Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 30479 

DEPARTMENT OF THE INTERIOR 

National Park Service 

[NPS–WASO–NAGPRA–NPS0032040; 

PPWOCRADN0–PCU00RP14.R50000] 

Notice of Intent To Repatriate Cultural 

Items: McClure Archives and 

University Museum, University of 

Central Missouri, Warrensburg, MO 

AGENCY: National Park Service, Interior. 

ACTION: Notice. 

SUMMARY: The McClure Archives and 

University Museum, University of 

Central Missouri, in consultation with 

the appropriate Indian Tribes or Native 

Hawaiian organizations, has determined 

that the cultural item listed in this 

notice meet the definition of an object 

of cultural patrimony. Lineal 

descendants or representatives of any 

Indian Tribe or Native Hawaiian 

organization not identified in this notice 

that wish to claim this cultural item 

should submit a written request to the 

McClure Archives and University 

Museum. If no additional claimants 

come forward, transfer of control of the 

cultural item to the lineal descendants, 

Indian Tribes, or Native Hawaiian 

organizations stated in this notice may 

proceed. 

DATES: Lineal descendants or 

representatives of any Indian Tribe or 

Native Hawaiian organization not 

identified in this notice that wish to 

claim this cultural item should submit 

a written request with information in 

support of the claim to the McClure 

Archives and University Museum at the 

address in this notice by July 8, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Ashley McGuffey, NAGPRA Preparator, 

McClure Archives and University 

Museum of JCKL 1470, 601 Missouri 

Street, Warrensburg, MO 64093, 

telephone (660) 543–4649, email 

mcguffey@ucmo.edu. 

SUPPLEMENTARY INFORMATION: Notice is 

here given in accordance with the 

Native American Graves Protection and 

Repatriation Act (NAGPRA), 25 U.S.C. 

3005, of the intent to repatriate a 

cultural item under the control of the 

McClure Archives and University 

Museum, University of Central 

Missouri, Warrensburg, MO, that meets 

the definition of an object of cultural 

patrimony under 25 U.S.C. 3001. 

This notice is published as part of the 

National Park Service’s administrative 

responsibilities under NAGPRA, 25 

U.S.C. 3003(d)(3). The determinations in 

this notice are the sole responsibility of 

the museum, institution, or Federal 

agency that has control of the Native 

American cultural item. The National 

Park Service is not responsible for the 

determinations in this notice. 

History and Description of the Cultural 

Item 

In the 1920s, one cultural item was 

removed from an unknown location 

most likely on the southeastern coast of 

Alaska. In the 1920s, anthropologist 

Erna Gunther collected or bought a 

wooden food box from the Tsimshian 

people. After her death in 1982, 

Gunther’s son, anthropologist Robert 

Spier, inherited the box. Spier reported 

that his mother did not tell him much 

about the box, as it caused tension 

between his parents and ultimately 

played a part in their divorce. Robert 

Spier died in 2014. In 2017, his widow, 

Carolyn Spier, donated the box to the 

McClure Archives and University 

Museum, along with many other items 

in her husband’s personal 

anthropological collection. The one 

object of cultural patrimony is this 

wooden food box. 

Following analysis by McClure 

Archive and University Museum staff, a 

determination was made that this 

wooden food box is Tsimshian, and is 

connected to the Metlakatla Indian 

Community, Annette Island Reserve, in 

Alaska. 

Determinations Made by the McClure 

Archives and University Museum, 

University of Central Missouri 

Officials of the McClure Archives and 

University Museum, University of 

Central Missouri have determined that: 

• Pursuant to 25 U.S.C. 3001(3)(D), 

the one cultural item described above 

has ongoing historical, traditional, or 

cultural importance central to the 

Native American group or culture itself, 

rather than property owned by an 

individual. 

• Pursuant to 25 U.S.C. 3001(2), there 

is a relationship of shared group 

identity that can be reasonably traced 

between the object of cultural patrimony 

and the Metlakatla Indian Community, 

Annette Island Reserve. 

Additional Requestors and Disposition 

Lineal descendants or representatives 

of any Indian Tribe or Native Hawaiian 

organization not identified in this notice 

that wish to claim this cultural item 

should submit a written request with 

information in support of the claim to 

Ashley McGuffey, NAGPRA Preparator, 

McClure Archives and University 

Museum of JCKL 1470, 601 Missouri 

Street, Warrensburg, MO 64093, 

telephone (660) 543–4649, email 

mcguffey@ucmo.edu, by July 8, 2021. 

After that date, if no additional 

claimants have come forward, transfer 

of control of the object of cultural 

patrimony to the Metlakatla Indian 

Community, Annette Island Reserve 

may proceed. 

The McClure Archives and University 

Museum, University of Central Missouri 

is responsible for notifying the 

Metlakatla Indian Community, Annette 

Island Reserve that this notice has been 

published. 

Dated: May 25, 2021. 

Melanie O’Brien, 

Manager, National NAGPRA Program. 

[FR Doc. 2021–11948 Filed 6–7–21; 8:45 am] 

BILLING CODE 4312–52–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Zen-Noh Grain 

Corporation, et al.; 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. 

Zen-Noh Grain Corporation, et al., Civil 

Action No. 1:21–cv–1482–RJL. On June 

1, 2021, the United States filed a 

Complaint alleging that Zen-Noh Grain 

Corporation’s proposed acquisition of 

35 operating and 13 idled U.S. grain 

origination elevators from Bunge North 

America, Inc. would violate Section 7 of 

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

proposed Final Judgment, filed at the 

same time as the Complaint, requires 

Zen-Noh Grain Corporation to divest 

nine grain elevators located in five 

states along the Mississippi River and 

its tributaries. 

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 


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30480 Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 

Federal Register. Comments should be 

submitted in English and directed to 

Robert Lepore, Chief, Transportation, 

Energy, and Agriculture Section, 

Antitrust Division, Department of 

Justice, 450 Fifth Street NW, Suite 8000, 

Washington, DC 20530 (email address: 

Robert.Lepore@usdoj.gov). 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

United States of America, U.S. Department 

of Justice, Antitrust Division, 450 Fifth Street 

NW, Suite 8000, Washington, DC 20530, 

Plaintiff, v. Zen–Noh Grain Corp., 1127 

Highway 190, East Service Road, Covington, 

LA 70433 and Bunge North America, Inc., 

1391 Timberland Manor Parkway, 

Chesterfield, MO 63017, Defendants. 

Civil Action No.: 1:21–cv–1482–RJL 

Judge Richard J. Leon 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action to prevent Zen-Noh 

Grain Corp. from acquiring assets of 

Bunge North America, Inc. The United 

States alleges as follows: 

I. Introduction 

1. American farmers produce the 

crops that feed our nation and the 

world. The United States’ primary crops 

are corn and soybeans (collectively 

referred to here as ‘‘grain’’). American 

farmers produced 14.2 billion bushels of 

corn and 4.14 billion bushels of 

soybeans in 2020, and roughly onequarter of these grains were exported. In 

the United States, grain may flow from 

the farm directly to end users like 

ethanol plants and feed mills, or farmers 

can sell their grain to local grain 

elevators, where it is stored and 

aggregated, and later transported by 

train or barge to more distant domestic 

end users or to port elevators for export. 

To earn a fair return on their hard work 

and investments, farmers rely on 

vigorous competition between the 

companies that purchase their grain for 

direct use or further resale. 

2. Zen-Noh Grain Corp. (‘‘ZGC’’) seeks 

to acquire 35 operating and 13 idled 

U.S. grain elevators from Bunge North 

America, Inc. (‘‘Bunge’’). These 

elevators are located in nine states, 

mainly along the Mississippi River and 

its tributaries. ZGC and Bunge are both 

grain traders and exporters, each 

purchasing millions of tons of corn and 

soybeans annually from farmers located 

across the United States’ agricultural 

regions, and through their networks 

distributing the grain to customers 

throughout the United States and the 

rest of the world. 

3. Today, ZGC, along with its affiliate 

CGB Enterprises, Inc. (‘‘CGB’’), a 50–50 

joint venture between ZGC and Itochu 

Corporation, competes against Bunge to 

purchase corn and soybeans at 

numerous U.S. grain elevators and at 

their port elevators. In particular, in 

some areas along the Mississippi and 

Ohio Rivers where the Defendants 

operate competing river elevators, 

farmers have few—if any—alternative 

purchasers for their grain. The 

acquisition will eliminate competition 

between ZGC and Bunge in those 

locations; as a result, many U.S. farmers 

are likely to receive lower prices and 

poorer quality service when seeking to 

sell their grain. 

4. In nine geographic areas, a Bunge 

elevator and a nearby ZGC or CGB 

elevator represent two of only a small 

number of alternatives where area 

farmers can sell their grain. In those 

nine areas, ZGC and Bunge currently 

compete aggressively to win farmers’ 

business by offering better prices and 

more attractive amenities such faster 

grain drop-off services and better grain 

grading. Faster drop-off services mean 

farmers can get back to their fields more 

quickly and make better use of their 

trucks and employees, ultimately saving 

time and money. If one elevator is 

grading grain more harshly or 

inconsistently, which may lead to a 

lower price paid to a farmer for the 

grain, the farmer has the option of 

selling to a competing elevator which 

may grade differently. 

5. If the proposed transaction 

proceeds in its current form, farmers 

located in these areas are likely to 

receive lower prices and lower quality 

services, and have fewer choices for the 

sale of their crops. The proposed 

transaction therefore is likely to lessen 

competition substantially in violation of 

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

18, and the Court should enjoin this 

unlawful transaction. 

II. Jurisdiction and Venue 

6. The United States brings this action 

pursuant to Section 15 of the Clayton 

Act, 15 U.S.C. 25, to prevent and 

restrain Defendants from violating 

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

18. 

7. Defendants are engaged in, and 

their activities substantially affect, 

interstate commerce. ZGC and Bunge 

both purchase, store, and sell grain 

throughout the United States. The Court 

has subject matter jurisdiction over this 

action pursuant to Section 15 of the 

Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 

1331, 1337(a), and 1345. 

8. ZGC and Bunge have each 

consented to personal jurisdiction and 

venue in this jurisdiction for purposes 

of this action. Venue is proper under 15 

U.S.C. 22, and 28 U.S.C. 1391(b) and (c). 

III. Defendants and the Proposed 

Transaction 

9. This case arises from ZGC’s 

proposed acquisition of certain grain 

elevator assets from Bunge for 

approximately $300 million pursuant to 

an Asset Purchase Agreement entered 

on April 21, 2020. 

10. ZGC, headquartered in Covington, 

Louisiana, is a subsidiary of the 

National Federation of Agricultural 

Cooperative Associations of Japan. ZGC 

owns and operates a state-of-the-art 

export elevator located on the 

Mississippi River near Convent, 

Louisiana, from which it trades and 

exports corn, soybeans, sorghum, wheat, 

and grain by-products. Recently 

expanded in 2018 to handle up to 17 

million tons of grain annually, ZGC’s 

Convent elevator is the largest port 

elevator on the Mississippi. ZGC does 

not own any inland grain elevators and 

relies upon its affiliate, CGB, to supply 

the majority of the massive quantities of 

corn and soybeans ZGC exports 

annually from Convent. Postacquisition, ZGC intends to lease the 

Bunge elevators to CGB to operate 

through CGB’s wholly owned 

subsidiary, Consolidated Grain and 

Barge Co. 

11. CGB is a 50–50 joint venture 

between ZGC and Itochu Corporation, a 

global trading company. CGB operates 

more than 100 elevators, many of which 

are located along the Mississippi, Ohio, 

Arkansas, and Illinois Rivers. CGB is the 

fifth-largest grain company in the 

United States by storage capacity. CGB’s 

grain merchandizers are in daily contact 

with thousands of farmers, actively 

seeking to purchase grain from them. 

Currently, CGB sells approximately 60% 

of the grain it purchases to ZGC. 

12. Bunge, headquartered in 

Chesterfield, Missouri, is the North 

American subsidiary of Bunge Limited. 

Bunge is a large agribusiness and food 

ingredient company that owns and 

operates grain elevators, oilseed 

processing plants, and edible oil 

refineries, as well as grain export 

terminals. Bunge is the eighth-largest 

grain company in the United States by 

storage capacity. Post-acquisition, 

Bunge will continue purchase grain in 

the United States via its export elevator 

on the Mississippi River in Destrehan, 

Louisiana and its export terminal in 

Longview, Washington (a joint venture 


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with Itochu Corporation). In addition to 

the export terminals, Bunge will retain 

ownership interests in eight elevators in 

Illinois and Indiana. 

IV. The Relevant Markets 

13. The livelihood of farmers depends 

on their ability to sell the corn and 

soybeans they grow to purchasers who 

offer them the best price, net of 

transportation and other selling costs 

that farmers incur. Ethanol plants and 

feed and crush mills purchase grain and 

process it into usable products such as 

soymeal or fuel. Rail and river elevators 

also purchase grain and store it until it 

is sold and transported to end users, in 

either domestic or export markets. 

14. For convenience, some farmers 

may sell their grain to smaller, 

‘‘country’’ elevators, located in closer 

proximity to the farmer than end users 

or rail and river elevators. Such 

elevators serve as grain collection and 

buying points in rural communities, and 

may provide other services like grain 

storage, drying, and conditioning 

services. Upon aggregating sufficient 

quantities of grain, or when market 

prices are most attractive, country 

elevators ultimately resell the grain to 

end users or to the larger rail or river 

elevators that can transport the grain to 

end users or export elevators. 

15. More than 45% of the grain 

exported from the U.S. is shipped out 

from port elevator export terminals 

located at the mouth of the Mississippi 

River near the Gulf of Mexico. The vast 

majority of this grain is sourced from 

river elevators located along the 

Mississippi and its tributaries. These 

river elevators, found as far north as 

Minnesota, purchase grain from 

surrounding farms, and load it onto 

barges for transport to the port elevators. 

A. Relevant Product Markets 

16. ZGC (mainly through CGB) and 

Bunge own grain elevators, primarily 

located at rail terminals and along 

navigable rivers. They compete with 

other grain purchasers, including 

ethanol processors, feed mills, and 

crush processors, to purchase corn and 

soybeans from U.S. farmers, brokers and 

country elevators. Corn and soybeans 

are each distinct products without 

reasonable substitutes, differing from 

other agricultural commodities and one 

another in their physical characteristics, 

means of production, uses, and pricing. 

Because of the length of growing 

seasons, and the suitability of corn and 

soybeans to certain climates and 

regions, farmers of these crops would 

not switch to production of other 

agricultural commodities in sufficient 

numbers to render unprofitable a small 

but significant decrease in price by a 

hypothetical monopsonist of that crop. 

The purchase of corn and the purchase 

of soybeans for end use or for sale to the 

export market each constitute a relevant 

product market and line of commerce 

under Section 7 of the Clayton Act, 15 

U.S.C. 18. 

B. Relevant Geographic Market 

17. Farmers typically haul grain by 

truck to nearby elevators or end users. 

Transportation costs increase 

significantly with every mile the farmers 

must transport the grain to reach a 

purchaser, reducing the farmers’ profits. 

Transporting grain also consumes 

farmers’ time. For these reasons, a small 

change in price would not likely cause 

farmers to significantly expand the 

distance they are willing to drive to sell 

their grain. The distance a farmer is 

willing to drive is determined in large 

part by the second-closest potential 

purchaser, which is the best competitive 

threat to the purchaser closest to the 

farmer. 

18. Rail or river elevators and other 

grain purchasing facilities, such as grain 

crush plants and ethanol plants, 

typically purchase grain from within the 

facility’s draw area. ‘‘Draw area’’ is an 

industry term that describes the 

locations of farms from which the 

facility expects to acquire most of its 

grain. Each elevator or end user has a 

unique draw area due to characteristics 

such as surrounding road conditions, 

crop output, local topography, and 

proximity of competing purchasers. The 

draw area of a grain purchasing facility 

is determined by transportation time 

and costs and so is usually very 

localized. 

19. The draw area of one grain facility 

frequently will overlap with that of 

another, resulting in competition 

between the facilities to purchase grain 

from farmers. Some farming areas of the 

country may be located such that they 

fall within the overlapping draw areas 

of only a few competing grain 

purchasing facilities. In particular, in 

the following areas where the 

Defendants’ river elevators have 

overlapping draw areas, there are only 

a small number of grain purchasers 

competing to purchase farmers’ corn 

and soybeans: 

(a) The overlapping draw areas of 

elevators in the vicinity of McGregor, 

Iowa; 

(b) The overlapping draw areas of 

elevators in the vicinity of Albany/ 

Fulton, Illinois; 

(c) The overlapping draw areas of 

elevators in the vicinity of 

Shawneetown, Illinois; 

(d) The overlapping draw areas of 

elevators in the vicinity of 

Caruthersville, Missouri; 

(e) The overlapping draw areas of 

elevators in the vicinity of Huffman, 

Arkansas; 

(f) The overlapping draw areas of 

elevators in the vicinity of Osceola, 

Arkansas; 

(g) The overlapping draws areas of 

elevators in the vicinity of Helena, 

Arkansas; 

(h) The overlapping draw areas of 

elevators in the vicinity of Lake 

Providence, Louisiana; and 

(i) The overlapping draw areas of 

elevators in the vicinity of Lettsworth, 

Louisiana. 

20. These geographic areas satisfy the 

hypothetical monopsonist test (a 

‘‘monopsonist’’ is a buyer that controls 

the purchases in a given market), the 

buyer-side counterpart to the 

hypothetical monopolist test. A 

hypothetical monopsonist of the 

purchase of corn or soybeans in each of 

these areas would impose at least a 

small but significant and non-transitory 

decrease in the price paid to farmers. 

Such a price decrease for these products 

would not be defeated by farmers selling 

to purchasers outside their local area 

due to the added costs of transportation. 

As farmers in these areas have already 

determined the best use of their 

farmland, a price decrease would also 

not be defeated by farmers’ switching to 

growing alternative crops. Farmers 

currently growing corn or soybeans are 

unlikely convert to production of other 

agricultural commodities in sufficient 

numbers to prevent a small but 

significant decrease in price. Nor could 

area farmers thwart a post-transaction 

price decrease by selling instead to local 

country elevators. Country elevators 

simply resell grain to river and rail 

elevators or to other end users; if 

Defendants lower prices posttransaction, country elevators would be 

forced to lower their own price to 

farmers to maintain profitability. 

Consequently, country elevators cannot 

mitigate a price decrease resulting from 

this transaction. Therefore, each of the 

overlapping draw areas above constitute 

a relevant geographic market within the 

meaning of Section 7 of the Clayton Act, 

15 U.S.C. 18, for the purposes of 

analyzing this transaction. 

V. ZGC’s Acquisition of Certain Grain 

Elevators From Bunge is Likely To 

Result in Anticompetitive Effects 

21. In each of the nine relevant 

geographic markets, ZGC (and its 

affiliate CGB) and Bunge are two of a 

very small number of grain purchasers 

competing to buy corn and soybeans; in 


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two of these markets, CGB and Bunge 

are the only elevators available to area 

farmers. Famers located within these 

geographic areas depend on this 

competition to obtain a competitive 

price for their grain. ZGC’s acquisition 

of Bunge’s elevators will substantially 

lessen competition for the purchase of 

corn and soybeans in these markets, 

enabling it to unilaterally depress prices 

paid to farmers for their crops. 

22. Because there are few alternative 

grain purchasers within these 

geographic areas, purchases of grain are 

highly concentrated, with the 

Defendants accounting for a majority of 

corn and/or soybean purchases in a 

given year. For example, in 2019, the 

Defendants purchased upwards of 95% 

of the total corn and soybean output of 

farmers in Pemiscot County, Missouri; 

Pemiscot County falls within the draw 

area of Bunge’s Caruthersville, Missouri 

river elevator, and the draw areas of 

CGB’s Caruthersville and Cottonwood, 

Missouri river elevators. 

23. By eliminating head-to-head 

competition between ZGC (and its 

affiliate CGB) and Bunge for grain 

purchases in these geographic markets, 

the proposed acquisition would result 

in lower prices paid to farmers, lower 

quality of services offered to farmers at 

the grain origination elevators, and 

reduced choice of outlets for farmers to 

sell their grain. The proposed 

transaction would substantially lessen 

competition and harm the many farmers 

selling their crops to river elevators 

along the Mississippi River and its 

tributaries. 

V. Absence of Countervailing Factors 

24. New entry and expansion by 

competitors likely will not be timely 

and sufficient in scope to prevent the 

acquisition’s likely anticompetitive 

effects. New elevators are unlikely to be 

constructed in these geographic markets 

because of the high cost of construction 

and the difficulty of finding appropriate 

locations to build such a facility along 

the Mississippi or its tributaries. Even 

assuming such a location could be 

found and regulatory and permitting 

requirements could be fulfilled, 

constructing a river elevator would take 

approximately two years to complete. 

25. The proposed acquisition is 

unlikely to generate verifiable, mergerspecific efficiencies sufficient to reverse 

or outweigh the anticompetitive effects 

likely to occur. 

VII. Violation Alleged 

26. The United States hereby 

incorporates the allegations of 

paragraphs 1 through 26 above as if set 

forth fully herein. 

27. ZGC’s proposed acquisition of the 

Bunge elevators is likely to substantially 

lessen competition in the relevant 

markets, in violation of Section 7 of the 

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

28. Unless enjoined, the proposed 

acquisition would likely have the 

following anticompetitive effects, 

among others: 

(a) Eliminate present and future 

competition between ZGC (and affiliate 

CGB) and Bunge in the each of the 

relevant geographic markets for the 

purchase of corn and the purchase of 

soybeans; 

(b) cause prices paid to farmers for 

corn and soybeans to be lower than they 

would be otherwise; and 

(c) reduce quality, service, and choice 

for American farmers. 

VIII. Request for Relief 

29. The United States requests that 

the Court: 

(a) Adjudge ZGC’s acquisition of 

Bunge’s elevators to violate Section 7 of 

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

(b) permanently enjoin Defendants 

from consummating ZGC’s proposed 

acquisition of Bunge’s elevators or from 

entering into or carrying out any other 

agreement, understanding, or plan by 

which the assets or businesses of ZGC 

and Bunge would be combined; 

(c) award the United States its costs 

of this action; and 

(d) grant the United States such other 

relief the Court deems just and proper. 

Dated: June 1, 2021. 

Respectfully submitted, 

FOR PLAINTIFF UNITED STATES: 

lllllllllllllllllllll

Richard A. Powers 

Acting Assistant Attorney General for 

Antitrust 

lllllllllllllllllllll

Kathleen S. O’Neill 

Senior Director of Investigations & Litigation 

lllllllllllllllllllll

Robert A. Lepore 

Chief, Transportation, Energy & Agriculture 

Section 

lllllllllllllllllllll

Katherine A. Celeste 

Assistant Chief, Transportation, Energy & 

Agriculture Section 

lllllllllllllllllllll

Jill Ptacek * 

Michele B. Cano 

Jessica Butler-Arkow (D.C. #43022) 

Attorneys for the United States 

U.S. Department of Justice, Antitrust 

Division, 450 Fifth Street NW, Suite 8000, 

Washington, DC 20530, Tel: (202) 307–6607, 

Fax: (202) 616–2441, Email: jill.ptacek@

usdoj.gov 

* Lead attorney to be noticed 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

United States of America, Plaintiff, v. ZenNoh Grain Corp., and Bunge North America, 

Inc., Defendants. 

Civil Action No.: 1:21–cv–1482–RJL 

Judge Richard J. Leon 

Proposed Final Judgment 

Whereas, Plaintiff, United States of 

America, filed its Complaint on lll, 

2021; 

And whereas, the United States and 

Defendants, Zen-Noh Grain Corp. and 

Bunge North America, Inc., by their 

respective attorneys, have consented to 

entry of this Final Judgment without the 

taking of testimony, without trial or 

adjudication of any issue of fact or law, 

and without this Final Judgment 

constituting any evidence against or 

admission by any party regarding any 

issue of fact or law; 

And whereas, Defendants agree to 

make certain divestitures to remedy the 

loss of competition alleged in the 

Complaint; 

And whereas, Defendants represent 

that the divestitures and other relief 

required by this Final Judgment can and 

will be made and that Defendants will 

not later raise a claim of hardship or 

difficulty as grounds for asking the 

Court to modify any provision of this 

Final Judgment; 

Now therefore, it is ordered, 

adjudged, and decreed: 

I. Jurisdiction 

The Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against Defendants under Section 7 of 

the Clayton Act, as amended (15 U.S.C. 

18). 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ or ‘‘Acquirers’’ means 

Viserion or another entity or entities to 

which Defendants divest the Divestiture 

Assets. 

B. ‘‘ZGC’’ means Zen-Noh Grain 

Corp., a Louisiana corporation 

headquartered in Covington, Louisiana, 

its successors and assigns, and its 

subsidiaries, divisions, groups, affiliates 

(including CGB), partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘Bunge’’ means Bunge North 

America, Inc., a New York corporation 

headquartered in Chesterfield, Missouri, 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 


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D. ‘‘Bunge Elevators’’ means the 

elevators located on the properties 

owned or leased by Bunge listed among 

the Divested Elevators. 

E. ‘‘CGB’’ means CGB Enterprises Inc., 

a Louisiana corporation headquartered 

in Covington, LA, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

F. ‘‘CGB Elevator’’ means the elevator 

located on the property owned or leased 

by CGB listed among the Divested 

Elevators. 

G. ‘‘Viserion’’ means Viserion Grain, 

LLC and Viserion International Holdco, 

LLC, Delaware limited liability 

companies headquartered in Colorado, 

their successors and assigns, their 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures and their directors, officers, 

managers, agents, and employees. 

H. ‘‘Divested Elevators’’ means the 

following elevators: 

Geographic area Elevator(s) to be divested 

McGregor, IA ...................... The Bunge Elevator located at 311 E B St., McGregor, IA 52157. 

Albany, IL ........................... The Bunge Elevator located at 1002 N Main St., Albany, IL 61230 OR the CGB Elevator located at 561 Broderick 

Drive, Savanna, IL 61074. 

Shawneetown, IL ................ The Bunge Elevator located at 218 Market St., Shawneetown, IL 62984. 

Caruthersville, MO .............. The Bunge Elevator located at 100 Ward Ave., Caruthersville, MO 63830. 

Huffman, AR ....................... The Bunge Elevator located at 7058 E County Rd. 54, Hwy. 37, Blytheville, AR 72315. 

Osceola, MO ...................... The Bunge Elevators located at 2220 E State Hwy. 198 and Mississippi River, Osceola, AR 72370 and at Mississippi County 661 S, Monroe Township, AR 72370. 

Helena, AR ......................... The Bunge Elevator located at 103 Hanks Ln., Helena, AR 72342. 

Lake Providence, LA .......... The Bunge Elevator located at 337 Port Rd., Lake Providence, LA 71254. 

Lettsworth, LA .................... The Bunge Elevator located at 17783 Hwy. 418, Lettsworth, LA 70753. 

I. ‘‘Divestiture Assets’’ means all of 

Defendants’ rights, titles, and interests 

in and to: 

1. The Divested Elevators; 

2. all contracts, contractual rights, and 

relationships, including customer and 

supplier relationships, and all other 

agreements, commitments, and 

understandings, including, supply 

agreements, teaming agreements, and 

leases, and all outstanding offers or 

solicitations to enter into a similar 

arrangement that relate exclusively to 

the Divested Elevators; and 

3. all other property and assets, 

tangible and intangible, wherever 

located, relating to or used in 

connection with each Divested Elevator, 

including: 

a. All real property and real property 

rights, fee simple interests; buildings, 

facilities, and other structures, 

including bins, silos, other grain storage 

facilities, and dock facilities; easements; 

leasehold and rental rights, including all 

renewal or option rights; prepaid rent 

and security deposits; and fixtures, 

improvements, and assignable 

improvement warranties; 

b. all tangible personal property; 

equipment, machinery, and tools, such 

as those used for handling, receiving, 

unloading, weighing, sampling, grading, 

elevating, storing, drying, conditioning, 

loading, and buying and selling grain; 

vehicles and furniture; supplies, 

replacement parts, and spare parts; and 

inventory; 

c. all licenses, permits, certifications, 

approvals, consents, registrations, 

waivers, and authorizations issued or 

granted by any governmental 

organization, and all pending 

applications or renewals; 

d. all records and data, including (a) 

customer and supplier lists, accounts, 

sales, and credit records, (b) production, 

repair, maintenance, and performance 

records, (c) manuals and technical 

information Defendants provide to their 

own employees, customers, suppliers, 

agents, or licensees, (d) accounting and 

operating records and ledgers; (e) sales 

and marketing records, including local 

marketing plans and sales and 

advertising materials, (f) records and 

research data concerning historic and 

current research and development 

activities, and (g) drawings, blueprints, 

and designs; and 

e. all other intangible property, 

including, (a) technical information, (b) 

design tools and simulation capabilities, 

(c) computer software and related 

documentation, know-how, trade 

secrets, design protocols, specifications 

for materials, specifications for parts, 

specifications for devices, safety 

procedures (e.g., for the handling of 

materials and substances), and quality 

assurance and control procedures, 

provided, however, that any intellectual 

property associated with the brand 

names Bunge, CGB, Zen-Noh, and ZGC 

is not included in the Divestiture 

Assets. 

J. ‘‘Divestiture Date’’ means the date[s] 

on which the Divestiture Assets are 

divested to Acquirer[s] pursuant to this 

Final Judgment. 

K. ‘‘Including’’ means including, but 

not limited to. 

L. ‘‘Relevant Personnel’’ means: (1) 

All full-time, part-time, or contract 

employees employed at the Divested 

Elevators at any time between August 

21, 2020, and the Divestiture Date; (2) 

all elevator managers, grain 

merchandisers, and elevator 

superintendents employed by Bunge or 

CGB whose job responsibilities are 

shared between or among Divested 

Elevators and any non-divested 

elevators, at any time between August 

21, 2020, and the Divestiture Date; and 

(3) all regional managers employed by 

Bunge one organizational level above 

the elevator manager level, wherever 

located, whose job responsibilities 

support the grain purchasing business of 

any of the Bunge Elevators, at any time 

between August 21, 2020, and the 

Divestiture Date. The United States, in 

its sole discretion, will resolve any 

disagreement regarding which 

employees are Relevant Personnel. 

M. ‘‘Transaction’’ means ZGC’s 

proposed acquisition of 35 operating 

and 13 idled grain elevators from Bunge. 

III. Applicability 

A. This Final Judgment applies to 

Defendants ZGC and Bunge, as defined 

above, and all other persons in active 

concert or participation with any 

Defendant who receive actual notice of 

this Final Judgment. 

B. If, prior to complying with Section 

IV and Section V of this Final Judgment, 

Defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of business units that include the 

Divestiture Assets, Defendants must 

require any purchaser to be bound by 

the provisions of this Final Judgment. 

Defendants need not obtain such an 

agreement from an Acquirer. 

IV. Divestitures 

A. Defendant ZGC is ordered and 

directed within 30 calendar days after 

entry of the Asset Preservation 

Stipulation and Order to divest the 

Divestiture Assets in a manner 


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consistent with this Final Judgment to 

Viserion or to another Acquirer or 

Acquirers acceptable to the United 

States, in its sole discretion. The United 

States, in its sole discretion, may agree 

to one or more extensions of this time 

period not to exceed 90 calendar days 

in total and will notify the Court of any 

extensions. 

B. Defendant ZGC must use its best 

efforts to divest the Divestiture Assets as 

expeditiously as possible, and 

Defendants may not take any action to 

impede the permitting, licensing, 

operation, or divestiture of the 

Divestiture Assets. Defendants must 

take no action that would jeopardize the 

divestiture ordered by the Court. 

C. Unless the United States otherwise 

consents in writing, divestiture 

pursuant to this Final Judgment must 

include the entire Divestiture Assets 

and must be accomplished in such a 

way as to satisfy the United States, in its 

sole discretion, that the Divestiture 

Assets can and will be used by Acquirer 

as part of a viable, ongoing business of 

grain purchasing, and that the 

divestiture to Acquirer or Acquirers will 

remedy the competitive harm alleged in 

the Complaint. 

D. The divestiture must be made to an 

Acquirer or Acquirers that, in the 

United States’ sole judgment, has or 

have the intent and capability 

(including the necessary managerial, 

operational, technical, and financial 

capability) to compete effectively in 

grain purchasing. 

E. The divestiture must be 

accomplished in a manner that satisfies 

the United States, in its sole discretion, 

that none of the terms of any agreement 

between an Acquirer and Defendant 

ZGC give Defendants the ability 

unreasonably to raise an Acquirer’s 

costs, to lower an Acquirer’s efficiency, 

or otherwise to interfere in the ability of 

an Acquirer to compete effectively in 

grain purchasing. 

F. Divestiture of the Divestiture Assets 

may be made to one or more Acquirers, 

in one or more transactions, provided 

that it is demonstrated to the sole 

satisfaction of the United States that the 

criteria required by Paragraphs IV(C), 

IV(D), and IV(E) will still be met. 

G. In the event Defendant ZGC is 

attempting to divest the Divestiture 

Assets to an Acquirer other than 

Viserion, Defendant ZGC promptly must 

make known, by usual and customary 

means, the availability of the Divestiture 

Assets. Defendant ZGC must inform any 

person making an inquiry regarding a 

possible purchase of the Divestiture 

Assets that the Divestiture Assets are 

being divested in accordance with this 

Final Judgment and must provide that 

person with a copy of this Final 

Judgment. Defendants must offer to 

furnish to all prospective Acquirers, 

subject to customary confidentiality 

assurances, all information and 

documents relating to the Divestiture 

Assets that are customarily provided in 

a due-diligence process; provided, 

however, that Defendants need not 

provide information or documents 

subject to the attorney-client privilege or 

work-product doctrine. Defendants must 

make all information and documents 

available to the United States at the 

same time that the information and 

documents are made available to any 

other person. 

H. Defendants must provide 

prospective Acquirers with (1) access to 

make inspections of the Divestiture 

Assets; (2) access to all environmental, 

zoning, and other permitting documents 

and information regarding the 

Divestiture Assets; and (3) access to all 

financial, operational, or other 

documents and information relating to 

the Divestiture Assets that customarily 

would be provided as part of a duediligence process. Defendants also must 

disclose all encumbrances on any part 

of the Divestiture Assets, including on 

intangible property. 

I. Defendants must cooperate with 

and assist an Acquirer in identifying 

and, at the option of Acquirer, hiring all 

Relevant Personnel, including: 

1. Within 10 business days following 

the filing of the Complaint in this 

matter, or, if the Divestiture Assets are 

divested to an Acquirer or Acquirers 

other than Viserion, within 10 business 

days of notice from the United States 

pursuant to Paragraph VI.C. that it does 

not object to a proposed Acquirer, 

Defendants must identify all Relevant 

Personnel to Acquirer and the United 

States, including by providing 

organization charts covering all 

Relevant Personnel. 

2. Within 10 business days following 

receipt of a request by an Acquirer or 

the United States, Defendants must 

provide to Acquirer and the United 

States additional information related to 

Relevant Personnel, including name, job 

title, reporting relationships, past 

experience, responsibilities, training 

and educational histories, relevant 

certifications, and job performance 

evaluations. Defendants must also 

provide to Acquirer and the United 

States current and accrued 

compensation and benefits, including 

most recent bonuses paid, aggregate 

annual compensation, current target or 

guaranteed bonus, any retention 

agreement or incentives, and any other 

payments due, compensation or 

benefited accrued, or promises made to 

the Relevant Personnel. If Defendants 

are barred by any applicable law from 

providing any of this information, 

Defendants must provide, within 10 

business days following receipt of the 

request, the requested information to the 

full extent permitted by law and also 

must provide a written explanation of 

Defendants’ inability to provide the 

remaining information, including 

specifically identifying the provisions of 

the applicable laws. 

3. At the request of an Acquirer, 

Defendants must promptly make 

Relevant Personnel available for private 

interviews with Acquirer during normal 

business hours at a mutually agreeable 

location. 

4. Defendants must not interfere with 

any effort by an Acquirer to employ any 

Relevant Personnel. Interference 

includes, but is not limited to, offering 

to increase the compensation or 

improve the benefits of Relevant 

Personnel unless: (a) The offer is part of 

a company-wide increase in 

compensation or improvement in 

benefits that was announced prior to 

April 21, 2020, or (b) the offer is 

approved by the United States in its sole 

discretion. Defendants’ obligations 

under this Paragraph will expire 6 

months after the Divestiture Date. 

5. For Relevant Personnel who elect 

employment with an Acquirer within 6 

months of the Divestiture Date, 

Defendants must waive all non-compete 

and non-disclosure agreements, vest all 

unvested pension and other equity 

rights (or to the extent such accelerated 

vesting is not permitted, provide the 

equivalent benefits), provide any pay 

pro-rata, provide all other compensation 

and benefits that their Relevant 

Personnel have fully or partially 

accrued, and provide pro-rata all other 

benefits that those Relevant Personnel 

otherwise would have been provided 

had the Relevant Personnel continued 

employment with Defendants, including 

any vested retention bonuses or 

payments. Defendants may maintain 

reasonable restrictions on disclosure by 

Relevant Personnel of Defendants’ 

proprietary non-public information that 

is unrelated to the Divestiture Assets 

and not otherwise required to be 

disclosed by this Final Judgment. 

6. For a period of 12 months from the 

Divestiture Date, Defendants may not 

solicit to rehire the following categories 

of Relevant Personnel hired by an 

Acquirer from Defendants within 6 

months of the Divestiture Date: Regional 

and general managers, elevator 

managers, grain merchandisers, elevator 

superintendents, and bookkeepers. 

Defendants may solicit to rehire these 

categories of Relevant Personnel if (a) an 


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individual is terminated or laid off by 

Acquirer, or (b) Acquirer agrees in 

writing that Defendants may solicit to 

rehire that individual. Nothing in this 

Paragraph IV.H.6. prohibits Defendants 

from advertising employment openings 

using general solicitations or 

advertisements and rehiring Relevant 

Personnel who apply for an 

employment opening through a general 

solicitation or advertisement. 

J. Defendant ZGC must warrant to 

Acquirer or Acquirers that (1) the 

Divestiture Assets will be operational 

and without material defects on the date 

of their transfer to Acquirer; (2) there are 

no material defects in the 

environmental, zoning, or other permits 

relating to the operation of the 

Divestiture Assets; and (3) Defendant 

ZGC has disclosed all encumbrances on 

any part of the Divestiture Assets, 

including on intangible property. 

Following the sale of the Divestiture 

Assets, Defendants must not undertake, 

directly or indirectly, challenges to the 

environmental, zoning, or other permits 

relating to the operation of the 

Divestiture Assets. 

K. For any contract or agreement that 

requires the consent of another party to 

assign, subcontract, or otherwise 

transfer, Defendants must use best 

efforts to accomplish the assignment, 

subcontracting, or transfer. Defendants 

must not interfere with any negotiations 

between an Acquirer and a contracting 

party. 

L. Defendants must make best efforts 

to assist Acquirer or Acquirers to obtain 

all necessary licenses, registrations, 

certifications, and permits to operate the 

Divestiture Assets, including those 

issued by governmental entities. Until 

an Acquirer obtains the necessary 

licenses, registrations, certifications, 

and permits, Defendants must provide 

Acquirer with the benefit of Defendants’ 

licenses, registrations, certifications, 

and permits to the full extent 

permissible by law. 

M. At the option of Acquirer or 

Acquirers, and subject to approval by 

the United States in its sole discretion, 

on or before the Divestiture Date, 

Defendants must enter into contracts to 

provide transition services for back 

office, human resources, and 

information technology, for a period of 

up to six months after the divestiture 

occurs on terms and conditions 

reasonably related to market conditions 

for the provision of the transition 

services. Any amendments to or 

modifications of any provision of any 

contract between either or both 

Defendants, and Acquirer or Acquirers, 

to provide transition services are subject 

to approval by the United States, in its 

sole discretion. The United States, in its 

sole discretion, may approve one or 

more extensions of any contract for 

transition services between Defendants 

and Viserion, for a total of up to an 

additional six months. In the event the 

Divestiture Assets are divested to an 

Acquirer or Acquirers other than 

Viserion, the United States, in its sole 

discretion, may approve an extension of 

any contract for transition services for 

up to 12 months after the divestiture is 

completed. If an Acquirer seeks an 

extension of the term of any contract for 

transition services, the relevant 

Defendant must notify the United States 

in writing at least two months prior to 

the date the contract expires. An 

Acquirer may terminate a contract for 

transition services, or any portion of a 

contract for transition services, without 

cost or penalty at any time upon 30 

days’ written notice. The employee(s) of 

Defendants tasked with providing 

transition services must not share any 

competitively sensitive information of 

an Acquirer with any other employee of 

Defendants. 

N. If any term of an agreement 

between Defendants and Acquirer or 

Acquirers, including an agreement to 

effectuate the divestiture required by 

this Final Judgment, varies from a term 

of this Final Judgment, to the extent that 

Defendants cannot fully comply with 

both, this Final Judgment determines 

Defendants’ obligations. 

V. Appointment of Divestiture Trustee 

A. If Defendant ZGC has not divested 

the Divestiture Assets within the period 

specified in Paragraph IV.A., Defendant 

ZGC must immediately notify the 

United States of that fact in writing. 

Upon application of the United States, 

which Defendants may not oppose, the 

Court will appoint a divestiture trustee 

selected by the United States and 

approved by the Court to effect the 

divestiture of the Divestiture Assets. 

B. After the appointment of a 

divestiture trustee by the Court, only the 

divestiture trustee will have the right to 

sell the Divestiture Assets. The 

divestiture trustee will have the power 

and authority to accomplish the 

divestiture to an Acquirer or Acquirer(s) 

acceptable to the United States, in its 

sole discretion, at a price and on terms 

obtainable through reasonable effort by 

the divestiture trustee, subject to the 

provisions of Sections IV, V, and VI of 

this Final Judgment, and will have other 

powers as the Court deems appropriate. 

The divestiture trustee will have sole 

discretion to select the Divested 

Elevator to be divested in each 

geographic area listed in Paragraph II.H. 

The divestiture trustee must sell the 

Divestiture Assets as quickly as 

possible. 

C. Defendants may not object to a sale 

by the divestiture trustee on any ground 

other than malfeasance by the 

divestiture trustee. Objections by 

Defendants must be conveyed in writing 

to the United States and the divestiture 

trustee within 10 calendar days after the 

divestiture trustee has provided the 

notice of proposed divestiture required 

by Section VI. 

D. The divestiture trustee will serve at 

the cost and expense of Defendant ZGC 

pursuant to a written agreement, on 

terms and conditions, including 

confidentiality requirements and 

conflict of interest certifications, that are 

approved by the United States in its sole 

discretion. 

E. The divestiture trustee may hire at 

the cost and expense of Defendant ZGC 

any agents or consultants, including, but 

not limited to, investment bankers, 

attorneys, and accountants, that are 

reasonably necessary in the divestiture 

trustee’s judgment to assist with the 

divestiture trustee’s duties. These agents 

or consultants will be accountable 

solely to the divestiture trustee and will 

serve on terms and conditions, 

including terms and conditions 

governing confidentiality requirements 

and conflict-of-interest certifications, 

that are approved by the United States 

in its sole discretion. 

F. The compensation of the 

divestiture trustee and agents or 

consultants hired by the divestiture 

trustee must be reasonable in light of the 

value of the Divestiture Assets and 

based on a fee arrangement that 

provides the divestiture trustee with 

incentives based on the price and terms 

of the divestiture and the speed with 

which it is accomplished. If the 

divestiture trustee and Defendant ZGC 

are unable to reach agreement on the 

divestiture trustee’s compensation or 

other terms and conditions of 

engagement within 14 calendar days of 

the appointment of the divestiture 

trustee by the Court, the United States, 

in its sole discretion, may take 

appropriate action, including by making 

a recommendation to the Court. Within 

three business days of hiring an agent or 

consultant, the divestiture trustee must 

provide written notice of the hiring and 

rate of compensation to Defendant ZGC 

and the United States. 

G. The divestiture trustee must 

account for all monies derived from the 

sale of the Divestiture Assets sold by the 

divestiture trustee and all costs and 

expenses incurred. Within 30 calendar 

days of the Divestiture Date, the 

divestiture trustee must submit that 

accounting to the Court for approval. 


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After approval by the Court of the 

divestiture trustee’s accounting, 

including fees for unpaid services and 

those of agents or consultants hired by 

the divestiture trustee, all remaining 

money must be paid to Defendant ZGC 

and the trust will then be terminated. 

H. Defendants must use their best 

efforts to assist the divestiture trustee to 

accomplish the required divestiture. 

Subject to reasonable protection for 

trade secrets, other confidential 

research, development, or commercial 

information, or any applicable 

privileges, Defendants must provide the 

divestiture trustee and agents or 

consultants retained by the divestiture 

trustee with full and complete access to 

all personnel, books, records, and 

facilities of the Divestiture Assets. 

Defendants also must provide or 

develop financial and other information 

relevant to the Divestiture Assets that 

the divestiture trustee may reasonably 

request. Defendants must not take any 

action to interfere with or to impede the 

divestiture trustee’s accomplishment of 

the divestiture. 

I. The divestiture trustee must 

maintain complete records of all efforts 

made to sell the Divestiture Assets, 

including by filing monthly reports with 

the United States setting forth the 

divestiture trustee’s efforts to 

accomplish the divestiture ordered by 

this Final Judgment. The reports must 

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 Divestiture Assets and must describe 

in detail each contact with any such 

person. 

J. If the divestiture trustee has not 

accomplished the divestiture ordered by 

this Final Judgment within six months 

of appointment, the divestiture trustee 

must promptly provide the United 

States with a report setting forth: (1) The 

divestiture trustee’s efforts to 

accomplish the required divestiture; (2) 

the reasons, in the divestiture trustee’s 

judgment, why the required divestitures 

have not been accomplished; and (3) the 

divestiture trustee’s recommendations 

for completing the divestitures. 

Following receipt of that report, the 

United States may make additional 

recommendations to the Court. The 

Court thereafter may enter such orders 

as it deems appropriate to carry out the 

purpose of this Final Judgment, which 

may include extending the trust and the 

term of the divestiture trustee’s 

appointment. 

K. The divestiture trustee will serve 

until divestiture of all Divestiture Assets 

is completed or for a term otherwise 

ordered by the Court. 

L. If the United States determines that 

the divestiture trustee is not acting 

diligently or in a reasonably costeffective manner, the United States may 

recommend that the Court appoint a 

substitute divestiture trustee. 

VI. Notice of Proposed Divestiture 

A. Within two business days 

following execution of a definitive 

agreement to divest the Divestiture 

Assets to an Acquirer or Acquirers other 

than Viserion, Defendant ZGC or the 

divestiture trustee, whichever is then 

responsible for effecting the divestiture, 

must notify the United States of the 

proposed divestiture. If the divestiture 

trustee is responsible for completing the 

divestiture, the divestiture trustee also 

must notify Defendant ZGC. The notice 

must set forth the details of the 

proposed divestiture and list the name, 

address, and telephone number of each 

person not previously identified who 

offered or expressed an interest in or 

desire to acquire any ownership interest 

in the Divestiture Assets. 

B. Within 15 calendar days of receipt 

by the United States of receipt of the 

notice required by Paragraph IV.A., the 

United States may request from 

Defendants, the proposed Acquirer, 

other third parties, or the divestiture 

trustee additional information 

concerning the proposed divestiture, the 

proposed Acquirer, and other 

prospective Acquirers. Defendants and 

the divestiture trustee must furnish the 

additional information requested within 

15 calendar days of the receipt of the 

request unless the United States 

provides written agreement to a 

different period. 

C. Within 45 calendar days after 

receipt of the notice required by 

Paragraph VI.A. or within 20 calendar 

days after the United States has been 

provided the additional information 

requested pursuant to Paragraph VI.B., 

whichever is later, the United States 

will provide written notice to Defendant 

ZGC and any divestiture trustee that 

states whether or not the United States, 

in its sole discretion, objects to an 

Acquirer or Acquirers or any other 

aspect of the proposed divestitures. 

Without written notice that the United 

States does not object, a divestiture may 

not be consummated. If the United 

States provides written notice that it 

does not object, the divestiture may be 

consummated, subject only to 

Defendants’ limited right to object to the 

sale under Paragraph V.C. of this Final 

Judgment. Upon objection by 

Defendants pursuant to Paragraph V.C., 

a divestiture by the divestiture trustee 

may not be consummated unless 

approved by the Court. 

D. No information or documents 

obtained pursuant to this Section VI 

may be divulged by the United States to 

any person other than an authorized 

representative of the executive branch of 

the United States, except in the course 

of legal proceedings to which the United 

States is a party, including grand-jury 

proceedings, for the purpose of 

evaluating a proposed Acquirer or 

securing compliance with this Final 

Judgment, or as otherwise required by 

law. 

E. In the event of a request by a third 

party for disclosure of information 

under the Freedom of Information Act, 

5 U.S.C. 552, the United States 

Department of Justice’s Antitrust 

Division will act in accordance with 

that statute, and the Department of 

Justice regulations at 28 CFR part 16, 

including the provision on confidential 

commercial information, at 28 CFR 16.7. 

Persons submitting information to the 

Antitrust Division should designate the 

confidential commercial information 

portions of all applicable documents 

and information under 28 CFR 16.7. 

Designations of confidentiality expire 

ten years after submission, ‘‘unless the 

submitter requests and provides 

justification for a longer designation 

period.’’ See 28 CFR 16.7(b). 

F. If at the time that a person 

furnishes information or documents to 

the United States pursuant to this 

Section VI, that person represents and 

identifies in writing information or 

documents for which a claim of 

protection may be asserted under Rule 

26(c)(1)(G) of the Federal Rules of Civil 

Procedure, and marks each pertinent 

page of such material, ‘‘Subject to claim 

of protection under Rule 26(c)(1)(G) of 

the Federal Rules of Civil Procedure,’’ 

the United States must give that person 

ten calendar days’ notice before 

divulging the material in any legal 

proceeding (other than a grand-jury 

proceeding). 

VII. Financing 

Defendants may not finance all or any 

part of Acquirer’s purchase of all or part 

of the Divestiture Assets. 

VIII. Asset Preservation and Hold 

Separate Obligations 

Defendants must take all steps 

necessary to comply with the Asset 

Preservation and Hold Separate 

Stipulation and Order entered by the 

Court. 


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IX. Affidavits 

A. Within 20 calendar days of the 

filing of the Complaint in this matter, 

and every 30 calendar days thereafter 

until the divestitures required by this 

Final Judgment have been completed, 

each Defendant must deliver to the 

United States an affidavit, signed by 

each Defendant’s Chief Financial Officer 

and General Counsel, describing in 

reasonable detail the fact and manner of 

Defendants’ compliance with this Final 

Judgment. The United States, in its sole 

discretion, may approve different 

signatories for the affidavits. Defendant 

Bunge’s obligations under this 

Paragraph IX.A shall cease 30 calendar 

days after the closing of the Transaction. 

B. Each affidavit required by 

Paragraph IX.A. must include: (1) The 

name, address, and telephone number of 

each person who, during the preceding 

30 calendar days, made an offer to 

acquire, expressed an interest in 

acquiring, entered into negotiations to 

acquire, or was contacted or made an 

inquiry about acquiring, an interest in 

the Divestiture Assets and describe in 

detail each contact with such persons 

during that period; (2) a description of 

the efforts Defendants have taken to 

solicit buyers for and complete the sale 

of the Divestiture Assets and to provide 

required information to prospective 

Acquirers; and (3) a description of any 

limitations placed by Defendants on 

information provided to prospective 

Acquirers. Objection by the United 

States to information provided by 

Defendants to prospective Acquirers 

must be made within 14 calendar days 

of receipt of the affidavit, except that the 

United States may object at any time if 

the information set forth in the affidavit 

is not true or complete. 

C. Defendants must keep all records of 

any efforts made to divest the 

Divestiture Assets until one year after 

the Divestiture Date. 

D. Within 20 calendar days of the 

filing of the Complaint in this matter, 

each Defendant must also deliver to the 

United States an affidavit signed by 

each Defendant’s Chief Financial Officer 

and General Counsel, describing in 

reasonable detail all actions Defendants 

have taken and all steps Defendants 

have implemented on an ongoing basis 

to comply with Section VIII of this Final 

Judgment. The United States, in its sole 

discretion, may approve different 

signatories for the affidavits. 

E. If a Defendant makes any changes 

to the actions and steps outlined in any 

earlier affidavits provided pursuant to 

Paragraph IX.D., Defendants must, 

within 15 calendar days after any 

change is implemented, deliver to the 

United States an affidavit describing 

those changes. 

F. Defendants must keep all records of 

any efforts made to comply with Section 

VIII until one year after the Divestiture 

Date. 

X. Compliance Inspection 

A. For the purpose of determining or 

securing compliance with this Final 

Judgment, or related orders such as the 

Hold Separate Stipulation and Order, or 

for the purpose of determining whether 

this Final Judgment should be modified 

or vacated, upon written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, and reasonable 

notice to Defendants, Defendants must 

permit, from time to time and subject to 

legally recognized privileges, authorized 

representatives, including agents 

retained by the United States: 

1. To have access during Defendants’ 

office hours to inspect and copy, or at 

the option of the United States, to 

require Defendants to provide electronic 

copies of all books, ledgers, accounts, 

records, data, and documents in the 

possession, custody, or control of 

Defendants relating to any matters 

contained in this Final Judgment; and 

2. to interview, either informally or on 

the record, Defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

relating to any matters contained in the 

Final Judgment. The interviews must be 

subject to the reasonable convenience of 

the interviewee and without restraint or 

interference by Defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, Defendants must 

submit written reports or respond to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment. 

C. No information or documents 

obtained pursuant to this Section XI 

may be divulged by the United States to 

any person other than an authorized 

representative of the executive branch of 

the United States, except in the course 

of legal proceedings to which the United 

States is a party, including grand jury 

proceedings, for the purpose of securing 

compliance with this Final Judgment, or 

as otherwise required by law. 

D. In the event of a request by a third 

party for disclosure of information 

under the Freedom of Information Act, 

5 U.S.C. 552, the Antitrust Division will 

act in accordance with that statute, and 

the Department of Justice regulations at 

28 CFR part 16, including the provision 

on confidential commercial information, 

at 28 CFR 16.7. Defendants submitting 

information to the Antitrust Division 

should designate the confidential 

commercial information portions of all 

applicable documents and information 

under 28 CFR 16.7. Designations of 

confidentiality expire 10 years after 

submission, ‘‘unless the submitter 

requests and provides justification for a 

longer designation period.’’ See 28 CFR 

16.7(b). 

E. If at the time that Defendants 

furnish information or documents to the 

United States pursuant to this Section 

X, Defendants represent and identify in 

writing information or documents for 

which a claim of protection may be 

asserted under Rule 26(c)(1)(G) of the 

Federal Rules of Civil Procedure, and 

Defendants mark each pertinent page of 

such material, ‘‘Subject to claim of 

protection under Rule 26(c)(1)(G) of the 

Federal Rules of Civil Procedure,’’ the 

United States must give Defendants 10 

calendar days’ notice before divulging 

the material in any legal proceeding 

(other than a grand jury proceeding). 

XI. Notification 

A. Unless a transaction is otherwise 

subject to the reporting and waiting 

period requirements of the Hart-ScottRodino Antitrust Improvements Act of 

1976, as amended, 15 U.S.C. 18a (the 

‘‘HSR Act’’), Defendant ZGC, may not, 

without first providing at least 30 

calendar days advance notification to 

the United States, directly or indirectly 

acquire any assets of or any interest, 

including a financial, security, loan, 

equity, or management interest, in grain 

purchasing facilities, including grain 

elevators and crush mills, located 

within a 100-mile radius any Divested 

Elevator during the term of this Final 

Judgment; provided, however, that the 

obligations in this Section XI do not 

apply to Defendant ZGC’s acquisition of 

grain purchasing facilities that were 

leased by Defendant ZGC as of January 

1, 2021. 

B. Defendant ZGC must provide the 

notification required by this Section XI 

in the same format as, and in 

accordance with the instructions 

relating to, the Notification and Report 

Form set forth in the Appendix to Part 

803 of Title 16 of the Code of Federal 

Regulations as amended, except that the 

information requested in Items 5 

through 8 of the instructions must be 

provided only about grain purchasing 

facilities located within a 100-mile 

radius of any Divested Elevator. 

C. Notification must be provided at 

least 30 calendar days before acquiring 

any assets or interest, and must include, 

beyond the information required by the 

instructions, the names of the principal 

representatives who negotiated the 


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transaction on behalf of each party, and 

all management or strategic plans 

relating to the proposed transaction. If, 

within the 30 calendar days following 

notification, representatives of the 

United States make a written request for 

additional information, Defendant ZGC 

may not consummate the proposed 

transaction until 30 calendar days after 

submitting all requested information. 

D. Early termination of the waiting 

periods set forth in this Section XI may 

be requested and, where appropriate, 

granted in the same manner as is 

applicable under the requirements and 

provisions of the HSR Act and rules 

promulgated thereunder. This Section 

XI must be broadly construed, and any 

ambiguity or uncertainty regarding 

whether to file a notice under this 

Section XI must be resolved in favor of 

filing notice. 

XII. Limitations on Reacquisition 

Defendant ZGC may not reacquire any 

part of or any interest in the Divestiture 

Assets during the term of this Final 

Judgment without prior authorization by 

the United States. 

XIII. Retention of Jurisdiction 

The Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to the Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIV. Enforcement of Final Judgment 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including the right to seek an order of 

contempt from the Court. Defendants 

agree that in 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 Defendants waive 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 and to restore the competition the 

United States alleges was harmed by the 

challenged conduct. Defendants agree 

that they may be held in contempt of, 

and that the Court may enforce, any 

provision of this Final Judgment that, as 

interpreted by the Court in light of these 

procompetitive principles and applying 

ordinary tools of interpretation, is stated 

specifically and in reasonable detail, 

whether or not it is clear and 

unambiguous on its face. In any such 

interpretation, the terms of this Final 

Judgment should not be construed 

against either party as the drafter. 

C. In an enforcement proceeding in 

which the Court finds that Defendants 

have 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 a 

Defendant, whether litigated or resolved 

before litigation, that 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 

effort to enforce the Final Judgment, 

including in the investigation of the 

potential violation. 

D. For a period of four years following 

the expiration of this Final Judgment, if 

the United States has evidence that a 

Defendant violated this Final Judgment 

before it expired, the United States may 

file an action against that Defendant in 

this Court requesting that the Court 

order: (1) Defendant to comply with the 

terms of this Final Judgment for an 

additional term of at least four years 

following the filing of the enforcement 

action; (2) all appropriate contempt 

remedies; (3) additional relief needed to 

ensure the Defendant complies with the 

terms of this Final Judgment; and (4) 

fees or expenses as called for by this 

Section XIV. 

XV. Expiration of Final Judgment 

Unless the Court grants an extension, 

this Final Judgment will expire 10 years 

from the date of its entry, except that 

after five years from the date of its entry, 

this Final Judgment may be terminated 

upon notice by the United States to the 

Court and Defendants that the 

divestitures have been completed and 

continuation of this Final Judgment no 

longer is necessary or in the public 

interest. 

XVI. 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 by making 

available to the public copies of this 

Final Judgment and the Competitive 

Impact Statement, public comments 

thereon, and any response to comments 

by the United States. Based upon the 

record before the Court, which includes 

the Competitive Impact Statement and, 

if applicable, any comments and 

responses to comments filed with the 

Court, entry of this Final Judgment is in 

the public interest. 

Date: llll 

[Court approval subject to procedures of 

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. ZenNoh Grain Corp., and Bunge North America, 

Inc., Defendants. 

Civil Action No.: 1:21–cv–1482–RJL 

Judge Richard J. Leon 

Competitive Impact Statement 

The United States of America, under 

Section 2(b) of the Antitrust Procedures 

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

(the ‘‘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 April 21, 2020, Zen-Noh Grain 

Corp. (‘‘ZGC’’) agreed to acquire 35 

operating and 13 idled U.S. grain 

elevators from Bunge North America, 

Inc. (‘‘Bunge’’) for approximately $300 

million (‘‘the Transaction’’). The United 

States filed a civil antitrust Complaint 

on June 1, 2021, seeking to enjoin the 

proposed Transaction. The Complaint 

alleges that the likely effect of the 

Transaction would be to substantially 

lessen competition for purchases of corn 

and soybeans in nine geographic areas 

of the United States in violation of 

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

18. 

At the same time the Complaint was 

filed, the United States filed a proposed 

Final Judgment and an Asset 

Preservation and Hold Separate 

Stipulation and Order (‘‘Stipulation’’), 

which are designed to address the 

anticompetitive effects of the 

Transaction. The proposed Final 

Judgment, explained more fully below, 

requires the Defendants to divest certain 

grain elevators and related assets of 

Bunge or ZGC affiliate CGB Enterprises, 

Inc. (‘‘the Divestiture Assets’’) to 

Viserion Grain LLC and Viserion 

International Holdco LLC (‘‘Viserion’’), 

or to another acquirer or acquirers 

acceptable to the United States, within 

30 calendar days after entry of the 

Stipulation. 

Under the terms of the Stipulation, 

the Defendants will take certain steps to 

ensure that the Divestiture Assets 

remain independent; that all of the 


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Divestiture Assets remain economically 

viable, competitive, and saleable; that 

Defendants will preserve and maintain 

the Divestiture Assets; and that the level 

of competition that existed between 

Defendants prior to the Transaction is 

maintained during the pendency of the 

required divestiture. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment will terminate 

this action, except that the Court will 

retain jurisdiction to construe, modify, 

or enforce the provisions of the Final 

Judgment and to punish violations 

thereof. 

II. Description of Events Giving Rise to 

the Alleged Violation 

(A) The Defendants and the Proposed 

Transaction 

Defendant ZGC, headquartered in 

Covington, Louisiana, is a subsidiary of 

the National Federation of Agricultural 

Cooperative Associations of Japan. ZGC 

owns and operates a state-of-the-art 

export elevator located on the 

Mississippi River near Convent, 

Louisiana, from which it trades and 

exports corn, soybeans, sorghum, wheat, 

and grain by-products. Export elevators 

receive grain, largely via barge or rail, 

that has been purchased from farmers by 

inland elevators. Export elevators store 

the aggregated grain until it can be 

loaded onto ocean going ships. ZGC 

does not own any inland grain elevators 

and relies upon its affiliate, CGB 

Enterprises Inc. (‘‘CGB’’), to supply the 

majority of the corn, soybeans and other 

agricultural commodities ZGC exports 

annually from Convent. Postacquisition, ZGC intends to lease the 

elevators that it proposes to acquire 

from Bunge to CGB to operate through 

CGB’s wholly owned subsidiary, 

Consolidated Grain and Barge Co. 

CGB is a 50–50 joint venture between 

ZGC and Itochu Corporation, a global 

trading company. CGB operates more 

than 100 elevators in the United States, 

many of which are located along the 

Mississippi, Ohio, Arkansas, and 

Illinois Rivers. CGB is the fifth-largest 

grain company in the United States by 

storage capacity. CGB’s grain 

merchandisers are in daily contact with 

thousands of farmers, actively seeking to 

purchase grain from them. Currently, 

CGB sells approximately 60% of the 

grain it purchases to ZGC. 

Defendant Bunge is the North 

American subsidiary of Bunge Limited. 

Bunge is a large agribusiness and food 

ingredient company that owns and 

operates grain elevators, oilseed 

processing plants, and edible oil 

refineries, as well as grain export 

terminals. Bunge is the eighth-largest 

grain company in the United States by 

storage capacity. Post-acquisition, 

Bunge will continue to purchase grain 

in the United States via its export 

elevator on the Mississippi River in 

Destrehan, Louisiana and its export 

terminal in Longview, Washington (a 

joint venture with Itochu Corporation). 

In addition to the export terminals, 

Bunge will retain ownership interests in 

eight grain elevators in Illinois and 

Indiana. 

The 35 operating elevators ZGC 

proposes to acquire from Bunge are 

located in nine states—Arkansas, Iowa, 

Illinois, Indiana, Kentucky, Louisiana, 

Missouri, Mississippi and Tennessee— 

primarily along the Mississippi River 

and its tributaries, and predominantly 

handle corn and soybeans. 

(B) Relevant Markets and the 

Competitive Effects of the Transaction 

American consumers benefit from the 

productivity and efficiency of American 

farmers, who annually produce far more 

volume than needed to meet domestic 

demand. Corn and soybeans 

(collectively referred to here as ‘‘grain’’) 

are the primary crops grown in the 

United States. American farmers 

produced 14.2 billion bushels of corn 

and 4.14 billion bushels of soybeans in 

2020, and roughly one-quarter of these 

grains were exported. In the United 

States, grain may flow from the farm 

directly to end users like ethanol plants 

and feed mills, or farmers may sell their 

grain to nearby rail or river grain 

elevators, where it is stored, aggregated, 

and later transported by train or barge 

to more distant domestic end users or to 

port elevators for export. 

More than 45% of the grain exported 

from the United States is shipped out 

from port elevator export terminals 

located at the mouth of the Mississippi 

River near the Gulf of Mexico. The vast 

majority of this grain is sourced from 

river elevators located along the 

Mississippi and its tributaries. These 

river elevators, found as far north as 

Minnesota, purchase grain from 

surrounding farms and load it onto 

barges for transport to port elevators. 

Nearly all of the elevators ZGC seeks to 

acquire from Bunge are river elevators 

located on the Mississippi or its 

tributaries. 

The livelihood of farmers depends on 

their ability to sell the corn and 

soybeans they grow to purchasers who 

offer them the best price, net of 

transportation and other selling costs 

that farmers incur. Ethanol plants and 

feed and crush mills purchase grain and 

process it into usable products such as 

soymeal or fuel. Rail and river elevators 

also purchase grain and store it until it 

is sold and transported to end users, in 

either domestic or export markets. 

For convenience, some farmers may 

sell their grain to smaller, ‘‘country’’ 

elevators, located in closer proximity to 

the farmer than end users or rail and 

river elevators. Such elevators serve as 

grain collection and buying points in 

rural communities, and may provide 

other services like grain storage, drying, 

and conditioning services. Upon 

aggregating sufficient quantities of grain, 

or when market prices are most 

attractive, country elevators ultimately 

resell the grain to end users or to the 

larger rail or river elevators that can 

transport the grain to end users or 

export elevators. 

Today, ZGC and its affiliate CGB 

compete against Bunge to purchase corn 

and soybeans from farmers. In 

particular, in nine geographic areas a 

Bunge river elevator and a nearby ZGC 

or CGB elevator represent two of only a 

handful of grain purchasing alternatives 

for area farmers. In those nine 

geographic areas, ZGC and Bunge 

currently compete aggressively to win 

farmers’ business by offering better 

prices and more attractive amenities 

such as faster grain drop-off services 

and better grain grading. Faster drop-off 

services mean farmers can get back to 

their fields more quickly and make 

better use of their trucks and employees, 

ultimately saving time and money. If 

one elevator is grading grain more 

harshly or inconsistently, which may 

lead to a lower price paid, the farmer 

has the option of selling to a competing 

elevator which may grade differently. 

The Transaction will eliminate 

competition between ZGC and Bunge in 

those locations. As result, many U.S. 

farmers are likely to receive lower prices 

and poorer quality service when seeking 

to sell their grain. 

1. Relevant Product Markets 

ZGC (mainly through CGB) and Bunge 

own grain elevators, primarily located at 

rail terminals and along navigable 

rivers. They compete with other grain 

purchasers, including ethanol 

processors, feed mills, and crush 

processors, to purchase corn and 

soybeans from U.S. farmers, brokers, 

and country elevators. Corn and 

soybeans are each distinct products 

without reasonable substitutes, differing 

from other agricultural commodities and 

one another in their physical 

characteristics, means of production, 

uses, and pricing. Because of the length 

of growing seasons, and the suitability 

of corn and soybeans to certain climates 


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and regions, farmers of these crops 

would not switch to production of other 

agricultural commodities in sufficient 

numbers to render unprofitable a small 

but significant decrease in price by a 

hypothetical monopsonist of that crop. 

The purchase of corn and the purchase 

of soybeans for end use or for sale to the 

export market each constitute a relevant 

product market and line of commerce 

under Section 7 of the Clayton Act, 15 

U.S.C. 18. 

2. Relevant Geographic Markets 

Farmers typically haul grain by truck 

to nearby elevators or end users. 

Transportation costs increase 

significantly with every mile the farmers 

must transport the grain to reach a 

purchaser, reducing the farmers’ profits. 

Transporting grain also consumes 

farmers’ time. For these reasons, a small 

change in price would not likely cause 

farmers to significantly expand the 

distance they are willing to drive to sell 

their grain. The distance a farmer is 

willing to drive is determined in large 

part by the second-closest potential 

purchaser, which is the best competitive 

threat to the purchaser closest to the 

farmer. 

Rail or river elevators and other grain 

purchasing facilities, such as grain 

crush plants and ethanol plants, 

typically purchase grain from within the 

facility’s draw area. ‘‘Draw area’’ is an 

industry term that describes the 

locations of farms from which the 

facility expects to acquire most of its 

grain. Each elevator or end user has a 

unique draw area due to characteristics 

such as surrounding road conditions, 

crop output, local topography, and 

proximity of competing purchasers. The 

draw area of a grain purchasing facility 

is determined by transportation time 

and costs and so is usually very 

localized. 

The draw area of one grain facility 

frequently will overlap with that of 

another, resulting in competition 

between the facilities to purchase grain 

from farmers. Some farming areas of the 

country may be located such that they 

fall within the overlapping draw areas 

of only a few competing grain 

purchasing facilities. In particular, in 

the following areas where the 

Defendants’ river elevators have 

overlapping draw areas, there are only 

a small number of grain purchasers 

competing to purchase farmers’ corn 

and soybeans: 

(a) The overlapping draw areas of 

elevators in the vicinity of McGregor, 

Iowa; 

(b) The overlapping draw areas of 

elevators in the vicinity of Albany/ 

Fulton, Illinois; 

(c) The overlapping draw areas of 

elevators in the vicinity of 

Shawneetown, Illinois; 

(d) The overlapping draw areas of 

elevators in the vicinity of 

Caruthersville, Missouri; 

(e) The overlapping draw areas of 

elevators in the vicinity of Huffman, 

Arkansas; 

(f) The overlapping draw areas of 

elevators in the vicinity of Osceola, 

Arkansas; 

(g) The overlapping draws areas of 

elevators in the vicinity of Helena, 

Arkansas; 

(h) The overlapping draw areas of 

elevators in the vicinity of Lake 

Providence, Louisiana; and 

(i) The overlapping draw areas of 

elevators in the vicinity of Lettsworth, 

Louisiana. 

These geographic areas satisfy the 

hypothetical monopsonist test (a 

‘‘monopsonist’’ is a buyer that controls 

the purchases in a given market), the 

buyer-side counterpart to the 

hypothetical monopolist test. A 

hypothetical monopsonist of the 

purchase of corn or soybeans in each of 

these areas would impose at least a 

small but significant and non-transitory 

decrease in the price paid to farmers. 

Such a price decrease for these products 

would not be defeated by farmers selling 

to purchasers outside their local area 

due to the added costs of transportation. 

As farmers in these areas have already 

determined the best use of their 

farmland, a price decrease would also 

not be defeated by farmers’ switching to 

growing alternative crops. Farmers 

currently growing corn or soybeans are 

unlikely convert to production of other 

agricultural commodities in sufficient 

numbers to prevent a small but 

significant decrease in price. Nor could 

area farmers thwart a post-transaction 

price decrease by selling instead to local 

country elevators. Country elevators 

simply resell grain to river and rail 

elevators or to other end users; if 

Defendants lower prices posttransaction, country elevators would be 

forced to lower their own price to 

farmers to maintain profitability. 

Consequently, country elevators cannot 

mitigate a price decrease resulting from 

the Transaction. Therefore, each of the 

overlapping draw areas above constitute 

a relevant geographic market within the 

meaning of Section 7 of the Clayton Act, 

15 U.S.C. 18, for the purposes of 

analyzing this transaction. 

3. Competitive Effects 

In the each of the nine relevant 

geographic markets, ZGC (and its 

affiliate CGB) and Bunge are two of a 

very small number of grain purchasers 

competing to buy corn and soybeans; in 

two of these markets, CGB and Bunge 

are the only elevators available to area 

farmers. Famers located within these 

geographic areas depend on this 

competition to obtain a competitive 

price for their grain. ZGC’s acquisition 

of Bunge’s elevators will substantially 

lessen competition for the purchase of 

corn and soybeans in these markets, 

enabling it to unilaterally depress prices 

paid to farmers for their crops. 

Because there are few alternative 

grain purchasers within these 

geographic areas, purchases of grain are 

highly concentrated, with the 

Defendants accounting for a majority of 

corn and/or soybean purchases in a 

given year. For example, in 2019, the 

Defendants purchased upwards of 95% 

of the total corn and soybean output of 

farmers in Pemiscot County, Missouri; 

Pemiscot County falls within the draw 

area of Bunge’s Caruthersville, Missouri 

river elevator, and the draw areas of 

CGB’s Caruthersville and Cottonwood, 

Missouri river elevators. 

By eliminating head-to-head 

competition between ZGC (and its 

affiliate CGB) and Bunge for grain 

purchases in these geographic markets, 

the Transaction would result in lower 

prices paid to farmers, lower quality of 

services offered to farmers at the grain 

origination elevators, and reduced 

choice of outlets for farmers to sell their 

grain. The Transaction would 

substantially lessen competition and 

harm the many farmers selling their 

crops to river elevators along the 

Mississippi River and its tributaries. 

4. Entry 

New entry and expansion by 

competitors likely will not be timely 

and sufficient in scope to prevent the 

likely anticompetitive effects of 

Defendant ZGC’s acquisition of Bunge’s 

elevators. Competitors are unlikely to 

construct new elevators in these 

geographic markets because of the high 

cost of construction and the difficulty of 

finding appropriate locations to build 

along the Mississippi or its tributaries. 

Even assuming such a location could be 

found and regulatory and permitting 

requirements could be fulfilled, 

constructing a river elevator would take 

approximately two years to complete. 

III. Explanation of the Proposed Final 

Judgment 

The divestiture required by the 

proposed Final Judgment will remedy 

the loss of competition alleged in the 

Complaint by establishing an 

independent and economically viable 

competitor for the purchase of corn and 

soybeans in certain geographic markets 


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1 In Osceola, Arkansas, Bunge has two elevator 

locations, ‘‘Riverside,’’ which as the name implies, 

abuts the Mississippi, and ‘‘Landside,’’ a former soy 

crush plant located a bit inland from the river. 

Bunge currently operates the two locations as one 

combined entity, with Landside being used 

primarily for overflow storage in support of 

Riverside; similarly, the proposed Final Judgment 

and Stipulation view the two Bunge Osceola 

locations as one asset for purposes of remedying the 

likely harm from the proposed Transaction. 

2Paragraph XI.M. exempts from this reporting 

requirement Defendant ZGC’s acquisition of grain 

purchasing facilities that were leased by Defendant 

ZGC as of January 1, 2021. The United States has 

already accounted for ZGC’s control over those 

assets in its competitive analysis of the Transaction 

and structuring of the divestiture. 

along the Mississippi and Ohio Rivers. 

The proposed Final Judgment requires 

the Defendants to divest nine elevators 1

in nine geographic markets within 30 

days after the entry of the Stipulation by 

the Court to Viserion or another acquirer 

or acquirers approved by the United 

States. In each of those nine geographic 

markets, a Bunge elevator competes 

head to head with one or more ZGC or 

CGB elevators. 

The Divestiture Assets include the 

real property and real property rights, 

fee simple interests; buildings, facilities, 

and other structures, including bins, 

silos, other grain storage facilities, and 

dock facilities associated with the nine 

grain elevators. The Divestiture Assets 

also encompass all existing grain 

inventories at the elevators, and all 

contracts (including grain contracts), 

contractual rights, and relationships, 

including customer and supplier 

relationships, and all other agreements, 

commitments, and understandings, 

including, supply agreements, teaming 

agreements, and leases, and all 

outstanding offers or solicitations to 

enter into a similar arrangement that 

relate exclusively to the elevators that 

will be divested. 

The Divestiture Assets must be 

divested in such a way as to satisfy the 

United States in its sole discretion that 

the Divestiture Assets can and will be 

operated by the purchaser as a viable, 

ongoing business that can compete 

effectively in the market for the 

purchase of corn and the market for the 

purchase of soybeans. Defendants must 

take all reasonable steps necessary to 

accomplish the divestiture quickly and 

must cooperate with any acquirer. 

If Defendants do not accomplish the 

divestiture within the period prescribed 

in the proposed Final Judgment, the 

proposed Final Judgment provides that 

the Court will appoint a divestiture 

trustee selected by the United States to 

execute the divestiture. If a divestiture 

trustee is appointed, the proposed Final 

Judgment provides that Defendant ZGC 

will pay all costs and expenses of the 

trustee. The divestiture trustee’s 

commission will be structured so as to 

provide an incentive for the trustee 

based on the price obtained and the 

speed with which the divestiture is 

accomplished. After the divestiture 

trustee’s appointment becomes effective, 

the trustee will provide periodic reports 

to the United States setting forth his or 

her efforts to accomplish the divestiture. 

If the divestiture has not been 

accomplished at the end of six months, 

the divestiture trustee and the United 

States will make recommendations to 

the Court, which will enter such orders 

as appropriate, in order to carry out the 

purpose of the trust, including by 

extending the trust or the term of the 

divestiture trustee’s appointment. 

Under Paragraph IV.I. of the proposed 

Final Judgment, Defendants must 

cooperate with and assist the acquirer in 

identifying and, at the option of 

acquirer, hiring (1) all full time, part 

time, or contract employees employed at 

the divested elevators at any time 

between August 21, 2020, and the 

divestiture date; (2) all elevator 

managers, grain merchandisers, and 

elevator superintendents employed by 

Bunge or CGB whose job responsibilities 

are shared between or among divested 

elevators and any non-divested 

elevators, at any time between August 

21, 2020, and the divestiture date; and 

(3) all regional managers employed by 

Bunge one organizational level above 

the elevator manager level, wherever 

located, whose job duties support the 

grain purchasing business of any of the 

Bunge elevators, at any time between 

August 21, 2020, and the divestiture 

date. Defendants must provide Viserion, 

or any other acquirer or acquirers, with 

information on these employees and are 

prohibited from interfering with the 

efforts of Viserion, or any other acquirer 

or acquirers, to hire them. 

The proposed Final Judgment 

includes a non-solicit provision 

(Paragraph IV.I.6.) prohibiting the 

Defendants from attempting to rehire 

relevant personnel that have agreed to 

work for the acquirer, subject to certain 

narrow exceptions, such as if an 

individual is laid off by the acquirer. 

The non-solicit provision is limited in 

duration to 12 months, which is a length 

of time intended to encompass the first 

harvest season for which the acquirer 

will be operating the divested elevators. 

It is also limited in scope to apply only 

to certain relevant personnel—regional/ 

general managers, elevator managers, 

merchandisers, bookkeepers, and site 

superintendents—the employees most 

intimately involved with farmer 

outreach and elevator operation. The 

categories of employees protected by the 

non-solicit provision are integral to 

maintaining customer relations while 

ownership of the assets is transitioning; 

elevator managers and the grain 

merchandisers, in particular, are needed 

to develop and keep strong customer 

relationships to get grain into the 

elevators. Defendants are not restricted, 

however, from advertising employment 

openings using general solicitations or 

advertisements and rehiring relevant 

personnel who apply for an 

employment opening through a general 

solicitation or advertisement. 

Under Paragraph IV.M. of the 

proposed Final Judgment, at the option 

of the acquirer or acquirers, and subject 

to approval by the United States in its 

sole discretion, Defendants must enter 

into one or more contracts to provide 

the acquirer or acquirers with transition 

services for back office, human 

resources, or information technology, 

for a period of up to six months after the 

divestiture occurs, on terms and 

conditions reasonably related to market 

conditions for the provision of the 

transition services. The transition 

services covered by the proposed Final 

Judgment are those that might 

reasonably be necessary to ensure that 

an acquirer or acquirers can readily and 

promptly use the assets to compete in 

the relevant markets. 

For the term of the proposed Final 

Judgment, Paragraph XI.A. requires 

Defendant ZGC to provide at least 30 

calendar days advance notification to 

the United States of its intent to directly 

or indirectly acquire any assets of, or 

any interest in, grain purchasing 

facilities located within a 100-mile 

radius any divested elevator. The 

notification requirement of Paragraph 

XI.A. applies to transactions that are not 

subject to the reporting and waiting 

period requirements of the Hart-ScottRodino Antitrust Improvements Act of 

1976, as amended, 15 U.S.C. 18a (the 

‘‘HSR Act’’).2 Notification of such nonreportable transactions is necessary 

because acquisition of a single elevator 

from another grain purchasing company 

is not uncommon in the grain industry, 

and such an acquisition, or even an 

acquisition of a small suite of elevators, 

likely would not meet the notification 

thresholds of the HSR Act, but 

nevertheless could have a substantial 

anticompetitive effect. 

The proposed Final Judgment also 

contains provisions designed to promote 

compliance and make the enforcement 

of the Final Judgment as effective as 

possible. Paragraph XIV.A. provides that 

the United States retains and reserves 

all rights to enforce the provisions of the 

proposed Final Judgment, including its 


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rights to seek an order of contempt from 

the Court. Under the terms of this 

paragraph, Defendants have agreed that 

in any civil contempt action, any 

motion to show cause, or any similar 

action brought by the United States 

regarding an alleged violation of the 

Final Judgment, the United States may 

establish the violation and the 

appropriateness of any remedy by a 

preponderance of the evidence and that 

Defendants have waived any argument 

that a different standard of proof should 

apply. This provision aligns the 

standard for compliance obligations 

with the standard of proof that applies 

to the underlying offense that the 

compliance commitments address. 

Paragraph XIV.B. provides additional 

clarification regarding the interpretation 

of the provisions of the proposed Final 

Judgment. The proposed Final Judgment 

was drafted to restore competition that 

would otherwise be harmed by the 

transaction. Defendants agree that they 

will abide by the proposed Final 

Judgment, and that they may be held in 

contempt of this Court for failing to 

comply with any provision of the 

proposed Final Judgment that is stated 

specifically and in reasonable detail, as 

interpreted in light of this 

procompetitive purpose. 

Paragraph XIV.C. of the proposed 

Final Judgment provides that if the 

Court finds in an enforcement 

proceeding that Defendants have 

violated the Final Judgment, the United 

States may apply to the Court for a onetime extension of the Final Judgment, 

together with such other relief as may be 

appropriate. In addition, to compensate 

American taxpayers for any costs 

associated with investigating and 

enforcing violations of the proposed 

Final Judgment, Paragraph XIV.C. 

provides that in any successful effort by 

the United States to enforce the Final 

Judgment against a Defendant, whether 

litigated or resolved before litigation, 

that Defendants will reimburse the 

United States for attorneys’ fees, 

experts’ fees, and other costs incurred in 

connection with any enforcement effort, 

including the investigation of the 

potential violation. 

Paragraph XIV.D. states that the 

United States may file an action against 

a Defendant for violating the Final 

Judgment for up to four years after the 

Final Judgment has expired or been 

terminated. This provision is meant to 

address circumstances such as when 

evidence that a violation of the Final 

Judgment occurred during the term of 

the Final Judgment is not discovered 

until after the Final Judgment has 

expired or been terminated or when 

there is not sufficient time for the 

United States to complete an 

investigation of an alleged violation 

until after the Final Judgment has 

expired or been terminated. This 

provision, therefore, makes clear that, 

for four years after the Final Judgment 

has expired or been terminated, the 

United States may still challenge a 

violation that occurred during the term 

of the Final Judgment. 

Finally, Section XV of the proposed 

Final Judgment provides that the Final 

Judgment will expire ten years from the 

date of its entry, except that after five 

years from the date of its entry, the Final 

Judgment may be terminated upon 

notice by the United States to the Court 

and Defendants that the divestiture has 

been completed and that the 

continuation of the Final Judgment is no 

longer necessary or in the public 

interest. 

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 neither impairs nor 

assists 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. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and 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 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 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 U.S. Department of 

Justice, 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: 

Robert Lepore, Chief, Transportation, 

Energy and Agriculture Section, 

Antitrust Division, U.S. Department of 

Justice, 450 Fifth Street NW, Suite 8000, 

Washington, DC 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 

As an alternative to the proposed 

Final Judgment, the United States 

considered a full trial on the merits 

against Defendants. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against ZGC’s acquisition of 

grain elevators from Bunge. The United 

States is satisfied, however, that the 

divestiture of assets described in the 

proposed Final Judgment will remedy 

the anticompetitive effects alleged in the 

Complaint, preserving competition for 

the purchase of corn and soybeans in 

the nine relevant geographic markets 

along the Mississippi and Ohio Rivers. 

Thus, the proposed Final Judgment 

achieves all or substantially all of the 

relief the United States would have 

obtained through litigation, but avoids 

the time, expense, and uncertainty of a 

full trial on the merits of the Complaint. 

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 


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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 

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 to 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). 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 (‘‘the 

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

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. 

Dated: June 1, 2021. 

Respectfully submitted, 

lllllllllllllllllllll

Jill Ptacek, 

U.S. Department of Justice Antitrust Division, 

Transportation, Energy and Agriculture 

Section, 450 Fifth Street NW, Suite 8000, 


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Washington, DC 20530, 202–307–6607, 

jill.ptacek@usdoj.gov. 

[FR Doc. 2021–11916 Filed 6–7–21; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 17–31] 

Jennifer L. St. Croix, M.D.; Order 

Denying Motion To Stay 

I. Introduction 

On April 12, 2021, I issued a Decision 

and Order revoking, effective May 12, 

2021, Certificate of Registration No. 

FS2669868 issued to Jennifer L. St. 

Croix, M.D. (hereinafter, Petitioner) at a 

registered address in Tennessee. 

Jennifer L. St. Croix, M.D., 86 FR 19010 

(April 12, 2021) (hereinafter, April 12, 

2021 Decision/Order). On May 6, 2021, 

Petitioner’s Counsel filed by email with 

the Drug Enforcement Administration 

Office of the Administrative Law Judges 

(hereinafter, OALJ) a Motion to Stay 

Enforcement Pending Appeal 

(hereinafter, Motion to Stay) and served 

by email the Drug Enforcement 

Administration Office of Chief Counsel 

(hereinafter, DEA or Government). The 

OALJ forwarded the Motion to Stay to 

my office. On May 7, 2021, I ordered the 

Government to respond to Petitioner’s 

Motion to Stay no later than 5:00 p.m. 

on Monday, May 10, 2021. The 

Government filed a timely response 

(hereinafter, Govt Opposition), arguing 

that the Motion to Stay should be 

denied. 

Later in the day of May 7, 2021, the 

United States Department of Justice 

alerted my office that Petitioner had 

filed a pro se petition with the District 

of Columbia Circuit Court of Appeals for 

review of my April 12, 2021 Decision/ 

Order. Petition for Review of Agency 

Decision, St. Croix v. United States Drug 

Enforcement Administration, 21–1116 

(dated May 5, 2021) (hereinafter, Review 

Petition). Petitioner identified her 

address on her Review Petition to be in 

Las Vegas, Nevada. Review Petition, at 

1. 

Having considered the merits of 

Petitioner’s Motion to Stay and of the 

Government’s Response in conjunction 

with the record evidence, I deny 

Petitioner’s Motion to Stay. 

II. The April 12, 2021 Decision/Order 

Petitioner requested a hearing on the 

allegations that the Order to Show 

Cause (hereinafter, OSC) made against 

her. 86 FR at 19011. She attended the 

hearing with her attorney. Id. at 19018. 

After the Government rested, 

Petitioner’s counsel made a motion for 

summary disposition. Id. at 19017–18. 

After the Chief Administrative Law 

Judge (hereinafter, ALJ) heard from both 

the Petitioner’s and the Government’s 

counsels on the motion, he ruled on the 

motion from the bench, denying it in 

part and reserving it in part. Id. 

Petitioner then advised the Chief ALJ 

that she chose not to present a case. Id. 

at 19018. Following discussion about 

that decision, Petitioner sought and 

obtained from the Chief ALJ time to 

consult with her attorney. Id. After the 

opportunity to consult, Petitioner restated her decision not to put on a case. 

Id. Accordingly, Petitioner knowingly 

declined the opportunity to offer 

documentary evidence and oral 

testimony for the record. 

In my April 12, 2021 Decision/Order, 

I found that Petitioner ‘‘had committed 

such acts as would render . . . [her] 

registration inconsistent with the public 

interest.’’ 21 U.S.C. 824(a)(4). The acts 

alleged in the OSC for which I found the 

Government had submitted substantial 

evidentiary support for the record and 

had proven were legal violations were 

(1) that Petitioner issued controlled 

substance prescriptions for no legitimate 

purpose and outside the usual course of 

professional practice, (2) that Petitioner 

failed to maintain medical records 

pertaining to her prescribing of 

controlled substances, (3) that Petitioner 

provided misleading information to 

investigating DEA agents, (4) that 

Petitioner failed to provide fullycompliant controlled substance 

prescription drug logs to DEA for 

periods during which she issued 

controlled substance prescriptions, (5) 

that Petitioner stored controlled 

substances at an unregistered location, 

and (6) that Petitioner failed to provide 

effective controls or procedures to guard 

against the theft or diversion of 

controlled substances. 86 FR at 19019– 

21, 19023–25. I did not find substantial 

evidence and/or a legal basis to support 

the OSC’s allegations (1) that Petitioner 

had continued to issue controlled 

substance prescriptions to individuals 

who are intimate or close acquaintances, 

and to an individual with whom she 

had a ‘‘romantic interaction,’’ (2) that 

Petitioner violated 21 U.S.C. 

843(a)(4)(A) by failing to comply with 

the terms of her June 2011 

Memorandum of Agreement 

(hereinafter, MOA) with DEA, (3) that 

Petitioner did not maintain records of 

the controlled substances she 

dispensed, and (4) that Petitioner did 

not conduct an initial inventory of the 

controlled substances she received. Id. 

at 19019–20, 19022–25. 

In adjudicating the OSC issued to 

Petitioner, I found that Petitioner made 

legal arguments that conflict with a core 

principle of the Controlled Substances 

Act (hereinafter, CSA)—the 

establishment of a closed regulatory 

system devised to ‘‘prevent the 

diversion of drugs from legitimate to 

illicit channels.’’ Gonzales v. Raich, 545 

U.S. 1, 13–14, 27 (2005). I found that 

Petitioner proposed a course of action 

regarding the storage of controlled 

substances that would be a danger to 

public health and safety as it would 

allow the storage of controlled 

substances anywhere, as long as no 

dispensing took place at the location. 86 

FR at 19024. I declined to accept 

Petitioner’s arguments, concluding that 

to do so would conflict with my 

authority under the CSA and would 

establish a dangerous policy. Id. 

In my adjudication of the OSC issued 

to Petitioner, I also determined that 

Petitioner urged me to accept positions 

that minimize statutory and regulatory 

inventory requirements. Id. I rejected 

those positions as well. 

III. Petitioner’s Motion To Stay 

Petitioner argues that there are 

multiple reasons why her Motion to 

Stay satisfies the applicable legal 

standard and why I should grant her 

requested relief. First, she argues that 

there is a substantial likelihood that her 

review petition will prevail because she 

has had ‘‘no further issues regarding her 

prescribing and management of 

controlled substances . . . over the past 

seven years.’’ Motion to Stay, at 3. 

Petitioner also argues that the reviewing 

Circuit Court will find in her favor 

because the penalty I assessed in my 

April 12, 2021 Decision/Order ‘‘is 

excessive, unjust, and disproportionate 

to her actions’’ based on her ‘‘review of 

other administrative actions against 

physicians.’’ Id. at 4. 

Second, Petitioner posits that she will 

suffer irreparable injury if enforcement 

of my April 12, 2021 Decision/Order is 

not stayed. ‘‘It would be difficult,’’ the 

Motion to Stay argues, ‘‘to overstate the 

impact that the loss of her [DEA 

registration] would have on . . . [her] 

ability to earn a living.’’ Id. She states 

that enforcement of my April 12, 2021 

Decision/Order ‘‘will result in the 

immediate loss of her current position 

and essentially make her unemployable 

as a physician.’’ Id. She also states that 

she ‘‘will not be able to recover her lost 

income that will result from her sudden 

unemployment’’ and that a stay of 

enforcement ‘‘would allow . . . [her] to 

continue to support herself while she 

explores other employment 

opportunities.’’ Id. at 5. 


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