United States v. Gerald Petty d/b/a Tri-R-Disposal, et al.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Gerald Petty d/b/a Tri-R-Disposal, et al.;

Proposed Final Judgment and Competitive Impact Statement

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,

Stipulation and Competitive Impact Statement have been lodged with the

United States District Court for the Central District of Illinois in

United States of America v. Gerald Petty d/b/a Tri-R-Disposal, et al.,

Civil Action No. 94-3142. The Complaint in this case alleged that the

defendants exchanged rate information among themselves and jointly

advertised rates to facilitate price increases for waste services in

the Christian County, Illinois area in violation of section 1 of the

Sherman Act, 15 U.S.C. 1. The proposed Final Judgment enjoins the

defendants from directly or indirectly disclosing to any other

defendant or any other person engaged in the waste services business

any rate prior to its having been disclosed to the general public and

from advertising, publishing, announcing or disseminating any rate for

waste services jointly or in concert or connection with any other

defendant or any other person engaged in providing waste services. Each

defendant is required to establish an antitrust compliance program.

Public comment is invited within the statutory 60-day comment

period. Such comments, and responses thereto, will be published in the

Federal Register and filed with the Court, should be directed to Marvin

Price, Acting Chief, Chicago Office, 209 South LaSalle Street,

Antitrust Division, U.S. Department of Justice, Chicago, Illinois 60604

(telephone: (312) 353-7530).

Constance K. Robinson,

Director of Operations.

In the United States District Court for the Central District of

Illinois, Springfield Division: United States of America, Plaintiff,

v. Gerald Petty d/b/a Tri-R-Disposal; and Leo Carey and Grace Carey,

individually and d/b/a Carey's Disposal Service, Defendants. Civil

No. 94-3142.

Complaint

The United States of America, plaintiff, by its attorneys acting

under the direction of the Attorney General of the United States,

brings this civil action to obtain equitable relief against the

defendants named herein and complains and alleges as follows:

I.

Jurisdiction and Venue

1. This Complaint is filed under section 4 of the Sherman Act (15

U.S.C. 4), as amended, in order to prevent and restrain violations by

the defendants of section 1 of the Sherman Act (15 U.S.C. 1).

2. Each defendant resides in the Central District of Illinois

within the meaning of 28 U.S.C. 1391(b).

II.

Definitions

3. ``Waste Services'' means any collection, pick-up, hauling,

transportation, dumping, recycling, sale or disposal of garbage, trash,

rubbish, scrap, by-products or other waste materials.

III.

Defendants

4. Defendant Gerald Petty operates a waste services business as a

sole proprietor under the name Tri-R-Disposal in and around Christian

County, Illinois (hereinafter the ``Christian County area'').

5. Defendants Leo Carey and Grace Carey operate a waste services

business as sole proprietors under the name Carey's Disposal Service in

and around the Christian County area.

IV.

Trade and Commerce

6. During the period covered by this complaint, each of the

defendants engaged in the business of providing waste services to

residential and commercial customers in and around the Christian County

area.

7. The defendants' business activities are within the flow of and

substantially affect interstate commerce.

V.

Violation Alleged

8. Beginning at least as early as September 26, 1993, and

continuing until on or about November 7, 1993, the defendants engaged

in a continuing combination and conspiracy in unreasonable restraint of

trade and commerce in violation of Section 1 of the Sherman Act, 15

U.S.C. Sec. 1.

9. The combination and conspiracy consisted of a continuing

agreement, understanding and concert of action among the defendants to

use joint advertising to facilitate a coordinated increase in the rates

charged for waste services in the Christian County area.

10. For the purpose of forming and carrying out the aforesaid

combination and conspiracy, the defendants did the following things,

among others:

(a) disseminated information among themselves relating to possible

rate increases; and

(b) jointly advertised rates for their waste services.

VI.

Effects

11. The combination and conspiracy had an effect on interstate

commerce in that competition among the defendant waste services

businesses was unreasonably restrained and consumers of waste services

were deprived of the benefits of free and open competition in the sale

of waste services.

VII.

Claim for Equitable Relief

12. The illegal agreement, combination and conspiracy alleged in

this complaint is likely to recur unless the injunctive relief prayed

for herein is granted.

VIII.

Prayer for Relief

Wherefore, plaintiff prays:

(a) that the Court adjudge and decree that defendants have engaged

in an unlawful agreement, combination and conspiracy in unreasonable

restraint of interstate trade and commerce in violation of Section 1 of

the Sherman Act;

(b) that for a period of ten years the Court enjoin each defendant,

its agents, employees, successors and assigns, and all other persons

acting or claiming to act under, through or for any defendant, from:

(i) advertising, publishing, announcing or disseminating any rate

or rate increase for any waste service jointly or in concert or in

connection with any other defendant or any person engaged in providing

waste services; and

(ii) directly or indirectly disclosing to any other defendant or

any other person engaged in providing waste services any rate prior to

its having been disclosed to the general public;

(c) That each defendant be required to institute a compliance

program;

(d) That for ten years after the entry of the Final Judgment, on or

before its anniversary date, each defendant shall file with plaintiff

an annual declaration reporting that such defendant has complied with

the terms of the Final Judgment and has engaged in no activities of the

type prohibited by the Final Judgment; and

(e) That this Court order such other and further relief as the

nature of the case may require and that the Court deems just and

proper.

Dated:

Anne K. Bingaman,

Assistant Attorney General.

Robert E. Litan,

Deputy Assistant Attorney General.

Mark Schechter,

Marvin Price,

Attorneys, U.S. Department of Justice, Antitrust Division.

Frances C. Hulin,

By: James A. Lewis, United States Attorney, Central District of

Illinois, Springfield Division.

Susan H. Booker,

Attorney, Midwest Office, U.S. Department of Justice, Antitrust

Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353-

7530.

In the United States District Court for the Central District of

Illinois Springfield Division: United States of America, Plaintiff,

v. Gerald Petty, d/b/a Tri-R-Disposal; and Leo Carey and Grace

Carey, individually and d/b/a Carey's Disposal Service, Defendants.

Civil No. 94-3142.

Stipulation

It is stipulated by and between the undersigned parties, by their

respective attorneys, that:

1. The Court has jurisdiction over the subject matter of this

action and over each of the parties thereto, and venue of this action

is proper in the Central District of Illinois;

2. The parties consent that a Final Judgment in the form hereto

attached may be filed and entered by the Court, upon the motion of any

party or upon the Court's own motion, at any time after compliance with

the requirements of the Antitrust Procedures and Penalties Act (15

U.S.C. Sec. 16), and without further notice to any party or other

proceedings, provided that plaintiff has not withdrawn its consent,

which it may do at any time before the entry of the proposed Final

Judgment by serving notice thereof on defendants and by filing that

notice with the Court;

3. The parties shall abide by and comply with the provisions of the

Final Judgment pending its entry, and shall, from the date of the

filing of this Stipulation, comply with all terms and provisions

thereof as though the same were in full force and effect as an order of

the Court; and

4. In the event plaintiff withdraws its consent of if the proposed

Final Judgment is not entered pursuant to this Stipulation, this

Stipulation shall be of no effect whatever, and the making of this

Stipulation shall be without prejudice to any party in this or any

other proceeding.

Dated:

For plaintiff United States of America:

Anne K. Bingaman,

Assistant Attorney General.

Robert E. Litan,

Deputy Assistant Attorney General.

Mark Schechter,

Marvin Price,

Attorneys, U.S. Department of Justice, Antitrust Division.

Frances C. Hulin,

By: James A. Lewis, United States Attorney, Central District of

Illinois, Springfield Division.

Susan H. Booker,

Attorney, Midwest Office, U.S. Department of Justice, Antitrust

Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353-

7530.

For defendant Gerald Petty

Dan Austin, Esq.,

Meyer, Austin, Romano & Lacey P.C., P.O. Box 140, Taylorville, IL

62568.

For defendants Leo and Grace Carey

David Fines, Esq.,

Hershey, Beavers, Periad, Graham, and Fines, P.O. Box 320, Taylorville,

IL 62568.

In the United States District Court for the Central District of

Illinois Springfield Division: United States of America, Plaintiff,

v. Gerald Petty, d/b/a Tri-R-Disposal; and Leo Carey and Grace

Carey, individually and d/b/a Carey's Disposal Service, Defendants

Civil No. 94-3142. Filed: May 31, 1994.

Final Judgment

Plaintiff, United States of America, filed its Complaint on May 31,

1994. Plaintiff and defendants, by their respective attorneys, have

consented to the entry of this Final Judgment without trial or

adjudication of any issue of fact or law. This Final Judgement shall

not be evidence against or an admission by any party with respect to

any issue of fact or law. Therefore, before any testimony is taken, and

without trial or adjudication of any issue of fact or law, and upon

consent of the parties, it is hereby

Ordered, adjudged and decreed, as follows:

I.

Jurisdiction

This Court has jurisdiction of the subject matter of this action

and of each of the parties consenting to this Final Judgment. The

Complaint states a claim upon which relief may be granted against each

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

II.

Definitions

As used in this Final Judgment:

(A) ``Defendant'' or ``defendants'' means each of the named

defendants in this action; each affiliate or partnership of any of

them; and each officer, employee, agent, and other person acting for or

on behalf of any of them or any of their affiliates or partnerships;

(B) ``Intracompany communication'' means any communication relating

solely to the operations of a company that is solely between

individuals who are officers or employees of that company;

(C) ``Person'' means any individual, partnership, firm,

association, corporation, or other business or legal entity. In the

case of an individual, the term also means any employee, agent or other

person acting for or on behalf of the individual. In the case of any

business or legal entity, the term also means each subsidiary,

affiliate, division or partnership of the business or legal entity and

each officer, director, employee, agent or other person acting for or

on behalf of any of them;

(D) ``Rate'' means any actual, proposed or list price, bid or

quote, and any information relating to any price, bid or quote,

including but not limited to any profit margin; premium; markup;

commission; discount; labor, unit, material, equipment, fees, or other

costs; formulas or other methods used to determine any price or cost;

and credit or payment terms;

(E) ``Waste Services'' means any collection, pick-up, hauling,

transportation, dumping, recycling, sale or disposal of garbage, trash,

rubbish, scrap, by-products or other waste materials.

III.

Defendants

(A) Defendant Gerald Petty operates a waste services business under

the name Tri-R-Disposal in Christian County, Illinois.

(B) Defendants Leo and Grace Carey operate a waste services

business under the name Carey's Disposal Service in Christian County,

Illinois.

IV.

Applicability

(A) The provisions of this Final Judgment shall apply to

defendants, to each of their successors and assigns, and to all other

persons in active concert or participation with any of them who shall

have received actual notice of this Final Judgment by personal service

or otherwise.

(B) Nothing herein contained shall suggest that any portion of this

Final Judgment is or has been created for the benefit of any third

party and nothing herein shall be construed to provide any rights to

any third party.

(C) Defendants shall each require, as a condition of the sale or

other disposition of all or substantially all of their assets used in

providing waste services that the acquiring party or parties agree to

be bound by the provisions of this Final Judgment.

V.

Prohibited Conduct

(A) Each defendant is enjoined and restrained from directly and

indirectly disclosing to any other defendant or any other person

engaged in providing waste services any rate prior to its having been

disclosed to the general public.

(B) Each defendant is enjoined and restrained from advertising,

publishing, announcing, or disseminating any rate for any waste

services jointly or in concert or in connection with any other

defendant or any other person engaged in providing waste services.

(C) Nothing in Section V of this Final Judgment shall prohibit any:

(1) intracompany communication;

(2) defendant from engaging in any good faith communication

relating to any actual or possible contract to provide waste services

or to purchase waste services from any other person engaged in

providing waste services as long as both (i) the purpose or effect of

any such communication or contract is not to eliminate or suppress

competition in the supply or sale of waste services; and (ii) the

information disclosed during any such communication and the scope of

any such contract are no broader than is necessary to provide or

purchase the specific waste services in question.

VI.

Compliance Program

(A) Defendants are ordered to establish and maintain an antitrust

compliance program which shall include designating, within 30 days of

entry of this Final Judgment, an Antitrust Compliance Officer with

responsibility for accomplishing the antitrust compliance program and

with the purpose of achieving compliance with this Final Judgment. The

Antitrust Compliance Officer shall, on a continuing basis, supervise

the review of the current and proposed activities of his or her company

to ensure that it complies with this Final Judgment. The Antitrust

Compliance Officer shall be responsible for accomplishing the following

activities:

(1) Distributing, within 60 days from entry of this Final Judgment,

a copy of this Final Judgment to all owners, officers, and employees

who have responsibility for approving, disapproving, monitoring,

recommending or implementing any prices;

(2) Distributing in a timely manner a copy of this Final Judgment

to any owner, officer, or employee who succeeds to a position described

in Section VI(A)(1);

(3) Briefing annually those persons designated in Sections VI(A)(1)

and (2) on the meaning and requirements of this Final Judgment and the

antitrust laws;

(4) Obtaining from each owner, officer or employee designated in

Section VI(A)(1) and (B)(2) a written certification that he or she (a)

has 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 that has not been reported

to the Antitrust Compliance Officer; and

(5) Maintaining a record of recipients from whom the certification

in Section VI(A)(4) has been obtained.

VII.

Certification

(A) Within 75 days of the entry of this Final Judgment, defendants

shall each certify to plaintiff whether the defendant has designated an

Antitrust Compliance Officer and has distributed the Final Judgment in

accordance with Section VI(A)(1) above.

(B) For ten years after the entry of this Final Judgment, on or

before its anniversary date, each defendant shall file with the

plaintiff an annual statement as to the fact of its compliance with the

provisions of Sections V and VI(A).

(C) If defendant's Antitrust Compliance Officer learns of any

violations of any of the terms and conditions contained in this Final

Judgment, defendant shall immediately notify the plaintiff and

forthwith take appropriate action to terminate or modify the activity

so as to comply with this Final Judgment.

VIII.

Plaintiff Access

(A) For the purpose of determining or securing compliance with this

Final Judgment, and for no other purpose, duly authorized

representatives of plaintiff shall, upon written request of the

Assistant Attorney General in charge of the Antitrust Division, and on

reasonable notice to any defendant, be permitted, subject to any

legally recognized privilege:

(1) Access during that defendant's office hours to inspect and copy

all records and documents in its possession or under its control,

relating to any matters contained in this Final Judgment; and

(2) To interview that defendant's officers, employees, trustees or

agents, who may have counsel present, regarding any such matters. The

interviews shall be subject to that defendant's reasonable convenience

and without restraint or interference from any defendant.

(B) Upon the written request of the Assistant Attorney General in

charge of the Antitrust Division, any defendant, shall submit such

written reports, under oath if requested, relating to any of the

matters contained in this Final Judgment as may be requested, subject

to any legally recognized privilege.

(C) No information or documents obtained by the means provided in

Section VIII shall be divulged by the plaintiff to any person other

than a duly authorized representative of the Executive Branch of the

United States, except in the course of legal proceedings to which the

United States is a party, or for the purpose of securing compliance

with this Final Judgment, or as Potherwise required by law.

(D) Nothing set forth in this Final Judgment shall prevent the

Antitrust Division from utilizing other investigative alternatives,

such as the Civil Investigative Demand process provided by 15 U.S.C.

1311-1314 or a Federal grand jury, to determine if the defendant has

complied with this Final Judgment.

IX. Further Elements of Final Judgment

(A) This Final Judgment shall expire ten (10) years from the date

of its entry.

(B) Jurisdiction is retained by this Court to enable any of the

parties to the Final Judgment to apply to this Court at any time for

such further orders and directions as may be necessary or appropriate

to carry out or construe this Final Judgment, to modify, or terminate

any of its provisions, to enforce compliance and to punish violations

of its provisions.

(C) Entry of this Final Judgment is in the public interest.

Dated:

----------------------------------------------------------------------

United States District Judge

The United States District Court, for the Central District of

Illinois, Springfield Division: United States of America, Plaintiff,

v. Gerald Petty, d/b/a/ Tri-R-Disposal; and Leo Carey and Grace

Carey, individually and d/b/a Carey's Disposal Service, Defendants,

Civil No. 94-3142.

Competitive Impact Statement

Pursuant to Section 2(b) of the Antitrust Procedures and Penalties

Act, 15 U.S.C. 16(b)-(h), the United States of America files this

Competitive Impact Statement relating to the proposed Final Judgment

submitted for entry with the consent of all defendants in this civil

antitrust proceeding.

I. Nature and Purpose of the Proceedings

On May 31, 1994, the United States filed a civil antitrust

complaint under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, seeking

to enjoin the defendants from engaging in an alleged combination and

conspiracy to suppress competition in the supply of residential and

commercial waste services in and around Christian County, Illinois,

through the joint advertisement of rates because the combination and

conspiracy is an unreasonable restraint of interstate commerce in

violation of Section 1 of the Sherman Act (15 U.S.C. 1).

The Complaint alleges that the defendants:

(1) Disseminated information among themselves relating to possible

rate increases; and

(2) Jointly advertised rates for their waste services. The

complaint requests that the defendants be enjoined from directly or

indirectly disclosing any rate to any defendant or person prior to it

having been announced to the general public and from publishing,

announcing or disseminating any rate for waste services jointly or in

connection with any defendant or person engaged in providing waste

services. The complaint further requests that the defendants be

required to institute an antitrust compliance program and file an

annual certification of compliance with the terms of the Final Judgment

as entered.

The United States and the defendants have stipulated and agreed

that the proposed Final Judgment may be entered after compliance with

the Antitrust Procedures and Penalties Act, unless the United States

withdraws its consent. Entry of the proposed Final Judgment will

terminate this action as to each of the defendants, except the Court

will retain jurisdiction to construe, modify, or enforce the provisions

of the proposed Final Judgment and to punish violations of the Final

Judgment.

II. Events Giving Rise to the Alleged Violation

At all times relevant to the allegations contained in the

complaint, each of the defendants operated a waste services business in

Christian County, Illinois. The defendants held dominant positions in

the market for such services. The United States' complaint in this case

alleges that the defendants engaged in a conspiracy that unreasonably

restrained competition in the sale of waste services through the use of

joint advertising to facilitate a coordinated increase in the rates

charged for waste services in the Christian County area. The complaint

alleges that the defendants disseminated among themselves information

about rate increases and jointly advertised rates for their waste

services.

III. Explanation of the Proposed Final Judgment

A. Prohibited Conduct

Section V(A) prohibits the defendants from directly or indirectly

disclosing to any other defendant or any other person engaged in the

waste services business any rate prior to its having been disclosed to

the general public. Section V(B) of the Final Judgment prohibits the

defendants from advertising, publishing, announcing or disseminating

any rate for waste services jointly or in concert or in connection with

any other defendant or any other person engaged in providing waste

services.

B. Compliance Program and Certification

In addition to the prohibitions contained in Section V of the

proposed Final Judgment, the defendants are required to implement an

antitrust compliance program as set forth in Section VI.

As part of the compliance program, each defendant is required to

distribute copies of the Final Judgment to all owners, officers and

employees responsible in any way for prices and to any person who

succeeds to the position as an owner, officer or employee responsible

for prices. Additionally, such individuals must execute a certification

of compliance as set forth more fully in section VI(A)(4). Each

defendant must also submit an annual statement to the United States as

to its compliance with the Final Judgment as required under section

VII(B).

C. Applicability to Successors and Assigns

Section IV of the Proposed Final Judgment makes the Final Judgment

applicable to the successors and assigns of each defendant. Each

defendant must require, as a condition of the sale of its business or

assets used in its waste services business, that the buyer agree to be

bound by the provisions of the Final Judgment.

IV. 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 Antitrust Procedures and Penalties Act,

provided the United States has not withdrawn its consent. The Act

conditions the entry upon the Court's determination that the proposed

Final Judgment is in the public interest.

The Act 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 wants to comment should do so within 60

days of the date of publication of this Competitive Impact Statement in

the Federal Register. The United States will evaluate the comments,

determine whether it should withdraw its consent, and respond to the

comments. 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: Marvin Price, Acting

Chief, Midwest Office, Antitrust Division, United States Department of

Justice, 209 South LaSalle Street, Suite 600, Chicago, Illinois 60604.

Under section IX of the proposed Judgment the Court will retain

jurisdiction over this matter for the purpose of enabling any of the

parties to apply to the Court for such further orders or directions as

may be necessary or appropriate for the construction, implementation,

modification, or enforcement of the Final Judgment, or for the

punishment of any violations of the Final Judgment.

V. Alternatives to the Proposed Final Judgment

The proposed Final Judgment provides all the relief as to the

defendants necessary to cure the violations alleged in the complaint.

The Judgment will enjoin the defendants from resuming operation of the

alleged conspiracy. Because the Judgment provides all of the relief

against the defendants that the United States would have sought through

a trial, the United States did not seriously consider any alternatives

to the Judgment.

VI. Determinative Documents

No documents were determinative in formulating the proposed

Judgment, and the United States therefore has not attached any such

documents to the Judgment.

Dated:

Anne K. Bingaman,

Assistant Attorney General.

Robert E. Litan,

Mark Schechter,

Marvin Price,

Attorneys, U.S. Department of Justice, Antitrust Division.

Frances C. Hulin,

By: James A. Lewis, United States Attorney, Central District of

Illinois, Springfield Division.

Respectfully submitted.

Susan H. Booker,

Attorney, Midwest Office, U.S. Department of Justice, Antitrust

Division, 209 S. LaSalle, Room 600, Chicago, Illinois 60604, (312) 353-

7530.

[FR Doc. 94-17114 Filed 7-14-94; 8:45 am]

BILLING CODE 4410-01-M