[Federal Register Volume 61, Number 101 (Thursday, May 23, 1996)]
[Notices]
[Pages 25891-25895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12775]



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DEPARTMENT OF JUSTICE
[Civil Action No. 95-1804 (HHG), D.D.C.]


United States v. National Automobile Dealers Association; Public 
Comments and Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16 (b)-(h), the United States publishes below the comments received on 
the proposed Final Judgment in United States v. National Automobile 
Dealers Association, Civil Action 95-1804 (HHG), United States District 
Court for the District of Columbia, together with the response of the 
United States to the comments.
    Copies of the response and the public comments are available on 
request for inspection and copying in Room 200 of the U.S. Department 
of Justice, Antitrust Division, 325 7th Street, NW., Washington, DC 
20530, and for inspection at the Office of the Clerk of the United 
States District Court for the District of Columbia, United States 
Courthouse, Third Street and Constitution Avenue, NW., Washington, DC 
20001.
Rebecca P. Dick,
Deputy Director of Operations, Antitrust Division.

In the United States District Court for the District of Columbia

    United States of America, Plaintiff, v. National Automobile 
Dealers Association, Defendant.

[Civil Action No. 95-1804 (HHG)]

United States' Response to Public Comments

    Pursuant to Section 2(d) of the Antitrust Procedures and Penalties 
Act, 15 U.S.C. 16(d) (the ``APPA'' or ``Tunney Act''), the United 
States responds to public comments on the proposed Final Judgment 
submitted for entry in this civil antitrust proceeding.
    This action began on September 20, 1995, when the United States 
filed a Complaint charging that the National Automobile Dealers 
Association

[[Page 25892]]

(``NADA'') had entered into agreements intended to lessen competition 
in the retail automobile industry in violation of Section 1 of the 
Sherman Act, 15 U.S.C. 1. The first count of the Complaint alleges that 
the NADA agreed to orchestrate a group boycott of automobile 
manufacturers to coerce the manufacturers to decrease the discounts 
offered to large volume buyers and to eliminate consumer rebates.
    The second count of the Complaint alleges that the NADA agreed to 
urge its dealer members to maintain new vehicle inventories at levels 
equal to 15-30 days' supply. The third count of the Complaint alleges 
that the NADA solicited and obtained agreements from member dealers not 
to engage in advertising that revealed the dealers' invoice cost, or 
cost of buying the vehicle from the manufacturer. Finally, the fourth 
count of the Complaint alleges that the NADA agreed to urge its members 
not to do business with automobile brokers.
    The Complaint seeks injunctive relief that would prevent the NADA 
from continuing or renewing the alleged practices and agreements, or 
engaging in other practices or agreements that would have a similar 
purpose or effect.
    Simultaneous with the filing of the Complaint, the United States 
filed a proposed Final Judgment, a Competitive Impact Statement 
(``CIS''), and a stipulation signed by the NADA for entry of the 
decree. The proposed Final Judgment contains a general prohibition 
against any agreements by the NADA with dealers to fix, stabilize or 
maintain prices at which motor vehicles may be sold or offered in the 
United States to any consumer. The proposed Final Judgment also 
prohibits the NADA from urging, encouraging, advocating or suggesting 
that dealers adopt specific prices, specific margins, specific 
discounts or specific policies relating to the advertising of prices or 
dealer costs of motor vehicles. Similarly, the decree prohibits the 
NADA from discouraging dealers from adopting specific pricing systems 
or specific policies relating to the advertising of prices or dealer 
cost of motor vehicles. The proposed decree further prohibits the NADA 
from urging dealers to reduce their business with particular types of 
persons or to do business with particular persons only on specific 
terms. It will also prohibit the NADA from terminating the membership 
of any dealer for reasons relating to that dealer's pricing or 
advertising of prices or dealer costs.
    As required by the Antitrust Procedures and Penalties Act, the NADA 
filed with this Court on October 11, 1995 a description of written and 
oral communications on their behalf pursuant to the reporting 
requirements of Section 16(g) of the APPA. A summary of the terms of 
the proposed Final Judgment and CIS, and directions for the submission 
of written comments relating to the proposed decree, were published in 
the Washington Post for eight days over a period beginning September 
30, 1995. The proposed Final Judgment and CIS were published in the 
Federal Register on October 2, 1995. 60 Fed. Reg. 51,491.
    The 60-day period for public comments commenced October 2, 1995 and 
expired on December 5, 1995. The United States received one comment on 
the proposed Final Judgment, a letter from Mr. Harold E. Kohn, Esquire, 
representing Potamkin Auto Center, Ltd. As required by 15 U.S.C. 16(b), 
this comment is being filed with this response. (Exhibit A). The United 
States sent Mr. Kohn a letter individually responding to his inquiry. 
That correspondence is also being filed with this response. (Exhibit 
B).
    In his comment, Mr. Kohn proposed that the notification that the 
NADA is required to provide its members include an additional statement 
that group activities by competitors designed to restrict price 
competition are illegal, even when those activities are not sanctioned 
by the trade association. He also raised concerns about a policy 
recently adopted by an automobile manufacturer prohibiting its dealers 
from selling automobiles to third-party resellers. Finally, Mr. Kohn 
requested an opportunity to be heard before this Court before the final 
decree is entered.
    The Department has carefully considered Mr. Kohn's comment. Nothing 
in this comment has altered the United States' conclusion that the 
proposed Final Judgment is in the public interest. The decree is fully 
adequate to prevent continuation or recurrence of the violations on the 
part of the NADA that were alleged in the complaint. Because the 
complaint does not address the activities of dealers acting 
independently of the NADA and they are not defendants, it would be 
inappropriate to impose on them the additional notification provisions 
suggested by Mr. Kohn. Mr. Kohn's concerns regarding conduct by an 
automobile manufacturer and its dealers also involve entities that are 
not parties to this case and activities beyond the scope of the conduct 
alleged in the complaint. The main issue before the Court in this 
Tunney Act proceeding is whether the remedies provided in the proposed 
Final Judgment are ``so inconsonant with the allegations charged as to 
fall outside of the `reaches of the public interest.' '' United States 
v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995). Nothing 
submitted by Mr. Kohn suggests that the proposed Final Judgment does 
not satisfy this standard. Accordingly, the Department urges the Court 
to enter the proposed Final Judgment without further proceedings.

    Dated: May 8, 1996.

    Respectfully submitted,
Robert J. Zastrow,
Assistant Chief, Civil Task Force, Antitrust Division, U.S. Department 
of Justice, 325 7th Street, N.W., Room 300, Washington, D.C. 20530.

Certificate of Service

    I hereby certify that I cause a copy of the foregoing to be mailed, 
first class, postage prepaid, this 8th day of May, 1996, to:

Glenn A. Mitchell, Esq., Stein, Mitchell & Mezines, 1100 Connecticut 
Avenue, N.W., Washington, D.C. 20036
Arthur Herold, Webster, Chamberlin & Bean, 1747 Pennsylvania Avenue, 
N.W., Washington, D.C. 20006
Robert J. Zastrow.
December 1, 1995.
Mary Jean Moltenbrey, Chief, Civil Task Force II, U.S. Department of 
Justice, Antitrust Division, 325 7th Street, N.W., Room 300, 
Washington, D.C. 20004

    Re: United States of America v. National Automobile Dealers 
Association, Civil Action No. 1:95CV01804
    Dear Ms. Moltenbrey: Potamkin Auto Center, Ltd. submits this 
Comment to address the Proposed Final Judgment (``PFJ'') between the 
United States of America (the ``Government'') and the National 
Automobile Dealers Association (``NADA'') in the above-reference 
civil action. This Comment focuses upon provisions of the PFJ 
directed toward eliminating the practice of boycotting of automobile 
brokers by dealers, or by manufacturers at dealers' urging.
    Potamkin Auto Center, Ltd. (``Potamkin'') owns and operates auto 
centers in Westbury, Brooklyn, Manhattan and Nanuet, New York. The 
auto centers compete with franchised dealerships for sales and 
leases of new automobiles by purchasing multiple brands of new 
automobiles from franchised dealers at discounted prices and then 
selling directly to the public at highly competitive prices. As 
such, Potamkin may be considered an ``automobile broker'' as that 
term is used in the Complaint and Competitive Impact Statement filed 
with the PFJ in this case.

EXHIBIT A--Civil Action No. 95-1804

    The NADA's published encouragement to its dealer-members to 
``[r]efuse to do business with brokers or buying services'' was 
intended to eliminate price competition by automobile brokers. 
Potamkin therefore supports the provisions of the PFJ that enjoin 
the NADA from advocating that dealers ``refuse to do business with 
particular persons or types of persons.'' PFJ at para. IV.D.

[[Page 25893]]

    Potamkin believes that the NADA's advocacy of group boycott 
activity has had and continues to have substantial anti-competitive 
effects on the market for sales and leasing of new automobiles, 
resulting in higher prices for consumers.
    For example, on November 1, 1995, American Honda Motors Co., 
Inc., having ``been made aware that some Authorized Honda Dealers 
are transferring Honda vehicles to intermediaries which retail or 
lease the vehicles,'' implemented a policy that prohibits all Honda 
dealers in the United States from transferring new automobiles to 
certain third party resellers or leasing companies who operate 
showrooms for and/or advertise the sale or leases of new Honda 
automobiles. A copy of Honda's July 24, 1995 announcement and policy 
statement is attached hereto as ``Exhibit A.'' Potamkin believes 
that this policy represents Honda's joinder in the dealers' 
agreement to eliminate price competition from automobile brokers.
    As the Government states in the Competitive Impact Statement: An 
agreement by a trade association or its members not to do business 
with other competitors or customers for purposes of restricting 
price competition is a per se violation of the Sherman Act.

Competitive Impact Statement at 7

    Potamkin urges that this statement (or a similarly worded 
statement) should be included in the written notification that NADA 
must publish and send to its dealer-members. These dealer-members 
should be informed clearly that group activities by competitors 
designed to restrict price competition are illegal, whether or not 
such group activities are officially sanctioned by the trade 
association.
    Potamkin respectfully requests an opportunity to appear before 
the Court and be heard on this issue, and to present additional 
evidence of concerted anti-competitive activities by automobile 
dealers and manufacturers.
    Potamkin also requests that the Antitrust Division expand its 
investigation to include practices such as those in which Honda has 
engaged.

      Respectfully submitted,
Harold E. Kohn,
KOHN, SWIFT & GRAF, P.C., 1101 Market Street, Suite 2400, Philadelphia, 
PA 19107-2924, (215) 238-1700.
Attorneys for Potamkin Auto Center, Ltd.

Via Certified Mail Return Receipt Requested

To: All Honda Automobile Dealers
Date: July 24, 1986
Subject: AHM'S Wholesaling Policy

    Enclosed is a copy of the Wholesaling Policy (the ``Policy''). 
Beginning November 1, 1995, the Honda Division of American Honda 
Motor Co., Inc., (``AHM'') will enforce the Policy in order to 
ensure that each Honda dealer complies with AHM's Honda Automobile 
Dealer Sales and Service Agreement (the ``Dealer Agreement''). 
Although advance notification is hereby provided AHM's position is 
that applicable law does not require any advance notice prior to the 
adoption, implementation and enforcement of the Policy.
    While AHM's position is that the Policy is not a modification of 
your Dealer Agreement and that AHM is not required to file the 
Policy with State agencies, we have, in an abundance of caution and 
to the extent such filing may be deemed to be required, also filed a 
copy of the Policy with any appropriate State agencies. If the 
Policy is deemed to be a modification to your Dealer Agreement, you 
may believe you have certain rights, under applicable state law to 
contest the Policy. To the extent required, you are hereby notified 
of the existence of such potential rights.
    All questions pertaining to this letter and the Policy should be 
addressed to AHM's Wholesale Policy Administrator which position is 
currently held by Richard Szamborski, Assistant Vice President 
Market Operations, Honda Division.
    Please acknowledge receipt of this letter and the Policy of 
signing and dating the attached Dealer Acknowledgment and returning 
the Dealer Acknowledgment to your Zone Sales Office within ten days 
of the date of this letter.
      Very truly yours,
Richard Coiliver,
Senior Vice President, Auto Sales.
    Attachments

.To: All Honda Automobile Dealers in the United States.
Date: July 24, 1996.
Subject: AHM's Wholesaling Policy.

    The Honda Division of American Honda Motor Co., Inc. (``AHM'') 
has been made aware that some Authorized Honda Dealers are 
transferring Honda vehicles to intermediaries which retail or lease 
the vehicles. AHM believes that such wholesaling is inconsistent 
with AHM's Automobile Dealer Sales and Service Agreement (the 
``Dealer Agreement''), which limits Authorized Honda Dealers to 
retail sales and retail leases from the Authorized Honda Dealers' 
premises and prohibits the creation of additional dealership 
locations. AHM also believes that transfers to intermediaries are 
detrimental to the best interests of AHM's success in the market, 
impair the ability of AHM to provide the highest level of customer 
satisfaction, create situations that tarnish the reputation of Honda 
and Honda's Authorized Dealers for quality automobiles and service 
and lead to lost sales.
    Accordingly, Honda adopts the following policy with respect to 
transfers of Honda Automobiles by Authorized Honda Dealers to 
intermediaries.

1. Definitions

    1.1  As used herein, ``Wholesaling'' and ``Wholesale Sales'' 
shall mean the sale or lease and delivery of new Honda Automobiles 
to persons other than (1) the ultimate end user of such vehicles, or 
(2) leasing companies that do not operate unauthorized dealerships 
(as described more fully below), or (3) another Authorized Honda 
Dealer (Transfers of Honda Automobiles between and among Authorized 
Honda Dealers are permitted as long as AHM is timely notified of 
each transfer and such transfer is consistent with both Authorized 
Honda Dealers' obligations to provide appropriate market 
representation and accurate reporting to AHM. For allocation 
purposes any such transfer will be attributed to the Authorized 
Honda Dealer who makes the sale or leases to the ultimate end user). 
By way of example, Wholesaling shall include:
    (a) Transfer to third-party resellers who sell or lease that new 
Honda Automobiles to end user as new vehicles.
    (b) Trnasfers to third-party leasing companies that operate (1) 
showrooms and/or (2) otherwise engage in sales lease or service 
activities typically done by Authorized Honda Dealers.
    Included in this classification would be, by way of example, 
third-party leasing companies that display new Honda Automobiles on 
their premises or hold new Honda Automobiles in stock, advertise for 
sale or lease new Honda Automobiles from their premises, or 
accessorize new Honda Automobiles for sale or lease to end users.
    (c) By way of example, Wholesaling does NOT include (1) 
Transfers to third-parties who are and users and are NOT resellers 
or lessons of new vehicles, (2) Transfer of used vehicles to any 
party for any purpose, (3) Transfers to leasing companies that do 
NOT operate showrooms or otherwise engage in sales, advertising and/
or service activities typically done by Authorized Honda Dealers. 
The sole function of such leasing companies is to lease cars to end 
users who do not wish to lease directly from an Authorized Honda 
Dealer. Such companies do NOT display new Honda Automobiles on their 
premises, do NOT hold new Honda Automobiles in stock, do NOT 
advertise for sale or lease new Honda Automobiles from their premise 
and do NOT accessorize new Honda Automobiles. Instead, such leasing 
companies are approached by an end user seeking to lease a specific, 
full-equipped new Honda Automobile, acquire such a new Honda 
Automobile from an Authorized Honda Dealer and lease said new Honda 
Automobile to such end user, and/or (4) Transfers of title to 
financial institutions in cases in which delivery of the Honda 
Automobile is made by the Authorized Honda Dealer directly to the 
ultimate end user and the transfer of title to the financial 
institution is scary for the purpose of financing sale or lease of 
the Honda Automobile.
    1.2  As used Herein, ``Honda Automobiles'' is used as defined in 
Sections 12 B of the Dealer Agreement.
    1.3  As used Herein, ``Policy'' refers to the Wholesaling 
Policy.

2. Restriction on Wholesaling

    Effective November 1, 1995, AHM will strictly enforce the Dealer 
Agreement and require that Authorized Honda Dealers not engage in 
Wholesaling of Honda Automobiles.

3. Enforcement of Wholesaling Policy

    3.1  Submission of Reports.
    Pursuant to Section 7.3 of the Dealer Agreement, the Authorized 
Honda Dealer shall submit to AHM reports on a daily basis, which 
include the following information:

[[Page 25894]]

    (a) The Vehicle Identification Number of each Honda Automobile 
transferred, sold or leased by the Authorized Honda Dealer.
    (b) The name and address of the person (whether an individual or 
business) who has purchased or leased each such Honda Automobile (by 
Vehicle Identification Number) in accordance with AHM's reporting 
requirements in place at the time of the sale or lease.
    (c) The calendar date of delivery to the transfers, purchaser or 
leaser of each such Honda Automobile, and
    (d) Upon reasonable notice to the Authorized Honda Dealer such 
additional information may be required by AHM.
    Refusal by the Authorized Honda Dealer to submit such reports 
constitutes breach of the Dealer Agreement. In case of such refusal, 
addition to the remedy set forth herein, AHM reserves the right to 
exercise all remedies permitted by Honda Dealer Agreement for a 
material breach thereof.
    3.2  Audit of Authorized Honda Dealers.
    Pursuant to Section 7.4 of the Dealer Agreement, AHM will 
conduct periodic audits of its Authorized Honda Dealers to verify 
the accuracy of reports submitted AHM pursuant to Section 3.1 
hereof. Audits will be initiated on either of the following basis:
    (a) AHM, in its sole discretion may conduct random audits of 
Authorized Honda Dealer, no more frequently than once every month,
    (b) If AHM receives information from which it reasonably 
believes that an Authorized Honda Dealer is engaged in Wholesaling. 
AHM will audit the Authorized Honda Dealer's records to determine 
whether such information is correct.
    Refusal by an Authorized Honda Dealer to permit AHM to conduct 
the audits described herein constitutes a breach of the Dealer 
Agreement. In case of such refusal, in addition to the remedies set 
forth herein, AHM reserves the right to exercise all remedies 
permitted by the Dealer Agreement for a material breach thereof.
    3.3  Preliminary Finding of a Wholesaling Violation.
    AHM shall issue to the Authorized Honda Dealer a preliminary 
finding of a violation of this Policy when one or more of the 
following events occurs:
    (a) The Authorized Honda Dealer makes either an oral or written 
refusal to submit the reports described in Section 3.1 hereof,
    (b) After written request from AHM, the Authorized Honda Dealer 
neglects to submit the reports described in Section 3.1 hereof.
    (c) The Authorized Honda Dealer refuses to submit to the audit 
describe in Section 3.2 thereof.
    (d) Upon audit by AHM pursuant to Section 3.2 hereof, it is 
determined that reports submitted by the Authorized Honda Dealer to 
AHM are substantially inaccurate in that the Authorized Honda Dealer 
has inaccurately identified (by Vehicle Identification Number) the 
person (whether an individual or business) who has purchased or 
leased one or more Honda Automobiles from said Authorized Honda 
Dealer.
    (e) Upon audit by AHM pursuant to Section 3.2 hereof, AHM has 
reason to believe that the Authorized Dealer has engaged in 
Wholesaling, or
    (f) Upon other reliable evidence (which evidence will be 
described to the Authorized Honda Dealer, AHM has reason to believe 
that the Authorized Honda Dealer has engaged in Wholesaling.
    AHM will notify the Authorized Honda Dealer in writing of any 
preliminary finding of a Wholesaling violation. Such notice will 
include a brief description of the basis for the preliminary 
finding.
    3.4  The Authorized Honda Dealer Response to Preliminary Finding 
Final Finding.
    The Authorized Honda Dealer will have fourteen (14) days from 
notification of any such preliminary finding to contest AHM's 
finding in writing by submission of sales data and/or other 
information that disproves said finding. Should the Authorized Honda 
Dealer fail to contest such finding within (14) days or should, AHM 
find that the Authorized Honda Dealers submission does not disprove 
such finding, then AHM will issue a final finding detailing the 
Authorized Honda Dealer's violation of this Policy.

4. AHM's Remedies in the Event of a Violation

    In the event of a final finding by AHM that the Authorized Honda 
Dealer has violated the Policy.
    4.1  For purposes of allocating vehicles, AHM will adjust the 
Authorized Honda Dealer's sales history to exclude retail sales 
credit earned on transfers found to violate the Policy.
    4.2  AHM will charge-back all incentives paid by AHM related to 
translate of Honda Automobiles to violate the Policy; and
    4.3 AHM will reduce marketing allowances available to the 
Automobile Honda Dealer pursuant to the current AHM marketing 
programs and proportionate to the number of Honda Automobiles which 
have been found to violate the Policy and/or charge-back all Dealer 
Marketing Allowance amounts (or similar payments) paid by AHM 
related to transfer of such Honda Automobiles.
    4.4  Should AHM issue a second final finding of a violation of 
the Policy, then, in addition to the steps state above, AHM will,
    (a) Not consider that Authorized Honda Dealer eligible for 
additional Honda Automobiles in excess of the standard allocation 
for one (1) year thereafter; and
    (b) Not consider that Authorized Honda Dealer for any additional 
AHM dealership location(s) for five (5) years thereafter.
    In the event that AHM issues more than two final findings of 
violations of the Policy against an Authorized Honda Dealer, then 
the remedies so forth in (a) and (b) of this subparagraph shall be 
made permanent.
    4.5  Notwithstanding the above, AHM consider any Wholesaling to 
be inconsistent with the Dealer Agreement and AHM reserves its 
rights to take appropriate action to prevent such Wholesaling. 
Moreover, AHM will hold the Authorized Honda Dealer liable for any 
expenses or losses that AHM may incur as a result of any Wholesaling 
by that Authorized Honda Dealer, including, without limitation, 
expenses or losses resulting from (a) AHM's inability to notify 
customers of product recalls or other service information and 
product liability claims resulting therefrom and (b) consumer claims 
including claims in connection with intermediaries installing non-
Honda equipment, providing inadequate service, or making 
misrepresentations.

May 8, 1996.
Harold E. Kohn, Esquire, Kohn, Swift & Graf, P.C., 1101 Market 
Street, Suite 2400, Philadelphia, PA 19107-2924

    Dear Mr. Kohn: This responds to your letter of December 1, 1995, 
on behalf of your client, Potamkin Auto Center, Ltd. (``Potamkin''), 
concerning the proposed consent decree between the Department of 
Justice and the National Automobile Dealers Association (``NADA''). 
The proposed decree settles a civil antitrust suit in which the 
Department alleged that the NADA, through its officers and 
directors, conspired to lessen competition in the retail automobile 
industry.
    Your letter addresses the notification that NADA must publish 
and send to its members to inform them of the decree's requirements. 
You ask that it include an additional statement that group 
activities by competitors designed to restrict price competition are 
illegal, whether or not such group activities are officially 
sanctioned by the trade association.
    We have carefully considered your comment and have determined 
that the decree, along with its notification provisions, is fully 
adequate to prevent continuation or recurrence of the violations 
alleged in the complaint. The complaint alleged that the NADA 
engaged in conduct intended to limit price competition in the retail 
automobile sales industry. Accordingly, the prohibitions of the 
decree apply to the NADA, its officers, directors, employees and 
other persons acting on its behalf. Because the decree does not 
apply to the activities of dealers acting independently of the NADA, 
we have concluded that additional provisions directed at such 
actions would not be appropriate.
    Your letter also raises concerns about a recent policy 
implemented by American Honda Motors Co., Inc. (``Honda'') that 
prohibits all Honda dealers in the United States from transferring 
new automobiles to certain third party resellers, a group that would 
include Potamkin. You ask that the Antitrust Division expand its 
investigation to include these and other related practices.
    Your letter states that Honda's policy represents Honda's 
joinder in a dealers' agreement to eliminate price competition from 
automobile brokers. Based on the evidence available at the time the 
complaint was filed, the Department did not initiate a suit against 
any automobile manufacturer, and did not allege that any automobile 
manufacturer had entered into agreements with the NADA or automobile 
dealers. You do not provide evidence that the dealers had such an 
agreement or that Honda's action was part of such a conspiracy. 
Moreover, unilateral action on Honda's part, unless it constitutes 
monopolization or attempted monopolization, is not prohibited by the 
antitrust laws. If you have additional

[[Page 25895]]

information about Honda or other manufacturers, the Department would 
of course consider it.
    Finally, you request the opportunity to appear before the Court 
to be heard regarding the decree's notification provisions and to 
present additional evidence of concerted activities by automobile 
dealers and manufacturers. Under Section 2 of the Antitrust 
Procedures and Penalties Act (the ``Tunney Act''), 15 U.S.C. 
Sec. 16(b), which governs proposed final judgments such as this one, 
the Court may hold a hearing in order to make its determination as 
to whether the proposed decree is in the public interest, but is not 
required to do so. As discussed above, we believe that the decree 
fully redresses the violations alleged in the complaint and that the 
addition you propose to the decree's notification provisions would 
apply to activities not covered by that decree. Moreover, a Tunney 
Act hearing is an inappropriate forum to consider evidence of 
alleged concerted conduct that is not addressed in the complaint. 
See U.S. v. Microsoft, 56 F.3d 1448 (D.C. Cir 1995). If you are 
aware of any such evidence, we encourage you to bring it to our 
attention. While we do not believe the hearing you request is 
appropriate, we will provide a copy of your letter, along with this 
response, to the Court when we file our response to public comments.
    I hope this letter responds to your concerns. Thank you for your 
interest in this matter and in the enforcement of the antitrust 
laws.

    Sincerely yours,
Mary Jean Moltenbrey,
Chief, Civil Task Force.
[FR Doc. 96-12775 Filed 5-22-96; 8:45 am]
BILLING CODE 4410-01-M