[Federal Register Volume 73, Number 201 (Thursday, October 16, 2008)]
[Notices]
[Pages 61498-61510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24293]



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Part III





Department of Justice





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Antitrust Division



United States v. The Manitowoc Company, Inc., et al. Proposed Final 
Judgment and Competitive Impact Statement; Notice

Federal Register / Vol. 73, No. 201 / Thursday, October 16, 2008 / 
Notices

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DEPARTMENT OF JUSTICE


Antitrust Division

United States v. The Manitowoc Company, Inc., 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. Sec.  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 v. The Manitowoc Company, Inc., et al., Civil Action No. 
1:08-cv-01704. On October 6, 2008, the United States filed a Complaint 
alleging that the proposed acquisition by The Manitowoc Company, Inc. 
(``Manitowoc'') of Enodis plc would violate Section 7 of the Clayton 
Act, 15 U.S.C. Sec.  18, by substantially lessening competition in the 
United States in the manufacture, development, distribution, and sale 
of commercial cube ice machines. The proposed Final Judgment, filed the 
same day as the Complaint, requires Manitowoc to divest Enodis's entire 
business engaged in the development, production, distribution, and sale 
of ice machines, ice machine parts, and related equipment in the United 
States.
    Copies of the Complaint, proposed Final Judgment, Stipulation, and 
Competitive Impact Statement are available for inspection at the 
Department of Justice, Antitrust Division, Antitrust Documents Group, 
450 Fifth Street, NW, Suite 1010, Washington, DC 20530 (telephone: 202 
514-2481), on the Department of Justice's Web site at http://www.usdoj.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, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division, 
Department of Justice, Washington, DC 20530, (telephone: 202-307-0924).
    J. Robert Kramer, II
    Director of Operations.

United States District Court for the District of Columbia

United States of America, Department of Justice, Antitrust 
Division, 1401 H Street, NW., Suite 3000, Washington, D.C. 20530, 
Plaintiff, v. The Manitowoc Company, Inc., 2400 South 44th Street, 
Manitowoc, Wisconsin 54221; ENODIS PLC, 175 High Holborn, London, 
England WCIV 7AA; and Enodis Corporation, 2227 Welbilt Boulevard, 
New Port Richey, Florida, 34655, Defendants

Case No.: Deck Type: Antitrust Case: 1:08-cv-01704, Assigned to: 
Kennedy, Henry H., Assign. Date: 10/6/2008, Description: Antitrust

Complaint

    The United States of America (``United States''), acting under the 
direction of the Attorney General of the United States, brings this 
civil antitrust action against defendants The Manitowoc Company, Inc. 
(``Manitowoc''), Enodis plc, and Enodis Corporation (Enodis plc and 
Enodis Corporation will hereinafter be collectively referred to as 
``Enodis'') to enjoin Manitowoc's proposed acquisition of Enodis plc 
and to obtain other relief. The United States complains and alleges as 
follows:

I. Nature of the Action

    1. On June 30, 2008, Manitowoc offered to acquire Enodis plc for 
328 pence in cash per share, in a transaction valued at 27 billion 
(including assumed debt). The acquisition is structured as a Scheme of 
Arrangement under the laws of the United Kingdom. The directors of 
Enodis plc unanimously recommended that its shareholders vote in favor 
of accepting Manitowoc's offer, and a majority of the shareholders did 
so.
    2. Manitowoc manufactures and sells commercial ice machines in the 
United States under the Manitowoc brand, and its ice machines are the 
most widely sold in the United States. Enodis manufactures and sells 
commercial ice machines under two brands in the United States, Scotsman 
and Ice-O-Matic (collectively, the ``Enodis brands''); Scotsman and 
Ice-O-Matic machines are the second and fourth most widely sold, 
respectively.
    3. In the United States, Manitowoc's proposed acquisition of Enodis 
would reduce the number of manufacturers that sell commercial ice 
machines producing cubed ice from three to two and would create a 
company with approximately 70 percent of the U.S. sales of commercial 
cube ice machines. Unless the proposed acquisition is enjoined, 
competition for commercial cube ice machines will be substantially 
reduced. The proposed acquisition likely would result in higher prices, 
lower quality, and less innovation in the commercial cube ice machine 
market.
    4. The United States brings this action to prevent the proposed 
acquisition of Enodis by Manitowoc because that acquisition would 
substantially lessen competition in the development, production, 
distribution, and sale of commercial cube ice machines in the United 
States in violation of Section 7 of the Clayton Act, 15 U.S.C. Sec.  
18.

II. Parties to the Proposed Transaction

    5. Defendant Manitowoc is a Wisconsin corporation with its 
principal place of business in Manitowoc, Wisconsin. It is a global 
industrial equipment company that manufacturers commercial ice machines 
and related equipment, refrigeration equipment, cranes, and ships and 
other water vessels.
    6. In 2007, Manitowoc reported total sales of approximately $4 
billion. Manitowoc's sales of commercial ice machines and related 
equipment in the United States were approximately $152 million in 2007. 
Sales of commercial ice machines making cube ice accounted for over 70 
percent of this total.
    7. Enodis is a corporation registered in the United Kingdom and 
Wales with its principal place of business in London, England. Enodis 
Corporation, a wholly owned subsidiary of Enodis plc, is a Delaware 
corporation with its headquarters in New Port Richey, Florida. Through 
its global food service equipment group, Enodis designs, manufactures, 
and sells cooking, food storage and preparation equipment, and ice 
machines and related equipment.
    8. Enodis plc's revenues for its 2007 fiscal year were $1.6 
billion. North American sales accounted for approximately 70 percent of 
Enodis plc's total revenue. In its fiscal year 2007, Enodis plc's sales 
of commercial ice machines and related equipment in the United States 
were approximately $153 million. Sales of commercial ice machines 
making cube ice accounted for about 60 percent of this total.

III. Jurisdiction and Venue

    9. The United States brings this action under Section 15 of the 
Clayton Act, as amended, 15 U.S.C. Sec.  25, to prevent and restrain 
Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. Sec.  
18.
    10. Defendants develop, produce, distribute, and sell commercial 
ice machines and other products in the flow of interstate commerce. 
Defendants' activities in the development, production, distribution, 
and sale of these products substantially affect interstate commerce. 
This Court has

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subject matter jurisdiction over this action pursuant to Section 12 of 
the Clayton Act, 15 U.S.C. Sec.  22, and 28 U.S.C. Sec.  1331, 1337(a), 
and 1345.
    11. Defendants sell commercial ice machines and other products, and 
have consented to venue and personal jurisdiction, in this judicial 
district. Venue is proper under 15 U.S.C. Sec.  22 and 28 U.S.C. Sec.  
1391(c).

IV. Trade and Commerce

A. The Relevant Product Market

    12. Restaurants, convenience stores, hotels, and other businesses 
need significant volumes of ice. These businesses usually meet their 
needs by using commercial ice-making machines located at their places 
of business. These machines make ice by a continuous cycle of 
condensation and expansion of a refrigerant through a network of 
tubing. As the refrigerant converts from a compressed liquid state to 
become a gas, heat is drawn from a component called an evaporator. 
Water running over the evaporator surface freezes to form ice that is 
then harvested by processes specific to the type of ice produced by the 
machine.
    13. The type of ice machine purchased by a customer depends on the 
type and volume of ice needed. Commercial ice machines are designed to 
produce either hard ice or soft ice. Hard ice melts slowly and has a 
higher density and less surface area than soft ice. Hard ice is most 
often shaped as cubes or dice, half-cubes or half-dice, octagons, or 
crescent cubes, and is commonly referred to as cube ice. Most customers 
that serve ice in beverages prefer cube ice because it melts slowly and 
thus minimizes deterioration in the flavor of the beverage. Soft ice 
refers to small nuggets or flakes of ice that have a lower density and 
more surface area than cube ice and, therefore, melt more quickly than 
cube ice. Soft ice is used in hospitals, which demand a safe, chewable 
ice for their patients, by grocery stores or other establishments to 
display seafood produce, and other perishable food, and for industrial 
cooling applications. The prices of commercial ice machines producing 
soft ice are often 15 to 20 percent higher than prices of ice machines 
that produce comparable quantities of cube ice per day.
    14. In response to a small but significant post-acquisition 
increase in the price of commercial machines producing cube ice, 
customers would not switch to machines that make soft ice in sufficient 
numbers so as to make such a price increase unprofitable.
    15. Customers vary greatly with respect to their daily needs of 
cubed ice, and they require machines having an appropriate range of 
capacity to meet those needs. A significant and distinct segment of 
cube ice machine customers, including sit-down and fast-food 
restaurants, bars, and convenience stores, purchase commercial machines 
capable of producing between approximately 300 pounds to 2,000 pounds 
of cube ice per day (hereinafter, ``commercial cube ice machines'').
    16. Although customers can purchase units that produce between 
approximately 50 and 300 pounds of ice per day, these machines are not 
able to meet the needs of the large majority of commercial cube ice 
machine customers. Few customers are likely to meet their needs by 
purchasing two or more smaller machines because it would be cost-
prohibitive to do so. Similarly, large units that produce over 2,000 
pounds of ice per day are not substitutes for commercial cube ice 
machines and are used by customers that need extremely large volumes of 
ice, such as convention centers, sports arenas, or bagged-ice 
producers. Because of the attributes of commercial cube ice machines, a 
small but significant post-acquisition increase in the prices of 
commercial cube ice machines would not cause customers to switch to 
other ice machines in sufficient numbers so as to make such a price 
increase unprofitable.
    17. Accordingly, the development, production, distribution, and 
sale of commercial cube ice machines is a line of commerce and a 
relevant product market within the meaning of Section 7 of the Clayton 
Act.

B. The Relevant Geographic Market

    18. Commercial ice machines are complex and break down more 
frequently than other types of food service equipment, and customers 
often need quick access to replacement machines, parts, and service. 
Sales of commercial cube ice machines in the United States by 
manufacturers are primarily made to distributors that supply equipment 
dealers and repair companies who sell to end-users. In addition, these 
distributors typically train service representatives regarding repair 
and maintenance of the commercial ice machines, as well as manage 
warranty claims. In order to be a competitive supplier of commercial 
cube ice machines within the United States, manufacturers must have an 
established network of local distribution, service, and support.
    19. A small but significant increase in the prices of commercial 
cube-ice machines would not cause a sufficient number of customers in 
the United States to turn to manufacturers of commercial cube ice 
machines that do not have an established a network of local 
distribution, service, and support in the United States. As a result, 
such manufacturers would not be able to constrain such an increase.
    20. Accordingly, the United States is a relevant geographic market 
within the meaning of Section 7 of the Clayton Act.

C. Competitive Effects

1. Concentration
    21. The market for commercial cube ice machines is highly 
concentrated. Manitowoc and Enodis are the two largest manufacturers of 
commercial cube ice machines in the United States. Only one other 
company has demonstrated the ability to produce commercial cube ice 
machines of the same quality and with similar features as the Manitowoc 
and Enodis machines and has an established a network of local 
distribution, service, and support in the United States.
    22. Manitowoc accounts for approximately 40 percent of the sales of 
commercial cube ice machines in the United States. Enodis accounts for 
approximately 30 percent of the sales of commercial cube ice machines 
in the United States.
    23. The market for commercial cube ice machines would become 
substantially more concentrated if Manitowoc were to acquire Enodis. 
Combined, Manitowoc and Enodis would account for approximately 70 
percent of the sales of commercial cube ice machines in the United 
States. Using a measure of market concentration called the Herfindahl-
Hirschman Index (``HHP'), which is explained in Appendix A, the 
proposed transaction would increase the HHI in the market for 
commercial cube ice machines by approximately 2,400 points to a post-
acquisition level of approximately 5,800. This is well in excess of 
levels that raise significant antitrust concerns.
2. The Proposed Transaction Would Harm Competition in the Market for 
Commercial Cube Ice Machines.
    24. The vigorous and aggressive competition between Manitowoc and 
Enodis in the development, production, distribution, and sale of 
commercial cube ice machines has benefitted customers. Manitowoc and 
Enodis compete directly on price, quality, and innovation. Although 
commercial cube ice machine offerings are differentiated, many 
commercial cube ice machine customers view the Manitowoc and

[[Page 61500]]

Scotsman brands as close substitutes for one another.
    25. The proposed acquisition would eliminate the competition 
between Manitowoc and Enodis and reduce the number of significant 
manufacturers of commercial cube ice machines in the United States from 
three to two. Post-merger, Manitowoc would profit by unilaterally 
raising the price (or reducing quality and innovation) of one or more 
of the brands it would own. Although Manitowoc could lose some sales in 
that brand or brands as a result of such a price increase (or decline 
in quality and innovation), many sales would be diverted to one of the 
other brands under its ownership. Capturing such diverted sales would 
make a post-merger price increase (or reduction in quality and 
innovation) profitable, when it would not have been profitable before 
the merger.
    26. The response of other commercial cube ice machines 
manufacturers in the United States would not be sufficient to constrain 
a unilateral exercise of market power by Manitowoc after the 
acquisition because, they do not have the incentive or the ability, 
individually or collectively, to do so.
    27. Therefore, the proposed acquisition would enable Manitowoc to 
exercise market power unilaterally, lessen competition in the 
development, production, distribution, and sale of commercial cube ice 
machines in the United States, and lead to higher prices, lower 
quality, and less innovation for the ultimate consumers of commercial 
cube ice machines, in violation of Section 7 of the Clayton Act.

V. Entry

    28. Successful entry or expansion into the development, production, 
distribution, and sale of commercial cube ice machines would be 
difficult, time-consuming, and costly. Firms attempting to enter or 
expand into the commercial cube ice machine market face a combination 
of distribution, reputation, and technology-related barriers to entry.
    29. Customers need quick access to replacement ice machines and 
parts, and, as a result, the three significant commercial cube ice 
machine competitors each have a nationwide network of local 
distributors. These distributors maintain sizeable inventories at 
locations across the United States so as to meet individual customer 
demands.
    30. Developing a nationwide distribution network would be difficult 
and time consuming. Finding good distributors would be difficult 
because each of the current three commercial cube ice machine 
competitors has contracted exclusively with a large majority of the 
sizeable and reputable distributors across the United States, and an 
existing or potential distributor likely would not agree to distribute 
a commercial ice machine unless it could be assured of a sufficient 
volume of sales of machines and parts to make a profit on the inventory 
and other investments it must make. Further, distributors must build 
relationships with the food service equipment dealers, air-conditioning 
and refrigeration repair companies, and others that sell commercial ice 
machines to end-users. Building such relationships would take a 
significant amount of time and effort.
    31. Reputation or brand recognition is another barrier to entry. 
Because commercial cube ice machines are so important to customers' 
operations, customers are reluctant to purchase machines from a company 
that has not established a reputation for making high-quality, durable 
machines. Establishing a track record of reliable performance takes 
years.
    32. The technology involved in developing and manufacturing a 
commercial cube ice machine is a third significant entry barrier. The 
three current competitors produce--and customers expect and demand--
commercial cube ice machines that last seven to ten years, that 
consistently produce ice that is clear and pure under conditions of 
varying water chemistries and air and water temperatures, and that meet 
federal and state energy regulations. Designing and manufacturing 
commercial cube ice machines that have these characteristics and are 
comparable in quality to the machines of the three current competitors 
would take years, even for firms that already produce other types of 
ice machines.
    33. Therefore, entry or expansion by any other firm into the 
commercial cube ice machine market would not be timely, likely, or 
sufficient to defeat an anticompetitive price increase in the event 
that Manitowoc acquires Enodis.

VI. Violations Alleged

    34. The proposed acquisition of Enodis by Manitowoc would 
substantially lessen competition and tend to create a monopoly in 
interstate trade and commerce in violation of Section 7 of the Clayton 
Act, 15 U.S.C. Sec.  18.
    35. Unless restrained, the transaction will have the following 
anticompetitive effects, among others:
    a. Actual and potential competition between Manitowoc and Enodis in 
the development, production, distribution, and sale of commercial cube 
ice machines in the United States will be eliminated;
    b. Competition generally in the development, production, 
distribution, and sale of commercial cube ice machines in the United 
States will be substantially lessened; and
    c. Prices for commercial cube ice machines in the United States 
likely will increase, the quality of commercial cube ice machines in 
the United States likely will decline, and innovation relating to 
commercial cube ice machines in the United States likely will decline.

VII. Request for Relief

    36. Plaintiff requests that:
    a. Manitowoc's proposed acquisition of Enodis be adjudged and 
decreed to be unlawful and in violation of Section 7 of the Clayton 
Act, 15 U.S.C. Sec.  18;
    b. Defendants and all persons acting on their behalf be permanently 
enjoined and restrained from consummating the proposed acquisition or 
from entering into or carrying out any contract, agreement, plan, or 
understanding, the effect of which would be to combine Manitowoc with 
the operations of Enodis;
    c. Plaintiff be awarded its costs for this action; and
    d. Plaintiff receive such other and further relief as the Court 
deems just and proper.

    Respectfully submitted,
    For Plaintiff United States of America:

Thomas O. Barnett,
Assistant Attorney General, D.C. Bar #426840.

David L. Meyer,
Deputy Assistant Attorney General, D.C. Bar #414420.

J. Robert Kramer II,
Director of Operations.

Maribeth Petrizzi,
Chief, Litigation II Section, D.C. Bar #435204.

Dorothy B. Fountain,
Assistant Chief, Litigation II Section, D.C. Bar #439469.

Helena M. Gardner,
Christine A. Hill (D.C. Bar <greek-i>461048)
Attorneys, United States Department of Justice, Antitrust Division, 
Litigation II Section, 1401 H Street, NW, Suite 3000, Washington, 
D.C. 20530, (202) 514-8518.

    Dated: October 6, 2008.

Appendix A--Herfindahl-Hirschman Index Calculations

    ''HHI'' means the Herfindahl-Hirschman Index, a commonly accepted 
measure of market concentration. It is calculated by squaring the 
market share of each firm competing in the market and then summing the 
resulting

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numbers. For example, for a market consisting of four firms with shares 
of thirty, thirty, twenty, and twenty percent, the HHI is 2600 (302 + 
302 + 202 + 202 = 2,600). The HHI takes into account the relative size 
and distribution of the firms in a market and approaches zero when a 
market consists of a large number of firms of relatively equal size. 
The HHI increases both as the number of firms in the market decreases 
and as the disparity in size between those firms increases.
    Markets in which the HHI is between 1,000 and 1,800 points are 
considered to be moderately concentrated and those in which the HHI is 
in excess of 1,800 points are considered to be highly concentrated. 
Transactions that increase the HHI by more than 100 points in highly 
concentrated markets presumptively raise antitrust concerns under the 
Horizontal Merger Guidelines issued by the U.S. Department of Justice 
and the Federal Trade Commission. See Horizontal Merger Guidelines 
Sec.  1.51.

United States District Court for the District of Columbia

United States of America, Plaintiff, v. the Manitowoc Company, Inc., 
Enodis Plc, and Enodis Corporation, Defendants

Civil Action No.:

Description: Antitrust

Judge:

Date Stamp:

Proposed Final Judgment

    Whereas, Plaintiff, the United States of America, filed its 
Complaint on October 6, 2008, the United States and defendants, The 
Manitowoc Company, Inc., Enodis plc, and Enodis Corporation, by their 
respective attorneys, have consented to the entry of this Final 
Judgment 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 law or fact;
    And whereas, defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights and assets by the defendants to 
assure that competition is not substantially lessened;
    And whereas, the United States requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And whereas, defendants have represented to the United States that 
the divestitures required below can and will be made, and that 
defendants will later raise no claim of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture 
provisions contained below;
    Now, therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is hereby ordered, adjudged, and decreed:

I. Jurisdiction

    This 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 the 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'' means the entity to whom defendants divest the 
Divestiture Business.
    B. ``Enodis'' means defendant Enodis plc, a corporation registered 
in England and Wales with its headquarters in London, England, and 
Enodis Corporation, a Delaware corporation with its headquarters in New 
Port Richey, Florida, and their successors, assigns, parents, 
subsidiaries, divisions, groups, affiliates, partnerships, and joint 
ventures, and all of their directors, officers, managers, agents, and 
employees.
    C. ``Manitowoc'' means defendant The Manitowoc Company, Inc., a 
Wisconsin corporation headquartered in Manitowoc, Wisconsin, its 
successors, assigns, parents, subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and all of their 
directors, officers, managers, agents, and employees.
    D. ``Closing Date'' means the date on which the transfer of the 
Divestiture Assets from the defendants to the Acquirer has been 
completed
    E. ``Divestiture Business'' means Enodis's entire business engaged 
in the development, production, distribution, and sale of ice machines, 
ice machine parts, and related equipment (such as ice bins, ice 
dispensers, and water filtration systems) in the United States, 
including, but not limited to:
    (1) Enodis's facility located in Fairfax, South Carolina, which is 
owned by Scotsman Group, Inc. (now known as Scotsman Group L.L.C.);
    (2) Enodis's facility located in Vernon Hills, Illinois, which is 
leased by Scotsman Group, Inc. (now known as Scotsman Group L.L.C.);
    (3) Enodis's facility located in Denver, Colorado, which is owned 
by Welbilt Corporation (now known as Enodis Corporation);
    (4) Enodis's facility located in Pomona, California, which is 
leased by Scotsman Group, Inc. (now known as Scotsman Group L.L.C.);
    (5) All tangible assets used in the Divestiture Business, 
including, but not limited to, all research and development activities; 
all manufacturing equipment, tooling and fixed assets, personal 
property, inventory, office furniture, materials, supplies, and other 
tangible property (including replacement hardware for the Vernon Hills, 
Illinois facility that defendants are required to purchase pursuant to 
Section II, Paragraph E below); all licenses, permits and 
authorizations issued by any governmental organization relating to the 
Divestiture Business; all contracts, teaming alTangements, agreements, 
leases, commitments, certifications, and understandings relating to the 
Divestiture Business, including, but not limited to, supply and 
distribution agreements; all customer lists, accounts, and credit 
records; all repair and performance records and all other records; and
    (6) All intangible assets used in the development, production, 
distribution, and sale of ice machines, ice machine parts, and related 
equipment, including, but not limited to, all contractual rights (to 
the extent assignable), except for contracts that are not primarily for 
products or services used by the Divestiture Business; all rights under 
licenses, permits and authorizations issued by any governmental 
organization relating to the Divestiture Business; patents, licenses 
and sublicenses, intellectual property, copyrights, trademarks, trade 
names (including any use of the name Scotsman or Ice-O-Matic in the 
United States), service marks, service names, technical information, 
computer software and related documentation (including replacement 
software and related documentation that defendants are required to 
purchase, and applications and data that defendants are required to 
transfer to hardware, for the Vernon Hills, Illinois facility pursuant 
to Section II, Paragraph E below), know-how, trade secrets, drawings, 
blueprints, designs, design protocols, specifications for materials, 
specifications for parts and devices, safety procedures for the 
handling of materials and substances, quality assurance and control 
procedures, design tools and simulation capability, all manuals and 
technical information defendants provide to their own

[[Page 61502]]

employees, customers, suppliers, agents or licensees; and all research 
data concerning historic and current research and development efforts 
(up to the Closing Date of the divestiture required by section IV or 
section V), including, but not limited to, designs of experiments, and 
the results of successful and unsuccessful designs and experiments; 
except that the Divestiture Business shall not include the servers, 
applications, and related documentation located at the Vernon Hills, 
Illinois facility that are not used primarily in the operation of the 
Divestiture Business, provided that within 45 days after the filing of 
the Complaint in this matter, defendants take all steps necessary 
(including the purchase of replacement hardware, the purchase, 
licensing, or provision of software and related documentation, and the 
transfer of applications and data) to ensure that all information 
technology operations used by the Divestiture Business are maintained 
at levels of functionality equivalent or superior to the levels of 
functionality that exist as of the filing of the Complaint in this 
matter. Defendants shall also take all steps necessary to purge any 
data related to the Divestiture Business from hardware and backup media 
at Vernon Hills that will not be divested under this provision. The 
Divestiture Business shall not include the tangible or intangible 
assets comprising the Enodis facility in New Port Richey, Florida, with 
the exception of the following: (1) Any software, electronically stored 
information, or documents arising from research and development 
activities related to the ice machine business; (2) any assets used 
primarily in the operation of the ice machine business, or (3) any 
assets necessary for operation of the ice machine business.
    F. ``Frimont Business'' means Enodis plc's Frimont S.p.A. business, 
which produces commercial ice machines for the European market and 
which the European Commission has required to be divested.

III. Applicability

    A. This Final Judgment applies to Manitowoc and Enodis, as defined 
above, and all other persons in active concert or participation with 
any of them who receive actual notice of this Final Judgment by 
personal service or otherwise.
    B. If, prior to complying with section IV and V of this Final 
Judgment, defendants sell or otherwise dispose of all or substantially 
all of their assets or of lesser business units that include the 
Divestiture Business, they shall require the purchaser to be bound by 
the provisions of this Final Judgment. Defendants need not obtain such 
an agreement from the Acquirer of the assets divested pursuant to this 
Final Judgment.

IV. Divestitures

    A. Defendants are ordered and directed, within 150 calendar days 
after the filing of the Complaint in this matter, or five (5) calendar 
days after notice of the entry of this Final Judgment by the Court, 
whichever is later, to divest the Divestiture Business in a manner 
consistent with this Final Judgment to a single Acquirer acceptable to 
the United States, in its sole discretion after consultation with the 
European Commission. The United States, in its sole discretion, may 
agree to one or more extensions of this tune period not to exceed sixty 
(60) calendar days in total, and shall notify the Court in such 
circumstances. Defendants agree to use their best efforts to divest the 
Divestiture Business as expeditiously as possible.
    B. In accomplishing the divestiture ordered by this Final Judgment, 
defendants promptly shall make known, by usual and customary means, the 
availability of the Divestiture Business. Defendants shall inform any 
person making inquiry regarding a possible purchase of the Divestiture 
Business that they are being divested pursuant to this Final Judgment 
and provide that person with a copy of this Final Judgment. Defendants 
shall offer to furnish to all prospective Acquirers, subject to 
customary confidentiality assurances, all information and documents 
relating to the Divestiture Business customarily provided in a due 
diligence process except such information or documents subject to the 
attorney-client privilege or work-product doctrine. Defendants shall 
make available such information to the United States at the same time 
that such information is made available to any other person.
    C. Defendants shall provide the Acquirer and the United States 
information relating to all personnel involved in development, 
production, distribution, and sales related to the Divestiture Business 
to enable the Acquirer to make offers of employment Defendants will not 
interfere with any negotiations by the Acquirer to employ any employee 
whose primary responsibility is development, production, distribution, 
and sales related to the Divestiture Business, and will not interfere 
with negotiations by the Acquirer to employ the following three Enodis 
employees who work at the Vernon Hills, Illinois facility: (1) The 
Senior Business Analyst and Developer; (2) the Unix Administrator and 
Network Manager; and (3) the Computer Operator and Systems Specialist.
    D. Defendants shall permit prospective Acquirers of the Divestiture 
Business to have reasonable access to personnel and to make inspections 
of the physical facilities of the Divestiture Business; access to any 
and all environmental, zoning, and other permit documents and 
information; and access to any and all financial, operational, or other 
documents and information customarily provided as part of a due 
diligence process.
    E. Defendants shall warrant to the Acquirer that each asset will be 
operational on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of the Divestiture Business. 
Defendants shall not exercise any contractual right to prevent, or 
otherwise attempt in any way to impede, sales or service 
representatives that represent Enodis in connection with the 
Divestiture Business from representing the Acquirer in the sale or 
servicing of products sold by the Divestiture Business.
    G. Enodis shall warrant to the Acquirer that there are no material 
defects, and Manitowoc shall warrant that it is not aware of any 
material defects, in the environmental, zoning or other permits 
pertaining to the operation of each asset, and that following the sale 
of the Divestiture Business, defendants will not undertake, directly or 
indirectly, any challenges to the environmental, zoning, or other 
permits relating to the operation of the Divestiture Business
    H. Notwithstanding anything to the contrary in this Final Judgment, 
at the option of the Acquirer, defendants shall enter into a transition 
services agreement for a limited period, with respect to information 
technology and other support services that are reasonably necessary to 
operate the Divestiture Business, with the scope, terms and conditions 
of such agreement being subject to the approval of the United States in 
its sole discretion.
    I. At the option of the Acquirer, defendants shall use their best 
efforts to procure the assignment of contractual rights referenced in 
section II, Paragraph E(6) before the Closing Date of the divestiture 
required by section IV or section V.
    J. Defendants shall not interfere with any effort by the Acquirer 
to negotiate a contract with any supplier of any product purchased by 
the Divestiture Business as of the filing of the

[[Page 61503]]

Complaint in this matter. If requested by the Acquirer:
    (1) Defendants shall provide information or documentation relating 
to controllers, compressors, condensers, valves, and copper strips, or 
any other product customized for the Divestiture Business by any 
supplier, that are purchased by the Divestiture Business under 
contracts as to which the defendants are unable to secure effective 
assignment to the Acquirer or under contracts that are not primarily 
for products or services used by the Divestiture Business; and
    (2) If the Acquirer is unable, prior to the Closing Date of the 
divestiture required by section IV or section V, to negotiate and enter 
into a contract, on commercially reasonable terms with a qualified and 
reliable supplier, providing for the Acquirer's supply of copper 
strips, or any other product for which an alternative supplier is not 
available as of the Closing Date, that have the same characteristics 
(or, so long as the product allows continuation of the Divestiture 
Business without disruption, having substantially the same 
characteristics) and are of the same, or superior, quality as those 
purchased by the Divestiture Business as of the filing of the Complaint 
in this matter, defendants shall purchase any such product on behalf of 
the Acquirer and resell it to the Acquirer at the price specified in 
defendants' supply contract as of the date of the purchase of the 
product for the Divestiture Business. This obligation shall expire upon 
the earlier of (1) the Acquirer or Divestiture Business having 
negotiated a contract of purchase of any such product meeting the 
criteria set forth above, (2) the Acquirer notifying defendants in 
writing that the Divestiture Business no longer intends to purchase any 
such product under this provision, (3) the expiration of the supply 
contract in accordance with the terms of that contract as they existed 
as of the date of the filing of the Complaint in this matter, or (4) 
one year after the date of the divestiture required under section IV or 
section V Defendants shall not discuss, provide, disclose, or otherwise 
make available, directly or indirectly, any information related to such 
purchases and resales to any defendant personnel involved in 
production, marketing, distribution, or sales of ice machines.
    K. Unless the United States otherwise consents in writing, the 
divestiture pursuant to section IV, or by trustee appointed pursuant to 
section V, of this Final Judgment, shall include the entire Divestiture 
Business, and shall be accomplished in such a way as to satisfy the 
United States, in its sole discretion, that the Divestiture Business 
can and will be used by the Acquirer as part of a viable, ongoing 
business engaged in the development, production, distribution, and sale 
of commercial cube ice machines, ice machine parts, and related 
equipment in the United States. The divestitures, whether pursuant to 
section IV or section V of this Final Judgment, (1) shall be made to 
the acquirer of the Frimont Business; (2) shall be made to an Acquirer 
that, in the United States's sole judgment, has the intent and 
capability (including the necessary managerial, operational, technical 
and financial capability) of competing effectively in the development, 
production, distribution, and sale of commercial cube ice machines, ice 
machine parts, and related equipment in the United States; and
    (3) Shall be accomplished so as to satisfy the United States, in 
its sole discretion, that none of the terms of any agreement between 
the Acquirer and defendants give defendants the ability unreasonably to 
raise the Acquirer's costs, to lower the Acquirer's efficiency, or 
otherwise to interfere in the ability of the Acquirer to compete 
effectively in the development, production, distribution, and sale of 
commercial cube ice machines, ice machine parts, and related equipment 
in the United States.

V. Appointment of Trustee

    A. If defendants have not divested the Divestiture Business within 
the time period specified in section IV, Paragraph A, defendants shall 
notify the United States of that fact in writing. Upon application of 
the United States, the Court shall appoint a trustee selected by the 
United States, in consultation with the European Commission to enable 
selection of a trustee acceptable to both the United States and the 
European Commission, and approved by the Court to effect the 
divestiture of the Divestiture Business.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell the Divestiture Business. The 
trustee shall have the power and authority to accomplish the 
divestiture to an Acquirer acceptable to the United States at such 
price and on such terms as are then obtainable upon reasonable effort 
by the trustee, subject to the provisions of sections IV, V, and VI of 
this Final Judgment, and shall have such other powers as this Court 
deems appropriate. Subject to section V, Paragraph D of this Final 
Judgment, the trustee may hire at the cost and expense of defendants 
any investment bankers, attorneys, or other agents, who shall be solely 
accountable to the trustee, reasonably necessary in the trustee's 
judgment to assist in the divestiture.
    C. Defendants shall not object to a sale by the trustee on any 
ground other than the trustee's malfeasance or that the Acquirer has 
not been approved by the European Commission. Any objection by 
defendants on the ground of the trustee's malfeasance must be conveyed 
in writing to the United States and the trustee within ten (10) 
calendar days after the trustee has provided the notice required under 
section VI; any objection by defendants based on lack of approval from 
the European Commission must be conveyed in writing to the United 
States and the trustee within two (2) business days after the European 
Commission notifies defendants that it does not approve of the proposed 
Acquirer.
    D. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the United States approves, and shall 
account for all monies derived from the sale of the assets sold by the 
trustee and all costs and expenses so incurred. After approval by the 
Court of the trustee's accounting, including fees for its services and 
those of any professionals and agents retained by the trustee, all 
remaining money shall be paid to defendants and the trust shall then be 
terminated. The compensation of the trustee and any professionals and 
agents retained by the trustee shall be reasonable in light of the 
value of the Divestiture Business and based on a fee arrangement 
providing the trustee with an incentive based on the price and terms of 
the divestiture and the speed with which it is accomplished, but 
timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and defendants 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secret or other confidential research, development, or 
commercial information. Defendants shall take no action to interfere 
with or to impede the trustee's accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent such reports

[[Page 61504]]

contain information that the trustee deems confidential, such reports 
shall not be filed in the public docket of the Court. Such reports 
shall include the name, address, and telephone number of each person 
who, during the preceding month, made an offer to acquire, expressed an 
interest in acquiring, entered into negotiations to acquire, or was 
contacted or made an inquiry about acquiring, any interest in the 
Divestiture Business, and shall describe in detail each contact with 
any such person. The trustee shall maintain full records of all efforts 
made to divest the Divestiture Business.
    G. If the trustee has not accomplished the divestiture ordered 
under this Final Judgment within six (6) months after its appointment, 
the trustee shall promptly file with the Court a report setting forth 
(1) the trustee's efforts to accomplish the required divestiture, (2) 
the reasons, in the trustee's judgment, why the required divestiture 
has not been accomplished, and (3) the trustee's recommendations. To 
the extent such reports contain information that the trustee deems 
confidential, such reports shall not be filed in the public docket of 
the Court. The trustee shall at the same time furnish such report to 
the United States which shall have the right to make additional 
recommendations consistent with the purpose of the trust. The Court 
thereafter shall enter such orders as it shall deem appropriate to 
carry out the purpose of the Final Judgment, which may, if necessary, 
include extending the trust and the term of the trustee's appointment 
by a period requested by the United States.

VI. Notice of Proposed Divestiture

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the trustee, whichever is then 
responsible for effecting the divestiture required herein, shall notify 
the United States of any proposed divestiture required by Section IV or 
V of this Final Judgment. If the trustee is responsible, it shall 
similarly notify defendants. The notice shall 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 Business, together with full details of the same.
    B. Within fifteen (15) calendar days of receipt by the United 
States of such notice, the United States may request from defendants, 
the proposed Acquirer, any other third party, or the trustee, if 
applicable, additional information concerning the proposed divestiture, 
the proposed Acquirer, and any other potential Acquirer. Defendants and 
the trustee shall furnish any additional information requested within 
fifteen (15) calendar days of the receipt of the request, unless the 
parties shall otherwise agree.
    C. Within thirty (30) calendar days after receipt of the notice or 
within twenty (20) calendar days after the United States has been 
provided the additional information requested from defendants, the 
proposed Acquirer, any third party, and the trustee, whichever is 
later, the United States shall provide written notice to defendants and 
the trustee, if there is one, stating whether or not it objects to the 
proposed divestiture. 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 Section V, 
Paragraph C of this Final Judgment. Absent written notice that the 
United States does not object to the proposed Acquirer or upon 
objection by the United States, a divestiture proposed under section IV 
or section V shall not be consummated. Upon objection by defendants 
under section V, Paragraph C, a divestiture proposed under section V 
shall not be consummated unless approved by the Court.

VII. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant to section IV or V of this Final Judgment.

VIII. Hold Separate

    Until the divestiture required by this Final Judgment has been 
accomplished, defendants shall take all steps necessary to comply with 
the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestiture 
ordered by this Court.

IX. Affidavits

    A. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, and every thirty (30) calendar days thereafter until 
the divestiture has been completed under section IV or V, defendants 
shall deliver to the United States an affidavit as to the fact and 
manner of its compliance with section IV or V of this Final Judgment. 
Each such affidavit shall include the name, address, and telephone 
number of each person who, during the preceding thirty (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, any interest in the Divestiture Business, and 
shall describe in detail each contact with any such person during that 
period. Each such affidavit shall also include a description of the 
efforts defendants have taken to solicit buyers for the Divestiture 
Business, and to provide required information to prospective Acquirers, 
including the limitations, if any, on such information. Assuming the 
information set forth in the affidavit is true and complete, any 
objection by the United States to information provided by defendants, 
including limitation on information, shall be made within fourteen (14) 
calendar days of receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to the United States an 
affidavit that describes 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. Defendants 
shall deliver to the United States an affidavit describing any changes 
to the efforts and actions outlined in defendants' earlier affidavits 
filed pursuant to this section within fifteen (15) calendar days after 
the change is implemented.
    C. Defendants shall keep all records of all efforts made to 
preserve and divest the Divestiture Business until one year after such 
divestiture has been completed.

X. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time authorized representatives of the United States 
Department of Justice Antitrust Division (``DOJ''), including 
consultants and other persons retained by the United States, shall, 
upon written request of an authorized representative of the Assistant 
Attorney General in charge of the Antitrust Division, and on reasonable 
notice to defendants, be permitted:
    (1) Access during defendants' office hours to inspect and copy, or 
at the option of the United States, to require defendants to provide 
hard copy or 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,

[[Page 61505]]

regarding such matters. The interviews shall 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 in charge of the Antitrust Division, 
defendants shall submit written reports or responses to written 
interrogatories, under oath if requested, relating to any of the 
matters contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this section shall 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), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(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,'' then the United 
States shall give defendants ten (10) calendar days notice prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding).

XI. No Reaction

    Defendants may not reacquire any part of the Divestiture Business 
during the term of this Final Judgment.

XII. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this 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.

XIII. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of its entry.

XIV. 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. Sec.  16, including making copies available to 
the public of this Final Judgment, the Competitive Impact Statement, 
and any comments thereon and the United States's responses to comments. 
Based upon the record before the Court, which includes the Competitive 
Impact Statement and any comments and response to comments filed with 
the Court, entry of this Final Judgment is in the public interest.

Date:

Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16

United States District Judge

United States District Court for the District of Columbia

United States of America, Plaintiff, v. The Manitowoc Company, 
Inc., Enodis PLC, and Enodis Corporation, Defendants

Civil Action No.:
Description: Antitrust
Judge:
Case: 1:08-cv-01 704
Assigned to: Kennedy, Henry H.
Assign. Date: 10/6/2008
Description: Antitrust

Competitive Impact Statement

    Plaintiff United States of America (``United States''), pursuant to 
Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA'' or 
``Tunney Act''), 15 U.S.C. Sec.  16(b)-(h), files this Competitive 
Impact Statement relating to the proposed Final Judgment submitted for 
entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    Defendant The Manitowoc Company, Inc. (``Manitowoc'') and Defendant 
Enodis plc entered into an agreement, dated April 14, 2008, and amended 
May 27, 2008, pursuant to which Manitowoc agreed to acquire the entire 
issued and to be issued ordinary share capital of Enodis plc. 
Manitowoc's final revised offer price was determined on June 30, 2008, 
when Manitowoc outbid a competing offer or during an auction process 
implemented by the Panel on Takeovers and Mergers of the United 
Kingdom.
    The United States filed a civil antitrust Complaint on October 6, 
2008, seeking to enjoin the proposed acquisition. The Complaint alleges 
that the likely effect of this acquisition would be to lessen 
competition substantially in the development, production, distribution, 
and sale of commercial cube ice machines in the United States in 
violation of Section 7 of the Clayton Act, 15 U.S.C. Sec.  18. This 
loss of competition likely would result in higher prices, lower 
quality, and less innovation in the commercial cube ice machine market.
    At the same time the Complaint was filed, the United States also 
filed a Hold Separate Stipulation and Order (``Hold Separate'') and 
proposed Final Judgment, which are designed to eliminate the 
anticompetitive effects of the acquisition. Under the proposed Final 
Judgment, which is explained more fully below, defendants Manitowoc, 
Enodis plc, and Enodis Corporation (Enodis plc and Enodis Corporation 
will hereinafter be collectively referred to as ``Enodis'') are 
required to divest Enodis's entire business engaged in the development, 
production, distribution, and sale of ice machines, ice machine parts, 
and related equipment in the United States (hereafter, the 
``Divestiture Business''). Under the terms of the Hold Separate, 
defendants will take certain steps to ensure that the Divestiture 
Business is operated as a competitively independent, economically 
viable and ongoing business that will remain independent and 
uninfluenced by the consummation of the acquisition, and that 
competition is maintained during the pendency of the ordered 
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 would terminate this action, 
except that the Court would retain jurisdiction to construe, modify, or 
enforce the provisions of the proposed Final Judgment and to punish 
violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction

    Defendant Manitowoc is a Wisconsin corporation with its principal 
place of business in Manitowoc, Wisconsin. It is a global industrial 
equipment company that manufacturers commercial ice machines and 
related equipment, refrigeration equipment, cranes, and ships and other 
water vessels. In 2007, Manitowoc reported total sales of approximately 
$4 billion. Manitowoc's sales of commercial ice machines and related 
equipment in the United States were approximately $152 million in 2007.
    Enodis plc is a corporation registered in the United Kingdom and 
Wales with its principal place of business in London, England. Enodis 
Corporation, a wholly owned subsidiary of Enodis plc, is a Delaware 
corporation with its

[[Page 61506]]

headquarters in New Port Richey, Florida. Through its global food 
service equipment group, Enodis designs, manufactures, and sells 
cooking, food storage and preparation equipment, and ice machines and 
related equipment. Enodis plc's revenues for its 2007 fiscal year were 
$1.6 billion. In its fiscal year 2007, Enodis plc's sales of commercial 
ice machines and related equipment in the United States were 
approximately $153 million.
    On June 30, 2008, Manitowoc offered to acquire Enodis plc for 328 
pence in cash per share, in a transaction valued at $2.7 billion 
(including assumed debt). The proposed transaction, as initially agreed 
to by defendants, would substantially lessen competition in the 
development, production, distribution, and sale of commercial cube ice 
machines in the United States. This transaction is the subject of the 
Complaint and proposed Final Judgment filed by the United States on 
October 6, 2008.

B. The Competitive Effects of the Transaction

1. Commercial Ice Machines Generally
    Restaurants, convenience stores, hotels, and other businesses need 
significant volumes of ice. These businesses usually meet their needs 
by using commercial ice-making machines located at their places of 
business. These machines make ice by a continuous cycle of condensation 
and expansion of a refrigerant through a network of tubing. As the 
refrigerant converts from a compressed liquid state to become a gas, 
heat is drawn from a component called an evaporator. Water running over 
the evaporator surface freezes to form ice that is then harvested by 
processes specific to the type of ice produced by the machine.
2. Relevant Product Market
    The type of ice machine purchased by a customer depends on the type 
and volume of ice needed. Commercial ice machines are designed to 
produce either hard ice or soft ice. Hard ice melts slowly and has a 
higher density and less surface area than soft ice. Hard ice is most 
often shaped as cubes or dice, half-cubes or half-dice, octagons, or 
crescent cubes, and is commonly referred to as cube ice. Most customers 
that serve ice in beverages prefer cube ice because it melts slowly and 
thus minimizes deterioration in the flavor of the beverage.
    Soft ice refers to small nuggets or flakes of ice that have a lower 
density and more surface area than cube ice and, therefore, melt more 
quickly than cube ice. Soft ice is used in hospitals, which demand a 
safe, chewable ice for their patients, by grocery stores or other 
establishments to display seafood, produce, and other perishable food, 
and for industrial cooling applications. The prices of commercial ice 
machines producing soft ice are often 15 to 20 percent higher than 
prices of ice machines that produce comparable quantities of cube ice 
per day.
    The Complaint alleges that in response to a small but significant 
post-acquisition increase in the price of commercial machines producing 
cube ice, customers would not switch to machines that make soft ice in 
sufficient numbers so as to make such a price increase unprofitable.
    Customers vary greatly with respect to their daily needs of cubed 
ice, and they require machines having an appropriate range of capacity 
to meet those needs. A significant and distinct segment of cube ice 
machine customers, including sit-down and fast-food restaurants, bars, 
and convenience stores, purchase commercial machines capable of 
producing between approximately 300 pounds to 2,000 pounds of cube ice 
per day (hereinafter, ``commercial cube ice machines''). Although 
customers can purchase units that produce between approximately 50 and 
300 pounds of ice per day, these machines are not able to meet the 
needs of the large majority of commercial cube ice machine customers. 
Few customers are likely to meet their needs by purchasing two or more 
smaller machines because it would be cost-prohibitive to do so. 
Similarly, large units that produce over 2,000 pounds of ice per day 
are not substitutes for commercial cube ice machines and are used by 
customers that need extremely large volumes of ice, such as convention 
centers, sports arenas, or bagged-ice producers.
    The Complaint alleges that because of the attributes of commercial 
cube ice machines, a small but significant post-acquisition increase in 
the prices of commercial cube ice machines would not cause customers to 
switch to other ice machines in sufficient numbers so as to make such a 
price increase unprofitable, and, accordingly, the development, 
production, distribution, and sale of commercial cube ice machines is a 
line of commerce and a relevant product market:
3. Relevant Geographic Market
    Commercial ice machines are complex and break down more frequently 
than other types of food service equipment, and customers often need 
quick access to replacement machines, parts, and service. Sales of 
commercial cube ice machines in the United States by manufacturers are 
primarily made to distributors that supply equipment dealers and repair 
companies who sell to end-users. In addition, these distributors 
typically train service representatives regarding repair and 
maintenance of the commercial ice machines, as well as manage warranty 
claims. In order to be a competitive supplier of commercial cube ice 
machines within the United States, manufacturers must have an 
established network of local distribution, service, and support.
    The Complaint alleges that a small but significant increase in the 
prices of commercial cube ice machines would not cause a sufficient 
number of customers in the United States to turn to manufacturers of 
commercial cube ice machines that do not have an established a network 
of local distribution, service, and support in the United States. As a 
result, such manufacturers would not be able to constrain such an 
increase. Accordingly, the United States is a relevant geographic 
market.
4. Competitive Effects
    The market for commercial cube ice machines is highly concentrated, 
and would become substantially more so if Manitowoc were to acquire 
Enodis. Manitowoc and Enodis are the two largest manufacturers of 
commercial cube ice machines in the United States. Manitowoc accounts 
for approximately 40 percent of the sales of commercial cube ice 
machines in the United States, and Enodis accounts for approximately 30 
percent of such sales. Only one other company has demonstrated the 
ability to produce commercial cube ice machines of the same quality and 
with similar features as the Manitowoc and Enodis machines and has an 
established network of local distribution, service, and support in the 
United States.
    Combined, Manitowoc and Enodis would account for approximately 70 
percent of the sales of commercial cube ice machines in the United 
States. Using a measure of market concentration called the Herfindahl-
Hirscbman Index (``HHI''), the proposed transaction would increase the 
HHI in the market for commercial cube ice machines by approximately 
2,400 points to a post-acquisition level of approximately 5,500. This 
is well in excess of levels that raise significant antitrust concerns.
    The vigorous and aggressive competition between Manitowoc and 
Enodis in the development, production, distribution, and sale of 
commercial cube ice machines has benefited customers. Manitowoc and 
Enodis

[[Page 61507]]

compete directly on price, quality, and innovation. Although commercial 
cube ice machine offerings are differentiated, many commercial cube ice 
machine customers view the Manitowoc and Scotsman brands as close 
substitutes for one another.
    The proposed acquisition would eliminate the competition between 
Manitowoc and Enodis and reduce the number of significant manufacturers 
of commercial cube ice machines in the United States from three to two. 
The Complaint alleges that post-merger, Manitowoc would profit by 
unilaterally raising the price (or reducing quality and innovation) of 
one or more of the brands it would own. Although Manitowoc could lose 
some sales in that brand or brands as a result of such a price increase 
(or decline in quality and innovation), many sales would be diverted to 
one of the other brands under its ownership. Capturing such diverted 
sales would make a post-merger price increase (or reduction in quality 
and innovation) profitable, when it would not have been profitable 
before the merger. The response of other commercial cube ice machines 
manufacturers in the United States would not be sufficient to constrain 
a unilateral exercise of market power by Manitowoc after the 
acquisition because they do not have the incentive or the ability, 
individually or collectively, to do so. Therefore, the Complaint 
alleges, the proposed acquisition would enable Manitowoc to exercise 
market power unilaterally, lessen competition in the development, 
production, distribution, and sale of commercial cube ice machines in 
the United States, and lead to higher prices, lower quality, and less 
innovation for the ultimate consumers of commercial cube ice machines.
    Further, successful entry or expansion into the development, 
production, distribution, and sale of commercial cube ice machines 
would be difficult, time-consuming, and costly. Firms attempting to 
enter or expand into the commercial cube ice machine market face a 
combination of distribution, reputation, and technology-related 
barriers to entry.
    As noted above, customers need quick access to replacement ice 
machines and parts, and, as a result, the three significant commercial 
cube ice machine competitors each have a nationwide network of local 
distributors. These distributors maintain sizeable inventories at 
locations across the United States so as meet individual customer 
demands. The Complaint alleges that developing a nationwide 
distribution network would be difficult and time consuming. Finding 
good distributors would be difficult because each of the current three 
commercial cube ice machine competitors has contracted exclusively with 
a large majority of the sizeable and reputable distributors across the 
United States, and an existing or potential distributor likely would 
not agree to distribute a commercial ice machine unless it could be 
assured of a sufficient volume of sales of machines and parts to make a 
profit on the inventory and other investments it must make. Further, 
distributors must build relationships with the food service equipment 
dealers, air-conditioning and refrigeration repair companies, and 
others that sell commercial ice machines to end-users. Building such 
relationships would take a significant amount of time and effort.
    The Complaint alleges that reputation or brand recognition is 
another barrier to entry. Because commercial cube ice machines are so 
important to customers' operations, customers are reluctant to purchase 
machines from a company that has not established a reputation for 
making high-quality, durable machines. Establishing a track record of 
reliable performance takes years.
    The Complaint alleges that the technology involved in developing 
and manufacturing a commercial cube ice machine is a third significant 
entry barrier. The three current competitors produce--and customers 
expect and demand--commercial cube ice machines that last seven to ten 
years, that consistently produce ice that is clear and pure under 
conditions of varying water chemistries and air and water temperatures, 
and that meet federal and state energy regulations. Designing and 
manufacturing commercial cube ice machines that have these 
characteristics and are comparable in quality to the machines of the 
three current competitors would take years, even for firms that already 
produce other types of ice machines.
    The Complaint alleges that as a result of these barriers to entry, 
entry or expansion by any other firm into the commercial cube ice 
machine market would not be timely, likely, or sufficient to defeat an 
anticompetitive price increase in the event that Manitowoc acquires 
Enodis.

III. Explanation of the Proposed Final Judgment

    The divestiture requirement of the proposed Final Judgment will 
eliminate the likely anticompetitive effects of the acquisition in the 
development, production, distribution, and sale of commercial cube ice 
machines in the United States by establishing a new, independent, and 
economically viable competitor. The proposed Final Judgment requires 
defendants, within 150 days after the filing of the Complaint, or five 
(5) days after notice of the entry of the Final Judgment by the Court, 
whichever is later, to divest, as a viable ongoing business, the 
Divestiture Business, which comprises Enodis's entire business engaged 
in the development, production, distribution, and sale of ice machines 
ice machine parts, and related equipment in the United States. The 
assets must be divested in such a way as to satisfy the United States 
in its sole discretion that the operations can arid will be operated by 
the purchaser as a viable, ongoing business that can compete 
effectively in the relevant market. Defendants must take all reasonable 
steps necessary to accomplish the divestiture quickly and shall 
cooperate with prospective purchasers.
    In the event that defendants do not accomplish the divestiture 
within the periods prescribed in the proposed Final Judgment, the Final 
Judgment provides that the Court will appoint a trustee selected by the 
United States to effect the divestiture. If a trustee is appointed, the 
proposed Final Judgment provides that defendants will pay all costs and 
expenses of the trustee. The 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 his or 
her appointment becomes effective, the trustee will file monthly 
reports with the Court and the United States setting forth his or her 
efforts to accomplish the divestiture. At the end of six months, if the 
divestiture has not been accomplished, the trustee and the United 
States will make recommendations to the Court. which shall enter such 
orders as appropriate, in order to carry out the purpose of the trust, 
including extending the trust or the term of the trustee's appointment.
    Described below are select provisions that have been included in 
the proposed Final Judgment to address special circumstances that exist 
in this case. Some provisions address complications arising from 
certain overlaps in divestitures required by the United States and the 
European Commission. Others address the fact that certain parts of the 
Divestiture Business must be severed from Enodis's other operations.

Selected Provisions of the Proposed Final Judgment

    Enodis has information technology assets located at a data center 
within its Vernon Hills, Illinois facility that

[[Page 61508]]

supports various Enodis businesses, including the Divestiture Business. 
Definition II(D) of the proposed Final Judgment addresses the need to 
sever these joint information technology assets, excluding from the 
list of assets that form the Divestiture Business all hardware, 
software, and related documentation (``IT assets'') at this data center 
that is shared between the Divestiture Business and the other Enodis 
businesses. Defendants are required to divest IT assets used only by 
the Divestiture Business, and to purchase replacement IT assets for 
installation at Vernon Hills so that all information technology 
operations used by the Divestiture Business will be maintained at 
levels of functionality equivalent or superior to those which exist as 
of the filing of the Complaint. Definition II(D) also requires that any 
data or information related to the Divestiture Business will be purged 
from hardware and backup media that will not be divested. Section IV, 
Paragraph C of the proposed Final Judgment addresses the Acquirer's 
right to offer employment to three Enodis employees who provide 
information technology services and support to various Enodis 
businesses (including the Divestiture Business) from the Vernon Hills 
data center, but whose responsibilities do not relate primarily to the 
Divestiture Business as of the filing of the Complaint. These three 
employees are qualified to provide services and support that will 
enable the Acquirer to successfully operate the Vernon Hills data 
center post-divestiture.
    The European Commission has required defendants to divest most of 
Enodis's worldwide ice machine assets, including the Divestiture 
Business. As a result of the practical difficulties of splitting 
between two acquirers rights to certain intellectual property shared by 
the Divestiture Business and Enodis plc's European Frimont Business, 
section IV, paragraph K of the proposed Final Judgment requires 
defendants to sell the Divestiture Business to the acquirer of the 
Frimont Business. Because the United States and the European Commission 
must approve the same acquirer, section IV, paragraph A of the proposed 
Final Judgment provides that the United States will consult with the 
European Commission in exercising its review of defendants' sale of the 
Divestiture Business in a manner consistent with the proposed Final 
Judgment, to an acquirer acceptable to the United States in its sole 
discretion. As noted above, if the defendants do not divest the 
Divestiture Business within the required time period, the Court, upon 
application of the United States, is to appoint a trustee to complete 
the divestiture. Because the European Commission also requires 
selection of a trustee if the divestiture is not completed within a 
certain time, section V, paragraph A of the proposed Final Judgment 
provides that the United States shall select a trustee after 
consultation with the European Commission to ensure selection of a 
trustee acceptable to both the United States and the European 
Commission.
    The United States has agreed to a longer-than-usual divestiture 
period also because of the overlapping divestitures required by the 
European Commission. Not only must an Acquirer be approved by the 
Division and the European Commission, but any potential Acquirer likely 
must file notices with, and obtain antitrust clearances from, multiple 
European Union member countries (or file an application seeking the 
jurisdiction of the European Commission) in connection with the 
Acquirer's purchase of the Divestiture Business and other Enodis ice 
machine business assets worldwide. section IV, paragraph A of the 
proposed Final Judgment thus requires defendants to divest the 
Divestiture Business within 150 calendar days after the filing of the 
Complaint, or five (5) calendar days after notice of the entry of the 
final judgment by the court, whichever is later.\1\
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    \1\ Quick divestitures have the clear benefits of restoring 
premerger competition to the marketplace as soon as possible, and of 
mitigating the potential dissipation of asset value associated with 
a lengthy divestiture process. Achieving these benefits are of as 
much importance in this matter as in any other, and section IV, 
paragraph A of the proposed Final Judgment requires defendants to 
use their best efforts to divest the Divestiture Business as 
expeditiously as possible. In this matter, and in most other 
matters, the United States. in its sole discretion, may agree to one 
or more extensions of the divestiture period not to exceed 60 
calendar days in total.
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    Although contracts used in the Divestiture Business generally must 
be divested, certain contracts that are unassignable or are not 
primarily used by the Divestiture Businesses are not required to be 
divested. Section P1, paragraph J of the proposed Final Judgment 
addresses the Acquirer's need to find a source for certain input 
components typically purchased under such contracts. Subsection (1) 
requires that defendants provide the Acquirer information or documents 
relating to any product that is customized for the Divestiture Business 
and purchased under any such contract so the Acquirer has the 
information it may need to negotiate its own supply contract. 
Subsection (2) addresses the possibility that the Acquirer may be 
unable to negotiate its own contracts to purchase at commercially 
reasonable terms certain products for which alternative suppliers are 
not available as of the time of the divestiture. Subsection (2) 
requires defendants for a prescribed period to purchase and resell any 
such product to the Acquirer at the price specified in defendants' 
current supply contract. To prevent the sharing of information that 
could foster coordination, defendants are prohibited from disclosing, 
directly or indirectly, information concerning such purchases and 
resales to defendant personnel involved in production, marketing, 
distribution, or sales of commercial cube ice machines. The divestiture 
provisions of the proposed Final Judgment will eliminate the 
anticompetitive effects of the acquisition in the development, 
production, distribution, and sale of commercial cube ice machines in 
the United States.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent private lawsuit that may be brought against defendants.

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 sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Final Judgment. Any person who wishes to comment should do so 
within sixty (60) days of the date of publication of this

[[Page 61509]]

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 United States Department of Justice, which 
remains free to withdraw its consent to the proposed Final Judgment at 
any time prior to the Court's entry of judgment. The comments and the 
response of the United States will be filed with the Court and 
published in the Federal Register.
    Written comments should be submitted to: Maribeth Petrizzi, Chief, 
Litigation II Section, Antitrust Division, United States Department of 
Justice, 1401 H St., NW., Suite 3000, 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

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against defendants. The 
United States could have continued the litigation and sought 
preliminary and permanent injunctions against Manitowoc's acquisition 
of Enodis plc. The United States is satisfied, however, that the 
divestiture of assets described in the proposed Final Judgment will 
preserve competition in the development, production, distribution, and 
sale of commercial cube ice machines in the United States. Thus, the 
proposed Final Judgment would achieve 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, while allowing the non-problematic aspects of the 
transaction to go forward.

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. Sec.  16(e)(l). In making that 
determination, the court, in accordance with the statute as amended in 
2004, is required to consider:
    (A) The competitive impact of such judgment, including termination 
of alleged violations, provisions for enforcement and modification, 
duration of relief sought, anticipated effects of alternative remedies 
actually considered, whether its terms are ambiguous, and any other 
competitive considerations bearing upon the adequacy of such judgment 
that the court deems necessary to a determination of whether the 
consent judgment is in the public interest; and
    (B) The impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and individuals 
alleging specific injury from the violations set forth in the complaint 
including consideration of the public benefit, if any, to be derived 
from a determination of the issues at trial.
    15 U.S.C. Sec.  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); see generally 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) 
(assessing public interest standard under the Tunney Act).\2\
---------------------------------------------------------------------------

    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    As the United States 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 set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37,40 (D.D.C. 2001). Courts have held that:

[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. The court's 
role in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

    Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\3\ 
In determining whether a proposed settlement is in the public interest, 
a district court ``must accord deference to the government's 
predictions about the efficacy of its remedies, and may not require 
that the remedies perfectly match the alleged violations.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 
(noting the need for courts to be ``deferential to the government's 
predictions as to the effect of the proposed remedies''); United States 
v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) 
(noting that the court should grant due respect to the United States' 
prediction as to the effect of proposed remedies, its perception of the 
market structure, and its views of the nature of the case).
---------------------------------------------------------------------------

    \3\ Cf BNS, 858 F.2d at 464 (holding that the court's ``ultimate 
authority under the [APPA] is limited to approving or disapproving 
the consent decree''); United States v. Gillette Co., 406 F. Supp. 
713, 716 (D. Mass. 1975) (noting that, in this way, the court is 
constrained to ``look at the overall picture not hypercritically, 
nor with a microscope, but with an artist's reducing glass''). See 
generally Microsoft, 56 F.3d at 1461 (discussing whether ``the 
remedies [obtained in the decree are] so inconsonant with the 
allegations charged as to fall outside of the `reaches of the public 
interest' '').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be approved 
even if it falls short of the remedy the court would impose on its own, 
as long as it falls within the range of acceptability or is `within the 
reaches of public interest.' '' United States v. Am. Tel. & Tel. Co., 
552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United 
States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd 
sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also 
United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 
1985) (approving the consent decree even though the court would have 
imposed a greater remedy). To meet this standard, the United States 
``need only provide a factual basis for

[[Page 61510]]

concluding that the settlements are reasonably adequate remedies for 
the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    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. 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. Id. 
at 1459-60. As this Court recently confirmed in SBC Communications, 
courts ``cannot look beyond the complaint in making the public interest 
determination unless the complaint is drafted so narrowly as to make a 
mockery of judicial power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to preserve 
the practical benefits of utilizing consent decrees in antitrust 
enforcement, adding 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). The language written into the statute 
what Congress intended when it 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 Senator Tunney). Rather, the procedure for the public interest 
determination is left to the discretion of the court, with the 
recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp.2d at 11.\4\
---------------------------------------------------------------------------

    \4\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) 
Sec.  61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of 
corrupt failure of the government to discharge its duty, the Court, 
in making its public interest finding, should * * * carefully 
consider the explanations of the government in the competitive 
impact statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 
(1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'').
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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: October 6, 2008.

    Respectfully submitted,

Helena M. Gardner, Esquire,
Christine Hill, Esquire
(D.C. Bar #461048), United States Department of Justice, Antitrust 
Division, Litigation II Section, 1401 H Street, NW., Suite 3000, 
Washington, DC 20530, (202) 514-8518.

[FR Doc. E8-24293 Filed 10-15-08; 8:45 am]
BILLING CODE 4410-11-M