If [farmer] elects to terminate the Poultry Production Agreement 
during the ten (10) year time period applicable to this NEW HOUSE 
INCENTIVE AGREEMENT, then [farmer] shall refund Company, within 90 
days of its notice of termination to Company, any payments made by 
Company within the preceding 12 months under this NEW HOUSE 
INCENTIVE AGREEMENT, and no additional amounts shall be owed by 
Company under this NEW HOUSE INCENTIVE AGREEMENT.

    28. The fixed per-flock payment is roughly $2,000 per modern 
(``Class A'') house. For an average farm of two or four houses, each of 
which receives six or seven flocks a year, the exit penalty over a year 
would be $24,000 to $56,000. This obligation to ``refund . . . any 
payments'' made by Koch under the ``new house incentive'' agreement 
``for the preceding 12 months'' means that the exit penalty represents 
for most farmers at least half--and for some farmers up to 100 percent 
or more--of their annual take-home income after paying bank debt and 
operating costs.
    29. The exit penalty implemented at Koch's complex in Montgomery, 
Alabama is even more burdensome. Koch charges Montgomery-area farmers 
an exit penalty equal to the ``new house incentive'' paid in all years 
prior to termination, rather than the amount paid in the preceding 12 
months:

    If [farmer] elects to terminate the Production Agreement at any 
time prior during the ten (10) year time period applicable to the 
NEW HOUSE INCENTIVE, then [farmer] shall refund to COMPANY, within 
ninety (90) days of its notice of termination to COMPANY, all 
payments received under this NEW HOUSE INCENTIVE AGREEMENT.

    Under this provision, a farmer with, say, four houses who received 
new house incentive payments for seven years would likely have to pay 
over $300,000 to switch from Koch to a competing processor.
    30. As the percentage of Koch broiler farmers with qualifying 
houses has steadily increased, more farmers have become subject to the 
exit penalty. For example, by the end of 2017, the farmers providing 
more than half of the total square footage of broiler housing for 
Koch's Gadsden, Alabama complex were subject to the exit penalty.
    31. Koch also includes exit penalties in at least some of its 
contracts with breeder-hen farmers and pullet farmers.
    32. In rolling out the ``new house incentive,'' Koch has sought out 
prospective farmers who are young, financially insecure, less familiar 
with the growing business, and short on collateral--making them more 
inclined to accept 90 or 100 percent financing from lenders. Koch 
understands that, for these prospective farmers, the decision to build 
new houses is based largely on the potential cash flow. Koch generally 
shows prospective farmers a ``payback analysis'' predicated on raising 
6.5 flocks each year (that is, alternating between six and seven flocks 
per year), though Koch is not obligated by its contracts to deliver 
that many flocks.
    33. Once the new houses are built, however, Koch can choose to 
deliver fewer than six flocks or deliver flocks that are smaller than 
Koch has projected. Many broiler-house loans are structured to be 
repaid through six flock settlements in a year; a farmer who receives 
fewer than six flocks frequently incurs negative cash flow and the 
prospect of default.
    34. Koch has failed to inform some farmers of the exit penalty 
until the farmer has signed a loan for the new housing with the bank, 
drawn down the loan, and completed the construction of the new broiler 
houses. Koch's typical sample payback analysis is a pro forma cash flow 
statement that does not mention the exit penalty.
    35. When a farmer finally has the opportunity to sign the lengthy 
broiler-services contract, the exit penalty is non-negotiable, and 
farmers have little choice but to accept Koch's terms given their 
impending loan payments. As a practical matter, it is impossible for 
farmers to choose not to work for Koch without defaulting on their bank 
loans.
    36. Prospective farmers must trust Koch to provide reasonable 
contract terms when the farmer eventually receives (and signs) the Koch 
broiler production contract.
    37. Even if farmers did receive proper notice and understood the 
exit penalty provision, the exit penalty would still serve as an 
unreasonable burden on switching.
    38. The so-called ``new house incentive'' and concomitant exit 
penalty originally only applied for the first 10 years that the chicken 
farmer stayed with Koch. Within the past two years, however, Koch's new 
contracts extend the supplemental payments and exit penalty for the 
first 15 years that the farmer stays with Koch. Koch has also extended 
the supplemental payments and exit penalty to 15 years for at least 
some farmers who were subject to the original 10-year exit penalty 
obligation.
    39. Koch's exit penalty makes it harder for farmers to switch from 
Koch to competing processors. As a result, Koch need not compete as 
vigorously to retain farmers as it would absent the exit penalty. In 
effect, the exit penalty functions as a non-compete clause that 
curtails farmers' ability to switch to competitors that might offer 
greater compensation or otherwise superior contract terms.

[[Page 85314]]

D. No Legitimate Purpose Justifies the Exit Penalty

    40. Although Koch adopted the exit penalty as part of its ``new 
house incentive'' program, Koch does not advance any funds to farmers 
to build new houses as part of the program. Instead, Koch expects 
farmers to pay for new houses by taking out their own loans on their 
own credit. Nor does the exit penalty serve to recoup costs that Koch 
has expended on special training for farmers or to protect Koch against 
the risk that any trade secrets or special know-how might be shared 
with another processor if a farmer stopped growing for Koch.
    41. The ``new house incentive'' program has been profitable to Koch 
from the very first flock even without any exit penalty. With each 
flock, Koch saves money on feed from the improved quality of new 
broiler housing. These savings far exceed the ``new house incentive'' 
payments to farmers.
    42. Before adopting the ``new house incentive'' in 2014, Koch 
senior executives verified that ``[t]he incentive will pay for itself 
with better performance,'' without any exit penalty. A senior employee 
in the Koch finance department provided Koch executives with a detailed 
analysis showing that only a slight improvement in the feed conversion 
ratio would allow Koch to break even on its ``new house incentive'' 
payments. Koch's executives responded that the program ``would seem to 
be a no brainer,'' especially considering that the ``improvement should 
be a lot higher than that.''
    43. Koch analyses in 2016 and 2017 confirmed that the ``new house 
incentive'' has paid for itself many times over without any exit 
penalty. The analyses showed that new houses provided cost savings to 
Koch more than seven times greater than the extra payments that Koch 
paid to farmers. In each year since Koch implemented the ``new house 
incentive,'' Koch has saved millions of dollars. For example, by the 
end of 2016, less than two years after first imposing the exit penalty 
in its contracts, Koch determined that it had already enjoyed cost 
savings of many times the amount that it had paid to farmers as ``new 
house incentives.''

E. Koch Enforces Its Exit Penalty When Farmers Seek To Switch to 
Competing Processors and Sues Farmers Who Do Not Pay

    44. Koch actively enforces its exit penalty to deter farmers from 
switching to competing processors. Koch has demanded exit penalties 
from at least 14 farmers--including 13 from broiler chicken farmers and 
one from a breeder farmer--and filed nearly a dozen lawsuits over the 
past three years against farmers who attempted to switch processors. 
Some farmers returned to Koch rather than face litigation, while others 
declined to pursue a switch because the exit penalty would be too 
onerous.
    45. Since at least May 2020, Koch has sent letters demanding the 
exit penalty from farmers who gave notice of their intention to switch 
to another processor.
    46. In November 2020, Koch began suing farmers to collect the exit 
penalty. Koch sued one married couple for a total of $95,040; another 
farmer for $55,440; and yet another for $27,720. Since November 2020, 
Koch has demanded comparable exit penalties from at least nine other 
farmers. Some of these farmers returned to Koch rather than pay the 
exit penalty or bear the costs of litigation.
    47. One farmer who had earned less than $4,000 in ``new house 
incentive'' payments received a demand from Koch for seven times the 
amount actually due under the exit penalty provision. The farmer 
managed to pay a lesser amount only after litigating the issue.
    48. For all of these farmers, the exit penalty was substantial 
compared to their earnings after deducting loan payments and other 
costs of operating their farms.
    49. Koch's highly visible efforts to collect its exit penalties 
have deterred farmers who might otherwise avail themselves of 
competition between Koch and other processors to obtain better 
compensation for themselves and their families. Koch's exit penalty is 
unfair and unreasonably harms competition for broiler farmer growing 
services.

III. Relevant Markets and Market Power

    50. The relevant markets are the purchases of broiler growing 
services in the locations encompassing each Koch poultry processing 
facility and the rival processors with which it competes.

A. The Market for the Purchase of Broiler Growing Services

    51. The purchase of broiler growing services by chicken processors 
is a relevant product market under the Sherman Act.
    52. Broiler farmers own the facilities required to raise broiler 
chickens, which are typically financed by loans made directly to the 
farmers. Broiler farmers use houses designed specifically for growing 
broiler chickens that cannot be repurposed for other agricultural 
operations without significant cost.
    53. Broiler farmers take financial risk and invest their labor and 
capital in building and operating a specialized farming service. 
Broiler farmers cannot switch to producing other agricultural products 
in sufficient numbers to render unprofitable a small but significant 
decrease in price (compensation) by a hypothetical monopsonist. Nor 
would farmers likely abandon their investments and credit obligations 
to take up alternate employment.
    54. To become growers, farmers must borrow considerable amounts of 
money and invest time building chicken houses.

B. The Relevant Geographic Markets Are the Areas Around the Locations 
of Each Koch Poultry Processing Facility and Its Rival Processors

    55. Processors require sufficient growers to supply their 
processing complexes. Processors typically pay for the chickens' 
transportation, feed, veterinary care, and collection. The cost and 
risk of transporting feed and chickens limit the area in which 
processors can contract with broiler farmers. The geographic radius 
within which a processor can economically contract with farmers for 
chicken growing services constitutes its ``draw area.''
    56. Although there may be some processor-specific requirements, 
top-quality chicken housing that satisfies one processor's requirements 
is often acceptable to other processors in the area. Farmers with top-
quality housing may be able to improve their compensation by switching 
processors, depending on competitive conditions in the relevant market. 
A processor competes with a Koch complex for chicken growing services 
if the draw area of one or more of its complexes overlaps significantly 
with Koch's draw area.
    57. For each Koch complex that competes with one or more rival 
processors, the relevant geographic market is the area around the Koch 
complex and its set of competing processors. Koch contracts with a 
significant share of the broiler farmers within the geographic market 
of each Koch complex.

[[Page 85315]]

C. Koch Has Market Power in Each Relevant Market

    58. Koch contracts with a significant share of the broiler farmers 
who contract to deliver broiler growing services to processors within 
the draw area of each Koch complex.
    59. Most Koch farmers have a few alternative processors with which 
to contract. Nearly all Koch farmers are within the draw area of at 
least one competitor's complex. Over 80 percent of Koch farmers are 
located within the draw areas of the complexes of at least two of 
Koch's competitors. More than half of the farmers who provide their 
services to Koch are located within the draw areas of the complexes of 
three or more of Koch's competitors.
    60. Each Koch complex competes with one or more rival processors to 
sign up farmers who deliver growing services within their overlapping 
draw areas. But the Koch exit penalty artificially raises the cost to 
farmers to switch from Koch to a competitor. Because Koch contracts 
with a significant share of the farmers under contract with processors 
in each complex's geographic market, these switching costs 
significantly lessen competition in those markets.
    61. Koch's market share and ability to impose and enforce the 
termination penalty clause establish that Koch has market power in the 
relevant markets.

IV. Jurisdiction, Venue, and Commerce

    62. The United States brings this action pursuant to section 404(a) 
of the Packers and Stockyards Act, 7 U.S.C. 224, upon the referral by 
the Secretary of the United States Department of Agriculture, and under 
section 1 of the Sherman Act, 15 U.S.C. 1, to protect the farmers of 
the United States and to restore competition in the market for broiler 
growing services.
    63. Koch is a privately held corporation headquartered in Park 
Ridge, Illinois, with live poultry operations in Alabama, Georgia, 
Mississippi, and Tennessee. Koch complexes enter into broiler services 
contracts with farmers located in multiple states, and Koch's chicken 
products are sold to customers in many states. Koch is engaged in 
interstate commerce and activities that substantially affect interstate 
commerce.
    64. The Court has subject matter jurisdiction under 28 U.S.C. 1331, 
1337, and 1345, as well as 7 U.S.C. 224, to prevent and restrain Koch 
from violating section 202(a) of the Packers and Stockyards Act.
    65. The Court has subject matter jurisdiction under 28 U.S.C. 1331, 
1337, and 1345 as well as section 4 of the Sherman Act, 15 U.S.C. 4, to 
prevent and restrain Koch from violating section 1 of the Sherman Act, 
15 U.S.C. 1.
    66. The Court has personal jurisdiction over Koch under section 12 
of the Clayton Act, 15 U.S.C. 22.
    67. Venue is proper in this judicial district under section 12 of 
the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391(b)-(c), because Koch 
transacted business, was found, and resided in this district; a 
substantial part of the events giving rise to the United States' claim 
arose in this district; and a substantial portion of the affected 
interstate trade and commerce described herein has been carried out in 
this district.

V. Violations Alleged

Count I

(Violation of Section 202(a) of the Packers and Stockyards Act)
    68. The United States repeats and realleges paragraphs 1 through 67 
as if fully set forth herein.
    69. Koch, with its subsidiaries, is a ``live poultry dealer'' under 
7 U.S.C. 182(10), because it is engaged in the business of obtaining 
live poultry under a poultry growing arrangement for the purpose of 
slaughtering and processing poultry.
    70. Koch's contracts with chicken farmers concern ``live poultry'' 
under 7 U.S.C. 182(6), 192, because the contracts pertain to the 
raising of chickens for slaughter.
    71. Koch's exit penalty is an ``unfair . . . practice or device,'' 
in violation of section 202(a) of the Packers and Stockyards Act, 7 
U.S.C. 192(a). First, farmers cannot reasonably avoid the exit penalty. 
Lenders' anticipated cash flow analyses are based on the assumption 
that farmers' compensation for each flock will include the ``new house 
incentive.'' Koch makes the exit penalty a condition of receiving the 
``new house incentive.'' Farmers are required to accept the exit 
penalty as part of the Koch contract. Koch sometimes even fails to 
disclose the exit penalty before the farmer takes out a loan to build 
new broiler houses.
    72. Second, the exit penalty substantially harms farmers by 
curtailing their ability to switch and, accordingly, pursue better 
wages and working conditions. Once built, chicken houses cannot be 
repurposed without significant expense, and the out-of-pocket cost of 
paying the exit penalty is prohibitive for most farmers. The prospect 
of paying Koch at least 50 percent (and, for some, 100 percent or more) 
of the farmer's annual take-home pay restrains the farmer from 
switching to a Koch competitor, even when the competing processor 
offers higher compensation or otherwise better contract terms. Koch's 
illegal conduct has imposed substantial costs on farmers seeking to 
switch processors and deprived farmers of the benefits of competition 
for their services.
    73. Third, any purported benefit to Koch from the exit penalty does 
not outweigh the harm inflicted on farmers. The exit penalty does not 
recoup any upfront capital expenditure by Koch; farmers bear all the 
financial and operational risk of building new broiler houses. The 
efficiencies derived from new housing make Koch's ``new house 
incentive'' payments to farmers profitable for Koch from the very first 
flock. The exit fee thus simply insulates Koch from competition with 
other processors for farmers' services.
    74. Koch's unfair and deceptive practices are ongoing and likely to 
continue and recur unless the Court grants the requested relief.

Count II

(Violation of Section 202(a) of the Packers and Stockyards Act and 9 
CFR 201.100(h)(2))
    75. The United States repeats and realleges paragraphs 1 through 74 
as if fully set forth herein.
    76. Pursuant to 9 CFR 201.100(h)(2), chicken farmers have the right 
to terminate their poultry growing arrangement with at least 90 days' 
prior written notice.
    77. The Koch exit penalty provision unreasonably burdens farmers' 
right under 9 CFR 201.100(h)(2) to terminate the Koch production 
contract.
    78. Koch's illegal conduct has imposed substantial costs on farmers 
seeking to switch and deprived farmers of the benefits of competition 
for their services.
    79. Koch's conduct will likely continue and recur unless this Court 
grants the requested relief.

Count III

(Violation of Section 1 of the Sherman Act)
    80. The United States repeats and realleges paragraphs 1 through 79 
as if fully set forth herein.
    81. The exit penalty provisions in Koch's contracts with farmers 
had the purpose and likely effect of unreasonably restraining 
interstate trade and commerce in the relevant markets, within the 
meaning of section 1 of the Sherman Act, 15 U.S.C. 1.
    82. Koch's illegal conduct has imposed substantial costs on farmers 
seeking to switch and deprived farmers

[[Page 85316]]

of the benefits of competition for their services, including their 
compensation. Koch's illegal conduct has also reduced competition in 
the market for broiler services, which likely undercuts other 
processors' ability to hire and the compensation of farmers who do not 
contract with Koch.
    83. Koch's conduct will likely continue and recur unless this Court 
grants the requested relief.

Requested Relief

    The United States requests that this Court:
    a. adjudge that the Koch exit penalty provision in its contracts 
with farmers is an unfair and deceptive practice or device in violation 
of section 202(a) of the Packers and Stockyards Act, 7 U.S.C. 192(a);
    b. adjudge that the Koch exit penalty provision in its contracts 
with farmers is an unfair and deceptive practice or device in that it 
unreasonably burdens the right of farmers to terminate their ``poultry 
growing arrangement'' with Koch on 90-days' notice, in violation of 9 
CFR 201.100(h);
    c. adjudge that the Koch exit penalty provision in its contracts 
with farmers unreasonably restrains trade and commerce and therefore is 
unlawful under section 1 of the Sherman Act, 15 U.S.C. 1;
    d. permanently enjoin and restrain Koch from demanding payment of 
the exit penalty or otherwise enforcing the exit penalty provision;
    e. enjoin Koch from including any exit penalty or substantially 
similar provision in its agreements with farmers;
    f. require that Koch promptly give notice to all farmers with Koch 
contracts that contain an exit penalty provision that the exit penalty 
provision is unenforceable and void;
    g. require Koch to take such internal measures as are necessary to 
ensure compliance with any injunction;
    h. grant equitable monetary relief by refunding to all affected 
farmers any funds collected by Koch pursuant to the exit penalty 
provision, including any funds collected in a settlement or other 
resolution of a claim by Koch seeking to enforce the exit penalty 
provision, and all attorneys' fees and costs incurred in defending 
against Koch's collection efforts;
    i. grant any other relief as required by the nature of this case 
and as is just and proper to prevent the recurrence of the alleged 
violation and to reverse its anticompetitive effects; and
    j. award the United States the costs of this action and any other 
relief that the Court may deem just and proper.

    Dated: November 9, 2023.

    Respectfully submitted,

For Plaintiff United States of America

/s/--------------------------------------------------------------------
Jonathan S. Kanter,
Assistant Attorney General for Antitrust.

/s/--------------------------------------------------------------------
Doha Mekki,
Principal Deputy Assistant Attorney General for Antitrust.

/s/--------------------------------------------------------------------
Michael B. Kades,
Deputy Assistant Attorney General for Antitrust.
/s/--------------------------------------------------------------------
Brian R. Young,
Acting Director of Litigation.

/s/--------------------------------------------------------------------
Ryan Danks,
Director of Civil Enforcement.

/s/--------------------------------------------------------------------
Miriam R. Vishio,
Deputy Director of Civil Enforcement.

/s/--------------------------------------------------------------------
Daniel S. Guarnera,
Chief, Civil Conduct Task Force.

/s/--------------------------------------------------------------------
Kate M. Riggs,
Acting Assistant Chief, Civil Conduct Task Force.

/s/--------------------------------------------------------------------
Eun-Ha Kim,
Mark H.M. Sosnowsky,
Senior Litigation Counsel.

/s/--------------------------------------------------------------------
Jack G. Lerner,
Peter Nelson,
Trial Attorneys, United States Department of Justice Antitrust 
Division, Civil Conduct Task Force, 450 Fifth Street NW, Suite 8600, 
Washington, DC 20530, Telephone: 202-227-9295, Fax: 202-616-2441, 
Email: <a href="/cdn-cgi/l/email-protection#92d8f3f1f9bcdef7e0fcf7e0d2e7e1f6fdf8bcf5fde4"><span class="__cf_email__" data-cfemail="85cfe4e6eeabc9e0f7ebe0f7c5f0f6e1eaefabe2eaf3">[email protected]</span></a>.

United States District Court for the Northern District of Illinois 
Eastern Division

    United States of America, 450 Fifth Street NW, Washington, DC 
20530, Plaintiff, v. Koch Foods Incorporated, 1300 W Higgins Road, 
Suite 100, Park Ridge, IL 60068, Defendant.

Case No. 1:23-cv-15813
Judge John F. Kness

Proposed Final Judgment

    Whereas, Plaintiff, the United States of America, filed its 
Complaint on November 9, 2023, alleging that Defendant Koch Foods 
Incorporated violated section 1 of the Sherman Act, 15 U.S.C. 1, and 
section 202(a) of the Packers and Stockyards Act, 7 U.S.C. 192(a);
    And whereas, the United States and Defendant have consented to the 
entry of this Final Judgment without the taking of testimony, 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 relating to any issue of fact or law;
    And whereas, Defendant agrees to undertake certain actions and 
refrain from certain conduct for the purpose of resolving the claims 
alleged in the Complaint;
    And whereas, Defendant agrees that the relief required by this 
Final Judgment can and will be made and that Defendant will not later 
raise a claim of hardship or difficulty as grounds for asking the Court 
to modify any provision of this Final Judgment.
    Now therefore, it is ordered, adjudged, and decreed:

I. Jurisdiction

    The Court has jurisdiction over Defendant and the subject matter of 
this action. The Complaint states claims upon which relief may be 
granted against Defendant under sections 202(a) and 404 of the Packers 
and Stockyards Act, 7 U.S.C. 192(a), 224, and section 1 of the Sherman 
Act, 15 U.S.C. 1.

II. Definitions

    As used in this Final Judgment:
    A. The ``Antitrust Division'' means the Antitrust Division of the 
United States Department of Justice.
    B. ``Defendant'' and ``Koch'' mean Defendant Koch Foods 
Incorporated, an Illinois corporation with its headquarters in Park 
Ridge, Illinois, its successors, assigns, subsidiaries, divisions, 
groups, affiliates, partnerships, and joint ventures, and its and their 
owners, operators, directors, officers, managers, agents, 
representatives, and employees.
    C. ``Dispute Resolution Process'' means the process that is the 
sole means for Koch to dispute a Request for Payment in whole or in 
part. To invoke the Dispute Resolution Process, within 14 calendar days 
of receipt of the disputed Request for Payment, Koch must: (i) notify 
the Independent Poultry Grower of the dispute, (ii) explain the basis 
for Koch's dispute to the Independent Poultry Grower in writing, and 
(iii) submit the dispute to the Antitrust Division in writing, 
attaching a copy of Koch's written notification to the Independent 
Poultry Grower. If Koch fulfills these requirements, the Antitrust 
Division will in its sole discretion identify three proposed 
independent referees, each of whom must be a licensed attorney, to 
resolve the dispute, give the Independent Poultry Grower and Koch five 
business days to strike one proposed referee each, and, at the 
conclusion of that five-day period, either name the remaining proposed 
referee as the referee or, if more than one of the proposed referees

[[Page 85317]]

have not been struck, select the referee from among the remaining 
proposed referees. Koch will bear all fees and costs of the referee 
regardless of the outcome of the Dispute Resolution Process. The 
referee will determine whether a hearing is required to resolve the 
dispute. Koch must provide the Antitrust Division with all documents 
and information related to the referee proceeding, including any 
submissions to or communications with the referee, and the Antitrust 
Division will have the right to attend hearings, if any, in the referee 
proceeding and to access any transcripts or recordings of such 
hearings. If the referee so requests, Koch agrees to waive any 
applicable confidentiality protections for documents, information, and 
other material Koch provided to the Antitrust Division in connection 
with the investigation or litigation of this action, whether directly 
or through a products-of-discovery Civil Investigative Demand to 
another party in litigation with Defendant, solely for the purpose of 
allowing the Antitrust Division to share information with the referee. 
The referee's decision must be final, binding on Koch and Independent 
Poultry Grower, and enforceable by the Antitrust Division or the 
Independent Poultry Grower through this Court's contempt power under 
this Final Judgment. Any objection or challenge to or appeal of the 
referee's decision may be made only in this case and must be subject to 
the procedures and standards of review set forth in Federal Rule of 
Civil Procedure 53(f), except that all factual findings must be 
reviewed only for clear error. In such case, the making of this Final 
Judgment must be without prejudice to either the Independent Poultry 
Grower or Koch in any dispute over any Request for Payment. Provided, 
however, that the Independent Poultry Grower may opt out of the referee 
proceeding at any time prior to a determination of the dispute by the 
referee.
    D. ``Including'' means including, but not limited to.
    E. ``Independent Poultry Grower'' means any Person who has entered 
into a Live Poultry Agreement, including a poultry grower within the 
meaning of section 2(a)(8) of the Packers and Stockyards Act, 7 U.S.C. 
182(8).
    F. ``Live Poultry Agreement'' means any formal or informal 
agreement or understanding, and any amendment, addendum or renewal of 
any such agreement or understanding, for the services of an Independent 
Poultry Grower who raises, grows, or cares for live chickens (including 
pullets, breeder chickens, by-product chickens, and broilers), 
including under a poultry growing arrangement within the meaning of 
section 2(a)(9) of the Packers and Stockyards Act, 7 U.S.C. 182(9).
    G. ``Loan Agreement'' means an agreement in which the Defendant 
pays a sum of money to or on behalf of an Independent Poultry Grower 
where the agreement (i) has an original term of five years or less and 
has not been extended prior to acceleration of the loan by a 
Termination, (ii) provides that the loan will be forgiven or repaid pro 
rata annually or more frequently during the original term, with only 
the outstanding balance of the original loan accelerated and payable 
upon Termination, (iii) does not impose additional charges for 
prepayment or Termination, such as a prepayment penalty; (iv) does not 
provide for the payment of interest on the loan, (v) is for the purpose 
of facilitating the construction or improvement of one or more poultry 
houses and/or ancillary facilities, including the purchase of related 
real estate and/or the purchase and installation of related equipment, 
and where the value of the poultry houses and/or ancillary facilities, 
including any related real estate and/or related equipment, is 
projected, at the time of the agreement, to meet or exceed the amount 
of any payment due as a result of the Independent Poultry Grower 
initiating a Termination of a Live Poultry Agreement with Defendant, 
and (vi) does not violate the antitrust laws or the Packers and 
Stockyards Act.
    H. ``Person'' means any natural person, corporation, firm, company, 
sole proprietorship, partnership, joint venture, association, 
institution, governmental unit, or other legal entity.
    I. ``Poultry Processor'' means any person engaged in the business 
of obtaining live poultry by purchase or under a Live Poultry 
Agreement, including a live poultry dealer within the meaning of 
section 2(a)(10) of the Packers and Stockyards Act, 7 U.S.C. 182(10).
    J. ``PSD'' means the Packers and Stockyards Division of the 
Agricultural Marketing Service, United States Department of Agriculture 
(``USDA'') and, in the future, any agency within USDA that becomes 
responsible for live poultry matters under the Packers and Stockyards 
Act that are currently the responsibility of PSD.
    K. ``Recoverable Legal Costs'' means all costs that an Independent 
Poultry Grower has paid or incurred for legal services or court costs 
in connection with any effort by Defendant to collect a Termination 
Payment or enforce a Termination Payment Obligation. Provided, however, 
that Recoverable Legal Costs do not include any costs that were 
advanced, paid, or reimbursed for an Independent Poultry Grower by or 
on behalf of a Poultry Processor, or its agent, representative, or 
affiliate.
    L. ``Request for Payment'' means a written statement, affirmed 
under penalty of perjury, from an Independent Poultry Grower that (i) 
requests payment of any Termination Payment or Recoverable Legal Costs 
and states that none of the requested amount was advanced, paid, or 
reimbursed by or on behalf of a Poultry Processor, or its agent, 
representative, or affiliate; and (ii) attaches invoices or other 
documents that demonstrate the requested payment amounts were incurred.
    M. ``Termination'' means termination, cancellation, non-renewal, or 
expiration and subsequent non-replacement of a Live Poultry Agreement.
    N. ``Termination Payment'' means anything of value (including 
money, goods, or services) that an Independent Poultry Grower is 
required to pay or provide to Defendant or any other person as a result 
of a Termination. Provided, however, that Termination Payments do not 
include: (a) the return or relinquishment of possession of personal 
property owned by Defendant such as chickens, medicines, and feed, or 
any payment of damages, if otherwise permitted under the Live Poultry 
Agreement, to Defendant based on the Independent Poultry Grower's 
conversion, abandonment, or destruction of, or actual or imminent harm 
to, personal property owned by Defendant, or (b) payments under a Loan 
Agreement.
    O. ``Termination Payment Obligation'' means any obligation or 
commitment of an Independent Poultry Grower to make a Termination 
Payment.\2\
---------------------------------------------------------------------------

    \2\ For example and without limitation, a Termination Payment 
Obligation includes any provision in a Live Poultry Agreement in 
substantially the following form:
    If [Independent Poultry Grower] elects to terminate the [Live 
Poultry Agreement] during the . . . [time period applicable to this 
New House Incentive Agreement/New House Payment Period], then 
[Independent Poultry Grower] shall refund Company, within ninety 
(90) days of its notice of termination to Company, [any/all] 
payments made by Company [during the previous 12 months] under this 
. . . . New House [Incentive/Payment] Agreement . . . .
---------------------------------------------------------------------------

III. Applicability

    This Final Judgment applies to Defendant and all other persons in 
active concert or participation with Defendant who receive actual 
notice of this Final Judgment.

IV. Prohibited Conduct

    Defendant must not:

[[Page 85318]]

    A. Demand, request, collect, or accept any Termination Payment;
    B. Take any steps, including through litigation or the threat of 
litigation, to demand, request, collect, or accept any Termination 
Payment or to enforce any Termination Payment Obligation;
    C. Include a Termination Payment Obligation in any Live Poultry 
Agreement; or
    D. Directly or indirectly, including through any third party, 
engage in, encourage, or support any retaliation against, or any 
intimidation or harassment of, any Independent Poultry Grower who is or 
was a party or witness to any dispute or litigation relating to a 
Termination Payment or Termination Payment Obligation or who cooperates 
or has cooperated with PSD or the Antitrust Division with respect to 
any investigation of Defendant's conduct relating to Termination 
Payments or Termination Payment Obligations.

V. Required Conduct

    A. Within 30 calendar days of entry of this Final Judgment, 
Defendant must:
    1. Repay all Termination Payments that Defendant has received and 
has identified to PSD and the Antitrust Division as of the date of 
entry of this Final Judgment;
    2. Send a written notice, in the form attached as Appendix 1 by 
regular U.S. mail in an envelope marked from Defendant and with the 
notice conspicuously on the front, ``LEGAL MAIL--IMPORTANT NOTICE'' in 
no less than 26 point type, and, for each Independent Poultry Grower 
for whom Defendant has an email address, by email with the subject line 
``IMPORTANT LEGAL NOTICE FROM KOCH FOODS, INC.,'' to the last known 
postal and email addresses of each Independent Poultry Grower providing 
services to Defendant under a Live Poultry Agreement that contains a 
Termination Payment Obligation; and
    3. Send a written notice, in the form attached as Appendix 2 by 
regular U.S. mail in an envelope marked from Defendant and with the 
notice conspicuously on the front, ``LEGAL MAIL--IMPORTANT NOTICE'' in 
no less than 26 point type, and, for each Independent Poultry Grower 
for whom Defendant has an email address, by email with the subject line 
``IMPORTANT LEGAL NOTICE FROM KOCH FOODS, INC.,'' to the last known 
postal and email addresses of each Independent Poultry Grower who 
formerly provided services to Defendant under a Live Poultry Agreement 
that contained a Termination Payment Obligation.
    B. Within 120 calendar days of entry of this Final Judgment, 
Defendant must:
    1. Repay all Termination Payments not already repaid pursuant to 
V.A.1 and pay all Recoverable Legal Costs for which Defendant has 
received a Request for Payment, except those Termination Payments and 
Recoverable Legal Costs that are subject to the Dispute Resolution 
Process and not yet resolved; and
    2. Provide a report to PSD and the Antitrust Division, affirmed 
under penalty of perjury by the CEO, COO, CFO, or other senior Koch 
officer, that:
    (i) Sets forth (a) the name and address of each Independent Poultry 
Grower who submitted a Request for Payment and the date the request was 
submitted, (b) the dollar amount(s) requested in each such Request for 
Payment, listing separately amounts requested, if any, for Termination 
Payments and for Recoverable Legal Costs, and (c) the dollar amount(s) 
paid to each Independent Poultry Grower to whom Defendant made any 
payment pursuant to this Final Judgment, listing separately the amounts 
paid, if any, for Termination Payments and for Recoverable Legal Costs;
    (ii) Sets forth, for any Independent Poultry Grower for whom the 
amount in the Request for Payment in (2)(i)(b) is greater than the 
amount paid in (2)(i)(c): (a) an explanation of any discrepancies 
between the amounts requested and the amounts paid, (b) the date Koch 
provided notice of a dispute to the Request for Payment, if any, (c) an 
explanation of any Requests for Payment rejected by Koch, (d) the total 
amounts of Termination Payments and Recoverable Legal Costs that 
Defendant has paid, and (e) an explanation of the status of any 
unresolved claim or dispute relating to a Request for Payment, 
including the date of any upcoming Dispute Resolution Process 
proceeding; and
    (iii) Certifies that all other requirements of this Final Judgment 
have been completed by Defendant.
    C. Inform PSD and the Antitrust Division within 30 calendar days of 
the final resolution of each outstanding claim or dispute identified 
pursuant to Paragraph V.B.2(ii).
    D. Certify in writing to PSD and the Antitrust Division annually on 
the anniversary date of the entry of this Final Judgment that Defendant 
is in compliance with the provisions of this Final Judgment, and the 
status of each outstanding claim or dispute, if any, relating to a 
Request for Payment.
    E. Within 14 calendar days of learning of any violation or 
potential violation of any of the provisions of this Final Judgment, 
Defendant must:
    1. Promptly take appropriate action to restore compliance with this 
Final Judgment; and
    2. Provide PSD and the Antitrust Division with a statement 
describing the violation or potential violation and any steps Defendant 
has taken to address the violation or potential violation.
    F. Defendant must maintain all documents relating to any Dispute 
Resolution Process or any violation or potential violation of this 
Final Judgment for the duration of this Final Judgment and must provide 
all such non-privileged documents to PSD and the Antitrust Division 
upon request. At the request of either PSD or the Antitrust Division, 
Defendant must within 30 calendar days of receiving the request furnish 
to PSD and the Antitrust Division a log of all documents maintained 
pursuant to this Paragraph V.F, that identifies any such documents for 
which Defendant claims protection under the attorney-client privilege, 
the attorney work product doctrine, or any other privilege.
    G. PSD and the Antitrust Division, in their sole discretion, may 
extend each of the time periods set forth in Paragraphs V.A through V.C 
for a total of up to an additional 120 calendar days. If Defendant 
seeks an extension, it must make that request to the Antitrust Division 
in writing at least seven calendar days prior to the expiration of the 
operable time period.

VI. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment or of related orders in this case or of determining 
whether this Final Judgment should be modified or vacated, upon written 
request of an authorized representative of PSD or the Antitrust 
Division, and upon reasonable notice to Defendant, Defendant must 
permit, from time to time and subject to legally recognized privileges, 
authorized representatives, including agents retained by PSD or the 
Antitrust Division:
    1. to have access during Defendant's office hours to inspect and 
copy, or at the option of the requesting agency, to require Defendant 
to provide electronic copies of all books, ledgers, accounts, records, 
data, and documents in the possession, custody, or control of Defendant 
relating to compliance with any requirements of this Final Judgment; 
and
    2. to interview, either informally or on the record, Defendant's 
officers, employees, or agents relating to compliance with any 
requirements of

[[Page 85319]]

this Final Judgment. Each interviewee may, at their option and without 
coercion, have any counsel of their choosing present. The interviews 
must be subject to the reasonable convenience of the interviewee and 
without restraint or interference by Defendant.
    B. Upon the written request of an authorized representative of PSD 
or the Antitrust Division, Defendant must submit written reports or 
respond to written interrogatories, under oath if requested, relating 
to compliance with any requirements of this Final Judgment.

VII. Public Disclosure

    A. No information or documents obtained pursuant to any provision 
in this Final Judgment may be divulged by USDA or the Antitrust 
Division to any person other than an authorized representative of the 
executive branch of the United States, except in the course of any 
Dispute Resolution Process or any legal proceedings to which the United 
States is a party, including grand-jury proceedings, for the purpose of 
securing compliance with this Final Judgment, for law enforcement 
purposes, or as otherwise required by law.
    B. In the event of a request by a third party to the Antitrust 
Division pursuant to the Freedom of Information Act, 5 U.S.C. 552, for 
disclosure of information obtained pursuant to any provision of this 
Final Judgment, the Antitrust Division will act in accordance with that 
statute, and the Department of Justice regulations at 28 CFR part 16, 
including the provision on confidential commercial information, at 28 
CFR 16.7. When submitting information to the Antitrust Division, 
Defendant should designate the confidential commercial information 
portions of all applicable documents and information under 28 CFR 16.7. 
Designations of confidentiality expire 10 years after submission, 
``unless the submitter requests and provides justification for a longer 
designation period.'' See 28 CFR 16.7(b).
    C. In the event of a request by a third party to USDA pursuant to 
the Freedom of Information Act, 5 U.S.C. 552, for disclosure of 
information obtained pursuant to any provision of this Final Judgment, 
USDA will act in accordance with that statute, and USDA regulations at 
7 CFR part 1, subpart A, including the provision on confidential 
commercial information, at 7 CFR 1.8. When submitting information to 
USDA in connection with the Final Judgment or related orders in this 
case, Defendant should designate the confidential commercial 
information portions of all applicable documents and information under 
7 CFR 1.8. Designations of confidentiality expire 10 years after 
submission, ``unless the submitter requests and provides justification 
for a longer designation period.'' See 7 CFR 1.8(c).
    D. If at the time that Defendant furnishes information or documents 
to USDA or the Antitrust Division pursuant to any provision of this 
Final Judgment, Defendant represents and identifies in writing 
information or documents for which a claim of protection may be 
asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil 
Procedure, and Defendant marks each pertinent page of such material, 
``Subject to claim of protection under Rule 26(c)(1)(G) of the Federal 
Rules of Civil Procedure,'' USDA or the Antitrust Division must give 
Defendant 10 calendar days' notice before divulging the material in any 
legal proceeding (other than a grand jury proceeding).

VIII. 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.

IX. Enforcement of Final Judgment

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including the right to seek an order 
of contempt from the Court. Defendant agrees that in a civil contempt 
action, a motion to show cause, or a similar action brought by the 
United States relating to an alleged violation of this Final Judgment, 
the United States may establish a violation of this Final Judgment and 
the appropriateness of a remedy therefor by a preponderance of the 
evidence, and Defendant waives any argument that a different standard 
of proof should apply.
    B. This Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws, to restore the 
competition the United States alleges was harmed by the challenged 
conduct, and to end an unfair practice or device in the market for the 
purchase of the services of Independent Poultry Growers the United 
States alleges was caused by Defendant's inclusion of Termination 
Payment Obligations in its Live Poultry Agreements. Defendant agrees 
that it may be held in contempt of, and that the Court may enforce, any 
provision of this Final Judgment that, as interpreted by the Court in 
light of these procompetitive and fairness principles and applying 
ordinary tools of interpretation, is stated specifically and in 
reasonable detail, whether or not it is clear and unambiguous on its 
face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In an enforcement proceeding in which the Court finds that 
Defendant has violated this Final Judgment, the United States may apply 
to the Court for an extension of this Final Judgment, together with 
other relief that may be appropriate. In connection with a successful 
effort by the United States to enforce this Final Judgment against 
Defendant, whether litigated or resolved before litigation, Defendant 
agrees to reimburse the United States for the fees and expenses of its 
attorneys, as well as all other costs including experts' fees, incurred 
in connection with that effort to enforce this Final Judgment, 
including in the investigation of the potential violation.
    D. For a period of four years following the expiration of this 
Final Judgment, if the United States has evidence that Defendant 
violated this Final Judgment before it expired, the United States may 
file an action against that Defendant in this Court requesting that the 
Court order: (1) Defendant to comply with the terms of this Final 
Judgment for an additional term of at least four years following the 
filing of the enforcement action; (2) all appropriate contempt 
remedies; (3) additional relief needed to ensure the Defendant complies 
with the terms of this Final Judgment; and (4) fees or expenses as 
called for by this section IX.

X. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment will 
expire seven years from the date of its entry, except that after three 
years from the date of its entry, this Final Judgment may be terminated 
upon notice by the United States to the Court and Defendant that 
continuation of this Final Judgment is no longer necessary or in the 
public interest.

XI. Reservation of Rights

    This Final Judgment terminates only the claims stated in the 
Complaint against Defendant. This Final Judgment does not in any way 
affect any other charges or claims that may be filed by the United 
States. For the avoidance of doubt, the Antitrust Division and the PSD 
retain all rights to investigate and prosecute, including under the 
antitrust

[[Page 85320]]

laws or the Packers and Stockyards Act, any conduct, practice or device 
that (1) does not arise from a Termination Payment or Termination 
Payment Obligation, or (2) is an aspect of any ranked performance pay 
compensation (sometimes described as ``tournament'') system.

XII. Notice

    For purposes of this Final Judgment, any notice or other 
communication required to be filed with or provided to the United 
States or the Antitrust Division must be sent to the addresses set 
forth below (or such other addresses as the United States may specify 
in writing to Defendant):

Chief, Civil Conduct Task Force, U.S. Department of Justice, Antitrust 
Division, 450 Fifth Street, Washington, DC 20530, 
<a href="/cdn-cgi/l/email-protection#c8899c9a82bdacafa5ada6bc8ba7a5b8a4a1a9a6abad88bdbbaca7a2e6afa7be"><span class="__cf_email__" data-cfemail="edacb9bfa798898a80888399ae82809d81848c838e88ad989e898287c38a829b">[email protected]</span></a>; and the
PSD, Regional Director, Packers and Stockyards Division--Eastern 
Regional Office, United States Department of Agriculture, AMS FTPP, 75 
Ted Turner Drive SW, Suite 230, Atlanta, GA 30303.

XIII. Public Interest Determination

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16, including by making available to the 
public copies of this Final Judgment and the Competitive Impact 
Statement, public comments thereon, and any response to comments by the 
United States. Based upon the record before the Court, which includes 
the Competitive Impact Statement and, if applicable, any comments and 
response to comments filed with the Court, entry of this Final Judgment 
is in the public interest.

Date: ______, 2023.
[Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16]
-----------------------------------------------------------------------
United States District Judge

Appendix 1

[Koch letterhead]
[Name and address of sender (Koch's Chief Operating Officer)]
[Date of actual mailing and email distribution]
[Name, mailing address, and email of addressee]

    Re: Department of Justice's Settlement with Koch Foods, Inc.

Dear [name of Independent Poultry Grower]:

    The United States Department of Justice has reached a settlement 
with Koch Foods that may affect you. Under the agreement, Koch Foods 
is prohibited from trying to require you to pay a termination 
payment if you choose to switch to another poultry processor. Also, 
you may be entitled to compensation if you paid any out-of-pocket 
expenses as a result of Koch attempting to require a termination 
payment from you for trying to switch to another poultry processor. 
Please read this letter carefully to learn more about your rights 
under the settlement.

The Lawsuit

    The Department of Justice sued Koch Foods for seeking to recover 
payments from growers who tried to switch to other poultry 
processors. In the lawsuit, the Department of Justice alleged that 
Koch violated the federal antitrust laws and the Packers and 
Stockyards Act by requiring growers who tried to switch to another 
processor to pay back a portion of their new house incentive 
payments. Koch sued or threatened to sue several growers who did not 
pay back incentive payments sought by Koch. To resolve the dispute, 
the Department of Justice entered into a court-approved settlement 
with Koch. You can find the Department of Justice's complaint and 
the Court's Order approving the settlement here: [link to the 
Complaint and Final Judgment]. The Court's Order requires Koch to 
distribute this notice to growers like yourself.

Koch Cannot Require You To Pay a Termination Payment for Switching to 
Another Poultry Processor

    The Court's Order prohibits Koch from requiring you to pay a 
termination payment when switching to another poultry processor. For 
example, Koch cannot enforce any provision like the following in a 
poultry production contract:
    If [Independent Poultry Grower] elects to terminate the [Live 
Poultry Agreement] during the . . . [time period applicable to this 
New House Incentive Agreement/New House Payment Period], then 
[Independent Poultry Grower] shall refund Company, within ninety 
(90) days of its notice of termination to Company, [any/all] 
payments made by Company [during the previous 12 months] under this 
. . . . New House [Incentive/Payment] Agreement . . . .
    You are receiving this notice because you likely have a similar 
provision in your contract with Koch. Koch also will not include any 
termination payment obligation in any future poultry contract with 
you. The Court's Order does not apply to loans Koch provides to a 
grower, as long as the loan had an original term of five years or 
less (no extensions), is being forgiven in equal amounts during that 
original term, and meets certain other conditions specified in the 
Court's Order.
    To be clear, this settlement does not prevent Koch from paying 
you a new house incentive or any other bonus. Instead, it prevents 
Koch from trying to recover any of those payments if you terminate 
your contract with Koch.

Koch Must Reimburse Out-of-Pocket Costs

    You may be entitled to reimbursement by Koch if you paid any 
out-of-pocket costs as a result of Koch trying to require you to pay 
a termination payment when switching to another processor or for 
threatening to require you to pay a termination payment if you 
switched to another processor. These reimbursable expenses include 
(1) any new house incentive payments that you paid back to Koch when 
you switched to another processor or (2) attorneys' fees or court 
costs that you paid as a result of Koch suing or threatening to sue 
you for switching without paying the termination payment. If you did 
not pay any out-of-pocket expenses as a result of Koch attempting to 
require a termination payment from you when you switched processors 
or if another poultry processor reimbursed you for those expenses, 
you cannot make a claim and should not return the attached Request 
for Payment form.

How To Submit a Request for Payment

    To qualify for reimbursement, you must submit a request for 
payment to Koch that (i) lists the relevant payments you have made 
(termination payments or recoverable legal costs), (ii) attaches 
documentation such as invoices that demonstrate you made the 
payments, (iii) confirms that the payments were not made or 
reimbursed by or on behalf of another poultry company, and (iv) 
swears that your claim is accurate under the penalty of perjury. A 
suggested Request for Payment form you can use is attached to this 
notice. You must submit your request for payment and attached 
documentation to Koch by email at [Koch email address] or by U.S. 
mail at [mailing address] no later than [60 days from date of 
notice].

What happens after a claim is submitted?

    If Koch does not dispute your request, it will pay your request 
on or before [stated date that is 120 days after the date of entry 
of the Final Judgment]. If Koch disputes your request, Koch must 
notify you within 14 days of receiving your request, explain the 
basis for the dispute, and submit the dispute to the Department of 
Justice. The Department of Justice will select an independent 
referee to resolve the dispute and will contact you, giving you the 
opportunity to participate in or opt out of the referee proceeding 
if you prefer. You will not be charged any fee related to this 
dispute--Koch will bear all fees and costs of the referee.
* * * * *
    The Court's Order itself, rather than the brief description 
provided in this letter, controls your rights and Koch's 
obligations. If you have any questions about the Court's Order or 
how it affects you, please contact me or the Civil Conduct Task 
Force, U.S. Department of Justice, Antitrust Division, at 
<a href="/cdn-cgi/l/email-protection#28697c7a625d4c4f454d465c6b474558444149464b4d685d5b4c4742064f475e"><span class="__cf_email__" data-cfemail="b8f9eceaf2cddcdfd5ddd6ccfbd7d5c8d4d1d9d6dbddf8cdcbdcd7d296dfd7ce">[email protected]</span></a>.

Sincerely,
[Sender name, Koch Foods, Inc.]

Request for Payment

Return this form to Koch Foods Inc. by email at [email address] or 
U.S. mail at [mailing address] NO LATER THAN [stated date that is 60 
days from date of notice].

SUBMIT THIS FORM ONLY IF YOU INTEND TO FILE A CLAIM FOR PAYMENT

    Pursuant to the Final Judgment dated [date of entry of Final 
Judgment] in the matter of United States v. Koch Foods, Inc. (N.D. 
Ill.),

[[Page 85321]]

I am entitled to payment by Koch Foods, Inc. for the following 
amounts:

$______ for a Termination Payment

(Please attach invoices or other documents that demonstrate that you 
incurred the requested payment amount; if you incurred no 
Termination Payment, leave blank or enter ``zero''.)

$______ for Recoverable Legal Costs

(Please attach invoices or other documents that demonstrate that you 
incurred the requested payment amount; if you incurred no 
Recoverable Legal Costs, leave blank or enter ``zero''.)

(PLEASE READ AND CHECK BOX BELOW)

[ballot] I confirm that I have incurred or paid all requested 
amounts as reflected on the attached invoices or other documents and 
that none of the requested amounts was paid or reimbursed by or on 
behalf of a Poultry Processor.

I, ______, under penalty of perjury, do hereby certify that the 
foregoing information is true and correct.
-----------------------------------------------------------------------
Signature
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Email address (required)
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Date

Appendix 2

[Koch letterhead]
[Name and address of sender (Koch's Chief Operating Officer)]
[Date of actual mailing and email distribution]
[Name, mailing address, and email of addressee]

    Re: Department of Justice's Settlement with Koch Foods, Inc.

Dear [name of Independent Poultry Grower]:

    The United States Department of Justice has reached a settlement 
with Koch Foods that may affect you. Under the agreement, you may be 
entitled to compensation if you paid any out-of-pocket expenses as a 
result of Koch attempting to require a termination payment from you 
for trying to switch to another poultry processor. Please read this 
letter carefully to learn more about your rights under the 
settlement.

The Lawsuit

    The Department of Justice sued Koch Foods for seeking to recover 
payments from growers who tried to switch to other poultry 
processors. In the lawsuit, the Department of Justice alleged that 
Koch violated the federal antitrust laws and the Packers and 
Stockyards Act by requiring growers who tried to switch to another 
processor to pay back a portion of their new house incentive 
payments. Koch sued or threatened to sue several growers who did not 
pay back incentive payments sought by Koch. To resolve the dispute, 
the Department of Justice entered into a court-approved settlement 
with Koch. You can find the Department of Justice's complaint and 
the Court's Order approving the settlement here: [link to the 
Complaint and Final Judgment]. The Court's Order requires Koch to 
distribute this notice to former Koch growers like yourself.

Koch Must Reimburse Out-of-Pocket Expenses

    Although you are no longer a Koch grower, you are receiving this 
letter because your contract with Koch likely had a provision 
similar to the following:
    If [Independent Poultry Grower] elects to terminate the [Live 
Poultry Agreement] during the . . . [time period applicable to this 
New House Incentive Agreement/New House Payment Period], then 
[Independent Poultry Grower] shall refund Company, within ninety 
(90) days of its notice of termination to Company, [any/all] 
payments made by Company [during the previous 12 months] under this 
. . . . New House [Incentive/Payment] Agreement . . . .
    You may be entitled to reimbursement by Koch if you paid any 
out-of-pocket costs as a result of Koch trying to require you to pay 
a termination payment when switching to another processor or for 
threatening to require you to pay a termination payment if you 
switched to another processor. These reimbursable expenses include 
(1) any new house incentive payments that you paid back to Koch when 
you switched to another processor or (2) attorneys' fees or court 
costs that you paid as a result of Koch suing or threatening to sue 
you for switching without paying the termination payment. If you did 
not pay any out-of-pocket expenses as a result of Koch trying to 
require you to pay a termination payment when you switched 
processors or if another poultry processor reimbursed you for those 
expenses, you cannot make a claim and should not return the attached 
Request for Payment form.
    The Court's Order does not apply to repayment of any loans Koch 
provided to growers as long as the loan had an original term of five 
years or less (no extensions), was forgiven in equal amounts during 
that original term, and met certain other conditions specified in 
the Court's Order.

How To Submit a Request for Payment

    To qualify for reimbursement, you must submit a request for 
payment to Koch that (i) lists the relevant payments you have made 
(termination payments or recoverable legal costs), (ii) attaches 
documentation such as invoices that demonstrate you made the 
payments, (iii) confirms that the payments were not made or 
reimbursed by or on behalf of another poultry company, and (iv) 
swears that your claim is accurate under the penalty of perjury. A 
suggested Request for Payment form you can use is attached to this 
notice. You must submit your request for payment and attached 
documentation to Koch by email at [Koch email address] or by U.S. 
mail at [mailing address] no later than [60 days from date of 
notice].

What happens after a claim is submitted?

    If Koch does not dispute your request, it will pay your request 
on or before [stated date that is 120 days after the date of entry 
of the Final Judgment]. If Koch disputes your request, Koch must 
notify you within 14 days of receiving your request, explain the 
basis for the dispute, and submit the dispute to the Department of 
Justice. The Department of Justice will select an independent 
referee to resolve the dispute and will contact you, giving you the 
opportunity to participate in or opt out of the referee proceeding 
if you prefer. You will not be charged any fee related to this 
dispute--Koch will bear all fees and costs of the referee.

Additional Information About the Order

    Besides obligating Koch to repay certain expenses as described 
above, the Court's Order prohibits Koch from penalizing growers for 
trying to switch processors.
* * * * *
    The Court's Order itself, rather than the brief description 
provided in this letter, controls your rights and Koch's 
obligations. If you have any questions about the Court's Order or 
how it affects you, please contact me or the Civil Conduct Task 
Force, U.S. Department of Justice, Antitrust Division, at 
<a href="/cdn-cgi/l/email-protection#0f4e5b5d457a6b68626a617b4c60627f63666e616c6a4f7a7c6b606521686079"><span class="__cf_email__" data-cfemail="89c8dddbc3fcedeee4ece7fdcae6e4f9e5e0e8e7eaecc9fcfaede6e3a7eee6ff">[email protected]</span></a>.

Sincerely,
[Sender name, Koch Foods, Inc.]

Request for Payment

Return this form to Koch Foods Inc. by email at [email address] or 
U.S. mail at [mailing address] NO LATER THAN [stated date that is 60 
days from date of notice].

SUBMIT THIS FORM ONLY IF YOU INTEND TO FILE A CLAIM FOR PAYMENT

    Pursuant to the Final Judgment dated [date of entry of Final 
Judgment] in the matter of United States v. Koch Foods, Inc. (N.D. 
Ill.), I am entitled to payment by Koch Foods, Inc. for the 
following amounts:

$______ for a Termination Payment

(Please attach invoices or other documents that demonstrate that you 
incurred the requested payment amount; if you incurred no 
Termination Payment, leave blank or enter ``zero''.)

$______ for Recoverable Legal Costs

(Please attach invoices or other documents that demonstrate that you 
incurred the requested payment amount; if you incurred no 
Recoverable Legal Costs, leave blank or enter ``zero''.)

(PLEASE READ AND CHECK BOX BELOW)

[ballot] I confirm that I have incurred or paid all requested 
amounts as reflected on the attached invoices or other documents and 
that none of the requested amounts was paid or reimbursed by or on 
behalf of a Poultry Processor.

I, ______, under penalty of perjury, do hereby certify that the 
foregoing information is true and correct.
-----------------------------------------------------------------------
Signature
-----------------------------------------------------------------------
Email address (required)
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Date

United States District Court for the Northern District of Illinois 
Eastern Division

    United States of America, 450 Fifth Street NW, Washington, DC 
20530, Plaintiff, v. Koch Foods Incorporated, 1300 W Higgins Road, 
Suite 100, Park Ridge, IL 60068, Defendant.

Case No. 1:23-cv-15813

[[Page 85322]]

Judge John F. Kness

Competitive Impact Statement

    In accordance with the Antitrust Procedures and Penalties Act, 15 
U.S.C. 16(b)-(h) (the ``Tunney Act''), the United States of America 
files this Competitive Impact Statement related to the proposed Final 
Judgment as to Defendant Koch Foods Incorporated (``Koch'' or 
``Defendant'').

I. Nature and Purpose of the Proceeding

    On November 9, 2023, the United States filed a civil complaint 
against Koch. Koch contracts with independent chicken farmers, 
generally known as ``growers,'' \3\ to breed and care for Koch's 
chickens until they are ready for slaughter and processing. The 
Complaint alleges that, since 2014, Koch contracts require many of its 
growers to pay Koch an exit penalty if they terminate their contracts 
with Koch and switch to another processor.\4\ Since at least 2018, Koch 
has sought to enforce this exit penalty provision through threatened or 
actual litigation against growers who try to switch. Koch's conduct has 
deterred growers from leaving Koch and switching to its competitors. 
The Complaint alleges Koch's exit penalty and efforts to enforce the 
exit penalties are unlawful practices under section 202(a) of the 
Packers and Stockyards Act, 7 U.S.C. 192(a), and section 1 of the 
Sherman Act, 15 U.S.C. 1.
---------------------------------------------------------------------------

    \3\ Most farmers who contract their services to Koch raise 
``broilers,'' the chickens that are slaughtered and processed for 
people to consume. Some farmers raise Koch's breeder hens or pullets 
(chicks). This Competitive Impact Statement and the Final Judgment 
use the term ``growers'' to refer to all chicken farmers raising 
broilers, breeders, or pullets for Koch.
    \4\ Although the termination provisions by their terms applied 
to all qualifying growers who terminated their contract with Koch, 
as a matter of practice, Koch enforced the provision only against 
growers who intended to switch to another processor.
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    Count One of the Complaint alleges that, by including the exit 
penalty provision in its contracts and taking steps to enforce it, Koch 
has violated section 202(a) of the Packers and Stockyards Act, 7 U.S.C. 
192(a), which prohibits unfair and deceptive practices by ``live 
poultry dealers'' such as Koch. Growers are required to accept the exit 
penalty provision as part of the standard Koch contract and cannot 
reasonably avoid it. Koch sometimes fails to disclose the exit penalty 
provision before a grower takes out a loan to build new broiler houses 
to grow chickens for Koch. The existence and enforcement of the exit 
penalty provision are practices that unfairly harm growers, and no 
countervailing benefit exists for these practices.
    Count Two of the Complaint alleges that Koch violates section 
202(a) of the Packers and Stockyards Act, 7 U.S.C. 192(a), by imposing 
the exit penalty provision because it unfairly burdens growers' rights 
under 9 CFR 201.100(h)(2) to terminate their production contracts on 90 
days' prior notice to Koch.
    Count Three of the Complaint alleges that, by including the exit 
penalty provision in its production contracts with growers, Koch 
unreasonably restrains interstate trade and commerce in violation of 
section 1 of the Sherman Antitrust Act, 15 U.S.C. 1. Koch's illegal 
conduct reduces competition in the market for the purchase of growers' 
services, imposes unreasonable costs on growers who might otherwise 
switch poultry processors, and deprives growers of the benefits of 
competition for their services. The exit penalty provision has 
prevented growers from accepting better compensation from Koch 
competitors.
    Along with the Complaint, the United States filed a proposed Final 
Judgment and a Stipulation and Order (``Stipulation and Order'') to 
remedy the unfair and anticompetitive effects resulting from the 
harmful conduct alleged in the Complaint. The Final Judgment is subject 
to review under the Tunney Act only to the extent that it resolves the 
Sherman Act claim because the Packers and Stockyards Act is not an 
``antitrust law[],'' as defined in 15 U.S.C. 12(a). See 15 U.S.C. 16(b) 
(mandating the Tunney Act's procedures only for ``civil proceeding[s] 
brought by or on behalf of the United States under the antitrust laws'' 
(emphasis added)).
    Under the proposed Final Judgment, which is explained more fully 
below, Koch must cease all efforts to collect exit penalties, return 
all exit penalties, repay all affected growers their ``Recoverable 
Legal Costs'' (as defined in the proposed Final Judgment), notify all 
former or current Koch growers whose production contract contained an 
exit penalty that the provision is of no further force or effect, and 
refrain from including an exit penalty provision in any chicken 
production contracts for the term of the decree.
    While the proposed Final Judgment is pending before the Court, Koch 
must cease all efforts to collect exit penalties and refrain from 
including an exit penalty provision in any future chicken production 
contracts. The terms of the Stipulation and Order require Koch to abide 
by and comply with the provisions of the proposed Final Judgment until 
it is entered by the Court or until the time for all appeals of any 
Court ruling declining entry of the proposed Final Judgment has 
expired.
    The United States and Koch have stipulated that the proposed Final 
Judgment may be entered after compliance with the Tunney Act. Entry of 
the proposed Final Judgment will terminate this action, except that the 
Court will retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and punish violations 
thereof.

II. Description of Events Giving Rise to the Alleged Sherman Act 
Violation

A. The Defendant and the Growers

    Koch is the fifth largest poultry processor in the United States. 
Like other processors, Koch contracts with growers to raise its broiler 
chickens for delivery to Koch's processing plants. To operate at a 
scale sufficient to grow broilers for a major processor like Koch, a 
poultry farmer typically needs two to four modern broiler houses, with 
a construction cost of approximately $500,000 per house. The growers 
thus bear the risks of their investment, including risks of weather 
damage, such as tornadoes. By outsourcing chicken growing, Koch shifts 
the substantial cost, capital requirements, and risk to small poultry 
farmers. Outsourcing chicken growing also allows Koch to avoid the 
burden and costs associated with employing the growers who care for the 
chickens.
    Koch operates eight poultry processing complexes. Each of Koch's 
eight complexes has contracts with approximately 100 growers to provide 
growing services. In total, Koch has more than 800 growers under 
contract. Most of these growers operate as small, highly leveraged 
family farms, and bank debt repayment is their largest expense.
    The only realistic way for most growers to repay their loans for 
newly constructed broiler houses is by growing broiler chickens. Once 
built, broiler houses cannot be relocated, and farmers can raise 
chickens only for processors that are both nearby and willing to accept 
new farmers. Growers know that their farm is just one among many, and 
none is an irreplaceable supplier of growing services for Koch or any 
other processor.
    In deciding whether to approve the grower's loan, a lender will 
generally evaluate a grower's projected cash flow based on the 
standard-form Koch contract. The lender expects that Koch will require 
the farmer to sign the contract without amendment after the chicken 
houses are built. The lender generally conditions a loan for new-

[[Page 85323]]

house construction on a farmer's willingness to execute the Koch 
standard contract ``as is'' once the new broiler houses are ready to 
receive their first flocks. Most loans for broiler houses span 10 or 15 
years, while some are longer. As a practical matter, Koch offers 
contracts to growers on a ``take-it-or-leave-it'' basis, and a 
prospective grower typically has no opportunity to negotiate the 
compensation terms of a Koch contract.
    Koch wields enormous leverage over the farmers who grow its broiler 
chickens. These indebted growers generally need at least six flocks 
each year to stay current on their broiler- house loans, yet Koch 
decides the number of flocks to allot to each farmer. If Koch elected 
not to renew a grower's contract, or merely reduced the number of 
flocks placed per year, many growers would be unable to make their loan 
repayments. Koch also controls other factors that can significantly 
affect the compensation of growers, such as the number and quality of 
chicks provided, the type of feed, the timing of when flocks are 
collected, the use of antibiotics, and various payment adjustments.

B. The Anticompetitive Effects of the Koch Exit Penalty Provision

    Count Three of the Complaint, which charges the Sherman Act 
violation, alleges that the Koch exit penalty and Koch's efforts to 
enforce it through threatened or filed litigation against growers 
result in anticompetitive effects in the market for the purchase of 
farmers' growing services.
    Processors typically own the chicks they place with growers under 
production contracts, and pay for the chickens' transportation, feed, 
veterinary care, and collection. The cost and risk of transporting feed 
and chickens limit the area in which processors can contract with 
growers. The geographic radius within which a processor can 
economically contract with farmers for chicken growing services 
constitutes its ``draw area.''
    Although there may be some processor-specific requirements, top-
quality chicken housing that satisfies one processor's requirements can 
be acceptable to other processors in the area. Growers with top-quality 
housing may be able to improve their compensation by switching from 
Koch to another processor, depending on the competitive conditions in 
the relevant market. Another processor competes with a Koch complex for 
chicken growing services if the draw area of one or more of its 
complexes overlaps significantly with the draw area of that Koch 
complex.
    For each Koch complex that competes with one or more rival 
processors, the relevant geographic market is an area around the Koch 
complex and its set of competing processors. Koch contracts with a 
significant share of the growers working for processors within the 
geographic market of each Koch complex.
    Nearly all growers contracting with Koch are also within the draw 
area of at least one competitor's complex and therefore can benefit 
from competition for their services. Over 80 percent of growers working 
for Koch are located within the draw areas of the complexes of at least 
two of Koch's competitors. More than half of the growers who provide 
their services to Koch are located within the draw areas of the 
complexes of three or more of Koch's competitors.
    Each Koch complex competes with one or more rival processors to 
sign up growers within their overlapping draw areas. But the Koch exit 
penalty provision artificially restrains growers from switching from 
Koch to a competitor. Because Koch contracts with a significant share 
of the growers under contract with processors in each complex's 
geographic market, these switching restraints significantly lessen 
competition in those markets.
    Koch's highly visible efforts to collect its exit penalties have 
deterred growers who might otherwise avail themselves of competition 
between Koch and other processors to obtain better compensation for 
themselves and their families. Koch's exit penalty unreasonably harms 
competition for growers' services.

III. Explanation of the Proposed Final Judgment

    The relief required by the proposed Final Judgment will remedy the 
loss of competition alleged in Count Three. Under the proposed 
judgment, Koch must eliminate the exit penalty provision from Koch's 
current contracts and omit it from future contracts. Further, Koch must 
repay all exit penalties that it has collected and to reimburse all 
Recoverable Legal Costs that growers have incurred as a result of 
Koch's threatened or filed litigation. The proposed judgment requires 
Koch to refrain from collecting any exit penalty, taking any steps to 
collect any exit penalty, or including an exit penalty in its chicken 
production contracts. It also prohibits Koch from engaging in any 
retaliation, intimidation, or harassment of any grower who was involved 
in any exit penalty dispute or who cooperated with the United States 
Department of Justice or the United States Department of Agriculture in 
their investigations of Koch's exit penalties.
    Sections IV and V of the proposed Final Judgment require Koch to:
    a. Inform all growers with contracts that contain an exit penalty 
provision that the provision is unenforceable.
    b. Repay exit penalties collected from growers.
    c. Notify all growers whose production agreements contain or 
contained an exit penalty provision that they may make a claim for 
repayment of any exit penalties not already repaid by Koch and for 
reimbursement of any Recoverable Legal Costs by submitting to Koch a 
request for payment. The form of notices to current and former growers 
are attached to the proposed Final Judgment as Appendix 1 and Appendix 
2, respectively.
    d. Repay all growers' undisputed requests for payment within 120 
days of entry of the proposed Final Judgment.
    e. Commence a dispute resolution process set forth in the proposed 
Final Judgment within 14 days of receipt of any request for payment 
that Koch disputes. Under this process, the Antitrust Division will 
select a referee, whose decision will be final, binding on Koch and the 
grower or former grower, and enforceable by the Antitrust Division or 
the grower through this Court's contempt power under the proposed Final 
Judgment.
    f. Refrain from accepting the payment of any exit penalty, taking 
any steps to collect any exit penalty, or including an exit penalty 
provision in any production agreement with a grower.
    g. Refrain from engaging in any retaliation, intimidation, or 
harassment of any grower who was involved in any exit penalty dispute 
or who cooperated with the United States Department of Justice or the 
United States Department of Agriculture in their investigations related 
to the subject matter of this action.
    h. Meet certain reporting obligations to the United States 
Department of Justice and the United States Department of Agriculture, 
including an annual certification that Koch is in compliance with the 
proposed Final Judgment.
    For any loans Koch makes to growers, the acceleration of such a 
loan upon the termination of a grower's production agreement 
constitutes a prohibited exit penalty under the proposed Final Judgment 
unless the loan terms conform to specific criteria set forth in the 
definition of ``Loan Agreement'' (Paragraph II.G). In particular, a 
loan

[[Page 85324]]

agreement permitted under the proposed Final Judgment must:
    <bullet> Have an original term of five years or less and not have 
been extended prior to acceleration of the loan by a Termination;
    <bullet> Provide that the loan will be forgiven or repaid pro rata 
annually or more frequently during the original term, with only the 
outstanding balance of the original loan accelerated and payable upon 
termination;
    <bullet> Not impose additional charges for prepayment or 
termination, such as a prepayment penalty;
    <bullet> Not provide for the payment of interest on the loan;
    <bullet> Be for the purpose of facilitating the construction or 
improvement of one or more poultry houses and/or ancillary facilities, 
including the purchase of related real estate and/or the purchase and 
installation of related equipment, and where the value of the poultry 
houses and/or ancillary facilities, including any related real estate 
and/or related equipment, is projected, at the time of the agreement, 
to meet or exceed the amount of any payment due as a result of the 
grower initiating a termination of a production agreement with Koch; 
and
    <bullet> Not violate the antitrust laws or the Packers and 
Stockyards Act.
    The proposed Final Judgment also contains provisions designed to 
promote compliance with and make enforcement of the proposed Final 
Judgment as effective as possible. In order to determine and secure 
compliance with the proposed Final Judgment and related orders such as 
the Stipulation and Order, and to determine whether the proposed Final 
Judgment should be modified or vacated, Paragraph VI.A of the proposed 
Final Judgment provides that, upon written request and with reasonable 
notice, from time to time and subject to legally recognized privileges, 
Koch must permit authorized representatives or agents of the Packers 
and Stockyards Division of the USDA (the ``PSD'') or the Antitrust 
Division of the United States Department of Justice:
    1. to have access during Koch's office hours to inspect and copy, 
or at the option of the requesting agency, to require Koch to provide 
electronic copies of all books, ledgers, accounts, records, data, and 
documents in the possession, custody, or control of Koch relating to 
compliance with any requirements of the proposed Final Judgment; and
    2. to interview, either informally or on the record, Koch's 
officers, employees, or agents relating to compliance with any 
requirements of the proposed Final Judgment. Each interviewee may, at 
their option and without coercion, have any counsel of their choosing 
present. The interviews must be subject to the reasonable convenience 
of the interviewee and without restraint or interference by Koch.
    Paragraph VI.B of the proposed Final Judgment provides that upon 
the written request of an authorized representative of the PSD or the 
Antitrust Division, Koch must submit written reports or respond to 
written interrogatories, under oath if requested, relating to any 
matters contained in the proposed Final Judgment.
    Paragraph IX.A provides that the United States retains and reserves 
all rights to enforce the provisions of the proposed Final Judgment, 
including the right to seek an order of contempt from the Court. Koch 
agrees that in a civil contempt action, a motion to show cause, or a 
similar action brought by the United States relating to an alleged 
violation of the proposed Final Judgment, the United States may 
establish a violation of the proposed Final Judgment and the 
appropriateness of a remedy by a preponderance of the evidence, and 
Koch waives any argument that a different standard of proof should 
apply.
    As a further reservation of rights, Section XI of the proposed 
Final Judgment provides that the proposed Final Judgment terminates 
only the claims expressly stated in the Complaint against Koch and does 
not in any way affect any other charges or claims that may be filed by 
the United States. For the avoidance of doubt, Section XI further 
provides that the Antitrust Division and the PSD retain all rights to 
investigate and prosecute, including under the antitrust laws or the 
Packers and Stockyards Act, any conduct, practice or device that: (1) 
does not arise from an exit penalty or exit penalty provision, or (2) 
is an aspect of any ranked performance pay compensation (sometimes 
described as ``tournament'') system.
    Paragraph IX.B of the proposed Final Judgment provides that the 
proposed Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws, to restore the 
competition the United States alleges was harmed by the challenged 
conduct, and to end an unfair practice or device in the market for the 
purchase of growers' services caused by Koch's inclusion of exit 
penalty provisions in its production agreements. Defendant agrees that 
it may be held in contempt of, and that the Court may enforce, any 
provision of the proposed Final Judgment that, as interpreted by the 
Court in light of these procompetitive and fairness principles and 
applying ordinary tools of interpretation, is stated specifically and 
in reasonable detail, whether or not it is clear and unambiguous on its 
face. In any such interpretation, the terms of the proposed Final 
Judgment should not be construed against either party as the drafter.
    Paragraph IX.C provides that, in an enforcement proceeding in which 
the Court finds that Koch has violated the proposed Final Judgment, the 
United States may apply to the Court for an extension of the proposed 
Final Judgment, together with other relief that may be appropriate. In 
connection with a successful effort by the United States to enforce the 
proposed Final Judgment against Koch, whether litigated or resolved 
before litigation, Koch agrees to reimburse the United States for the 
fees and expenses of its attorneys, as well as all other costs 
including experts' fees, incurred in connection with that effort to 
investigate the potential violation and enforce the proposed Final 
Judgment.
    Paragraph IX.D provides that, for a period of four years following 
the expiration of the proposed Final Judgment, if the United States has 
evidence that Koch violated the proposed Final Judgment before it 
expired, the United States may file an action against Koch in this 
Court requesting that the Court order: (1) Defendant to comply with the 
terms of the proposed Final Judgment for an additional term of at least 
four years following the filing of the enforcement action; (2) all 
appropriate contempt remedies; (3) additional relief needed to ensure 
Koch complies with the terms of the proposed Final Judgment; and (4) 
fees or expenses as called for by Section IX of the proposed Final 
Judgment.
    Finally, Section X of the proposed Final Judgment provides that, 
unless this Court grants an extension, the proposed Final Judgment will 
expire seven years from the date of its entry, except that after three 
years from the date of its entry, the Final Judgment may be terminated 
upon notice by the United States to the Court and Koch that 
continuation of the Final Judgment is no longer necessary or in the 
public interest.

IV. Remedies Available to Potential Private Plaintiffs

    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 neither impairs 
nor

[[Page 85325]]

assists 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 Koch.
    Section 308 of the Packers and Stockyards Act, 7 U.S.C. 209, 
provides that any person subject to the Act who violates any provisions 
of the Act (or of any order of the Secretary of Agriculture relating to 
the Act) related to the purchase or handling of poultry or any poultry 
growing arrangement (among other violations) may be liable to persons 
injured as a result of those violations for the full amount of damages 
sustained as a consequence, and such injured persons may bring suit in 
federal court or may complain to the Secretary of Agriculture.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and Koch have stipulated that the proposed Final 
Judgment may be entered by the Court after compliance with the 
provisions of the Tunney Act, provided that the United States has not 
withdrawn its consent. The Tunney Act conditions entry of the Final 
Judgment's resolution of the Sherman Act claim upon the Court's 
determination that the proposed Final Judgment with respect to the 
Sherman Act claim is in the public interest.
    The Tunney Act provides a period of at least 60 days preceding the 
effective date of a proposed final judgment that resolves a Sherman Act 
claim during which time any person may submit to the United States 
written comments regarding the proposed final judgment. Any person who 
wishes to comment on the proposed final judgment should do so within 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register, or within 60 days of the first date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States Department of Justice, which 
remains free to withdraw its consent to the proposed Final Judgment at 
any time before the Court's entry of the Final Judgment. The comments 
and the response of the United States will be filed with the Court. In 
addition, the comments and the United States' responses will be 
published in the Federal Register unless the Court agrees that the 
United States instead may publish them on the United States Department 
of Justice, Antitrust Division's internet website.
    Written comments should be submitted in English to: Daniel S. 
Guarnera, Chief, Civil Conduct Task Force, Antitrust Division, United 
States Department of Justice, 450 Fifth St. NW, Suite 8600, Washington, 
DC 20530, <a href="/cdn-cgi/l/email-protection#044550564e71606369616a70476b6974686d656a6761447177606b6e2a636b72"><span class="__cf_email__" data-cfemail="713025233b0415161c141f05321e1c011d18101f1214310402151e1b5f161e07">[email protected]</span></a>.
    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

    As an alternative to the proposed Final Judgment, the United States 
considered a full trial on the merits against Koch. The United States 
could have commenced contested litigation and brought the case to 
trial, seeking relief including a declaration that the exit penalty 
provisions in the growers' production agreements with Koch were neither 
enforceable nor effective, an injunction requiring Koch to give 
appropriate notices to current and former growers, and monetary relief 
to repay growers from whom Koch has collected exit penalties and to 
reimburse growers for Recoverable Legal Costs as a consequence of 
Koch's collection efforts. The United States is satisfied, however, 
that the relief required by the proposed Final Judgment will remedy the 
anticompetitive effects alleged in the Complaint, preserving 
competition in the market for the purchase of poultry growing services. 
Thus, the proposed Final Judgment achieves all or substantially all of 
the relief the United States would have obtained through litigation 
against Koch but avoids the time, expense, and uncertainty of a full 
trial on the merits.

VII. Standard of Review Under the Tunney Act for the Proposed Final 
Judgment

    Under the Clayton Act and Tunney Act, proposed final judgments, or 
``consent decrees,'' that resolve antitrust claims brought by the 
United States are subject to a 60-day comment period, after which the 
Court must determine whether entry of a proposed final judgment with 
respect to those antitrust claims ``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); United States v. U.S. Airways Grp., 
Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the 
``court's inquiry is limited'' in Tunney Act settlements); United 
States v. InBev N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 
84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a court's review of a 
proposed Final 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'').
    As the U.S. Court of Appeals for the District of Columbia Circuit 
has held, under the Tunney Act, a court considers, among other things, 
the relationship between the remedy secured and the specific 
allegations in the government's Complaint, whether a proposed Final 
Judgment is sufficiently clear, whether its enforcement mechanisms are 
sufficient, and whether it may positively harm third parties. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by a proposed Final Judgment, a court may not ``make de 
novo determination of facts and issues.'' United States v. W. Elec. 
Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks omitted); 
see also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 
152 F. Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107 
F. Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3. Instead, ``[t]he balancing of competing social and political 
interests affected by a proposed antitrust decree must be left, in the 
first instance, to the discretion of the Attorney General.'' W. Elec. 
Co., 993

[[Page 85326]]

F.2d at 1577 (quotation marks omitted). ``The court should also bear in 
mind the flexibility of the public interest inquiry: the court's 
function is not to determine whether the resulting array of rights and 
liabilities is the one that will best serve society, but only to 
confirm that the resulting settlement is within the reaches of the 
public interest.'' Microsoft, 56 F.3d at 1460 (quotation marks 
omitted); see also United States v. Deutsche Telekom AG, No. 19-2232 
(TJK), 2020 WL 1873555, at *7 (D.D.C. Apr. 14, 2020). More demanding 
requirements would ``have enormous practical consequences for the 
government's ability to negotiate future settlements,'' contrary to 
congressional intent. Microsoft, 56 F.3d at 1456. ``The Tunney Act was 
not intended to create a disincentive to the use of the consent 
decree.'' Id.
    The United States' predictions about the efficacy of the remedy are 
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at 
1461 (recognizing courts should give ``due respect to the Justice 
Department's . . . view of the nature of its case''); United States v. 
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In 
evaluating objections to settlement agreements under the Tunney Act, a 
court must be mindful that [t]he government need not prove that the 
settlements will perfectly remedy the alleged antitrust harms[;] it 
need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'' (internal 
citations omitted)); United States v. Republic Servs., Inc., 723 F. 
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to 
which the government's proposed remedy is accorded''); United States v. 
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A 
district court must accord due respect to the government's prediction 
as to the effect of proposed remedies, its perception of the market 
structure, and its view of the nature of the case.''). The ultimate 
question is whether ``the remedies [obtained by the Final Judgment are] 
so inconsonant with the allegations charged as to fall outside of the 
`reaches of the public interest.' '' Microsoft, 56 F.3d at 1461 
(quoting W. Elec. Co., 900 F.2d at 309).
    Moreover, the Court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the antitrust violations that 
the United States has alleged in its Complaint, and the Tunney Act does 
not authorize the Court to ``construct [its] own hypothetical case and 
then evaluate the decree against that case.'' Microsoft, 56 F.3d at 
1459; see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that the 
court must simply determine whether there is a factual foundation for 
the government's decisions such that its conclusions regarding the 
proposed settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS 
84787, at *20 (``[T]he `public interest' is not to be measured by 
comparing the violations alleged in the complaint against those the 
court believes could have, or even should have, been alleged.''). 
Because the ``court's authority to review the decree depends entirely 
on the government's exercising its prosecutorial discretion by bringing 
a case in the first place,'' it follows that ``the court is only 
authorized to review the decree itself,'' and not to ``effectively 
redraft the complaint'' to inquire into other matters that the United 
States did not pursue. Microsoft, 56 F.3d at 1459-60.
    In its 2004 amendments to the Tunney Act, Congress made clear its 
intent to preserve the practical benefits of using judgments proposed 
by the United States in antitrust enforcement, Public Law 108-237 Sec.  
221, and added the unambiguous instruction that ``[n]othing in this 
section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). This language explicitly wrote into the statute what Congress 
intended when it first enacted the Tunney Act in 1974. As Senator 
Tunney explained: ``[t]he court is nowhere compelled to go to trial or 
to engage in extended proceedings which might have the effect of 
vitiating the benefits of prompt and less costly settlement through the 
consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of 
Sen. Tunney). ``A court can make its public interest determination 
based on the competitive impact statement and response to public 
comments alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citing Enova 
Corp., 107 F. Supp. 2d at 17).

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the Tunney Act that were considered by the United States in 
formulating the proposed Final Judgment.

    Dated: November 17, 2023.

    Respectfully submitted,

For Plaintiff, United States of America

Jack G. Lerner,

U.S. Department of Justice Antitrust Division, Civil Conduct Task 
Force, 450 Fifth Street NW, Suite 8600, Washington, DC 20530, Tel: 
202-227-9295, Fax: 202-616-2441, Email: <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="c5afa4a6aeeba9a0b7aba0b785b0b6a1aaafeba2aab3">[email protected]</a>.

[FR Doc. 2023-26794 Filed 12-6-23; 8:45 am]
BILLING CODE 4410-11-P


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