51918 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 

clearly marked ‘‘PRIVACY ACT 

REQUEST FOR ACCESS.’’ A request for 

access must meet the requirements of 43 

CFR 2.238. 

CONTESTING RECORD PROCEDURES: 

DOI has exempted portions of this 

system from the amendment procedures 

of the Privacy Act pursuant to 5 U.S.C. 

552a(k)(2). DOI will make amendment 

determinations on a case by case basis. 

An individual requesting corrections 

or the removal of material from his or 

her records should send a signed, 

written request to the System Manager 

identified above. A request for 

corrections or removal must meet the 

requirements of 43 CFR 2.246. 

NOTIFICATION PROCEDURES: 

DOI has exempted portions of this 

system from the notification procedures 

of the Privacy Act pursuant to 5 U.S.C. 

552a(k)(2). DOI will make notification 

determinations on a case by case basis. 

An individual requesting notification 

of the existence of records on himself or 

herself should send a signed, written 

inquiry to the System Manager 

identified above. The request envelope 

and letter should both be clearly marked 

‘‘PRIVACY ACT INQUIRY.’’ A request 

for notification must meet the 

requirements of 43 CFR 2.235. 

EXEMPTIONS PROMULGATED FOR THE SYSTEM: 

This system contains civil and 

administrative law enforcement 

investigatory records that are exempt 

from certain provisions of the Privacy 

Act, 5 U.S.C. 552a(k)(2). Pursuant to 5 

U.S.C. 552a(k)(2) of the Privacy Act, DOI 

has exempted portions of this system 

from the following subsections of the 

Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G), 

(H) and (I), and (f). In accordance with 

5 U.S.C. 553(b), (c) and (e), DOI 

promulgated a rule, which was 

published in the Federal Register at 85 

FR 1282 (January 10, 2020), to amend 

the DOI Privacy Act regulations at 43 

CFR 2.254 to claim exemptions for this 

system. 

Additionally, the CMS may contain 

records from numerous sources 

compiled for investigatory purposes. To 

the extent that copies of records from 

other source systems of records are 

exempt from certain provisions of the 

Privacy Act, DOI claims the same 

exemptions for those records that are 

claimed for the original primary systems 

of records from which they originated. 

The exemptions from one or more 

provisions of the Privacy Act may be 

waived on a case-by-case basis where a 

release would not interfere with or 

adversely affect investigations or 

enforcement activities. 

HISTORY: 

81 FR 67386 (September 30, 2016). 

Teri Barnett, 

Departmental Privacy Officer, Department of 

the Interior. 

[FR Doc. 2021–20094 Filed 9–16–21; 8:45 am] 

BILLING CODE 4310–VH–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Richard D. Fairbank; 

Proposed Final Judgment and 

Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation, and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

Richard D. Fairbank, Civil Action 1:21– 

cv–02325. On September 2, 2021, the 

United States filed a Complaint alleging 

that Richard D. Fairbank violated the 

premerger notification and waiting 

period requirements of the Hart-ScottRodino Antitrust Improvements Act of 

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

the acquisition of voting securities of 

Capital One Financial Corporation. The 

proposed Final Judgment, filed at the 

same time as the Complaint, requires 

Richard D. Fairbank to pay a civil 

penalty of $637,950. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

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

Office of the Clerk of the United States 

District Court for the District of 

Columbia. Copies of these materials may 

be obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, including the name of the 

submitter, and responses thereto, will be 

posted on the Antitrust Division’s 

website, filed with the Court, and, under 

certain circumstances, published in the 

Federal Register. Comments in English 

should be directed to Maribeth Petrizzi, 

Special Attorney, United States, c/o 

Federal Trade Commission, 600 

Pennsylvania Avenue NW, CC–8416, 

Washington, DC 20580 or by email to 

bccompliance@ftc.gov. 

Suzanne Morris, 

Chief, Premerger and Division Statistics. 

United States District Court for the 

District of Columbia 

United States of America, c/o Department 

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

Richard D. Fairbank, c/o Capital One 

Financial Corporation, 1680 Capital One 

Drive, McLean, VA 22102, Defendant. 

Civil Action No. 1:21–cv–02325 

Judge: Rudolph Contreas 

Complaint for Civil Penalties for 

Failure To Comply With the Premerger 

Reporting and Waiting Requirements of 

the Hart-Scott Rodino Act 

The United States of America, acting 

under the direction of the Attorney 

General of the United States and at the 

request of the United States Federal 

Trade Commission, brings this civil 

antitrust action to obtain monetary relief 

in the form of civil penalties against 

Defendant Richard D. Fairbank 

(‘‘Fairbank’’). The United States alleges 

as follows: 

I. Nature of the Action 

1. Fairbank violated the notice and 

waiting period requirements of Section 

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

commonly known as the Hart-ScottRodino Antitrust Improvements Act of 

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

to the acquisition of voting securities of 

Capital One Financial Corporation 

(‘‘COF’’) in 2018. 

II. Jurisdiction and Venue 

2. This Court has jurisdiction over the 

subject matter of this action pursuant to 

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

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

1337(a), 1345, and 1355, and over 

Defendant by virtue of Defendant’s 

consent, in the Stipulation relating 

hereto, to the maintenance of this action 

and entry of the Final Judgment in this 

District. 

3. Venue is proper in this District by 

virtue of Defendant’s consent, in the 

Stipulation relating hereto, to the 

maintenance of this action and entry of 

the Final Judgment in this District. 

III. The Defendant 

4. Defendant Fairbank is a natural 

person with his principal office and 

place of business at 1680 Capital One 

Drive, McLean, VA 22101. Fairbank is 

engaged in commerce, or in activities 

affecting commerce, within the meaning 

of Section 1 of the Clayton Act, 15 

U.S.C. 12, and Section 7A(a)(1) of the 

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

times relevant to this complaint, 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 51919 

Fairbank had sales or assets in excess of 

$16.9 million. 

IV. Other Entity 

5. COF is a corporation organized 

under the laws of Delaware with its 

principal place of business at 1680 

Capital One Drive, McLean, VA 22101. 

COF is engaged in commerce, or in 

activities affecting commerce, within 

the meaning of Section 1 of the Clayton 

Act, 15 U.S.C. 12, and Section 7A(a)(1) 

of the Clayton Act, 15 U.S.C. 18a(a)(1). 

At all times relevant to this complaint, 

COF had sales or assets in excess of 

$168.8 million. 

V. The Hart-Scott-Rodino Act and Rules 

6. The HSR Act requires certain 

acquiring persons and certain persons 

whose voting securities or assets are 

acquired to file notifications with the 

United States Department of Justice and 

the Federal Trade Commission 

(collectively, the ‘‘federal antitrust 

agencies’’) and to observe a waiting 

period before consummating certain 

acquisitions of voting securities or 

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

notification and waiting period 

requirements apply to acquisitions that 

meet the HSR Act’s size of transaction 

and size of person thresholds, which 

have been adjusted annually since 2004. 

The size of transaction threshold is met 

for transactions valued over $50 million, 

as adjusted ($84.4 million for most of 

2018). In addition, there is a separate 

filing requirement for transactions in 

which the acquirer will hold voting 

securities in excess of $100 million, as 

adjusted ($168.8 million in 2018), and 

for transactions in which the acquirer 

will hold voting securities in excess of 

$500 million, as adjusted ($843.9 

million in 2018). With respect to the 

size of person thresholds, the HSR Act 

requires one person involved in the 

transaction to have sales or assets in 

excess of $10 million, as adjusted ($16.9 

million in 2018), and the other person 

to have sales or assets in excess of $100 

million, as adjusted ($168.8 million in 

2018). 

7. The HSR Act’s notification and 

waiting period requirements are 

intended to give the federal antitrust 

agencies prior notice of, and 

information about, proposed 

transactions. The waiting period is also 

intended to provide the federal antitrust 

agencies with the opportunity to 

investigate a proposed transaction and 

to determine whether to seek an 

injunction to prevent the consummation 

of a transaction that may violate the 

antitrust laws. 

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

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

promulgated to carry out the purposes 

of the HSR Act. 16 CFR 801–03 (‘‘HSR 

Rules’’). The HSR Rules, among other 

things, define terms contained in the 

HSR Act. 

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

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

voting securities of [an] issuer which 

will be held by the acquiring person 

after the consummation of an 

acquisition’’—including any held before 

the acquisition—are deemed held ‘‘as a 

result of’’ the acquisition at issue. 

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

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

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

value of voting securities already held is 

the market price, defined to be the 

lowest closing price within 45 days 

prior to the subsequent acquisition. 

11. Section 802.21 of the HSR Rules, 

16 CFR 802.21, provides that, once a 

person has filed under the HSR Act and 

the waiting period has expired, the 

person can acquire additional voting 

securities of the same issuer without 

filing a new notification for five years 

from the expiration of the waiting 

period, so long as the value of the 

person’s holdings do not exceed a 

threshold higher than was indicated in 

the filing (‘‘802.21 exemption’’). 

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

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

any person, or any officer, director, or 

partner thereof, who fails to comply 

with any provision of the HSR Act is 

liable to the United States for a civil 

penalty for each day during which such 

person is in violation. Pursuant to the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015, Public Law 114–74, 701 (further 

amending the Federal Civil Penalties 

Inflation Adjustment Act of 1990), the 

dollar amounts of civil penalties listed 

in Federal Trade Commission Rule 1.98, 

16 CFR 1.98, are adjusted annually for 

inflation; the maximum amount of civil 

penalty in effect at the time of 

Fairbank’s corrective filing was $42,530 

per day. 84 FR 3980 (February 14, 2019). 

VI. Defendant’s Prior Violation of the 

HSR Act 

13. In 1999 and 2004, Fairbank 

acquired voting securities of COF that 

resulted in holdings exceeding the then 

applicable HSR notification thresholds. 

Although he was required to do so, 

Fairbank did not file under the HSR Act 

prior to acquiring COF voting securities 

in 1999 and 2004. 

14. On February 12, 2008, Fairbank 

made a corrective filing under the HSR 

Act for the acquisitions of COF voting 

securities he had made in 1999 and 

2004. In a letter accompanying the 

corrective filing, Fairbank 

acknowledged that the transactions 

were reportable under the HSR Act but 

asserted that the failure to file and 

observe the waiting period was 

inadvertent. 

15. Fairbank outlined in his letter a 

system he would implement to ensure 

that future reportable acquisitions 

would be identified and the required 

HSR notifications filed. The 

Commission did not seek civil penalties 

against Fairbank for the 1999 and 2004 

COF acquisitions. 

VII. Defendant’s Violation of the HSR 

Act 

16. Fairbank is the Chief Executive 

Officer of COF and, as a result of 

holding this position, receives stock 

options as well as performance stock 

units (‘‘PSUs’’) as a part of his 

compensation package. On February 5, 

2013, due to vesting PSUs, Fairbank 

filed an HSR Notification for an 

acquisition of COF voting securities that 

would result in holdings exceeding the 

$100 million threshold as adjusted. The 

HSR Act’s waiting period on this filing 

expired on March 7, 2013. Fairbank was 

permitted under the HSR Act to acquire 

additional voting securities of COF until 

five years after the 2013 filing waiting 

period expired (i.e., March 6, 2018) 

without making another HSR Act filing 

so long as he did not exceed the next 

highest threshold, $500 million, as 

adjusted. 

17. On March 8, 2018, over five years 

after expiration of the waiting period for 

the February 5, 2013 filing, Fairbank 

acquired 101,148 shares of COF due to 

vesting PSUs. Even though this 

acquisition did not bring Fairbank’s 

holdings over the next highest threshold 

($500 million, as adjusted), he was 

required to make an HSR Act filing 

because the five-year exemption period 

of his 2013 filing had ended. As a result 

of this acquisition, Fairbank held voting 

securities of COF valued in excess of the 

$100 million threshold, as adjusted, 

which in 2018 was $168.8 million. 

18. Although required to do so, 

Fairbank did not file under the HSR Act 

or observe the HSR Act’s waiting period 

prior to completing the March 8, 2018, 

transaction. 

19. On December 18, 2019, Fairbank 

made a corrective filing and the waiting 

period expired on January 17, 2020. 

Fairbank was in continuous violation of 

the HSR Act from March 8, 2018, when 

he acquired the COF voting securities 

valued in excess of the HSR Act’s then 

applicable $100 million filing threshold, 

as adjusted ($168.8 million), through 

January 17, 2020, when the waiting 

period expired on his corrective filing. 

51920 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 

VIII. Requested Relief 

Wherefore, the United States requests: 

a. That the Court adjudge and decree 

that Defendant’s acquisition of COF 

voting securities on March 8, 2018, was 

a violation of the HSR Act, 15 U.S.C. 

18a; and that Defendant was in violation 

of the HSR Act each day from March 8, 

2018, through January 17, 2020; 

b. that the Court order Defendant to 

pay to the United States an appropriate 

civil penalty as provided by the Section 

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

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

Improvement Act of 1996, Public Law 

104 134 § 31001(s) (amending the 

Federal Civil Penalties Inflation 

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

2461), and the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015, Public Law 114–74, 701 

(further amending the Federal Civil 

Penalties Inflation Adjustment Act of 

1990), and Federal Trade Commission 

Rule 1.98, 16 CFR 1.98, 84 FR 3980 

(February 14, 2019); 

c. that the Court order such other and 

further relief as the Court may deem just 

and proper; and 

d. that the Court award the United 

States its costs of this suit. 

Dated: lllllllllllllllll

FOR THE PLAINTIFF UNITED STATES OF 

AMERICA: 

lllllllllllllllllllll

Richard A. Powers, 

Acting Assistant Attorney General, 

Department of Justice, Antitrust Division, 

Washington, DC 20530. 

lllllllllllllllllllll

Maribeth Petrizzi, 

DC Bar No. 435204, Special Attorney. 

lllllllllllllllllllll

Kenneth A. Libby, 

Special Attorney. 

lllllllllllllllllllll

Kelly Horne, 

Special Attorney. 

lllllllllllllllllllll

Jennifer Lee, 

Special Attorney. 

Federal Trade Commission, Washington, DC 

20580, (202) 326–2694. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Richard D. Fairbank, Defendant. 

Civil Action No. 1:21–cv–02325 

[Proposed] Final Judgment 

Whereas, the United States of 

America filed its Complaint on 

September 2, 2021, alleging that 

Defendant Richard D. Fairbank violated 

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

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

Act of 1976 (the ‘‘HSR Act’’)), and the 

United States and Defendant, by their 

respective attorneys, having 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 any admission by, 

any party regarding any such issue of 

fact or law; 

And whereas Defendant agrees to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

Now, therefore, before the taking of 

any testimony, and without trial or 

adjudication of any issue of fact or law, 

and upon the consent of the parties, it 

is hereby ordered, adjudged, and 

decreed: 

I. Jurisdiction 

The Court has jurisdiction of the 

subject matter of this action and 

Defendant consents 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 and that the Complaint states 

a claim upon which relief can be 

granted against Defendant under Section 

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

II. Civil Penalty 

Judgment is hereby entered in this 

matter in favor of Plaintiff and against 

Defendant, and, pursuant to Section 

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

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

Improvement Act of 1996, Public Law 

104–134 § 31001(s) (amending the 

Federal Civil Penalties Inflation 

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

2461), the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015, Public Law 114–74 § 701 

(further amending the Federal Civil 

Penalties Inflation Adjustment Act of 

1990), and Federal Trade Commission 

Rule 1.98, 16 CFR 1.98, 84 FR 3980 

(February 14, 2019), Defendant is hereby 

ordered to pay a civil penalty in the 

amount of six hundred thirty-seven 

thousand nine hundred and fifty dollars 

($637,950). Payment of the civil penalty 

ordered hereby must be made by wire 

transfer of funds or cashier’s check. If 

the payment is 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-FiscalInquiries@usdoj.gov for instructions. If 

the payment is made by cashier’s check, 

the check must be made payable to the 

United States Department of Justice and 

delivered to: Chief, Budget & Fiscal 

Section, Executive Office, Antitrust 

Division, United States Department of 

Justice, Liberty Square Building, 450 5th 

Street NW, Room 3016, Washington, DC 

20530. 

Defendant must pay the full amount 

of the civil penalty within thirty (30) 

days of entry of this Final Judgment. In 

the event of a default or delay in 

payment, interest at the rate of eighteen 

(18) percent per annum will accrue 

thereon from the date of the default or 

delay to the date of payment. 

III. Costs 

Each party will bear its own costs of 

this action, except as otherwise 

provided in Paragraph IV.C. 

IV. Enforcement of Final Judgment 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including the right to seek an order of 

contempt from the Court. Defendant 

agrees that in a civil contempt action, a 

motion to show cause, or a similar 

action brought by the United States 

regarding an alleged violation of this 

Final Judgment, the United States may 

establish a violation of this Final 

Judgment and the appropriateness of a 

remedy therefor by a preponderance of 

the evidence, and Defendant waives any 

argument that a different standard of 

proof should apply. 

B. This 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. Defendant 

agrees that he may be held in contempt 

of, and that the Court may enforce, any 

provision of this Final Judgment that, as 

interpreted by the Court in light of these 

procompetitive principles and applying 

ordinary tools of interpretation, is stated 

specifically and in reasonable detail, 

whether or not it is clear and 

unambiguous on its face. In any such 

interpretation, the terms of this Final 

Judgment should not be construed 

against either party as the drafter. 

C. In an enforcement proceeding in 

which the Court finds that Defendant 

has violated this Final Judgment, the 

United States may apply to the Court for 

a one-time extension of this Final 

Judgment, together with other relief that 

may be appropriate. In connection with 

a successful effort by the United States 

to enforce this Final Judgment against 

Defendant, whether litigated or resolved 

before litigation, Defendant agrees to 

reimburse the United States for the fees 

and expenses of its attorneys, as well as 

all other costs including experts’ fees, 

incurred in connection with that 

enforcement effort, including in the 

investigation of the potential violation. 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 51921 

V. Expiration of Final Judgment 

This Final Judgment will expire upon 

payment in full by the Defendant of the 

civil penalty required by Section II of 

this Final Judgment. 

VI. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

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

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’ responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Dated: lllllllllllllllll

[Court approval subject to the procedures of 

the Antitrust Procedures and Penalties Act, 

15 U.S.C. 16] 

lllllllllllllllllllll

United States District Judge. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Richard D. Fairbank, Defendant. 

Civil Action No. 1:21–cv–02325 

Competitive Impact Statement 

The United States of America 

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

the Antitrust Procedures and Penalties 

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

‘‘Tunney Act’’), files this Competitive 

Impact Statement relating to the 

proposed Final Judgment submitted for 

entry in this civil antitrust proceeding. 

I. Nature and Purpose of the Proceeding 

On September 2, 2021, the United 

States filed a Complaint against 

Defendant Richard D. Fairbank 

(‘‘Fairbank’’), related to Fairbank’s 

acquisitions of voting securities of 

Capital One Financial Corporation 

(‘‘COF’’) in March 2018. The Complaint 

alleges that Fairbank violated Section 

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

commonly known as the Hart-ScottRodino Antitrust Improvements Act of 

1976 (the ‘‘HSR Act’’). The HSR Act 

requires certain acquiring persons and 

certain persons whose voting securities 

or assets are acquired to file 

notifications with the United States 

Department of Justice and the Federal 

Trade Commission (collectively, the 

‘‘federal antitrust agencies’’) and to 

observe a waiting period before 

consummating certain acquisitions of 

voting securities or assets. 15 U.S.C. 18a 

(a) and (b). These notification and 

waiting period requirements apply to 

acquisitions that meet the HSR Act’s 

size of transaction and size of person 

thresholds, which have been adjusted 

annually since 2004. The size of 

transaction threshold is met for 

transactions valued over $50 million, as 

adjusted ($84.4 million for most of 

2018). In addition, there is a separate 

filing requirement for transactions in 

which the acquirer will hold voting 

securities in excess of $100 million, as 

adjusted ($168.8 million in 2018), and 

for transactions in which the acquirer 

will hold voting securities in excess of 

$500 million, as adjusted ($843.9 

million in 2018). 

With respect to the size of person 

thresholds, the HSR Act requires one 

person involved in the transaction to 

have sales or assets in excess of $10 

million, as adjusted ($16.9 million in 

2018), and the other person to have 

sales or assets in excess of $100 million, 

as adjusted ($168.8 million in 2018). A 

key purpose of the notification and 

waiting period requirements is to 

protect consumers and competition 

from potentially anticompetitive 

transactions by providing the federal 

antitrust agencies an opportunity to 

conduct an antitrust review of proposed 

transactions before they are 

consummated. 

Section 802.21 of the HSR Rules, 16 

CFR 802.21, provides that, once a 

person has filed under the HSR Act and 

the waiting period has expired, the 

person can acquire additional voting 

securities of the same issuer without 

filing a new notification for five years 

from the expiration of the waiting 

period, so long as the value of the 

person’s holdings do not exceed a 

threshold higher than was indicated in 

the filing (‘‘802.21 exemption’’). 

The Complaint alleges that Fairbank 

acquired voting securities of COF 

without filing the required preacquisition HSR Act notifications with 

the federal antitrust agencies and 

without observing the waiting period. 

Fairbank’s acquisition of COF voting 

securities exceeded the $100-million 

statutory threshold, as adjusted, ($168.8 

million at the time of the acquisition) 

and Fairbank and COF met the thenapplicable statutory size of person 

thresholds (which were $16.9 and 

$168.8 million, respectively). Moreover, 

although Fairbank was not a new 

investor in COF voting securities at the 

time of the acquisition, his transaction 

did not satisfy the requirements of the 

802.21 exemption. 

At the same time the Complaint was 

filed in the present action, the United 

States also filed a Stipulation and 

proposed Final Judgment that resolves 

the allegations stated in the complaint. 

The proposed Final Judgment is 

designed to address the violation 

alleged in the Complaint and penalize 

Fairbank’s HSR Act violations. Under 

the proposed Final Judgment, Fairbank 

must pay a civil penalty to the United 

States in the amount of $637,950. 

The United States and the Defendant 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA, unless the 

United States first withdraws its 

consent. Entry of the proposed Final 

Judgment will terminate this action, 

except that the Court will retain 

jurisdiction to construe, modify, or 

enforce the provisions of the proposed 

Final Judgment and punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

The crux of Fairbank’s violation is 

that he failed to submit an HSR 

notification even though his acquisition 

of COF voting securities as part of his 

compensation package satisfied the HSR 

filing requirements and he was not 

eligible to take advantage of the 802.21 

exemption. At all times relevant to the 

Complaint, Fairbank had sales or assets 

in excess of $16.9 million. At all times 

relevant to the Complaint, COF had 

sales or assets in excess of $168.8 

million. 

Fairbank is Chief Executive Officer of 

COF and in that capacity, he frequently 

receives performance stock units 

(‘‘PSUs’’) as a part of his compensation 

package. On February 5, 2013, due to 

the imminent vesting of PSUs, Fairbank 

made an HSR filing for an acquisition of 

COF voting securities that would result 

in holdings exceeding the adjusted $100 

million threshold then in effect of 

$168.8 million. The waiting period for 

the filing expired on March 7, 2013, and 

Fairbank commenced the acquisition 

four days later. For a period of five 

years, until March 6, 2018, Fairbank was 

permitted under the 802.21 exemption 

to acquire additional voting securities of 

COF without making another HSR Act 

filing so long as he did not exceed the 

$500 million threshold, as adjusted. 

On March 8, 2018, more than five 

years after expiration of the waiting 

period for the February 5, 2013 filing, 

Fairbank acquired 101,148 voting 

securities of COF due to vesting PSUs. 

Even though this acquisition did not 

bring Fairbank’s holdings over the next 

highest threshold ($500 million, as 

adjusted), he was required to make an 

HSR Act filing because the five-year 

exemption period of his 2013 filing had 

ended. As a result of the March 2018 

51922 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 

acquisition, Fairbank held voting 

securities of COF valued in excess of the 

$100 million threshold, as adjusted, 

which in 2018 was $168.8 million. 

Although required to do so, Fairbank 

did not file under the HSR Act or 

observe the HSR Act’s waiting period 

prior to completing the March 8, 2018 

transaction. 

Fairbank made a corrective HSR Act 

filing on December 18, 2019, promptly 

after learning that this acquisition was 

subject to the HSR Act’s requirements 

and that he was obligated to file. The 

waiting period for that corrective filing 

expired on January 17, 2020. 

The Complaint further alleges that 

Fairbank’s March 2018 HSR Act 

violation was not the first time Fairbank 

had failed to observe the HSR Act’s 

notification and waiting period 

requirements. In 1999 and 2004, 

Fairbank acquired voting securities of 

COF that resulted in his holdings 

exceeding the then-applicable HSR 

notification thresholds. Although he 

was required to do so, Fairbank did not 

file under the HSR Act prior to 

acquiring COF voting securities in 1999 

and 2004. On February 12, 2008, 

Fairbank made a corrective filing under 

the HSR Act for the acquisitions of COF 

voting securities he had made in 1999 

and 2004. In a letter accompanying the 

corrective filing, Fairbank 

acknowledged that the transactions 

were reportable under the HSR Act, but 

asserted that the failure to file and 

observe the waiting period was 

inadvertent. Fairbank outlined in his 

letter a system he would implement to 

ensure that all future reportable 

acquisitions would be identified and the 

required HSR notifications filed. The 

Federal Trade Commission did not seek 

civil penalties against Fairbank for the 

1999 and 2004 COF acquisitions. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment 

imposes a $637,950 civil penalty 

designed to address the violation 

alleged in the Complaint, penalize the 

Defendant, and deter others from 

violating the HSR Act. The United 

States adjusted the penalty downward 

from the maximum permitted under the 

HSR Act because the violation was 

inadvertent, the Defendant promptly 

self-reported the violation after 

discovery, and the Defendant is willing 

to resolve the matter by consent decree 

and thereby avoid prolonged 

investigation and litigation. The penalty 

will not have any adverse effect on 

competition; instead, the relief will have 

a beneficial effect on competition 

because the federal antitrust agencies 

will be properly notified of future 

acquisitions, in accordance with the 

law. 

IV. Remedies Available to Potential 

Private Litigants 

There is no private antitrust action for 

HSR Act violations; therefore, entry of 

the proposed Final Judgment will 

neither impair nor assist the bringing of 

any private antitrust action. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and the Defendant 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to the United States written 

comments regarding the proposed Final 

Judgment. Any person who wishes to 

comment should do so within sixty (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement, whichever is later. All 

comments received during this period 

will be considered by the United States, 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time before the Court’s entry of 

the Final Judgment. The comments and 

the response of the United States will be 

filed with the Court. In addition, 

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 the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against the Defendant. The United 

States is satisfied, however, that the 

proposed relief is an appropriate 

remedy in this matter. Given the facts of 

this case, including the Defendant’s selfreporting of the violation and 

willingness to promptly settle this 

matter, the United States is satisfied that 

the proposed civil penalty is sufficient 

to address the violation alleged in the 

Complaint and to deter violations by 

similarly situated entities in the future, 

without the time, expense, and 

uncertainty of a full trial on the merits. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a 60-day 

comment period, after which the Court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

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

making that determination, the Court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) the impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

Court’s inquiry is necessarily a limited 

one as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); United States v. U.S. 

Airways Grp., Inc., 38 F. Supp. 3d 69, 

75 (D.D.C. 2014) (explaining that the 

‘‘court’s inquiry is limited’’ in Tunney 

Act settlements); United States v. InBev 

N.V./S.A., No. 08–1965 (JR), 2009 U.S. 

Dist. LEXIS 84787, at *3 (D.D.C. Aug. 

11, 2009) (noting that a court’s review 

of a 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 

Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 51923 

complaint was reasonable, and whether 

the mechanism to enforce the final 

judgment are clear and manageable’’). 

As the U.S. Court of Appeals for the 

District of Columbia Circuit has held, 

under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations in the government’s 

complaint, whether the proposed Final 

Judgment is sufficiently clear, whether 

its enforcement mechanisms are 

sufficient, and whether it may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

proposed Final Judgment, a court may 

not ‘‘make de novo determination of 

facts and issues.’’ United States v. W. 

Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 

1993) (quotation marks omitted); see 

also Microsoft, 56 F.3d at 1460–62; 

United States v. Alcoa, Inc., 152 F. 

Supp. 2d 37, 40 (D.D.C. 2001); United 

States v. Enova Corp., 107 F. Supp. 2d 

10, 16 (D.D.C. 2000); InBev, 2009 U.S. 

Dist. LEXIS 84787, at *3. Instead, ‘‘[t]he 

balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in 

the first instance, to the discretion of the 

Attorney General.’’ W. Elec. Co., 993 

F.2d at 1577 (quotation marks omitted). 

‘‘The court should bear in mind the 

flexibility of the public interest inquiry: 

the court’s function is not to determine 

whether the resulting array of rights and 

liabilities is one that will best serve 

society, but only to confirm that the 

resulting settlement is within the 

reaches of the public interest.’’ 

Microsoft, 56 F.3d at 1460 (quotation 

marks omitted); see also United States v. 

Deutsche Telekom AG, No. 19–2232 

(TJK), 2020 WL 1873555, at *7 (D.D.C. 

Apr. 14, 2020). More demanding 

requirements would ‘‘have enormous 

practical consequences for the 

government’s ability to negotiate future 

settlements,’’ contrary to congressional 

intent. Id. at 1456. ‘‘The Tunney Act 

was not intended to create a 

disincentive to the use of the consent 

decree.’’ Id. 

The United States’ predictions about 

the efficacy of the remedy are to be 

afforded deference by the Court. See, 

e.g., Microsoft, 56 F.3d at 1461 

(recognizing courts should give ‘‘due 

respect to the Justice Department’s . . . 

view of the nature of its case’’); United 

States v. Iron Mountain, Inc., 217 F. 

Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In 

evaluating objections to settlement 

agreements under the Tunney Act, a 

court must be mindful that [t]he 

government need not prove that the 

settlements will perfectly remedy the 

alleged antitrust harms[;] it need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’) (internal citations omitted); 

United States v. Republic Servs., Inc., 

723 F. Supp. 2d 157, 160 (D.D.C. 2010) 

(noting ‘‘the deferential review to which 

the government’s proposed remedy is 

accorded’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 

6 (D.D.C. 2003) (‘‘A district court must 

accord due respect to the government’s 

prediction as to the effect of proposed 

remedies, its perception of the market 

structure, and its view of the nature of 

the case.’’). The ultimate question is 

whether ‘‘the remedies [obtained by the 

Final Judgment are] so inconsonant with 

the allegations charged as to fall outside 

of the ‘reaches of the public interest.’’’ 

Microsoft, 56 F.3d at 1461 (quoting W. 

Elec. Co., 900 F.2d at 309). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

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

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

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

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

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of using 

consent judgments proposed by the 

United States in antitrust enforcement, 

Public Law 108–237 § 221, and added 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

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

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

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). This language 

explicitly wrote into the statute what 

Congress intended when it first enacted 

the Tunney Act in 1974. As Senator 

Tunney explained: ‘‘[t]he court is 

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Sen. Tunney). ‘‘A court 

can make its public interest 

determination based on the competitive 

impact statement and response to public 

comments alone.’’ U.S. Airways, 38 F. 

Supp. 3d at 76 (citing Enova Corp., 107 

F. Supp. 2d at 17). 

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Date: September 2, 2021. 

Respectfully submitted, 

lllllllllllllllllllll

Kenneth A. Libby, 

Special Attorney, U.S. Department of Justice, 

Antitrust Division, c/o Federal Trade 

Commission, 600 Pennsylvania Avenue NW, 

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

2694, Email: klibby@ftc.gov. 

[FR Doc. 2021–20149 Filed 9–16–21; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed 

Consent Decree Under the Clean Air 

Act 

On September 13, 2021, the 

Department of Justice lodged a proposed 

Consent Decree with the United States 

District Court for the Southern District 

of Texas in the lawsuit entitled United 

States of America v. Formosa Plastics 

Corporation, Texas, Civil Action No. 

21–00043. 

In this action, the United States, on 

behalf of the U.S. Environmental 

Protection Agency, filed a Complaint 

and proposed Consent Decree pertaining 

to Clean Air Act (‘‘CAA’’) violations at 

the petrochemical manufacturing plant 

(‘‘Facility’’) owned and operated by 

Formosa Plastics Corporation, Texas 

(‘‘Defendant’’) in Point Comfort, Texas. 

This case stems in part from a May 2, 

2013 accidental release of an extremely 

hazardous substance that caused a fire 

and explosion at the Facility that 

resulted in multiple injuries to workers. 

In the Complaint, the United States 

alleged that the Defendant violated 

Section 112(r)(1) of the CAA, 42 U.S.C.