34862 Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Notices

1 The record is defined in sec. 207.2(f) of the

Commission’s Rules of Practice and Procedure (19

CFR § 207.2(f)).

afforded in connection with the

proposed withdrawal. All interested

persons who desire a public meeting for

the purpose of being heard on the

proposed withdrawal must submit a

written request to the Kingman Area

Manager within 90 days from the date

of publication of this notice. Upon

determination by the authorized officer

that a public meeting will be held, a

notice of the time and place will be

published in the Federal Register at

least 30 days before the scheduled date

of the meeting.

The application will be processed in

accodance with the regulations set forth

in 43 CFR 2300.

For a period of two years from the

date of publication of this notice in the

Federal Register, the land will be

segregated as specified above unless the

application is denied or canceled or the

withdrawal is approved prior to that

date. The temporary uses which may be

permitted during this segregative period

are licenses, permits, cooperative

agreements, and discretionary land use

authorizations of a temporary nature,

but only with the approval of an

authorized officer of the Bureau of Land

Management.

Dated: June 25, 1996.

David J. Miller,

Associate District Manager.

[FR Doc. 96–16948 Filed 7–2–96; 8:45 am]

BILLING CODE 4310–32–P

AGENCY FOR INTERNATIONAL

DEVELOPMENT

Notice of Cancellation of Acceptance

of the American Schools and Hospitals

Abroad Application for Assistance

SUMMARY: This applicant notice is for

private U.S. organizations requesting

grant assistance for overseas institutions

under Section 214 of the Foreign

Assistance Act. ‘‘Applicant’’ refers to

the United States founder or sponsor of

the overseas institution. Due to budget

cuts, The Office of American Schools

and Hospitals Abroad (ASHA) will not

accept applications for assistance on

August 31, 1996 for consideration in FY

1997 and for future years.

FOR FURTHER INFORMATION CONTACT: The

Office of American Schools and

Hospitals Abroad (ASHA), (703) 351–

0232.

SUPPLEMENTARY INFORMATION:

Title: American Schools and Hospitals

Abroad.

Form No.: A.I.D. 1010–2.

OMB No.: 0512–0011.

Type of submission: Cancellation of

Acceptance of Application.

Abstract: The application was used by

U.S. founders or sponsors in applying

for grant assistance from ASHA on

behalf of their institutions overseas.

ASHA is a competitive grant program.

Decisions are based on an annual

comparative review of all applications

requesting assistance in that fiscal year,

pursuant to Section 214 of the Foreign

Assistance Act, as amended.

Annual Reporting Burden

Respondents: Not-for-profit

organizations.

Number of respondents: 85.

Estimated total annual hour burden

on respondents: 12.

Dated: June 27, 1996.

Howard B. Helman,

Director, Office of American Schools and

Hospitals Abroad, Bureau for Humanitarian

Response.

[FR Doc. 96–16988 Filed 7–2–96; 8:45 am]

BILLING CODE 6116–01–M

INTERNATIONAL TRADE

COMMISSION

[Investigation No. 731–TA–739 (Final)]

Clad Steel Plate From Japan

Determination

On the basis of the record 1 developed

in the subject investigation, the

Commission determines, pursuant to

section 735(b) of the Tariff Act of 1930

(19 U.S.C. 1673d(b)) (the Act), that an

industry in the United States is

materially injured by reason of imports

from Japan of clad steel plate, provided

for in subheading 7210.90.10 of the

Harmonized Tariff Schedule of the

United States, that have been found by

the Department of Commerce to be sold

in the United States at less than fair

value (LTFV).

Background

The Commission instituted this

investigation effective February 27,

1996, following a preliminary

determination by the Department of

Commerce that imports of clad steel

plate from Japan were being sold at

LTFV within the meaning of section

733(b) of the Act (19 U.S.C. 1673b(b)).

Notice of the institution of the

Commission’s investigation and of a

public hearing to be held in connection

therewith was given by posting copies

of the notice in the Office of the

Secretary, U.S. International Trade

Commission, Washington, DC, and by

publishing the notice in the Federal

Register of March 13, 1996 (61 FR

10380). The hearing was held in

Washington, DC, on May 7, 1996, and

all persons who requested the

opportunity were permitted to appear in

person or by counsel.

The Commission transmitted its

determination in this investigation to

the Secretary of Commerce on June 25,

1996. The views of the Commission are

contained in USITC Publication 2972

(June 1996), entitled ‘‘Clad Steel Plate

from Japan: Investigation No. 731–TA–

739 (Final).’’

By order of the Commission.

Donna R. Koehnke,

Secretary

Issued: June 25, 1996

[FR Doc. 96–16987 Filed 7–2–96; 8:45 am]

BILLING CODE 7020–02–P

Sunshine Act Meeting

AGENCY HOLDING THE MEETING: United

States International Trade Commission.

TIME AND DATE: July 9, 1996 at 11:00 a.m.

PLACE: Room 101, 500

E Street S.W., Washington, DC 20436.

STATUS: Open to the public.

MATTERS TO BE CONSIDERED:

1. Agenda for future meeting.

2. Minutes.

3. Ratification List.

4. Inv. Nos. 701–TA–365–366 (Final) and

731–TA–734–735 (Final) (Certain Pasta

from Italy and Turkey)—briefing and

vote.

5. Outstanding action jackets: None.

In accordance with Commission

policy, subject matter listed above, not

disposed of at the scheduled meeting,

may be carried over to the agenda of the

following meeting.

Issued: July 1, 1996.

By order of the Commission.

Donna R. Koehnke,

Secretary

[FR Doc. 96–17182 Filed 7–01–96; 8:45 am]

BILLING CODE 7020–02–P

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. American National

Can Co. & KMK Maschinen AG;

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
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Notices 34863

been filed with the United States

District Court for the District of

Columbia in United States v. American

National Can Co. and KMK Maschinen

AG, Civil No. 96–01458.

The Complaint alleges that the

defendants violated section 1 of the

Sherman Act by entering a series of

agreements, the purpose and effect of

which was to eliminate competition

between them in the North American

markets for laminated tubes and

laminated tube-making equipment and

technology. The Complaint further

alleges that pursuant to those

agreements, KMK Maschinen AG

(‘‘KMK’’) sold its U.S. tube-making

affiliate to American National Can Co.

(‘‘ANC’’) and agreed to sell its laminated

tube-making equipment and to license

its related technology exclusively to

ANC, and ANC agreed to buy all its

laminated tube-making equipment for

use in North America from KMK and

not to acquire or use anyone else’s

equipment or technology there while at

the same time discontinuing its own

manufacture of such equipment.

The proposed Final Judgment would

end the extant exclusive, laminated

tube-making equipment and technology

arrangement between the defendants,

and would bar them from collecting any

payment from each other under that

agreement. It also would enjoin

defendants from entering agreements

that restrict certain rights of any party

relating to laminated tubes or laminated

tube-making equipment or technology,

where the parties compete directly

against each other in the same segment

of the laminated tube market (tubes,

equipment, or technology) to which the

restraint applies.

Laminated tubes are collapsible

tubular containers of multiple,

laminated plastic layers used to package

virtually all toothpaste and many

pharmaceutical products.

Public comment on the proposed

Final Judgment is invited within the

statutory 60-day comment period. Such

comments and responses thereto will be

published in the Federal Register and

filed with the Court. Comments should

be directed to Mary Jean Moltenbrey,

Chief, Civil Task Force, U.S. Department

of Justice, Antitrust Division, 325 7th

Street, NW., Suite 300, Washington, DC

20530 (202/616–5935).

Rebecca P. Dick,

Deputy Director of Operations.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

In the matter of; UNITED STATES OF

AMERICA, Plaintiff, v. AMERICAN

NATIONAL CAN CO., and KMK

MASCHINEN AG, Defendant; Civil Action

No. 96–01458, Filed June 25, 1996, Judge

Thomas Pennfield Jackson.

Stipulation

It is stipulated by and between the

undersigned parties, by their respective

attorneys, that:

1. The Court has jurisdiction over the

subject matter of this action and over

each of the parties hereto for purposes

of this action, and venue of this action

is proper in the District of Columbia;

2. The parties consent that a Final

Judgment in the form hereto attached

may be filed and entered by the Court,

upon the motion of any party or upon

the Court’s own motion, at any time

after compliance with the requirements

of the Antitrust Procedures and

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

and without further notice to any party

or other proceedings, provided that

plaintiff has not withdrawn its consent,

which it may do at any time before the

entry of the proposed Final Judgment by

serving notice thereof on defendant and

by filing that notice with the Court;

3. Each defendant agrees to be bound

by the provisions of the proposed Final

Judgment pending its approval by the

Court; and

4. In the event plaintiff withdraws its

consent or if the proposed Final

Judgment is not entered pursuant to this

Stipulation, this Stipulation shall be of

no effect whatsoever, and the making of

this Stipulation shall be without

prejudice to any party in this or any

other proceeding.

Dated: June 24, 1996.

For Plaintiff:

Anne K. Bingaman,

Assistant Attorney General.

Joel I. Klein,

Deputy Assistant Attorney General.

Rebecca P. Dick,

Deputy Director of Operations.

Mary Jean Moltenbrey,

Chief, Civil Task Force.

Robert J. Zastrow,

Assistant Chief, Civil Task Force.

Thomas H. Liddle.

Scott A. Scheele,

DC Bar No. 429061, Attorneys, Antitrust

Division, U.S. Department of Justice, Suite

300, Liberty Place Building, 325 7th Street,

N.W., Washington, DC 20530.

For Defendant American National Can Co.:

McDermott, Will & Emery

David Marx, Jr.,

A Member of the Firm.

For Defendant KMK Maschinen Ag:

Wilmer, Cutler & Pickering

Rajiv P. Santwan,

Chief Executive, KMK Maschinen AG.

C. Loring Jetton, Jr.,

A Member of the Firm, D.C. Bar No. 83766.

Final Judgment

Plaintiff, United States of America,

filed its Complaint on June 25, 1996;

plaintiff and defendants, by their

respective attorneys, have consented to

entry of this Final Judgment without

trial or adjudication of any issue of fact

or law, and defendants have agreed to

be bound by the provisions of this Final

Judgment pending its approval by the

Court. This Final Judgment shall not be

evidence against or an admission by any

party with respect to any issue of fact

or law herein.

Now, therefore, before the taking of

any testimony and upon consent of the

parties, it is hereby Ordered, Adjudged,

and Decreed as follows:

I

Jurisdiction

This Court has jurisdiction of the

subject matter of this action and of each

of the parties consenting hereto. The

Complaint states a claim upon which

relief may be granted against defendants

under Section 1 of the Sherman Act, 15

U.S.C. 1.

II

Definitions

As used in this Final Judgment:

A. ‘‘Agreement’’ means any contract,

arrangement, or understanding, whether

oral or written, or any term or provision

thereof, together with any modification

or amendment thereto;

B. ‘‘Laminated tube’’ means a

collapsible, squeeze-to-use tubular

package with a sideseam that consists of

a body of multiple laminated plastic

layers separated by a layer of either

plastic or aluminum foil that serves as

a barrier to moisture, light, gases, or

other agents; a tube head attached to the

body; and may include a cap;

C. ‘‘Laminated tube-making

equipment’’ means machinery,

apparatus, or devices for making and/or

assembling laminated tubes, including

forming a tube head, sealing or

otherwise connecting it to a laminated

tube body, or capping the laminated

tube;

D. ‘‘Laminated tube-making

technology’’ means any form of

intellectual property relating to (i) the

design, development, construction, or

operation of laminated tube-making

equipment or any component, feature,

or use thereof; (ii) the fabrication of

laminated tubes or any component
34864 Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Notices

thereof; or (iii) the material used in

making laminated tubes; but only to the

extent such component, feature, use, or

material relates to laminated tubes and

not to other types of packaging;

E. ‘‘North America’’ means the United

States of America, Canada, and the

United Mexican States.

III

Applicability

This Final Judgment applies to each

defendant; to each of its officers,

directors, agents, employees, successors,

assigns, subsidiaries, divisions, and any

other organizational unit controlled by

either defendant; and to all other

persons in active concert or

participation with any of them who

shall have received actual notice of this

Final Judgment by personal service or

otherwise.

IV

Injunctive Relief

Each defendant is enjoined and

prohibited from:

A. Maintaining, enforcing, carrying

out, or claiming any right or operating

under the 1987 License and Technical

Assistance Agreement (LTAA) between

American National Can Co. and KMK

Karl Maegerle Lizenz AG;

B. Collecting or attempting to collect

any royalties, fees, or other payments

under the LTAA for (i) the manufacture,

sale, or use in North America of

laminated tubes or laminated tubemaking equipment or (ii) the license,

sale, or use in North America of

laminated tube-making technology;

C. Entering into, maintaining,

enforcing, carrying out, or claiming any

right under any agreement with any

person who

(1) Owns or has the right to use,

license, and transfer laminated tubemaking technology that restricts the

right of any party to the agreement to

use, license, or transfer in North

America laminated tube-making

technology that it owns or has the right

to use at the time of the agreement,

(2) Manufactures or sells laminated

tube-making equipment that restricts the

right of any party to the agreement to

manufacture or sell such equipment in

North America using or incorporating

only laminated tube-making technology

that it owns or has the right to use at

the time of the agreement, or

(3) Manufactures or sells laminated

tubes in North America that restricts the

right of any party to the agreement to

manufacture or sell, but not use,

laminated tubes in North America.

The prohibitions of this Section IV.C

shall not apply to either defendant’s

acquisition of substantially all of any

person’s assets or voting securities

relating to laminated tube-making

equipment or technology, provided that

(1) the defendant gives the Antitrust

Division of the United States

Department of Justice written notice of

the proposed acquisition at least 30 days

prior to its consummation, and (2) if

within that 30-day period the Antitrust

Division requests additional information

and/or documentary material relevant to

the proposed acquisition, the defendant

extends the consummation thereof for at

least an additional 20 days after the date

on which the Antitrust Division receives

all the information and documentary

material requested from the defendant.

V

Notification

Within 60 days of entry, each

defendant shall provide a copy of this

Final Judgment by mail or personal

service to its officers, directors, and

managerial employees responsible for

defendant’s laminated tubes and/or

laminated tube-making equipment or

technology businesses, and to its current

laminated tube-making technology

licenses in North America. Thereafter,

each defendant shall distribute a copy of

this Final Judgment to any new such

officer, director, or managerial employee

within 60 days of a person’s assumption

of duties as an officer, director, or

manager of that defendant.

VI

Compliance Information

A. To determine or secure compliance

with this Final Judgment, from time to

time, duly authorized representatives of

plaintiff, upon written request of the

Assistant Attorney General in charge of

the Antitrust Division, or reasonable

notice to a defendant at its principal

office and subject to any lawful

privilege, shall be permitted:

1. Access during normal office hours

to inspect and copy all books, ledgers,

accounts, correspondence, memoranda,

and other records and documents in the

defendant’s possession, custody, and

control relating to any matters contained

in this Final Judgment; and

2. To interview the defendant’s

officers, employees, or agents regarding

such matters, who may have counsel

present, subject to the defendant’s

reasonable convenience but without its

restraint or interference.

B. Upon written request of the

Assistant Attorney General in charge of

the Antitrust Division to a defendant’s

principal office, and subject to any

lawful privilege, the defendant shall

submit such written reports, under oath

if requested, relating to any matters

contained in this Final Judgment, as

may be requested.

C. No information or documents

obtained pursuant to this section shall

be divulged by plaintiff to any person

other than a duly 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, or for the

purpose of securing compliance with

this Final Judgment, or as otherwise

required by law.

D. If at the time information or

documents are furnished by a defendant

to plaintiff, the defendant represents

and identifies in writing the material in

any such information or documents for

which a claim of protection may be

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

Federal Rules of Civil Procedure, and

the defendant marks each pertinent page

of such material, ‘‘subject to claim of

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

Federal Rules of Civil Procedure,’’ then

plaintiff shall give 10 days’ notice to the

defendant before divulging such

material in any legal proceeding (other

than a grand jury proceeding) to which

the defendant is not a party.

VII

Retention of Jurisdiction

Jurisdiction is retained by this Court

for the purpose of enabling any party to

this Final Judgment to apply to this

Court at any time for further orders or

directions as may be necessary or

appropriate to implement or construe

this Final Judgment, to modify or

terminate any provision thereof, to

enforce compliance therewith, and to

punish violations thereof.

VIII

Term

This Final Judgment shall expire ten

years from the date of its entry.

IX

Public Interest

Entry of this Final Judgment is in the

public interest.

Dated: lllllllllllllllll

Court approval subject to the Antitrust

Procedures and Penalties Act, 15 U.S.C. 16.

lllllllllllllllllllll

United States District Judge

Certificate of Service

I hereby certify that copies of the

foregoing Complaint, Stipulation (to

which is attached a copy of a proposed

Final Judgment), and Competitive

Impact Statement were served this 25th

day of June 1996, by first class mail,

postage prepaid, upon:
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Notices 34865

David Marx, Jr., Esq., McDermott, Will

& Emory, 31st Floor, 227 West

Monroe Street, Chicago, IL 60606–

5096

Counsel for Defendant, American

National Can Co.

C. Loring Jetton, Jr., Esq., Wilmer, Cutler

& Pickering, 2445 M Street, N.W.,

Washington, D.C. 20037–1420

Counsel for Defendant KMK Maschinen

AG.

Thomas H. Liddle,

Attorney, Antitrust Division, U.S. Department

of Justice, 325 7th Street, N.W., Washington,

D.C. 20530.

Competitive Impact Statement

Pursuant to section 2(b) of the

Antitrust Procedures and Penalties Act

(15 U.S.C. 16(b), the United States of

America hereby files this Competitive

Impact Statement relating to the

proposed Final Judgment submitted for

entry in this civil antitrust action

against American National Can Co.

(‘‘ANC’’) and KMK Maschinen AG

(‘‘KMK’’).

I

Nature and Purpose of the Proceeding

The government filed this civil

antitrust suit on June 25, 1996, alleging

that defendants violated Section 1 of the

Sherman Act by engaging in a

combination and conspiracy that

unreasonably restrains interstate trade

and commerce in the manufacture of

laminated tubes and laminated tubemaking equipment, and in the license

and transfer of related laminated tubemaking technology. The Complaint

alleges that this combination and

conspiracy consisted of a series of

continuing agreements between

defendants, the purpose and effect of

which was to eliminate competition

between them in the North American

markets for laminated tubes and

laminated tube-making equipment and

technology. Specifically, KMK agreed to

sell its laminated tube-making

equipment and license its related

technology exclusively to ANC, and

ANC purchased KMK’s U.S. laminated

tube-making facility. These agreements

harmed competition in several ways:

(a) They eliminated KMK as a

competitor in the laminated tubes

market, thereby reducing competition

among tube manufacturers in the United

States;

(b) They precluded KMK from selling

laminated tube-making equipment or

from licensing laminated tube-making

technology to persons other than ANC

for 15 years, and gave ANC effective

control over KMK’s existing laminated

tube-making equipment in North

America, thereby reducing competition

among equipment manufacturers in the

United States; and

(c) They gave ANC effective control

over KMK’s laminated tube-making

technology in North America, thereby

reducing competition generally in the

United States laminated tube, laminated

tube-making equipment, and related

technology markets.

The complaint seeks: (1) A

declaration that these agreements

violate section 1 of the Sherman Act;

and (2) an injunction preventing

defendants from enforcing, maintaining,

or renewing any such agreement or

entering into or engaging in any other

agreement having a similar purpose or

effect.

The United States and the defendants

have stipulated that the Court may enter

the proposed Final Judgment at any

time after compliance with the Antitrust

Procedures and Penalties Act, 15 U.S.C.

16 (b)–(h). Under the provisions of

section 2(e) of the Antitrust Procedures

and Penalties Act, 15 U.S.C. 16(e), the

proposed Final Judgment may not be

entered unless the Court finds that its

entry is in the public interest.

II

The Practices and Events Giving Rise to

the Alleged Sherman Act Violations

A. The Markets Involved

1. Laminated Tubes

Laminated tubes are collapsible

tubular containers of multiple,

laminated plastic layers used to package

virtually all toothpaste and many

pharmaceutical products sold in the

United States. These tubes preserve the

product within a flexible tube without

permitting air or moisture to enter the

tube. Other packaging materials either

cost more than or lack the barrier

characteristics of laminated tubes. Thus,

there are no viable economic substitutes

for laminated tubes. Annual retail sales

of such tubes in North America are

about $110 million, or 1.1 billion tubes,

of which approximately 800 million are

sold to toothpaste manufacturers;

approximately 300 million are sold to

pharmaceutical manufacturers and

others.

The market for laminated tubes is

highly concentrated. Three companies

manufacture over 95% of such tubes

sold in the United States. ANC is the

largest competitor with total sales

comprising over 60% of the United

States toothpaste tube market. There are

only two other competitors in the

United States that have 5% or more of

the laminated tubes market. It is not

economically feasible to ship laminated

tubes into North America.

Successful new entry into, or

expansion within, the laminated tube

market is difficult. To be successful, a

new entrant must acquire expensive

laminated tube-making equipment and

essential, related patented and

unpatented laminated tube-making

technology. The up-front investment in

plant, machinery, research, technology,

and sales is substantial relative to the

profit opportunity available in a

commodity market like this one.

2. Laminated Tube-Making Equipment

Laminated tube-making equipment

consists of machinery used to

manufacture laminated tubes. This

equipment cannot efficiently be used for

any other purpose, nor can other

machines easily or efficiently be

converted or adapted to make laminated

tubes. Thus, there are no viable

economic substitutes for this

equipment.

The market for laminated tube-making

equipment is highly concentrated.

Besides KMK, only two companies

worldwide currently manufacture such

equipment.

KMK is, therefore, one of only a very

few firms in the world that can provide

laminated tube-making equipment for

sale in the United States. KMK has sold

such equipment worldwide, and its

equipment enjoys a good reputation in

the industry. KMK has numerous

patents in countries around the world,

including the United States.

Successful new entry into, or

expansion within, the market for

laminated tube-making equipment is

difficult. To be successful, a new entrant

must acquire or develop essential

patented and unpatented laminated

tube-making technology. Such

technology is expensive to acquire or

develop relative to the sales opportunity

for the equipment.

3. Laminated Tube-Making Technology

The use of both patented and

unpatented tube-making technology is

essential to the profitable manufacture

of laminated tubes and laminated tubemaking equipment. There are only a few

competing forms of such technology

today, and KMK, ANC, and an affiliate

of ANC’s parent hold the rights to three

of the four leading types of the

technology worldwide.

Development of new competitive

technology would require substantial

investment with highly uncertain

returns. New entry into the laminated

tube-making technology market cannot

reasonably be expected in the

foreseeable future.
34866 Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Notices

B. Illegal Agreements

In 1987, before entering into the

agreements discussed below, both ANC

and KMK were vertically integrated

companies that owned rights to

laminated tube-making technology,

manufactured laminated tube-making

equipment for use in the United States,

and manufactured and sold laminated

tubes in the United States.

In late 1987, KMK and ANC entered

into several agreements, the purpose

and effect of which was to eliminate

competition between them in the North

American laminated tube and tubemaking equipment markets.

Pursuant to one of these agreements

ANC purchased Swisspack Corporation,

KMK’s U.S. affiliate, for just under $15

million, although the laminated tubemaking equipment covered by the

transaction was valued at less than $5

million. As a result of its selling

Swisspack to ANC, KMK exited the

North American laminated tube market.

On the same day ANC acquired

Swisspack, ANC and KMK entered into

a License and Technology Assistance

Agreement (‘‘LTAA’’). Pursuant to that

agreement, KMK gave ANC an exclusive

license to use KMK’s laminated tubemaking technology, and an exclusive

right to but its tube-making equipment,

in North America (‘‘exclusivity

provision’’). In exchange, ANC agreed to

license any laminated tube-making

technology and buy all laminated tubemaking equipment for use in North

America only from KMK, and not to

acquire or use any third party’s

laminated tube-making equipment or

technology there. At or about the time

of these agreements, ANC discontinued

the manufacture of laminated tubemaking equipment. By precluding KMK

from selling laminated tube-making

equipment or licensing laminated tubemaking technology to others in North

America, these agreements reduced

competition in the North American

laminated tube, laminated tube-making

equipment, and laminated tube-making

technology markets.

Several yeas after entering into these

agreements, ANC was acquired by

Pechiney SA, a French company, one of

whose existing subsidiaries, Cotuplas

SA, manufactures laminated tubemaking equipment. Since being

acquired by Pechiney SA, ANC has

obtained substantially all its laminated

tube-making equipment from the

Pechiney SA subsidiary. Until very

recently, however, ANC has enforced

the exclusivity provisions of the LTAA

against KMK, preventing KMK, its

equipment, and its technology from

competing with ANC in North America.

KMK brought these agreements to the

attention of the United States and

cooperated in its investigation; after

learning that the United States had

commenced its investigation into these

agreements, ANC agreed with KMK not

to interfere with KMK’s right to sell its

laminated tube-making equipment or to

license its tube-making technology in

North America.

III

Explanation of the Proposed Final

Judgment and Its Anticipated Effect on

Competition

A. Terms

The proposed Final Judgment

provides for injunctive relief that is

intended to eliminate any residual

anticompetitive effects of the restrictive

agreements and other conduct

challenged by the Complaint, and to

prevent defendants from entering into

similar agreements that would have the

same effect. Section IV.A of the Final

Judgment would terminate the

defendants’ 1987 LTAA and its

exclusivity provisions, thus freeing

KMK to sell or license its own

laminated tube-making equipment and

technology to anyone in North America.

Section IV.B would bar defendants from

collecting any payment from each other

pursuant to the LTAA for the

manufacture, sale, license, or use in

North America of laminated tubemaking equipment or technology.

Section IV.C of the Judgment would

enjoin each defendant from entering

certain agreements that restrict the right

of any party (i) to use, license, or

transfer in North America laminated

plastic tube-making technology that the

party owns or has the right to use at the

time of the agreement, or (ii) to

manufacture or sell laminated plastic

tubes or tube-making equipment in

North America, where such agreements

likely would lessen competition among

the parties. Such agreements would be

barred if (i) at the time of the agreement

both parties compete directly against

each other in any of the three vertically

related laminated plastic tube markets—

i.e., technology, equipment, or tubes,

and (ii) the restraint involved applies to

that common market.

For example, Section IV.C would

prohibit either defendant from entering

into an agreement with a tube-making

equipment manufacturer that restricted

any party from manufacturing or selling

tube-making equipment in North

America because both parties to such an

agreement would be competitors in the

tube-making equipment market. Section

IV.C would not bar agreements that are

essentially vertical in nature. For

example, KMK and a company that does

not manufacture tube-making

equipment could enter into an

agreement with KMK granting that

company an exclusive right to use

KMK’s equipment in North America.

Finally, Section IV.C would require

that defendants give the Department of

Justice notice of, and provide certain

discovery rights concerning, any

acquisition of a laminated plastic tube

competitor that included an agreement

not to compete. This notification will

enable the Department to investigate

and prevent any anticompetitive

acquisition, including any transaction

that does not require notification under

the Hart-Scott-Rodino Act, before it

takes place, and thus would prevent

these parties from engaging in

anticompetitive non-reportable transfers

such as their 1987 transaction.

B. Effect on Competition

The proposed Final Judgment will

ensure that KMK will be able to

compete in all three North American

laminated plastic tube markets. KMK

will be able to sell laminated plastic

tubes, sell or lease tube-making

equipment, and license or transfer

laminate tube technology. Existing tube

manufacturers will benefit from

increased competition in the sale of

laminate tube-making equipment and

technology. New entrants into the North

American laminated tube market now

will have access to the requisite

equipment and technology, which may

lead to greater competition in the

manufacture and sale of laminated

tubes.

To preserve incentives to enter for

those firms who may be reluctant to

make the requisite investment without

exclusive rights to technology or

equipment, the injunction against

exclusive licenses or otherwise

restrictive agreements would apply only

to those with persons already competing

in the same level of the laminated tube

market (technology, equipment, or

tubes) as the defendant.

Similarly, to preserve important

incentives to innovate, especially where

a defendant is likely to be the primary

source of the investment, the injunction

would not bar that defendant from

acquiring exclusive rights in laminated

tube-making technology or equipment

that is developed or marketed jointly

with customers or suppliers, provided

they are not also competitors in the

same market level as that defendant.

The injunctive provisions also would

exempt restrictions on sale to third

parties of equipment made for a

particular customer incorporating that

customer’s own technology.
Federal Register / Vol. 61, No. 129 / Wednesday, July 3, 1996 / Notices 34867

Finally, prior notice to the

Department of any acquisition by a

defendant of a laminated tube

competitor imposing non-compete

obligations would ensure that the

Department has an opportunity to get

discovery and challenge any such

arrangement deemed anticompetitive.

IV

Remedies Available to 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 suffered, as

well as costs and reasonable attorney’s

fees. Entry of the proposed Final

Judgment will neither impair nor assist

the bringing of such actions. Under the

provisions of section 5(a) of the Clayton

Act, 15 U.S.C. 16(a), the Judgment has

no prima facie effect in any subsequent

lawsuits that may be brought against the

defendants in the matter.

V

Procedures Available for Modification of

the Proposed Judgment

As provided by the Antitrust

Procedures and Penalties Act, any

person believing that the proposed Final

Judgment should be modified may

submit written comments to Mary Jean

Moltenbrey, Chief, Civil Task Force,

U.S. Department of Justice, Antitrust

Division, 325 7th Street, NW., Suite 300,

Washington, DC 20530, within the 60-

day period provided by the Act. These

comments, and the Department’s

responses, will be filed with the Court

and published in the Federal Register.

All comments will be given due

consideration by the Department of

Justice, which remains free, pursuant to

a stipulation signed by the United States

and defendants, to withdraw its consent

to the proposed Judgment at any time

prior to entry. Section VII of 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 modification,

interpretation, or enforcement of the

Final Judgment.

VI

Determinative Materials/Documents

No materials or documents of the type

described in section 2(b) of the Antitrust

Procedures and Penalties Act, 15 U.S.C.

16(b), were considered by the United

States in formulating the proposed Final

Judgment. However, a letter, dated June

21, 1996, from plaintiff’s counsel to

counsel for defendant KMK,

acknowledging KMK’s right under

current law to seek relief from the

compliance provisions of Section VI in

the event it believes a conflict has arisen

between any request for information or

documents under those provisions and

foreign law, was considered

determinative by KMK in agreeing to the

proposed Judgment and is attached

hereto as Exhibit A.

VII

Alternative to the Proposed Final

Judgment

The alternative to the proposed Final

Judgment is a full trial on the merits.

While the Department is confident it

would succeed in such a trial, this case

involves difficult issues of law and fact,

as well as obvious risks and costs to the

United States, and success is not

certain. The Final Judgment to which

the parties have agreed provides

virtually all the relief the Government

sought in its complaint, and that relief

will fully and effectively open the

markets involved to competition.

Dated: June 25, 1996.

Respectfully submitted,

Thomas H. Liddle,

Scott A. Scheele,

DC Bar No. 429061, Attorneys, U.S.

Department of Justice, Antitrust Division, 325

7th Street, NW, Washington, DC 20530.

U.S. Department of Justice

Antitrust Division

Liberty Place Building, Washington, DC

20530

June 21, 1996.

MJM:RJZ

60–3083–0001

C. Loring Jetton, Jr., Esq.,

Wilmer, Cutler & Pickering, 2445 M Street,

N.W., Washington, D.C. 20037–1420, Fax

(202) 663–6463.

Re: KMK Maschinen AG/Laminated Tubes

Dear Mr. Jetton: During our negotiations of

a consent decree in this case, you suggested

the possibility that a conflict could arise

between the compliance provisions in

Section VI of the proposed decree, which

authorize the Assistant Attorney General to

inspect documents or conduct interviews and

to request written reports, and laws or orders

of foreign governments, which appear to

prohibit compliance with such provisions. Of

course, we would attempt to work with KMK

to avoid any such conflict in exercising our

rights under Section VI. In the event that we

could not reach agreement with you,

however, KMK would be free to seek relief

from the decree court from its obligations to

comply with any Section VI request. Under

the principles set forth in Societe

Internationale v. Rogers, 357 U.S. 197 (1958)

and its progeny, KMK would have the burden

of showing that (1) compliance with the

request is prohibited by foreign law, (2) KMK

was not in any way responsible for creating

the conflict between the judgment and

foreign law, and (3) KMK has exercised its

best efforts to obtain any waiver or

permission from the foreign government and

other relevant person(s) that would enable it

to comply with the request.

Sincerely yours,

Robert J. Zastrow,

Assistant Chief, Civil Task Force.

[FR Doc. 96–16889 Filed 7–2–96; 8:45 am]

BILLING CODE 4410–01–M

United States v. AnchorShade, Inc.,

No. 96–08426, S.D. Fla., filed June 20,

1996

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 Southern District

of Florida in the above-captioned case.

On June 20, 1996, the United States

filed a complaint to prevent and restrain

the defendant from violating Section 1

of the Sherman Act. The complaint

alleges that the defendant conspired to

fix the price of outdoor umbrellas sold

by the defendant to dealers throughout

the United States by obtaining

agreements from dealers to maintain the

minimum resale price as a condition of

receiving outdoor umbrellas from the

defendant, and permitting dealers to

discount in order to meet competition,

but only if they obtained written

approval in advance from AnchorShade,

Inc. As a result of the conspiracy, the

resale price of outdoor umbrellas was

fixed and competition among dealers of

outdoor umbrellas was restrained.

The proposed Final Judgment

prohibits the defendant from entering

into or maintaining any unlawful

agreement with any dealer that fixes the

price at which the dealer may sell the

defendant’s outdoor umbrellas to

consumers; adopting any resale pricing

policy wherein the defendant (1) Will

sell only to a dealer that prices the

defendant’s outdoor umbrellas at or

above the defendant’s suggested resale

price, and/or (2) will terminate any

dealer for pricing below such suggested

resale price; and threatening any dealer

with termination or terminating any

dealer from pricing below the

defendant’s suggested resale price, and

discussing with any dealer any decision

regarding termination of any other

dealer for any reason related to pricing

below the defendant’s suggested resale

price.

Public comment is invited within the

statutory 60-day period. Such comments