Federal Register / Vol. 87, No. 87 / Thursday, May 5, 2022 / Notices 26787 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Biglari Holdings Inc.; 

Response to Public Comment 

Pursuant to the Antitrust Procedures 

and Penalties Act, 15 U.S.C. 16(b)–(h), 

the United States hereby publishes 

below the Response to Public Comment 

on the Proposed Final Judgment in 

United States v. Biglari Holdings Inc., 

Civil Action No. 1:21–cv–03331–TSC, 

which was filed in the United States 

District Court for the District of 

Columbia on April 29, 2022, together 

with a copy of the one comment 

received by the United States. 

A copy of the comment and the 

United States’ response to the comment 

is available at https://www.justice.gov/ 

atr/case/us-v-biglari-holding-inc. Copies 

of the comment and the United States’ 

response are available for inspection at 

the Office of the Clerk of the United 

States District Court for the District of 

Columbia. Copies of these materials may 

also be obtained from the Antitrust 

Division upon request and payment of 

the copying fee set by Department of 

Justice regulations. 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Biglari Holdings Inc., Defendant. 

Civil Action No. 1:21–cv–03331–TSC 

Response of Plaintiff United States to 

Public Comment on the Proposed Final 

Judgment 

Pursuant to the requirements of the 

Antitrust Procedures and Penalties Act 

(the ‘‘APPA’’ or ‘‘Tunney Act’’), 15 

U.S.C. 16, the United States hereby 

responds to the one public comment 

received regarding the proposed Final 

Judgment in this case. After careful 

consideration of the submitted 

comment, the United States continues to 

believe that the civil penalty required by 

the proposed Final Judgment provides 

an effective and appropriate remedy for 

the violation alleged in the Complaint 

and is therefore in the public interest. 

The United States will move the Court 

for entry of the proposed Final 

Judgment after the public comment and 

this response have been published as 

required by 15 U.S.C. 16(d). 

I. Procedural History 

On March 16, 2020, Biglari Holdings 

Inc. (‘‘Biglari’’) acquired 55,141 voting 

securities of Cracker Barrel Old Country 

Store, Inc. (‘‘Cracker Barrel’’), which 

increased Biglari’s holdings of Cracker 

Barrel voting securities to a value of 

approximately $159.4 million. Biglari 

did not file a notification with the 

Department of Justice and the Federal 

Trade Commission (collectively, the 

‘‘federal antitrust agencies’’) or observe 

a waiting period before acquiring the 

Cracker Barrel voting securities. The 

United States filed a civil antitrust 

Complaint on December 22, 2021, 

seeking civil penalties for the violation 

of 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’’). The Complaint 

alleges that Biglari was in continuous 

violation of the HSR Act from March 16, 

2020 through July 20, 2020, when the 

waiting period expired on its corrective 

filing. See Dkt. No 1–1. 

At the same time the Complaint was 

filed, the United States filed a proposed 

Final Judgment and a Stipulation and 

Order in which the United States and 

Defendant consent to entry of the 

proposed Final Judgment after 

compliance with the requirements of the 

Tunney Act, 15 U.S.C. 16. See Dkt. Nos. 

1–2, 1–3. The proposed Final Judgment 

requires Defendant to pay a civil penalty 

of $1,374,190 within 30-days of entry of 

the Final Judgment. 

Pursuant to the APPA’s requirements, 

the United States filed a Competitive 

Impact Statement (‘‘CIS’’) on December 

22, 2021, describing the transaction and 

the proposed Final Judgment. See Dkt. 

No. 1–4. On January 5, 2022, the United 

States published the Complaint, 

proposed Final Judgment and CIS in the 

Federal Register, see 87 FR 484 (2022), 

and caused notice regarding the same, 

together with directions for the 

submission of written comments 

relating to the proposed Final Judgment, 

to be published in The Washington Post 

for seven days, from December 31, 2021 

through January 6, 2022. The 60-day 

period for public comment ended on 

March 7, 2022. The United States 

received one comment, attached as 

Exhibit A. 

II. The Complaint and the Proposed 

Final Judgment 

The Complaint alleges that Biglari 

was in continuous violation of the HSR 

Act each day during the period 

beginning March 16, 2020 through July 

20, 2020, when the waiting period 

expired on its corrective filing. In 

particular, the Complaint alleges that 

Biglari held 2 million Cracker Barrel 

voting securities prior to March 16, 

2020, with a value of approximately 

$155.1 million. On March 16, 2020, two 

entities controlled by Biglari acquired 

an additional 55,141 Cracker Barrel 

voting securities. When aggregated with 

the voting securities already held by 

Biglari, these acquisitions resulted in 

Biglari holding 2,055,141 Cracker Barrel 

voting securities, valued at 

approximately $159.4 million. Biglari’s 

holdings of Cracker Barrel voting 

securities therefore exceeded the size of 

transaction threshold, which in March 

2020 was $94 million. Additionally, 

Biglari and Cracker Barrel exceeded the 

size of person thresholds, which in 

March 2020 were $18.8 million and 

$188 million. The HSR Act required 

Biglari to file a notification with the 

federal antitrust agencies and to observe 

a waiting period before consummating 

the March 16, 2020, acquisitions of 

Cracker Barrel voting securities. By 

acquiring the voting securities without 

filing the required notification and 

observing the waiting period, Biglari 

violated the HSR Act, Section 7A of the 

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

The violation alleged in the 

Complaint is not Biglari’s first violation 

of the HSR Act. On September 25, 2012, 

the United States filed a complaint 

alleging that Biglari’s acquisitions of 

voting securities of Cracker Barrel in 

June 2011 violated the HSR Act. United 

States v. Biglari Holdings, Inc., Civil 

Action No. 1:12–cv–01586 (D.D.C. 

2012). At the same time the 2012 

complaint was filed, the United States 

filed a proposed final judgment settling 

the case. The final judgment, entered by 

the court on May 30, 2013, required 

Biglari to pay a civil penalty of $850,000 

for violating the reporting and waiting 

period requirements of the HSR Act. 

As explained in the CIS, the proposed 

Final Judgment imposes a civil penalty 

of $1,374,190 and is designed to address 

the HSR violation alleged in the 

Complaint, penalize the Defendant, and 

deter the Defendant and others from 

violating the HSR Act. The penalty 

amount reflects that this is Defendant’s 

second violation of the HSR Act in 

connection with the same issuer 

(Cracker Barrel), that Defendant did not 

make a corrective filing until the 

Federal Trade Commission’s Premerger 

Notification Office notified Defendant of 

its failure to file, and that Defendant did 

not consult HSR counsel prior to its 

acquisition as it had committed to do in 

connection with its 2011 HSR Act 

violation. See Dkt. No. 1–4. 

III. Standard of Judicial Review 

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 


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26788 Federal Register / Vol. 87, No. 87 / Thursday, May 5, 2022 / Notices 

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 APPA 

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 

complaint was reasonable, and whether 

the mechanisms to enforce the final 

judgment are clear and manageable’’). 

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. Microsoft, 56 F.3d at 1456. ‘‘The 

Tunney Act was not intended to create 

a disincentive to the use of the consent 

decree.’’ Id. 

The United States’ predictions about 

the efficacy of the remedy are to be 

afforded deference by the Court. See, 

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

(recognizing courts should give ‘‘due 

respect to the Justice Department’s . . . 

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

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

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

evaluating objections to settlement 

agreements under the Tunney Act, a 

court must be mindful that [t]he 

government need not prove that the 

settlements will perfectly remedy the 

alleged antitrust harms[;] it need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’) (internal citations omitted); 

United States v. Republic Servs., Inc., 

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

(noting ‘‘the deferential review to which 

the government’s proposed remedy is 

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

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

accord due respect to the government’s 

prediction as to the effect of proposed 

remedies, its perception of the market 

structure, and its view of the nature of 

the case.’’). The ultimate question is 

whether ‘‘the remedies [obtained by the 

Final Judgment are] so inconsonant with 

the allegations charged as to fall outside 

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

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

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

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

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

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

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

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

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of using 

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 APPA). This language 

explicitly wrote into the statute what 

Congress intended when it first enacted 

the APPA 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). 

IV. Summary of the Comment and the 

United States’ Response 

The United States received one public 

comment in response to the proposed 

Final Judgment from Alan Fishbein, a 


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Federal Register / Vol. 87, No. 87 / Thursday, May 5, 2022 / Notices 26789 

1The maximum daily civil penalty, which had 

been $10,000, was increased to $11,000 for 

violations occurring on or after November 20, 1996, 

pursuant to the Debt Collection Improvement Act 

of 1996, Public Law 104–134 § 31001(s) and FTC 

Rule 1.98, 16 DC.F.R. 1.98, 61 FR 54548 (Oct. 21, 

1996). The maximum daily penalty in effect at the 

time of Biglari’s corrective filing was $43,280 per 

day. The maximum daily penalty was increased to 

$46,517 for violations occurring on or after January 

10, 2022, 87 FR 1070 (Jan. 10, 2022). 

2Aside from a redaction of personally identifiable 

information the comment is provided in its entirety. 

member of the public. Mr. Fishbein 

asserts that the settlement is inadequate. 

He asserts that Biglari should be 

required to divest its entire holdings in 

Cracker Barrel and be precluded from 

acquiring any Cracker Barrel voting 

securities in the future. See Exhibit A. 

The United States believes that 

nothing in the comment warrants a 

change to the proposed Final Judgment 

or supports a conclusion that the 

proposed Final Judgment is not in the 

public interest. Section (g)(a) of the HSR 

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

the United States may recover a civil 

penalty for violations of the Act up to 

$43,280 per day of violation.1 Biglari 

will pay a penalty of $1,374,190 

pursuant to the terms of the proposed 

Final Judgment, representing 25 percent 

of the statutory maximum. The United 

States has determined that this amount 

will appropriately penalize Biglari and 

deter it and others from future 

violations of the HSR Act. As required 

by the APPA, the comment 2 and this 

response will be published in the 

Federal Register. 

V. Conclusion 

After careful consideration of the 

public comment, the United States 

continues to believe that the proposed 

Final Judgment provides an effective 

and appropriate remedy for the 

violation alleged in the Complaint and 

is therefore in the public interest. The 

United States will move this Court to 

enter the Final Judgment after the 

comment and this response are 

published as required by 15 U.S.C. 

16(d). 

Dated: April 29, 2022. 

Respectfully submitted, 

FOR PLAINTIFF, UNITED STATES OF 

AMERICA. 

/s/Kenneth A. Libby 

lllllllllllllllllllll

KENNETH A. LIBBY, 

Special Attorney for the United States, c/o 

Federal Trade Commission, 600 

Pennsylvania Avenue NW, Washington, DC 

20580, Tel: (202) 326–2694, Email: klibby@

ftc.gov. 

Exhibit A 

[FR Doc. 2022–09595 Filed 5–4–22; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

National Institute of Corrections 

Advisory Board; Notice of Meeting 

This notice announces a forthcoming 

virtual meeting of the National Institute 

of Corrections (NIC) Advisory Board. 

The meeting will be open to the public. 

Name of the Committee: NIC 

Advisory Board. 

General Function of the Committee: 

To aid the National Institute of 

Corrections in developing long-range 

plans, advise on program development, 

and recommend guidance to assist NIC’s 

efforts in the areas of training, technical 

assistance, information services, and 

policy/program development assistance 

to Federal, state, and local corrections 

agencies. 

Date and Time: 12:00–4:00 p.m. EDT 

on Wednesday, June 1, 2022; 12:00–4:00 

p.m. EDT on Thursday, June 2, 2022 

(approximate times each day). 

Location: Virtual Platform. 

Contact Person: Leslie LeMaster, 

Executive Assistant, National Institute 

of Corrections, 320 First Street NW, 

Room 901–3, Washington, DC 20534. To 

contact Ms. LeMaster, please call (303) 

338–6620. 

Agenda: Over the course of two days 

(June 1–2, 2022), the Advisory Board 

will receive an (1) Agency Report from 

the NIC Acting Director and (2) 

overviews/updates from the agency’s 

programmatic divisions (jails, prisons, 

community services, and/or academy 

divisions). Time for questions and 

counsel is built in to the agenda. Initial 

planning for FY23 Advisory Board 

meeting(s) will also occur. 

Procedure: On June 1–2, 2022, the 

meetings are open to the public. 

Interested persons may present data, 

information, or views, orally or in 

writing, on issues pending before the 

committee between approximately 3:00 

p.m. to 3:15 p.m. each day. Written 

submissions may be submitted to the 

contact person on or before May 18, 

2022. Time allotted for each 

presentation may be limited. Those 

desiring to make formal oral 

presentations should notify the contact 

person and submit a brief written 

statement of the general nature of the 

evidence or arguments they wish to 

present, the names and addresses of 

proposed participants, and an 

indication of the approximate time 

requested on or before May 18, 2022. 

General Information: NIC welcomes 

the attendance of the public at its 

advisory committee meetings and will 

make every effort to accommodate 

persons with physical disabilities or 

special needs. If you require special 

accommodations due to a disability, 

please contact Leslie LeMaster at least 7 

days in advance of the meeting. Notice 

of this meeting is given under the 


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Tapp, Jacqueline 

From: 

Sent: 

To: 

Subject: 

alan fishbein----

Wednesclay, ~M 

bccompliance 

FTC Fines Biglari Holdings Inc. for Repeatedly Violating Antitrust Laws 

I find this settlement wholly inadequate. This guy is a scumbag who just rubbed the HSR Act in the public's and the FTC's 

faces. In addition to the $1.4 mm fine, Bllgari Holdings should be required to divest its entire holdings of Cracker Barrel 

stock to thil public in a reasonably short period say 60 days at whatever aggregate price it can get for them. I presume 

i.n the settlement 8ilgari agrees to not violate the HSR law in the future but in addltion it should agree.to not purchase 

any shares.of Cracker Barrel stock, 

Alan Fishbein.