[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Notices]
[Pages 16427-16436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07055]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States and State of New York v. Twin America, LLC, et al.; 
Proposed Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation and Competitive Impact Statement have been filed with the 
United States District Court for the Southern District of New York in 
United States and State of New York v. Twin America, LLC, et al., Civil 
Action No. 12-cv-8989 (ALC) (GWG). On December 11, 2012, the United 
States and the State of New York filed a Complaint. The United States 
alleged that the formation of Twin America, LLC by Coach USA, Inc. and 
CitySights LLC violated Section 7 of the Clayton Act (15 U.S.C. 18) and 
Section 1 of the Sherman Act (15 U.S.C. 1). The proposed Final 
Judgment, filed on March 16, 2015, requires Defendants to relinquish 
all of CitySights's Manhattan bus stop authorizations granted by the 
New York City Department of Transportation (NYC DOT) to NYC DOT, and to 
pay $7.5 million in disgorgement.
    Copies of the Complaint, proposed Final Judgment and Competitive 
Impact Statement are available for inspection at the Department of 
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth 
Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), 
on the Department of Justice's Web site at http://www.usdoj.gov/atr, 
and at the Office of the Clerk of the United States District Court for 
the Southern District of New York. 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 Department of Justice, 
Antitrust Division's internet Web site, filed with the Court and, under 
certain circumstances, published in the Federal Register. Comments 
should be directed to William H. Stallings, Chief, Transportation, 
Energy & Agriculture Section, Antitrust Division, U.S. Department of 
Justice, 450 Fifth Street NW., Suite 8000, Washington, DC 20530 
(telephone: 202-514-9323).

 Patricia A. Brink
 Director of Civil Enforcement.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

    United States of America, and State of New York, Plaintiffs, v. 
Twin America, LLC, et al., Defendants.

Civil Action No. 12-cv-8989 (ALC) (GWG).
ECF CASE.

COMPETITIVE IMPACT STATEMENT

    Pursuant to Section 2(b) of the Antitrust Procedures and Penalties 
Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b)-(h), Plaintiff United 
States of America (``United States'') files this Competitive Impact 
Statement relating to the proposed Final Judgment submitted for entry 
in this civil antitrust proceeding.

I. NATURE AND PURPOSE OF THE PROCEEDING

    On March 17, 2009, Defendants Coach USA, Inc. (through subsidiary 
International Bus Services, Inc. (``IBS'')) and CitySights LLC (through 
subsidiary City Sights Twin, LLC) formed Twin America, LLC (``Twin 
America''), a joint venture that combined the companies' hop-on, hop-
off bus tour businesses in New York City. The United States and the 
State of New York (collectively, ``Plaintiffs'') filed a civil 
antitrust Complaint on December 11, 2012, alleging that the formation 
of Twin America substantially lessened competition in the market for 
hop-on, hop-off bus tours in New York City in violation of Section 7 of 
the Clayton Act (15 U.S.C. 18), and also violated Section 1 of the 
Sherman Act (15 U.S.C. 1), Section 340 of the Donnelly Act (N.Y. Gen. 
Bus. Law Sec.  340), and Section 63(12) of the New York Executive Law 
(N.Y. Exec. Law Sec.  63(12)).\1\ The Complaint sought to remedy harm 
to competition and disgorge Defendants' ill-gotten gains.
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    \1\ The Tunney Act applies to ``proposal[s] for a consent 
judgment submitted by the United States for entry in any civil 
proceeding brought by or on behalf of the United States under the 
antitrust laws [of the United States].'' 15 U.S.C. 16(b). Therefore, 
the proposed Final Judgment's settlement of Plaintiff State of New 
York's claims under N.Y. Gen. Bus. Law Sec.  340 and N.Y. Exec. Law 
Sec.  63(12) are not subject to the Tunney Act.
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    The Parties completed discovery and dispositive motions practice 
and trial was scheduled to begin on February 23, 2015. On December 10, 
2014, the Parties informed the Court that they had reached an agreement 
in principle to settle the litigation and the trial date was adjourned 
while the Parties finalized the settlement.
    Concurrent with the filing of this Competitive Impact Statement, 
Plaintiffs have filed a proposed Stipulation and Order, a proposed 
Final Judgment, and an Explanation of Consent Decree Procedures. The 
proposed Final Judgment is designed to remedy the competitive concerns 
resulting from Defendants' formation of Twin America and deprive 
Defendants of ill-gotten gains. As explained more fully below, the 
proposed Final Judgment requires Defendants to relinquish the complete 
set of City Sights's Manhattan bus stop authorizations to the New York 
City Department of Transportation (NYCDOT) and to pay $7.5 million in 
disgorgement, among other remedial actions.\2\
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    \2\ Defendant Coach USA and the United States have also reached 
a settlement relating to costs and expenses incurred by the United 
States associated with discovery into allegations that Coach did not 
meet its document preservation obligations. This settlement, which 
is being filed concurrently with the filing of the proposed Final 
Judgment, is not subject to Tunney Act review.
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    Plaintiffs and Defendants have stipulated that Defendants are bound 
by the terms of the proposed Final Judgment and that the proposed Final 
Judgment may be entered after compliance with the APPA. Entry of the 
proposed Final Judgment would terminate this action, except that the 
Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and to punish violations 
thereof.

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION

A. The Defendants and the Transaction

    Coach USA, Inc. (``Coach''), a Delaware corporation with its 
principal place of business in Paramus, New Jersey, operated hop-on, 
hop-off bus tours in New York City under the ``Gray Line New York'' 
brand. Coach acquired the Gray Line business in 1998, and, by the early 
2000s, was the dominant

[[Page 16428]]

provider of hop-on, hop-off bus tours in New York City.
    CitySights LLC (``City Sights''), a New York limited liability 
company with its principal place of business in New York, New York, 
began operating hop-on, hop-off bus tours under the ``CitySights NY'' 
brand in 2005. Between 2005 and 2009, City Sights steadily grew its 
business and established itself as Gray Line's only meaningful 
competitor. By the end of 2008, City Sights had almost equaled Gray 
Line in market share and was poised for further growth.
    The impact of increasing competition from City Sights generated 
concern at the highest levels of Coach and its corporate parent, 
Stagecoach Group plc (``Stagecoach''), and led them to seek a business 
combination with City Sights. On March 17, 2009, following several 
months of negotiations, Coach (through subsidiary IBS) and City Sights 
(through subsidiary City Sights Twin, LLC) executed a joint venture 
agreement creating Twin America, a Delaware limited liability company 
with its principal place of business in New York City. Twin America 
combined Defendants' New York City hop-on, hop-off bus tour operations 
and ended all competition between Gray Line and City Sights. Twin 
America continued to operate both the Gray Line and City Sights brands 
under common ownership and control.
    The formation of Twin America was not subject to the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a 
(the ``HSR Act''), which requires companies to notify and provide 
information to the Department of Justice and the Federal Trade 
Commission before consummating certain transactions. Neither the United 
States nor the State of New York was aware of the transaction until 
after it had been consummated. Upon learning of the transaction, the 
Antitrust Bureau of the New York State Attorney General's Office 
(``NYSAG'') opened an investigation, and on July 31 and August 3, 2009, 
served subpoenas on Defendants seeking information about Twin America's 
formation.

B. The STB's Rejection of the Joint Venture

    Within weeks of receiving the NYSAG's subpoenas, on August 19, 
2009, Defendants applied to the federal Surface Transportation Board 
(``STB'') for approval of Twin America. Pursuant to 49 U.S.C. 14303, 
the STB must approve certain transactions involving passenger motor 
carriers prior to consummation. Following their application, Defendants 
asserted that review of Twin America was within the STB's exclusive 
jurisdiction because STB approval would immunize the transaction from 
antitrust law.\3\
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    \3\ A party to a transaction approved by the STB is ``exempt 
from the antitrust laws and from all other law . . . as necessary to 
let that person carry out the transaction.'' 49 U.S.C. 14303(f).
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    On February 8, 2011, following the collection of fact and expert 
evidence, the STB rejected the Twin America joint venture. The STB 
expressed ``concern[] that the Board's processes may have been 
manipulated to avoid the inquiry by NYSAG'' and concluded that ``[t]he 
transaction produce[d] an unacceptably high market concentration that 
can lead to, and has in fact led to, unchecked rate increases, and that 
holds the potential for other harmful effects of excessive market 
power.'' \4\ Defendants moved for reconsideration, but in January 2012, 
the STB affirmed its prior finding. The STB gave Defendants the option 
of unwinding Twin America or spinning off Twin America's nominal 
interstate services, which the STB identified as the basis for its 
jurisdiction. On February 8, 2012, Defendants chose to spin off the 
interstate services, which removed the matter from STB jurisdiction but 
did nothing to address the joint venture's anticompetitive effects in 
the New York City hop-on, hop-off bus tour market. Plaintiffs filed the 
above-captioned lawsuit on December 11, 2012.
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    \4\ Stagecoach Group PLC and Coach USA, Inc., et al., 
Acquisition of Control--Twin America LLC, STB Docket No. MC-F-21035 
(Feb. 8, 2011) at 7.
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C. The Competitive Effects of the Transaction in the Market for Hop-On, 
Hop-Off Bus Tours in New York City

1. Relevant Market
    The evidence demonstrates that a significant number of customers 
would not substitute to other tours or attractions in response to a 
small but significant and non-transitory increase in the price (SSNIP) 
of hop-on, hop-off bus tours. These bus tours combine transportation 
and sightseeing into a unique product that is not reasonably 
interchangeable with other tours or attractions. In addition to 
providing an informative and entertaining tour of New York City's most 
popular attractions and neighborhoods, hop-on, hop-off bus tours 
provide customers with the ability to ``hop off'' the bus to visit 
attractions of interest and ``hop on'' a later bus to continue their 
tour using the same ticket. As a result of this feature, customers are 
provided an affordable and reliable means to travel around New York 
City and the ability to customize their sightseeing itineraries to the 
attractions and neighborhoods that interest them. Defendants' documents 
and business practices illustrate that they have long recognized hop-
on, hop-off bus tours in New York City to be a distinct market and do 
not view other types of tours as a significant constraint, a view 
shared by numerous other New York City sightseeing tours and 
attractions.
    The direct evidence of anticompetitive effects following the 
formation of Twin America provides further support for the conclusion 
that hop-on, hop-off bus tours in New York City constitute a relevant 
antitrust market. Defendants implemented a substantial price increase 
around the time of Twin America's early 2009 formation, raising the 
fares of City Sights's and Gray Line's downtown, uptown, and all loops 
tours, for example, by approximately 10 percent. These price increases, 
which Defendants have sustained for six years (and supplemented with 
further increases), are higher than the 5 percent SSNIP that is often 
used under the Horizontal Merger Guidelines to define a market. 
Defining a relevant antitrust market generally involves answering the 
question of whether a hypothetical monopolist would find it profitable 
to impose a SSNIP. The evidence that Coach and City Sights 
significantly increased price as a result of the market power conferred 
by the joint venture directly answers this question: it is clear that a 
hypothetical monopolist would find it profitable to impose a SSNIP 
because an actual near-monopolist (Twin America) did, in fact, find it 
profitable to raise price significantly for an extended period of time.
    Hop-on, hop-off bus tours in New York City therefore constitute a 
relevant market and line of commence under Section 7 of the Clayton 
Act, Section 1 of the Sherman Act, and Section 340 of the Donnelly Act.
2. Competitive Effects
    The formation of Twin America resulted in actual and immediate harm 
to consumers as it enabled Defendants to increase hop-on, hop-off bus 
tour prices by approximately 10 percent. The evidence demonstrates that 
at the time Coach and Stagecoach were negotiating a business 
combination with City Sights, Coach and Stagecoach consistently planned 
for and assumed that the merged firm would implement a 10 percent fare 
increase on Gray Line and City Sights tours and that Coach shared this 
assumption with City Sights. Coach ultimately increased Gray Line's 
hop-on, hop-off bus tour fares by

[[Page 16429]]

approximately 10 percent shortly before executing the joint venture and 
Defendants increased City Sights's fares to match the Gray Line 
increase shortly after consummation. Defendants sustained the Gray Line 
and City Sights fare increases in the years following Twin America's 
formation and raised prices further in 2013.
    In years prior to the joint venture, Coach and City Sights were 
each other's main rival and consumers benefited from the improved 
products and services that resulted from the fierce and direct 
competition between them. This head-to-head competition, which 
intensified over time, was eliminated when Defendants merged their hop-
on, hop-off bus tour operations. In addition, the formation of Twin 
America substantially increased concentration in an already highly 
concentrated market. Concentration is typically measured by the 
Herfindahl-Hirschman Index (``HHI''). The more concentrated a market, 
and the more a transaction would increase concentration in a market, 
the more likely it is that a transaction would result in a meaningful 
reduction in competition. Markets in which the HHI is in excess of 2500 
points are considered highly concentrated, and a transaction that 
increases concentration by more than 200 points in such a market is 
presumed likely to enhance market power. In the year prior to the joint 
venture's formation, Gray Line had an approximately 63 percent market 
share, City Sights had an approximately 37 percent share, and a third 
firm had a less than one percent share, resulting in an HHI of 5271. 
The formation of Twin America created an effective monopoly with an 
approximately 99 percent market share and increased the market's HHI by 
4599 to 9870. Based on the pre- and post-transaction market 
concentration measures, Twin America's formation is presumed likely to 
enhance market power.
3. Entry
    Entry and expansion into the relevant market has not been, and is 
not likely to be, timely or sufficient to counteract the joint 
venture's anticompetitive effects. For more than three years following 
Twin America's formation, there was no new entry or expansion in the 
New York City hop-on, hop-off bus tour market and Defendants sustained 
their early 2009 price increases. Entry that has occurred since 2012 
has also failed to roll back Defendants' price increases and has been 
insufficient to constrain Twin America's exercise of market power.
    The most significant barrier to entry in the hop-on, hop-off bus 
tour market is the requirement that an entrant obtain authorizations 
from the New York City Department of Transportation (``NYCDOT'') for 
each location where it wishes to stop to load and unload passengers on 
its tour. Both Gray Line and City Sights have long held large 
portfolios of bus stop authorizations that enable them to stop at or in 
close proximity to virtually all of New York City's top attractions and 
neighborhoods, providing Defendants with a distinct competitive 
advantage over other operators in the market. Gray Line and City Sights 
obtained these bus stop authorizations without difficulty years before 
their joint venture because NYCDOT awarded the bus stops on a ``first 
come, first served'' basis. Recent entrants, by contrast, have faced 
persistent difficulties securing bus stop authorizations at or 
sufficiently near key tourist attractions to be competitive with Twin 
America as NYCDOT has denied the overwhelming majority of bus stops 
applied for since Twin America's formation. Most of the stops sought by 
the entrants--particularly those at or in close proximity to top 
tourist attractions--are now at capacity or are otherwise unavailable, 
leaving Twin America with the dominant share of competitively-
meaningful stops. The chronic denial of bus stop authorizations has 
blocked some firms from entering the market altogether and prevented 
those that have entered from replicating the scale and strength of 
either City Sights or Gray Line prior to the joint venture. Without 
needed bus stops, some entrants stop at key attractions on an 
unauthorized basis, creating the risk of an enforcement action that 
could curtail their operations at any time.
4. Efficiencies
    The formation of Twin America has not resulted in, and is unlikely 
to result in, cognizable, merger-specific efficiencies that have been 
passed through to consumers on a sufficient scale to offset Twin 
America's anticompetitive effects.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

A. Divestiture

    The proposed Final Judgment remedies the competitive harm alleged 
in the Complaint by requiring Twin America to relinquish to the NYCDOT 
the complete set of City Sights bus stop authorizations in Manhattan so 
that other firms are better positioned to obtain the bus stop 
authorizations needed to compete more effectively with Twin America.
    Here, the most intractable barrier to entry is the inability of new 
firms to obtain bus stop authorizations from NYCDOT at or in sufficient 
proximity to New York City's top attractions and neighborhoods. The 
divestiture significantly eases this entry barrier by increasing 
NYCDOT's inventory of bus stops and freeing up capacity at locations 
throughout Manhattan, including the locations most sought by recent 
entrants. Notably, City Sights's set of approximately 50 bus stop 
authorizations includes highly-coveted stops surrounding key tourist 
attractions such as Times Square, the Empire State Building, and 
Battery Park that are critical to operating a competitive hop-on, hop-
off bus tour. By relinquishing the City Sights bus stop authorizations 
to NYCDOT, the city agency charged with managing bus stop 
authorizations, the proposed Final Judgment increases availability of 
stops, especially at key attractions, that rival firms can use to 
compete against Twin America.
    The proposed Final Judgment requires Defendants to complete the 
relinquishment of the City Sights bus stop authorizations by May 1, 
2015, prior to the start of the busy summer tourist season. Twin 
America will continue to hold Gray Line's pre-existing bus stop 
authorizations for its own hop-on, hop-off service.
    The proposed Final Judgment prohibits Defendants from applying for 
or obtaining bus stop authorizations for hop-on, hop-off bus tours at 
the locations of the divested City Sights bus stop authorizations for a 
period of five years. However, after May 1, 2016, if NYCDOT revokes a 
bus stop authorization currently granted to a Twin America affiliate 
other than City Sights, the proposed Final Judgment allows Defendants 
to apply for a bus stop authorization at the location of a divested 
City Sights bus stop authorization that is at or in close proximity to 
the bus stop authorization that NYCDOT has revoked.

B. Disgorgement

    The proposed Final Judgment also requires Defendants to disgorge 
$7.5 million in profits obtained as a result of their unlawful 
formation of Twin America. Disgorgement is an equitable remedy that 
seeks to ``depriv[e] violators of the fruits of their illegal conduct'' 
by ``forc[ing] a defendant to give up the amount by which he was 
unjustly enriched.'' SEC v. Contorinis, 743 F.3d 296, 301 (2d Cir. 
2014) (internal quotation marks omitted). By preventing unjust 
enrichment, disgorgement has

[[Page 16430]]

the forward-looking ``effect of deterring subsequent fraud.'' SEC v. 
Cavanagh, 445 F.3d 105, 117 (2d Cir. 2006). Disgorgement is a 
``distinctly public-regarding remedy,'' FTC v. Bronson Partners, LLC, 
654 F.3d 359, 372 (2d Cir. 2011), whose ``emphasis [is] on public 
protection, as opposed to simple compensatory relief,'' Cavanagh, 445 
F.3d at 117.
    ``Unless a statute in so many words, or by a necessary and 
inescapable inference, restricts the court's jurisdiction in equity,'' 
a district court's ability to exercise the full powers of equity 
jurisdiction, including disgorgement, ``is not to be denied or 
limited.'' Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); see 
also Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 289, 291-
92 (1960) (``When Congress entrusts to an equity court the enforcement 
of prohibitions contained in a regulatory enactment, it must be taken 
to have acted cognizant of the historic power of equity to provide 
complete relief in light of the statutory purposes.''). The Second 
Circuit has long affirmed the ability of district courts to award 
disgorgement in government enforcement actions redressing statutory 
violations. See SEC v. Commonwealth Chem. Sec., Inc., 574 F.2d 90, 102-
03 (2d Cir. 1978) (Friendly, J.); Bronson Partners, 654 F.3d at 365-67, 
372-74. This Court has also specifically recognized the government's 
ability to seek disgorgement in antitrust suits brought under the 
Sherman Act. See United States v. Keyspan Corp., 763 F. Supp. 2d 633, 
638-41 (S.D.N.Y. 2011) (Pauley, J.) (holding that an award of 
disgorgement ``comports with established principles of antitrust 
law''). Although Keyspan considered the availability of disgorgement 
under the Sherman Act, its analysis also applies to the Clayton Act, as 
both Acts similarly authorize the United States to bring suits ``in 
equity to prevent and restrain such violations.'' Compare Sherman Act, 
15 U.S.C. 4 (2012) with Clayton Act, 15 U.S.C. 25 (2012). See also 
People v. Ernst & Young LLP, 980 N.Y.S.2d 456, 457 (N.Y. App. Div. 
2014) (affirming authority of New York Attorney General to obtain 
disgorgement under New York law).
    As in Keyspan, there are specific ``exigencies of [this] case'' 
that justify a disgorgement award. Keyspan, 765 F. Supp. 2d at 640. 
Unlike the majority of Section 7 challenges brought by the United 
States, which are brought prior to the closing of the challenged 
transaction, this case involves a consummated joint venture that 
resulted in actual and substantial consumer harm. As alleged in the 
Complaint, Defendants not only increased prices by approximately 10 
percent in connection with the joint venture's formation, they reaped 
these illegal profits for years while forestalling antitrust 
enforcement. By awarding disgorgement of Defendants' ill-gotten gain, 
the proposed Final Judgment will prevent Defendants from being unjustly 
enriched by their conduct and deter Defendants and others from engaging 
in similar conduct in the future.
    In determining the appropriate disgorgement amount, Plaintiffs 
accounted for the fact that Defendants have agreed to pay $19 million 
to settle related private class action lawsuits that were brought after 
Plaintiffs filed this action.\5\ Because Plaintiffs' reasonable 
approximation of profits connected to Defendants' antitrust law 
violations exceeds $19 million, Plaintiffs determined that disgorgement 
of an additional amount was appropriate. The $7.5 million in 
disgorgement provided under the proposed Final Judgment will be divided 
equally between the United States and the State of New York.
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    \5\ See Order and Final Judgment Approving In Re NYC Bus Tour 
Antitrust Litigation Class Action Settlement, In re NYC Bus Tour 
Antitrust Litigation, No. 13-CV-0711 (ALC) (GWG) (S.D.N.Y. Oct. 21, 
2014) (Dkt. No. 122).
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C. Antitrust Compliance and Inspection

    Sections IX and XI of the proposed Final Judgment establish 
procedures to ensure that Defendants comply with the terms of the Final 
Judgment and the antitrust laws. Section IX grants the United States or 
the State of New York access, upon reasonable notice, to Defendants' 
records and documents relating to matters contained in the Final 
Judgment. Defendants must also make their personnel available for 
interviews or depositions regarding such matters. In addition, upon 
request, Defendants must prepare written reports or responses to 
written interrogatories relating to matters contained in the Final 
Judgment.
    To ensure future compliance with the antitrust laws, Section XI of 
the proposed Final Judgment requires Defendants Coach and Twin America 
to maintain an antitrust compliance program for each company's officers 
and directors with responsibility for any operations in the United 
States, as well as any other employee with pricing or decision-making 
responsibility for the provision of hop-on, hop-off tour bus tours in 
New York City. The antitrust compliance program will provide these 
personnel with annual training on the meaning and requirements of the 
antitrust laws and shall be delivered by an attorney with experience in 
the field of antitrust law. Section XI also requires Defendants Coach 
and Twin America to designate an Antitrust Compliance Officer to 
oversee the antitrust compliance program. The Antitrust Compliance 
Officer must communicate annually to all employees that they may 
disclose to the Antitrust Compliance Officer, without reprisal, 
information concerning any potential violation of the antitrust laws.

D. Notification of Future Transactions

    Section X of the proposed Final Judgment requires Defendants to 
provide advance notification of any future acquisition of any assets or 
of any interest, including any financial, security, loan, equity or 
management interest, in a person providing hop-on, hop-off bus tours in 
New York City during the term of the Final Judgment regardless of 
whether the transaction meets the reporting thresholds set forth in the 
HSR Act. The proposed Final Judgment further provides for waiting 
periods and opportunities for the United States or the State of New 
York to obtain additional information analogous to the provisions of 
the HSR Act.

E. Stipulation and Order Provisions

    Defendants have entered into a Stipulation and Order, which was 
filed simultaneously with the Court, to ensure that the City Sights bus 
stop authorizations are maintained until Defendants have relinquished 
them to NYCDOT.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent private lawsuit that may be brought against the 
Defendants.\6\
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    \6\ As previously noted, a related private class action lawsuit 
seeking damages from Defendants was settled in October 2014. See 
Order and Final Judgment Approving In Re NYC Bus Tour Antitrust 
Litigation Class Action Settlement, In re NYC Bus Tour Antitrust 
Litigation, No. 13-CV-0711 (ALC) (GWG) (S.D.N.Y. Oct. 21, 2014) 
(Dkt. No. 122).

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[[Page 16431]]

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT

    The Parties have stipulated that the proposed Final Judgment may be 
entered by the Court after compliance with the provisions of the APPA, 
provided that the United States has not withdrawn its consent. The APPA 
conditions entry upon the Court's determination that the proposed Final 
Judgment is in the public interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this Competitive 
Impact Statement in the Federal Register, or the last date of 
publication in a newspaper of the summary of this Competitive Impact 
Statement, whichever is later. All comments received during this period 
will be considered by the United States Department of Justice, which 
remains free to withdraw its consent to the proposed Final Judgment at 
any time prior to the Court's entry of judgment. The comments and the 
response of the United States will be filed with the Court. In 
addition, comments will be posted on the U.S. Department of Justice, 
Antitrust Division's internet Web site and, under certain 
circumstances, published in the Federal Register.
    Written comments should be submitted to: William H. Stallings, 
Chief, Transportation, Energy & Agriculture Section, Antitrust 
Division, United States Department of Justice, 450 Fifth Street NW., 
Suite 8000, Washington, DC 20530.

The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against Defendants. The 
proposed Final Judgment, however, avoids the time, expense, and 
uncertainty of a full trial on the merits. The United States also 
considered whether the City Sights bus stop authorizations could be 
transferred on a standalone basis or with other assets to an upfront 
buyer, but determined that such a transaction was not feasible in light 
of current NYCDOT regulations and policies governing bus stop 
authorizations. The United States is satisfied that the remedies set 
forth in the proposed Final Judgment will sufficiently restore the 
competition lost when Defendants formed their joint venture and will 
appropriately deprive Defendants of ill-gotten gains.

VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT

    The Clayton and Sherman Acts, as amended by the APPA, require that 
proposed consent judgments in antitrust cases brought by the United 
States be subject to a sixty-day comment period, after which the court 
shall determine whether entry of the proposed Final Judgment ``is in 
the public interest.'' 15 U.S.C. 16(e)(1); see also United States v. 
Int'l Bus. Mach. Corp., 163 F.3d 737, 740 (2d Cir. 1998). In making a 
``public interest'' 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); see generally Keyspan, 763 F. Supp. 2d at 
637-38 (discussing Tunney Act standards); United States v. SBC 
Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (similar). 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); 
accord United States v. Alex. Brown & Sons, Inc., 963 F. Supp. 235, 238 
(S.D.N.Y. 1997) (quoting Microsoft, 56 F.3d at 1460), aff'd sub nom. 
United States v. Bleznak, 153 F.3d 16 (2d Cir. 1998); Keyspan, 763 F. 
Supp. 2d at 637 (same).
    Under the APPA a court considers, among other things, the 
relationship between the remedy secured and the specific allegations 
set forth in the government's complaint, whether the decree is 
sufficiently clear, whether enforcement mechanisms are sufficient, and 
whether the decree may positively harm third parties. See Microsoft, 56 
F.3d at 1458-62. With respect to the adequacy of the relief secured by 
the decree, the court's function is ``not to determine whether the 
proposed [d]ecree results in the balance of rights and liabilities that 
is the one that will best serve society, but only to ensure that the 
resulting settlement is within the reaches of the public interest.'' 
Keyspan, 763 F. Supp. 2d at 637 (quoting Alex. Brown & Sons, 963 F. 
Supp. at 238) (internal quotations omitted). In making this 
determination, ``[t]he [c]ourt is not permitted to reject the proposed 
remedies merely because the court believes other remedies are 
preferable. [Rather], the relevant inquiry is whether there is a 
factual foundation for the government's decision such that its 
conclusions regarding the proposed settlement are reasonable.'' 
Keyspan, at 637-38 (quoting United States v. Abitibi-Consolidated Inc., 
584 F. Supp. 2d 162, 165 (D.D.C. 2008)); see also United States v. 
Apple, Inc., 889 F. Supp. 2d 623, 631 (S.D.N.Y. 2012) (Cote, J.); Alex. 
Brown & Sons, 963 F. Supp. at 238.\7\ The government's predictions 
about the efficacy of its remedies are entitled to deference. Apple, 
889 F. Supp. 2d at 631 (citation omitted).\8\
---------------------------------------------------------------------------

    \7\ See also United States v. Bechtel Corp., 648 F.2d 660, 666 
(9th Cir. 1981) (``The balancing of competing social and political 
interests affected by a proposed antitrust consent decree must be 
left, in the first instance, to the discretion of the Attorney 
General.''); see generally Microsoft, 56 F.3d at 1461 (discussing 
whether ``the remedies [obtained in the decree are] so inconsonant 
with the allegations charged as to fall outside of the `reaches of 
the public interest' '').
    \8\ See Microsoft, 56 F.3d at 1461 (noting the need for courts 
to be ``deferential to the government's predictions as to the effect 
of the proposed remedies''); United States v. Archer-Daniels-Midland 
Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court 
should grant due respect to the United States' prediction as to the 
effect of proposed remedies, its perception of the market structure, 
and its views of the nature of the case).
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be approved 
even if it falls short of the remedy the court would impose on its own, 
as long as it falls within the range of acceptability or is `within the 
reaches of public interest.' '' United States v. Am. Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland

[[Page 16432]]

v. United States, 460 U.S. 1001 (1983); see also United States v. U.S. 
Airways Group, Inc., 38 F. Supp. 3d 69, 76 (D.D.C. 2014) (noting that 
room must be made for the government to grant concessions in the 
negotiation process for settlements); United States v. Alcan Aluminum 
Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent 
decree even though the court would have imposed a greater remedy). To 
meet this standard, the United States ``need only provide a factual 
basis for concluding that the settlements are reasonably adequate 
remedies for the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    Moreover, the court's role under the APPA is limited to reviewing 
the remedy in relationship to the violations that the United States has 
alleged in its Complaint, and does not authorize the court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459; see also Keyspan, 763 
F. Supp. 2d at 638 (``A court must limit its review to the issues in 
the complaint.'') (citations omitted). 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. Courts ``cannot look beyond the complaint in making 
the public interest determination unless the complaint is drafted so 
narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489 F. 
Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding the unambiguous instruction that ``[n]othing in 
this section shall be construed to require the court to conduct an 
evidentiary hearing or to require the court to permit anyone to 
intervene.'' 15 U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). The language wrote into the statute what Congress intended when 
it enacted the Tunney Act in 1974, as Senator Tunney explained: ``[t]he 
court is nowhere compelled to go to trial or to engage in extended 
proceedings which might have the effect of vitiating the benefits of 
prompt and less costly settlement through the consent decree process.'' 
119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). Rather, the 
procedure for the public interest determination is left to the 
discretion of the court, with the recognition that the court's ``scope 
of review remains sharply proscribed by precedent and the nature of 
Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11.\9\ 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.
---------------------------------------------------------------------------

    \9\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., No. 73-CV-681-W-1, 1977-1 
Trade Cas. (CCH) ] 61,508, at 71,980, *22 (W.D. Mo. 1977) (``Absent 
a showing of corrupt failure of the government to discharge its 
duty, the Court, in making its public interest finding, should . . . 
carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, at 6 (1973) (``Where the 
public interest can be meaningfully evaluated simply on the basis of 
briefs and oral arguments, that is the approach that should be 
utilized.'').
---------------------------------------------------------------------------

VIII. DETERMINATIVE DOCUMENTS

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

Dated: March 16, 2015

Respectfully submitted,
___/s/______-----------------------------------------------------------

Sarah L. Wagner, Andrew S. Garver, David E. Altschuler, William H. 
Jones II, Michele B. Cano,
U.S. Department of Justice, Antitrust Division, Transportation, 
Energy & Agriculture Section, 450 Fifth Street NW., Suite 8000, 
Washington, DC 20530, Telephone: (202) 305-8915, 
<a href="/cdn-cgi/l/email-protection#56053724373e7801373138332416232532393c78313920"><span class="__cf_email__" data-cfemail="491a283b2821671e282e272c3b093c3a2d2623672e263f">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#1a5b747e687f6d345d7b686c7f685a6f697e7570347d756c"><span class="__cf_email__" data-cfemail="61200f051304164f260013170413211412050e0b4f060e17">[email protected]</span></a>, 
<a href="/cdn-cgi/l/email-protection#175376617e7339567b6364747f627b726557626473787d39707861"><span class="__cf_email__" data-cfemail="e0a481968984cea18c94938388958c8592a09593848f8ace878f96">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#bdffd4d1d193f7d2d3d8ce8ffdc8ced9d2d793dad2cb"><span class="__cf_email__" data-cfemail="56143f3a3a781c393833256416232532393c78313920">[email protected]</span></a>, 
<a href="/cdn-cgi/l/email-protection#6924000a010c050c472a080706291c1a0d0603470e061f"><span class="__cf_email__" data-cfemail="b1fcd8d2d9d4ddd49ff2d0dfdef1c4c2d5dedb9fd6dec7">[email protected]</span></a>.

Benjamin Sirota,
U.S. Department of Justice, Antitrust Division, New York Office, 26 
Federal Plaza, Room 3630, New York, NY 10278, Telephone: (212) 335-
8056, <a href="/cdn-cgi/l/email-protection#ca88afa4a0aba7a3a4e499a3b8a5beab8abfb9aea5a0e4ada5bc"><span class="__cf_email__" data-cfemail="7133141f1b101c181f5f2218031e0510310402151e1b5f161e07">[email protected]</span></a>.

Attorneys for Plaintiff United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

    United States of America, and State of New York, Plaintiffs, v. 
Twin America, LLC, et al., Defendants.

Civil Action No. 12-cv-8989 (ALC) (GWG).

ECF Case.

STIPULATION AND ORDER REGARDING PROPOSED FINAL JUDGMENT

    It is hereby stipulated and agreed by and between the undersigned 
parties, subject to approval and entry by the Court, that:

I. DEFINITIONS

    As used in this Stipulation and Order Regarding Proposed Final 
Judgment:
    A. ``Coach'' means Coach USA, Inc., a Delaware corporation with its 
principal place of business in Paramus, New Jersey, and International 
Bus Services, Inc., a New York corporation with its principal place of 
business in Hoboken, New Jersey, and their successors and assigns, and 
any subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures under its control, and their directors, officers, managers, 
agents, and employees.
    B. ``CitySights'' means CitySights LLC and City Sights Twin, LLC, 
New York limited liability companies with their principal places of 
business in New York, New York, and their successors and assigns, and 
any subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures under its control, and their directors, officers, managers, 
agents, and employees.
    C. ``CitySights Bus Stop Authorizations'' means all of the 
Manhattan bus stop authorizations granted by the New York City 
Department of Transportation (NYCDOT) identified in Appendix A to the 
proposed Final Judgment, which comprises all of the bus stop 
authorizations granted to and currently held by CitySights to provide 
hop-on, hop-off bus tours in the Borough of Manhattan, New York City.
    D. ``Twin America'' means Twin America, LLC, a Delaware limited 
liability company with its principal place of business in New York, New 
York, and its successors and assigns, and any subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures under its control, 
and their directors, officers, managers, agents, and employees.
    E. ``Defendants'' means Coach USA, Inc., International Bus 
Services, Inc., CitySights LLC, City Sights Twin, LLC, and Twin 
America, LLC.

II. OBJECTIVES

    The proposed Final Judgment filed in this case is meant to ensure 
Defendants' prompt divestiture of the CitySights Bus Stop 
Authorizations by relinquishing them to NYCDOT in order to restore 
competition that Plaintiffs allege was

[[Page 16433]]

substantially lessened. If approved by the Court, the proposed Final 
Judgment would fully resolve the claims alleged in Plaintiffs' 
Complaint. This Stipulation and Order ensures that, prior to such 
divestiture, the CitySights Bus Stop Authorizations are maintained 
until such divestiture has been accomplished.

III. JURISDICTION AND VENUE

    The Court has jurisdiction over the subject matter of this action 
and over each of the parties hereto, and venue of this action is proper 
in the United States District Court for the Southern District of New 
York.

IV. COMPLIANCE WITH AND ENTRY OF FINAL JUDGMENT

    A. The parties stipulate that a Final Judgment in the form attached 
hereto as Exhibit A may be filed with and entered by the Court, upon 
the motion of any party or upon the Court's own motion, at any time 
after compliance with the requirements of the Antitrust Procedures and 
Penalties Act (``APPA''), 15 U.S.C. 16, and without further notice to 
any party or other proceedings, provided that the Plaintiffs have not 
withdrawn their consent, which they may do at any time before the entry 
of the proposed Final Judgment by serving notice thereof on Defendants 
and by filing that notice with the Court. Defendants agree to arrange, 
at their expense, publication as quickly as possible of the newspaper 
notice required by the APPA, which shall be drafted by the United 
States in its sole discretion. The publication shall be arranged no 
later than three (3) business days after Defendants' receipt from the 
United States of the text of the notice and the identity of the 
newspaper within which the publication shall be made. Defendants shall 
promptly send to the United States (1) confirmation that publication of 
the newspaper notice has been arranged, and (2) the certification of 
the publication prepared by the newspaper within which the notice was 
published.
    B. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment, pending the Judgment's entry by the Court, or 
until expiration of time for all appeals of any Court ruling declining 
entry of the proposed Final Judgment, and shall, from the date of the 
signing of this Stipulation by the parties, comply with all the terms 
and provisions of the proposed Final Judgment. Plaintiffs shall have 
the full rights and enforcement powers in the proposed Final Judgment 
as though the same were in full force and effect as an order of the 
Court.
    C. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    D. In the event (1) the Plaintiffs have withdrawn their consent, as 
provided in Section IV(A) above, or (2) the proposed Final Judgment is 
not entered pursuant to this Stipulation, the time has expired for all 
appeals of any Court ruling declining entry of the proposed Final 
Judgment, and the Court has not otherwise ordered continued compliance 
with the terms and provisions of the proposed Final Judgment, then the 
parties are released from all further obligations under this 
Stipulation, and the making of this Stipulation shall be without 
prejudice to any party in this or any other proceeding.
    E. Defendants represent that the divestiture and payments ordered 
in the proposed Final Judgment can and will be made, and that 
Defendants will later raise no claim of mistake, hardship or difficulty 
of compliance as grounds for asking the Court to modify any of the 
provisions contained therein.

V. MAINTENANCE OF CITYSIGHTS BUS STOP AUTHORIZATIONS

    Until the divestiture required by the Final Judgment has been 
accomplished:
    A. Defendants shall not, except as part of a divestiture approved 
by the Plaintiffs in accordance with the terms of the proposed Final 
Judgment, revoke, sell, lease, assign, transfer, pledge or otherwise 
dispose of any of the CitySights Bus Stop Authorizations.
    B. Defendants shall take no action that would jeopardize, delay, or 
impede the divestiture of the CitySights Bus Stop Authorizations.

VI. DURATION OF MAINTENANCE OBLIGATIONS

    Defendants' obligations under Section V of this Stipulation and 
Order shall remain in effect until (1) consummation of the divestiture 
required by the proposed Final Judgment or (2) until further order of 
the Court or as otherwise provided in Section IV.D hereof. If 
Plaintiffs voluntarily dismiss the Complaint in this matter, Defendants 
are released from all further obligations under this Stipulation and 
Order.

VII. STAY OF LITIGATION

    Entry of this Stipulation and Order shall stay all deadlines 
established by the Amended Pretrial Scheduling Order (Doc. 125).
ORDER
    It is SO ORDERED this __ day of ____ 2015.

Judge Andrew L. Carter, Jr.
United States District Judge.

    Respectfully submitted on ____, 2015:

___/s/______
Sarah Wagner,

U.S. Department of Justice, Antitrust Division, Transportation, 
Energy & Agriculture Section, 450 Fifth Street, NW., Suite 8000, 
Washington, DC 20530, (202) 305-8915, <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="87f4e6f5e6efa9f0e6e0e9e2f5c7f2f4e3e8eda9e0e8f1">[email protected]</a>.
Attorney for Plaintiff United States

___/s/______
Michael P. A. Cohen,

Paul Hastings LLP, 875 15th Street, NW, Washington, DC 20005, (202) 
551-1880, <a href="/cdn-cgi/l/email-protection#107d79737871757c737f78757e506071657c78716364797e77633e737f7d"><span class="__cf_email__" data-cfemail="6d00040e050c08010e020508032d1d0c1801050c1e1904030a1e430e0200">[email protected]</span></a>.
Attorney for Defendants Twin America, LLC, CitySights LLC and City 
Sights Twin, LLC

___/s/______
Eric J. Stock,

Bureau Chief, Antitrust

James Yoon,

Assistant Attorney General, Office of the Attorney General, 
Antitrust Bureau, 120 Broadway, 26th Floor, New York, NY 10271-0332, 
(212) 416-8262, <a href="/cdn-cgi/l/email-protection#4f0a3d262c611c3b202c240f2e2861213661282039"><span class="__cf_email__" data-cfemail="793c0b101a572a0d161a1239181e571700571e160f">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#195378747c6a374076767759787e377760377e766f"><span class="__cf_email__" data-cfemail="8ec4efe3ebfda0d7e1e1e0ceefe9a0e0f7a0e9e1f8">[email protected]</span></a>.
Attorneys for Plaintiff State of New York

___/s/______
Thomas O. Barnett,

Covington & Burling LLP, 850 10th Street, NW, Washington, DC 20001, 
(202) 662-5407, <a href="/cdn-cgi/l/email-protection#75011714071b10010135161a035b161a18"><span class="__cf_email__" data-cfemail="94e0f6f5e6faf1e0e0d4f7fbe2baf7fbf9">[email protected]</span></a>.
Attorney for Defendants Coach USA, Inc. and International Bus 
Services, Inc.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

    United States of America, and State of New York, Plaintiffs, v. 
Twin America, LLC, et al. Defendants.

Civil Action No. 12-cv-8989 (ALC) (GWG).
ECF Case.

[Proposed] Final Judgment

    WHEREAS, Plaintiffs United States of America and the State of New 
York (collectively ``Plaintiffs'') filed their Complaint on December 
11, 2012, Plaintiffs and Defendants Coach USA, Inc., International Bus 
Services, Inc., CitySights LLC, City Sights Twin, LLC, and Twin 
America, LLC (collectively ``Defendants''), by their respective 
attorneys, have consented to the entry of this Final Judgment without 
trial or adjudication of any issue of fact or law, and without this 
Final Judgment constituting any evidence against or admission by any 
party regarding any issue of fact or law;
    AND WHEREAS, Defendants agree to be bound by the provisions of this 
Final

[[Page 16434]]

Judgment pending its approval by the Court;
    AND WHEREAS, the essence of this Final Judgment is the execution of 
prompt and certain divestitures by Defendants to restore competition 
that Plaintiffs allege was substantially lessened, and the payment of 
equitable monetary relief;
    AND WHEREAS, Plaintiffs require Defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint, and to pay equitable monetary relief;
    AND WHEREAS, Defendants have represented to Plaintiffs that the 
divestitures and the other relief required below can and will be made 
and that Defendants will later raise no claim of hardship or difficulty 
as grounds for asking the Court to modify any of the provisions 
contained below;
    NOW THEREFORE, before any trial testimony is taken, without trial 
or adjudication of any issue of fact or law, and upon consent of the 
parties, it is ORDERED, ADJUDGED AND DECREED:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Complaint states a claim upon which 
relief may be granted against Defendants under Section 7 of the Clayton 
Act, as amended (15 U.S.C. 18), Section 1 of the Sherman Act (15 U.S.C. 
1), Section 340 of the Donnelly Act (N.Y. Gen. Bus. Law Sec.  340), and 
Section 63(12) of the New York Executive Law (N.Y. Exec. Law Sec.  
63(12)).

II. Definitions

    As used in this Final Judgment:
    A. ``Coach'' means Coach USA, Inc., a Delaware corporation with its 
principal place of business in Paramus, New Jersey, and International 
Bus Services, Inc., a New York corporation with its principal place of 
business in Hoboken, New Jersey, and their successors and assigns, and 
any subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures under their control, and their directors, officers, managers, 
agents, and employees.
    B. ``CitySights'' means CitySights LLC and City Sights Twin, LLC, 
New York limited liability companies with their principal places of 
business in New York, New York, and their successors and assigns, and 
any subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures under their control, and their directors, officers, managers, 
agents, and employees.
    C. ``CitySights Bus Stop Authorizations'' means all of the 
Manhattan bus stop authorizations granted by the New York City 
Department of Transportation identified in Appendix A, which comprises 
all of the bus stop authorizations granted to and currently held by 
CitySights to provide hop-on, hop-off bus tours in the borough of 
Manhattan, New York City.
    D. ``Twin America'' means Twin America, LLC, a Delaware limited 
liability company with its principal place of business in New York, New 
York, and its successors and assigns, and any subsidiaries, divisions, 
groups, affiliates, partnerships and joint ventures under its control, 
and their directors, officers, managers, agents, and employees.
    E. ``Defendants'' means Coach USA, Inc., International Bus 
Services, Inc., CitySights LLC, City Sights Twin, LLC, and Twin 
America, LLC.
    F. ``NYCDOT'' means the New York City Department of Transportation.
    G. ``Person'' means any natural person or legal entity.

III. Applicability

    This Final Judgment applies to Coach, CitySights, and Twin America, 
as defined above, and all other persons in active concert or 
participation with any of them who receive actual notice of this Final 
Judgment by personal service or otherwise.

IV. Disgorgement

    Defendants shall pay $7.5 million in disgorgement to Plaintiffs for 
Defendants' alleged violations of Section 7 of the Clayton Act, as 
amended (15 U.S.C. 18), Section 1 of the Sherman Act (15 U.S.C. 1), 
Section 340 of the Donnelly Act (N.Y. Gen. Bus. Law Sec.  340), and 
Section 63(12) of the New York Executive Law (N.Y. Exec. Law Sec.  
63(12)). The $7.5 million disgorgement payment shall be divided equally 
between the United States and the State of New York.

V. Payment of Disgorgement

    A. Defendants' payment of disgorgement shall be made in three (3) 
installments. Within 30 days of the entry of this Final Judgment, 
Defendants must pay $2.5 million in disgorgement to Plaintiffs, divided 
equally between the United States and the State of New York. Within 
nine (9) months after entry of this Final Judgment, Defendants must pay 
another $2.5 million in disgorgement to Plaintiffs, divided equally 
between the United States and the State of New York. Within 16 months 
after entry of this Final Judgment, Defendants must pay the remaining 
$2.5 million in disgorgement to Plaintiffs, divided equally between the 
United States and the State of New York.
    B. The payments to the United States specified in this Final 
Judgment must be made by wire transfer. Before making any transfer to 
the United States, a defendant must contact Janie Ingalls of the 
Antitrust Division's Antitrust Documents Group at (202) 512-2481 for 
wire-transfer instructions.
    The payments to the State of New York specified in this Final 
Judgment must be made by wire transfer. Before making any transfer to 
the State of New York, Defendants must contact Dorcey Bennett 
(<a href="/cdn-cgi/l/email-protection#f5b19a8796908cdbb7909b9b9081b59492db9b8cdb929a83"><span class="__cf_email__" data-cfemail="f6b2998495938fd8b49398989382b69791d8988fd8919980">[email protected]</span></a>) of the State of New York's Budget & Fiscal 
Management Bureau for wire-transfer instructions and cc: to James Yoon 
(<a href="/cdn-cgi/l/email-protection#713b101c14025f281e1e1f3110165f1f085f161e07"><span class="__cf_email__" data-cfemail="682209050d1b463107070628090f460611460f071e">[email protected]</span></a>).
    C. In the event of a default in payment, interest at the rate of 18 
percent per annum will accrue thereon from the date of default to the 
date of payment.

VI. Divestitures

    A. Defendants are ordered and directed, by May 1, 2015, to divest 
the CitySights Bus Stop Authorizations by relinquishing them to the 
NYCDOT in a manner consistent with this Final Judgment. The Plaintiffs, 
in their sole discretion, may agree to one or more extensions of this 
time period not to exceed 30 calendar days in total, and shall notify 
the Court in such circumstances.
    B. Defendants shall not take any action that will jeopardize, 
delay, or impede in any way the divestiture of the CitySights Bus Stop 
Authorizations.
    C. Unless the Plaintiffs otherwise consent in writing, the 
divestiture pursuant to Section VI of this Final Judgment shall include 
the entire CitySights Bus Stop Authorizations in the borough of 
Manhattan, New York City. For the avoidance of doubt, nothing in this 
Final Judgment requires Defendants to divest any bus stop 
authorizations granted to affiliates of Twin America other than 
CitySights, including any authorizations for shared use bus stops.
    D. Defendants shall not take any action to impede in any way the 
reallocation or reassignment of the CitySights Bus Stop Authorizations 
by NYCDOT to any other person.

VII. Maintenance of CitySights Bus Stop Authorizations

    Until the divestiture required by this Final Judgment has been 
accomplished, Defendants shall take all steps necessary to comply with 
the Stipulation and

[[Page 16435]]

Order Regarding Proposed Final Judgment entered by this Court. 
Defendants shall take no action that would jeopardize, delay, or impede 
the divestiture of the CitySights Bus Stop Authorizations ordered by 
this Court.

VIII. Affidavits

    A. Within seven (7) calendar days of the Court entering the 
Stipulation and Order Regarding Proposed Final Judgment in this matter, 
and every thirty (30) calendar days thereafter until the divestiture 
has been completed under Section VI, Defendants shall deliver to 
Plaintiffs an affidavit that describes in reasonable detail all actions 
Defendants have taken to comply with Section VI of this Final Judgment. 
Defendants shall deliver to Plaintiffs an affidavit describing any 
changes to the efforts and actions outlined in Defendants' earlier 
affidavits filed pursuant to this section within fifteen (15) calendar 
days after the change is implemented.
    B. Defendants shall keep all records of all efforts made to 
maintain and divest the CitySights Bus Stop Authorizations until one 
year after such divestiture has been completed.

IX. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of any related orders, or of determining whether the 
Final Judgment should be modified or vacated, and subject to any 
legally recognized privilege, from time to time Plaintiffs' authorized 
representatives, upon written request and on reasonable notice to 
Defendants, shall be permitted to:
    (1) Access during Defendants' office hours to inspect and copy, or 
at the option of the United States or State of New York, to require 
Defendants to provide hard copy or electronic copies of, all books, 
ledgers, accounts, records, data, and documents in the possession, 
custody, or control of Defendants, relating to any matters contained in 
this Final Judgment; and
    (2) interview, either informally or on the record, Defendants' 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by Defendants.
    B. Upon the written request of an authorized representative of 
either Plaintiff, Defendants shall submit written reports or responses 
to written interrogatories, under oath if requested, relating to any of 
the matters contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this section shall be divulged by the Plaintiffs to any person other 
than an authorized representative of the executive branch of the United 
States or the Attorney General's Office of the State of New York, 
except in the course of legal proceedings to which the United States or 
the State of New York is a party (including grand jury proceedings), or 
for the purpose of securing compliance with this Final Judgment, for 
law enforcement purposes, or as otherwise required by law.
    D. If at the time information or documents are furnished by 
Defendants to Plaintiffs, Defendants represent and identify in writing 
the material in any such information or documents to which a claim of 
protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules 
of Civil Procedure, and Defendants mark each pertinent page of such 
material, ``Subject to claim of protection under Rule 26(c)(1)(G) of 
the Federal Rules of Civil Procedure,'' then Plaintiffs shall give 
Defendants ten (10) calendar days notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

X. Notification

    Unless such transaction is otherwise subject to the reporting and 
waiting period requirements of the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976, as amended, 15 U.S.C. 18a (the ``HSR Act''), 
Defendants, without providing advance notification to the Plaintiffs, 
shall not directly or indirectly acquire any assets of or any interest, 
including any financial, security, loan, equity or management interest, 
in a person providing hop-on, hop-off bus tours in New York City during 
the term of this Final Judgment.
    Such notification shall be provided to the Plaintiffs in the same 
format as, and per the instructions relating to the Notification and 
Report Form set forth in the Appendix to Part 803 of Title 16 of the 
Code of Federal Regulations as amended, except that the information 
requested in Items 4 through 8 of the instructions must be provided 
only about hop-on, hop-off bus tours in New York City. Notification 
shall be provided at least thirty (30) calendar days prior to acquiring 
any such interest, and shall include, beyond what may be required by 
the applicable instructions, the names of the principal representatives 
of the parties to the agreement who negotiated the agreement, and any 
management or strategic plans discussing the proposed transaction. If 
within the 30-day period after notification, representatives of either 
Plaintiff make a written request for additional information, Defendants 
shall not consummate the proposed transaction or agreement until thirty 
(30) calendar days after substantially complying with such request for 
information. Early termination of the waiting periods in this paragraph 
may be requested and, where appropriate, granted in the same manner as 
is applicable under the requirements and provisions of the HSR Act and 
rules promulgated thereunder. This Section shall be broadly construed 
and any ambiguity or uncertainty regarding the filing of notice under 
this Section shall be resolved in favor of filing notice.

XI. Antitrust Compliance Program

    A. Within thirty (30) days after entry of this Final Judgment, 
Coach and Twin America shall each appoint an Antitrust Compliance 
Officer and identify to Plaintiffs his or her name, business address, 
and telephone number.
    B. Each Antitrust Compliance Officer shall institute an antitrust 
compliance program for the company's officers and directors with 
responsibility for any operations in the U.S., and any employee with 
pricing or decision-making responsibility for any aspect of the 
provision of hop-on, hop-off bus tours in New York City. The antitrust 
compliance program shall provide at least two hours of training 
annually on the antitrust laws, such training to be delivered by an 
attorney with relevant experience in the field of antitrust law.
    C. Each Antitrust Compliance Officer shall obtain, within six 
months after entry of this Final Judgment, and on an annual basis 
thereafter, on or before each anniversary of the entry of this Final 
Judgment, from each person subject to Section XI.B of this Final 
Judgment, and thereafter maintaining, a certification that each such 
person has received the required two hours of annual antitrust 
training.
    D. Each Antitrust Compliance Officer shall communicate annually to 
all employees that they may disclose to the Antitrust Compliance 
Officer, without reprisal, information concerning any potential 
violation of the antitrust laws.
    E. Each Antitrust Compliance Offer shall provide to Plaintiffs 
within six months after entry of this Final Judgment, and on an annual 
basis thereafter, on or before each anniversary of the entry of this 
Final Judgment, a written statement as to the fact and manner of the 
Defendant's compliance with Section XI of this Final Judgment.

[[Page 16436]]

XII. No Reacquisition

    For a period of five years from the date of entry of this Final 
Judgment, Defendants may not apply for or obtain any bus stop 
authorizations for hop-on, hop-off bus tours at the locations of the 
divested CitySights Bus Stop Authorizations, except that, after May 1, 
2016, if the NYCDOT revokes a bus stop authorization currently granted 
to an affiliate of Twin America other than City Sights, Defendants may 
apply for or obtain a bus stop authorization at the location of a 
divested CitySights Bus Stop Authorization that is at or in close 
proximity to the location of the bus stop authorization NYCDOT has 
revoked. Nothing in this Final Judgment shall be construed to prohibit 
Defendants from applying for or obtaining from the NYCDOT bus stop 
authorizations at locations other than the locations of the CitySights 
Bus Stop Authorizations, nor to limit the NYCDOT's ability to alter or 
amend Defendants' bus stop authorizations.

XIII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

XIV. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten years from the date of its entry, except that Sections XI 
and XII shall expire five years from the date of this Final Judgment's 
entry.

XV. Public Interest Determination

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

Dated:
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Judge Andrew L. Carter, Jr.

United States District Judge

[FR Doc. 2015-07055 Filed 3-26-15; 8:45 am]
BILLING CODE P


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