Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 70555 

phases of the project is due upon the 

2024 completion date for Phase II. KC 

has requested this Amendment because 

some or all of this additional capacity 

may become unnecessary. In exchange 

for deferring Phase I of this project, KC 

has agreed to accelerate implementation 

of several other components of the 

injunctive relief required by the Consent 

Decree. 

The publication of this notice opens 

a period for public comment on the 

Consent Decree. Comments should be 

addressed to the Assistant Attorney 

General, Environment and Natural 

Resources Division, and should refer to 

United States v. Kansas City, Civil 

Action No. 4:10–cv–0497–GAF. DJ 

Reference Number 90–5–1–1–06438/1. 

All comments must be submitted no 

later than thirty (30) days after the 

publication date of this notice. 

Comments may be submitted either by 

email or by mail: 

To submit 

comments: Send them to: 

By email ......... pubcommentees.enrd@usdoj.gov. 

By mail ........... Assistant Attorney General, 

U.S. DOJ–ENRD, P.O. 

Box 7611, Washington, 

DC 20044–7611. 

During the public comment period, 

Consent Decree may be examined and 

downloaded at this Justice Department 

Web site: http://www.usdoj.gov/enrd/

Consent_Decrees.html. We will provide 

a paper copy of the Consent Decree 

upon written request and payment of 

reproduction costs. Please mail your 

request and payment to: Consent Decree 

Library, U.S. DOJ—ENRD, P.O. Box 

7611, Washington, DC 20044–7611. 

Please enclose a check or money order 

for $ 2.75 (25 cents per page 

reproduction cost) payable to the United 

States Treasury. 

Susan M. Akers, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2014–27957 Filed 11–25–14; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—PXI Systems Alliance, 

Inc. 

Notice is hereby given that, on 

October 28, 2014, pursuant to Section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’), PXI 

Systems Alliance, Inc. has filed written 

notifications simultaneously with the 

Attorney General and the Federal Trade 

Commission disclosing changes in its 

membership. The notifications were 

filed for the purpose of extending the 

Act’s provisions limiting the recovery of 

antitrust plaintiffs to actual damages 

under specified circumstances. 

Specifically, Alazar Technologies, Inc., 

Pointe-Claire, Quebec City, CANADA, 

has been added as a party to this 

venture. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in this group research 

project remains open, and PXI Systems 

Alliance, Inc. intends to file additional 

written notifications disclosing all 

changes in membership. 

On November 22, 2000, PXI Systems 

Alliance, Inc. filed its original 

notification pursuant to Section 6(a) of 

the Act. The Department of Justice 

published a notice in the Federal 

Register pursuant to Section 6(b) of the 

Act on March 8, 2001 (66 FR 13971). 

The last notification was filed with 

the Department on August 8, 2014. A 

notice was published in the Federal 

Register pursuant to Section 6(b) of the 

Act on September 12, 2014 (79 FR 

54745). 

Patricia A. Brink, 

Director of Civil Enforcement, Antitrust 

Division. 

[FR Doc. 2014–27988 Filed 11–25–14; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—Sematech, Inc. D/B/A 

International Sematech 

Notice is hereby given that, on 

October 30, 2014, pursuant to Section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’), 

Sematech, Inc. d/b/a International 

Sematech (‘‘SEMATECH’’) has filed 

written notifications simultaneously 

with the Attorney General and the 

Federal Trade Commission disclosing 

changes in its membership. The 

notifications were filed for the purpose 

of extending the Act’s provisions 

limiting the recovery of antitrust 

plaintiffs to actual damages under 

specified circumstances. Specifically, 

TowerJazz Panasonic Semiconductor 

Co., Ltd., Uozo City, JAPAN, has been 

added as a party to this venture. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in this group research 

project remains open, and SEMATECH 

intends to file additional written 

notifications disclosing all changes in 

membership. 

On April 22, 1988, SEMATECH filed 

its original notification pursuant to 

Section 6(a) of the Act. The Department 

of Justice published a notice in the 

Federal Register pursuant to Section 

6(b) of the Act on May 19, 1988 (53 FR 

17987). 

The last notification was filed with 

the Department on August 1, 2014. A 

notice was published in the Federal 

Register pursuant to Section 6(b) of the 

Act on September 3, 2014 (79 FR 

52364). 

Patricia A. Brink, 

Director of Civil Enforcement, Antitrust 

Division. 

[FR Doc. 2014–27986 Filed 11–25–14; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States V. Flakeboard America 

Limited, Celulosa Arauco Y 

Constitucio ́n, S.A., Inversiones 

Angelini Y Compan ̃ ́ıa, Limitada, and 

Sierrapine; Proposed Final Judgment 

and Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation and 

Competitive Impact Statement have 

been filed with the U.S. District Court 

for the Northern District of California in 

United States of America v. Flakeboard 

America Limited, Celulosa Arauco y 

Constitucio ́n, S.A., Inversiones Angelini 

y Compan ̃ı ́a, Limitada and SierraPine, 

Civil Action No. 3:14–cv–04949. On 

November 7, 2014, the United States 

filed a Complaint alleging that 

Flakeboard, Arauco, and SierraPine 

coordinated to close SierraPine’s 

Springfield, Oregon particleboard mill 

and move the mill’s customers to 

Flakeboard before receiving federal 

antitrust approval under Section 7A of 

the Clayton Act, 15 U.S.C. 18a, also 

commonly known as the Hart–Scott– 

Rodino Antitrust Improvements Act of 

1976 (‘‘Section 7A’’ or ‘‘HSR Act’’). The 

Complaint alleges that this coordination 

constituted a per se unlawful agreement 

between competitors to reduce output 

and allocate customers in violation of 

mstockstill on DSK4VPTVN1PROD with NOTICES

70556 Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 

Section 1 of the Sherman Act, 15 U.S.C. 

1, and a premature transfer of beneficial 

ownership to Flakeboard in violation of 

the HSR Act. 

The United States and the defendants 

have reached a proposed settlement that 

eliminates the need for a trial in this 

case. The proposed Final Judgment, 

filed the same time as the Complaint, 

remedies the Sherman Act violation by 

enjoining the defendants from reaching 

similar anticompetitive agreements with 

competitors and requiring Flakeboard to 

disgorge $1.15 million, the approximate 

amount of profits that Flakeboard 

illegally obtained from the closure of the 

Springfield mill. To resolve the HSR Act 

violation, the proposed Final Judgment 

requires the companies to pay a 

combined $3.8 million in civil 

penalties. 

Copies of the Complaint, proposed 

Final Judgment 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 Northern District of 

California. Copies of these materials 

may be obtained from the Antitrust 

Division upon request and payment of 

the copying fee set by Department of 

Justice regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, including the name of the 

submitter, and responses thereto, will be 

posted on the U.S. Department of 

Justice, Antitrust Division’s internet 

Web site, filed with the Court and, 

under certain circumstances, published 

in the Federal Register. Comments 

should be directed to Peter Mucchetti, 

Chief, Litigation I Section, Antitrust 

Division, Department of Justice, 450 

Fifth Street NW., Suite 4100, 

Washington, DC 20530 (telephone: 202– 

307–0001). 

Patricia A. Brink, 

Director of Civil Enforcement. 

Amy R. Fitzpatrick (D.C. Bar #458680) 

David Altschuler (D.C. Bar #983023) 

Bindi Bhagat (PA Bar #308788) 

Barry Creech (D.C. Bar #421070) 

Claudia H. Dulmage (OH Bar #0026543) 

Scott I. Fitzgerald (WA Bar #39716) 

Kara Kuritz (D.C. Bar #991349) 

John Lohrer (D.C. Bar #438989) 

Jeffrey Vernon (D.C. Bar #1009690) 

U.S. Department of Justice, Antitrust 

Division, 450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, Phone: (202) 532– 

4558, Facsimile: (202) 307–5802, Email: 

amy.fitzpatrick@usdoj.gov 

[Additional counsel listed on signature page] 

Attorneys for Plaintiff United States of 

America 

United States District Court for the 

Northern District of California San 

Francisco Division 

United States of America, Plaintiff, v. 

Flakeboard America Limited, Celulosa 

Arauco y Constitucio ́n, S.A., Inversiones 

Angelini y Compan ̃ ı ́a Limitada, and 

Sierrapine, Defendants. 

Case No. 3:14–cv–4949 

Complaint 

The United States of America brings 

this civil antitrust action to challenge 

unlawful conduct by Flakeboard 

America Limited; its parent companies, 

Celulosa Arauco y Constitucio ́n, S.A., 

and Inversiones Angelini y Compan ̃ı ́a 

Limitada; and SierraPine that occurred 

while the U.S. Department of Justice 

was reviewing Flakeboard’s proposed 

acquisition of certain assets from 

SierraPine. 

I. Nature of the Action 

1. On January 13, 2014, Flakeboard 

and SierraPine executed an asset 

purchase agreement in which 

Flakeboard agreed to acquire 

SierraPine’s particleboard mills in 

Springfield, Oregon, and Martell, 

California, and a medium-density 

fiberboard (MDF) mill in Medford, 

Oregon. The total value of the proposed 

transaction was approximately $107 

million, plus a variable amount for 

inventory. 

2. SierraPine’s Springfield and Martell 

particleboard mills competed directly 

with Flakeboard’s particleboard mill in 

Albany, Oregon. Particleboard is an 

unfinished wood product that is widely 

used in countertops, shelving, low-end 

furniture, and other finished products. 

Both companies also compete in the sale 

of MDF, a higher-end wood product that 

is widely used in furniture, kitchen 

cabinets, and decorative mouldings. 

3. The transaction exceeded 

thresholds established by Section 7A of 

the Clayton Act, 15 U.S.C. 18a, also 

commonly known as the Hart–Scott– 

Rodino Antitrust Improvements Act of 

1976, as amended (‘‘Section 7A’’ or 

‘‘HSR Act’’). Consequently, the HSR Act 

required that the defendants make 

premerger notification filings with the 

Federal Trade Commission and 

Department of Justice and observe a 

waiting period before Flakeboard 

obtained beneficial ownership of 

SierraPine’s business. The waiting 

period seeks to ensure that the parties 

to a proposed transaction are preserved 

as independent entities while the 

reviewing agency—here, the Department 

of Justice—investigates the transaction 

and determines whether to challenge it. 

4. Instead of preserving SierraPine as 

an independent business, however, 

Flakeboard, Arauco, and SierraPine 

coordinated during the HSR waiting 

period to close SierraPine’s Springfield 

mill and move the mill’s customers to 

Flakeboard. The mill was permanently 

shut down on March 13, 2014, months 

before the HSR waiting period expired. 

On September 30, 2014, Flakeboard and 

SierraPine abandoned their proposed 

transaction in response to concerns 

expressed by the Department of Justice 

about the transaction’s likely 

anticompetitive effects in the sale of 

MDF. 

5. The defendants’ coordination to 

close Springfield and move the mill’s 

customers to Flakeboard constituted a 

per se unlawful agreement between 

competitors to reduce output and 

allocate customers in violation of 

Section 1 of the Sherman Act, 15 U.S.C. 

1, and prematurely transferred 

operational control of SierraPine’s 

business to Flakeboard during the HSR 

waiting period in violation of Section 

7A of the Clayton Act, 15 U.S.C. 18a. 

II. Jurisdiction, Venue, and Interstate 

Commerce 

6. The United States brings this action 

under Section 4 of the Sherman Act, 15 

U.S.C. 4, seeking relief for the violation 

of Section 1 of the Sherman Act, 15 

U.S.C. 1, and under Section 7A of the 

Clayton Act, 15 U.S.C. 18a, to recover 

civil penalties for the violation of the 

HSR Act. This Court has jurisdiction 

over this action and the defendants 

under Section 7A(g) of the Clayton Act, 

15 U.S.C. 18a(g), 28 U.S.C. 1331, 

1337(a), 1345, and 1355. 

7. The defendants are engaged in, and 

their activities substantially affect, 

interstate commerce. 

8. The defendants have stipulated to 

venue and personal jurisdiction in this 

District. 

III. The Defendants 

9. Flakeboard America Limited is a 

Delaware corporation with its U.S. 

headquarters in Fort Mill, South 

Carolina. Flakeboard and its related 

entities own numerous mills in North 

America that produce particleboard and 

MDF, including a particleboard mill in 

Albany, Oregon. 

10. Flakeboard’s parent company is 

Celulosa Arauco y Constitucio ́n, S.A., a 

Chilean company headquartered in 

Santiago, Chile, that also produces 

particleboard and other products. 

Arauco oversees Flakeboard’s 

operations in North America. 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 70557 

11. Inversiones Angelini y Compan ̃ı ́a 

Limitada is a Chilean corporation 

headquartered in Santiago, Chile. 

Inversiones Angelini is a holding 

company and Flakeboard’s ultimate 

parent entity, as defined by the 

Premerger Notification Rules, 16 CFR 

800 et seq. Inversiones Angelini is also 

the ultimate parent entity of Arauco. 

12. SierraPine is a California limited 

partnership with its headquarters in 

Roseville, California. SierraPine owns 

an operating particleboard mill in 

Martell, California; the closed 

particleboard mill in Springfield, 

Oregon; a closed particleboard mill in 

Adel, Georgia; and an operating MDF 

mill in Medford, Oregon. 

IV. The HSR Act and the Asset 

Purchase Agreement 

13. The HSR Act imposes notification 

and waiting-period requirements on 

certain transactions that result in an 

acquiring person holding assets or 

voting securities valued above certain 

thresholds. Section 801(c)(1) of the 

Premerger Notification Rules, 16 CFR 

800 et seq., defines ‘‘hold’’ to mean to 

have ‘‘beneficial ownership.’’ One way 

that an acquiring person may 

prematurely obtain beneficial 

ownership of assets or voting securities 

it plans to acquire is by obtaining 

operational control of the acquired 

person’s business before the end of the 

HSR waiting period. This conduct, 

sometimes referred to as ‘‘gun jumping,’’ 

violates Section 7A. 

14. Section 7A(g)(1) of the Clayton 

Act, 15 U.S.C. 18a(g)(1), states that any 

person, or any officer, director, or 

partner thereof, who fails to comply 

with any provision of the HSR Act is 

liable to the United States for a civil 

penalty for each day during which the 

person is in violation. For the period 

relevant to the Complaint, the maximum 

civil penalty was $16,000 per defendant, 

per day, according to the Debt 

Collection Improvement Act of 1996, 

Pub. L. 104–134, § 31001(s) (amending 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990, 28 U.S.C. 2461 

note), and Federal Trade Commission 

Rule 1.98, 16 CFR 1.98, 61 FR 54548 

(Oct. 21, 1996). 

15. Flakeboard’s proposed acquisition 

of SierraPine’s mills was subject to the 

HSR Act. On January 22, 2014, 

Flakeboard’s ultimate parent entity, 

Inversiones Angelini, and SierraPine 

submitted premerger notification filings 

to the antitrust agencies as required by 

Section 7A. The HSR waiting period 

expired on August 27, 2014, 30 days 

after Flakeboard and SierraPine certified 

compliance with the Antitrust 

Division’s requests for additional 

information. 

16. Before negotiating the proposed 

acquisition, SierraPine had no plans to 

shut down the Springfield mill. But 

during negotiations, Flakeboard made 

clear that it did not intend to operate 

Springfield after the transaction closed. 

Flakeboard insisted that SierraPine 

close the mill because Flakeboard did 

not want to manage the shutdown, and 

its parent company, Arauco, was 

concerned that its reputation might be 

harmed if it announced the closure. 

17. Accordingly, SierraPine agreed in 

the asset purchase agreement (APA) to 

‘‘take such actions as are reasonably 

necessary to shut down and close all 

business operations at its Springfield, 

Oregon facility five (5) days prior to the 

Closing.’’ The APA further provided 

that ‘‘in no event shall [SierraPine] be 

required to shut down or close its 

business operations at its Springfield, 

Oregon facility’’ until ‘‘[a]ny required 

waiting periods and approvals . . . 

under applicable Antitrust Law shall 

have expired or been terminated.’’ 

Consistent with these provisions, when 

Flakeboard and SierraPine executed the 

APA, they anticipated that SierraPine 

would announce and implement the 

Springfield closure immediately after 

the HSR waiting period expired, but 

before the transaction was 

consummated. 

V. The Defendants’ Unlawful Conduct 

18. Despite the defendants’ intentions 

under the APA, they subsequently 

entered into a series of agreements and 

took other actions during the HSR 

waiting period to close SierraPine’s 

Springfield mill and move the mill’s 

customers to Flakeboard—conduct that 

together constituted an unlawful 

agreement between competitors and 

prematurely transferred operational 

control of SierraPine’s business to 

Flakeboard. 

19. On January 14, 2014, the day after 

executing the APA, the defendants 

announced Flakeboard’s proposed 

acquisition of SierraPine’s mills. 

SierraPine did not announce the 

Springfield closure at that time because 

it intended to continue operating 

Springfield if the acquisition was not 

consummated and knew that employees 

and customers would start leaving the 

mill as soon as news of the planned 

closure became public. 

20. Within two days of the 

transaction’s announcement, however, a 

labor issue arose that SierraPine 

believed would likely require it to 

publicly disclose the Springfield closure 

earlier than planned, while the 

transaction was still being reviewed by 

the Department of Justice. SierraPine 

immediately informed Flakeboard that 

the labor issue would require them to 

‘‘share the pending news on Springfield 

. . . before we have early determination 

on [the] HSR.’’ The following week, 

SierraPine and Flakeboard discussed the 

Springfield closure announcement, its 

timing, and its ramifications. During 

these discussions, the companies 

considered the possibility that 

Flakeboard might waive the provision 

requiring SierraPine to close the mill, 

which they expected would avert the 

need to announce the Springfield 

closure during the HSR waiting period. 

21. After consulting with Arauco, 

however, Flakeboard informed 

SierraPine that it would not waive the 

Springfield closure provision. As a 

result, the companies understood that 

SierraPine would announce the 

Springfield closure during the HSR 

waiting period and that the mill would 

close within weeks of that 

announcement, without regard to 

whether the HSR waiting period had 

expired and regardless of whether the 

underlying transaction was ultimately 

consummated. Consistent with this 

understanding, at the end of January, 

Flakeboard and SierraPine agreed on the 

content and timing of a press release 

announcing that Springfield would 

‘‘cease operations in an orderly manner 

over the next few weeks’’ and that the 

mill would be ‘‘permanent[ly] clos[ed].’’ 

SierraPine issued the press release on 

February 4, 2014, and ceased 

production at Springfield on March 13, 

2014, months before the HSR waiting 

period expired. 

22. Flakeboard and SierraPine also 

agreed to transition Springfield’s 

customers to Flakeboard’s competing 

mill in Albany, Oregon. In the period 

leading up to the Springfield closure 

announcement, SierraPine gave 

Flakeboard competitively sensitive 

information about Springfield’s 

customers—including the name, contact 

information, and types and volume of 

products purchased by each Springfield 

customer—and Flakeboard distributed 

this information to its sales employees. 

SierraPine also agreed to Flakeboard’s 

request to delay the issuance of the 

press release from February 3 to 

February 4 so that Flakeboard could 

better position its sales personnel to 

contact Springfield’s customers. 

23. In addition, at Flakeboard’s 

request, SierraPine instructed its own 

sales employees to inform Springfield 

customers following the Springfield 

closure announcement that Flakeboard 

wanted to serve their business and 

would match SierraPine’s prices. Also at 

Flakeboard’s request, SierraPine relayed 

mstockstill on DSK4VPTVN1PROD with NOTICES

70558 Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 

assurances of future employment with 

Flakeboard to key SierraPine sales 

employees so that they would direct 

SierraPine’s Springfield customers to 

Flakeboard. A top Flakeboard sales 

manager underscored the purpose of 

these employment assurances: ‘‘Once 

that [Springfield closure] announcement 

is made the 74 [million square feet of 

particleboard] from Springfield becomes 

fair game. I . . . want to make sure that 

the SierraPine sales group will be trying 

to direct the business to their new 

employer and to [Flakeboard’s Albany 

mill].’’ 

24. After the Springfield closure 

announcement, SierraPine did not 

compete for most of Springfield’s 

customers from its remaining 

particleboard mill in Martell, California, 

but instead directed these customers to 

Flakeboard, telling them that Flakeboard 

could meet their needs and would 

honor SierraPine’s prices. As SierraPine 

informed one Springfield customer, 

‘‘We will try and transition all business 

to [Flakeboard’s] Albany [mill].’’ 

25. With SierraPine’s assistance, 

Flakeboard successfully secured a 

substantial amount of Springfield’s 

business, including a significant number 

of new customers that Flakeboard had 

not previously served and additional 

business from customers that 

Springfield and Flakeboard’s Albany 

mill both previously served. The 

increased sales volumes from 

SierraPine’s Springfield customers 

significantly increased Flakeboard’s 

profits. 

26. Although Flakeboard and 

SierraPine subsequently abandoned 

their transaction on September 30, 2014, 

SierraPine’s Springfield mill remains 

closed. Virtually all of its employees 

have voluntarily left or been terminated. 

Reopening the Springfield mill would 

be costly and time-consuming, and 

SierraPine has no plans to do so. 

VI. Violations Alleged 

First Cause of Action (Violation of 

Section 1 of the Sherman Act) 

27. Plaintiff realleges and incorporates 

the allegations in paragraphs 1 through 

26 of this Complaint. 

28. Flakeboard and SierraPine are 

horizontal competitors in the sale of 

particleboard. 

29. Flakeboard, Arauco, and 

SierraPine’s coordination to close 

SierraPine’s particleboard mill in 

Springfield, Oregon, and to move the 

mill’s customers to Flakeboard 

constituted a contract, combination, or 

conspiracy in restraint of trade that was 

unlawful under Section 1 of the 

Sherman Act, 15 U.S.C. 1. Their 

unlawful agreement was not reasonably 

necessary to achieve the procompetitive 

benefits of any legitimate business 

collaboration. 

30. Flakeboard, Arauco, and 

SierraPine’s actions to close the 

Springfield mill and move its customers 

to Flakeboard were undertaken without 

any assurance that their transaction 

would be consummated and constituted 

an agreement between competitors to 

reduce output and allocate customers 

that is per se unlawful under Section 1 

of the Sherman Act. 

Second Cause of Action (Violation of 

Section 7A of the Clayton Act) 

31. Plaintiff realleges and incorporates 

the allegations in paragraphs 1 through 

26 of this Complaint. 

32. Flakeboard’s acquisition of 

SierraPine’s mills was subject to Section 

7A’s premerger notification and waitingperiod requirements. 

33. Flakeboard, after contracting to 

acquire SierraPine’s assets under the 

APA, exercised operational control, and 

therefore obtained beneficial ownership, 

over SierraPine’s business in violation 

of the HSR Act by: 

(a) Coordinating with SierraPine to 

close the Springfield mill without 

regard to the HSR waiting period; 

(b) Coordinating with SierraPine to 

move Springfield’s customers to 

Flakeboard during the HSR waiting 

period, by, among other things: 

(i) obtaining competitively sensitive 

information from SierraPine, including 

a customer list with the name, contact 

information, and types and volume of 

products purchased by each Springfield 

customer, and distributing this 

confidential information to Flakeboard 

sales employees; 

(ii) delaying the Springfield closure 

announcement so that Flakeboard could 

better position its sales team to contact 

Springfield’s customers; 

(iii) directing SierraPine sales 

employees to inform Springfield 

customers that Flakeboard sought their 

business and would match SierraPine’s 

prices; and 

(iv) coordinating with SierraPine to 

offer assurances of future employment 

with Flakeboard to key SierraPine sales 

employees so that they would direct 

Springfield’s customers to Flakeboard. 

34. Through these actions, Flakeboard 

exercised operational control, and 

therefore obtained beneficial ownership, 

of SierraPine’s business before the HSR 

waiting period expired. 

35. The defendants were continuously 

in violation of Section 7A from on or 

about January 17, 2014, until the HSR 

waiting period expired on August 27, 

2014. Thus, Inversiones Angelini, as 

Flakeboard’s ultimate parent entity 

(together with Arauco and Flakeboard) 

and SierraPine are each liable to the 

United States for a maximum civil 

penalty of $16,000 per day. 

VII. Request for Relief 

36. The United States requests that 

this Court: 

(a) adjudge and decree that 

Flakeboard, Arauco, and SierraPine 

engaged in an agreement, combination, 

or conspiracy that was unlawful under 

Section 1 of the Sherman Act; 

(b) award the United States such other 

relief, including equitable monetary 

relief, as the nature of this case may 

require and as is just and proper to 

prevent the recurrence of the alleged 

violation of Section 1 of the Sherman 

Act and to dissipate the anticompetitive 

effects of the violation; 

(c) adjudge and decree that the 

defendants violated the HSR Act and 

were in violation of the HSR Act during 

the period beginning on or about 

January 17, 2014, and ending on August 

27, 2014; 

(d) order that Inversiones Angelini 

(together with Arauco and Flakeboard) 

and SierraPine each pay to the United 

States an appropriate civil penalty as 

provided under Section 7A(g)(1) of the 

Clayton Act, 15 U.S.C. 18(a)(g)(1), and 

16 CFR 1.98(a); and 

(e) award the United States the costs 

of this action. 

Dated: November 7, 2014 

Respectfully Submitted, 

For Plaintiff United States of America. 

/s/William J. Baer 

William J. Baer 

Assistant Attorney General for Antitrust 

Leslie C. Overton 

Deputy Assistant Attorney General 

David I. Gelfand 

Deputy Assistant Attorney General 

Patricia A. Brink 

Director of Civil Enforcement 

Mark W. Ryan 

Director of Litigation 

Peter J. Mucchetti 

Chief, Litigation I 

Ryan M. Kantor 

Assistant Chief, Litigation I 

/s/Amy R. Fitzpatrick 

Amy R. Fitzpatrick* 

David Altschuler 

Bindi Bhagat 

Barry Creech 

Claudia H. Dulmage 

Scott I. Fitzgerald 

Kara Kuritz 

John Lohrer 

Jeffrey Vernon 

Antitrust Division, U.S. Department of 

Justice, 450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, Phone: (202) 532– 

4558, Facsimile: (202) 307–5802, Email: 

amy.fitzpatrick@usdoj.gov 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 70559 

Attorneys for the United States 

* Attorney of Record 

Certificate of Service 

I certify that on November 7, 2014, I 

electronically filed this Complaint with 

the Clerk of Court using the CM/ECF 

system. A copy has also been sent via 

email to: 

Counsel for Flakeboard America 

Limited, Celulosa Arauco y 

Constitucio ́n, S.A., and Inversiones 

Angelini y Compan ̃ı ́a Limitada: 

Andrew M. Lacy, Simpson, Thacher & 

Bartlett LLP, 1155 F Street NW., 

Washington, DC 20004, Phone: (202) 

636–5505, Email: alacy@stblaw.com 

Counsel for SierraPine: Amanda P. 

Reeves, Latham & Watkins LLP, 555 

Eleventh Street NW., Suite 1000, 

Washington, DC 20004, Phone: (202) 

637–2183, Email: amanda.reeves@

lw.com 

/s/ Amy R. Fitzpatrick 

Amy R. Fitzpatrick 

Antitrust Division, U.S. Department of 

Justice, 450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, Phone: (202) 532– 

4558, Facsimile: (202) 307–5802, Email: 

amy.fitzpatrick@usdoj.gov 

Amy R. Fitzpatrick (D.C. Bar #458680) 

David Altschuler (D.C. Bar #983023) 

Bindi Bhagat (PA Bar #308788) 

Scott I. Fitzgerald (WA Bar #39716) 

U.S. Department of Justice, Antitrust 

Division, 450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, Phone: (202) 532– 

4558, Facsimile: (202) 307–5802, Email: 

amy.fitzpatrick@usdoj.gov 

Attorneys for Plaintiff United States of 

America 

United States District Court for the 

Northern District of California 

San Francisco Division 

United States of America, Plaintiff, v. 

Flakeboard America Limited, Celulosa 

Arauco y Constitucio ́n, S.A., Inversiones 

Angelini y Compan ̃ı ́a Limitada, and 

Sierrapine, Defendants. 

Case No. 3:14–cv–4949 

Competitive Impact Statement 

The United States of America files 

this Competitive Impact Statement 

relating to the proposed Final Judgment 

submitted for entry in this antitrust 

proceeding, as required by Section 2(b) 

of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney 

Act’’), 15 U.S.C. 16(b)–(h). 

I. Nature and Purpose of the Proceeding 

On November 7, 2014, the United 

States filed a two-count Complaint 

against Flakeboard America Limited; its 

parent companies, Celulosa Arauco y 

Constitucio ́n, S.A., and Inversiones 

Angelini y Compan ̃ı ́a Limitada; and 

SierraPine for engaging in unlawful 

conduct while Flakeboard’s proposed 

transaction with SierraPine was under 

antitrust review. 

Flakeboard and SierraPine compete in 

the sale of particleboard, an unfinished 

wood product that is widely used in 

countertops, shelving, and other 

finished products. In January 2014, 

Flakeboard agreed to acquire three 

competing mills from SierraPine—two 

particleboard mills in Springfield, 

Oregon, and Martell, California, and a 

medium-density fiberboard (MDF) mill 

in Medford, Oregon. This transaction 

exceeded the thresholds established by 

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

§ 18a, also commonly known as the 

Hart–Scott–Rodino Antitrust 

Improvements Act of 1976, as amended 

(‘‘Section 7A’’ or ‘‘HSR Act’’), and 

therefore required the defendants to 

notify the federal antitrust agencies of 

their proposed acquisition and observe 

a waiting period before Flakeboard 

could take control of SierraPine’s 

business. This waiting period seeks to 

ensure that the parties to a proposed 

transaction are preserved as 

independent entities while the 

reviewing agency—here, the Department 

of Justice—investigates the transaction 

and determines whether to challenge it. 

Instead of preserving SierraPine as an 

independent business, however, the 

Complaint alleges that Flakeboard, 

Arauco, and SierraPine coordinated 

during the HSR waiting period to close 

SierraPine’s Springfield mill and move 

the mill’s customers to Flakeboard. The 

mill was permanently shut down on 

March 13, 2014, months before the HSR 

waiting period expired. On September 

30, 2014, Flakeboard and SierraPine 

abandoned their proposed transaction in 

response to concerns expressed by the 

Department of Justice about the 

transaction’s likely anticompetitive 

effects in the sale of MDF. The 

Complaint alleges that the defendants’ 

conduct constituted a per se unlawful 

agreement between competitors to 

reduce output and allocate customers in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. § 1, and a premature 

transfer of beneficial ownership to 

Flakeboard in violation of Section 7A of 

the Clayton Act, 15 U.S.C. § 18a. 

The United States and the defendants 

have reached a proposed settlement that 

eliminates the need for a trial in this 

case. The proposed Final Judgment 

remedies the Sherman Act violation by 

enjoining Flakeboard, Arauco, and 

SierraPine from reaching similar 

anticompetitive agreements with 

competitors and requiring Flakeboard to 

disgorge $1.15 million of ill-gotten 

gains, the approximate amount of profits 

that Flakeboard illegally obtained by 

coordinating with SierraPine to close 

the Springfield mill and move the mill’s 

customers to Flakeboard. To resolve the 

HSR Act violation, the proposed Final 

Judgment requires Inversiones Angelini 

(together with Flakeboard and Arauco) 

and SierraPine to each pay a civil 

penalty of $1.9 million, for a total of 

$3.8 million. 

The United States and the 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 any violations. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendants and the Proposed 

Acquisition 

Flakeboard America Limited is a 

Delaware corporation with its U.S. 

headquarters in Fort Mill, South 

Carolina. Flakeboard and its related 

entities own numerous mills in North 

America that produce particleboard and 

MDF, including a particleboard mill in 

Albany, Oregon, that competes against 

SierraPine. 

Flakeboard’s parent company is 

Celulosa Arauco y Constitucio ́n, S.A., a 

Chilean company headquartered in 

Santiago, Chile, that also produces 

particleboard and other products. 

Arauco oversees Flakeboard’s 

operations in North America. 

Inversiones Angelini y Compan ̃ı ́a 

Limitada is a Chilean corporation 

headquartered in Santiago, Chile. 

Inversiones Angelini is a holding 

company and Flakeboard’s ultimate 

parent entity, as defined by the 

Premerger Notification Rules, 16 CFR 

§ 800 et seq. Inversiones Angelini is also 

the ultimate parent entity of Arauco. 

SierraPine is a California limited 

partnership with its headquarters in 

Roseville, California. SierraPine owns 

an operating particleboard mill in 

Martell, California; the closed 

particleboard mill in Springfield, 

Oregon; a closed particleboard mill in 

Adel, Georgia; and an operating MDF 

mill in Medford, Oregon. 

On January 13, 2014, Flakeboard and 

SierraPine entered into an asset 

purchase agreement (APA) in which 

Flakeboard agreed to acquire 

SierraPine’s Medford, Martell, and 

Springfield mills for approximately 

$107 million, plus a variable amount for 

inventory. Before negotiating the APA, 

SierraPine had no plans to shut down 

the Springfield mill. During 

mstockstill on DSK4VPTVN1PROD with NOTICES

70560 Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 

negotiations, however, Flakeboard made 

clear that it did not intend to operate 

Springfield after the transaction closed 

and insisted that SierraPine close the 

mill before the transaction was 

consummated. Thus, as part of the APA, 

SierraPine agreed to ‘‘take such actions 

as are reasonably necessary to shut 

down and close all business operations 

at its Springfield, Oregon facility’’ 

before the transaction closed. When the 

defendants executed the APA, they 

anticipated that SierraPine would 

announce and implement the 

Springfield mill closure immediately 

after the HSR waiting period expired, 

but before the transaction was 

consummated. 

B. The Defendants’ Unlawful Conduct 

Despite the defendants’ intentions 

under the APA, they subsequently 

entered into a series of agreements and 

took other actions during the HSR 

waiting period to close SierraPine’s 

Springfield mill and move the mill’s 

customers to Flakeboard. 

The Complaint alleges that on January 

14, 2014, the day after executing the 

APA, the defendants announced the 

proposed transaction. At that time, 

SierraPine did not announce the 

Springfield closure because it intended 

to continue operating Springfield if the 

acquisition were not consummated and 

knew that employees and customers 

would start leaving the mill as soon as 

news of the planned closure became 

public. 

Within two days of the transaction’s 

announcement, however, a labor issue 

arose that SierraPine believed would 

likely require it to publicly announce 

the Springfield closure earlier than 

planned, while the transaction was still 

being reviewed by the Department of 

Justice. SierraPine immediately 

informed Flakeboard, notifying 

Flakeboard’s president and an executive 

at Arauco on January 17, 2014, that ‘‘we 

need to have a discussion about [the] 

Springfield announcement’’ because the 

labor issue would force the companies 

to ‘‘share the pending news on 

Springfield’’ in early February ‘‘before 

we have early determination on [the] 

HSR.’’ The following week, SierraPine 

and Flakeboard discussed the 

Springfield closure announcement, its 

timing, and its ramifications. During 

these discussions, the companies 

considered the possibility that 

Flakeboard might waive the provision 

requiring SierraPine to close the mill, 

which they expected would avert the 

need to announce the Springfield 

closure during the HSR waiting period. 

After consulting with Arauco, 

however, Flakeboard informed 

SierraPine that it would not waive the 

Springfield closure provision. The 

Complaint alleges that as a result, the 

companies understood that SierraPine 

would announce the Springfield closure 

during the HSR waiting period and that 

the mill would close within weeks of 

that announcement, without regard to 

whether the HSR waiting period had 

expired and regardless of whether the 

underlying transaction was ultimately 

consummated. Consistent with this 

understanding, at the end of January, 

Flakeboard and SierraPine agreed on the 

content and timing of a press release 

announcing that Springfield would be 

permanently closed. SierraPine issued 

the press release on February 4, 2014, 

and ceased production at Springfield on 

March 13, 2014, months before the HSR 

waiting period expired. 

The Complaint further alleges that 

Flakeboard and SierraPine agreed to 

transition Springfield’s customers to 

Flakeboard’s competing mill in Albany, 

Oregon, in several ways. First, in the 

period leading up to the Springfield 

closure announcement, SierraPine gave 

Flakeboard competitively sensitive 

information about Springfield’s 

customers—including the name, contact 

information, and types and volume of 

products purchased by each Springfield 

customer—and Flakeboard distributed 

this information to its sales employees. 

Second, SierraPine agreed to 

Flakeboard’s request to delay the 

issuance of the press release from 

February 3 to February 4 so that 

Flakeboard could better position its 

sales personnel to contact Springfield’s 

customers. 

Third, at Flakeboard’s request, 

SierraPine instructed its own sales 

employees to inform Springfield 

customers following the Springfield 

closure announcement that Flakeboard 

wanted to serve their business and 

would match SierraPine’s prices. 

Fourth, also at Flakeboard’s request, 

SierraPine relayed assurances of future 

employment with Flakeboard to key 

SierraPine sales employees so that they 

would direct SierraPine’s Springfield 

customers to Flakeboard. 

As a result of these actions, the 

Complaint alleges that Flakeboard 

successfully secured a substantial 

amount of Springfield’s business, 

including a significant number of new 

customers that Flakeboard had not 

previously served. The increased sales 

volumes from SierraPine’s Springfield 

customers significantly increased 

Flakeboard’s profits. 

Today, although Flakeboard and 

SierraPine abandoned their proposed 

transaction, the Springfield mill remains 

closed and virtually all of its employees 

have voluntarily left or been terminated. 

Furthermore, as the Complaint alleges, 

reopening the Springfield mill would be 

costly and time-consuming, and 

SierraPine has no plans to do so. 

C. The Defendants’ Antitrust Violations 

1. Section 1 of the Sherman Act 

Section 1 of the Sherman Act 

prohibits any ‘‘contract, combination 

. . . or conspiracy . . . in restraint of 

trade.’’ This prohibition remains in 

force during the premerger period: The 

pendency of a proposed transaction 

does not excuse transacting parties of 

their obligations to compete 

independently. Thus, until a transaction 

is consummated, a party that 

coordinates with its rival on price, 

output, or other competitively 

significant matters may violate Section 

1. 

Here, Flakeboard, Arauco, and 

SierraPine’s coordination to close the 

Springfield mill and move the mill’s 

customers to Flakeboard constituted an 

agreement between competitors that is 

per se unlawful. See National Collegiate 

Athletic Ass’n v. Board of Regents, 468 

U.S. 85, 100 (1984) (holding that the per 

se rule ordinarily applies to agreements 

to reduce output); Palmer v. BRG of 

Georgia, Inc., 498 U.S. 46, 49 (1990) 

(affirming the per se rule for horizontal 

market allocations). The defendants’ 

agreement eliminated the Springfield 

mill’s output and allocated the mill’s 

customers. This type of agreement, 

because of its ‘‘pernicious effect on 

competition and lack of any redeeming 

virtue,’’ is presumed to be unreasonable 

without an elaborate inquiry into its 

precise harm or potential business 

justification. Northern Pac. Ry. v. United 

States, 356 U.S. 1, 5 (1958). 

Furthermore, no special 

circumstances justified the unlawful 

agreement or exempted it from per se 

treatment. This agreement was not 

reasonably necessary to achieve any 

procompetitive benefits of the 

transaction, and therefore does not 

qualify as an ancillary restraint. The 

agreement also was undertaken without 

any assurance that the transaction 

would be consummated. 

2. The HSR Act (Section 7A of the 

Clayton Act) 

The Complaint also alleges that 

Flakeboard exercised operational 

control over SierraPine’s business 

during the HSR waiting period in 

violation of the HSR Act. Because the 

payment of civil penalties under the 

HSR Act is not subject to the Tunney 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 70561 

1See, e.g., United States v. Berkshire Hathaway 

Inc., 2014–2 Trade Cas. (CCH) ¶ 78,870 (D.D.C.) 

(entering a consent judgment for civil penalties 

under the HSR Act without employing Tunney Act 

procedures); United States v. Barry Diller, 2013–1 

Trade Cas. (CCH) ¶ 78,446 (D.D.C.) (same); United 

States v. MacAndrews & Forbes Holdings, Inc., 

2013–1 Trade Cas. (CCH) ¶ 78,443 (D.D.C.) (same). 

Act,1 the civil-penalties component of 

the proposed Final Judgment is not 

open to public comment. Nevertheless, 

this Competitive Impact Statement 

explains the Antitrust Division’s views 

regarding the defendants’ violations of 

the HSR Act. 

Before the HSR Act was enacted, the 

DOJ and the FTC were often forced to 

investigate anticompetitive mergers that 

had already been consummated without 

public notice. In those situations, the 

agencies’ only recourse was to sue to 

unwind the parties’ merger, and the 

merged firm often delayed the litigation 

so that years elapsed before adjudication 

and attempted relief. During this 

extended time, the loss of competition 

continued to harm consumers, and if the 

court ultimately found that the merger 

was illegal, effective relief was often 

impossible to achieve. 

The HSR Act addressed these 

problems and strengthened antitrust 

enforcement by providing the antitrust 

agencies the ability to investigate certain 

large acquisitions before they are 

consummated. In particular, the HSR 

Act prohibits certain acquiring parties 

from undertaking their acquisition 

before a prescribed waiting period 

expires or is terminated. Throughout the 

waiting period, the parties must remain 

separate and preserve their status as 

independent economic actors. Indeed, 

the legislative history of the HSR Act 

underscores Congress’s desire that 

competition existing before the merger 

should be maintained to the extent 

possible pending review by the antitrust 

agencies and the court. 

Instead of preserving SierraPine as an 

independent entity, however, the 

Complaint alleges that Flakeboard 

exercised operational control over 

SierraPine’s business during the HSR 

waiting period in several ways. First, 

Flakeboard coordinated with SierraPine 

to close the Springfield mill without 

regard to the HSR waiting period. 

Flakeboard then coordinated with 

SierraPine to move Springfield’s 

customers to Flakeboard during the HSR 

waiting period. For example, as the 

Complaint alleges: 

• Flakeboard obtained competitively 

sensitive information from SierraPine, 

including a customer list with the name, 

contact information, and types and 

volume of products purchased by each 

Springfield customer, and distributed 

that information to Flakeboard sales 

employees. 

• Flakeboard had SierraPine delay the 

Springfield closure announcement so 

that Flakeboard could better position its 

sales team to contact Springfield’s 

customers. 

• Flakeboard directed SierraPine 

sales employees to inform Springfield 

customers that Flakeboard sought their 

business and would match SierraPine’s 

prices. 

• Flakeboard coordinated with 

SierraPine to offer assurances of future 

employment with Flakeboard to key 

SierraPine sales employees so that they 

would direct Springfield’s customers to 

Flakeboard. 

These actions undermined the 

purpose of the HSR Act, which is 

designed to allow the antitrust agencies 

to conduct an investigation before the 

parties have combined their operations 

or transferred significant assets. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment 

remedies the Sherman Act violation by 

requiring disgorgement and injunctive 

relief and addresses the HSR Act 

violation by requiring monetary civil 

penalties. Section XII of the proposed 

Final Judgment states that these 

provisions will expire ten years after 

entry of the Final Judgment. 

A. Disgorgement 

1. Disgorgement Is an Appropriate 

Remedy 

The proposed Final Judgment requires 

Flakeboard to disgorge the profits that it 

earned as a result of its unlawful 

agreement with SierraPine. 

Disgorgement is an equitable remedy 

that seeks to ‘‘deprive a wrongdoer of 

unjust enrichment.’’ SEC v. Platforms 

Wireless Intern. Corp., 617 F.3d 1072, 

1096 (9th Cir. 2010) (citation omitted). 

Disgorgement also protects the public by 

deterring illegal conduct. See, e.g., SEC 

v. First Pac. Bancorp, 142 F.3d 1186, 

1191 (9th Cir. 1998). The amount of 

disgorgement ‘‘should include all gains 

flowing from the illegal activities,’’ and 

‘‘need be only a reasonable 

approximation of profits causally 

connected to the violation.’’ Platforms 

Wireless, 617 F.3d at 1096 (internal 

quotation marks and citations omitted). 

In United States v. Keyspan Corp., 763 

F. Supp. 2d 633, 638–41 (S.D.N.Y. 

2011), the court held that the 

government may seek disgorgement in 

antitrust suits brought (like this one) 

under the Sherman Act. The court in 

Keyspan concluded that disgorgement 

under the Sherman Act was within a 

district court’s inherent equitable 

powers and fully consistent with 

‘‘established principles of antitrust 

law.’’ Id. at 639–40. In reaching this 

conclusion, the court observed that 

‘‘there appear[ed] to be little 

disagreement among commentators 

about the propriety of disgorgement as 

an antitrust remedy,’’ citing to the 

leading antitrust law treatise’s 

conclusion that ‘‘equity relief may 

include, where appropriate, the 

disgorgement of improperly obtained 

gains.’’ Id. at 640 (quoting Areeda & 

Hovenkamp, Antitrust Law ¶ 325a (3d 

ed. 2007)). 

Furthermore, both the Ninth Circuit 

and this Court have affirmed the district 

court’s authority to award disgorgement 

to governmental entities enforcing 

federal statutory provisions. See, e.g., 

First Pac. Bancorp, 142 F.3d at 1191–92 

(authorizing disgorgement for violations 

of the securities laws); FTC v. Neovi, 

Inc., 604 F.3d 1150, 1159–60 (9th Cir. 

2010) (authorizing disgorgement under 

the FTC Act); FTC v. Silueta Distribs., 

1995 WL 215313, at *7–8 (N.D. Cal. Feb. 

24, 1995) (same). And the Ninth Circuit 

has emphasized the need for ‘‘broad 

equity powers to enforce the antitrust 

laws.’’ United States v. Coca-Cola 

Bottling Co. of Los Angeles, 575 F.2d 

222, 229 (9th Cir. 1978). 

2. Disgorgement Is Appropriate in This 

Case 

Here, disgorgement is necessary to 

ensure that Flakeboard is not unjustly 

enriched by the profits that it earned by 

coordinating with SierraPine to close 

the Springfield mill and move the mill’s 

customers to Flakeboard. As the 

Complaint alleges, Flakeboard secured a 

substantial amount of Springfield’s 

business for its Albany mill, including 

new customers that Albany had not 

previously served and additional sales 

from customers that were previously 

purchasing from both mills. From this 

business, Flakeboard earned 

approximately $1.15 million in illegally 

obtained profits during the six-month 

period leading up to this settlement, 

which is equal to the disgorgement 

amount required by the proposed Final 

Judgment. 

Disgorgement is also appropriate here 

because the injunctive relief that would 

most likely restore competition— 

requiring the mill to be reopened—is 

impractical. As alleged in the 

Complaint, the Springfield mill has 

been closed for several months and 

virtually all of its employees have either 

left the mill or been terminated. 

Furthermore, in this case, no other 

remedy would be as effective to fulfill 

the goal of the Sherman Act to ‘‘prevent 

mstockstill on DSK4VPTVN1PROD with NOTICES

70562 Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 

2 Id.; see also Pub. L. 104–134 § 31001(s) (Debt 

Collection Improvement Act of 1996); 16 C.F.R. 

1.98(a) (increasing maximum penalty to $16,000 per 

day). 

and restrain’’ antitrust violations. 15 

U.S.C. 4. Disgorgement will deter 

Flakeboard and others from 

participating in anticompetitive conduct 

in the context of a pending transaction, 

regardless of whether the transaction is 

subject to the HSR Act. 

B. Injunctive Provisions 

1. Prohibited Conduct 

Section VII.A of the proposed Final 

Judgment is designed to prevent future 

Sherman Act violations during a 

pending transaction, regardless of 

whether the transaction is subject to the 

HSR Act. Under this provision, 

Flakeboard, Arauco, and SierraPine may 

not reach agreements while a 

transaction is pending that affect price 

or output for competing products in the 

United States or that allocate markets or 

customers. The prohibited agreements 

also include those involving disclosure 

of competitively sensitive information, 

except as allowed in Section VIII, or the 

closure of a production facility that 

produces a competing product without 

giving prior written notice to and 

obtaining written approval from the 

United States. Although an agreement to 

close a production facility before a 

transaction is consummated may be 

permissible under certain 

circumstances, this notice-and-approval 

provision ensures that, in light of the 

defendants’ conduct, they will not take 

additional actions that reduce 

competition or interfere with a potential 

antitrust review. 

2. Permitted Conduct 

Section VIII of the proposed Final 

Judgment identifies conduct that is 

permitted by the Final Judgment. 

Sections VIII.A and VIII.B ensure that 

the decree will not be interpreted to 

forbid certain ‘‘conduct of business’’ 

covenants that are common in merger 

agreements. For example, Section VIII.A 

allows agreements requiring a seller to 

operate its business in the ordinary 

course of business. And Section VIII.B 

allows for ‘‘material adverse change’’ 

provisions, which give the acquiring 

firm certain rights to prevent a to-beacquired firm from materially changing 

how it conducts its business. These 

common provisions are intended to 

protect a transaction’s value and prevent 

a to-be-acquired firm from wasting 

assets. 

Section VIII.C recognizes a narrow 

exception to Section VII.A.3’s 

prohibition on exchanging 

competitively sensitive information. As 

a general rule, competitors should not 

obtain prospective, customer-specific 

price information before consummating 

a transaction because it could be used 

to harm competition if the transaction is 

abandoned. Nevertheless, a prospective 

acquirer may need information about 

pending contracts to properly value a 

business during the due-diligence 

process. 

Section VIII.E clarifies that the 

proposed Final Judgment does not 

prohibit the defendants from entering 

into buyer-seller agreements that would 

have been lawful independent of the 

proposed transaction. 

3. Compliance and Inspection 

Sections IX and X of the proposed 

Final Judgment establish procedures to 

ensure that the defendants comply with 

the antitrust laws and the terms of the 

Final Judgment. Section IX requires 

Flakeboard and SierraPine to maintain 

an antitrust compliance program, which 

includes naming an antitrust 

compliance officer responsible for 

supervising compliance with the Final 

Judgment. The compliance officer must 

distribute a copy of the Final Judgment 

to the company’s officers, directors, and 

any other employees responsible for 

mergers and acquisitions, and must 

provide a copy of the Final Judgment to 

any potential partners to a merger or 

acquisition. In addition, Arauco must 

distribute a copy of the Final Judgment 

to each of its officers, directors, and any 

other employees responsible for any 

business in the United States. 

To further ensure that the defendants 

are complying with the Final Judgment, 

Section X grants the DOJ access, upon 

reasonable notice, to the defendants’ 

records and documents relating to 

matters contained in the Final 

Judgment. The defendants must also 

make their personnel available for 

interviews or depositions regarding 

such matters. In addition, upon request, 

the defendants must prepare written 

reports relating to matters contained in 

the Final Judgment. 

C. Civil Penalties Under the HSR Act 

Under Section 7A(g)(1) of the Clayton 

Act, 15 U.S.C. 18a(g)(1), any person who 

fails to comply with the HSR Act is 

liable to the United States for a civil 

penalty of not more than $16,000 for 

each day that the person is in violation 

of the Act.2 The Complaint alleges that 

the defendants were in violation of the 

HSR Act from on or about January 17, 

2014, when Flakeboard, Arauco, and 

SierraPine began coordinating on the 

closure of the Springfield mill, until the 

expiration of the statutory waiting 

period on August 27, 2014—a period of 

223 days. 

Although the United States was 

prepared to seek the maximum civil 

penalty of $3.568 million for both 

Inversiones Angelini (together with 

Arauco and Flakeboard) and SierraPine 

at trial, other factors led to acceptance 

of $1.9 million each as an appropriate 

penalty for settlement purposes. In 

particular, a lower penalty is 

appropriate because Flakeboard and 

SierraPine cooperated with the United 

States during its investigation by 

voluntarily producing evidence of their 

unlawful premerger conduct and, 

despite the daily accruing fine, entering 

into a timing agreement that resulted in 

an orderly production of documents 

relating to their proposed acquisition. 

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 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 the defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States and the defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA unless the United States has 

withdrawn its consent. The APPA 

conditions entry upon the Court’s 

determination that the proposed Final 

Judgment is in the public interest. 

The APPA provides a period of at 

least 60 days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

Any person who wishes to comment 

should do so within 60 days of the date 

of publication of this Competitive 

Impact Statement in the Federal 

Register, or the last date of publication 

in a newspaper of the summary of this 

Competitive Impact Statement, 

whichever is later. All comments 

received during this period will be 

considered by the U.S. Department of 

Justice, which remains free to withdraw 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 70563 

3 The 2004 amendments substituted ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for courts 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). 

4Cf. 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’’’). 

its consent to the proposed Final 

Judgment at any time before the Court’s 

entry of judgment. The comments and 

the response of the United States will be 

filed with the Court. In addition, 

comments will be posted on the U.S. 

Department of Justice, Antitrust 

Division’s internet Web site and, under 

certain circumstances, published in the 

Federal Register. 

Written comments should be 

submitted to: Peter J. Mucchetti, Chief, 

Litigation I Section, Antitrust Division, 

United States Department of Justice, 450 

Fifth Street NW., Suite 4100, 

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 the defendants. The United 

States is satisfied, however, that the 

proposed relief, including the 

disgorgement of profits and payment of 

civil penalties, is an appropriate remedy 

in this matter. The proposed relief 

should deter the defendants and others 

from engaging in similar conduct. 

Furthermore, given the facts of this case, 

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. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a 60-day 

comment period, after which the court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

public interest.’’ 15 U.S.C. 16(e)(1). In 

making that determination, the court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) the impact of entry of such 

judgment upon competition in the 

relevant market or markets, upon the 

public generally and individuals 

alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public 

benefit, if any, to be derived from a 

determination of the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

court’s inquiry is necessarily a limited 

one as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); see also United States 

v. U.S. Airways Group, Inc., No. 13–cv– 

1236 (CKK), 2014–1 Trade Cas. (CCH) 

¶ 78, 748, 2014 U.S. Dist. LEXIS 57801, 

at *16–17 (D.D.C. Apr. 25, 2014) (same); 

see generally United States v. SBC 

Commc’ns, Inc., 489 F. Supp. 2d 1 

(D.D.C. 2007) (describing the publicinterest standard under the Tunney 

Act); United States v. InBev N.V./S.A., 

No. 08–1965 (JR), 2009–2 Trade Cas. 

(CCH) ¶ 76,736, 2009 U.S. Dist. LEXIS 

84787, at *3 (D.D.C. Aug. 11, 2009) 

(noting that the court’s review of a 

consent judgment is limited and only 

inquires ‘‘into whether the government’s 

determination that the proposed 

remedies will cure the antitrust 

violations alleged in the complaint was 

reasonable, and whether the 

mechanisms to enforce the final 

judgment are clear and manageable.’’).3

As the D.C. 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) 

(quoting 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); InBev, 

2009 U.S. Dist. LEXIS 84787, at *3. 

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 

[e]nsuring 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).4 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 U.S. Airways, 2014 U.S. Dist. LEXIS 

57801, at *16 (noting that a court should 

not reject the proposed remedies 

because it believes others are 

preferable); 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). 

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); see also U.S. Airways, 2014 

mstockstill on DSK4VPTVN1PROD with NOTICES

70564 Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 

5See 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., No. 73–CV–681–W–1, 1977–1 Trade 

Cas. (CCH) ¶ 61,508, at 71,980, *22 (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, 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.’’). 

U.S. Dist. LEXIS 57801, at *18 (noting 

that room must be made for the 

government to grant concessions in the 

negotiation process for settlements 

(citing Microsoft, 56 F.3d at 1461)); 

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 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; see also U.S. Airways, 

2014 U.S. Dist. LEXIS 57801, at *18 

(noting that the court must simply 

determine whether there is a factual 

foundation for the government’s 

decisions such that its conclusions 

regarding the proposed settlements are 

reasonable); InBev, 2009 U.S. Dist. 

LEXIS 84787, at *20 (‘‘the ‘public 

interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. As the 

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 using 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); see also 

U.S. Airways, 2014 U.S. Dist. LEXIS 

57801, at *20 (noting that a court is not 

required to hold an evidentiary hearing 

or to permit intervenors as part of its 

review under the Tunney Act). The 

language captured Congress’s intent 

when it enacted the Tunney Act in 

1974, as Senator Tunney explained: 

‘‘The court is nowhere compelled to go 

to trial or to engage in extended 

proceedings which might have the effect 

of vitiating the benefits of prompt and 

less costly settlement through the 

consent decree process.’’ 119 Cong. Rec. 

24,598 (1973) (statement of Sen. 

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 11.5 A court can make its 

public-interest determination based on 

the competitive impact statement and 

response to public comments alone. 

U.S. Airways, 2014 U.S. Dist. LEXIS 

57801, at *21. 

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. 

Respectfully submitted, 

/s/ Amy R. Fitzpatrick 

Amy R. Fitzpatrick 

David Altschuler 

Bindi Bhagat 

Scott I. Fitzgerald 

Attorneys for the United States, Antitrust 

Division, U.S. Department of Justice, 450 

Fifth Street NW., Suite 4100, Washington, DC 

20530. 

Dated: November 7, 2014. 

Certificate of Service 

I certify that on November 7, 2014, I 

electronically filed this Competitive 

Impact Statement with the Clerk of 

Court using the CM/ECF system. A copy 

has also been sent via email to: 

Counsel for Flakeboard America 

Limited, Celulosa Arauco y 

Constitucio ́n, S.A., and Inversiones 

Angelini y Compan ̃ı ́a Limitada: 

Andrew M. Lacy, Simpson, Thacher & 

Bartlett LLP, 1155 F Street NW., 

Washington, DC 20004, Phone: (202) 

636–5505, Email: alacy@stblaw.com 

Counsel for SierraPine: Amanda P. 

Reeves, Latham & Watkins LLP, 555 

Eleventh Street NW., Suite 1000, 

Washington, DC 20004, Phone: (202) 

637–2183, Email: amanda.reeves@

lw.com 

/s/ Amy R. Fitzpatrick 

Amy R. Fitzpatrick 

Antitrust Division, U.S. Department of 

Justice, 450 Fifth Street NW., Suite 4100, 

Washington, DC 20530, Phone: (202) 532– 

4558, Facsimile: (202) 307–5802, Email: 

amy.fitzpatrick@usdoj.gov. 

EXHIBIT A 

United States District Court for the 

Northern District of California San 

Francisco Division 

United States of America, Plaintiff, v. 

Flakeboard America Limited, Celulosa 

Arauco y Constitucio ́n, S.A., Inversiones 

Angelini y CompaN ̃ I

 ́a Limitada, and 

Sierrapine, Defendants. 

Case No. 3:14–cv–4949 

[Proposed] Final Judgment 

WHEREAS, Plaintiff, United States of 

America, filed its Complaint on 

November 7, 2014, alleging that 

Defendants violated Section 7A of the 

Clayton Act, 15 U.S.C. 18a, and that 

Flakeboard America Limited, Celulosa 

Arauco y Constitucio ́n, S.A., and 

SierraPine violated Section 1 of the 

Sherman Act, 15 U.S.C. § 1, and without 

this Final Judgment constituting any 

evidence against or admission by any 

party regarding any issue of fact or law; 

AND WHEREAS, Defendants, without 

admitting any wrongdoing, agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

AND WHEREAS, Defendants have 

represented to the United States that the 

actions and conduct restrictions 

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 provisions contained below; 

NOW THEREFORE, before any 

testimony is taken, and without trial or 

adjudication of any issue of fact or law, 

and upon the consent of the parties, it 

is 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 

claims upon which relief may be 

granted against Flakeboard, Arauco, and 

mstockstill on DSK4VPTVN1PROD with NOTICES

Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 70565 

SierraPine under Section 1 of the 

Sherman Act, 15 U.S.C. § 1, and against 

all Defendants under Section 7A of the 

Clayton Act, 15 U.S.C. § 18a. 

II. Definitions 

A. ‘‘Arauco’’ means Defendant 

Celulosa Arauco y Constitucio ́n, S.A., a 

Chilean company; its successors and 

assigns; and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

B. ‘‘Agreement’’ means any contract, 

agreement, or understanding, formal or 

informal, written or unwritten. 

C. ‘‘Competing Product’’ means any 

product that any Defendant offers for 

sale in the United States that is 

primarily used for the same purpose as 

any product that any other party to a 

proposed Transaction with any 

Defendant offers for sale in the United 

States. 

D. ‘‘Defendants’’ mean Flakeboard 

America Limited, Celulosa Arauco y 

Constitucio ́n, S.A., the Ultimate Parent 

Entity, and SierraPine. 

E. ‘‘Flakeboard’’ means Defendant 

Flakeboard America Limited, a 

Delaware corporation with its 

headquarters in Fort Mill, South 

Carolina; its successors and assigns; and 

its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

F. ‘‘SierraPine’’ means Defendant 

SierraPine, a California limited 

partnership with its headquarters in 

Roseville, California; its successors and 

assigns; and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

G. ‘‘Negotiation and Interim Period’’ 

means the period between the 

commencement of negotiations with 

respect to an offer to enter into a 

Transaction, and the date when 

negotiations are abandoned or when any 

resulting Transaction is consummated 

or abandoned. 

H. ‘‘Person’’ means any individual, 

partnership, firm, corporation, 

association, or other legal or business 

entity. 

I. ‘‘Production Facility’’ means any 

mill, plant, or other asset that 

manufactures products. 

J. ‘‘Transaction’’ means any 

Agreement to acquire any voting 

securities, assets, or non-corporate 

interests, form a joint venture, settle 

litigation, or license intellectual 

property with any person offering a 

Competing Product. 

K. ‘‘Ultimate Parent Entity’’ means 

Defendant Inversiones Angelini y 

Compan ̃ı ́a Limitada, a holding company 

with its headquarters in Santiago, Chile, 

and its successors and assigns. 

III. Applicability 

This Final Judgment applies to 

Flakeboard, Arauco, the Ultimate Parent 

Entity, and SierraPine 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. This Court orders the relief 

in Section IV of this Final Judgment 

under Section 7A of the Clayton Act, 15 

U.S.C. 18a. All other relief in this Final 

Judgment is to remedy the violation of 

Section 1 of the Sherman Act, 15 U.S.C. 

§ 1. 

IV. Civil Penalty Under Section 7A of 

the Clayton Act 

Within 30 days of the entry of this 

Final Judgment, Flakeboard, Arauco, 

and the Ultimate Parent Entity must pay 

$1.9 million to the United States, and 

within 60 days of the entry of this Final 

Judgment, SierraPine must pay $1.9 

million to the United States, for a total 

of $3.8 million. 

V. Disgorgement To Remedy the 

Violation of Section 1 of the Sherman 

Act 

Within 30 days of the entry of this 

Final Judgment, Flakeboard must pay 

$1.15 million in disgorgement to the 

United States. 

VI. Payment of Civil Penalty and 

Disgorgement 

A. The payments specified in this 

Final Judgment must be made by wire 

transfer. Before making any transfers a 

Defendant must contact Janie Ingalls of 

the Antitrust Division’s Antitrust 

Documents Group, at (202) 514–2481, 

for wire-transfer instructions. 

B. In the event of a default in 

payment, interest at the rate of 18 

percent per annum will accrue thereon 

from the date of default to the date of 

payment. 

VII. Prohibited Conduct 

A. Flakeboard, Arauco, and SierraPine 

may not enter into, maintain, or enforce 

any Agreement with an acquiring or tobe-acquired Person that, during the 

Negotiation and Interim Period of a 

Transaction: 

1. fixes, raises, sets, stabilizes, or 

otherwise establishes price or output for 

any Competing Product; 

2. moves, migrates, or otherwise 

allocates customers for any Competing 

Product; 

3. discloses or seeks the disclosure of 

information about customers, prices, or 

output for any Competing Product, 

except as such disclosures may be 

permitted in subsection VIII.C or to the 

extent that such information is publicly 

available at the time disclosure occurs; 

or 

4. closes a Production Facility that 

produces a Competing Product without 

prior written notice to and written 

approval from the United States. 

VIII. Permitted Conduct 

Nothing in this Final Judgment 

prohibits Defendants from: 

A. entering into an Agreement that a 

party to a Transaction must continue 

operating in the ordinary course of 

business; 

B. entering into an Agreement that a 

party to a Transaction forego conduct 

that would cause a material adverse 

change in the value of to-be-acquired 

assets; 

C. before closing or abandoning a 

Transaction, conducting or participating 

in reasonable and customary due 

diligence, though no disclosure covered 

by this section is permitted unless (1) 

the information is reasonably related to 

a party’s understanding of future 

earnings and prospects; and (2) the 

disclosure occurs under a nondisclosure agreement that (a) limits use 

of the information to conducting due 

diligence and (b) prohibits disclosure of 

the information to any employee of the 

Person receiving the information who is 

directly responsible for the marketing, 

pricing, or sales of the Competing 

Products; 

D. disclosing confidential business 

information related to Competing 

Products, subject to a protective order, 

in the context of litigation or settlement 

discussions; or 

E. entering into an Agreement where 

either one of the Defendants and the 

other party to the Transaction are or 

would be in a buyer/seller relationship 

and the Agreement would be lawful in 

the absence of the planned acquisition. 

IX. Antitrust Compliance Program 

A. Flakeboard and SierraPine must 

each maintain an antitrust compliance 

program that designates, within 30 days 

of entry of this order, an Antitrust 

Compliance Officer with responsibility 

for achieving compliance with this Final 

Judgment. The Antitrust Compliance 

Officer must, on a continuing basis, 

supervise the review of current and 

proposed activities to ensure 

compliance with this Final Judgment. 

The Antitrust Compliance Officer must 

also do the following: 

1. Distribute within 45 days of entry 

of this Final Judgment, a copy of this 

Final Judgment to each current officer 

mstockstill on DSK4VPTVN1PROD with NOTICES

70566 Federal Register / Vol. 79, No. 228 / Wednesday, November 26, 2014 / Notices 

and director, all sales managers and 

supervisors, and each employee, agent, 

or other person who, in each case, has 

responsibility for or authority over 

mergers and acquisitions; and for 

Flakeboard’s Antitrust Compliance 

Officer, a copy of this Final Judgment to 

each current officer and director of 

Arauco; 

2. distribute in a timely manner a 

copy of this Final Judgment to any 

officer, director, employee, or agent who 

succeeds to a position described in 

Section IX.A.1; 

3. obtain within 60 days from the 

entry of this Final Judgment, and 

annually thereafter, and retain for the 

duration of this Final Judgment, a 

written certification from each person 

designated in Sections IX.A.1 & 2 that 

he or she (a) has received, read, 

understands, and agrees to abide by the 

terms of this Final Judgment; (b) 

understands that failure to comply with 

this Final Judgment may result in 

conviction for criminal contempt of 

court; and (c) is not aware of any 

violation of the Final Judgment; and 

4. provide a copy of this Final 

Judgment to each potential partner to a 

merger or acquisition before the initial 

exchange of a letter of intent, definitive 

agreement, or other agreement of 

merger. 

B. Within 60 days of entry Flakeboard 

and SierraPine must each certify to 

Plaintiff that it has (1) designated an 

Antitrust Compliance Officer, specifying 

his or her name, business address, and 

telephone number; and (2) distributed 

the Final Judgment in accordance with 

Section IX.A.1. 

C. For the term of this Final Judgment, 

on or before its anniversary date, 

Flakeboard and SierraPine must each 

file with Plaintiff an annual statement as 

to the fact and manner of its compliance 

with the provisions of Sections VII and 

IX. 

D. Within 45 days of entry of this 

Final Judgment, Arauco must distribute 

a copy of this Final Judgment to each 

current officer and director, sales 

manager and supervisor, and employee, 

agent, or other person who, in each case, 

has responsibility for any business in 

the United States. 

E. If any director, officer, or Antitrust 

Compliance Officer of any of the 

Defendants learns of a violation of this 

Final Judgment, that Defendant must 

within three business days take 

appropriate action to terminate or 

modify the activity so as to assure 

compliance with this Final Judgment, 

and must notify the Plaintiff of the 

violation within 10 business days. 

X. Right to Inspection 

A. For the purpose of determining or 

securing compliance with this Final 

Judgment, any related orders, or 

determining whether the Final 

Judgment should be modified or 

vacated, and subject to any legally 

recognized privilege, authorized 

representatives of the United States 

Department of Justice, 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 the Defendants, be 

permitted: 

1. Access during Defendants’ office 

hours to inspect and copy or at 

Plaintiff’s option, 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, 

regarding such matters. The interviews 

are subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

Defendants. 

B. Upon written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, Defendants must 

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 may be divulged by the Plaintiff 

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 a Defendant 

furnishes information or documents to 

Plaintiff, the Defendant represents and 

identifies 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 

the Defendant marks each pertinent 

page of such material, ‘‘Subject to claim 

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

the Federal Rules of Civil Procedure,’’ 

then the United States shall give 10 

calendar days’ notice before divulging 

that material in any legal proceeding 

(other than a grand jury proceeding) to 

which the Defendant is not a party. 

XI. 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 any 

violations of its provisions. 

XII. Expiration of Final Judgment 

Unless extended by this Court, this 

Final Judgment expires ten years from 

the date of its entry. 

XIII. Costs 

Each party must bear its own costs of 

this action. 

XIV. Public–Interest Determination 

The parties have complied with the 

requirements of the Antitrust 

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

§ 16, including making copies available 

to the public of this Final Judgment, the 

Competitive Impact Statement, and any 

public comments thereon and Plaintiff’s 

responses to those comments. Based 

upon the record before the Court, which 

includes the Competitive Impact 

Statement and any comments and 

responses to comments filed with the 

Court, entry of this Final Judgment is in 

the public interest. 

Dated:llll 

lllllllllllllllllll

United States District Judge 

[FR Doc. 2014–27985 Filed 11–25–14; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Agency Information Collection 

Activities; Submission for OMB 

Review; Comment Request; 

Requirements of a Bona Fide Thrift or 

Savings Plan and Requirements of a 

Bona Fide Profit-Sharing Plan or Trust 

ACTION: Notice. 

SUMMARY: The Department of Labor 

(DOL) is submitting the Wage and Hour 

Division (WHD) sponsored information 

collection request (ICR) titled, 

‘‘Requirements of a Bona Fide Thrift or 

Savings Plan and Requirements of a 

Bona Fide Profit-Sharing Plan or Trust,’’ 

to the Office of Management and Budget 

mstockstill on DSK4VPTVN1PROD with NOTICES