Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Notices 239 

Written submissions from the public 

must be filed no later than by close of 

business on January 20, 2022. 

Persons filing written submissions 

must file the original document 

electronically on or before the deadlines 

stated above. The Commission’s paper 

filing requirements in 19 CFR 210.4(f) 

are currently waived. 85 FR 15798 (Mar. 

19, 2020). Submissions should refer to 

the investigation number (‘‘Inv. No. 

337–TA–1255’’) in a prominent place on 

the cover page and/or the first page. (See 

Handbook for Electronic Filing 

Procedures, https://www.usitc.gov/ 

documents/handbook_on_filing_

procedures.pdf.). Persons with 

questions regarding filing should 

contact the Secretary (202–205–2000). 

Any person desiring to submit a 

document to the Commission in 

confidence must request confidential 

treatment by marking each document 

with a header indicating that the 

document contains confidential 

information. This marking will be 

deemed to satisfy the request procedure 

set forth in Rules 201.6(b) and 

210.5(e)(2) (19 CFR 201.6(b) & 

210.5(e)(2)). Documents for which 

confidential treatment by the 

Commission is properly sought will be 

treated accordingly. A redacted nonconfidential version of the document 

must also be filed simultaneously with 

any confidential filing. All information, 

including confidential business 

information and documents for which 

confidential treatment is properly 

sought, submitted to the Commission for 

purposes of this investigation may be 

disclosed to and used: (i) By the 

Commission, its employees and Offices, 

and contract personnel (a) for 

developing or maintaining the records 

of this or a related proceeding, or (b) in 

internal investigations, audits, reviews, 

and evaluations relating to the 

programs, personnel, and operations of 

the Commission including under 5 

U.S.C. Appendix 3; or (ii) by U.S. 

government employees and contract 

personnel, solely for cybersecurity 

purposes. All contract personnel will 

sign appropriate nondisclosure 

agreements. All nonconfidential written 

submissions will be available for public 

inspection on EDIS. 

This action is taken under the 

authority of section 337 of the Tariff Act 

of 1930, as amended (19 U.S.C. 1337), 

and Part 210 of the Commission’s Rules 

of Practice and Procedure (19 CFR part 

210). 

Issued: December 29, 2021. 

William Bishop, 

Supervisory Hearings and Information 

Officer. 

[FR Doc. 2021–28502 Filed 1–3–22; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. S&P Global Inc., 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, Order and Stipulation, 

and Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

S&P Global Inc., et al., Civil Action No. 

1:21–cv–03003. On November 12, 2021, 

the United States filed a Complaint 

alleging that (1) S&P’s proposed merger 

with IHS Markit Ltd. would violate 

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

18; and (2) the exclusivity and noncompete provisions of IHS Markit’s Data 

License with GasBuddy LLC violate 

Section 1 of the Sherman Act, 15 U.S.C. 

1. The proposed Final Judgment, filed at 

the same time as the Complaint: (1) 

Requires S&P and IHS Markit to divest 

three price reporting agency businesses, 

Oil Price Information Services (OPIS), 

Coals, Metals, and Mining (CMM), and 

PetrochemWire (PCW); (2) requires S&P 

and IHS Markit to waive the exclusivity 

and non-compete provisions of IHS 

Markit’s Data License with GasBuddy; 

and (3) prohibits S&P, IHS Markit, and 

OPIS LLC from entering into, enforcing, 

renewing, or extending the term of any 

similar exclusive or non-compete 

provisions. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

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

Office of the Clerk of the United States 

District Court for the District of 

Columbia. Copies of these materials may 

be obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, including the name of the 

submitter, and responses thereto, will be 

posted on the Antitrust Division’s 

website, filed with the Court, and, under 

certain circumstances, published in the 

Federal Register. Comments should be 

submitted in English and directed to 

Owen Kendler, Chief, Financial 

Services, Fintech, and Banking Section, 

Antitrust Division, Department of 

Justice, 450 Fifth Street NW, Suite 4000, 

Washington, DC 20530 (email address: 

owen.kendler@usdoj.gov). 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

United States District Court 

for the District of Columbia 

United States of America, U.S. Department 

of Justice, Antitrust Division, 450 Fifth Street 

NW, Suite 4000, Washington, DC 20530, 

Plaintiff, v. S&P Global Inc., 55 Water Street, 

New York, NY 10041, and IHS Markit Ltd., 

4th Floor, Ropemaker Place, 25 Ropemaker 

Street, London, United Kingdom, EC2Y 9LY, 

Defendants. 

Civil Action No.: 1:21–cv–3003–JEB 

COMPLAINT 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action against S&P Global 

Inc. (‘‘S&P’’) and IHS Markit Ltd. 

(‘‘IHSM’’) to enjoin S&P’s proposed 

merger with IHSM, to enjoin 

anticompetitive conduct by IHSM, and 

to obtain other equitable relief. The 

United States complains and alleges as 

follows: 

I. Introducton 

1. On November 30, 2020, S&P and 

IHSM announced a merger to combine 

in an all-stock transaction that values 

IHSM at approximately $44 billion. S&P 

and IHSM are both financial and 

commodity information conglomerates, 

providing market data, indices, news, 

and analytical tools to participants in 

various financial and commodity 

markets around the world. 

2. S&P and IHSM operate two of the 

four global price reporting agencies 

(‘‘PRAs’’) and two of the three leading 

PRAs in the United States. S&P provides 

PRA services through its Platts division 

(‘‘Platts’’), while IHSM offers PRA 

services primarily through its Oil Price 

Information Services (‘‘OPIS’’), Coal, 

Metals, and Mining (‘‘CMM’’), and 

PetrochemWire (‘‘PCW’’) businesses. 

3. PRAs provide price assessments, 

news, and analysis related to numerous 

commodity markets around the world. 

PRAs sell their services to commodity 

industry participants (e.g., oil refiners, 

commodities traders, large fuel 

consumers like airlines), that use the 

information to inform supply and 

demand decisions, as a reference for 

price terms in supply contracts, and as 

the basis for settling hedging 

instruments like futures contracts. 


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240 Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Notices 

4. Competition between S&P’s Platts 

division and IHSM’s OPIS, CMM, and 

PCW businesses has resulted in lower 

prices and increased quality and 

innovation for PRA customers. The 

proposed merger would eliminate this 

significant competition in markets that 

are already highly concentrated. 

5. Accordingly, the proposed merger 

is likely to lessen competition 

substantially in violation of Section 7 of 

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

6. Separately, in 2016, IHSM’s OPIS 

division entered into a 20-year exclusive 

data license and non-compete 

agreement (the ‘‘Data License’’) with a 

third-party data provider, GasBuddy 

LLC (‘‘GasBuddy’’), that operates a 

popular crowd-sourced retail gas price 

information app and has long provided 

OPIS with pricing data for resale to 

commercial customers (e.g., retail gas 

station operators). This non-compete 

has effectively prevented and continues 

to prevent GasBuddy—a company well 

positioned to enter the retail gas price 

data market—from launching a data 

service that would compete with OPIS. 

7. Accordingly, the Data License 

unreasonably restrains trade in violation 

of Section 1 of the Sherman Act, 15 

U.S.C. 1. 

II. Parties to the Proposed Merger and 

the Data License 

8. S&P is a New York corporation 

headquartered in New York, New York. 

S&P is comprised of four business 

divisions: S&P Global Ratings, S&P 

Global Market Intelligence, S&P Dow 

Jones Indices, and S&P Platts. It 

reported global 2020 revenues of $7.44 

billion. 

9. S&P Platts, which offers PRA 

services, among other products and 

services, accounts for roughly 12% of 

S&P’s revenue, reporting global 2020 

revenues of $878 million. 

10. IHSM is a Bermuda corporation 

headquartered in London, England. 

IHSM is comprised of four business 

divisions: Financials Services, 

Transportation, Consolidated Markets & 

Solutions, and Resources. It reported 

global 2020 revenues of $4.29 billion. 

11. IHSM provides PRA services 

primarily through its OPIS, CMM, and 

PCW businesses, which are housed 

within IHSM’s Resources division. 

OPIS, CMM, and PCW reported global 

2020 revenues of approximately $140 

million. 

12. GasBuddy is a Delaware limited 

liability company that provides a 

crowd-sourced retail gas price 

information app. From 2013 until 2021, 

GasBuddy was owned by UCG Holdings 

LP (‘‘UCG’’). In early 2021, UCG sold 

GasBuddy to Professional Datasolutions, 

Inc. 

III. Jurisdiction and Venue 

13. The United States brings this 

action under Section 15 of the Clayton 

Act, as amended, 15 U.S.C. 25, and 

Section 4 of the Sherman Act, 15 U.S.C. 

4, to prevent and restrain Defendants 

from violating Section 7 of the Clayton 

Act, 15 U.S.C. 18, and to prevent and 

restrain Defendant IHSM from violating 

Section 1 of the Sherman Act, 15 U.S.C. 

1. 

14. Defendants are engaged in, and 

their activities substantially affect, 

interstate commerce. Defendants both 

offer commodity price assessments, 

news, and analysis throughout the 

United States. This Court therefore has 

subject matter jurisdiction over this 

action pursuant to Section 15 of the 

Clayton Act, 15 U.S.C. 25, and Section 

4 of the Sherman Act, 15 U.S.C. 4, and 

28 U.S.C. 1331, 1337(a), and 1345. 

15. Defendants have each consented 

to personal jurisdiction and venue in 

this jurisdiction for purposes of this 

action. Venue is proper under Section 

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

under 28 U.S.C. 1391(b) and (c). 

IV. Industry Background 

16. PRAs provide commodity price 

assessments, news, and analysis that are 

critical to the proper functioning of 

numerous commodity markets. Some 

commodities, like corn or wheat, are 

traded on exchanges, which make price 

information readily accessible. But for 

many commodities—including many 

energy commodities like refined 

petroleum products (e.g., gasoline and 

jet fuel), coal, and petrochemicals— 

trading is done off-exchange in private 

transactions with no reporting 

obligations. It is in these opaque 

markets where PRA price assessments 

are used as a proxy for the prevailing 

market price. 

17. To produce these price 

assessments, PRAs collect information 

from commodity suppliers and 

participants in commodities 

transactions and then apply proprietary 

methodologies and editorial judgment. 

PRAs focus on providing daily price 

assessments, and often make the 

assessments available to subscribers via 

a data feed. 

18. In most cases, PRAs assess prices 

at a given time for a specific commodity 

at a specific geographic location (e.g., jet 

fuel in Los Angeles). In addition, most 

PRAs focus on assessing prices for spot 

(or bulk) transactions, which happen at 

the top of the supply chain (e.g., at the 

refinery gate where the commodity is 

created). Some PRAs—like OPIS—also 

sell information regarding commodity 

prices down the supply chain at the 

wholesale (referred to as ‘‘rack’’ in the 

industry) and retail levels. In contrast to 

spot-level PRA services, however, 

collecting rack and retail prices does not 

involve any ‘‘assessment.’’ Rack and 

retail prices are posted and PRAs simply 

collect these posted (or charged) prices 

from market participants, or through 

third party aggregators, and then 

combine and offer the data to end 

customers. For example, retail gas 

station prices are knowable and the 

collection thereof does not require 

further assessment because gas stations 

advertise their prices for passing 

motorists. 

19. PRA customers are located 

worldwide and span a wide range of 

industries. While major oil and gas 

companies, commodities traders, and 

large energy consumers generate the 

majority of PRA revenues, there are 

many smaller customers that participate 

in, or are affected by, commodity 

markets. 

V. Relevant Markets Related to the 

Proposed Merger 

A. Relevant Product Markets 

20. S&P, through its Platts division, 

and IHSM, through its OPIS, CMM, and 

PCW businesses, both provide PRA 

services for refined petroleum products 

(e.g., gasoline and jet fuel), coal, and 

petrochemicals. More specifically, both 

companies provide spot-level price 

assessments, and related news and 

analysis, for dozens of the same types of 

refined petroleum products, coal, and 

petrochemicals, across dozens of the 

same geographic locations across the 

United States and the world. 

21. PRA services for any particular 

type of refined petroleum product, coal, 

or petrochemical are not a reasonable 

substitute for PRA services for any other 

type of refined petroleum product, coal, 

or petrochemical. Similarly, PRA 

services for a particular commodity at 

one geographic location are not a 

reasonable substitute for PRA services 

for the same commodity at a different 

geographic location. For example, the 

spot price of jet fuel in Los Angeles is 

not a reasonable substitute for a 

customer seeking the spot price of jet 

fuel in New York. 

22. Despite the lack of substitutability 

between PRA services for different 

commodities, or for the same 

commodity at different geographic 

locations, spot-level PRA services for 

U.S.-located (i) refined petroleum 

products, (ii) coal, and (iii) 

petrochemicals can be analyzed in the 


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Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Notices 241 

1Owain Johnson, The Price Reporters: A Guide to 

PRAs and Commodity Benchmarks (Routledge 

2018) at 34. 

aggregate because each is offered under 

similar competitive conditions. 

23. Therefore, spot-level PRA services 

for U.S.-located refined petroleum 

products, coal, and petrochemicals are 

each lines of commerce, or relevant 

product markets, for the purposes of 

analyzing the effects of the proposed 

merger under Section 7 of the Clayton 

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

B. Relevant Geographic Market 

24. Commodity market participants 

looking for spot-level PRA services for 

U.S.-located refined petroleum 

products, coal, or petrochemicals cannot 

reasonably turn to a PRA without 

significant U.S. operations and an 

established reputation for accurately 

reporting commodity prices and 

developments. To gather the trading 

details and market intelligence 

necessary to provide PRA services that 

customers can trust to reflect current 

trading conditions, PRAs must have a 

large number of U.S.-based analysts 

(referred to as ‘‘price reporters’’ in the 

industry) with close connections to the 

relevant players, and a detailed 

understanding of supply and demand 

dynamics, in the major U.S. trading 

hubs. In addition, PRA customers value 

established PRA providers that have a 

proven track record of accurately 

covering a given U.S. commodity 

market. 

25. A hypothetical monopolist of 

spot-level PRA services for refined 

petroleum products, coal, or 

petrochemicals in the United States 

could profitably impose a small but 

significant non-transitory increase in 

price for its services without losing 

sufficient sales to render the price 

increase unprofitable. Accordingly, 

spot-level PRA services for refined 

petroleum products, coal, or 

petrochemicals in the United States is a 

relevant market for the purposes of 

analyzing the effects of the proposed 

merger under Section 7 of the Clayton 

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

VI. S&P’S Proposed Merger With IHSM 

is Likely to Result in Anticompetitive 

Effects 

26. Today, S&P and IHSM compete 

vigorously in each of the relevant 

markets, resulting in lower prices and 

increased quality and innovation for 

PRA customers. 

27. In each of the relevant markets, 

S&P and IHSM are two of a very small 

number of companies providing PRA 

services. In spot-level PRA services for 

both refined petroleum products and 

coal in the United States, S&P and IHSM 

are two of the three companies that 

generate the vast majority of revenues in 

the two markets. And in spot-level PRA 

services for petrochemicals in the 

United States, S&P and IHSM are two of 

the four companies that generate the 

vast majority of revenues. 

28. For many price assessments (e.g., 

the spot price for jet fuel in Los 

Angeles), one PRA will become the 

market standard, or benchmark, after an 

initial period where PRAs vie for market 

adoption. Once market adoption occurs, 

that PRA’s price assessment becomes 

embedded in the market ecosystem, as 

it is frequently referenced in price 

indexation formulas in supply contracts 

and in the relevant derivative contracts 

traded on major derivatives exchanges 

that are used by market participants to 

hedge their positions. 

29. Competition among PRAs plays 

out in various forms. As referenced 

above, PRAs initially vie to become the 

benchmark price assessment for many 

commodities. Because benchmark price 

assessments can generate substantial 

subscription revenues, PRAs compete 

fiercely on price, quality, and 

innovation dimensions to gain 

benchmark status. And given the 

ongoing energy transition to more 

renewable energy sources like biofuels, 

there are likely to be many new 

benchmark opportunities in the near 

future. Established PRAs—like those 

operated by S&P and IHSM—are often 

best placed to compete for new 

benchmark opportunities. 

30. Even after one PRA has been 

chosen as the benchmark, substantial 

competition remains between the PRAs 

covering that commodity, including 

competition (i) among the nonbenchmark PRAs to serve as a secondary 

source for many customers, who use the 

secondary source as a ‘‘second look’’ to 

check the accuracy of the benchmark 

provider, and (ii) between the secondary 

source and the benchmark provider 

along both price and quality 

dimensions, resulting from the 

disciplining effect of this second-look, 

accuracy check. 

31. While it is rare, some commodity 

markets have switched their benchmark 

from one PRA to another because of 

price and/or quality concerns. So, as 

one industry observer put it, ‘‘[d]espite 

the enormous difficulties of displacing 

an incumbent and the extreme rarity of 

switches, rival PRAs have to 

nonetheless invest heavily in marketing 

and in business development staff in 

order to be considered as a credible 

alternative during those rare moments 

when the incumbent stumbles.’’ 1

32. By eliminating the substantial 

head-to-head competition that exists 

today between S&P and IHSM, the 

proposed merger would result in higher 

prices and decreased quality and 

innovation for PRA customers. 

Accordingly, the proposed merger likely 

would substantially lessen competition 

in spot-level PRA services for refined 

petroleum products, coal, and 

petrochemicals in the United States. 

VII. Absence of Countervailing Factors 

Related to the Proposed Merger 

33. Entry into spot-level PRA services 

for refined petroleum products, coal, or 

petrochemicals in the United States is 

unlikely to be timely, likely, or 

sufficient to prevent the proposed 

merger’s anticompetitive effects. As S&P 

and IHSM executives have recognized, 

barriers to entry into spot-level PRA 

services for refined petroleum products, 

coal, or petrochemicals in the United 

States are high. These barriers to entry 

include (i) the large sunk costs and 

significant other expenditures necessary 

to begin providing commodity price 

assessments, news, and analysis; (ii) 

significant time and expense to build a 

reputation for accurately covering 

commodity markets; and (iii) the 

difficulty of displacing a benchmark 

PRA provider once that PRA’s price 

assessment becomes the benchmark and 

gets embedded in supply and derivative 

contracts. Unsurprisingly given all of 

these barriers, no significant PRA has 

entered in over 20 years. 

34. The proposed merger is unlikely 

to generate verifiable, merger-specific 

efficiencies sufficient to reverse or 

outweigh the anticompetitive effects 

that are likely to occur. 

VIII. The Data License Is an 

Unreasonable Restraint of Trade 

35. As noted above, in addition to 

offering spot-level PRA services, OPIS 

also collects and resells information 

related to retail gas prices, largely in the 

United States. Since 2009, GasBuddy 

has been one of OPIS’s two main 

sources of retail gas price data. 

36. OPIS resells these data to 

customers like retail gas station 

operators or oil refiners, that use the 

data for competitive benchmarking and 

to inform supply and demand decisions. 

37. In 2012, OPIS learned that 

‘‘GasBuddy [saw] a big opportunity in 

pursuing data sales,’’ and GasBuddy 

notified OPIS in ‘‘October [2012] that 

they [would] cease providing retail 

prices to [OPIS] effective Jan. 1 [2013].’’ 

OPIS saw GasBuddy’s plan as a 

significant threat to its retail gas price 

information business because it would 

greatly reduce the number of real-time 


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242 Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Notices 

gas prices that OPIS could provide, and 

it would also ‘‘greatly intensify 

competition in the retail pricing space.’’ 

In response, OPIS made a ‘‘tactical 

plan’’ to ‘‘buy[ ] GasBuddy’’ to thwart 

this potential competition. 

38. In March 2013, UCG—OPIS’s 

then-owner—followed through with this 

plan and bought GasBuddy in a 

transaction that was below the 

reportability thresholds of the HartScott-Rodino Antitrust Improvements 

Act of 1976, 15 U.S.C. 18a. 

39. In 2016, UCG sold OPIS to IHSM, 

but retained its ownership of GasBuddy. 

In order to maximize the value of OPIS 

and prevent GasBuddy from competing 

with OPIS under IHSM’s ownership, 

UCG had OPIS and GasBuddy enter into 

the Data License, which (1) gave OPIS 

exclusive, worldwide rights to 

GasBuddy’s data for 20 years; (2) 

required OPIS to pay no licensing fees 

for the data; and (3) subjected GasBuddy 

to a non-compete provision that 

restrained it from competing with OPIS 

or any other firm in the sale of retail gas 

price data to commercial customers. 

OPIS summarized the Data License 

simply as a ‘‘long-term agreement where 

we are the sole distributor of GasBuddy 

data and they can’t even sell it 

themselves.’’ 

40. Retail gas price data providers 

compete to serve commercial customers 

on both price and quality, and the Data 

License has prevented—and continues 

to prevent—GasBuddy from launching a 

competing retail gas price data service. 

But for the non-compete agreement, 

GasBuddy would be free to enter the 

retail gas price data market and compete 

with OPIS. The non-compete provision 

imposed on GasBuddy is a horizontal 

restraint that stifles competition. The 

Data License, therefore, has resulted, 

and continues to result, in higher prices 

and lower quality in the retail gas price 

data market. 

41. Furthermore, the non-compete 

provision imposed on GasBuddy was 

not reasonably necessary to a separate, 

legitimate transaction or collaboration. 

For example, the 20-year term of the 

non-compete was overbroad in its 

duration. That is, the noncompete was 

longer than necessary to effectuate and 

transfer any intellectual property, 

goodwill, or customer relationships 

associated with UCG’s 2016 sale of 

OPIS. Nothing about IHSM’s 2016 

acquisition of OPIS justified a ban on 

competition between GasBuddy and 

OPIS until 2036. To the contrary, the 

non-compete simply inflated the value 

of OPIS and now protects only IHSM’s 

desire to be free from competition in the 

market for the sale of retail gas price 

data. 

42. The Data License, therefore, 

unreasonably restrains trade in violation 

of Section 1 of the Sherman Act, 15 

U.S.C. 1. 

IX. Violations Alleged 

Count One: Violation of Section 7 of the 

Clayton Act, 15 U.S.C. 18 

43. The United States hereby 

incorporates the allegations of 

paragraphs 1 through 42 above as if set 

forth fully herein. 

44. S&P and IHSM are hereby named 

defendants on Count One of this 

Complaint. 

45. S&P’s proposed merger with IHSM 

is likely to substantially lessen 

competition in the relevant markets, in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

46. Unless enjoined, the proposed 

merger would likely have the following 

anticompetitive effects, among others, in 

the relevant markets: 

(a) eliminate present and future 

competition between S&P and IHSM; 

(b) competition generally will be 

substantially lessened; and 

(c) prices will likely increase and 

quality and innovation will likely 

decrease. 

Count Two: Violation of Section 1 of the 

Sherman Act, 15 U.S.C. 1 

47. The United States hereby 

incorporates the allegations of 

paragraphs 1 through 42 above as if set 

forth fully herein. 

48. IHSM is hereby named as the 

defendant on Count Two of this 

Complaint. 

49. Beginning at least as early as 2016, 

and continuing to this day, IHSM’s 

subsidiary OPIS has engaged in a 

contract, the Data License, with 

GasBuddy that unreasonably restrains 

trade to OPIS’s benefit, in violation of 

Section 1 of the Sherman Act, 15 U.S.C. 

1. 

50. Unless enjoined, the contract 

would likely continue to have the 

following anticompetitive effects, 

among others: 

(a) eliminate future competition 

between OPIS and GasBuddy for the 

sale of retail gas price information; and 

(b) cause prices for retail gas price 

information to be higher than they 

would otherwise be and reduce the 

levels of quality, service, and innovation 

below what they would be absent the 

agreement. 

X. Request for Relief 

51. The United States requests that 

the Court: 

(a) adjudge and decree S&P’s 

proposed merger with IHSM to violate 

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

18; 

(b) adjudge and decree that the Data 

License is a contract in unreasonable 

restraint of trade in violation of Section 

1 of the Sherman Act, 15 U.S.C. 1; 

(c) permanently enjoin Defendants 

from consummating S&P’s proposed 

merger with IHSM or from entering into 

or carrying out any other agreement, 

understanding, or plan by which the 

assets or businesses of S&P and IHSM 

would be combined; 

(d) permanently enjoin Defendant 

IHSM from enforcing the non-compete 

contained in the Data License; 

(e) award the United States its costs 

of this action; and 

(f) grant the United States such other 

relief the Court deems just and proper. 

Dated: November 12, 2021 

Respectfully Submitted, 

lllllllllllllllllllll

Richard A. Powers, 

Acting Assistant Attorney General, Antitrust 

Division. 

lllllllllllllllllllll

Kathleen S. O’Neill, 

Senior Director of Investigations and 

Litigation. 

lllllllllllllllllllll

Owen M. Kendler, 

Chief, Financial Services, Fintech, and 

Banking Section. 

lllllllllllllllllllll

Lisa A. Scanlon, 

Assistant Chief, Financial Services, Fintech, 

and Banking Section. 

lllllllllllllllllllll

Travis Chapman,* 

Vittorio Cottafavi, Collier Kelley, Rachel 

Zwolinski, 

Trial Attorneys, Financial Services, Fintech, 

and Banking Section, Antitrust Division, 450 

Fifth Street NW, Suite 4000, Washington, DC 

20530, Telephone: (202) 353–9006, Email: 

travis.chapman@usdoj.gov. 

* Lead Attorney to be noticed. 

United States District Court 

District of Columbia 

United States of America, Plaintiff, v. S&P 

Global Inc., IHS Markit Ltd., and Oil Price 

Information Services, LLC, Defendants. 

Civil Action No.: 1:21–cv–3003–JEB 

PROPOSED FINAL JUDGMENT 

Whereas, Plaintiff, United States of 

America, filed its Complaint against 

S&P Global Inc. (‘‘S&P’’) and IHS Markit 

Ltd. (‘‘IHSM’’) on November 12, 2021; 

And whereas, pursuant to a 

Stipulation and Order among S&P, 

IHSM, and Oil Price Information 

Services, LLC (‘‘OPIS LLC’’) 

(collectively, ‘‘Defendants’’) and 

Plaintiff, the Court has joined OPIS LLC 

as a defendant to this action for the 


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purposes of settlement and for the entry 

of this Final Judgment; 

And whereas, Plaintiff and 

Defendants, have consented to 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, S&P and IHSM agree to 

make a divestiture, and Defendants 

agree to undertake certain actions to 

remedy the loss of competition alleged 

in the Complaint; 

And whereas, S&P and IHSM 

represent that the divestiture to News 

Corp. required by this Final Judgment 

can and will be made, Defendants 

represent that the other relief required 

by this Final Judgment can and will be 

made, and Defendants represent that 

they 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 the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against S&P and IHSM under Section 7 

of the Clayton Act, as amended (15 

U.S.C. 18), and Section 1 of the 

Sherman Act, as amended (15 U.S.C. 1). 

Pursuant to the Stipulation and Order 

filed simultaneously with this Final 

Judgment joining OPIS LLC as a 

defendant to this action, OPIS LLC has 

consented to this Court’s exercise of 

specific personal jurisdiction over OPIS 

LLC in this matter solely for the 

purposes of settlement and for the entry 

and enforcement of the Final Judgment. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Data License’’ means the Data 

License Agreement between Oil Price 

Information Service, LLC, and 

GasBuddy/Open Store, LLC, dated 

January 5, 2016. 

B. ‘‘Divestiture Business’’ means (1) 

IHSM’s Oil Price Information Service 

(‘‘OPIS’’) business, including the 

business known as PetrochemWire and 

OPIS’s 15% stake in PRIMA Regulated 

Markets Limited and 25% stake in a2i 

systems A/S, and (2) IHSM’s Coals, 

Metals, and Mining (‘‘CMM’’) business. 

C. ‘‘Divestiture Assets’’ means all of 

S&P’s and IHSM’s rights, titles, and 

interests in and to all property and 

assets, tangible and intangible, wherever 

located, (1) owned by the Divestiture 

Business, or (2) primarily related to or 

used in connection with, or necessary to 

the operation of, the Divestiture 

Business (with the United States, in its 

sole discretion, to resolve any 

disagreement regarding which property 

and assets, tangible and intangible, are 

Divestiture Assets), including: 

1. Lease agreements for offices located 

at: (a) 2099 Gaither Road, Rockville, MD 

20850; (b) 3349 Highway 139, Wall 

Township, NJ 07719; and (c) 1295 

Bandana Boulevard North, Saint Paul, 

MN 55018; 

2. all other real property, including 

fee simple interests and real property 

leasehold interests and renewal rights 

thereto, and improvements to real 

property, together with all buildings, 

facilities, and other structures; 

3. all tangible personal property, 

including fixed assets, office equipment 

and furniture, computer hardware, and 

supplies; 

4. all contracts, contractual rights, and 

customer relationships, and all other 

agreements, commitments, and 

understandings, including supply 

agreements, teaming agreements, and all 

outstanding offers or solicitations to 

enter into a similar arrangement; 

5. all licenses, permits, certifications, 

approvals, consents, registrations, 

waivers, and authorizations, and all 

pending applications or renewals; 

6. all records and data, including (a) 

customer lists, accounts, sales, and 

credits records, (b) manuals and 

technical information that S&P and 

IHSM provide to their own employees, 

customers, suppliers, agents, or 

licensees, and (c) records and research 

data concerning historic and current 

research and development activities; 

7. all intellectual property owned, 

licensed, or sublicensed, either as 

licensor or licensee, including (a) 

patents, patent applications, and 

inventions and discoveries that may be 

patentable, (b) registered and 

unregistered copyrights and copyright 

applications, and (c) registered and 

unregistered trademarks, trade dress, 

service marks, trade names, and 

trademark applications; and 

8. all other intangible property, 

including (a) commercial names and 

d/b/a names, (b) technical information, 

(c) design tools and simulation 

capabilities, (d) computer software and 

related documentation, know-how, 

trade secrets, quality assurance and 

control procedures, and (e) rights in 

internet websites and internet domain 

names. 

D. ‘‘Divestiture Date’’ means the date 

on which the Divestiture Assets are 

divested to News Corp. pursuant to this 

Final Judgment. 

E. ‘‘GasBuddy’’ means GasBuddy, 

LLC, a Delaware limited liability 

company with its headquarters in 

Boston, Massachusetts, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships, and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

F. ‘‘IHSM’’ means Defendant IHS 

Markit Ltd., a Bermuda corporation with 

its headquarters in London, United 

Kingdom, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

G. ‘‘Including’’ means including, but 

not limited to. 

H. ‘‘OPIS LLC’’ means Defendant Oil 

Price Information Services, LLC, a 

Maryland limited liability company 

with its headquarters in Rockville, 

Maryland, its successors and assigns, 

and their directors, officers, managers, 

agents, and employees. 

I. ‘‘Relevant Personnel’’ means all 

full-time, part-time, or contract 

employees of IHSM, wherever located, 

who work in OPIS or CMM, or whose 

job responsibilities relate primarily to 

the operation or management of the 

Divestiture Business, at any time 

between November 30, 2020, and the 

Divestiture Date. The United States, in 

its sole discretion, will resolve any 

disagreement regarding which 

employees are Relevant Personnel. 

J. ‘‘News Corp.’’ means News 

Corporation, a Delaware corporation 

with its headquarters in New York, New 

York, its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

K. ‘‘Regulatory Approvals’’ means (1) 

any approvals or clearances under 

antitrust, competition, or other U.S. or 

international laws that are required for 

the Transaction to proceed; and (2) any 

approvals or clearances under antitrust, 

competition, or other U.S. or 

international laws that are required for 

News Corp.’s acquisition of the 

Divestiture Assets to proceed. 

L. ‘‘S&P’’ means Defendant S&P 

Global Inc., a New York corporation 

with its headquarters in New York, New 

York, its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

M. ‘‘Transaction’’ means the proposed 

merger between S&P and IHSM. 


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III. Applicability 

A. This Final Judgment applies to 

Defendants, as defined above, and all 

other persons, in active concert or 

participation with any Defendant, who 

receive actual notice of this Final 

Judgment. 

B. If, prior to complying with Section 

IV and Section V of this Final Judgment, 

S&P and IHSM sell or otherwise dispose 

of all or substantially all of their assets 

or of business units that include the 

Divestiture Assets, S&P and IHSM must 

require any purchaser to be bound by 

the provisions of this Final Judgment. 

IV. Divestiture 

A. S&P and IHSM are ordered and 

directed, within 30 calendar days after 

the Court’s entry of the Asset 

Preservation and Hold Separate 

Stipulation and Order in this matter, to 

divest the Divestiture Assets in a 

manner consistent with this Final 

Judgment to News Corp. The United 

States, in its sole discretion, may agree 

to one or more extensions of this time 

period not to exceed 90 calendar days 

in total and will notify the Court of any 

extensions. 

B. If S&P and IHSM have not received 

all Regulatory Approvals within 30 

calendar days after the Court’s entry of 

the Stipulation and Order in this matter, 

the time period provided in Paragraph 

IV.A. will be extended until 30 calendar 

days after all Regulatory Approvals are 

received. This extension allowed for 

securing Regulatory Approvals may be 

no longer than 120 calendar days past 

the time period provided in Paragraph 

IV.A., unless the United States, in its 

sole discretion, consents to an 

additional extension. 

C. S&P and IHSM must use best 

efforts to divest the Divestiture Assets as 

expeditiously as possible. S&P and 

IHSM must take no action that would 

jeopardize the completion of the 

divestiture ordered by the Court, 

including any action to impede the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

D. Unless the United States otherwise 

consents in writing, divestiture 

pursuant to this Final Judgment must 

include the entire Divestiture Assets 

and must be accomplished in such a 

way as to satisfy the United States, in its 

sole discretion, that the Divestiture 

Assets can and will be used by News 

Corp. as part of a viable, ongoing 

business providing commodity price 

assessments and related news and 

analysis and that the divestiture to 

News Corp. will remedy the competitive 

harm alleged in the Complaint. 

E. The divestiture must be 

accomplished in a manner that satisfies 

the United States, in its sole discretion, 

that none of the terms of any agreement 

between News Corp. and S&P and IHSM 

give S&P and IHSM the ability 

unreasonably to raise News Corp.’s 

costs, to lower News Corp.’s efficiency, 

or otherwise interfere in the ability of 

News Corp. to compete effectively in 

providing commodity price assessments 

and related news and analysis. 

F. S&P and IHSM must cooperate with 

and assist News Corp. in identifying 

and, at the option of News Corp., hiring 

all Relevant Personnel, including: 

1. Within 10 business days following 

the filing of the Complaint in this 

matter, S&P and IHSM must identify all 

Relevant Personnel to News Corp. and 

the United States, including by 

providing organization charts covering 

all Relevant Personnel. 

2. Within 10 business days following 

receipt of a request by News Corp. or the 

United States, S&P and IHSM must 

provide to News Corp. and the United 

States additional information relating to 

Relevant Personnel, including name, job 

title, reporting relationships, past 

experience, responsibilities, training 

and educational histories, relevant 

certifications, and job performance 

evaluations. S&P and IHSM must also 

provide to News Corp. and the United 

States current and accrued 

compensation and benefits of Relevant 

Personnel, including most recent 

bonuses paid, aggregate annual 

compensation, current target or 

guaranteed bonus, if any, any retention 

agreement or incentives, and any other 

payments due, compensation or 

benefited accrued, or promises made to 

the Relevant Personnel. If S&P and 

IHSM are barred by any applicable law 

from providing any of this information, 

S&P and IHSM must provide, within 10 

business days following receipt of the 

request, the requested information to the 

full extent permitted by law and also 

must provide a written explanation of 

S&P’s and IHSM’s inability to provide 

the remaining information, including 

specifically identifying the provisions of 

the applicable laws. 

3. At the request of News Corp., S&P 

and IHSM must promptly make 

Relevant Personnel available for private 

interviews with News Corp. during 

normal business hours at a mutually 

agreeable location. 

4. S&P and IHSM must not interfere 

with any effort by News Corp. to employ 

any Relevant Personnel. Interference 

includes offering to increase the 

compensation or improve the benefits of 

Relevant Personnel unless (a) the offer 

is part of a company-wide increase in 

compensation or improvement in 

benefits that was announced prior to 

November 30, 2020 or (b) the offer is 

approved by the United States in its sole 

discretion. S&P’s and IHSM’s 

obligations under this Paragraph IV.H.4. 

will expire 180 calendar days after the 

Divestiture Date. 

5. For Relevant Personnel who elect 

employment with News Corp. within 

180 calendar days of the Divestiture 

Date, S&P and IHSM must waive all 

non-compete and non-disclosure 

agreements; vest and pay to the Relevant 

Personnel (or to News Corp. for 

payment to the employee) on a prorated 

basis any bonuses, incentives, other 

salary, benefits or other compensation 

fully or partially accrued at the time of 

the transfer of the employee to News 

Corp.; vest any unvested pension and 

other equity rights; and provide all other 

benefits that those Relevant Personnel 

otherwise would have been provided 

had the Relevant Personnel continued 

employment with S&P and IHSM, 

including but not limited to any 

retention bonuses or payments. S&P and 

IHSM may maintain reasonable 

restrictions on disclosure by Relevant 

Personnel of S&P’s and IHSM’s 

proprietary non-public information that 

is unrelated to the Divestiture Assets or 

the provision of commodity price 

assessments and related news and 

analysis and not otherwise required to 

be disclosed by this Final Judgment. 

6. For a period of 12 months from the 

Divestiture Date, S&P and IHSM may 

not solicit to rehire Relevant Personnel 

who were hired by News Corp. within 

180 days of the Divestiture Date unless 

(a) an individual is terminated or laid 

off by News Corp. or (b) News Corp. 

agrees in writing that S&P and IHSM 

may solicit to rehire that individual. 

Nothing in this Paragraph IV.H.6. 

prohibits S&P and IHSM from 

advertising employment openings using 

general solicitations or advertisements 

and rehiring Relevant Personnel who 

apply for an employment opening 

through a general solicitation or 

advertisement. 

G. S&P and IHSM must warrant to 

News Corp. that (1) the Divestiture 

Assets will be operational and without 

material defect on the date of their 

transfer to News Corp.; (2) there are no 

material defects in the environmental, 

zoning, or other permits relating to the 

operation of the Divestiture Assets; and 

(3) S&P and IHSM have disclosed all 

encumbrances on any part of the 

Divestiture Assets, including on 

intangible property. Following the sale 

of the Divestiture Assets, S&P and IHSM 

must not undertake, directly or 

indirectly, challenges to the 

environmental, zoning, or other permits 


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relating to the operation of the 

Divestiture Assets. 

H. S&P and IHSM must assign, 

subcontract, or otherwise transfer all 

contracts, agreements, and customer 

relationships (or portions of such 

contracts, agreements, and customer 

relationships) included in the 

Divestiture Assets, including all supply 

and sales contracts, to News Corp.; 

provided, however, that for any contract 

or agreement that requires the consent 

of another party to assign, subcontract, 

or otherwise transfer, S&P and IHSM 

must use best efforts to accomplish the 

assignment, subcontracting, or transfer. 

S&P and IHSM must not interfere with 

any negotiations between News Corp. 

and a contracting party. 

I. S&P and IHSM must use best efforts 

to assist News Corp. to obtain all 

necessary licenses, registrations, and 

permits to operate the Divestiture 

Business. Until News Corp. obtains the 

necessary licenses, registrations, and 

permits, S&P and IHSM must provide 

News Corp. with the benefit of S&P’s 

and IHSM’s licenses, registrations, and 

permits to the full extent permissible by 

law; provided, however, that S&P and 

IHSM need not assist News Corp. to 

obtain licenses, registrations, or permits 

to operate as benchmark administrators. 

J. At the option of News Corp., and 

subject to approval by the United States 

in its sole discretion, on or before the 

Divestiture Date, S&P and IHSM must 

enter into a contract to provide 

transition services for back office, 

human resources, accounting, employee 

health and safety, and information 

technology services and support for a 

period of up to 180 days on terms and 

conditions reasonably related to market 

conditions for the provision of the 

transition services. Any amendment to 

or modification of any provision of a 

contract to provide transition services is 

subject to approval by the United States, 

in its sole discretion. The United States, 

in its sole discretion, may approve one 

or more extensions of any contract for 

transition services, for a total of up to 

an additional 180 days. If News Corp. 

seeks an extension of the term of any 

contract for transition services, 

Defendants must notify the United 

States in writing at least 90 days prior 

to the date the contract expires. News 

Corp. may terminate a contract for 

transition services, or any portion of a 

contract for transition services, without 

cost or penalty at any time upon 

commercially reasonable written notice. 

The employee(s) of S&P and IHSM 

tasked with providing transition 

services must not share any 

competitively sensitive information of 

News Corp. with any other employee of 

S&P and IHSM. 

K. If any term of an agreement 

between S&P and IHSM and News 

Corp., including an agreement to 

effectuate the divestiture required by 

this Final Judgment, varies from a term 

of this Final Judgment, to the extent that 

S&P and IHSM, OPIS LLC, and News 

Corp. cannot fully comply with both, 

this Final Judgment determines S&P’s, 

IHSM’s, OPIS LLC’s and News Corp.’s 

obligations. 

V. Appointment of Divestiture Trustee 

A. If S&P and IHSM have not divested 

the Divestiture Assets within the period 

specified in Paragraphs IV. A. and IV.B., 

S&P and IHSM must immediately notify 

the United States of that fact in writing. 

Upon application of the United States, 

which S&P and IHSM may not oppose, 

the Court will appoint a divestiture 

trustee selected by the United States and 

approved by the Court to effect the 

divestiture of the Divestiture Assets to 

News Corp. 

B. After the appointment of a 

divestiture trustee by the Court, only the 

divestiture trustee will have the right to 

sell the Divestiture Assets. The 

divestiture trustee will have the power 

and authority to accomplish the 

divestiture to News Corp., at a price and 

on terms obtainable through reasonable 

effort by the divestiture trustee, subject 

to the provisions of Sections IV and V 

of this Final Judgment, and will have 

other powers as the Court deems 

appropriate. The divestiture trustee 

must sell the Divestiture Assets as 

quickly as possible. 

C. The divestiture trustee must notify 

the United States, S&P, and IHSM at 

least 7 calendar days before completion 

of the sale of the Divestiture Assets to 

News Corp. S&P and IHSM may not 

object to a sale to News Corp. by the 

divestiture trustee on any ground other 

than malfeasance by the divestiture 

trustee. 

D. The divestiture trustee will serve at 

the cost and expense of S&P and IHSM 

pursuant to a written agreement, on 

terms and conditions, including 

confidentiality requirements and 

conflict of interest certifications, 

approved by the United States, in its 

sole discretion. 

E. The divestiture trustee may hire at 

the cost and expense of S&P and IHSM 

any agents or consultants, including 

investment bankers, attorneys, and 

accountants, that are reasonably 

necessary in the divestiture trustee’s 

judgment to assist with the divestiture 

trustee’s duties. These agents or 

consultants will be accountable solely to 

the divestiture trustee and will serve on 

terms and conditions, including 

confidentiality requirements and 

conflict-of-interest certifications, 

approved by the United States in its sole 

discretion. 

F. The compensation of the 

divestiture trustee and agents or 

consultants hired by the divestiture 

trustee must be reasonable in light of the 

value of the Divestiture Assets and 

based on a fee arrangement that 

provides the divestiture trustee with 

incentives based on the price and terms 

of the divestiture and the speed with 

which it is accomplished. If the 

divestiture trustee and S&P and IHSM 

are unable to reach agreement on the 

divestiture trustee’s compensation or 

other terms and conditions of 

engagement within 14 calendar days of 

the appointment of the divestiture 

trustee by the Court, the United States, 

in its sole discretion, may take 

appropriate action, including by making 

a recommendation to the Court. Within 

three business days of hiring an agent or 

consultant, the divestiture trustee must 

provide written notice of the hiring and 

rate of compensation to S&P and IHSM 

and the United States. 

G. The divestiture trustee must 

account for all monies derived from the 

sale of the Divestiture Assets sold by the 

divestiture trustee and all costs and 

expenses incurred. Within 30 calendar 

days of the Divestiture Date, the 

divestiture trustee must submit that 

accounting to the Court for approval. 

After approval by the Court of the 

divestiture trustee’s accounting, 

including fees for unpaid services and 

those of agents or consultants hired by 

the divestiture trustee, all remaining 

money must be paid to S&P and IHSM 

and the trust will then be terminated. 

H. S&P and IHSM must use best 

efforts to assist the divestiture trustee to 

accomplish the required divestiture to 

News Corp. Subject to reasonable 

protection for trade secrets, other 

confidential research, development, or 

commercial information, or any 

applicable privileges, S&P and IHSM 

must provide the divestiture trustee and 

agents or consultants retained by the 

divestiture trustee with full and 

complete access to all personnel, books, 

records, and facilities of the Divestiture 

Assets. S&P and IHSM also must 

provide or develop financial and other 

information relevant to the Divestiture 

Assets that the divestiture trustee may 

reasonably request. S&P and IHSM must 

not take any action to interfere with or 

to impede the divestiture trustee’s 

accomplishment of the divestiture to 

News Corp. 

I. The divestiture trustee must 

maintain complete records of all efforts 


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made to sell the Divestiture Assets to 

News Corp., including by filing monthly 

reports with the United States setting 

forth the divestiture trustee’s efforts to 

accomplish the divestiture ordered by 

this Final Judgment. 

J. If the divestiture trustee has not 

accomplished the divestiture ordered by 

this Final Judgment within 180 days of 

appointment, the divestiture trustee 

must promptly provide the United 

States with a report setting forth: (1) The 

divestiture trustee’s efforts to 

accomplish the required divestiture; (2) 

the reasons, in the divestiture trustee’s 

judgment, why the required divestiture 

has not been accomplished; and (3) the 

divestiture trustee’s recommendations 

for completing the divestiture. 

Following receipt of that report, the 

United States may make additional 

recommendations to the Court. The 

Court thereafter may enter such orders 

as it deems appropriate to carry out the 

purpose of this Final Judgment, which 

may include extending the trust and the 

term of the divestiture trustee’s 

appointment by a period requested by 

the United States. 

K. The divestiture trustee will serve 

until divestiture of all Divestiture Assets 

to News Corp. is completed or for a term 

otherwise ordered by the Court. 

L. If the United States determines that 

the divestiture trustee is not acting 

diligently or in a reasonably costeffective manner, the United States may 

recommend that the Court appoint a 

substitute divestiture trustee. 

VI. Financing 

S&P and IHSM may not finance all or 

any part of News Corp.’s purchase of all 

or part of the Divestiture Assets. 

VII. Asset Preservation and Hold 

Separate Obligations 

Defendants must take all steps 

necessary to comply with the Asset 

Preservation and Hold Separate 

Stipulation and Order entered by the 

Court. 

VIII. Affidavits 

A. Within 20 calendar days of the 

filing of the Complaint in this matter, 

and every 30 calendar days thereafter 

until the divestiture required by this 

Final Judgment has been completed, 

S&P and IHSM must deliver to the 

United States an affidavit, signed by 

each S&P’s and IHSM’s Chief Financial 

Officer and General Counsel, describing 

in reasonable detail the fact and manner 

of S&P’s and IHSM’s compliance with 

this Final Judgment. The United States, 

in its sole discretion, may approve 

different signatories for the affidavits. 

B. S&P and IHSM must keep all 

records of any efforts made to divest the 

Divestiture Assets until one year after 

the Divestiture Date. 

C. Within 20 calendar days of the 

filing of the Complaint in this matter, 

S&P and IHSM must deliver to the 

United States an affidavit signed by 

S&P’s and IHSM’s Chief Financial 

Officer and General Counsel, that 

describes in reasonable detail all actions 

S&P and IHSM have taken and all steps 

that S&P and IHSM have implemented 

on an ongoing basis to comply with 

Section VII of this Final Judgment. The 

United States, in its sole discretion, may 

approve different signatories for the 

affidavits. 

D. If S&P or IHSM makes any changes 

to actions and steps described in 

affidavits provided pursuant to 

Paragraph VIII.D., S&P or IHSM, as 

applicable, must, within 15 calendar 

days after any change is implemented, 

deliver to the United States an affidavit 

describing those changes. 

E. S&P and IHSM must keep all 

records of any efforts made to comply 

with Section VII until one year after the 

Divestiture Date. 

IX. Required Conduct 

Prior to the Divestiture Date, and no 

later than five business days after the 

Court’s entry of the Stipulation and 

Order in this matter, S&P and IHSM 

must notify GasBuddy in writing that, 

effective on the date of completion of 

the Transaction, OPIS LLC (1) waives 

the exclusivity obligation in the license 

grant in Section 2(a) of the Data License, 

so as to render the license of GasBuddy 

retail data to OPIS LLC non-exclusive; 

and (2) waives the GasBuddy restrictive 

covenants, including the non-compete 

provision enumerated in Section 4(c) of 

the Data License. Before such written 

notice is provided to GasBuddy, the 

form and content of the written notice 

must be approved by the United States, 

in its sole discretion. 

X. Prohibited Conduct 

A. Without the prior written consent 

of the United States, in its sole 

discretion, S&P and IHSM will not (1) 

enter into, enforce, renew, or extend the 

term of any exclusive licenses for the 

provision to S&P and IHSM of 

GasBuddy’s data; or (2) enter into, 

enforce, renew, or extend the term of 

any non-compete provisions relating to 

GasBuddy’s data. 

B. Without the prior written consent 

of the United States, in its sole 

discretion, OPIS LLC will not (1) enter 

into, enforce, renew, or extend the term 

of any exclusive licenses for the 

provision to OPIS LLC of GasBuddy’s 

data or U.S. retail gas price data of any 

other third-party provider; or (2) enter 

into, enforce, renew, or extend the term 

of any non-compete provisions relating 

to GasBuddy’s data or U.S. retail gas 

price data of any other third-party 

provider. 

XI. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment or of related orders such as 

the Asset Preservation and Hold 

Separate Stipulation and Order or of 

determining whether this Final 

Judgment should be modified or 

vacated, upon written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, and reasonable 

notice to Defendants, Defendants must 

permit, from time to time and subject to 

legally recognized privileges, authorized 

representatives, including agents 

retained by the United States: 

1. To have access during Defendants’ 

office hours to inspect and copy, or at 

the option of the United States, to 

require Defendants to provide electronic 

copies of all books, ledgers, accounts, 

records, data, and documents in the 

possession, custody, or control of 

Defendants relating to any matters 

contained in this Final Judgment; and 

2. to interview, either informally or on 

the record, Defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

relating to any matters contained in this 

Final Judgment. The interviews must be 

subject to the reasonable convenience of 

the interviewee and without restraint or 

interference by Defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, Defendants must 

submit written reports or respond to 

written interrogatories, under oath if 

requested, relating to any matters 

contained in this Final Judgment. 

C. No information or documents 

obtained pursuant to this Section may 

be divulged by the United States to any 

person other than an authorized 

representative of the executive branch of 

the United States, except in the course 

of legal proceedings to which the United 

States is a party, including grand jury 

proceedings, for the purpose of securing 

compliance with this Final Judgment, or 

as otherwise required by law. 

D. In the event of a request by a third 

party for disclosure of information 

under the Freedom of Information Act, 

5 U.S.C. 552, the Antitrust Division will 

act in accordance with that statute, and 

the Department of Justice regulations at 

28 CFR part 16, including the provision 


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on confidential commercial information, 

at 28 CFR 16.7. Defendants submitting 

information to the Antitrust Division 

should designate the confidential 

commercial information portions of all 

applicable documents and information 

under 28 CFR 16.7. Designations of 

confidentiality expire ten years after 

submission, ‘‘unless the submitter 

requests and provides justification for a 

longer designation period.’’ See 28 CFR 

16.7(b). 

E. If at the time that Defendants 

furnish information or documents to the 

United States pursuant to this Section, 

Defendants represent and identify 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 

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,’’ the 

United States must give Defendants ten 

(10) calendar days’ notice before 

divulging the material in any legal 

proceeding (other than a grand jury 

proceeding). 

XII. No Reacquisition 

S&P and IHSM may not reacquire any 

part of or any interest in the Divestiture 

Assets during the term of this Final 

Judgment without prior authorization of 

the United States. 

XIII. Retention of Jurisdiction 

The Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to the Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIV. Enforcement of Final Judgment 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including the right to seek an order of 

contempt from the Court. Defendants 

agree 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 Defendants waive 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 and to restore the competition the 

United States alleges was harmed by the 

challenged conduct. Defendants agree 

that they may be held in contempt of, 

and that the Court may enforce, any 

provision of this Final Judgment that, as 

interpreted by the Court in light of these 

procompetitive principles and applying 

ordinary tools of interpretation, is stated 

specifically and in reasonable detail, 

whether or not it is clear and 

unambiguous on its face. In any such 

interpretation, the terms of this Final 

Judgment should not be construed 

against either party as the drafter. 

C. In an enforcement proceeding in 

which the Court finds that Defendants 

have 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 a 

Defendant, whether litigated or resolved 

before litigation, that 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 a 

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 XIV. 

XV. Expiration of Final Judgment 

Unless the Court grants an extension, 

this Final Judgment will expire 10 years 

from the date of its entry, except that 

after five years from the date of its entry, 

this Final Judgment may be terminated 

upon notice by the United States to the 

Court and Defendants that the 

divestiture has been completed and 

continuation of this Final Judgment is 

no longer necessary or in the public 

interest. 

XVI. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including 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: llllllllllllllllll

[Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16] 

lllllllllllllllllllll

United States District Judge 

United States District Court 

District of Columbia 

United States of America, Plaintiff, v. S&P 

Global Inc., IHS Markit Ltd., and Oil Price 

Information Services, LLC, Defendants. 

Civil Action No.: 1:21–cv–3003–JEB 

COMPETITIVE IMPACT STATEMENT 

In accordance with the Antitrust 

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

16(b)–(h) (the ‘‘APPA’’ or ‘‘Tunney 

Act’’), the United States of America files 

this Competitive Impact Statement 

related to the proposed Final Judgment 

filed in this civil antitrust proceeding. 

I. Nature and Purpose of the Proceeding 

On November 29, 2020, S&P Global 

Inc. (‘‘S&P’’) and IHS Markit Ltd. 

(‘‘IHSM’’) entered into a merger 

agreement to combine in an all-stock 

transaction that values IHSM at 

approximately $44 billion. Separately, 

in January 2016, IHSM’s Oil Price and 

Information Services LLC (‘‘OPIS LLC’’) 

division entered into a 20-year exclusive 

data license and non-compete 

agreement (‘‘Data License’’) with 

GasBuddy LLC (‘‘GasBuddy’’), an 

operator of a popular crowd-sourced 

retail gas price information app that has 

long provided OPIS LLC with pricing 

data for resale to commercial customers 

(e.g., retail gas station operators). 

The United States filed a civil 

antitrust Complaint on November 12, 

2021, seeking to enjoin both: (1) The 

consummation of the proposed merger; 

and (2) the enforcement of the 

exclusivity and non-compete provisions 

contained in the Data License. The 

Complaint alleges that the likely effect 

of this merger would be to substantially 

lessen competition for spot-level price 

reporting agency (‘‘PRA’’) services for 

refined petroleum products, coal, and 

petrochemicals in the United States, in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. The Complaint also 

alleges that the Data License 


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248 Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Notices 

unreasonably restrains trade in the 

market for the sale of retail gas price 

data in violation of Section 1 of the 

Sherman Act, 15 U.S.C. 1. 

At the same time the Complaint was 

filed, the United States filed a proposed 

Final Judgment and an Asset 

Preservation and Hold Separate 

Stipulation and Order (‘‘Stipulation and 

Order’’), which are designed to remedy 

the loss of competition and the 

unreasonable restraint on trade alleged 

in the Complaint. 

Under the proposed Final Judgment, 

which is explained more fully below, 

S&P and IHSM are required to divest 

three IHSM PRA businesses: (1) OPIS 

LLC, which focuses on refined 

petroleum products; (2) Coal, Metals, 

and Mining (‘‘CMM’’), which focuses 

predominately on coal; and (3) 

PetrochemWire (‘‘PCW’’), which focuses 

on petrochemicals. S&P and IHSM have 

agreed to divest OPIS LLC, CMM, and 

PCW to News Corporation (‘‘News 

Corp.’’), a global media conglomerate 

that operates a financial data company, 

Dow Jones & Company, Inc. (‘‘Dow 

Jones’’). 

In addition, under the proposed Final 

Judgment, S&P and IHSM must waive 

the exclusivity and non-compete 

provisions of the Data License between 

OPIS LLC and GasBuddy. S&P, IHSM, 

and OPIS LLC are also prohibited, 

without the prior written consent of the 

United States, from entering into, 

enforcing, renewing, or extending the 

term of any similar exclusive or noncompete provisions. 

Under the terms of the Stipulation 

and Order, until the divestiture is 

completed, S&P and IHSM must take 

certain steps to ensure that OPIS LLC, 

CMM, and PCW remain independent, 

economically viable, competitive, and 

saleable. In addition, the management, 

sales, and operations of these businesses 

must be held entirely separate, distinct, 

and apart from S&P’s and IHSM’s other 

operations. The purpose of these terms 

in the Stipulation and Order is to ensure 

that competition is maintained during 

the pendency of the required 

divestiture. 

The Stipulation and Order also 

requires Defendants to abide by and 

comply with the provisions of the 

proposed Final Judgment until the 

proposed Final Judgment is entered by 

the Court or until expiration of time for 

all appeals of any Court ruling declining 

entry of the proposed Final Judgment. 

On November 16, 2021, the Court 

entered the Stipulation and Order. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment will terminate 

this action, except that the Court will 

retain jurisdiction to construe, modify, 

or enforce the provisions of the 

proposed Final Judgment and to punish 

violations thereof. 

II. Description of Events Giving Rise to 

the Alleged Violations 

A. The Defendants and the Proposed 

Merger 

S&P is a global financial data 

conglomerate headquartered in New 

York, New York and is comprised of 

four divisions: S&P Global Ratings, S&P 

Global Market Intelligence, S&P Dow 

Jones Indices, and S&P Platts. It 

reported global 2020 revenues of $7.44 

billion. It provides PRA services 

through its S&P Platts division, which 

reported global 2020 revenues of $878 

million and accounts for roughly 12% of 

S&P’s revenue. 

IHSM is a global financial data 

conglomerate headquartered in London, 

England and is comprised of four 

divisions: Financial Services, 

Transportation, Consolidated Markets & 

Solutions, and Resources. It reported 

global 2020 revenues of $4.29 billion. It 

provides PRA services primarily 

through its OPIS LLC, CMM, and PCW 

businesses, which are housed within 

IHSM’s Resources division. OPIS LLC, 

CMM, and PCW reported global 2020 

revenues of approximately $140 million 

and accounts for roughly 3% of IHSM’s 

revenue. 

OPIS LLC, currently an IHSM 

subsidiary, provides PRA services 

primarily related to refined petroleum 

products. OPIS LLC will be acquired by 

News Corp. pursuant to the divestiture 

required by the proposed Final 

Judgment. 

Pursuant to a merger agreement dated 

November 29, 2020, S&P intends to 

merge with IHSM in an all-stock 

transaction that values IHSM at 

approximately $44 billion. 

B. The Competitive Effects of the 

Proposed Merger 

The Complaint alleges that the likely 

effect of this merger would be to 

substantially lessen competition for 

spot-level PRA services for refined 

petroleum products, coal, and 

petrochemicals in the United States. 

1. Relevant Product Markets 

PRAs provide commodity price 

assessments, news, and analysis that are 

critical to the proper functioning of 

numerous commodity markets. Some 

commodities, like corn or wheat, are 

traded on exchanges, which make price 

information readily accessible. But for 

many commodities—including many 

energy commodities like refined 

petroleum products (e.g., gasoline and 

jet fuel), coal, and petrochemicals— 

trading is done off-exchange in private 

transactions with no reporting 

obligations. It is in these opaque 

markets where PRA price assessments 

are used as a proxy for the prevailing 

market price. 

To produce these price assessments, 

PRAs collect information from 

commodity suppliers and participants 

in commodities transactions and then 

apply proprietary methodologies and 

editorial judgment. PRAs focus on 

providing daily price assessments, and 

often make the assessments available to 

subscribers via a data feed. 

In most cases, PRAs assess prices at 

a given time for a specific commodity at 

a specific geographic location (e.g., jet 

fuel in Los Angeles). In addition, most 

PRAs focus on assessing prices for spot 

(or bulk) transactions, which happen at 

the top of the supply chain (e.g., at the 

refinery gate where the commodity is 

created). 

PRA customers are located worldwide 

and span a wide range of industries. 

While major oil and gas companies, 

commodities traders, and large energy 

consumers generate the majority of PRA 

revenues, there are many smaller 

customers that participate in, or are 

affected by, commodity markets. 

S&P, through its Platts division, and 

IHSM, through its OPIS LLC, CMM, and 

PCW businesses, both provide PRA 

services for refined petroleum products 

(e.g., gasoline and jet fuel), coal, and 

petrochemicals. More specifically, both 

companies provide spot-level price 

assessments, and related news and 

analysis, for dozens of the same types of 

refined petroleum products, coal, and 

petrochemicals, across dozens of the 

same geographic locations across the 

United States and the world. 

PRA services for any particular type 

of refined petroleum product, coal, or 

petrochemical are not a reasonable 

substitute for PRA services for any of 

other type of refined petroleum product, 

coal, or petrochemical. Similarly, PRA 

services for a particular commodity at 

one geographic location are not a 

reasonable substitute for PRA services 

for the same commodity at a different 

geographic location. 

Despite the lack of substitutability 

between PRA services for different 

commodities within each category, or 

for the same commodity at different 

geographic locations, spot-level PRA 

services for U.S.-located (i) refined 

petroleum products, (ii) coal, and (iii) 

petrochemicals can be analyzed in the 

aggregate because each is offered under 


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2Owain Johnson, The Price Reporters: A Guide to 

PRAs and Commodity Benchmarks (Routledge 

2018) at 34. 

similar competitive conditions. Spotlevel PRA services for U.S.-located 

refined petroleum products, coal, and 

petrochemicals are each lines of 

commerce, or relevant product markets, 

for the purposes of analyzing the effects 

of the proposed merger under Section 7 

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

2. Relevant Geographic Market 

Commodity market participants 

looking for spot-level PRA services for 

U.S.-located refined petroleum 

products, coal, or petrochemicals cannot 

reasonably turn to a PRA without 

significant U.S. operations and an 

established reputation for accurately 

reporting commodity prices and 

developments. To provide customers 

with trustworthy trading details and 

market intelligence that reflect current 

trading conditions, PRAs must have a 

large number of U.S.-based analysts 

(referred to as ‘‘price reporters’’ in the 

industry) with close connections to the 

relevant players, and a detailed 

understanding of supply and demand 

dynamics, in the major U.S. trading 

hubs. In addition, PRA customers value 

established PRA providers that have a 

proven track record of accurately 

covering a given U.S. commodity 

market. 

A hypothetical monopolist of spotlevel PRA services for refined petroleum 

products, coal, or petrochemicals in the 

United States could profitably impose a 

small but significant non-transitory 

increase in price for its services without 

losing sufficient sales to render the price 

increase unprofitable. Accordingly, 

there are three relevant markets for the 

purposes of analyzing the effects of the 

proposed merger under Section 7 of the 

Clayton Act, 15 U.S.C. 18: (1) Spot-level 

PRA services for refined petroleum 

products in the United States; (2) spotlevel PRA services for coal in the United 

States; and (3) spot-level PRA services 

for petrochemicals in the United States. 

3. Competitive Effects 

Today, S&P and IHSM compete 

vigorously in each of the relevant 

markets, resulting in lower prices and 

increased quality and innovation for 

PRA customers. In each of the relevant 

markets, S&P and IHSM are two of a few 

companies providing PRA services. In 

spot-level PRA services for both refined 

petroleum products and coal in the 

United States, S&P and IHSM are two of 

the three companies that generate the 

vast majority of revenues in the two 

markets. In spot-level PRA services for 

petrochemicals in the United States, 

S&P and IHSM are two of the four 

companies that generate the vast 

majority of revenues. 

For many price assessments (e.g., the 

spot price for jet fuel in Los Angeles), 

one PRA will become the market 

standard, or benchmark, after an initial 

period where PRAs vie for market 

adoption. Once market adoption occurs, 

that PRA’s price assessment becomes 

embedded in the market ecosystem, as 

it is frequently referenced in price 

indexation formulas in supply contracts 

and in the relevant derivative contracts 

traded on major derivatives exchanges 

that are used by market participants to 

hedge their positions. 

Competition among PRAs plays out in 

various forms. As referenced above, 

PRAs initially vie to become the 

benchmark price assessment for many 

commodities. Because benchmark price 

assessments can generate substantial 

subscription revenues, PRAs compete 

fiercely on price, quality, and 

innovation dimensions to gain 

benchmark status. The ongoing energy 

transition to more renewable energy 

sources like biofuels will likely create 

many new benchmark opportunities in 

the near future. Established PRAs (e.g., 

those operated by S&P and IHSM) are 

often best placed to compete for new 

benchmark opportunities. 

Even after one PRA has been chosen 

as the benchmark, substantial 

competition remains between the PRAs 

covering that commodity, including 

competition (i) among the nonbenchmark PRAs to serve as a secondary 

source for many customers, who use the 

secondary source as a ‘‘second look’’ to 

check the accuracy of the benchmark 

provider, and (ii) between the secondary 

source and the benchmark provider 

along both price and quality 

dimensions, resulting from the 

disciplining effect of this second-look, 

accuracy check. 

While it is rare, some commodity 

markets have switched their benchmark 

from one PRA to another because of 

price and/or quality concerns. So, as 

one industry observer put it, ‘‘[d]espite 

the enormous difficulties of displacing 

an incumbent and the extreme rarity of 

switches, rival PRAs have to 

nonetheless invest heavily in marketing 

and in business development staff in 

order to be considered as a credible 

alternative during those rare moments 

when the incumbent stumbles.’’ 2

By eliminating the substantial headto-head competition that exists today 

between S&P and IHSM, the proposed 

merger would result in higher prices 

and decreased quality and innovation 

for PRA customers. Accordingly, the 

proposed merger likely would 

substantially lessen competition in spotlevel PRA services for refined petroleum 

products, coal, and petrochemicals in 

the United States. 

4. Entry and Expansion 

Entry into spot-level PRA services for 

refined petroleum products, coal, or 

petrochemicals in the United States is 

unlikely to be timely, likely, or 

sufficient to prevent the proposed 

merger’s anticompetitive effects. As S&P 

and IHSM executives have recognized, 

barriers to entry into spot-level PRA 

services for refined petroleum products, 

coal, or petrochemicals in the United 

States are high. These barriers to entry 

include (i) the large sunk costs and 

significant other expenditures necessary 

to begin providing commodity price 

assessments, news, and analysis; (ii) 

significant time and expense to build a 

reputation for accurately covering 

commodity markets; and (iii) the 

difficulty of displacing a benchmark 

PRA provider once that PRA’s price 

assessment becomes the benchmark and 

gets embedded in supply and derivative 

contracts. Unsurprisingly, given all of 

these barriers, no significant PRA has 

entered in over 20 years. 

C. Competitive Effects of the Exclusive 

Data License and Non-Compete 

Agreement 

The Complaint alleges that the Data 

License unreasonably restrains trade in 

the sale of retail gas price data. 

In addition to offering spot-level PRA 

services, OPIS LLC also collects and 

resells information related to retail gas 

prices, largely in the United States. 

Since 2009, GasBuddy has been one of 

OPIS LLC’s two main sources of retail 

gas price data. OPIS LLC resells these 

data to customers like retail gas station 

operators or oil refiners, that use the 

data for competitive benchmarking and 

to inform supply and demand decisions. 

In 2012, OPIS LLC learned that 

‘‘GasBuddy [saw] a big opportunity in 

pursuing data sales,’’ and GasBuddy 

notified OPIS LLC in ‘‘October [2012] 

that they [would] cease providing retail 

prices to [OPIS LLC] effective Jan. 1 

[2013].’’ OPIS LLC saw GasBuddy’s plan 

as a significant threat to its retail gas 

price information business because it 

would greatly reduce the number of 

real-time gas prices that OPIS LLC could 

provide, and it would also ‘‘greatly 

intensify competition in the retail 

pricing space.’’ In response, OPIS LLC 

made a ‘‘tactical plan’’ to ‘‘buy[ ] 

GasBuddy’’ to thwart this potential 

competition. 

In March 2013, UCG Holdings LP 

(‘‘UCG’’)—OPIS LLC’s then-owner— 


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followed through with this plan and 

bought GasBuddy in a transaction that 

was below the reportability thresholds 

of the Hart-Scott-Rodino Antitrust 

Improvements Act of 1976, 15 U.S.C. 

18a. 

In 2016, UCG sold OPIS LLC to IHSM, 

but retained its ownership of GasBuddy. 

In order to maximize the value of OPIS 

LLC and prevent GasBuddy from 

competing with OPIS LLC under IHSM’s 

ownership, UCG had OPIS LLC and 

GasBuddy enter into the Data License, 

which (1) gave OPIS LLC exclusive, 

worldwide rights to GasBuddy’s data for 

20 years; (2) required OPIS LLC to pay 

no licensing fees for the data; and (3) 

subjected GasBuddy to a non-compete 

provision that restrained it from 

competing with OPIS LLC or any other 

firm in the sale of retail gas price data 

to commercial customers. OPIS LLC 

summarized the Data License simply as 

a ‘‘long-term agreement where we are 

the sole distributor of GasBuddy data 

and they can’t even sell it themselves.’’ 

Retail gas price data providers 

compete to serve commercial customers 

on both price and quality, and the Data 

License has prevented—and continues 

to prevent—GasBuddy from launching a 

competing retail gas price data service. 

But for the non-compete agreement, 

GasBuddy would be free to enter the 

retail gas price data market and compete 

with OPIS LLC. The non-compete 

provision imposed on GasBuddy is a 

horizontal restraint that stifles 

competition. The Data License, 

therefore, has resulted, and continues to 

result, in higher prices and lower 

quality in the retail gas price data 

market. 

Furthermore, the non-compete 

provision imposed on GasBuddy was 

not reasonably necessary to a separate, 

legitimate transaction or collaboration. 

For example, the 20-year term of the 

non-compete was overbroad in its 

duration. That is, the noncompete was 

longer than necessary to effectuate and 

transfer any intellectual property, 

goodwill, or customer relationships 

associated with UCG’s 2016 sale of OPIS 

LLC. Nothing about IHSM’s 2016 

acquisition of OPIS LLC justified a ban 

on competition between GasBuddy and 

OPIS LLC until 2036. To the contrary, 

the non-compete simply inflated the 

value of OPIS LLC and now protects 

only IHSM’s desire to be free from 

competition in the market for the sale of 

retail gas price data. 

The Data License, therefore, 

unreasonably restrains trade in violation 

of Section 1 of the Sherman Act, 15 

U.S.C. 1. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment 

remedies the anticompetitive effects of 

the proposed merger by requiring S&P 

and IHSM to divest OPIS LLC, CMM, 

and PCW to preserve competition in the 

markets for spot-level PRA services for 

refined petroleum products, coal, and 

petrochemicals in the United States. 

The United States has evaluated News 

Corp. and deemed it a suitable acquirer 

of the businesses, with the incentive, 

acumen, experience, and financial 

ability to successfully operate and grow 

the businesses. 

The proposed Final Judgment also 

addresses the anticompetitive effects of 

the Data License by requiring S&P and 

IHSM to waive the exclusivity and noncompete provisions in the agreement 

with GasBuddy. S&P, IHSM, and OPIS 

LLC are also prohibited, without the 

prior written consent of the United 

States, from entering into, enforcing, 

renewing, or extending the term of any 

similar provisions. The waiver of the 

exclusivity and non-compete provisions 

in the Data License will allow 

GasBuddy to compete in the market for 

sale of retail gas price data. 

A. Divestiture 

Paragraph IV.A of the proposed Final 

Judgment requires S&P and IHSM to 

divest the OPIS LLC, CMM, and PCW 

businesses to News Corp. The 

divestiture must be completed within 30 

calendar days after the entry of the 

Stipulation and Order by the Court, 

unless (1) the United States, in its sole 

discretion, agrees to one or more 

extensions not to exceed 90 calendar 

days in total; or (2) S&P and IHSM have 

not received all of the regulatory 

approvals required for their proposed 

merger, in which case the deadline for 

completion of the divestiture will be 

within 30 calendar days of the receipt 

of all required approvals. The assets 

must be divested in such a way as to 

satisfy the United States, in its sole 

discretion, that the assets can and will 

be operated by News Corp. as a viable, 

ongoing business that can compete 

effectively to provide spot-level PRA 

services for refined petroleum products, 

coal, and petrochemicals in the United 

States. S&P and IHSM must take all 

reasonable steps necessary to 

accomplish the divestiture quickly and 

must cooperate with News Corp. 

B. Divestiture Assets 

The proposed Final Judgment requires 

S&P and IHSM to divest the OPIS, 

CMM, and PCW businesses. 

Specifically, defendants must divest all 

of S&P’s and IHSM’s rights, titles, and 

interests in and to all property and 

assets, tangible and intangible, wherever 

located, (1) owned by OPIS LLC, CMM, 

and PCW, or (2) primarily related to or 

used in connection with, or necessary to 

the operation of, OPIS LLC, CMM, and 

PCW (collectively, the ‘‘Divestiture 

Assets’’). The United States, in its sole 

discretion, will resolve any 

disagreement regarding which property 

and assets, tangible and intangible, are 

Divestiture Assets. 

C. Personnel 

The proposed Final Judgment 

contains provisions intended to 

facilitate News Corp.’s efforts to hire 

certain employees. Specifically, 

Paragraph IV.F of the proposed Final 

Judgment requires S&P and IHSM to 

provide News Corp. and the United 

States with organization charts and 

information relating to these employees 

and to make them available for 

interviews. It also provides that S&P and 

IHSM must not interfere with any 

negotiations by News Corp. to hire these 

employees. 

In addition, for employees who elect 

employment with News Corp., S&P and 

IHSM must waive all non-compete and 

non-disclosure agreements, vest all 

unvested pension and other equity 

rights, provide any pay pro rata, provide 

all compensation and benefits that those 

employees have fully or partially 

accrued, and provide all other benefits 

that the employees would generally be 

provided had those employees 

continued employment with S&P and 

IHSM, including but not limited to any 

retention bonuses or payments. 

Paragraph IV.F further provides that 

S&P and IHSM may not solicit to rehire 

any of those employees who were hired 

by News Corp. within 180 days of the 

date of the divestiture, unless an 

employee is terminated or laid off by 

News Corp. or News Corp. agrees in 

writing that S&P and IHSM may solicit 

to rehire that individual. The nonsolicitation period runs for 12 months 

from the date of divestiture for 

employees hired within 180 days of the 

date of the divestiture. A 12-month nonsolicitation period is necessary in this 

matter because many OPIS LLC, CMM, 

and PCW executives, price reporters, 

and data analysts are integral to the 

successful operation of the Divestiture 

Assets. The ability of PRAs to gather 

trustworthy trading details and market 

intelligence is dependent largely on the 

close industry connections, and the 

detailed understanding of industry 

supply and demand dynamics, of its 

employees. Ensuring that News Corp. 

will have a full complement of 


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experienced PRA employees during its 

first year operating the to-be-divested 

businesses will position News Corp. to 

compete effectively against its PRA 

competitors. Notably, this nonsolicitation provision does not prohibit 

S&P and IHSM from advertising 

employment openings using general 

solicitations or advertisements and rehiring anyone who applies for an 

opening through a general solicitation or 

advertisement. 

D. Customer Contracts, Licensing, and 

Transition Services Agreements 

The proposed Final Judgment will 

facilitate the transfer to News Corp. of 

customers and other contractual 

relationships that are included within 

the Divestiture Assets. Paragraph IV.H 

of the proposed Final Judgment requires 

S&P and IHSM to assign, subcontract, or 

otherwise transfer all contracts, 

agreements, and customer relationships 

(or portions of such contracts, 

agreements, and customer relationships) 

included in the Divestiture Assets, 

including all supply and sales contracts, 

to News Corp. For any contract or 

agreement that requires the consent of 

another party to assign, subcontract, or 

otherwise transfer, S&P and IHSM must 

use best efforts to accomplish the 

assignment, subcontracting, or transfer. 

S&P and IHSM also must not interfere 

with any negotiations between News 

Corp. and a contracting party. 

Paragraph IV.I of the proposed Final 

Judgment requires S&P and IHSM to use 

best efforts to assist News Corp. to 

obtain all necessary licenses, 

registrations, and permits to operate the 

Divestiture Assets, except with respect 

to S&P’s and IHSM’s licenses, 

registrations, or permits to operate as 

benchmark administrators, for which 

News Corp. intends to use the services 

of a third-party benchmark 

administrator. Until News Corp. obtains 

the necessary licenses, registrations, and 

permits, S&P and IHSM must provide 

News Corp. with the benefit of S&P’s 

and IHSM’s licenses, registrations, and 

permits to the full extent permissible by 

law. 

The proposed Final Judgment requires 

S&P and IHSM to provide certain 

transition services to maintain the 

viability and competitiveness of the 

Divestiture Assets during the transition 

to News Corp. Paragraph IV.J of the 

proposed Final Judgment requires S&P 

and IHSM, at News Corp.’s option, to 

enter into a transition services 

agreement for back office, human 

resources, accounting, employee health 

and safety, and information technology 

services and support for a period of up 

to 180 days on terms and conditions 

reasonably related to market conditions 

for the provision of the transition 

services. Any amendment to or 

modification of any provision of a 

contract to provide transition services is 

subject to approval by the United States, 

in its sole discretion. The United States, 

in its sole discretion, may approve one 

or more extensions of any contract for 

transition services, for a total of up to 

an additional 180 days. If News Corp. 

seeks an extension of the term of any 

contract for transition services, 

Defendants must notify the United 

States in writing at least 90 days prior 

to the date the contract expires. News 

Corp. may terminate a contract for 

transition services, or any portion of a 

contract for transition services, without 

cost or penalty at any time upon 

commercially reasonable written notice. 

The employee(s) of S&P and IHSM 

tasked with providing transition 

services must not share any 

competitively sensitive information of 

News Corp. with any other employee of 

S&P and IHSM. 

E. Appointment of Divestiture Trustee 

If S&P and IHSM do not accomplish 

the divestiture within the period 

prescribed in Paragraphs IV.A and IV.B 

of the proposed Final Judgment, Section 

V of the proposed Final Judgment 

provides that the Court will appoint a 

divestiture trustee selected by the 

United States to effect the divestiture. If 

a divestiture trustee is appointed, the 

proposed Final Judgment provides that 

S&P and IHSM must pay all costs and 

expenses of the trustee. The divestiture 

trustee’s commission must be structured 

so as to provide an incentive for the 

trustee based on the price obtained and 

the speed with which the divestiture is 

accomplished. After the divestiture 

trustee’s appointment becomes effective, 

the trustee must provide monthly 

reports to the United States setting forth 

his or her efforts to accomplish the 

divestiture. If the divestiture has not 

been accomplished within 180 days of 

the divestiture trustee’s appointment, 

the United States may make 

recommendations to the Court, which 

will enter such orders as appropriate, in 

order to carry out the purpose of the 

Final Judgment, including by extending 

the trust or the term of the divestiture 

trustee’s appointment. 

F. Required and Prohibited Conduct 

Related to the Data License 

In order to restore competition in the 

retail gas price data market, the 

proposed Final Judgment requires S&P 

and IHSM to waive the exclusivity and 

non-compete provisions contained in 

the Data License and prohibits S&P, 

IHSM, and OPIS LLC from entering into 

similar exclusive licenses or noncompete arrangements. Non-compete 

provisions that are broader than 

necessary to protect a legitimate 

business interest—such as the 20-year 

non-compete on GasBuddy contained in 

the Data License—operate as 

unreasonable horizontal restraints that 

stifle competition. The elimination of 

these provisions in this matter will 

allow GasBuddy, the most likely entrant 

and potential competitor to OPIS LLC in 

providing retail gas price data to 

commercial customers in the United 

States, to bring much-needed 

competition to the space. 

Section IX of the proposed Final 

Judgment requires S&P and IHSM, no 

later than five business days after the 

Court’s entry of the Stipulation and 

Order, to notify GasBuddy that they 

waive the exclusivity and non-compete 

provisions contained in the Data 

License. Paragraph X.A prohibits S&P 

and IHSM, without the prior written 

consent of the United States, in its sole 

discretion, from entering into, enforcing, 

renewing, or extending the term of any 

exclusive licenses for, or non-compete 

provisions relating to, GasBuddy’s data. 

Paragraph X.B prohibits OPIS LLC, 

without the prior written consent of the 

United States, in its sole discretion, 

from entering into, enforcing, renewing, 

or extending the term of any exclusive 

licenses for the provision to OPIS LLC 

of GasBuddy’s data or the U.S. retail gas 

price data of any other third party, or 

non-compete provisions relating to 

GasBuddy’s data or the U.S. retail gas 

price data of any other third-party 

provider. 

G. Enforcement and Expiration of the 

Proposed Final Judgment 

The proposed Final Judgment also 

contains provisions designed to promote 

compliance with and make enforcement 

of the Final Judgment as effective as 

possible. Paragraph XIV.A provides that 

the United States retains and reserves 

all rights to enforce the Final Judgment, 

including the right to seek an order of 

contempt from the Court. Under the 

terms of this paragraph, Defendants 

have agreed that in any civil contempt 

action, any motion to show cause, or 

any similar action brought by the United 

States regarding an alleged violation of 

the Final Judgment, the United States 

may establish the violation and the 

appropriateness of any remedy by a 

preponderance of the evidence and that 

Defendants have waived any argument 

that a different standard of proof should 

apply. This provision aligns the 

standard for compliance with the Final 

Judgment with the standard of proof 


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252 Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Notices 

that applies to the underlying offense 

that the Final Judgment addresses. 

Paragraph XIV.B provides additional 

clarification regarding the interpretation 

of the provisions of the proposed Final 

Judgment. The proposed Final Judgment 

is intended to remedy the loss of 

competition the United States alleges 

would otherwise be harmed by the 

proposed merger and the exclusivity 

and non-compete provisions of the Data 

License. Defendants agree that they will 

abide by the proposed Final Judgment 

and that they may be held in contempt 

of the Court for failing to comply with 

any provision of the proposed Final 

Judgment that is stated specifically and 

in reasonable detail, as interpreted in 

light of this procompetitive purpose. 

Paragraph XIV.C provides that if the 

Court finds in an enforcement 

proceeding that a Defendant has 

violated the Final Judgment, the United 

States may apply to the Court for an 

extension of the Final Judgment, 

together with such other relief as may be 

appropriate. In addition, to compensate 

American taxpayers for any costs 

associated with investigating and 

enforcing violations of the Final 

Judgment, Paragraph XIV.C provides 

that, in any successful effort by the 

United States to enforce the Final 

Judgment against a Defendant, whether 

litigated or resolved before litigation, 

the Defendant must reimburse the 

United States for attorneys’ fees, 

experts’ fees, and other costs incurred in 

connection with that effort to enforce 

this Final Judgment, including the 

investigation of the potential violation. 

Paragraph XIV.D states that the 

United States may file an action against 

a Defendant for violating the Final 

Judgment for up to four years after the 

Final Judgment has expired or been 

terminated. This provision is meant to 

address circumstances such as when 

evidence that a violation of the Final 

Judgment occurred during the term of 

the Final Judgment is not discovered 

until after the Final Judgment has 

expired or been terminated or when 

there is not sufficient time for the 

United States to complete an 

investigation of an alleged violation 

until after the Final Judgment has 

expired or been terminated. This 

provision, therefore, makes clear that, 

for four years after the Final Judgment 

has expired or been terminated, the 

United States may still challenge a 

violation that occurred during the term 

of the Final Judgment. 

Finally, Section XV of the proposed 

Final Judgment provides that the Final 

Judgment will expire ten years from the 

date of its entry, except that after five 

years from the date of its entry, the Final 

Judgment may be terminated upon 

notice by the United States to the Court 

and Defendants that the divestiture has 

been completed and 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 

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 Defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least 60 days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within 60 days of the date 

of publication of this Competitive 

Impact Statement in the Federal 

Register, or the last date of publication 

in a newspaper of the summary of this 

Competitive Impact Statement, 

whichever is later. All comments 

received during this period will be 

considered by the U.S. 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 U.S. 

Department of Justice, Antitrust 

Division’s internet website. 

Written comments should be 

submitted in English to: Owen M. 

Kendler, Chief, Financial Services, 

Fintech, and Banking Section, Antitrust 

Division, United States Department of 

Justice, 450 Fifth St. NW, Suite 4000, 

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 

As an alternative to the proposed 

Final Judgment, the United States 

considered a full trial on the merits 

against Defendants. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against S&P’s merger with 

IHSM and the exclusivity and noncompete provisions of the Data License. 

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 for 

spot-level PRA services for refined 

petroleum products, coal, and 

petrochemicals in the United States and 

promoting competition for retail gas 

price data in the United States. Thus, 

the proposed Final Judgment achieves 

all or substantially all of the relief the 

United States would have obtained 

through litigation but avoids the time, 

expense, and uncertainty of a full trial 

on the merits. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

Under the Clayton Act and APPA, 

proposed Final Judgments, or ‘‘consent 

decrees,’’ in antitrust cases brought by 

the United States are subject to a 60-day 

comment period, after which the Court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

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

making that determination, the Court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) the competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) the impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 


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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 APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations in the government’s 

Complaint, whether the 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 the 

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 

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. ArcherDaniels-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 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

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

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

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

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

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

In its 2004 amendments to the APPA, 

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 § 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 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Dated: December 20, 2021. 

Respectfully submitted, 

For Plaintiff United States of America: 

lllllllllllllllllllll

Travis Chapman, 

United States Department of Justice, 

Antitrust Division, 450 5th St. NW, Suite 

7100, Washington, DC 20530, Telephone: 

202–598–8229, Email: travis.chapman@

usdoj.gov. 

[FR Doc. 2021–28484 Filed 1–3–22; 8:45 am] 

BILLING CODE 4410–11–P 


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