Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices 66557

1 Legislation to sunset the Commission on

December 31, 1995, and transfer remaining

functions is now under consideration in Congress.

Until further notice, parties submitting pleadings

should continue to use the current name and

address.

1 Legislation to sunset the Commission on

December 31, 1995, and transfer remaining

functions is now under consideration in Congress.

Until further notice, parties submitting pleadings

should continue to use the current name and

address.

Summy, Norfolk Southern Corporation,

Three Commercial Place, Norfolk, VA

23510–2191.

As a condition to use of this

exemption, any employees affected by

the transaction will be protected

pursuant to the conditions set forth in

New York Dock Ry.—Control—Brooklyn

Eastern Dist., 360 I.C.C. 60 (1979).

Decided: December 15, 1995.

By the Commission, David M. Konschnik,

Director, Office of Proceedings.

Vernon A. Williams,

Secretary .

[FR Doc. 95–31085 Filed 12–21–95; 8:45 am]

BILLING CODE 7035–01–P

[Finance Docket No. 32820]

Norfolk Southern Railway Company

and Atlantic and East Carolina Railway

Company—Lease and Operation

Exemption—North Carolina Railroad

Company

AGENCY: Interstate Commerce

Commission.

ACTION: Notice of Exemption.

SUMMARY: The Commission exempts

from the prior approval requirements of

49 U.S.C. 11343–45 the renewal of a

lease to allow Norfolk Southern Railway

Company and Atlantic and East

Carolina Railway Company to continue

to lease and operate approximately 317

miles of North Carolina Railroad

Company’s rail line, between Charlotte

and Morehead City, NC, subject to

standard employee protective

conditions.

DATES: This exemption is effective on

December 22, 1995. Petitions to reopen

must be filed by January 11, 1996.

ADDRESSES: Send pleadings referring to

Finance Docket No. 32820 to: (1) Office

of the Secretary, Case Control Branch,

Interstate Commerce Commission, 1201

Constitution Avenue, N.W.,

Washington, DC 20423; 1 (2) Robert J.

Cooney, Norfolk Southern Railway, 3

Commercial Place, Norfolk, VA 23510;

(3) Scott M. Saylor, North Carolina

Railroad Company, 234 Fayetteville

Street Mall, Raleigh, NC 27602; and (4)

Betty Jo Christian, Steptoe & Johnson,

1330 Connecticut Avenue, N.W.,

Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT:

Beryl Gordon, (202) 927–5610. [TDD for

the hearing impaired: (202) 927–5721.]

SUPPLEMENTARY INFORMATION:

Additional information is contained in

the Commission’s decision. To purchase

a copy of the full decision, write to, call,

or pick up in person from: DC News &

Data, Inc., Room 2229, Interstate

Commerce Commission Building, 1201

Constitution Avenue, N.W.,

Washington, DC 20423. Telephone:

(202) 289–4357/4359. [Assistance for

the hearing impaired is available

through TDD services (202) 927–5721.]

Decided: December 13, 1995.

By the Commission, Chairman Morgan,

Vice Chairman Owen, and Commissioner

Simmons.

Vernon A. Williams,

Secretary

[FR Doc. 95–31176 Filed 12–21–95; 8:45 am]

BILLING CODE 7035–01–P

[Finance Docket No. 32735]

North Carolina Ports Railway

Commission—Acquisition of Control

Exemption—Beaufort & Morehead

Railway, Inc.

AGENCY: Interstate Commerce

Commission.

ACTION: Notice of exemption.

SUMMARY: The Commission, under 49

U.S.C. 10505, exempts from the prior

approval requirements of 49 U.S.C.

11343–45 the acquisition of control by

North Carolina Ports Railway

Commission (NCPRC) of Beaufort &

Morehead Railway, Inc. (BMRI). NCPRC,

a noncarrier, currently controls the

Beaufort & Morehead Railroad

Company. To avoid unlawful control by

NCPRC, BMRI is being held in an

independent voting trust pending

Commission approval or exemption of

this control transaction. The exemption

is subject to standard labor protective

conditions.

DATES: This exemption will be effective

on January 21, 1996. Petitions for stay

must be filed by January 2, 1996.

Petitions to reopen must be filed by

January 11, 1996.

ADDRESSES: Send pleadings referring to

Finance Docket No. 32735 to: (1) Office

of the Secretary, Case Control Branch,

Interstate Commerce Commission,1 1201

Constitution Avenue, N.W.,

Washington, DC 20423; and (2)

Petitioner’s representative: Fritz R.

Kahn, 1100 New York Avenue, N.W.,

Suite 750 West, Washington, DC 20005–

3934.

FOR FURTHER INFORMATION CONTACT:

Beryl Gordon, (202) 927–5610. [TDD for

the hearing impaired: (202) 927–5721.]

SUPPLEMENTARY INFORMATION:

Additional information is contained in

the Commission’s decision. To purchase

a copy of the full decision, write to, call,

or pick up in person from: DC NEWS &

DATA, INC., Room 2229, Interstate

Commerce Commission Building, 1201

Constitution Avenue, N.W.,

Washington, DC 20423. Telephone:

(202) 289–4357/4359. [Assistance for

the hearing impaired is available

through TDD services at (202) 927–

5721.]

Decided: December 13, 1995.

By the Commission, Chairman Morgan,

Vice Chairman Owen, and Commissioner

Simmons.

Vernon A. Williams,

Secretary.

[FR Doc. 95–31175 Filed 12–21–95; 8:45 am]

BILLING CODE 7035–01–P

DEPARTMENT OF JUSTICE

Antitrust Division

United States and State of Texas v.

Kimberly-Clark Corporation and Scott

Paper Company; Proposed Final

Judgment and Competitive Impact

Statement

Notice is hereby given pursuant to the

Antitrust Procedures and Penalties Act,

15 U.S.C. section 16(b)–(h), that a

proposed Final Judgment, Stipulation,

and Competitive Impact Statement have

been filed with the United States

District Court for the Northern District

of Texas, Dallas Division in United

States and State of Texas v. KimberlyClark Corporation and Scott Paper

Company, Civil No. 3:95 CV 3055–P, as

to both defendants.

On December 12, 1995, the United

States and the State of Texas filed a

Complaint alleging that the proposed

merger of Kimberly-Clark Corporation

(‘‘Kimberly-Clark’’) and Scott Paper

Company (‘‘Scott’’) would violate

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

Section 18. The Complaint further

alleges that the merger of KimberlyClark and Scott would lessen

competition substantially and tend to

create a monopoly in the sale of

consumer facial tissue and baby wipes

in the United States. The proposed Final

Judgment, filed the same time as the

Complaint, requires Kimberly-Clark to

divest the Scott baby wipes brands,

Baby Fresh and Wash A Bye Baby and
66558 Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices

the Scott facial tissue brand, Scotties,

along with certain tangible and

intangible assets.

Public comment is invited within the

statutory 60-day comment period. Such

comments and responses thereto will be

published in the Federal Register and

filed with the Court. Comments should

be directed to Anthony V. Nanni, Chief,

Litigation I Section, Antitrust Division,

United States Department of Justice,

1401 H Street, N.W., Suite 4000,

Washington, D.C. 20530 (telephone:

202/307–6694).

Constance K. Robinson,

Director of Operations.

United States District Court, Northern

District of Texas, Dallas Division

United States of America and State of

Texas, Plaintiffs, v. Kimberly-Clark

Corporation and Scott Paper Company,

Defendants. Civil Action No.: 3:95 CV 3055–

P. Filed: December 12, 1995.

Stipulation

It is stipulated by and between the

undersigned parties, by their respective

attorneys, that:

1. The Court has jurisdiction over the

subject matter of this action and over

each of the parties hereto, and venue of

this action is proper in the Northern

District of Texas.

2. The parties consent that a Final

Judgment in the form hereto attached

may be filed and entered by the Court,

upon the motion of any party or upon

the Court’s own motion, at any time

after compliance with the requirements

of the Antitrust Procedures and

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

and without further notice to any party

or other proceedings, provided that

either plaintiff has not withdrawn its

consent, which either or both may do at

any time before the entry of the

proposed Final Judgment by serving

notice thereof on defendants and by

filing that notice with the Court.

3. The parties shall abide by and

comply with the provisions of the

proposed Final Judgment pending entry

of the Final Judgment, and shall, from

the date of the filing of this Stipulation,

comply with all the terms and

provisions of the Final Judgment as

though they were in full force and effect

as an order of the Court.

4. In the event either plaintiff

withdraws its consent, or if the

proposed Final Judgment is not entered

pursuant to this Stipulation, this

Stipulation shall be of no effect

whatever and the making of this

Stipulation shall be without prejudice to

any party in this or any other

proceeding.

Dated: December 12, 1995.

For Plaintiff United States:

Anne K. Bingaman

Assistant Attorney General, District of

Columbia #369900.

Lawrence R. Fullerton,

Deputy Asst. Attorney General, District of

Columbia #251264.

Constance K. Robinson,

Director of Operations, District of Columbia

#244800.

Charles E. Biggio, Sr. Counsel,

State of New York (no bar no. assigned)

Anthony V. Nanni, Chief,

Litigation I Section State of New York (no

bar number assigned).

Anthony E. Harris, Attorney,

State of Illinois #01133713, Antitrust Division,

U.S. Department of Justice, 1401 H Street,

N.W., Suite 4000, Washington, D.C. 20530,

(202) 307–6583.

For Plaintiff State of Texas:

Dan Morales,

Attorney General of Texas

Jorge Vega,

First Assistant Attorney General

Laquita A. Hamilton,

Deputy Attorney General

Thomas P. Perkins, Jr.,

Assistant Attorney General, Chief, Consumer

Protection Div.

Mark Tobey,

Assistant Attorney General, Antitrust Section,

State of Texas #22082960, P.O. Box 12548,

Austin TX 78711–2548, (512) 463–2185.

For Defendant Kimberly-Clark Corp.:

William O. Fifield, Esquire,

State of Illinois #0080332, Sidley & Austin,

One First National Plaza, Chicago, Illinois

60603, (312) 853–7474

For Defendant Scott Paper Company:

Michael L. Weiner, Esquire,

State of New York (no bar number assigned)

Skadden, Arps, Slate, Meagher & Flom, 919

Third Avenue, New York, New York 10022–

3897, (212) 735–2632

Executed on: December 11, 1995.

United States District Court, Northern

District of Texas, Dallas Division

United States of American and State of

Texas. Plaintiffs, v. Kimberly-Clark

Corporation and Scott Paper Company,

Defendants. Civil No.: 3:95 CF 3055–P. Filed:

December 12, 1995.

Final Judgment

Whereas, plaintiffs, the United States

of American and the State of Texas,

having filed their Complaint herein on

December 12, 1995, and plaintiffs and

defendants, by their respective

attorneys, having consented to the entry

of this Final Judgment without trial or

adjudication of any issue of fact or law

herein, and without this Final Judgment

constituting any evidence against or an

admission by any party with respect to

any issue of law or fact herein;

And whereas, defendants have agreed

to be bound by the provisions of this

Final Judgment pending its approval by

the Court;

And whereas, prompt and certain

divestiture of certain rights and assets to

assure that competition is not

substantially lessened are the essence of

this agreement;

And whereas, plaintiffs require

defendants to make certain divestitures

for the purpose of establishing viable

competitors in the sale of baby wipes

and facial tissue;

And whereas, defendants have

represented to plaintiffs that the

divestitures required below can and will

be made and that defendants will later

raise no claims of hardship or difficulty

as grounds for asking the Court to

modify any of the divestiture provisions

contained below;

New, therefore, before the taking of

any testimony, and without trial or

adjudication of any issue of fact or law

herein, and upon consent of the parties

hereto, it is hereby Ordered, Adjudged,

and Decreed as follows:

I. Jurisdiction

This Court has jurisdiction over each

of the parties hereto and the subject

matter of this action. The Complaint

states a claim upon which relief may be

granted against defendants under

Section 7 of the Clayton Act, as

amended (15 U.S.C. 18).

II. Definitions

As used in this Final Judgment:

A. ‘‘Kimberly-Clark’’ means defendant

Kimberly-Clark Corporation, a Delaware

corporation with its headquarters in

Dallas, Texas, and includes its

successors and assigns, and its

subsidiaries, directors, officers,

managers, agents, and employees.

B. ‘‘Scott’’ means defendant Scott

Paper Company, a Pennsylvania

corporation with its headquarters in

Boca Raton, Florida, and includes its

successors and assigns, and its

subsidiaries, directors, officers,

managers, agents, and employees.

C. ‘‘Relevant Wet Wipes Assets’’

means:

(1) The Dover, Delaware plant of

Scott, including all tangible assets used

by Scott in connection with its business

of researching, developing, making,

having made, packaging, distributing, or

selling products of the Dover plant,

including but not limited to: the

manufacturing plant and associated web

making, converting, packaging and

distributing equipment and facilities,

inventory, real property, and any other

interests, or tangible assets or
Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices 66559

improvements, associated with the

Dover plant;

(2) A twenty-five year, exclusive,

royalty-free and assignable license,

perpetually renewable at the licensee’s

option, to make, have made, use or sell

in the United States any label of any

baby wipes product currently produced

at the Dover, Delaware plant, including

but not limited to the Baby Fresh, Washa-Bye Baby, Baby Fresh Gentle Touch,

and Kid Fresh labels, and any

improvement to or line extension of

those labels; and

(3) All intangible assets, wherever

located, that relate in any way to the

tangible assets and labels described

above (including but not limited to:

manufacturing, converting, packaging

and distribution know-how); exclusive,

assignable rights to all patents,

proprietary technology, supply

contracts, and business information

solely dedicated to the tangible assets or

the labels described above; rights in real

and personal property; and

nonexclusive, assignable rights to all

related patents, proprietary technology

and business information used in

connection with, but not solely

dedicated to the tangible assets or the

labels described above.

D. ‘‘Relevant Facial Tissue Assets’’

means:

(1) A twenty-five year, exclusive,

royalty-free and assignable license,

perpetually renewable at the licensee’s

option, to make, have made, use or sell

in the United States any facial tissue

under the Scotties label, and a covenant

that defendants shall not make, have

made, use or sell in the United States

any facial tissue under the Scott or

Scotties label;

(2) Any two of the following four

tissue mills: the Scott tissue mill in

Marinette, Wisconsin; the Scott tissue

mill in Ft. Edward, New York; the

Kimberly-Clark Lakeview tissue mill in

Neenah, Wisconsin; and the KimberlyClark Badger-Globe tissue mill in

Neenah, Wisconsin; provided, however,

that in the event a purchaser elects to

purchase the Marinette, WI tissue mill

of Scott, defendants shall not be

required to divest the DRC tissue

machine and associated converting

assets, located in an adjacent facility on

the Marinette tissue mill site and not

currently used for making facial tissue,

in which case defendants shall, at the

option of the purchaser, enter into an

arrangement with respect to the

measures necessary to separate the DRC

tissue machine from the rest of the

Marinette tissue mill, including but not

limited to a long-term agreement to

provide, on a nondiscriminatory basis,

shared utilities, such as water, electric,

steam, and treatment of waste or

effluent;

(3) At the purchaser’s option. (a) a

commitment by defendants to enter into

up to a three-year agreement to sell to

purchaser, at such rates as to which

purchaser and defendants may agree, as

much as 25,000 metric tons/year of

tissue parent rolls; and (b) a

commitment by defendants to enter into

up to a three-year agreement to buy from

the purchaser, at such rates as to which

purchaser and defendants may agree, as

much as 25,000 metric tons/year of

tissue parent rolls;

(4) All tangible assets used solely in

connection with the business of making,

having made, using, converting,

packaging, distributing, or selling any

product from any of the tissue mills

identified in Section II(D)(2), including

but not limited to: the tissue mill and

associated papermaking, converting,

packaging and distribution equipment

and facilities; real property; or tangible

assets or improvements, associated with

the tissue mill; and

(5) All intangible assets, not otherwise

addressed above, wherever located, that

relate in any way solely to the tangible

assets described above or the Scotties

label (including but not limited to:

papermaking, converting, packaging and

distributing know-how); exclusive,

assignable rights to all patents,

proprietary technology, supply

contracts, and business information and

rights in real and personal property

solely dedicated to the tangible assets or

the Scotties label; and nonexclusive,

assignable rights to all related patents,

proprietary technology and business

information used in connection with,

but not solely dedicated to the tangible

assets or the Scotties label.

E. ‘‘Label’’ means all legal rights

associated with a brand’s trademarks,

trade names, copyrights, designs, and

trade dress (and any improvements,

extensions or modifications); the

brand’s trade secrets; know-how or

other proprietary information for

making, having made, using and selling

the brand, including, but not limited to,

packaging, sales, marketing and

distribution know-how and

documentation, such as customer lists.

III. Applicability

A. The provisions of this Final

Judgment apply to the defendants, their

successors and assigns, their

subsidiaries, directors, officers,

managers, agents, and employees, and

all other persons in active concert or

participation with any of them who

shall have received actual notice of this

Final Judgment by personal service or

otherwise.

B. Defendants shall require, as a

condition of the sale or other

disposition of all or substantially all of

the Relevant Wet Wipes Assets and

Relevant Facial Tissue Assets, that the

purchaser or purchasers agree to be

bound by the provisions of this Final

Judgment.

IV. Divestitures

A. Defendants are hereby ordered and

directed, within 150 days after filing of

the Final Judgment, to divest to a

purchaser the Relevant Wet Wipes

Assets, in accordance with the

procedures specified in this Final

Judgment.

Defendants are ordered and directed,

within 180 days after filing of the Final

Judgment, to divest to one or more

purchasers the Relevant Facial Tissue

Assets, in accordance with the

procedures specified in this Final

Judgment.

B. Defendants agree to take all

reasonable steps to accomplish the

divestitures as expeditiously and timely

as possible. Plaintiffs may, in their sole

discretion, extend the time period for

any divestiture for an additional period

of time not to exceed two months.

C. In accomplishing the divestitures

ordered by this Final Judgment,

defendants promptly shall make known,

by usual and customary means, the

availability of the Relevant Wet Wipes

Assets and Relevant Facial Tissue

Assets. Defendants shall provided any

person making an inquiry regarding a

possible purchase with a copy of the

Final Judgment. Defendants shall also

offer to furnish to all bona fide

prospective purchasers, subject to

customary confidentiality assurances,

all reasonably necessary information

regarding the Relevant Wet Wipes

Assets and the Relevant Facial Tissue

Assets, except such information subject

to attorney-client privilege or attorney

work product privilege. Defendants

shall make available such information to

plaintiffs at the same time that such

information is made available to any

other person. Defendants shall permit

prospective purchasers of the Relevant

Wet Wipes Assets and Relevant Facial

Tissue Assets to have access to

personnel and to make such inspection

of physical facilities and any and all

financial, operational, or other

documents and information as may be

relevant to the divestitures required by

this Final Judgment.

D. Unless plaintiffs otherwise consent

in writing, divestitures under Section

IV(A), or by the trustee appointed

pursuant to Section V, shall include the

Relevant Wet Wipes Assets and

Relevant Facial Tissue Assets and be
66560 Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices

accomplished in such a way as to satisfy

plaintiffs, in their sole discretion, that

the Relevant Wet Wipes Assets and

Relevant Facial Tissue Assets can and

will be used by the purchaser or

purchasers as part of viable, ongoing

businesses engaged in the selling of

baby wipes and facial tissue at

wholesale to retail stores. Each

divestiture shall be made to a purchaser

or purchasers for whom it is

demonstrated to plaintiffs’ satisfaction

that (1) the purchase or purchases are

for the purpose of competing effectively

in making and selling branded baby

wipes and/or facial tissue at wholesale

to retail stores and other customers; and

(2) the purchaser or purchasers have or

soon will have the managerial,

operational, and financial capability to

compete effectively in making and

selling branded baby wipes and/or facial

tissue at wholesale to retail stores; and

(3) none of the terms of any agreement

between the purchaser or purchasers

and defendants give defendants the

ability artificially to raise the

purchaser’s or purchasers’ costs, lower

the purchaser’s or purchasers’

efficiency, or otherwise interfere in the

ability of the purchaser or purchasers to

compete effectively. Although Sections

II(D)(2) and IV(A) require a sale of any

two of four tissue mills, plaintiffs can,

in their sole discretion, approve a

divestiture involving a sale of less than

two tissue mills listed in Section II(D),

if convinced that such divestiture is

sufficient to satisfy their competitive

concerns.

E. Defendants shall exercise any

residual right in any label licensed

pursuant to this Final Judgment solely

for the purpose of protecting their

lawful intellectual property rights.

Defendants shall not, in any

circumstance, exercise any such right to

impair or inhibit in any way a licensee’s

ability to compete, and they shall not

exercise such right, directly or

indirectly, to obtain competitivelysensitive information pertaining to any

licensee.

V. Appointment of Trustee

A. If defendants have not

accomplished any divestiture required

by Section IV within the time specified

therein, defendants shall notify

plaintiffs of that fact in writing. Within

ten (10) calendar days of their receipt of

such written notice, plaintiffs shall

provide defendants with written notice

of the names and qualifications of not

more than two (2) nominees for the

position of trustee for the required

divestiture. Defendants shall notify

plaintiffs within five (5) calendar days

thereafter whether either or both of such

nominees are acceptable. If either or

both of such nominees are acceptable to

defendants, plaintiffs shall notify the

Court of the person upon whom the

parties have agreed and the Court shall

appoint that person as the trustee. If

neither nominee is acceptable to

defendants, they shall furnish to

plaintiffs, within ten (10) calendar days

after plaintiffs provide the names of

their nominees, written notice of the

names and qualifications of not more

than two (2) nominees for the position

of trustee for the required divestiture. If

either or both of such nominees are

acceptable to plaintiffs, plaintiffs shall

notify the Court of the person upon

whom the parties have agreed and the

Court shall appoint that person as the

trustee. If neither nominee is acceptable

to plaintiffs, plaintiffs shall furnish the

Court the names and qualifications of its

and defendants’ proposed nominees.

The Court may hear the parties as to the

nominees’ qualifications and shall

appoint one of the nominees as the

trustee.

B. If defendants have not

accomplished either of the divestitures

required by Section IV of this Final

Judgment at the expiration of the time

period specified therein, subject to the

selection process described in Section

V(A), the appointment by the Court of

the trustee shall become effective. The

trustee shall then take steps to effect the

divestiture(s) specified in Section IV(A).

C. After the trustee’s appointment has

become effective, only the trustee shall

have the right to sell the Relevant Wet

Wipes Assets or Relevant Facial Tissue

Assets. The trustee shall have the power

and authority to accomplish the

divestiture(s) to a purchaser acceptable

to plaintiffs at such price and on such

terms as are then obtainable upon the

best reasonable effort by the trustee,

subject to the provisions of Section IV

of this Final Judgment, and shall have

such other powers as this Court shall

deem appropriate. Defendants shall not

object to the sale of the Relevant Wet

Wipes Assets or Relevant Facial Tissue

Assets by the trustee on any grounds

other than the trustee’s malfeasance.

Any such objection by defendants must

be conveyed in writing to plaintiffs and

the trustee no later than fifteen (15)

calendar days after the trustee has

notified defendants of the proposed

licensing and sale in accordance with

Section VI of this Final Judgment.

D. The trustee shall serve at the cost

and expense of defendants, shall receive

compensation based on a fee

arrangement which provides an

incentive based on the price and terms

of the divestiture and the speed with

which it is accomplished, and shall

serve on such other terms and

conditions as the Court may prescribe;

provided however, that the trustee shall

receive no compensation, nor incur any

costs or expenses (other than related to

the selection process), prior to the

effective date of his or her appointment.

The trustee shall account for all monies

derived. After approval by the Court of

the trustee’s accounting, including fees

for its services, all remaining monies

shall be paid to defendants and the trust

shall then be terminated.

E. Defendants shall take no action to

interfere with or impede the trustee’s

accomplishment of the divestiture of the

Relevant Wet Wipes Assets or Relevant

Facial Tissue Assets and shall use its

best efforts to assist the trustee in

accomplishing the required divestiture.

Subject to a customary confidentiality

agreement, the trustee shall have full

and complete access to the personnel,

books, records, and facilities related to

the Relevant Wet Wipes Assets or the

Relevant Facial Tissue Assets, and

defendants shall develop such financial

or other information necessary to the

divestiture of the Relevant Wet Wipes

Assets and Relevant Facial Tissue

Assets.

F. After its appointment becomes

effective, the trustee shall file monthly

reports with the parties and the Court

setting forth the trustee’s efforts to

accomplish divestiture of the Relevant

Wet Wipes Assets and Relevant Facial

Tissue Assets as contemplated under

this Final Judgment; provided however,

that to the extent such reports contain

information that the trustee deems

confidential, such reports shall not be

filed in the public docket of the Court.

Such reports shall include the name,

address, and telephone number of each

person who, during the preceding

month, made an offer to acquire,

expressed an interest in acquiring,

entered into negotiations to acquire, or

was contacted or made an inquiry about

acquiring, any interest in the Relevant

Wet Wipes Assets and Relevant Facial

Tissue Assets, and shall describe in

detail each contact with any such

person during that period. The trustee

shall maintain full records of all efforts

made to divest these operations.

G. Within six (6) months after its

appointment has become effective, if the

trustee has not accomplished the

divestiture required by Section IV of

this Final Judgment, the trustee shall

promptly file with the Court a report

setting forth (1) the trustee’s efforts to

accomplish the required divestiture, (2)

the reasons, in the trustee’s judgment,

why the required divestiture has not

been accomplished, and (3) the trustee’s

recommendations; provided however,
Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices 66561

that to the extent such reports contain

information that the trustee deems

confidential, such reports shall not be

filed in the public docket of the Court.

The trustee shall at the same time

furnish such reports to the parties, who

shall each have the right to be heard and

to make additional recommendations

consistent with the purpose of the trust.

The Court shall thereafter enter such

orders as it shall deem appropriate in

order to carry out the purpose of the

trust, which shall, if necessary, include

augmenting the assets to be divested,

and extending the trust and term of the

trustee’s appointment.

VI. Notification

Within two (2) business days

following execution of a definitive

agreement, contingent upon compliance

with the terms of this Final Judgment,

to effect, in whole or in part, any

proposed divestiture pursuant to

Sections IV or V of this Final Judgment,

defendants or the trustee, whichever is

then responsible for effecting the

divestiture, shall notify plaintiffs of the

proposed divestiture. If the trustee is

responsible, it shall similarly notify

defendants. The notice shall set forth

the details of the proposed transaction

and list the name, address, and

telephone number of each person not

previously identified who offered to, or

expressed an interest in or desire to,

acquire any ownership interest in the

assets that are the subject of the finding

contract, together with full details of

same. Within fifteen (15 ) calendar days

of receipt by plaintiffs of such notice,

plaintiffs may request additional

information concerning the proposed

divestiture and the proposed purchaser.

Defendants and the trustee shall furnish

any additional information requested

within twenty (20) calendar days of the

receipt of the request, unless the parties

shall otherwise agree. Within thirty (30)

calendar days after receipt of the notice

or within twenty (20) calendar days

after plaintiffs have been provided the

additional information requested

(including any additional information

requested of persons other than

defendants or the trustee), whichever is

later, plaintiffs shall proved written

notice to defendants and the trustee, if

there is one, stating whether or not it

objects to the proposed divestiture. If

plaintiffs provided written notice to

defendants and the trustee that it does

not object, then the divestiture may be

consummated, subject only to

defendant’s limited right to object to the

sale under the provisions in Section

V(C). Absent written notice that the

plaintiffs do not object to the proposed

purchaser, a divestiture proposed under

Section IV shall not be consummated.

Upon objection by either plaintiff, a

divestiture proposed under Section IV

shall not be consummated. Upon

objection by either plaintiff, or by

defendants under the proviso in Section

V(C), a divestiture proposed under

Section V shall not be consummated

unless approved by the Court.

VII. Affidavits

Within ten (10) calendar days of the

filing of this Final Judgment and every

thirty (30) calendar days thereafter until

the divestiture has been completed or

authority to effect divestiture passes to

the trustee pursuant to Section V of this

Final Judgment, defendants shall deliver

to plaintiffs an affidavit as to the fact

and manner of compliance with Section

IV and V of this Final Judgment. Each

such affidavit shall include, inter alia,

the name, address, and telephone

number of each person who, at any time

after the period covered by the last such

report, made an offer to acquire,

expressed an interest in acquiring,

entered into negotiations to acquire, or

was contacted or made an inquiry about

acquiring, any interest in the Relevant

Wet Wipes Assets or Relevant Facial

Tissue Assets, and shall describe in

detail each contact with any such

person during that period. Defendants

shall maintain full records of all efforts

made to divest these operations.

VIII. Financing

With prior written consent of the

plaintiffs, defendants may finance all or

any part of any purchase made pursuant

to Sections IV or V of this Final

Judgment.

IX. Preservation of Assets

Until the divestitures required by the

Final Judgment have been

accomplished:

A. Defendants shall take all steps

necessary to ensure that the Relevant

Wet Wipes Assets will be maintained as

an independent, ongoing, economically

viable and active competitor in the sale

of baby wipes in the United States, with

proprietary technology, management

operations, books, records and

competitively-sensitive sales, marketing

and pricing information and decisionmaking kept separate and apart from,

and not influenced by, that of KimberlyClark’s Huggies baby wipes business.

B. Defendants shall operate the

Relevant Facial Tissue Assets to ensure

a distinct and economically viable

product line, which actively competes

in the sale of facial tissue in the United

States, with competitively-sensitive

sales, marketing and pricing information

and decision-making kept separate and

apart from, and not influenced by, that

of Kimberly-Clark’s Kleenex facial tissue

business.

C. Defendants shall use all reasonable

efforts to maintain and increase sales of

baby wipes under any label required to

be divested pursuant to Sections II(C)

and IV(A) and facial tissue under the

Scotties label, and they shall maintain at

1995 or previously approved levels,

whichever is higher, promotional,

advertising, marketing and

merchandising support for baby wipes

under labels in the Relevant Wet Wipes

Assets and facial tissue under the

Scotties label.

D. Defendants shall take all steps

necessary to ensure that the Relevant

Wet Wipes Assets and Relevant Facial

Tissue Assets are fully maintained

inoperable condition at their current

capacity configurations, and shall

maintain and adhere to normal repair

and maintenance schedules for such

assets.

E. Defendants shall not, except as part

of a divestiture approved by plaintiffs,

sell any Relevant Wet Wipes Assets or

Relevant Facial Tissue Assets, other

than in the ordinary course of business.

F. Defendants shall take no action that

would jeopardize the sale or license of

the Relevant Wet Wipes Assets or the

Relevant Facial Tissue Assets. Within

21 days after filing of the Final

Judgment, defendants shall discontinue

making and selling facial tissue under

the Scott label and make and sell facial

tissue under the Scotties label;

provided, however, that defendants may

sell inventory of facial tissue produced

under the Scott Label until such

inventory is depleted.

X. Compliance Inspection

Only for the purposes of determining

or securing compliance with the Final

Judgment and subject to any legally

recognized privilege from time to time.

A. Duly authorized representatives of

the United States Department of Justice,

upon written request of the Attorney

General or of the Assistant Attorney

General in charge of the Antitrust

Division, or of the Attorney General of

the State of Texas, and on reasonable

notice to defendants made to their

principal offices, shall be permitted:

(1) Access during office hours of

defendants to inspect and copy all

books, ledgers, accounts,

correspondence, memoranda, and other

records and documents in the

possession or under the control of

defendants, who may have counsel

present, relating to enforcement of this

Final Judgment; and

(2) Subject to the reasonable

convenience of defendants and without
66562 Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices

restraint or interference from them, to

interview officers, employees, and

agents of defendants, who may have

counsel present, regarding any such

matters.

B. Upon the written request of the

Attorney General or of the Assistant

Attorney General in charge of the

Antitrust Division, or of the Attorney

General of the State of Texas, made to

defendants’ principal offices,

defendants shall submit such written

reports, under oath if requested, with

respect to enforcement of this Final

Judgment.

C. No information or documents

obtained by the means provided in this

Section X shall be divulged by a

representative of either plaintiff to any

person other than a duly authorized

representative of the Executive Branch

of the United States or of the State of

Texas, except in the course of legal

proceedings to which the United States

is a party (including grand jury

proceedings), or for the purpose of

securing compliance with this Final

Judgment, or as otherwise required by

law.

D. If at the time information or

documents are furnished by defendants

to plaintiffs, defendants represent and

identify in writing the material in any

such information or documents to

which a claim of protection may be

asserted under Rule 26(c)(7) 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)(7) of the

Federal Rules of Civil Procedure,’’ then

ten (10) calendar days notice shall be

given by plaintiff to defendants prior to

divulging such material in any legal

proceeding (other than a grand jury

proceeding).

XI. Retention of Jurisdiction

Jurisdiction is retained by this Court

for the purpose of enabling any of the

parties to this Final Judgment to apply

to this Court at any time for such further

orders and directions as may be

necessary or appropriate for the

construction or carrying out of this Final

Judgment, for the modification of any of

the provisions hereof, for the

enforcement of compliance herewith,

and for the punishment of any

violations hereof.

XII. Termination

Unless this Court grants an extension,

this Final Judgment will expire on the

tenth anniversary of the date of its entry.

XIII. Public Interest

Entry of this Final Judgment is in the

public interest.

Dated: lllllllllllllllll

lllllllllllllllllllll

United States District Judge

United States District Court, Northern

District of Texas, Dallas Division

United States of America and State of

Texas, Plaintiffs, v. Kimberly-Clark

Corporation and Scott Paper Company,

Defendants. Civil No. 3:95 CV 3055–P. Filed

December 12, 1995.

Competitive Impact Statement

The United States, pursuant to

Section 2(b) of the Antitrust Procedures

and Penalties Act (‘‘APPA’’), 15 U.S.C.

§ 16(b)–(h), 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

The United States and the State of

Texas filed a civil antitrust Complaint

on December 12, 1995, which alleges

that Kimberly-Clark Corporation’s

proposed acquisition of Scott Paper

Company (‘‘Scott’’) would violate

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

§ 18. Kimberly-Clark and Scott are the

nation’s first and third leading sellers of

facial tissue, and its leading sellers of

baby wipes.

The Complaint alleges that the

combination of these rivals would

substantially lessen competition in

production and distribution, and raise

prices to consumers in retail sale, of

facial tissue and baby wipes in the

United States. The prayer for relief

seeks: (1) A judgment that the proposed

acquisition would violate Section 7 of

the Clayton Act; and (2) a permanent

injunction preventing Kimberly-Clark

from acquiring control of Scott’s facial

tissue and baby wipes businesses or

otherwise combining them with its own

business in the United States.

At the time the suit was filed, the

United States and State of Texas also

filed a proposed settlement that would

permit Kimberly-Clark to complete its

acquisition of Scott’s other assets, but

require divestitures of baby wipes and

facial tissue assets in a way that will

preserve competition in the markets.

This settlement consists of a Stipulation

and a proposed Final Judgment.

The proposed Final Judgment orders

defendants to divest to one or more

purchasers Scott’s Scotties facial tissue

label, any two or four United States

tissue mills currently operated by

Kimberly-Clark or Scott, all of Scott’s

baby wipes labels, and Scott’s wet wipes

plant used to produce baby wipes and

other products. Certain tangible and

intangible assets that relate to these

assets and labels must also be divested.

Defendants must complete the

divestiture of the Scott facial tissue

business within 180 days, and the

divestiture of the wet wipes business

within 150 days, after December 12,

1995, in accordance with the procedures

specified in the proposed Final

Judgment.

The Stipulation and Final Judgment

require Kimberly-Clark to ensure that,

until the divestitures mandated by the

Final Judgment have been

accomplished, Scott’s facial tissue and

baby wipes businesses and associated

assets will be held separate from, and

operated independently of, other,

competing Kimberly-Clark facial tissue

and baby wipes businesses. KimberlyClark must preserve and maintain these

assets as saleable and economically

viable, ongoing concerns, with

competitively-sensitive business

information and decision-making

divorced from that of competing

Kimberly-Clark businesses.

The United States, the State of Texas,

Kimberly-Clark, and Scott have also

stipulated that the proposed Final

Judgment may be entered after

compliance with the APPA. Entry of the

proposed Final Judgment would

terminate this action, except that the

Court would retain jurisdiction to

construe, modify, or enforce the

provisions of the proposed Final

Judgment and to punish violations

thereof.

II. Description of the Events Giving Rise

to the Alleged Violation

A. The Defendants and the Proposed

Transaction

Kimberly-Clark, based in Dallas,

Texas, is a leading producer of

consumer paper products, including

disposable diapers, feminine care

products, facial tissue and baby wipes.

In 1994, Kimberly-Clark reported total

sales of $7.3 billion. Kimberly-Clark

makes Kleenex facial tissue and

Huggies brand baby wipes.

Scott, based in Boca Raton, Florida, is

also a leading producer of consumer

paper products, including bath tissue,

facial tissue and baby wipes. In 1994,

Scott reported total sales of $3.5 billion.

Among its other brands, Scott makes

and sells Scotties facial tissue (recently

renamed Scott and Baby Fresh and

Wash A Bye Baby baby wipes.

On July 16, 1995, Kimberly-Clark

agreed to acquire Scott for cash and

stock in a transaction that would create

a firm with global sales of about $12

billion. This transaction, which would

combine leading competitors in two

major markets, precipitated the

governments’ suit.
Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices 66563

1The approximate post-merger HerfindahlHirschman Index (‘‘HHI’’) for the facial tissue

market, based on 1994 dollar sales, would be 4031,

with an increase in the HHI as a result of the merger

of 705 points.

2The approximate post-merger HHI for the

relevant market based on 1994 dollar sales would

be over 3137, with a change in the HHI

concentration index resulting from the merger of

1501 points.

B. The Transaction’s Effects in the

Facial Tissue Industry

Facial tissue is a soft, thin, pliable and

absorbent sheet of paper, typically

folded and packed in a box. It is

primarily used to catch a sneeze, blow

a nose, or remove make-up. There are no

good substitutes for facial tissue.

For all practical purposes, the retail

facial tissue market is dominated by

three major firms—Kimberly-Clark,

Scott and Procter & Gamble—which

together account for nearly 90 percent of

sales of facial tissue, a $1.34 billion

dollar market. Kimberly-Clark’s popular

Kleenex is by far the leading brand of

facial tissue sold, commanding 48.5

percent of all sales.

Scott’s Scotties facial tissue, a value

brand offering consumers more product

for the money, has a 7 percent share of

sales, but significantly greater presence

and consumer acceptance in the

Northeast, where the brand was first

introduced. Procter & Gamble, the only

other significant firm, makes Puffs,

which has about a 30 percent market

share.1

Scott’s market share, however,

understates its competitive significance.

As a value brand, Scotties has, in the

past, imposed a significant constraint on

Kimberly-Clark’s prices for facial tissue.

Kimberly-Clark’s Kleenex likewise has

been a significant constraint on prices of

Scotties facial tissue.

The Complaint alleges that KimberlyClark’s acquisition of Scott would

remove these constraints, and provide

Kimberly-Clark both the power and the

incentive to increase unilaterally and

profitably the price of either, or both,

brands of facial tissue. Kimberly-Clark’s

acquisition of Scott would also increase

the likelihood of cooperative increases

in the price of consumer facial tissue,

since the merger would leave KimberlyClark with a single significant rival,

Procter & Gamble’s Puffs, in the facial

tissue market.

Because entry into the facial tissue

market is difficult, requiring a

significant investment in plant

equipment and brand building,

successful new entry or repositioning

after the merger is unlikely to restore the

competition lost through KimberlyClark’s removal of Scott from the

marketplace.

C. The Transaction’s Effect in the Baby

Wipes Industry

Baby wipes are soft, moist and

absorbent sheets of paper substrate,

about the size of a wash cloth, that are

packaged in a plastic tub or canister.

Consumer use baby wipes to clean

babies, especially during a diaper

change. Stronger, softer and more

convenient or sanitary than any

alternative product, baby wipes are a

popular staple of families with babies,

and are bought by 95 percent of such

households. There are no good

substitutes for baby wipes.

Kimberly-Clark and Scott are the

nation’s two largest and most significant

manufacturers of baby wipes. Scott’s

Baby Fresh and Wash A Bye Baby

baby wipes account for about 31 percent

of all baby wipes sold, while KimberlyClark’s Huggies baby wipes command

nearly 25 percent of all sales. They are

each other’s primary competitor and

most significant constraint on prices for

baby wipes. Kimberly-Clark and Scott

aggressively compete in pricing,

promotion, and product innovation.

Following its acquisition of Scott,

Kimberly-Clark would control nearly 60

percent of all baby wipes sold,2 and

leave it seven times larger than its next

largest competitor in a market with $500

million in annual sales. By eliminating

Scott, the Complaint alleges, KimberlyClark would acquire market power that

would enable it unilaterally to increase

prices to consumers of either, or both,

Huggies, Baby Fresh and Wash A Bye

Baby wipes. New market entry is

difficult, time-consuming and unlikely,

and hence cannot be expected to

constrain the unlawful effects of

Kimberly-Clark’s acquisition of Scott.

D. Harm to Competition as a

Consequence of the Acquisition

The Complaint alleges that the

transaction would have the following

effects, among others: competition

generally in the facial tissue and baby

wipes markets will be substantially

lessened; actual and potential

competition between Kimberly-Clark

and Scott in the market for facial tissue

and baby wipes will be eliminated in

the United States; prices for facial tissue

and baby wipes in the United States are

likely to increase; and product

innovation in facial tissue and baby

wipes in the United States will suffer.

III. Explanation of the Proposed Final

Judgment

The proposed Final Judgment would

preserve competition in production and

retail sale of branded baby wipes and

facial tissue in the United States. Within

150 days after filing the proposed Final

Judgment, defendants must divest

Scott’s wet wipes plant in Dover,

Delaware; grant a 25-five year, royaltyfree, exclusive and assignable,

perpetually renewable license for the

baby wipes labels produced at that

plant; and divest other associated

assets—sell, in essence, the entire Scott

baby wipes business and brands. Within

180 days after filing the proposed Final

Judgment, defendants must similarly

divest Scott’s Scotties brand facial

tissue business, grant a 25-year, royaltyfree, exclusive and assignable,

perpetually renewable license for the

Scotties facial tissue label, and divest

any two of four tissue mills specified in

the Final Judgment and associated

assets. These businesses must be sold to

a purchaser or purchasers who

demonstrate to the sole satisfaction of

the United States and the State of Texas

that they will be an economically viable

and effective competitor, capable of

maintaining or surpassing Scott’s

market performance in the sale of

branded baby wipes and consumer

facial tissue in the United States.

Until the ordered divestitures take

place, defendants must take all

reasonable steps necessary to

accomplish the divestitures, and

cooperate with any prospective

purchaser. If defendants do not

accomplish the ordered divestitures

within the specified 150 and 180 day

time periods, the Final Judgment

provides for procedures by which the

Court shall appoint a trustee to

complete the divestitures. Defendants

must cooperate fully with the trustee.

If a trustee is appointed, the proposed

Final Judgment provides that KimberlyClark will pay all costs and expenses of

the trustee. The trustee’s compensation

will be structured so as to provide an

incentive for the trustee to obtain the

highest price for the assets to be

divested, and to accomplish the

divestiture as quickly as possible. After

the effective date of his or her

appointment, the trustee shall serve

under such other conditions as the

Court may prescribe. After his or her

appointment becomes effective, the

trustee will file monthly reports with

the parties and the Court, setting forth

the trustee’s efforts to accomplish

divestiture. At the end of six months, if

the divestiture has not been

accomplished, the trustee shall

promptly file with the Court a report

setting forth the trustee’s efforts to

accomplish the divestiture, explaining

why the divestiture has not been

accomplished, and making

recommendations. The trustee’s report

will be furnished to the parties and shall
66564 Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices

3 119 Cong. Rec. 24598 (1973). See United States

v. Gillette Co., 406 F. Supp. 713, 715 (D. Mass.

1975). A ‘‘public interest’’ determination can be

made properly on the basis of the Competitive

Impact Statement and Response to Comments filed

pursuant to the APPA. Although the APPA

authorizes the use of additional procedures, 15

U.S.C. § 16(f), those procedures are discretionary. A

court need not invoke any of them unless if believes

that the comments have raised significant issues

and that further proceedings would aid the court in

resolving those issues. See H.R. Rep. 93–1463, 93rd

Cong. 2d Sess. 8–9, reprinted in (1974) U.S. Code

Cong. & Ad. News 6535, 6538.

4United States v. Bechtel, 648 F.2d at 666

(citations omitted) (emphasis added); see United

States v. BNS, Inc., 858 F.2d at 463; United States

v. National Broadcasting Co., 449 F. Supp. 1127,

1143 (C.D. Cal. 1978); United States v. Gillette Co.,

406 F. Supp. at 716. See also Microsoft, 1995–1

Trade Cas. at ll (Slip op. 23) (whether ‘‘the

remedies [obtained in the decree are] so

inconsonant with the allegations charged as to fall

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

(citations omitted).

be filed in the public docket, except to

the extent the report contains

information the trustee deems

confidential. The parties will each have

the right to make additional

recommendations to the Court. The

Court shall enter such orders as it deems

appropriate to carry out the purpose of

the trust.

IV. Remedies Available to Potential

Private Litigants

Section 4 of the Clayton Act (15

U.S.C. § 15) provides that any person

who has been injured as a result of

conduct prohibited by the antitrust laws

may bring suit in federal court to

recover three times the damages the

person has suffered, as well as costs and

reasonable attorneys’ fees. Entry of the

proposed Final Judgment will neither

impair nor assist the bringing of any

private antitrust damage action. Under

the provisions of Section 5(a) of the

Clayton Act (15 U.S.C. § 16(a)), the

proposed Final Judgment has no prima

facie effect in any subsequent private

lawsuit that may be brought against

defendants. The proposed Final

Judgment provides that nothing therein

contained shall be construed to provide

any rights to any third party.

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 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. The United States will

evaluate and respond to the comments.

All comments will be given due

consideration by the Department of

Justice, which remains free to withdraw

its consent to the proposed Final

Judgment at any time prior to entry. The

comments and the response of the

United States will be filed with the

Court and published in the Federal

Register.

Written comments should be

submitted to: Anthony V. Nanni, Chief,

Litigation I Section, Antitrust Division,

United States Department of Justice,

1401 H Street, N.W., Suite 4000,

Washington, D.C. 20530.

The proposed Final Judgment

provides that the Court retains

jurisdiction over this action, and the

parties may apply to the Court for any

order necessary or appropriate for the

modification, interpretation, or

enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final

Judgment

The United States considered, as an

alternative to the proposed Final

Judgment, a full trial on the merits of its

Complaint against defendants KimberlyClark and Scott. The United States is

satisfied, however, that the divestiture

of the assets and other relief contained

in the proposed Final Judgment will

preserve viable competition in the

production and sale of facial tissue and

baby wipes that would otherwise be

adversely affected by the acquisition.

Thus, the proposed Final Judgment

would achieve the relief the

governments would have obtained

through litigation, but avoids the time,

expense and uncertainty of a full trial

on the merits of the governments’

Complaint.

VII. Standard of Review Under the

APPA for Proposed Final Judgment

The APPA requires that proposed

consent judgments in antitrust cases

brought by the United States be subject

to a sixty-day comment period, after

which the court shall determine

whether entry of the proposed Final

Judgment ‘‘is in the public interest.’’ In

making that determination, the court

may consider—

(1) the competitive impact of such

judgment, including termination of alleged

violations, provisions for enforcement and

modification, duration or relief sought,

anticipated effects of alternative remedies

actually considered, and any other

considerations bearing upon the adequacy of

such judgment;

(2) the impact of entry of such judgment

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) (emphasis added). As

the DC Circuit recently held, this statute

permits a court to consider, among other

things, the relationship between the

remedy secured and the specific

allegations set forth in the government’s

complaint, whether the decree is

sufficiently clear, whether enforcement

mechanisms are sufficient, and whether

the decree may positively harm third

parties. See United States v. Microsoft,

1995–1 Trade Cas. (CCH) ¶71,027, at

ll (Slip op. 26) (DC Cir. June 16,

1995).

In conducting this inquiry, ‘‘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.’’ 3 Rather,

absent a showing of corrupt failure of the

government to discharge its duty, the Court,

in making its public interest finding, should

* * * carefully consider the explanations of

the government in the competitive impact

statement and its responses to comments in

order to determine whether those

explanations are reasonable under the

circumstances.

United States v. Mid-America

Dairymen, Inc., 1977–1 Trade Cas.

¶ 61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, with respect to the

adequacy of the relief secured by the

decree, a court may not ‘‘engage in an

unrestricted evaluation of what relief

would best serve the public.’’ United

States v. BNS, Inc., 858 F.2d 456, 462

(9th Cir. 1988) quoting United States v.

Bechtel Corp., 648 F.2d 660, 666 (9th

Cir.), cert. denied, 454 U.S. 1083 (1981);

see also Microsoft, 1995–1 Trade Cas. at

ll (Slip. op. 22). Precedent requires

that

the 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. The court’s role in

protecting the public interest is one of

insuring that the government has not

breached its duty to the public in consenting

to the decree. The court is required to

determine not whether a particular decree is

the one that will best serve society, but

whether the settlement is ‘‘within the reaches

of the public interest.’’ More elaborate

requirements might undermine the

effectiveness of antitrust enforcement by

consent decree.4
Federal Register / Vol. 60, No. 246 / Friday, December 22, 1995 / Notices 66565

5United States v. American Tel. and Tel Co., 552

F. Supp. 131, 150 (D.D.C. 1982), aff’d sub nom.

Maryland v. United States, 460 U.S. 1001 (1983)

quoting United States v. Gillette Co., supra, 406 F.

Supp. at 716; United States v. Alcan Aluminum,

Ltd., 605 F. Supp. 619, 622 (W.D. Ky 1985).

The proposed Final Judgment,

therefore, should not be reviewed under

a standard of whether it is certain to

eliminate every anticompetitive effect of

a particular practice or whether it

mandates certainty of free competition

in the future. Court approval of a final

judgment requires a standard more

flexible and less strict than the standard

required for a finding of liability. ‘‘[A]

proposed decree must be approved even

if it falls short of the remedy the court

would impose on its own, as long as it

falls within the range of acceptability or

is ‘within the reaches of public interest.’

(citations omitted).’’ 5

VIII. Determinative Documents

There are no determinative materials

or documents within the meaning of the

APPA that were considered by the

United States in formulating the

proposed Final Judgment.

Dated: December 12, 1995.

Respectfully submitted,

Anthony E. Harris,

Attorney, State of Illinois # 01133713,

Antitrust Division, U.S. Department of Justice,

1401 H. Street NW., suite 4000, Washington,

DC 20530, (202) 307–6583.

[FR Doc. 95–31054 Filed 12–21–95; 8:45 am]

BILLING CODE 4410–01–M

DEPARTMENT OF LABOR

Employment Standards Administration

Wage and Hour Division;

Minimum Wages for Federal and

Federally Assisted Construction;

General Wage Determination Decisions

General wage determination decisions

of the Secretary of Labor are issued in

accordance with applicable law and are

based on the information obtained by

the Department of Labor from its study

of local wage conditions and data made

available from other sources. They

specify the basic hourly wage rates and

fringe benefits which are determined to

be prevailing for the described classes of

laborers and mechanics employed on

construction projects of a similar

character and in the localities specified

therein.

The determinations in these decisions

of prevailing rates and fringe benefits

have been made in accordance with 29

CFR Part 1, by authority of the Secretary

of Labor pursuant to the provisions of

the Davis-Bacon Act of March 3, 1931,

as amended (46 Stat. 1494, as amended,

40 U.S.C. 276a) and of other Federal

statutes referred to in 29 CFR Part 1,

Appendix, as well as such additional

statutes as may from time to time be

enacted containing provisions for the

payment of wages determined to be

prevailing by the Secretary of Labor in

accordance with the Davis-Bacon Act.

The prevailing rates and fringe benefits

determined in these decisions shall, in

accordance with the provisions of the

foregoing statutes, constitute the

minimum wages payable on Federal and

federally assisted construction projects

to laborers and mechanics of the

specified classes engaged on contract

work of the character and in the

localities described therein.

Good cause is hereby found for not

utilizing notice and public comment

procedure thereon prior to the issuance

of these determinations as prescribed in

5 U.S.C. 553 and not providing for delay

in the effective date as prescribed in that

section, because the necessity to issue

current construction industry wage

determinations frequently and in large

volume causes procedures to be

impractical and contrary to the public

interest.

General wage determination

decisions, and modifications and

supersedeas decisions thereto, contain

no expiration dates and are effective

from their date of notice in the Federal

Register, or on the date written notice

is received by the agency, whichever is

earlier. These decisions are to be used

in accordance with the provisions of 29

CFR Parts 1 and 5. Accordingly, the

applicable decision, together with any

modifications issued, must be made a

part of every contract for performance of

the described work within the

geographic area indicated as required by

an applicable Federal prevailing wage

law and 29 CFR Part 5. The wage rates

and fringe benefits, notice of which is

published herein, and which are

contained in the Government Printing

Office (GPO document entitled ‘‘General

Wage Determinations Issued Under the

Davis-Bacon And Related Acts,’’ shall

be the minimum paid by contractors

and subcontractors to laborers and

mechanics.

Any person, organization, or

governmental agency having an interest

in the rates determined as prevailing is

encouraged to submit wage rate and

fringe benefit information for

consideration by the Department.

Further information and selfexplanatory forms for the purpose of

submitting this data may be obtained by

writing to the U.S. Department of Labor,

Employment Standards Administration,

Wage and Hour Division, Division of

Wage Determinations, 200 Constitution

Avenue, NW., Room S–3014,

Washington, DC 20210.

Withdrawn General Wage

Determination Decisions

This is to advise all interested parties

that the Department of Labor is

withdrawing, from the date of this

notice, General Wage Determination

Nos. MD950050 and MD950053 dated

February 10, 1994.

Agencies with construction projects

pending, to which this Wage Decision

would have been applicable, should

utilize Wage Decision MD950047.

Contracts for which bids have been

opened shall not be affected by this

notice. Also, consistent with 29 CFR

1.6(c)(2)(i)(A), when the opening of bids

is less than ten (10) days from the date

of this notice, this action shall be

effective unless the agency finds that

there is insufficient time to notify

bidders of the change and the finding is

documented in the contract file.

New General Wage Determination

Decisions

The number of the decisions added to

the Government Printing Office

document entitled ‘‘General Wage

Determinations Issued Under the DavisBacon and related Acts’’ are listed by

Volume and State:

Volume II

Virginia

VA950040 (Dec. 22, 1995)

Modifications to General Wage

Determination Decisions

The number of decisions listed in the

Government Printing Office document

entitled ‘‘General Wage Determinations

Issued Under the Davis-Bacon and

Related Acts’’ being modified are listed

by Volume and State. Dates of

publication in the Federal Register are

in parentheses following the decisions

being modified.

Volume I

New York

NY950009 (Feb. 10, 1995)

NY950010 (Feb. 10, 1995)

NY950041 (Feb. 10, 1995)

Volume II

Maryland

MD950047 (Feb. 10, 1995)

Pennsylvania

PA950004 (Feb. 10, 1995)

PA950023 (Feb. 10, 1995)

PA950065 (Feb. 10, 1995)

Virginia

VA950004 (Feb. 10, 1995)

VA950014 (Feb. 10, 1995)

VA950015 (Feb. 10, 1995)

VA950049 (Feb. 10, 1995)

VA950064 (Feb. 10, 1995)