United States v. California SunCare, Inc.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. California SunCare, Inc.; Proposed Final

Judgment and Competitive Impact Statement

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. Section 16(b) through (h), that a proposed

Final Judgment, Stipulation and Competitive Impact Statement have been

filed with the United States District Court for the Central District of

California in United States of America v. California SunCare, Inc.,

Civil Action No. 94-5522. The Complaint in this case alleged that

California SunCare, Inc. engaged in a combination and conspiracy in

violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, to fix the

resale prices of indoor tanning products sold by California SunCare to

dealers throughout the United States. The proposed Final Judgment

enjoins the defendant from entering into or maintaining, any agreement,

understanding, combination or conspiracy with any of its dealers or

potential dealers to fix the resale price of indoor tanning products.

The proposed Final Judgment further enjoins the defendant for a period

of five years from the date of entry of the final judgment from

directly or indirectly announcing to the public or to any present or

potential dealer of its indoor tanning products that defendant has or

is adopting, promulgating, suggesting, announcing or establishing any

resale pricing policy for indoor tanning products that provides that:

(1) defendant will sell only to a dealer that prices at or above

defendant's suggested resale price, and/or (2) defendant will terminate

any dealer for pricing below defendant's suggested resale price.

Finally, the defendant is also enjoined for a period of five years from

the date of entry of the final judgment from (1) threatening any dealer

with termination or terminating any dealer for pricing below the

defendant's suggested resale price, and (2) discussing with any present

or potential dealer any decision regarding termination of any other

dealer for any reason directly or indirectly related to the latter

dealer's pricing below defendant's suggested resale price. The

defendant is also 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. Comments should be directed

to Marvin N. Price, Jr., Acting Chief, Midwest Field Office, Antitrust

Division, Department of Justice, 209 South LaSalle Street, Suite 600,

Chicago, Illinois 60604, (telephone: (312) 353-7530).

Constance K. Robinson,

Director of Operations.

Carla M. Stern,

Attorney, Midwest Field Office, United States Department of Justice,

Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle

Street, Chicago, Illinois 60604, Telephone: (312) 353-7530

Nora M. Manella,

United States Attorney,

Roger E. West,

Assistant United States Attorney, Telephone: (213) 894-2461,

Attorneys for Plaintiff

United States Of America, Plaintiff, v. California SunCare, Inc.,

Defendant. Civil Action No. 94-5522 (For Violation of the Sherman

Antitrust Act)

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 against the above-named defendant and

complains and alleges as follows:

I

Jurisdiction And Venue

1. This complaint is filed under Section 4 of the Sherman Act, as

amended (15 U.S.C. Sec. 4), in order to prevent and restrain

violations, as hereinafter alleged, by the defendant of Section 1 of

the Sherman Act (15 U.S.C. Sec. 1).

2. Defendant transacts business and is found in the Central

District of California and maintains its principal office in the

Central District of California.

II

Definitions

3. ``Person'' means any individual, corporation, partnership,

company, sole proprietorship, firm or other legal entity.

4. ``Dealer'' means any person, not wholly owned by California

SunCare, Inc., who purchases or acquires indoor tanning products

manufactured or sold by California SunCare Inc. for resale.

5. ``Indoor tanning products'' means products applied to the skin

in order to enhance, promote, preserve, or accelerate the skin tanning

process or to protect the skin from adverse effects that may result

from the tanning process.

III

Defendant And Co-Conspirators

6. California SunCare, Inc. (``California SunCare'') is made a

defendant herein. California SunCare is a corporation located in the

Central District of California, organized and existing under the laws

of the State of California.

7. Various companies and individuals who are dealers, not made

defendants in this complaint, have been induced to participate by and

have participated with the defendant in the offense charged herein and

performed acts and made statements in furtherance of it.

IV

Trade And Commerce

8. California SunCare is a leading seller of indoor tanning

products in the United States. The indoor tanning products sold by

California SunCare are manufactured by California SunCare in

California.

9. California SunCare sells substantial quantities of indoor

tanning products to dealers throughout the United States. These dealers

resell California SunCare's indoor tanning products throughout the

United States to tanning salons which in turn resell the tanning

products to consumers.

10. During the period covered by this complaint, there has been a

continuous and uninterrupted flow in interstate commerce of indoor

tanning products from California SunCare's facilities in California to

dealers throughout the United States. The activities of the defendant

and its co-conspirators, as hereinafter described, have been within the

flow of, and have substantially affected, interstate commerce.

V

Violation Alleged

11. Beginning at least as early as November 1992, and continuing at

least through April 1994, the exact dates being unknown to the United

States, the defendant and its co-conspirators engaged in a combination

and conspiracy in unreasonable restraint of interstate trade and

commerce in violation of Section 1 of the Sherman act, as amended (15

U.S.C. Sec. 1). This unlawful combination and conspiracy will continue

or may be renewed unless the relief prayed for herein is granted.

12. The combination and conspiracy consisted of a continuing

agreement, understanding, and concert of action among the defendant and

its co-conspirators to fix and maintain the resale price of indoor

tanning products at the amount set by the defendant, California

SunCare.

13. In furtherance of this combination and conspiracy, the

defendant did those things which, as hereinabove alleged, it combined

and conspired to do, including:

(a) establishing and communicating to dealers a minimum resale

price for indoor tanning products purchased from California SunCare;

and

(b) obtaining agreements from dealers to maintain the minimum

resale price as a condition of receiving and continuing to receive

indoor tanning products from California SunCare.

VI

Effects

14. The aforesaid combination and conspiracy has had the following

effects, among others:

(a) resale prices of indoor tanning products have been fixed and

maintained; and

(b) competition in the sale of indoor tanning products by dealers

has been restrained, suppressed, and eliminated.

VII

Prayer For Relief

Wherefore, plaintiff prays:

1. That the Court adjudge and decree that the defendant has

combined and conspired to restrain interstate trade and commerce of

indoor tanning products in violation of Section 1 of the Sherman Act.

2. That the defendant, its officers, directors, agents, employees

and successors and all other persons acting or claiming to act on their

behalf be enjoined and restrained from, in any manner, directly or

indirectly, continuing, maintaining, or renewing the combination and

conspiracy hereinbefore alleged, or from engaging in any other

combination, conspiracy, contract, agreement, understanding or concert

of action having a similar purpose or effect, and from adopting or

following any practice, plan, program, or device having a similar

purpose or effect.

3. That plaintiff have such other relief as the Court may deem just

and proper.

4. That plaintiff recover the costs of this action.

Anne K. Bingaman,

Assistant Attorney General.

Robert E. Litan,

Mark Schechter,

Marvin N. Price, Jr.,

Carla M. Stern,

Attorney, Antitrust Division, U.S. Department of Justice, Suite 600,

209 S. LaSalle Street, Chicago, Illinois 60604, (312) 353-7530.

Carla M. Stern,

Attorney, Midwest Field Office, United States Department of Justice,

Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle

Street, Chicago, Illinois 60604, Telephone: (312) 353-7530.

Attorney for Plaintiff

United States of America, Plaintiff, v. California Suncare, Inc.,

Defendant. Civil Action No. 94-5522 ABC; Stipulation

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

respective attorneys, that:

1. The parties to this Stipulation consent that a Final Judgment in

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

party's or 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), 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 entry of the proposed Final Judgment

by serving notice on the defendant and by filing that notice with the

Court.

2. If plaintiff withdraws its consent or the proposed Final

Judgment is not entered pursuant to this Stipulation, this Stipulation

shall be of no effect whatever and its making shall be without

prejudice to any party in this or any other proceedings.

Dated:

For the Plaintiff:

Anne K. Bingaman,

Assistant Attorney General.

Robert E. Litan,

Mark Schechter,

Marvin N. Price, Jr.

For the Defendant:

Richard C. Spencer,

Counsel for California Suncare, Inc.

Carla M. Stern,

Attorney, Antitrust Division, U.S. Department of Justice, Suite 600,

209 S. LaSalle Street, Chicago, Illinois 60604 (312) 353-7530.

Carla M. Stern,

Attorney, Midwest Field Office, United States Department of Justice,

Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle

Street, Chicago, Illinois 60604, Telephone: (312) 353-7530.

Attorney for Plaintiff.

United States of America, Plaintiff, v. California SunCare, Inc.,

Defendant. Civil Action No. 94-5522; Final Judgment.

Plaintiff, United States of America, having filed its complaint

herein on August 12, 1994, and plaintiff and defendant, California

SunCare, Inc., having consented to the entry of this Final Judgment

without trial or adjudication of any issue of fact or law herein and

without this Final Judgment constituting any evidence against or an

admission by any party with respect to any such issue;

And whereas defendant has agreed to be bound by the provisions of

this Final Judgment pending its approval by the Court;

Now, Therefore, before the taking of any testimony and without

trial or adjudication of any issue of fact or law herein, and upon

consent of the parties hereto, it is hereby Ordered, Adjudged and

Decreed as follows:

I

Jurisdiction

This Court has jurisdiction of the subject matter of this action

and of the party consenting hereto. The complaint states a claim upon

which relief may be granted against defendant under Section 1 of the

Sherman Act (15 U.S.C. Sec. 1).

II

Definitions

As used in this Final Judgment:

A. ``Person'' means any individual, corporation, partnership,

company, sole proprietorship, firm or other legal entity.

B. ``Dealer'' means any person, not wholly owned by California

SunCare, Inc. (``California SunCare''), who purchases or acquires

indoor tanning

products manufactured or sold by California SunCare for resale.

C. ``Indoor tanning product'' means products applied to the skin in

order to enhance, promote, preserve, or accelerate the skin tanning

process or to protect the skin from adverse effects that may result

from the tanning process.

D. ``Resale price'' means any price, price floor, price ceiling,

price range, or any mark-up, formula or margin of profit relating to

indoor tanning products sold by dealers.

III

Applicability

A. This Final Judgment applies to defendant and to each of its

officers, directors, agents, employees, subsidiaries, 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. Defendant shall require, as a condition of the sale of all or

substantially all of its assets or stock, that the acquiring party

agree to be bound by the provisions of this Final Judgment.

IV

Prohibited Conduct

A. Defendant is hereby enjoined and restrained from directly or

indirectly entering into, adhering to, maintaining, furthering,

enforcing or claiming any right under any contract, agreement,

understanding, plan or program with any dealer to fix, stabilize, or

maintain the resale prices at which indoor tanning products sold or

distributed by defendant may be sold or offered for sale in the United

States by any dealer.

B. Defendant is further enjoined and restrained for a period of

five years from the date of entry of the final judgment from directly

or indirectly announcing to the public or to any present or potential

dealer of its indoor tanning products that defendant has or is

adopting, promulgating, suggesting, announcing or establishing any

resale pricing policy for indoor tanning products that provides that:

(1) defendant will sell only to a dealer that prices at or above

defendant's suggested resale price, and/or (2) defendant will terminate

any dealer for pricing below defendant's suggested resale price.

C. Defendant is further enjoined and restrained for a period of

five years from the date of entry of the final judgment from (1)

threatening any dealer with termination or terminating any dealer for

pricing below the defendant's suggested resale price, and (2)

discussing with any present or potential dealer any decision regarding

termination of any other dealer for any reason directly or indirectly

related to the latter dealer's pricing below defendant's suggested

resale price; provided, however, that nothing herein shall prohibit the

defendant during this five-year period from terminating a dealer for

using any of defendant's products to promote the sale of products

manufactured by other companies, or any other reasons other than

pricing below defendant's suggested resale price. Furthermore, nothing

in this paragraph shall be deemed to prohibit the defendant from

adopting suggested resale prices and communicating such resale prices

to dealers.

V

Notification Provisions

Defendant is ordered and directed:

A. To send a written notice, in the form attached as Appendix A to

this Final Judgment, and a copy of this Final Judgment, within sixty

(60) days of the entry of this Final Judgment, to each dealer who

purchased indoor tanning products from defendant in 1992, 1993 or 1994.

B. To send a written notice, in the form attached as Appendix A to

this Final Judgment, and a copy of this Final Judgment, to each dealer

who purchases indoor tanning products from defendant within ten (10)

years of entry of this Final Judgment and who was not previously given

such notice. Such notice shall be sent within thirty (30) days after

the shipment of indoor tanning products is made to such dealer by the

defendant.

VI

Compliance Program

Defendant is order 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.

A. Furnishing a copy of this Final Judgment within thirty (30) days

of entry of the Final Judgment to each of California SunCare's officers

and directors and each of its employees, representatives, or agents

whose duties include supervisory or direct responsibility for the sale

or advertising of indoor tanning products in the United States, except

those employees whose functions are purely clerical or manual.

B. Distributing in a timely manner a coy of this Final Judgment to

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

Section VI A.

C. Briefing annually those persons designated in Sections VI A and

B on the meaning and requirements of this Final Judgment and the

antitrust laws.

D. Obtaining from each owner, officer or employee designated in

Section VI A and B certification that he or she (1) has read,

understands, and agrees to abide by the terms of this Final Judgment;

(2) understands that failure to comply with this Final Judgment may

result in conviction for criminal contempt of court; and (3) is not

aware of any violation of the Final Judgment that has not been reported

to the Antitrust Compliance Officer.

E. Maintaining a record of recipients from whom the certification

in Section VI D has been obtained.

VII

Certification

A. Within 75 days of the entry of this Final Judgment, defendant

shall certify to plaintiff whether the defendant has designated an

Antitrust Compliance Officer and has distributed the Final Judgment in

accordance with Section VI A above.

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

before its anniversary date, the defendant shall file with the

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

provisions of Sections V and VI.

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

Attorney General or the Assistant Attorney General in charge of the

Antitrust Division, and on reasonable notice to the defendant, be

permitted, subject to any legally recognized privilege:

1. Access during the defendant's office hours to inspect and copy

all records and documents in the possession or under the control of

defendant, which may have counsel present, relating to any matters

contained in this Final Judgment.

2. To interview the defendant's officers, employees and agents, who

may have counsel present, regarding any such matters. The interviews

shall be subject to the defendant's reasonable convenience.

B. Upon the written request of the Attorney General or the

Assistant Attorney General in charge of the Antitrust Division made to

defendant at its principal office, defendant shall submit such written

reports, under oath if requested, with respect 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

this Section VIII shall be divulged by any representative of the

Department of Justice to any person other than a duly authorized

representative of the Executive Branch of the United States, except in

the course of legal proceedings to which the United States is a party,

or for the purpose of securing compliance with this Final Judgment, or

as otherwise required by law.

D. If at the time information or documents are furnished by

defendant to plaintiff, 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)(7) of the Federal Rules of

Civil Procedure, and defendant marks each pertinent page of such

material, ``Subject to claim of protection under Rule 26(c)(7) of the

Federal Rules of Civil Procedure,'' then ten (10) days notice shall be

given by plaintiff to defendant prior to divulging such material in any

legal proceeding (other than a grand jury proceeding), so that

defendant shall have an opportunity to apply to this Court for

protection pursuant to Rule 26(c)(7) of the Federal Rule of Civil

Procedure.

E. Within ten (10) days after receiving any request under Sections

VIII A or VIII B, defendant may apply to this Court for an order to

quash or limit the scope of the request, and after providing plaintiff

with an opportunity to respond to such application, this Court shall

enter such order or directions as may be necessary or appropriate for

carrying out and ensuring compliance with this Final Judgment.

IX

Duration of Final Judgment

Except as otherwise provided hereinabove, this Final Judgment shall

remain in effect until ten (10) years from the date of entry.

X

Construction, Enforcement, Modification and Compliance

Jurisdiction is retained by the Court for the purpose of enabling

any of the parties to this Final Judgment to apply to this Court at any

time for such further orders or directions as may be necessary or

appropriate for the construction or carrying out of this Final

Judgment, for the modification of any of its provisions, for its

enforcement or compliance, and for the punishment of any violation of

its provisions.

XI

Public Interest

Entry of this Final Judgment is in the public interest.

Dated: __________

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

United States District Court Judge

Appendix A

Dear California SunCare Dealer:

The Antitrust Division of the United States Department of Justice

filed a civil suit alleging that from November 1992, through April

1994, California SunCare, Inc. (``California SunCare'') entered into

agreements with certain dealers to fix and maintain the resale prices

of California SunCare products. California SunCare has agreed, without

admitting any violation of the law and without being subject to any

monetary penalties, to the entry of a civil Consent Order prohibiting

certain pricing practices in the United States, including for a period

of five years prohibiting California SunCare from announcing to the

public or to any dealer that California SunCare has a resale pricing

policy that contains any provision that provides that: (a) California

SunCare will sell only to a dealer that prices at or above California

SunCare's suggested resale price, and/or (2) California SunCare will

terminate any dealer for pricing below California SunCare's suggested

resale price. A copy of the Order is enclosed.

Should you have any questions concerning this letter, please feel

free to contact me.

Sincerely,

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

Carla M. Stern,

Attorney, Midwest Field Office, United States Department of Justice,

Antitrust Division, Midwest Field Office, Suite 600, 209 South LaSalle

Street, Chicago, Illinois 60604, Telephone: (312) 353-7530,

Nora M. Manella,

United States Attorney,

Roger E. West,

Assistant United States Attorney, Telephone: (213) 894-2461.

Attorneys for Plaintiff

United States of America, Plaintiff, v. California Suncare, Inc.,

Defendant. Civil Action No. 94-5522ABC; Competitive Impact Statement.

The United States of America, pursuant to Section 2 of the

Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C.

Sec. 16(b), submits this Competitive Impact Statement in connection

with the proposed Final Judgment submitted for entry in this civil

antitrust proceeding.

I

Nature And Purpose Of The Proceeding

On August 12, 1994, the United States filed a civil antitrust

complaint under Section 4 of the Sherman Act, as amended, 15 U.S.C.

Sec. 4, alleging that the defendant California SunCare, Inc.

(``California SunCare'') engaged in a combination and conspiracy, in

violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, to fix the

price of indoor tanning products sold by California SunCare to dealers

throughout the United States. The complaint alleges that, in

furtherance of this conspiracy, California SunCare:

(a) established and communicated to dealers a minimum resale price

for indoor tanning products from California SunCare; and

(b) obtained agreements from dealers to maintain the minimum price

as a condition of receiving and continuing to receive indoor tanning

products from California SunCare.

The complaint also alleges that as a result of the combination and

conspiracy, prices of indoor tanning products have been fixed and

maintained, and competition in sales of indoor tanning products has

been restrained.

The complaint alleges that the combination and conspiracy is

illegal, and seeks to enjoin California SunCare from continuing or

renewing the alleged combination or conspiracy and from engaging in any

combination or conspiracy or adopting any practice or plan having a

similar purpose or effect.

The United States and California SunCare have stipulated that the

proposed Final Judgment may be entered after compliance with the APPA,

unless the United States withdraws its consent.

The Court's entry of the proposed Final Judgment will terminate the

action, except that the Court will retain jurisdiction over the matter

for possible further proceedings to construe, modify or enforce the

Judgment, or to punish violations of any of its provisions.

II

Description Of Practices Giving Rise To The Alleged Violation Of The

Antitrust Laws

California SunCare, a California corporation, is a leading seller

of indoor tanning products in the United States. Indoor tanning

products sold by California SunCare are manufactured in California by

California SunCare. California SunCare sells indoor tanning products to

dealers which sell them to indoor tanning salons, which in turn sell

them to consumers. Each year, California SunCare publishes a resale

price schedule stating the price at which California SunCare believes

its products should be resold by dealers to salons.

During the period from November 1992 through April 1994, California

SunCare confronted several dealers who were selling California SunCare

products at a discount. The discounts included new customer discounts,

discounts for trade association members, and free product after a

certain number of bonus points had been earned on previous purchases.

California SunCare obtained agreements from these dealers to maintain

California SunCare's announced resale prices on indoor tanning

products.

In April, 1994, the Antitrust Division of the Department of Justice

began an investigation into California SunCare's pricing policy.

III

Explanation Of The Proposed Final Judgment

The parties have stipulated that the proposed Final Judgment may be

entered by the Court at any time after compliance with the APPA. The

proposed Final Judgment states that it shall not constitute an

admission by either party with respect to any issue of fact or law.

The proposed Final Judgment enjoins any direct or indirect

continuation or renewal of the type of conspiracy alleged in the

complaint. Specifically, Section IV enjoins and restrains the defendant

from entering into, adhering to, maintaining, furthering, enforcing or

claiming any right under any contract, agreement, understanding, plan

or program with any dealer to fix, stabilize, or maintain the resale

prices at which indoor tanning products sold or distributed by the

defendant may be sold or offered for sale in the United States by any

dealer.

The proposed Final Judgment not only bars California SunCare's

Unlawful practices, but also contains additional provisions that are

remedial in nature. Section IV provides that the defendant is

prohibited for five years from announcing to the public or to any

present or potential dealer of its indoor tanning products that

defendant has or is adopting, promulgating, suggesting, announcing or

establishing any resale pricing policy for indoor tanning products that

provides that: (1) defendant will sell only to a dealer that prices at

or above defendant's suggested resale price, and/or (2) defendant will

terminate any dealer for pricing below defendant's suggested resale

price.

Additionally, the defendant is prohibited for a period of five

years from the date of entry of the final judgment from (1) threatening

any dealer with termination or terminating any dealer for pricing below

the defendant's suggested resale price, and (2) discussing with any

present or potential dealer any decision regarding termination of any

other dealer for any reason directly or indirectly related to the

latter dealer's pricing below defendant's suggested resale price.

Section V of the proposed Final Judgment is designed to ensure that

California SunCare's dealers are aware of the limitations imposed on it

by the Final Judgment. Section V requires the defendant to send notices

and copies of the Judgment to each dealer who purchased indoor tanning

products from the defendant in 1992, 1993 or 1994. In addition, the

defendant is required to send notices and copies of the Judgment to

every other dealer who purchases indoor tanning products from

California SunCare within ten years of the date of entry of the

proposed Final Judgment.

Section VI requires the defendant to set up an antitrust compliance

program. The defendant is also required to furnish a copy of the

Judgment to each of its officers and directors and each of its non-

clerical employees, representatives, or agents with supervisory or

direct responsibility for the sale or advertising of indoor tanning

products in the United States.

In addition, the proposed Final Judgment provides methods for

determining and securing the defendant's compliance with its terms.

Section VIII provides that, upon request of the Department of Justice,

the defendant shall submit written reports, under oath, with respect to

any of the matters contained in the Judgment. Additionally, the

Department of Justice is permitted to inspect and copy all books and

records and to interview officers, directors, employees and agents of

the defendant.

Section IX makes the Judgment effective for ten years from the date

of its entry.

Section XI of the proposed Final Judgment states that entry of the

Judgment is in the public interest. Under the provisions of the APPA,

entry of the proposed Final Judgment is conditional upon a

determination by the Court that the proposed Final Judgment is in the

public interest.

The Government believes that the proposed Final Judgment is fully

adequate to prevent the continuation or recurrence of the violation of

Section 1 of the Sherman Act alleged in the Complaint, and that

disposition of this proceeding without further litigation is

appropriate and in the public interest.

IV

Remedies Available To Potential Private Litigants

Section 4 of the Clayton Act, 15 U.S.C. Sec. 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

attorney fees. Entry of the proposed Final Judgment will neither impair

nor assist the bringing of any private antitrust damage action. Under

the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.

Sec. 16(a), the proposed Final Judgment has no prima facie effect in

any subsequent private lawsuit that may be brought against the

defendant.

V

Procedures Available for Modification of The Proposed Final Judgment

The United States and the defendant have stipulated that the

proposed Final Judgment may be entered by the Court after compliance

with the provisions of the APPA, provided that the United States has

not withdrawn its consent.

The APPA 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 N. Price, Jr.,

Midwest Office, Antitrust Division, United States Department of

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

Under Section X 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 Judgment, or for the punishment of

any violations of the Judgment.

VI

Alternative To The Proposed Final Judgment

The only alternative to the proposed Final Judgment considered by

the Government was a full trial on the merits and on relief. Such

litigation would involve substantial cost to the United States and is

not warranted because the proposed Final Judgment provides appropriate

relief against the violations alleged in the complaint.

VII

Determinative Materials And Documents

No materials or documents were determinative in formulating the

proposed Final Judgment. Consequently, the Government has not attached

any such materials or documents to the proposed Final Judgment.

Dated:

Respectfully submitted,

Carla M. Stern,

Attorney, Antitrust Division, U.S. Department of Justice, Suite 600,

209 S LaSalle Street, Chicago, Illinois 60604, (312) 353-7530.

[FR Doc. 94-21310 Filed 8-29-94; 8:45 am]

BILLING CODE 4410-01-M