484 Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 

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. 

Date: December 22, 2021. 

Respectfully submitted, 

lllllllllllllllllllll

Kenneth A. Libby, 

Special Attorney, U.S. Department of Justice, 

Antitrust Division, c/o Federal Trade 

Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580, Phone: (202) 326– 

2694, Email: klibby@ftc.gov. 

[FR Doc. 2021–28538 Filed 1–4–22; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Biglari Holdings Inc.; 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

Biglari Holdings Inc., Civil Action 1:21– 

cv–03331. On December 22, 2021, the 

United States filed a Complaint alleging 

that Biglari Holdings Inc. violated the 

premerger notification and waiting 

period requirements of the Hart-ScottRodino Antitrust Improvements Act of 

1976, 15 U.S.C. 18a, in connection with 

the acquisition of voting securities of 

Cracker Barrel Old Country Store Inc. 

The proposed Final Judgment, filed at 

the same time as the Complaint, 

requires Biglari Holdings Inc. to pay a 

civil penalty of $1,374,190. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

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

Office of the Clerk of the United States 

District Court for the 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 in English 

should be directed to Maribeth Petrizzi, 

Special Attorney, United States, c/o 

Federal Trade Commission, 600 

Pennsylvania Avenue NW, CC–8416, 

Washington, DC 20580 or by email to 

bccompliance@ftc.gov. 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

United States District Court for the 

District of Columbia 

United States of America, c/o Department 

of Justice, Washington, DC 20530, Plaintiff, v. 

Biglari Holdings Inc., 17802 IH 10 West, Suite 

400, San Antonio, TX 78257, Defendant. 

Civil Action No. 1:21–cv–03331 

Judge: Tanya S. Chutkan 

Complaint for Civil Penalties for 

Failure To Comply With the Premerger 

Reporting and Waiting Requirements of 

the Hart-Scott Rodino Act 

The United States of America, acting 

under the direction of the Attorney 

General of the United States and at the 

request of the Federal Trade 

Commission, brings this civil antitrust 

action to obtain monetary relief in the 

form of civil penalties against Defendant 

Biglari Holdings Inc. (‘‘Biglari’’). The 

United States alleges as follows: 

Nature of the Action 

1. Biglari violated the notice and 

waiting period requirements of Section 

7A of the Clayton Act, (15 U.S.C. 18a, 

commonly known as the Hart-ScottRodino Antitrust Improvements Act of 

1976 ‘‘HSR Act’’ or ‘‘Act’’), with respect 

to the acquisition of voting securities of 

Cracker Barrel Old Country Store, Inc. 

(‘‘Cracker Barrel’’) in 2020. 

Jurisdiction and Venue 

2. This Court has jurisdiction over the 

subject matter of this action pursuant to 

Section 7A(g) of the Clayton Act, 15 

U.S.C. 18a(g), and 28 U.S.C. 1331, 

1337(a), 1345, and 1355 and over 

Defendant by virtue of Defendant’s 

consent, in the Stipulation relating 

hereto, to the maintenance of this action 

and entry of the Final Judgment in this 

District. 

3. Venue is proper in this District by 

virtue of Defendant’s consent, in the 

Stipulation relating hereto, to the 

maintenance of this action and entry of 

the Final Judgment in this District. 

The Defendant 

4. Biglari is a corporation organized 

under the laws of Indiana with its 

principal office and place of business at 

17802 IH 10 West, Suite 400, San 

Antonio, TX 78257. Biglari is engaged in 

commerce, or in activities affecting 

commerce, within the meaning of 

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

12, and Section 7A(a)(1) of the Clayton 

Act, 15 U.S.C. 18a(a)(1). At all times 

relevant to this complaint, Biglari had 

sales or assets in excess of $18.8 

million. 

Other Entity 

5. Cracker Barrel is a corporation 

organized under the laws of Tennessee 

with its principal place of business at 

305 Hartmann Drive, Lebanon, TN 

37087. Cracker Barrel is engaged in 

commerce, or in activities affecting 

commerce, within the meaning of 

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

12, and Section 7A(a)(1) of the Clayton 

Act, 15 U.S.C. 18a(a)(1). At all times 

relevant to this complaint, Cracker 


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Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 485 

Barrel had sales or assets in excess of 

$188 million. 

The Hart-Scott-Rodino Act and Rules 

6. The HSR Act requires certain 

acquiring persons and certain persons 

whose voting securities or assets are 

acquired to file notifications with the 

Department of Justice and the Federal 

Trade Commission (collectively, the 

‘‘federal antitrust agencies’’) and to 

observe a waiting period before 

consummating certain acquisitions of 

voting securities or assets. 15 U.S.C. 

18a(a) and (b). The notification and 

waiting period requirements apply to 

acquisitions that meet the HSR Act’s 

size of transaction and size of person 

thresholds, which have been adjusted 

annually since 2004. The size of 

transaction threshold is met for 

transactions valued over $50 million, as 

adjusted ($94 million in 2020). In 

addition, there is a separate filing 

requirement for transactions in which 

the acquirer will hold voting securities 

in excess of $100 million, as adjusted 

($188 million in 2020), and for 

transactions in which the acquirer will 

hold voting securities in excess of $500 

million, as adjusted ($940.1 million in 

2020). With respect to the size of person 

thresholds, the HSR Act applies if one 

person involved in the transaction has 

sales or assets in excess of $10 million, 

as adjusted ($18.8 million in 2020), and 

the other person has sales or assets in 

excess of $100 million, as adjusted 

($188 million in 2020). 

7. The HSR Act’s notification and 

waiting period requirements are 

intended to give the federal antitrust 

agencies prior notice of, and 

information about, proposed 

transactions. The waiting period is also 

intended to provide the federal antitrust 

agencies with the opportunity to 

investigate a proposed transaction and 

to determine whether to seek an 

injunction to prevent the consummation 

of a transaction that may violate the 

antitrust laws. 

8. Pursuant to Section (d)(2) of the 

HSR Act, 15 U.S.C. 18a(d)(2), rules were 

promulgated to carry out the purposes 

of the HSR Act. 16 CFR 801–03 (‘‘HSR 

Rules’’). The HSR Rules, among other 

things, define terms contained in the 

HSR Act. 

9. Pursuant to Section 801.13(a)(1) of 

the HSR Rules, 16 CFR 801.13(a)(1), ‘‘all 

voting securities of [an] issuer which 

will be held by the acquiring person 

after the consummation of an 

acquisition’’—including any held before 

the acquisition—are deemed held ‘‘as a 

result of’’ the acquisition at issue. 

10. Pursuant to Sections 801.13(a)(2) 

and 801.10(c)(1) of the HSR Rules, 16 

CFR 801.13(a)(2) and § 801.10(c)(1), the 

value of voting securities already held is 

the market price, defined to be the 

lowest closing price within 45 days 

prior to the subsequent acquisition. 

11. Section 7A(g)(1) of the Clayton 

Act, 15 U.S.C. 18a(g)(1), provides that 

any person, or any officer, director, or 

partner thereof, who fails to comply 

with any provision of the HSR Act is 

liable to the United States for a civil 

penalty for each day during which such 

person is in violation. Pursuant to the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015, Public Law 114–74, § 701 (further 

amending the Federal Civil Penalties 

Inflation Adjustment Act of 1990), the 

dollar amounts of civil penalties listed 

in Federal Trade Commission Rule 1.98, 

16 CFR 1.98, are adjusted annually for 

inflation; the maximum amount of civil 

penalty in effect at the time of Biglari’s 

corrective filing was $43,280 per day. 85 

FR 2014 (January 14, 2020). 

Defendant’s Prior Violation of the HSR 

Act 

12. The violation alleged in this 

complaint is not Biglari’s first violation 

of the HSR Act. On June 8, 2011, Biglari 

acquired Cracker Barrel voting securities 

that resulted in its holdings exceeding 

the adjusted $50 million threshold then 

in effect under the HSR Act. Biglari 

continued to acquire Cracker Barrel 

voting securities through June 13, 2011. 

Although required to do so, Biglari did 

not file under the HSR Act or observe 

the HSR Act’s waiting period prior to 

acquiring Cracker Barrel voting 

securities on June 8, 2011. 

13. Biglari claimed that its 

acquisitions of Cracker Barrel voting 

securities beginning June 8, 2011, were 

exempt from the reporting and waiting 

period requirements of the HSR Act 

under the exemption for certain 

acquisitions made solely for the purpose 

of investment. 15 U.S.C. 18a(c)(9) and 

16 CFR 802.9. On August 26, 2011, 

Biglari filed under the HSR Act to 

increase its holdings of Cracker Barrel 

voting securities beyond the 10% limit 

of the exemption for acquisitions made 

solely for the purpose of investment. 

The waiting period on this filing 

expired on September 22, 2011. 

14. On March 2, 2012, Biglari sought 

to re-characterize its August 2011 filing 

as a corrective filing for its June 2011 

acquisitions of Cracker Barrel voting 

securities. In the explanatory letter 

submitted at that time, Biglari 

committed to seeking advice from HSR 

counsel prior to making future 

acquisitions of any issuer’s voting 

securities that could result in its 

aggregated holdings crossing the $50 

million (as adjusted) threshold. 

15. On September 25, 2012, the 

Department of Justice, acting at the 

request of the Federal Trade 

Commission, filed a complaint for civil 

penalties alleging that Biglari’s 

acquisitions of voting securities of 

Cracker Barrel in June 2011 violated the 

HSR Act. United States. v. Biglari 

Holdings, Inc., Civil Action No. 1:12– 

cv–01586 (D.D.C. 2012). The complaint 

alleged that Biglari did not qualify for 

the exemption for acquisitions made 

solely for the purpose of investment, 15 

U.S.C. 18a(c)(9) and 16 CFR 802.9, 

because Biglari’s intent was inconsistent 

with this exemption. This inconsistent 

intent was evidenced by, among other 

things, a request by Biglari’s CEO for 

two seats on Cracker Barrel’s board of 

directors within days after making the 

June 2011 acquisitions. 

16. At the same time as the complaint 

was filed, the Department of Justice 

filed a stipulation signed by Biglari and 

a proposed final judgment settling the 

case. The final judgment required 

Biglari to pay a civil penalty of $850,000 

for the violations alleged in the 

complaint. On May 30, 2013, the court 

entered the final judgment. 

Defendant’s Current Violation of the 

HSR Act 

17. Prior to March 16, 2020, Biglari 

indirectly held 2,000,000 Cracker Barrel 

voting securities, valued at 

approximately $155.1 million. On 

March 16, 2020, two entities controlled 

by Biglari acquired an additional 55,141 

Cracker Barrel voting securities. When 

aggregated with the voting securities 

already held by Biglari, these 

acquisitions resulted in Biglari holding 

2,055,141 Cracker Barrel voting 

securities, valued at approximately 

$159.4 million. Biglari’s holdings of 

Cracker Barrel voting securities 

therefore exceeded the $50 million 

threshold, which in March 2020 was 

$94 million. Additionally, Biglari and 

Cracker Barrel exceeded the size of 

person thresholds, which in March 2020 

were $18.8 million and $188 million. 

18. The HSR Act required Biglari to 

file a notification with the federal 

antitrust agencies and to observe a 

waiting period before consummating the 

March 16, 2020, acquisitions of Cracker 

Barrel voting securities. Biglari and 

Cracker Barrel each met the HSR Act’s 

size of person test; the acquisitions met 

the HSR Act’s size of transaction test; 

and no exemption applied. 

19. Although required to do so, Biglari 

did not file under the HSR Act or 

observe the HSR Act’s waiting period 


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486 Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 

prior to completing the March 16, 2020, 

acquisitions. 

20. Biglari’s HSR Act violation was 

not discovered by Biglari itself. Rather, 

on June 9, 2020, the Premerger 

Notification Office of the Federal Trade 

Commission emailed counsel for Biglari 

to ask why no filing had been made 

under the HSR Act prior to Biglari’s 

March 16, 2020 acquisitions of Cracker 

Barrel voting securities. 

21. On June 19, 2020, Biglari made a 

corrective filing under the HSR Act. In 

the explanatory letter that accompanied 

Biglari’s corrective filing, Biglari 

acknowledged the violation that began 

on March 16, 2020. Biglari also admitted 

in the explanatory letter that Biglari had 

not sought advice from HSR counsel 

prior to the March 16, 2020 acquisitions, 

contrary to the commitment it made in 

connection with its 2011 HSR Act 

violation. 

22. The HSR waiting period on the 

corrective filing expired on July 20, 

2020. Biglari was in continuous 

violation of the HSR Act from March 16, 

2020, when it acquired the Cracker 

Barrel voting securities valued in excess 

of the HSR Act’s then applicable $94 

million filing threshold through July 20, 

2020, when the waiting period expired 

on its corrective filing. 

Requested Relief 

Wherefore, the United States requests: 

a. That the Court adjudge and decree 

that Defendant’s acquisitions of Cracker 

Barrel voting securities on March 16, 

2020 were violations of the HSR Act, 15 

U.S.C. 18a; and that Defendant was in 

violation of the HSR Act each day from 

March 16, 2020 through July 20, 2020; 

b. that the Court order Defendant to 

pay to the United States an appropriate 

civil penalty as provided by Section 

7A(g)(1) of the Clayton Act, 15 U.S.C. 

18a(g)(1), the Debt Collection 

Improvement Act of 1996, Public Law 

104–134 § 31001(s) (amending the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, 28 U.S.C. 

2461), and the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015, Public Law 114–74, 701 

(further amending the Federal Civil 

Penalties Inflation Adjustment Act of 

1990), and Federal Trade Commission 

Rule 1.98, 16 CFR 1.98, 85 FR 2014 

(January 14, 2020); 

c. that the Court order such other and 

further relief as the Court may deem just 

and proper; and 

d. that the Court award the United 

States its costs of this suit. 

Dated: lllllllllllllllll

FOR THE PLAINTIFF UNITED STATES OF 

AMERICA: 

lllllllllllllllllllll

Jonathan S. Kanter, 

Assistant Attorney General, Department of 

Justice, Antitrust Division, Washington, DC 

20530. 

lllllllllllllllllllll

Maribeth Petrizzi, 

D.C. Bar No. 435204, Special Attorney. 

lllllllllllllllllllll

Kenneth A. Libby, 

Special Attorney. 

lllllllllllllllllllll

Kelly Horne, 

Special Attorney, Federal Trade Commission, 

Washington, DC 20580, (202) 326–2564. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Biglari Holding Inc., Defendant. 

Civil Action No. 1:21–cv–03331 

[Proposed] Judge: Tanya S. Chutkan 

Final Judgment 

Whereas, the United States of 

America filed its Complaint on 

December 22, 2021, alleging that 

Defendant Biglari Holding Inc. violated 

Section 7A of the Clayton Act (15 U.S.C. 

18a, commonly known as the HartScott-Rodino Antitrust Improvements 

Act of 1976 (the ‘‘HSR Act’’)): 

And whereas, the United States and 

Defendant have consented to the entry 

of this Final Judgment without the 

taking of testimony, without trial or 

adjudication of any issue of fact or law, 

and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

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 Defendant under Section 7A of 

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

II. Civil Penalty 

Judgment is hereby entered in this 

matter in favor of the United States and 

against Defendant, and, pursuant to 

Section 7A(g)(1) of the Clayton Act, 15 

U.S.C. 18a(g)(1), the Debt Collection 

Improvement Act of 1996, Public Law 

104–134 § 31001(s) (amending the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, 28 U.S.C. 

2461), the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015, Public Law 114–74 § 701 

(further amending the Federal Civil 

Penalties Inflation Adjustment Act of 

1990), and Federal Trade Commission 

Rule 1.98, 16 CFR 1.98, 86 FR 2541 

(January 13, 2021), Defendant is hereby 

ordered to pay a civil penalty in the 

amount of one million, three hundred 

seventy four thousand, one hundred 

ninety dollars ($1,374,190). Payment of 

the civil penalty ordered hereby must be 

made by wire transfer of funds or 

cashier’s check. If the payment is to be 

made by wire transfer, prior to making 

the transfer, Defendant will contact the 

Budget and Fiscal Section of the 

Antitrust Division’s Executive Office at 

ATR.EXO-Fiscal-Inquiries@usdoj.gov for 

instructions. If the payment is made by 

cashier’s check, the check must be made 

payable to the United States Department 

of Justice and delivered to: Chief, 

Budget & Fiscal Section, Executive 

Office, Antitrust Division, United States 

Department of Justice, Liberty Square 

Building, 450 5th Street NW, Room 

3016, Washington, DC 20530. 

Defendant must pay the full amount 

of the civil penalty within thirty (30) 

days of entry of this Final Judgment. In 

the event of a default or delay in 

payment, interest at the rate of eighteen 

percent (18%) per annum will accrue 

thereon from the date of the default or 

delay to the date of payment. 

III. Costs 

Each party will bear its own costs of 

this action, except as otherwise 

provided in Paragraph IV.C. 

IV. Enforcement of Final Judgment 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including the right to seek an order of 

contempt from the Court. Defendant 

agrees that in a civil contempt action, a 

motion to show cause, or a similar 

action brought by the United States 

regarding an alleged violation of this 

Final Judgment, the United States may 

establish a violation of this Final 

Judgment and the appropriateness of a 

remedy therefor by a preponderance of 

the evidence, and Defendant waives any 

argument that a different standard of 

proof should apply. 

B. Defendant agrees that it may be 

held in contempt of, and that the Court 

may enforce, any provision of this Final 

Judgment that is stated specifically and 

in reasonable detail, whether or not it is 

clear and unambiguous on its face. The 

terms of this Final Judgment should not 

be construed against either party as the 

drafter. 

C. In connection with a successful 

effort by the United States to enforce 

this Final Judgment against Defendant, 

whether litigated or resolved before 

litigation, Defendant agrees to reimburse 

the United States for the fees and 


TKELLEY on DSK125TN23PROD with NOTICE 
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expenses of its attorneys, as well as all 

other costs including experts’ fees, 

incurred in connection with that 

enforcement effort, including in the 

investigation of the potential violation. 

V. Expiration of Final Judgment 

This Final Judgment will expire upon 

payment in full by the Defendant of the 

civil penalty required by Section II of 

this Final Judgment. 

VI. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including making copies 

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’ responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Dated: lllllllllllllll [Court approval subject to the 

procedures of the Antitrust Procedures 

and Penalties Act, 15 U.S.C. 16] 

lllllllllllllllllll

United States District Judge 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Biglari Holdings Inc., Defendant. 

Civil Action No. 1:21–cv–03331 

Judge: Tanya S. Chutkan 

Competitive Impact Statement 

The United States of America 

(‘‘United States’’), under Section 2(b) of 

the Antitrust Procedures and Penalties 

Act, 15 U.S.C. 16(b)–(h) (‘‘APPA’’ or 

‘‘Tunney Act’’), files this Competitive 

Impact Statement related to the 

proposed Final Judgment submitted for 

entry in this civil antitrust proceeding. 

I. Nature and Purpose of the Proceeding 

On December 22, 2021, the United 

States filed a Complaint against 

Defendant Biglari Holdings Inc. 

(‘‘Biglari’’ or ‘‘Defendant’’), related to 

Biglari’s acquisitions of voting securities 

of Cracker Barrel Old Country Store, Inc. 

(‘‘Cracker Barrel’’) in March 2020. The 

Complaint alleges that Biglari violated 

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

18a, commonly known as the HartScott-Rodino Antitrust Improvements 

Act of 1976 (the ‘‘HSR Act’’). The HSR 

Act requires certain acquiring persons 

and certain persons whose voting 

securities or assets are acquired to file 

notifications with the Department of 

Justice and the Federal Trade 

Commission (collectively, the ‘‘federal 

antitrust agencies’’) and to observe a 

waiting period before consummating 

certain acquisitions of voting securities 

or assets. 15 U.S.C. 18a (a) and (b). 

These notification and waiting period 

requirements apply to acquisitions that 

meet the HSR Act’s size of transaction 

and size of person thresholds, which 

have been adjusted annually since 2004. 

The size of transaction threshold is met 

for transactions valued over $50 million, 

as adjusted ($94 million in 2020). In 

addition, there is a separate filing 

requirement for transactions in which 

the acquirer will hold voting securities 

in excess of $100 million, as adjusted 

($188 million in 2020), and for 

transactions in which the acquirer will 

hold voting securities in excess of $500 

million, as adjusted ($940.1 million in 

2020). 

With respect to the size of person 

thresholds, the HSR Act applies if one 

person involved has sales or assets in 

excess of $10 million, as adjusted ($18.8 

million in 2020), and the other person 

has sales or assets in excess of $100 

million, as adjusted ($188 million in 

2020). A key purpose of the notification 

and waiting period requirements is to 

protect consumers and competition 

from potentially anticompetitive 

transactions by providing the federal 

antitrust agencies the opportunity to 

conduct an antitrust review of proposed 

transactions before they are 

consummated. 

The Complaint alleges that Biglari 

acquired voting securities of Cracker 

Barrel without filing the required preacquisition HSR Act notifications with 

the federal antitrust agencies and 

without observing the waiting period. 

Biglari’s acquisition of Cracker Barrel 

voting securities exceeded the $50- 

million statutory threshold, as adjusted, 

($94 million at the time of the 

acquisition) and Biglari and Cracker 

Barrel met the then-applicable statutory 

size of person thresholds (which were 

$18.8 and $188 million, respectively). At the same time the Complaint was 

filed in the present action, the United 

States also filed a Stipulation and Order 

and proposed Final Judgment that 

resolve the allegations made in the 

Complaint. The proposed Final 

Judgment is designed to address the 

violation alleged in the Complaint and 

to penalize Biglari’s HSR Act violations. 

Under the proposed Final Judgment, 

Biglari must pay a civil penalty to the 

United States in the amount of 

$1,374,190. 

The United States and Biglari have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA, unless the 

United States first withdraws its 

consent. Entry of the proposed Final 

Judgment will terminate this action, 

except that the Court will retain 

jurisdiction to construe, modify, or 

enforce the provisions of the proposed 

Final Judgment and punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

The crux of Biglari’s violation is that 

it failed to submit an HSR Act 

notification even though its acquisition 

of Cracker Barrel voting securities 

satisfied the HSR Act filing 

requirements. At all times relevant to 

the Complaint, Biglari had sales or 

assets in excess of $18.8 million. At all 

times relevant to the Complaint, Cracker 

Barrel had sales or assets in excess of 

$188 million. 

On March 16, 2020, two entities 

controlled by Biglari acquired 55,141 

Cracker Barrel voting securities. When 

aggregated with the voting securities 

already held by Biglari, these 

acquisitions resulted in Biglari holding 

2,055,141 Cracker Barrel voting 

securities, valued at approximately 

$159.4 million. Although required to do 

so, Biglari did not file under the HSR 

Act and observe the HSR Act’s waiting 

period prior to completing the March 

16, 2020 acquisitions. 

Biglari made a corrective HSR Act 

filing on June 19, 2020, but Biglari’s 

HSR Act violation was not discovered 

by Biglari itself. Rather, prior to Biglari’s 

corrective filing, the Premerger 

Notification Office of the Federal Trade 

Commission emailed counsel for Biglari 

and asked why Biglari had not made an 

HSR filing before the March 16, 2020, 

acquisitions of Cracker Barrel voting 

securities. The waiting period for that 

corrective filing expired on July 20, 

2020. 

In addition to alleging that Biglari 

failed to file a required HSR 

notification, the Complaint further 

alleges that this was not the first time 

Biglari had failed to observe the HSR 

Act’s notification and waiting period 

requirements. In June 2011, Biglari 

acquired voting securities of Cracker 

Barrel that resulted in its holdings 

exceeding the then-applicable HSR Act 

notification thresholds. In the 

explanatory letter that accompanied 

Biglari’s corrective filing, Biglari 

committed to seeking advice from HSR 

counsel prior to making future 

acquisitions of any issuer’s voting 

securities that could result in its 

aggregated holdings crossing the $50 

million (as adjusted) threshold. 

On September 25, 2012, the 

Department of Justice, acting at the 


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488 Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 

request of the Federal Trade 

Commission, filed a complaint for civil 

penalties alleging that Biglari’s 

acquisitions of voting securities of 

Cracker Barrel in June 2011 violated the 

HSR Act. At the same time as the 

complaint was filed, the Department of 

Justice filed a stipulation signed by 

Biglari and a proposed final judgment 

settling the case. The final judgment 

required Biglari to pay a civil penalty of 

$850,000 for the violations alleged in 

the complaint. On May 30, 2013, the 

court entered the final judgment. See 

United States. v. Biglari Holdings, Inc., 

Civil Action No. 1:12–cv–01586 (D.D.C. 

2012). 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment 

imposes a $1,374,190 civil penalty 

designed to address the violation 

alleged in the Complaint, penalize the 

Defendant, and deter others from 

violating the HSR Act. The United 

States adjusted the penalty downward 

from the maximum permitted under the 

HSR Act because the violation was 

inadvertent, and the Defendant is 

willing to resolve the matter by 

proposed final judgment and thereby 

avoid prolonged investigation and 

litigation. However, the penalty amount 

reflects that this is Defendant’s second 

violation of the HSR Act in connection 

with the same issuer (i.e., Cracker 

Barrel), that Defendant did not make a 

corrective filing until the FTC’s 

Premerger Notification Office notified 

Biglari of its failure to file, and that 

Defendant did not consult HSR counsel 

prior to its acquisitions as it had 

committed to do in connection with its 

2011 HSR Act violation. The penalty 

will not have any adverse effect on 

competition; instead, the relief should 

have a beneficial effect on competition 

because it will deter the Defendant and 

others from failing to properly notify the 

federal antitrust agencies of future 

acquisitions, in accordance with the 

law. 

IV. Remedies Available to Potential 

Private Litigants 

There is no private antitrust action for 

HSR Act violations; therefore, entry of 

the proposed Final Judgment will 

neither impair nor assist the bringing of 

any private antitrust action. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and the Defendant 

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 sixty (60) days of 

the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement, whichever is later. All 

comments received during this period 

will be considered by the United States, 

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: Maribeth 

Petrizzi, Special Attorney, United 

States, c/o Federal Trade Commission, 

600 Pennsylvania Avenue NW, CC– 

8416, Washington, DC 20580, 

bccompliance@ftc.gov. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against the Defendant. The United 

States is satisfied, however, that the 

proposed relief is an appropriate 

remedy in this matter. Given the facts of 

this case, including the Defendant’s 

acknowledgment of the violations and 

willingness to promptly settle this 

matter, the United States is satisfied that 

the proposed civil penalty is sufficient 

to address the violation alleged in the 

Complaint and to deter violations by 

similarly situated entities in the future, 

without 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 

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 mechanism 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 


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Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 489 

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 consent 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 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 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. 

Date: December 22, 2021. 

Respectfully submitted, 

/s/ Kenneth A. Libby, 

Kenneth A. Libby, 

Special Attorney, U.S. Department of Justice, 

Antitrust Division, c/o Federal Trade 

Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580, Phone: (202) 326– 

2694, Email: klibby@ftc.gov. 

[FR Doc. 2021–28539 Filed 1–4–22; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed First 

Amendment To Consent Decree Under 

the Clean Water Act 

On December 29, 2021, the 

Department of Justice lodged a proposed 

First Amendment to Consent Decree 

with the United States District Court for 

the Southern District of Ohio in the 

lawsuit entitled United States and the 

State of Ohio v. City of Middletown, 

Ohio, Civil Action No. 18–cv–90. 

The Complaint in the United States’ 

lawsuit sought civil penalties and 

injunctive relief for alleged violations of 

the Clean Water Act (‘‘CWA’’) relating to 

the City of Middletown’s sewer system 

in Middletown, Ohio. The Complaint 

alleged that: (1) Various discharges from 

Middletown’s wastewater treatment 

plant violated the CWA by exceeding 

the effluent limitations in Middletown’s 

permits; (2) Middletown’s combined 

sewer overflow discharges violated the 

CWA by impairing downstream uses in 

the Great Miami River; (3) Middletown 

illegally discharged untreated sewage 

from its combined sewer overflow 

outfalls during dry weather; and (4) 

Middletown violated the CWA by 

failing to monitor and/or report the 

monitoring results for its outfalls as 

required. 

A Consent Decree resolving the claims 

in the Complaint was entered by the 

Court on April 12, 2018. The Consent 

Decree requires that Middletown, 

among other things, implement a Long 

Term Control Plan to reduce the 

discharges of combined stormwater and 

sanitary sewage from the portion of 

Middletown’s sewer system known as 


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