Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Notices 7159 

an Initial Determination on Violation of 

Section 337. The ALJ also issued a 

Recommended Determination on 

remedy and bonding should a violation 

be found in the above-captioned 

investigation. The Commission is 

soliciting submissions on public interest 

issues raised by the recommended relief 

should the Commission find a violation. 

This notice is soliciting comments from 

the public and interested government 

agencies only. 

FOR FURTHER INFORMATION CONTACT: 

Lynde Herzbach, Esq., Office of the 

General Counsel, U.S. International 

Trade Commission, 500 E Street SW, 

Washington, DC 20436, telephone (202) 

205–3228. Copies of non-confidential 

documents filed in connection with this 

investigation may be viewed on the 

Commission’s electronic docket (EDIS) 

at https://edis.usitc.gov. For help 

accessing EDIS, please email 

EDIS3Help@usitc.gov. General 

information concerning the Commission 

may also be obtained by accessing its 

internet server at https://www.usitc.gov. 

Hearing-impaired persons are advised 

that information on this matter can be 

obtained by contacting the 

Commission’s TDD terminal on (202) 

205–1810. 

SUPPLEMENTARY INFORMATION: Section 

337 of the Tariff Act of 1930 provides 

that, if the Commission finds a 

violation, it shall exclude the articles 

concerned from the United States 

unless, after considering the effect of 

such exclusion upon the public health 

and welfare, competitive conditions in 

the United States economy, the 

production of like or directly 

competitive articles in the United 

States, and United States consumers, it 

finds that such articles should not be 

excluded from entry. (19 U.S.C. 

1337(d)(1)). 

The Commission is soliciting 

submissions on public interest issues 

raised by the recommended relief 

should the Commission find a violation, 

specifically, a general exclusion order 

directed to certain passive optical 

network equipment imported, sold for 

importation, and/or sold after 

importation that infringe claims 1 and 

12–14 of U.S. Patent No. 7,333,511 or 

claims 1 and 3 of U.S. Patent No. 

7,558,260. Parties are to file public 

interest submissions pursuant to 19 CFR 

210.50(a)(4). 

The Commission is interested in 

further development of the record on 

the public interest in this investigation. 

Accordingly, members of the public and 

interested government agencies are 

invited to file submissions of no more 

than five (5) pages, inclusive of 

attachments, concerning the public 

interest in light of the ALJ’s 

Recommended Determination on 

Remedy and Bonding issued in this 

investigation on December 19, 2024. 

Comments should address whether 

issuance of the recommended remedial 

orders in this investigation, should the 

Commission find a violation, would 

affect the public health and welfare in 

the United States, competitive 

conditions in the United States 

economy, the production of like or 

directly competitive articles in the 

United States, or United States 

consumers. 

In particular, the Commission is 

interested in comments that: 

(i) explain how the articles potentially 

subject to the recommended remedial 

orders are used in the United States; 

(ii) identify any public health, safety, 

or welfare concerns in the United States 

relating to the recommended orders; 

(iii) identify like or directly 

competitive articles that complainant, 

its licensees, or third parties make in the 

United States which could replace the 

subject articles if they were to be 

excluded; 

(iv) indicate whether complainant, 

complainant’s licensees, and/or thirdparty suppliers have the capacity to 

replace the volume of articles 

potentially subject to the recommended 

orders within a commercially 

reasonable time; and 

(v) explain how the recommended 

orders would impact consumers in the 

United States. 

Written submissions must be filed no 

later than by close of business on 

February 11, 2025. 

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–1384’’) in a prominent place on 

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

Handbook for Electronic Filing 

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

secretary/fed_reg_notices/rules/ 

handbook_on_electronic_filing.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. Any non-party 

wishing to submit comments containing 

confidential information must serve 

those comments on the parties to the 

investigation pursuant to the applicable 

Administrative Protective Order. A 

redacted non-confidential version of the 

document must also be filed 

simultaneously with any confidential 

filing and must be served in accordance 

with Commission Rule 210.4(f)(7)(ii)(A) 

(19 CFR 210.4(f)(7)(ii)(A)). 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 in part 210 of the Commission’s 

Rules of Practice and Procedure (19 CFR 

part 210). 

By order of the Commission. 

Issued: January 14, 2025. 

Lisa Barton, 

Secretary to the Commission. 

[FR Doc. 2025–01307 Filed 1–17–25; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States of America v. XCL 

Resources Holdings, LLC, Verdun Oil 

Company II, LLC, and EP Energy LLC; 

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 


ddrumheller on DSK120RN23PROD with NOTICES1
7160 Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Notices 

Columbia in United States of America v. 

XCL Resources Holdings, LLC, Verdun 

Oil Company II, LLC, and EP Energy 

LLC, Civil Action No. 1:25-cv-00041. On 

January 7, 2025, the United States filed 

a Complaint alleging that XCL 

Resources Holdings, LLC (‘‘XCL’’), 

Verdun Oil Company II, LLC 

(‘‘Verdun’’), and EP Energy LLC (‘‘EP 

Energy’’) (together ‘‘Defendants’’) 

violated the notice and waiting period 

requirements of section 7A of the 

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

known as the Hart-Scott-Rodino 

Antitrust Improvements Act of 1976 

(‘‘HSR Act’’ or ‘‘Act’’) by transferring 

beneficial ownership of EP Energy to 

XCL and Verdun during the waiting 

period, which constitutes gun jumping. 

The Proposed Final Judgment, filed at 

the same time as the Complaint, 

requires: (i) XCL and Verdun jointly and 

severally to pay a civil penalty in the 

amount of $2,842,188.50, and EP Energy 

to pay a civil penalty in the amount of 

$2,842,188.50 within 30 days of entry of 

the Final Judgment; (ii) Defendants to 

refrain from certain conduct as laid out 

in the Final Judgment; and (iii) 

Defendants to design, maintain, and 

operate a compliance program to ensure 

compliance with the Final Judgment 

and the Antitrust Laws, and certify 

observance of these compliance 

provisions to the United States within 

60 days of entry of the Final Judgment. 

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, 

Deputy Director of Civil Enforcement 

Operations. 

United States District Court for the 

District of Columbia 

United States of America, c/o Department 

of Justice, Washington, DC 20530 Plaintiff, v. 

XCL RESOURCES HOLDINGS, LLC, 600 N. 

Shepherd Drive, Suite 390, Houston, TX 

77007; VERDUN OIL COMPANY II LLC, 945 

Bunker Hill Road, Suite 1300, Houston, TX 

77024 and EP ENERGY LLC, 945 Bunker Hill 

Road, Suite 100, Houston, TX 77024 

Defendants. Civil Action No. 1:25-cv-00041. 

Complaint for Civil Penalties and 

Equitable Relief for Violations of the 

Hart–Scott–Rodino Act 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action for equitable and 

monetary relief in the form of civil 

penalties against the Defendants XCL 

Resources Holdings, LLC 

(‘‘XCL’’),Verdun Oil Company II, LLC 

(‘‘Verdun’’), and EP Energy LLC (‘‘EP’’), 

and alleges: 

Nature of the Action 

1. This case involves violations of 

federal antitrust obligations under 

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

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

Act of 1976 (‘‘HSR Act’’). Under the 

HSR Act, both parties must make a premerger notification filing to the federal 

antitrust agencies and observe the 

corresponding waiting-period 

obligations before transferring any 

ownership or control of the to-beacquired business to the acquirer. This 

waiting period ensures that the parties 

to a proposed transaction remain as 

separate, independent entities during 

the pendency of the antitrust review. 

This suspensory waiting period allows 

the enforcement agencies the 

opportunity to investigate the 

transaction and, where applicable, 

pursue an enforcement action, before 

consolidation of the businesses and 

assets occurs. 

2. In this matter, Verdun and EP 

entered a proposed transaction that was 

subject to the HSR Act’s notification and 

waiting-period requirements, and each 

Defendant made the required pre-merger 

notification filing with the antitrust 

agencies. The Defendants failed, 

however, to satisfy their waiting-period 

obligations. Instead, upon executing the 

transaction agreement, EP allowed 

Verdun and its sister company, XCL, to 

assume operational and decisionmaking control over significant aspects 

of EP’s day-to-day business operations. 

This was no mere technical violation; 

the Defendants’ conduct effectively 

allowed one competitor to acquire 

beneficial ownership, including control 

over key competitive decisions of the 

other, before the transaction closed, 

which is precisely what the HSR Act 

prohibits. 

3. Pursuant to a Membership Interest 

Purchase Agreement dated July 26, 2021 

(‘‘Purchase Agreement’’), Verdun agreed 

to acquire EP, a company engaged in 

crude oil production in the Uinta Basin 

area of Utah and in the Eagle Ford area 

of Texas. Verdun is under common 

management with XCL, and both 

companies are engaged in crude oil 

production: Verdun in the Eagle Ford 

area and XCL in the Uinta Basin. The 

purchase price for the proposed 

transaction was approximately $1.4 

billion. As part of the transaction, EP’s 

operations in the Uinta Basin were to be 

transferred to XCL, and XCL would pay 

the portion of the purchase price 

attributed to the Uinta Basin assets. 

4. The proposed transaction triggered 

a filing obligation under the HSR Act. 

As such, the Defendants were required 

to make premerger notification filings 

with the Federal Trade Commission 

(‘‘FTC’’) and Department of Justice and 

to observe the prescribed waiting 

periods before transferring ownership of 

EP to XCL and Verdun. The Defendants’ 

parent entities made premerger 

notification filings for the Defendants’ 

proposed transaction as required by the 

HSR Act. After receiving the premerger 

notification filings, the FTC investigated 

the proposed transaction and ultimately 

obtained a consent agreement 

addressing the FTC’s concerns about the 

impact of the transaction on 

competition in the market for the 

development, production, and sale of 

waxy crude oil in the Uinta Basin area 

of Utah. The consent agreement was 

entered on March 25, 2022, and 

required the Defendants to divest all of 

EP’s Utah operations to a qualified 

third-party operator, Crescent Energy, to 

remedy the potential lessening of 

competition in the alleged crude oil 

market. 

5. The HSR Act’s waiting-period 

obligation for this transaction went into 

effect on July 26, 2021, the date the 

Defendants executed the Purchase 

Agreement, and continued through 

March 25, 2022, the date the FTC 

accepted the consent agreement and 

granted termination of the waiting 

period. 

6. For a portion of this waiting period, 

however, the Defendants disregarded 

their obligations under the HSR Act and 


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Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Notices 7161 

transferred significant operational 

control over EP’s ordinary-course 

business to XCL and Verdun. This 

conduct violates the HSR Act and is 

often referred to as ‘‘gun jumping’’ or a 

‘‘gun-jumping violation.’’ 

7. Specifically, the Purchase 

Agreement provided for the immediate 

transfer of control over key aspects of 

EP’s business to XCL and Verdun, 

including granting XCL and Verdun 

approval rights over EP’s ongoing and 

planned crude oil development and 

production activities and many of EP’s 

ordinary-course expenditures. Once the 

Purchase Agreement was signed, by 

virtue of these approval rights, XCL and 

Verdun quickly began gun jumping by 

exercising operating control over 

significant aspects of EP’s business. 

Indeed, XCL put an immediate halt to 

EP’s new well-drilling activities, so that 

XCL—not EP—could control the 

development and production plans for 

EP’s drilling assets moving forward. 

XCL halted EP’s new oil-drilling 

activities for several weeks, from 

approximately July 26, 2021, to 

approximately August 16, 2021. On 

approximately August 17, 2021, after 

the Defendants realized that the FTC 

would investigate the transaction, XCL 

and Verdun allowed EP to resume its 

own well-drilling and planning 

activities. 

8. The Defendants’ unlawful gun 

jumping allowed competitors to 

coordinate their activities. Among other 

things, XCL’s temporary halting of EP’s 

development activities contributed to 

EP having crude oil supply shortages in 

September and October 2021 at a time 

when the United States was 

experiencing significant supply 

shortages and spiking crude oil prices 

due to sudden demand increases as 

COVID–19 restrictions eased. The 

Defendants anticipated EP’s potential 

supply shortages while negotiating the 

Purchase Agreement, which specifically 

provided that XCL and Verdun—not 

EP—would bear all costs associated 

with EP’s supply shortages. XCL and 

EP—direct competitors in the 

marketplace—then worked in concert to 

supply EP’s customers in satisfaction of 

EP’s customer supply commitments. 

During this period, EP employees 

effectively reported to their XCL 

counterparts and provided XCL 

employees with details on customer 

contracts, supply volumes, and pricing 

terms. XCL employees also coordinated 

directly with EP’s customers to discuss 

EP’s supply shortage and to arrange for 

alternative delivery to the customer, 

which XCL made either from its own 

supplies or from purchases it made on 

the spot market, to fulfill EP’s 

contractual commitments to the 

customers. EP’s customers began 

contacting XCL directly—sometimes 

excluding EP altogether—to discuss EP’s 

supply and delivery commitments to 

each customer under the relevant EP 

supply contract. 

9. The Purchase Agreement also 

required EP to submit all expenditures 

above $250,000 for XCL’s or Verdun’s 

review and approval. These approval 

requirements applied to many of EP’s 

ordinary-course expenditures, and 

effectively transferred control over a 

significant portion of EP’s day-to-day 

operations to XCL and Verdun. Further, 

XCL and Verdun received and approved 

expenditure requests from EP falling 

well below the $250,000 threshold 

outlined in the Purchase Agreement. 

10. XCL also required changes to 

certain of EP’s ordinary-course business 

operations, such as EP’s well-drilling 

designs and its leasing and renewal 

activities. EP also gave XCL almostunfettered access to EP’s competitively 

sensitive business information— 

including EP’s site design plans, 

customer contract and pricing 

information, and daily supply and 

production reports—in the months after 

the parties signed the Purchase 

Agreement. 

11. Verdun also coordinated with EP 

on EP’s contract negotiations with 

certain customers in the Eagle Ford 

production area. Specifically, Verdun 

observed that certain EP contracts 

included below-market prices and 

directed EP to raise them in the next 

contracting period. EP complied. 

12. The illegal conduct detailed above 

lasted through October 27, 2021, when 

the Defendants executed an amendment 

to the Purchase Agreement, which 

allowed EP to operate independently 

once again and in the ordinary course of 

business, without XCL’s or Verdun’s 

control over its day-to-day operations. 

Around this time, XCL and Verdun and 

EP also stopped coordinating on 

customer supply and pricing and ceased 

exchanging competitively sensitive 

information. 

13. The Defendants’ transfer of 

operational control over key aspects of 

EP’s business to XCL and Verdun during 

the HSR waiting period was a transfer 

of beneficial ownership that constitutes 

a gun-jumping violation of the HSR Act. 

The Defendants were in violation of the 

HSR Act from when the Purchase 

Agreement was signed, on July 26, 2021, 

until the Purchase Agreement was 

amended, on October 27, 2021, a period 

of 94 days. 

Jurisdiction, Venue, and Interstate 

Commerce 

14. The United States brings this 

action under Section 7A of the Clayton 

Act, 15 U.S.C. 18a, to recover civil 

penalties for the violation of the HSR 

Act. 

15. This Court has jurisdiction over 

the subject matter of this action under 

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

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

1337(a), 1345, and 1355. 

16. The Defendants are engaged in— 

and their activities described herein 

substantially affected—interstate 

commerce. 

17. The Defendants have consented to 

the personal jurisdiction and venue in 

the District of Columbia for purposes of 

this action. 

The Defendants 

18. Defendant XCL Resources 

Holdings, LLC is a limited liability 

company organized, existing, and doing 

business under, and by virtue of, the 

laws of the State of Delaware, with its 

office and principal place of business at 

600 N. Shephard Drive, Suite 390 in 

Houston, Texas. 

19. Defendant Verdun Oil Company 

II, LLC is a limited liability company 

organized, existing, and doing business 

under, and by virtue of, the laws of the 

State of Texas, with its office and 

principal place of business at 945 

Bunker Hill Road, Suite 1300 in 

Houston, Texas. 

20. Defendant EP Energy LLC is a 

limited liability company organized, 

existing, and doing business under, and 

by virtue of, the laws of the State of 

Delaware, with its office and principal 

place of business at 945 Bunker Hill 

Road, Suite 100 in Houston, Texas. 

21. All Defendants are engaged, 

among other things, in the development, 

production, and sale of crude oil in the 

United States. 

The HSR Act and Rules 

22. 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 FTC 

(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). Of 

relevance here, the notice and waiting 

requirements apply if, as a result of the 

acquisition, the acquiring person will 

‘‘hold’’ assets or voting securities above 

the HSR Act’s size of transaction 

threshold (which was $368.0 million at 

all times relevant to this complaint). 


ddrumheller on DSK120RN23PROD with NOTICES1
7162 Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Notices 

23. Under the HSR Act, the FTC 

promulgated rules defining relevant 

terms and specifying what information 

must be included in the required 

notification. 16 CFR 801–803. The rules 

define ‘‘hold’’ to mean ‘‘beneficial 

ownership, whether direct, or indirect 

through fiduciaries, agents, controlled 

entities or other means.’’ 16 CFR 

801.1(c). While the existence of 

beneficial ownership will depend on the 

facts in a particular case, practical 

indicia include controlling ordinarycourse business decisions, assuming or 

rejecting contractual obligations, 

obtaining competitively sensitive 

information, and partaking in financial 

gains and losses. 

24. Through the HSR Act, Congress 

intended to provide the federal antitrust 

agencies prior notice of, and 

information about, proposed 

transactions. The HSR Act created a 

process for premerger notification and 

investigation that does not require 

assessing beforehand whether the 

proposed transaction is anticompetitive 

or illegal under the antitrust laws. 

Congress created a suspensory waiting 

period to provide the federal antitrust 

agencies with the opportunity to 

investigate a proposed transaction and 

to determine whether to seek an 

injunction to prevent its consummation 

if the investigation shows that the 

proposed transaction may violate the 

antitrust laws. Gun-jumping violations 

deprive the enforcement agencies of this 

opportunity to investigate a transaction 

and seek an injunction before a 

transaction is completed, after which it 

may be difficult to completely restore 

competition and the acquired company 

to their pre-transaction states. 

The Purchase Agreement 

25. Pursuant to the Purchase 

Agreement, XCL and Verdun agreed to 

acquire EP for $1.445 billion, with 

possible adjustments for specified 

conditions. XCL and Verdun each 

contributed more than $368 million of 

the purchase price, triggering notice and 

waiting requirements under the HSR 

Act for both companies. 

26. XCL and Verdun’s bid to acquire 

EP’s business was contingent on XCL 

and Verdun securing immediate 

approval rights over EP’s ordinarycourse development activities; the 

Defendants memorialized these rights in 

the Purchase Agreement they signed. As 

XCL executives noted during the 

Purchase Agreement negotiations, 

‘‘[XCL’s parent] is providing a deposit 

that more than offsets potential damages 

from 60 days of delayed production and 

initial operation planning, we moved 

materially on price and included this 

term in our initial offer sheet, we are 

unable to move off this point.’’ 

(emphasis in original). 

27. The Purchase Agreement 

restricted EP’s discretion to conduct its 

ordinary-course business activities 

during the period between the signing of 

the Purchase Agreement and the closing 

of the transaction, a period that 

included the full duration of the HSR 

Act’s applicable waiting period. 

28. For example, EP committed ‘‘not 

to propose, agree to, or commence any 

individual operation on the Assets 

anticipated to cost in excess of Two 

Hundred Fifty Thousand ($250,000),’’ 

unless XCL or Verdun first expressly 

approved the activity, without any 

exception for ordinary-course 

transactions. 

29. Further, for the numerous crude 

oil wells EP was developing, EP would 

‘‘not conduct any operation in 

connection with’’ those plans ‘‘unless 

such operations are expressly permitted 

pursuant to’’ the Purchase Agreement 

‘‘or are otherwise approved by 

Purchaser.’’ 

30. The Purchase Agreement thus 

prevented EP from continuing with its 

crude oil well-development activities 

without XCL’s or Verdun’s approval, 

giving XCL and Verdun control to stop 

or delay EP from moving forward with 

its production plans in the normal 

course of its business. 

31. XCL or Verdun had ‘‘sole 

discretion’’ whether to approve any 

actions that were otherwise prohibited 

by the Purchase Agreement, and the 

Purchase Agreement set forth 

procedures for granting XCL’s or 

Verdun’s approval. 

32. In short, these contractual 

provisions allowed one competitor to 

control the other’s ordinary-course 

business activities relating to crude oil 

production before the transaction 

closed—a paradigmatic case of gun 

jumping through transfer of beneficial 

ownership. All this occurred during a 

time when the U.S. market as a whole 

was facing significant supply shortages 

and multi-year highs in oil prices, 

resulting in Americans paying 

skyrocketing prices at the pump. 

33. The parties also agreed to shift to 

XCL and Verdun the financial risk for 

certain EP business activity, which 

constitutes further evidence of gun 

jumping. The Defendants anticipated 

that the Purchase Agreement restrictions 

on EP’s activities would result in crude 

supply shortages for EP and its 

customers in the ensuing months and 

could cause EP to breach existing 

obligations. The Purchase Agreement 

therefore required XCL and Verdun to 

bear all financial risk and liabilities 

associated with these provisions and 

shifted to XCL and Verdun the financial 

ramifications of these changes and 

delays to EP’s development activities. 

The Purchase Agreement provided that 

‘‘failure of Purchaser to approve such 

matters shall obligate Purchaser to bear 

all risk and liability for any breach or 

non-compliance under the Assets as a 

result of Purchaser’s acts or omissions 

with respect to such failure to approve.’’ 

34. The Purchase Agreement was 

eventually amended on October 27, 

2021. Among other things, the 

amendment effectively allowed EP to 

resume its well-development activities 

in the ordinary course of business 

without requiring XCL’s or Verdun’s 

consent. 

The Defendants’ Unlawful Conduct 

Following the Merger Agreement 

35. This matter presents a 

straightforward example of unlawful 

gun jumping where two companies 

agree to coordinate their activities 

before a transaction is permitted to close 

under the HSR Act. The Purchase 

Agreement created the contractual 

obligation for EP to transfer operating 

control over key portions of its crude oil 

production business to XCL and 

Verdun, and the Defendants’ actions in 

the weeks and months after they 

executed the Purchase Agreement 

demonstrated that such a transfer of 

control from EP to XCL and Verdun did 

indeed take place. XCL and Verdun thus 

gained beneficial ownership of EP’s 

assets in direct violation of the HSR 

Act’s waiting period requirements. 

XCL Required Ep To Suspend its WellCompletion Activities 

36. The Defendants’ actions abruptly 

halted EP’s crude oil development 

activities. Indeed, upon signing the 

Purchase Agreement, XCL immediately 

stopped EP’s ordinary-course welldrilling design and planning activities 

in Utah. XCL did this so that it—not 

EP—could take over the management of 

EP’s development plans and designs 

moving forward. 

37. An email sent the afternoon the 

Purchase Agreement was signed on July 

26, 2021, from an EP executive to his 

counterparts at XCL, illustrates the 

Defendants’ intentions to transfer 

operational control of EP to XCL and 

Verdun: ‘‘Congratulations on getting the 

Purchase Agreement signed and deposit 

sent! Now we can move forward with 

your requested changes. Please confirm 

that you approve the following: Shut 

down all currently planned fracs until 

after the close. Per the attached 

spreadsheet, by shutting down these 

fracs we have sold more oil than we will 


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Federal Register / Vol. 90, No. 12 / Tuesday, January 21, 2025 / Notices 7163 

be able to deliver and XCL accepts the 

contractual and reputational 

ramifications of not delivering these 

barrels.’’ 

38. XCL responded in the affirmative. 

‘‘XCL Confirmations of EP Operational 

Changes . . . . We confirm the request 

to suspend any operations related to 

completions between sign to close.’’ 

(emphasis in original). 

39. In the days after the Defendants 

signed the Purchase Agreement, XCL 

employees began actively supervising 

EP’s well-design and planning activities, 

including by requiring changes to EP’s 

site design plans and vendor-selection 

process. XCL employed a ‘‘boots on the 

ground’’ approach to taking over EP’s 

operations and design planning, with EP 

employees effectively reporting to their 

XCL counterparts. 

40. For instance, in an August 2, 2021, 

email from an XCL Vice-President to 

EP’s Chief Operating Officer, the XCL 

executive states: ‘‘Thanks for taking my 

call today, and working through 

operational planning with us. As 

discussed, we would like to complete 

the Moose Hollow and Bluebell wells as 

a combined team, where XCL leads on 

frac design and vendor selection, and EP 

teams with XCL to execute the 

operations.’’ 

41. The Defendants understood that 

XCL’s halting of EP’s ordinary-course 

well-development projects would lead 

to, or contribute to, production 

shortfalls for EP and its customers in 

following months, given the delay in 

EP’s ability to drill the new wells. In 

exchange, XCL agreed to assume the 

contractual and reputational 

ramifications of these shortfalls. 

42. The stoppages to EP’s ordinarycourse well-drilling activities lasted for 

several weeks—until approximately 

August 17, 2021—and ended only after 

the Defendants realized that the FTC 

would conduct a full investigation into 

the competitive effects of their 

transaction. At that point, XCL allowed 

EP to resume its well-drilling 

activities—though EP would continue to 

seek XCL’s review and approval for its 

plans and related expenditures, as 

required by the Purchase Agreement. 

XCL Coordinated With EP on EP’s 

Customer Contracts, Customer 

Relationships, and Customer Deliveries 

43. The Defendants’ unlawful gun 

jumping delayed introduction of 

increased supply in the market. EP 

faced supply shortages in the Uinta 

Basin in the months of September and 

October 2021 due to XCL halting EP’s 

well-completion activities in the weeks 

following the Purchase Agreement 

signing. XCL and EP discussed the 

shortages and XCL’s resulting financial 

obligation during the subsequent 

months. For instance, in an October 

2021, email exchange between EP and 

XCL, an EP employee wrote, ‘‘However, 

as XCL has been directing EP Energy’s 

completions and has agreed to fulfill EP 

Energy’s contractual commitments 

between sign and close any shortfall [in 

EP’s ability to fulfil its supply 

commitments] would be due to XCL’s 

decisions.’’ 

44. To this end, XCL began conferring 

and coordinating with EP about EP’s 

production volumes, customer 

contracts, and supply obligations. 

45. XCL requested and received from 

EP detailed information about EP’s 

actual and projected production 

volumes, delivery capabilities, and 

customer supply obligations—including 

details about the customers’ contracted 

volumes and pricing terms. 

46. XCL then proceeded to coordinate 

with EP to manage and direct EP’s 

fulfillment of its contractual obligations 

to its customers, with XCL covering the 

volume shortages under EP’s customer 

agreements. 

47. XCL also engaged directly with 

EP’s customers about EP’s supply and 

delivery obligations, providing EP’s 

customers with detailed information 

about EP’s volume projections, supply 

shortages, and ability to meet its supply 

obligations in current and future 

periods. 

48. XCL held itself out to EP’s 

customers, in words or substance, as 

coordinating EP’s supply and deliveries 

in the Uinta Basin, and EP’s customers 

began contacting XCL directly about 

their EP contracts, EP’s volume 

projections, and the delivery schedules 

pursuant to the contracts. 

49. For example, in an email exchange 

between an EP customer and XCL from 

September 2021, the EP customer asks 

XCL to confirm EP’s supply forecast: ‘‘It 

was good catching up with you this 

week. Below is the forecast from EP 

Energy. Let me know if you think they’ll 

actually have these contracted volumes 

for October or if we’ll need to do 

another spot deal similar to September.’’ 

The XCL employee responded, ‘‘I do not 

have an updated EP forecast for October 

yet but am told it will come in the next 

day or two. Once that’s in hand we’ll be 

able to build a plan for October.’’ 

50. Another example, from August 

2021, shows an exchange between XCL 

and a different EP customer, where the 

EP customer asks XCL to provide EP’s 

volume forecast for the following 

month: ‘‘Just wondering if you have a 

feel yet for what Sept will look like (EP 

volume)? Also, just to confirm, we’re 

good with the contract volumes for Q4, 

correct?’’ The XCL employee responds, 

‘‘I do have a feel for sept, we have a 

planning meeting in the AM to finalize, 

but directionally looking better than 

planned. Potentially no cuts, probably 

more likely in the 500bpd range, but 

will definitely get you a communication 

on that tomorrow once I get 

confirmation. As for Q4, that too is still 

a little up in the air as we finalize the 

development plan and I’ll share more as 

soon as I can. We are planning on 

moving things forward to fill 

commitments in full, just again needing 

to confirm all of that.’’ 

51. XCL coordinated with EP and EP’s 

customers regarding EP’s supply and 

delivery volumes from approximately 

August 2021 through approximately 

October 2021. This coordination ended 

by November 2021, when XCL began 

informing EP’s customers that XCL and 

EP needed to operate as independent 

companies for the remainder of the premerger period and that, as a result, XCL 

would no longer be covering EP’s 

volume shortfalls. 

XCL’s and Verdun’s Approvals Were 

Required for EP To Conduct OrdinaryCourse Business Activities and To Make 

Ordinary-Course Expenditures; XCL and 

Verdun Required EP To Make Changes 

to its Operations 

52. In addition to exercising their 

approval rights over EP’s well-drilling 

activities, XCL and Verdun exercised 

their rights under the Purchase 

Agreement to review and approve other 

of EP’s ordinary-course expenditures 

and business activities. 

53. Under the Purchase Agreement, 

EP needed to secure XCL’s or Verdun’s 

approval before making expenditures 

above $250,000, which is a relatively 

low threshold in the crude development 

and production business. As a result, 

XCL or Verdun approval was required 

before EP could perform a range of 

ordinary-course activities needed to 

conduct its business, including, e.g., 

purchasing supplies for its drilling 

operations and entering or extending 

contracts for drilling rigs. 

54. In practice, EP sought and 

received approval for ordinary-course 

expenditures below the low levels 

established through the Purchase 

Agreement. These included approvals to 

purchase gauges and other pre-drilling 

expenses. 

55. On top of submitting its 

expenditures for approval, under the 

Purchase Agreement, EP also needed to 

secure XCL’s or Verdun’s approval for 

other basic activities, such as hiring 

field-level employees and contractors 

necessary to conduct its drilling and 

production operations in the ordinary 


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course of business. Pursuant to these 

requirements, EP submitted its ordinarycourse hiring proposals to XCL and 

Verdun for approval. 

56. XCL and Verdun also required EP 

to make changes to aspects of its 

business plans and day-to-day 

operations. These included changes to 

EP’s well-drilling and site design plans, 

modifications to the areas in Utah and 

Texas where EP could pursue leasing 

and renewal activities, changes 

regarding EP’s selection of vendors, and 

instructions not to pursue development 

opportunities that EP had been 

exploring in the ordinary course of 

business. 

Verdun and EP Coordinated Regarding 

Prices for EP’s Customers in the Eagle 

Ford Region of Texas 

57. The Defendants’ gun-jumping 

activity also included coordination of 

prices. In the Eagle Ford region of 

Texas, employees from Verdun and EP 

coordinated on pricing terms that EP 

would offer to its customers. EP shared 

its competitively sensitive information 

on customer pricing and supply 

volumes with Verdun, and then sought 

Verdun’s approval of the prices it 

negotiated with the customers. 

58. On July 28, 2021, shortly after the 

Purchase Agreement was signed, a 

Verdun employee with responsibility 

for sales and marketing contacted his EP 

counterpart to discuss EP’s customer 

pricing and contract terms. The Verdun 

employee used information he had 

obtained from the virtual data room set 

up by EP as part of the sale process to 

suggest changes to EP’s customer 

pricing. An EP employee responded and 

continued to consult with the Verdun 

employee as she was negotiating with 

the customers. Ultimately, the EP 

employee sought and obtained the 

approval of the Verdun employee for the 

new contracts with EP’s customers. 

EP Exchanged Competitively Sensitive 

Information With XCL and Verdun 

Without Adequate Safeguards To Limit 

Access Or Prevent Misuse 

59. The Defendants’ gun jumping also 

facilitated the exchange of confidential 

and granular business information far 

beyond anything necessary for 

transaction due diligence. Upon signing 

the Purchase Agreement, XCL and 

Verdun asked for, and received, 

competitively sensitive information 

about EP’s business operations and 

customers in Utah and Texas. This 

information included details on EP’s 

customer contracts, customer pricing, 

production volumes, customer 

dispatches, business plans, site designs, 

vendor relationships and contracts, 

permitting and surveying information, 

and other competitively sensitive, 

nonpublic information. EP provided 

some of this information to XCL and 

Verdun on a daily or weekly basis. 

60. EP took no meaningful steps to 

resist these requests from XCL and 

Verdun. Instead, EP agreed to provide 

XCL and Verdun employees with access 

to its competitively sensitive 

information in the pre-merger period, 

even though EP competed directly with 

both XCL and Verdun and the 

information exchange lacked any 

legitimate business purposes. Further, 

EP made no effort—and XCL and 

Verdun offered no protections on its 

own—to limit the access to, or use of, 

EP’s competitively sensitive information 

by XCL’s and Verdun’s employees. 

61. In the days following execution of 

the Purchase Agreement, XCL and 

Verdun requested and received access to 

EP daily operating reports, including 

reports on EP’s crude production, 

dispatches by customers, and oil sales 

and loads by counterparty. These 

materials were provided to several XCL 

and Verdun businesspeople responsible 

for sales, marketing, and operations. 

62. These daily reports provided the 

employees of XCL and Verdun with 

virtually real-time information about 

EP’s operations, output, and sales. To 

illustrate, in an August 4, 2021, email 

from EP’s Chief Operating Officer to a 

number of XCL and Verdun 

employees—including the CEO and 

head of operations for both XCL and 

Verdun—the EP executive writes, ‘‘You 

will start receiving the attached 

Operations Report daily. This report 

covers drilling, completions, workovers 

and production.’’ 

63. XCL also requested and received 

weekly updates on EP’s permits and 

sundries, spacing orders, and ongoing 

regulatory work, as well as access to 

EP’s site survey logs, geologic reports, 

geosteering reports, software 

communication systems, and various 

other datasets. 

64. Beyond regular reports and 

updates, XCL and Verdun employees 

requested and received information on 

an ad hoc basis on EP’s development 

plans, contracts, customers, projections, 

deliveries, and seemingly any other 

aspect of EP’s business or operations of 

interest to XCL and Verdun business 

employees. 

65. The Defendants had no legitimate 

business purposes for exchanging and 

disseminating EP’s competitively 

sensitive business information in the 

pre-merger period and failed to place 

limits as to who at XCL and Verdun 

could access the information or how 

that information could be used. 

66. Even information provided by EP 

to XCL and Verdun through the virtual 

data room—ostensibly for the legitimate 

purpose of conducting due diligence on 

the proposed transaction—lacked 

appropriate safeguards on access and 

use. 

67. Some of EP’s confidential 

information from the due diligence data 

room was used by Verdun’s operations 

and sales employees to inform pricing 

and contract terms in the pre-merger 

period when Verdun and EP were still 

competitors in the marketplace. As 

noted in Paragraph 58 of this complaint, 

a Verdun employee used information 

from the virtual data room to discuss 

with his counterpart at EP prices for 

EP’s customers. 

68. The information flow from EP to 

XCL and Verdun continued in full force 

through approximately October 2021. 

Cause of Action Violation of Section 7A 

of the Clayton Act 

69. Plaintiff alleges and incorporates 

paragraphs 1 through 68 as if set forth 

fully herein. 

70. XCL and Verdun’s acquisition of 

EP was subject to Section 7A premerger 

notification and waiting-period 

requirements. 

71. XCL and Verdun substituted their 

business interests and judgment for 

those of EP and exercised operational 

control over key aspects of EP’s business 

before expiration of the waiting period 

in violation of Section 7A. 

72. By controlling EP’s business 

operations after having agreed to acquire 

EP, XCL and Verdun acquired beneficial 

ownership of EP’s assets and thus 

acquired and held those assets within 

the meaning of Section 7A. 

73. The Defendants were 

continuously in violation of the 

requirements of the HSR Act each day 

beginning on July 26, 2021, until XCL 

and Verdun ceased exercising 

operational control over relevant aspects 

of EP’s business and the Purchase 

Agreement was amended on October 27, 

2021. 

Request for Relief 

Wherefore, the United States requests: 

(a) that the Court adjudge and decree 

that each Defendant violated the HSR 

Act and was in violation during the 

period beginning on July 26, 2021, and 

ending on October 27, 2021, a total of 

94 days; 

(b) that the Court order the 

Defendants pay to the United States an 

appropriate civil penalty as provided 

under Section 7A(g)(1) of the Clayton 

Act, 15 U.S.C. 18a(g)(1), and 16 CFR 

1.98(a); 


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(c) that the Defendants, their officers, 

directors, agents, employees, 

subsidiaries, and successors, and all 

other persons acting or claiming to act 

on their behalf, be enjoined, restrained, 

and prohibited for a period of ten years 

from, in any manner, directly or 

indirectly, engaging in any other 

agreement, combination, or conspiracy 

that has the same effect as the alleged 

violation; 

(d) that the Court order such other 

and further relief as it may deem just 

and proper; and 

(e) that the Court award the United 

States its costs of this suit. 

Date: 2025 

FOR THE PLAINTIFF UNITED STATES OF 

AMERICA: 

Doha Mekki, 

Acting Assistant Attorney General, 

Department of Justice, Antitrust Division, 

Washington, DC 20530 

lllllllllllllllllllll

Maribeth Petrizzi, DC Bar No. 435204, 

Special Attorney 

lllllllllllllllllllll

Jamie R. Towey, DC Bar No. 475969, Special 

Attorney 

lllllllllllllllllllll

Kenneth A. Libby, Special Attorney 

lllllllllllllllllllll

Paul Frangie, 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. XCL 

RESOURCES HOLDINGS, LLC, VERDUN OIL 

COMPANY II LLC, and EP ENERGY LLC, 

Defendants. 

Civil Action No. 1:25–cv–00041. 

[Proposed] Final Judgment 

WHEREAS the United States of 

America filed its Complaint on January 

7, 2025, alleging that Defendants XCL 

Resources Holdings, LLC, Verdun Oil 

Company II LLC, and EP Energy LLC 

violated Section 7A of the Clayton Act, 

15 U.S.C. 18a, commonly known as the 

Hart-Scott-Rodino Antitrust 

Improvements Act of 1976 (the ‘‘HartScott-Rodino Act’’), and the United 

States and Defendants XCL Resources 

Holdings, LLC, Verdun Oil Company II 

LLC, and EP Energy LLC, by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting any evidence against or an 

admission by any party regarding any 

issue of fact or law; 

And Whereas Defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

Now, Therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon the 

consent of the parties hereto, it is 

Ordered, Adjudged, And Decreed: 

I. Jurisdiction 

The Court has jurisdiction over the 

subject matter of this action. The 

Defendants consent solely for the 

purpose of this action and the entry of 

this Final Judgment that this Court has 

jurisdiction over each of the parties to 

this action. The Complaint states a 

claim upon which relief may be granted 

against the Defendants under Section 

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

II. Definitions 

A. ‘‘XCL’’ means XCL Resources 

Holdings, LLC, a limited liability 

company organized, existing, and doing 

business under the laws of the state of 

Delaware, with its executive offices and 

principal place of business located at 

600 N. Shepherd Drive, Suite 390, 

Houston, Texas 77007, including its 

successors and assigns, and its 

subsidiaries and divisions. 

B. ‘‘Verdun’’ means Verdun Oil 

Company II LLC, a limited liability 

company organized, existing, and doing 

business under the laws of the state of 

Texas, with its executive offices and 

principal place of business located at 

945 Bunker Hill Road, Suite 1300, 

Houston, Texas 77024, including its 

successors and assigns, and its 

subsidiaries and divisions. 

C. ‘‘EP Energy’’ means EP Energy LLC, 

a limited liability company organized, 

existing, and doing business under the 

laws of the state of Delaware, with its 

executive offices and principal place of 

business located at 945 Bunker Hill 

Road, Suite 100, Houston, Texas 77024, 

including its successors and assigns, 

and its subsidiaries and divisions. 

D. ‘‘Agreement’’ means any 

agreement, contract, or mutual 

understanding, whether formal or 

informal, written, or unwritten. 

E. ‘‘Antitrust Laws’’ means the 

Federal Trade Commission Act, as 

amended, 15 U.S.C. 41 et seq., the 

Sherman Act, 15 U.S.C. 1 et seq., the 

Clayton Act, 15 U.S.C. 12 et seq., and 

the Hart-Scott-Rodino Act, 15 U.S.C. 

18a. 

F. ‘‘Competing Product’’ means any 

product, service, or technology included 

in a Reportable Transaction that is 

offered for sale, license, or distribution 

to customers in the same state, or 

produced in the same state or geological 

basin, by a Defendant and any other 

party to the Reportable Transaction. 

G. ‘‘Farm-in agreement’’ or ‘‘Farm-out 

agreement’’ means an agreement in 

which the owner or lessee of mineral 

rights assigns an interest in such 

mineral rights to another party, in 

exchange for such other party providing 

specified exploration and/or 

development activities, funding for such 

exploration and/or development 

activities, or contributing or swapping 

mineral acreage, regardless of whether 

the owner or lessee retains working 

interests, overriding royalty interests, or 

other types of economic interests. The 

agreement is termed a ‘‘Farm-in 

agreement’’ from the viewpoint of the 

party acquiring such interest, and a 

‘‘Farm-out agreement’’ from the 

viewpoint of the owner or lessee of the 

mineral rights assigning such interest. 

H. ‘‘Non-Public Information’’ means 

any information related to the assets and 

businesses included in a Reportable 

Transaction known by the Defendant or 

another party to the Reportable 

Transaction, excluding any information 

that was or becomes available to the 

public through means other than 

disclosure by the receiving party. 

I. ‘‘Pre-consummation Period’’ means 

the period between the signing of an 

agreement or letter of intent for a 

Reportable Transaction, and the earlier 

of the expiration or termination of the 

applicable waiting period, and the 

abandonment of the Reportable 

Transaction. 

J. ‘‘Regulations’’ means any rule, 

regulation, statement, or interpretation 

relating to the Hart-Scott-Rodino Act 

that has binding legal effect with respect 

to the implementation or application of 

the Hart-Scott-Rodino Act or any section 

or subsection within 16 CFR 801–803. 

K. ‘‘Reportable Transaction’’ means a 

transaction to which a Defendant is a 

party that is reportable under Section 

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

including the rules, regulations and 

formal interpretations implementing the 

section. 

III. Applicability 

This Final Judgment applies to XCL, 

Verdun, and EP Energy, as defined 

above, and all other persons in active 

concert or participation with any of 

them who receive actual notice of this 

Final Judgment by personal service or 

otherwise. 

IV. Civil Penalty 

A. Judgment is hereby entered in this 

matter in favor of Plaintiff and against 

Defendants, 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 

104134 § 31001(s) (amending the 

Federal Civil Penalties Inflation 

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


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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, 89 FR 9764 

(February 12, 2024), XCL and Verdun 

jointly and severally are hereby ordered 

to pay a civil penalty in the amount of 

$2,842,188.50, and EP Energy is hereby 

ordered to pay a civil penalty in the 

amount of $2,842,188.50, for a total 

among all Defendants of $5,684,377.00. 

Payment of the civil penalty ordered 

hereby shall 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—Antitrust 

Division 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. 

B. Defendants shall 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 (18) percent per annum shall 

accrue thereon from the date of the 

default or delay to the date of payment. 

V. Prohibited Conduct 

A. During the Pre-consummation 

Period for any Reportable Transaction, 

the Defendant shall not enter into any 

Agreement with any other party to the 

transaction to: 

1. combine, merge, or transfer (in 

whole or in part) any operational or 

decision-making control over any aspect 

of the business, assets, or interests that 

are part of the Reportable Transaction 

including (a) the production, marketing, 

or distribution of any to-be-acquired 

product; or (b) any sales, service, or 

procurement terms for such products; 

2. require one party to the Reportable 

Transaction to obtain approval from 

another party to the Reportable 

Transaction for any ordinary-course 

business activities or expenses, 

including planned capital expenditures; 

3. delay or suspend ordinary-course 

sales or development efforts; or 

4. disclose or seek the disclosure of 

the following information for any 

Competing Product: 

a. current or future prices or contract 

offers; or 

b. Non-Public Information relating to 

customers, current or future drilling and 

completions, production, sales, or 

shipments to customers. 

Provided, however, that nothing in 

this Final Judgment prohibits 

Defendants from disclosing or seeking 

information relating to a Competing 

Product (i) that is publicly available at 

the time disclosure occurs, or (ii) that is 

necessary to conduct reasonable and 

customary due diligence of or 

integration planning for the proposed 

transaction, provided such activity by 

Defendants are supervised by antitrust 

counsel and occurs pursuant to a nondisclosure agreement that (a) limits use 

of the information to conducting due 

diligence or integration planning 

(including limiting dissemination of the 

information to individuals involved in 

or supervising due diligence or 

integration planning), (b) prohibits 

disclosure of the information to any 

employee of the receiving entity who is 

directly responsible for the marketing, 

pricing, or sales of a Competing Product, 

and (c) requires the recipient to delete 

or destroy the information if the 

Reportable Transaction does not close. 

VI. Permitted Conduct 

Nothing in this Final Judgment 

prohibits Defendants from: 

A. Agreeing that a party to a 

transaction shall continue to operate in 

the ordinary course of business during 

the Pre-consummation Period; 

B. Agreeing that a party to a 

transaction forgo conduct that would 

cause a material adverse change in the 

value of to-be-acquired assets during the 

Pre-consummation Period; 

C. Negotiating, agreeing to, or 

participating in joint operating, joint 

development, Farm-in, or Farm-out 

agreements, 

Provided, however, that the joint 

operating, joint development, Farm-in, 

or Farm-out agreements do not relate to 

assets included as part of any 

Reportable Transaction during the Preconsummation Period; or 

D. Disclosing Non-public Information 

related to Competing Products in the 

context of litigation or settlement 

discussions if the disclosure is subject 

to a protective order. 

VII. Compliance 

A. Defendants shall design, maintain, 

and operate an antitrust compliance 

program to ensure compliance with this 

Final Judgment and the Antitrust Laws, 

and as part of such program shall: 

1. within 30 days of entry of this Final 

Judgment, appoint or retain a qualified 

antitrust compliance officer (‘‘Antitrust 

Compliance Officer’’) to supervise the 

design, maintenance, and operation of 

the program, and shall authorize the 

Antitrust Compliance Officer to perform 

all tasks necessary to fulfill these 

obligations. Defendants may replace the 

Antitrust Compliance Officer with 

another qualified person at any time; 

2. within 45 days of entry of this Final 

Judgment, distribute a copy of this Final 

Judgment to each current officer and 

director, and each employee, agent, or 

other person who has responsibility or 

authority over sales, marketing, strategic 

planning, exploration and development, 

or mergers and acquisitions; 

3. distribute a copy of this Final 

Judgment to any person who takes a 

position described in Paragraph 

VII(A)(2) within 30 days of the date the 

person takes such position; 

4. provide in-person or online training 

concerning Defendants’ obligations 

under this Final Judgment and the 

Antitrust Laws as they apply to 

Defendants’ activities, to each person 

designated in Paragraphs VII(A)(2) or 

(3): 

a. no later than 45 days after this Final 

Judgment is entered; 

b. no later than 30 days after a person 

first takes a position described in 

Paragraph VII(A)(2); and 

c. at least annually. 

Provided, however, that as to any 

person on extended leave (e.g., parental, 

family, or disability leave), the training 

for such person under the above 

schedule shall be completed within 30 

days of the date the person returns to 

work; 

5. obtain within 60 days from the 

entry of this Final Judgment, and 

annually thereafter, and retain for the 

duration of this Final Judgment, a 

written certification from each person 

designated in Paragraphs VII(A)(2) & (3) 

that the person: (a) has received, read, 

understands, and agrees to abide by the 

terms of this Final Judgment; (b) 

understands that failure to comply with 

this Final Judgment may result in 

conviction for criminal contempt of 

court; and (c) is not aware of any 

violation of the Final Judgment; and 

6. provide a copy of this Final 

Judgment (or a hyperlink to a copy of 

this Final Judgment) to each party to a 

Reportable Transaction no later than 

signing of the definitive agreement. 

B. Within 60 days of entry of this 

Final Judgment, Defendants shall certify 

to Plaintiff that they have (1) designed, 

established, and are maintaining an 

antitrust compliance program; (2) 

designated an Antitrust Compliance 

Officer, specifying their name, business 

address, and telephone number; (3) 

distributed this Final Judgment as 

required in Paragraph VII(A)(2); and (4) 


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provided training as required in 

Paragraph VII(A)(4). 

C. For the term of this Final Judgment, 

on or before its anniversary date, 

Defendants shall file with Plaintiff an 

annual statement verifying that they are 

complying with the requirements of this 

Final Judgment and describing in detail 

the manner of their compliance with the 

provisions of Sections V and VII. 

D. If any of Defendants’ directors or 

officers, or the Antitrust Compliance 

Officer, learns of any violation of this 

Final Judgment, Defendants shall within 

three (3) business days take appropriate 

action to assure continued compliance 

with this Final Judgment, and shall 

notify the Plaintiff in writing of the 

violation within 10 business days of 

learning of the violation. 

VIII. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legallyrecognized privilege, from time to time 

authorized representatives of the United 

States, including agents and consultants 

retained by the United States, shall, 

upon written request of an authorized 

representative of the Assistant Attorney 

General in charge of the Antitrust 

Division, and on reasonable notice to 

Defendants, be permitted: 

(1) access during Defendants’ office 

hours to inspect and copy, or at the 

option of the United States, to require 

Defendants to provide electronic copies 

of all books, ledgers, accounts, records, 

data, and documents in the possession, 

custody, or control of Defendants, 

relating to any matters contained in this 

Final Judgment; and 

(2) to interview, either informally or 

on the record, Defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

Defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, Defendants shall 

submit written reports or response to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained pursuant to any provision of 

this Final Judgment 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, pursuant to the Freedom of 

Information Act, 5 U.S.C. 552, for 

disclosure of information obtained 

pursuant to any provision of this Final 

Judgment, the Antitrust Division will 

act in accordance with that statute, and 

the Department of Justice regulations at 

28 CFR part 16, including the provision 

on confidential commercial information, 

at 28 CFR 16.7. Designations of 

confidentiality expire 10 years after 

submission, ‘‘unless the submitter 

requests and provides justification for a 

longer designation period.’’ See 28 CFR 

16.7(b). 

E. If at the time that Defendants 

furnish information or documents to the 

United States pursuant to any provision 

of this Final Judgment, 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 10 

calendar days’ notice before divulging 

the material in any legal proceeding 

(other than a grand jury proceeding). 

IX. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any of the parties to this Final 

Judgment to apply to this Court at any 

time for further orders and directions as 

may be necessary or appropriate to carry 

out or construe this Final Judgment, to 

modify or terminate any of its 

provisions, to enforce compliance, and 

to punish violations of its provisions. 

X. 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 any civil contempt action, 

any motion to show cause, or any 

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 

any remedy therefor by a preponderance 

of the evidence, and Defendants waive 

any argument that a different standard 

of proof should apply. 

B. The Final Judgment should be 

interpreted to give full effect to the 

procompetitive purposes of the antitrust 

laws, including Section 7A of the 

Clayton Act and Regulations 

promulgated thereunder. 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 any enforcement proceeding in 

which the Court finds that a Defendant 

has violated this Final Judgment, the 

United States may apply to the Court for 

a one-time extension of this Final 

Judgment for that Defendant, together 

with such other relief as may be 

appropriate. In connection with any 

successful effort by the United States to 

enforce this Final Judgment against a 

Defendant, whether litigated or resolved 

prior to litigation, each Defendant agrees 

to reimburse the United States for the 

fees and expenses of its attorneys, as 

well as any other costs including 

experts’ fees, incurred in connection 

with that enforcement effort, including 

in the investigation of the potential 

violation. 

D. For a period of four (4) years after 

the expiration of this Final Judgment 

pursuant to Section XI, 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 under 

this Section, (2) any appropriate 

contempt remedies, (3) any additional 

relief needed to ensure the Defendant 

complies with the terms of the Final 

Judgment, and (4) fees or expenses as 

called for in Paragraph X(C). 

XI. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten (10) 

years from the date of its entry if each 

Defendant has paid the civil penalty in 

full. 

XII. Costs 

Each party shall bear its own costs of 

this action. 


ddrumheller on DSK120RN23PROD with NOTICES1
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XIII. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including 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 responses to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Dated: 

llllllllllllllllllll

lllllllllllllllllllll

United States District Judge 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. XCL 

RESOURCES HOLDINGS, LLC, VERDUN OIL 

COMPANY II LLC, and EP ENERGY LLC 

Defendants. Civil Action No. 1:25-cv-00041. 

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 Proceedings 

On January 7, 2025, the United States 

filed a Complaint against Defendants 

XCL Resources Holdings, LLC (‘‘XCL’’), 

Verdun Oil Company II LLC 

(‘‘Verdun’’), and EP Energy LLC (‘‘EP’’) 

(together, ‘‘Defendants’’), related to XCL 

and Verdun’s acquisition of EP. The 

Complaint alleges that Defendants 

violated Section 7A of the Clayton Act, 

15 U.S.C. 18a, commonly known as the 

Hart-Scott-Rodino Antitrust 

Improvements Act of 1976 (the ‘‘HSR 

Act’’). 

The Complaint alleges that XCL and 

Verdun acquired EP, through a 

transaction in excess of the thenapplicable statutory thresholds, without 

observing the required HSR Act waiting 

period. The HSR Act provides that ‘‘no 

person shall acquire, directly or 

indirectly, any voting securities of any 

person’’ exceeding certain thresholds 

until that person has filed preacquisition notification and report forms 

with the Department of Justice and the 

Federal Trade Commission (collectively, 

the ‘‘federal antitrust agencies’’ or 

‘‘agencies’’) and the post-filing waiting 

period has expired. 15 U.S.C. 18a(a). A 

key purpose of the notification and 

waiting period is to protect consumers 

and competition from potentially 

anticompetitive transactions by 

providing the agencies an opportunity 

to conduct an antitrust review of 

proposed transactions before they are 

consummated. 

At the same time the Complaint was 

filed, the United States also filed a 

Stipulation and proposed Final 

Judgment. Under the proposed Final 

Judgment, which is explained more 

fully below, Defendants are prohibited 

from engaging in specified conduct 

during the term of the order and are 

required to pay a civil penalty to the 

United States in the amount of 

$5,684,377. The proposed Final 

Judgment is designed to deter HSR Act 

violations by XCL, Verdun, and 

similarly situated acquirers. 

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 punish 

violations thereof. 

II. Description of the Events 

A. XCL and Verdun’s acquisition of EP 

On July 26, 2021, XCL and Verdun 

agreed to acquire EP for approximately 

$1.4 billion. Defendants are engaged, 

among other things, in the development, 

production, and sale of crude oil in the 

United States. XCL operates in the Uinta 

Basin of Utah. Verdun operates in the 

Eagle Ford area of Texas. EP operates in 

both the Uinta Basis and the Eagle Ford 

area. Shortly thereafter, Defendants’ 

parent entities filed the pre-acquisition 

Notification and Report forms required 

by Section 7A of the Clayton Act. After 

reviewing the parties’ filings, the 

Federal Trade Commission (‘‘FTC’’) 

opened an investigation into the 

competitive effects of the proposed 

transaction. XCL and EP were two of 

four significant oil and gas development 

and production companies in northeast 

Utah’s Uinta Basin. The FTC alleged in 

its complaint that, after the acquisition 

of EP, if XCL reduced the volume of 

crude oil that it supplied to Salt Lake 

City, Salt Lake City area refiners would 

be forced to pay more for Uinta Basin 

waxy crude oil. Ultimately, the FTC 

obtained a consent agreement resolving 

its concerns about the impact of the 

transaction on competition in the 

market for the development, production, 

and sale of waxy crude oil in the Uinta 

Basin area of Utah. The consent 

agreement required Defendants to divest 

all of EP’s Utah operations to a qualified 

third-party operator, Crescent Energy. 

Entry of the consent agreement 

terminated the HSR Act waiting period 

on March 25, 2022. XCL and Verdun 

consummated the transaction on March 

30, 2022, and EP is now a wholly owned 

subsidiary of Verdun. 

B. Defendants’ alleged violation of 

Section 7A 

The HSR Act requirements apply to a 

transaction if, as a result of the 

transaction, the acquirer will ‘‘hold’’ 

assets or voting securities valued above 

the thresholds. Under HSR Rule 

801.1(c), to ‘‘hold’’ assets or voting 

securities means ‘‘beneficial ownership, 

whether direct, or indirect through 

fiduciaries, agents, controlled entities or 

other means.’’ 16 CFR 801.1(c). Thus, 

under the Act, parties must make an 

HSR Act filing and observe a waiting 

period before transferring beneficial 

ownership of the assets or voting 

securities to be acquired. The Statement 

of Basis and Purpose accompanying the 

Rules explains that beneficial 

ownership is determined on a case-bycase basis, based on the indicia of 

beneficial ownership which include, 

among others, the right to obtain the 

benefit of any increase in value or 

dividends and the risk of loss of value. 

43 FR 33,449 (July 31, 1978). A firm 

may also gain beneficial ownership by 

obtaining ‘‘operational control’’ of an 

asset. 

The combination of XCL and 

Verdun’s agreement to purchase EP and 

their assumption of key ordinary-course 

functions transferred beneficial 

ownership of EP’s business to XCL and 

Verdun before they had fulfilled their 

obligations under the HSR Act. 

Specifically, the July 26, 2021 Purchase 

Agreement provided for the immediate 

transfer of control over key aspects of 

EP’s business to XCL and Verdun, 

including granting XCL and Verdun 

approval rights over EP’s ongoing and 

planned crude oil development and 

production activities and many of EP’s 

ordinary-course expenditures. XCL put 

an immediate halt to EP’s new welldrilling activities, so that XCL—not 

EP—could control the development and 

production plans for EP’s drilling assets 

moving forward. Even though XCL and 

Verdun allowed EP to resume its own 

well-drilling and planning activities 

after Defendants realized that the FTC 

would investigate the transaction, the 

temporary halts resulted in EP having 

crude oil supply shortages in the 

following months. Defendants predicted 

these shortages and specifically 

provided in the Purchase Agreement 

that XCL and Verdun—not EP—would 


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bear all costs associated with EP’s 

supply shortages. 

XCL and Verdun also exercised 

operational control over EP by, inter 

alia, working directly with EP’s 

customers on EP’s behalf; requiring EP 

to provide competitively sensitive 

information to XCL and Verdun 

businesspeople; requiring approval of 

ordinary-course expenditures; and 

coordinating with EP on EP’s contract 

negotiations with certain customers in 

the Eagle Ford production area. The 

illegal conduct lasted through October 

27, 2021, when the Defendants executed 

an amendment to the Purchase 

Agreement which allowed EP to operate 

independently once again and in the 

ordinary course of business, without 

XCL’s or Verdun’s control over its dayto-day operations. The Defendants were 

in violation of the HSR Act for a period 

of 94 days, from when the Purchase 

Agreement was signed, on July 26, 2021, 

until the Purchase Agreement was 

amended, on October 27, 2021. Among 

other things, XCL’s temporary halting of 

EP’s development activities contributed 

to EP having crude oil supply shortages 

in September and October 2021 at a 

time when the United States was 

experiencing significant supply 

shortages and spiking crude oil prices 

due to sudden demand increases as 

COVID–19 restrictions eased. XCL and 

EP—direct competitors in the 

marketplace—then worked in concert to 

supply EP’s customers to satisfy EP’s 

customer supply commitments. Verdun 

also coordinated with EP on EP’s 

contract negotiations with certain 

customers in the Eagle Ford production 

area. Specifically, Verdun observed that 

certain EP contracts included belowmarket prices and directed EP to raise 

them in the next contracting period. EP 

complied. 

Agreements that transfer some indicia 

of beneficial ownership, even if 

common in an industry, may violate 

Section 7A if entered into while the 

buyer intends to acquire the asset. 

Entering into such agreements before 

the HSR Act waiting period expires 

defeats the purpose of the HSR Act by 

enabling the acquiring person to direct 

the acquired person’s business to bring 

about the effects of an acquisition prior 

to completion of the agencies’ antitrust 

review. 

III. Explanation of the Proposed Final 

Judgment 

The relief required by the proposed 

Final Judgment will prevent future 

violations of Section 7A of the Clayton 

Act of the type Defendants committed 

and secures a monetary civil penalty for 

XCL’s, Verdun’s, and EP’s violation of 

Section 7A. The proposed Final 

Judgment sets forth prohibited and 

permitted conduct, a compliance 

program the Defendants must follow, 

and procedures available to the United 

States to determine and ensure 

compliance with the Final Judgment. 

Section XI provides that these 

conditions will expire ten years after the 

entry of the Final Judgment. 

A. Prohibited Conduct 

Section V of the proposed Final 

Judgment is designed to prevent future 

HSR Act violations of the sort alleged in 

the Complaint. During the ‘‘preconsummation period’’ of any future 

HSR-reportable transaction—after 

executing an agreement or letter of 

intent for a transaction subject to the 

reporting requirements of the HSR Act 

and until the expiration of the statutory 

waiting period or abandonment of the 

transaction—the Defendants are 

prohibited from entering into any 

agreement with the other contracting 

party or parties to combine, merge, or 

transfer, in whole or in part, any 

operational or decision-making control 

over businesses, assets, or interests to be 

acquired. This injunction applies to all 

transactions subject to the reporting 

requirements of the HSR Act, regardless 

of the particular products involved or 

whether any other party to the 

transaction competes with the 

Defendants. The injunction also 

prevents an acquirer from obtaining 

approval rights or authority over 

ordinary-course decisions of the to-beacquired entity or unrestricted access to 

certain categories of non-public 

information. To be clear, the injunction 

is not intended to cover all means of 

transferring beneficial ownership— 

which is assessed on a case-by-case 

basis depending on a variety of factors— 

but to broadly cover the Defendants’ 

conduct in this matter and prevent 

recurrence. 

B. Permitted Conduct 

Section VI of the proposed Final 

Judgment identifies certain agreements 

and conduct that are permitted by the 

Judgment. Paragraphs VI(A) and VI(B) 

ensure that the decree will not be 

interpreted to forbid specified ‘‘conduct 

of business’’ covenants that are typically 

found in merger agreements. These are 

customary provisions found in most 

merger agreements and are intended to 

protect the value of the transaction and 

prevent a to-be-acquired person from 

wasting assets. Paragraph VI(C) ensures 

that the decree does not prevent certain 

ordinary-course agreements in the oil 

and gas industry. Paragraph VI(D) 

recognizes narrow exceptions to the 

restrictions on access to non-public 

information in Paragraph V(A)(4) for 

certain activities, such as participating 

in litigation. 

C. Compliance 

Sections VII and VIII of the proposed 

Final Judgment set forth various 

compliance procedures. Section VII sets 

up an affirmative compliance program 

directed toward ensuring compliance 

with the limitations imposed by the 

proposed Final Judgment and with the 

federal antitrust laws. The compliance 

program includes the designation of a 

qualified antitrust compliance officer 

who is required to ensure that the 

relevant Defendant distributes a copy of 

the Final Judgment to each current and 

succeeding director, office, employee, 

agent, or other person with the 

responsibility over sales, marketing, 

strategic planning, exploration and 

development, or mergers and 

acquisitions; briefs each such person 

regarding compliance with the Final 

Judgment and the antitrust laws as they 

apply to Defendants’ activities; and 

obtains certification annually from each 

such person that he or she understands 

his or her obligations under the Final 

Judgment and agrees to abide by its 

terms. In addition, Defendants must 

provide a copy of the Final Judgment to 

certain parties entering a merger or 

acquisition with a Defendant prior to 

signing the definitive agreement. 

Section VII of the proposed Final 

Judgment further requires the 

compliance officer to certify to the 

United States that Defendant is in 

compliance and to report any violations 

of the Final Judgment. 

To facilitate monitoring of 

Defendants’ compliance with the Final 

Judgment, Section VIII grants DOJ 

access, upon reasonable notice, to 

Defendants’ records and documents 

relating to matters contained in the 

Final Judgment. Defendants must also 

make its personnel available for 

interviews or depositions regarding 

such matters. In addition, Defendants 

must, upon request, prepare written 

reports relating to matter contained in 

the Final Judgment. 

D. Civil Penalties 

The proposed Final Judgment 

imposes a $5,684,377 civil penalty for 

Defendants’ violation of the HSR Act. 

The United States adjusted the penalty 

downward from the maximum 

permitted under the HSR Act in part 

because the Defendants were willing to 

resolve the matter by consent decree 

and avoid a prolonged investigation and 

litigation. The relief will have a 

beneficial effect on competition because 


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it will deter future instances in which 

parties seek to immediately acquire 

control of an independent competitive 

presence before filing the required preacquisition notifications with the 

agencies and observing the required 

waiting period. At the same time, the 

penalty will not have any adverse effect 

on competition. 

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 Defendants 

have stipulated that the proposed Final 

Judgment may be entered by this Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry of the 

decree upon this Court’s determination 

that the proposed Final Judgment is in 

the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to the United States written 

comments regarding the proposed Final 

Judgment. Any person who wishes to 

comment should do so within sixty (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or within sixty (60) 

days of the first date of publication in 

a newspaper of the summary of this 

Competitive Impact Statement, 

whichever is later. All comments 

received during this period will be 

considered by the United States 

Department of Justice, which remains 

free to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of the 

United States will be filed with this 

Court. In addition, comments will be 

posted on the U.S. Department of 

Justice, Antitrust Division’s internet 

website and, under certain 

circumstances, published in the Federal 

Register. Written comments should be 

submitted to: Maribeth Petrizzi, Special 

Attorney, United States, c/o Federal 

Trade Commission, 600 Pennsylvania 

Avenue NW, CC–8416, Washington, DC 

20580, Email: bccompliance@ftc.gov. 

The proposed Final Judgment 

provides that this Court retains 

jurisdiction over this action, and the 

parties may apply to this 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 the Defendants. The United 

States is satisfied, however, that the 

relief required by the proposed Final 

Judgment will remedy the violation 

alleged in the Complaint and deter 

violations by similarly situated entities 

in the future. 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 sixty 

(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. 

Id. § 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 

Group, Inc., 38 F. Supp. 3d 69, 75 

(D.D.C. 2014) (noting the government 

has broad discretion of the adequacy of 

the relief at issue); United States v. 

InBev N.V./S.A., No. 08–1965 (JR), 

2009–2 Trade Cas. (CCH) ¶ 76,736, 2009 

U.S. Dist. LEXIS 84787, at *3, (D.D.C. 

Aug. 11, 2009) (noting that the court’s 

review of a consent judgment is limited 

and only inquires ‘‘into whether the 

government’s determination that the 

proposed remedies will cure the 

antitrust violations alleged in the 

complaint was reasonable, and whether 

the mechanism to enforce the final 

judgment are clear and manageable.’’). 

As the United States 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 


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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 

(concluding that ‘‘the ‘public interest’ is 

not to be measured by comparing the 

violations alleged in the complaint 

against those the court believes could 

have, or even should have, been 

alleged’’). Because the ‘‘court’s authority 

to review the decree depends entirely 

on the government’s exercising its 

prosecutorial discretion by bringing a 

case in the first place,’’ it follows that 

‘‘the court is only authorized to review 

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

redraft the complaint’’ to inquire into 

other matters that the United States did 

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

60. As this Court confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ 489 

F. Supp. 2d at 15. 

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, adding 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2); see also 

U.S. Airways, 38 F. Supp. 3d at 76 

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). This language 

explicitly wrote into the statute what 

Congress intended when it enacted the 

Tunney Act in 1974. As Senator Tunney 

explained: ‘‘The 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: January 7, 2025 

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. 2025–01252 Filed 1–17–25; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—The National Advanced 

Mobility Consortium, Inc. 

Notice is hereby given that, on 

October 10, 2024, pursuant to section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’), The 

National Advanced Mobility 

Consortium, Inc. (‘‘NAMC’’) has filed 

written notifications simultaneously 

with the Attorney General and the 

Federal Trade Commission disclosing 

changes in its membership. On February 

3, 2015, the RTC officially changed its 

name to NAMC. The notifications were 

filed for the purpose of extending the 

Act’s provisions limiting the recovery of 

antitrust plaintiffs to actual damages 

under specified circumstances. 

Specifically, Abaco Systems Inc., 

Huntsville, AL; ACP Technologies, LLC, 

St. Clair Shores, MI; Acutronic USA, 

Inc, Pittsburgh, PA; AEF-Performance, 

LLC, Picayune, MS; AIVOT Robotics, 

Inc., Seattle, WA; All Foam Products Co, 

Middlefield, OH; Amazon Web Services, 

Seattle, WA; American Lithium Energy 

Corporation, Carlsbad, CA; American 

Tooling Center, Inc., Lansing, MI; 

Amphenol Borisch Technologies, Grand 

Rapids, MI; Ascent AeroSystems, 

Wilmington, MA; ATA Engineering, Inc, 

San Diego, CA; ATI, Arlington, VA; AVL 

Mobility Technologies, Inc., Plymouth, 

MI; Banks Technologies, Azusa, CA; 

Beast Code, LLC., Fort Walton Beach, 

FL; Belding Tool and Machine, Belding, 

MI; Bevilacqua Research Corporation, 

Huntsville, AL; BlueSky Mast, Inc., 

Largo, FL; Bosch Rexroth Corporation, 

Bethlehem, PA; Buffalo Armory Group, 

LLC, Buffalo, NY; Cambium 

Biomaterials, Mojave, CA; Canis 

Automotive Labs Inc, Highlands Ranch, 

CO; Canoo Technologies Inc., Torrance, 

CA; Clear Align, Eagleville, PA; 

Compound Eye Inc., Redwood City, CA; 

Computer Access Technologies, LLC, 

Colorado Springs, CO; CoVar, McLean, 

VA; Cryptic Vector, Liberty Township, 

OH; CTC Enterprise Ventures 

Corporation, Johnstown, PA; Cubic 

Defense Applications Inc., San Diego, 

Ca; Cummings Aerospace, Inc., 

Huntsville, AL; Curtiss Wright 901D, 

Monsey, NY; Curtiss-Wright 

(Teletronics Technology Corp), 

Newtown, PA; CVX Instruments, LLC, 

Charlevoix, MI; D–2 Incorporated, 

Bourne, MA; D’Angelo Technologies, 

LLC, Dayton, OH; Detroit Manufacturing 

Systems, LLC., Detroit, MI; Diversified 

Technologies, Inc., Bedford, MA; 

Doodle Labs, LLC, Marina Del Rey, CA; 

DTCUBED, LLC, Sewell, NJ; Duality 

Robotics, Inc., San Mateo, CA; Dynetics, 

Inc., Huntsville, AL; Easy Aerial, 

Brooklyn, NY; ELC Industries, d.b.a. 

Aurora Defense Group, Aurora, IL; 

Emelody Worldwide Inc., Peachtree 

Corners, GA; esc Aerospace US, Inc., 

Orlando, FL; Florida Institute for 

Human & Machine Cognition, 

Pensacola, FL; FN America, LLC, 

MCLEAN, VA; Galley Power Inc, 

Hudson, MA; GE Aviation Systems, 

LLC, Grand Rapids, MI; General 

Technical Services, LLC, Wall 


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