United States v. Brush Fibers, Inc.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Brush Fibers, Inc.; 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

United States District Court for the Eastern District of Pennsylvania

in the above-captioned case.

On August 29, 1996, the United States filed a civil antitrust

Complaint to prevent and restrain Brush Fibers, Inc., from conspiring

to lessen and eliminate competition for tampico fiber sold in the

United States in violation of Section 1 of the Sherman Act (15 U.S.C.

1). Tampico fiber is a vegetable fiber grown in Mexico and used as a

filler in industrial and consumer brushes. The complaint alleges that

the defendant agreed with its co-conspirator supplier to resell tampico

fiber at prices fixed by the supplier and other co-conspirators.

The proposed Final Judgment would prohibit the defendant from

directly or indirectly agreeing with a supplier to fix the price at

which tampico fiber may be resold by the defendant or any other

distributor. The proposed Final Judgment also would prohibit the

defendant from entering into any agreement or understanding with any

other distributor or with any supplier of tampico fiber for (1)

raising, fixing, or maintaining the price or other terms or conditions

for the sale or supply of tampico fiber; (2) allocating sales,

territories, or customers for tampico fiber; (3) eliminating or

discouraging new entry into the tampico fiber market; and (4)

eliminating or otherwise restricting the supply of tampico fiber to any

customer. Finally, the proposed Final Judgment would also prohibit the

exchange of current and future price information, information regarding

sales volume, or the location or identity of customers with any other

distributor of tampico fiber or with any supplier other than its own.

Public comment is invited within the statutory sixty (60) day

period. Such comments will be published in the Federal Register and

filed with the Court. Comments should be addressed to Robert E.

Connolly, Chief, Middle Atlantic Office, U.S. Department of Justice,

Antitrust Division, The Curtis Center, 6th and Walnut Streets, Suite

650 West, Philadelphia, PA 19106, (telephone number 215-597-7405).

Rebecca P. Dick,

Deputy Director of Operations.

Stipulation

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

respective attorneys, that:

(1) The parties consent that a final judgment in the form hereto

attached may be filed and entered by the Court at any time after the

expiration of the sixty (60) day period for public comment provide by

the Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h),

without further notice to any party or other proceedings, either upon

the motion of any party or upon the Court's own motion, provided that

plaintiff has not withdrawn its consent as provided herein;

(2) The plaintiff may withdraw its consent hereto at any time

within said period of sixty (60) days by serving notice thereof upon

the other party hereto and filing said notice with the Court;

(3) In the event the plaintiff withdraws its consent hereto, this

stipulation shall be of no effect whatever in this or any other

proceeding and the making of this stipulation shall not, in any manner,

prejudice any consenting party to any subsequent proceedings.

Dated:

Respectfully submitted,

[[Page 48165]]

For the Plaintiff:

Joel I. Klein,

Acting Assistant Attorney General.

Rebecca P. Dick,

Deputy Director of Operations.

Robert E. Connolly,

Chief, Middle Atlantic Office.

Edward S. Panek

Michelle A. Pionkowski

Roger L. Currier

Joseph Muoio,

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

Atlantic Office, The Curtis Center, Suite 650W, 7th & Walnut Streets,

Philadelphia, PA 19106, Tel.: (215) 597-7401.

For the Defendant:

Ian Moss,

President, Brush Fibers, Inc.

Final Judgment

Plaintiff, the United States of America, filed its complaint on

. Plaintiff and defendant, 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 judgment shall not

be evidence against or an admission by any party to any issue of fact

or law. Defendant has agreed to be bound by the provisions of this

final judgment pending its approval by the Court.

Therefore, before the taking of any testimony and without trial or

adjudication of any such issue of fact or law herein, and upon consent

of the parties, it is hereby ORDERED, ADJUDGED, AND DECREED as follows.

I

Jurisdiction

This Court has jurisdiction of the subject matter of this action

and of each of the parties consenting hereto. The complaint states a

claim upon which relief may be granted against defendant under Section

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

II

Definitions

As used in this final judgment:

A. ``Agreement'' means any contract, agreement or understanding,

whether oral or written, or any term or provision thereof.

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

company, sole proprietorship, firm or other legal entity.

C. ``Tampico fiber'' is a natural vegetable fiber produced by the

lechuguilla plant and grown in the deserts of northern Mexico. It is

harvested by individual farmers, processed, finished and exported to

the United States and worldwide, where it is used as brush filling

material for industrial and consumer brushes. It is available in

natural white, bleached white, black, gray and a wide variety of

mixtures.

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

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

tampico fiber sold by distributors.

III

Applicability

A. This final judgment applies to the defendant and to 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. The defendant shall require, as a condition of any sale or other

disposition of all, or substantially all, of its stock or assets used

in the manufacture or sale of tampico fiber, that the acquiring party

or parties agree to be bound by the provisions of this final judgment,

and that such agreement be filed with the Court.

IV

Prohibited Conduct

As to tampico fiber imported into or sold in the United States, the

defendant is enjoined and restrained from:

A. directly or indirectly entering into, adhering to, maintaining,

furthering, enforcing or claiming any rights under any contract,

agreement, arrangement, understanding, plan, program, combination or

conspiracy with any other distributor or with any supplier of tampico

fiber to:

(1) raise, fix, or maintain the prices or other terms or conditions

for the sale or supply of tampico fiber;

(2) allocate sales volumes, territories or customers for tampico

fiber;

(3) discourage or eliminate any new entrant into the tampico fiber

market; and

(4) restrict or eliminate the supply of tampico fiber to any

customer;

B. communicating to, requesting from or exchanging with any

distributor or supplier (other than its own supplier) of tampico fiber

any current or future price, price change, discount, or other term or

condition of sale charged or quoted or to be charged or quoted to any

customer or potential customer for tampico fiber, whether communicated

in the form of a specific price or in the form of information from

which such specific price may be computed;

C. distributing to any distributor or supplier (other than its own

supplier) of tampico fiber price lists or other pricing material that

is used, has been used, or will be used in computing prices or terms or

conditions of sale charged or to be charged for tampico fiber;

D. communicating to, requesting from or exchanging with any

distributor or supplier (other than its own supplier) of tampico fiber

information regarding the volume of sales of tampico fiber or the

locatIon or identity of customers;

E. directly or indirectly entering into, adhering to, maintaining,

furthering, enforcing or claiming any right under any contract,

agreement, understanding, plan or program with any supplier to fix or

maintain the prices at which tampico fiber may be resold or offered for

sale by defendant or any other distributor; and

F. participating or engaging directly or indirectly through any

trade association, organization or other group in any activity which is

prohibited in Section IV (A)-(E) above.

V

Permitted Conduct

A. Other than Section IV(A) of this final judgment, nothing

contained in this final judgment shall prohibit the defendant from

negotiating or communicating with any distributor or supplier of

tampico fiber or with any agent, broker or representative of such

distributor or supplier solely in connection with bona fide proposed or

actual purchases of tampico fiber from, or sale of tampico fiber to,

that distributor or supplier.

B. Nothing contained in this final judgment shall prohibit the

defendant from unilaterally deciding to resell tampico at prices

suggested by its supplier. However, any instance in which a supplier

suggests the prices at which the defendant should resell tampico shall

be reported in writing with a copy to the defendant's Antitrust

Compliance Officer. This report shall state the date, time and place of

the communication, whether it was oral or written, the name and title

of the other person or persons involved in the communication, briefly

describe the pricing information provided, and if the communication was

written, have attached a copy of the document containing the reference

to the suggested resale prices. Such reports shall be retained in the

files of the defendant, and copies thereof shall be delivered to the

Antitrust Division by the defendant on or about such anniversary date

of this final judgment.

[[Page 48166]]

VI

Compliance Program

The defendant shall establish within thirty (30) days of entry to

this final judgment and shall, thereafter, maintain a program to insure

compliance with this final judgment, which program shall include at a

minimum the following:

A. designating an Antitrust Compliance Officer responsible, on a

continuing basis, for achieving compliance with this final judgment and

promptly reporting to the Department of Justice any violation of the

final judgment;

B. within sixty (60) days after the date of entry of this final

judgment, furnishing a copy thereof to each of its own, its

subsidiaries' and its affiliates' (1) officers, (2) directors, and (3)

employees or managing agents who are engaged in, or have responsibility

for or authority over, the pricing of tampcio fiber; and advising and

informing each such person that his or her violation of this final

judgment could result in a conviction for contempt of court and

imprisonment and/or fine;

C. within seventy five (75) days after the date of entry of this

final judgment, certifying to the plaintiff whether it has designated

an Antitrust Compliance Officer has been distributed the final judgment

in accordance with Sections VI (A) and (B) above;

D. within thirty (30) days after each such person becomes an

officer, director, employee or agent of the kind described in Section

VI(B), furnishing to him or her copy of this final judgment together

with the advice specified in Section VI(B);

E. annually distributing the final judgment to each person

described in Sections VI (B) and (D);

F. annually briefing each person described in Sections VI (B) and

(D) as to the defendant's policy regarding compliance with the Sherman

Act and with this final judgment, including the advice that defendant

will make legal advice available to such persons regarding any

compliance questions or problems;

G. annually obtaining (and maintaining) from each person described

in Sections (VI) (B) and (D) a certification that he or she:

(1) has read, understands, and agrees to abide by the terms of this

final judgment;

(2) has been advised of and understands the company's policy with

respect to compliance with the Sherman Act and the final judgment;

(3) has been advised and understands that his or her non-compliance

with the final judgment may result in conviction for criminal contempt

of court and imprisonment and/or fine; and

(4) is not aware of any violation of the final judgment that has

not been reported to the Antitrust Compliance Officer; and

H. on or about each anniversary date of the entry of the final

judgment, submitting to the plaintiff an annual declaration as to the

fact and manner of its compliance with this final judgment, including

any reports responsive to Section V of this final judgment.

VII

Inspection and Compliance

For the purpose of determining or securing compliance with this

final judgment and subject to any legally recognized privilege, from

time to time:

A. duly authorized representatives of the Department of Justice

shall, upon written request of the Attorney General or of the Assistant

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

notice to the defendant made to its principal office, be permitted:

(1) access, during the defendant's office hours to inspect and copy

all books, ledgers, accounts, correspondence, memoranda and other

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

defendant, which have counsel present, relating to any matters

contained in this final judgment; and

(2) subject to the reasonable convenience of the defendant and

without restraint or interference from it, to interview officers,

employees and agents of the defendant, who may have counsel present,

regarding any such matters;

(B) upon the written request of the Attorney General or of the

Assistant Attorney General in charge of the Antitrust Division made to

the defendant's principal office, the 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;

C. no information or documents obtained by the means provided in

this Section VII of the final judgment 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 the

defendant 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)(7) of the Federal

Rules of Civil Procedure, and such 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 the defendant prior to divulging such

material in any legal proceeding (other than a grand jury proceeding)

to which the defendant is not a party; and

E. nothing set forth in this final judgment shall prevent the

Antitrust Division from utilizing other investigative alternatives,

such as 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.

VIII

Retention of Jurisdiction

Jurisdiction is retained by this Court for the purpose of enabling

either 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 the provisions hereof, for

this enforcement of compliance herewith, and for the punishment of

violations hereof.

IX

Ten-Year Expiration

This final judgment will expire on the tenth anniversary of its

date of entry.

X

Public Interest

Entry of this final judgment is in the public interest.

Dated:

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

UNITED STATES DISTRICT JUDGE

Competitive Impact Statement

Pursuant to Section 2 of the Antitrust Procedures and Penalties Act

(``APPA''), 15 U.S.C. 16(b), the United States files this Competitive

Impact Statement relating to the proposed final judgment as to United

States v. Brush Fibers, Inc., submitted for entry in this civil

antitrust proceeding.

I

Nature and Purpose of the Proceedings

On , the United States filed a civil antitrust complaint

alleging that under Section 4 of the Sherman Act, as

[[Page 48167]]

amended, 15 U.S.C. 4, certain companies and individuals, including the

above-named defendant, combined and conspired from at least as early as

January 1990 to April 1995, to lessen and eliminate competition in the

sale of tampico fiber in the United States, in violation of Section 1

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

Specifically, BFI agreed with its supplier to fix and maintain

resale prices for tampico fiber in the United States at amounts set by

the supplier. Moreover, the complaint alleges, BFI continued to adhere

to the resale price agreement even after learning that it was part of a

larger agreement involving its supplier and other co-conspirators,

including the only other major United States distributor of tampico

fiber. The overall conspiracy, which also included an allocation of

sales and production levels, had the effect of cartelizing nearly all

sales of tampico fiber in the United States and artificially inflating

the price of tampico fiber.

The complaint seeks a judgment by the Court declaring that the

defendant engaged in an unlawful combination and conspiracy in

restraint of trade in violation of the Sherman Act. It also seeks an

order by the Court to enjoin and restrain the defendant from any such

activities or other activities having a similar purpose or effect in

the future.

The United States and the defendant 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

this civil action against the defendant, 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 The Practices Giving Rise to the Alleged Violations of

the Antitrust Laws

As defined in the complaint, tampico fiber is a natural vegetable

fiber produced by the lechuguilla plant and grown in the deserts of

northern Mexico. It is harvested by individual farmers, processed,

finished and exported worldwide, where it is used as brush filling

material for industrial and consumer brushes. It is available in

natural white, bleached white, black, gray and a wide variety of

mixtures.

The complaint further alleges that the defendant accounted for

aggregate United States sales of tampico fiber of approximately $10

million during the period from January of 1990 through April of 1995.

During this time, the defendant obtained from a Mexican processor,

through an intermediary company, substantial quantities of tampico

fiber. The defendant, acting as the Mexican processor's exclusive

United States distributor, sold this tampico fiber to its customers

throughout the United States, including those located in the Eastern

District of Pennsylvania, in a continuous and uninterrupted flow of

interstate commerce. Similarly, the complaint alleges that non-

defendant co-conspirators sold and shipped additional substantial

quantities of tampico fiber in a continuous and uninterrupted flow of

interstate commerce from another processing facility in Mexico through

their exclusive United States distributor to customers throughout the

United States, including some located in the Eastern District of

Pennsylvania.

The complaint alleges that the defendant and co-conspirators

engaged in an agreement, the effect of which was to fix the resale

prices of tampico fiber sold in the United States. Resale price sheets

were provided to the defendant and another co-conspirator United States

distributor by their respective co-conspirator suppliers. As a

condition of becoming and remaining a United States distributor of

tampico fiber, the defendant agreed by written contract with its

supplier to sell at the prices listed on the price sheet. From at least

January 1990 on, the defendant and the other United States' distributor

of tampico fiber had identical price sheets prepared by their

respective co-conspirator suppliers, and the majority of sales were

made by the distributors at these list prices or other agreed-upon

prices.

The defendant continued to observe the resale price maintenance

scheme even after learning of collusive agreements between the two

Mexican suppliers of tampico fiber. The resale price scheme had the

effects of fixing and stabilizing the resale prices of tampico fiber.

The defendant's conduct also lessened or eliminated competition between

the two principal United States distributors of tampico fiber. The

anticompetitive effects of the defendant's conduct were heightened

because it was one of only two significant United States distributors

of tampico fiber. The defendant's adherence to the resale price

maintenance scheme together with other acts of its co-conspirators had

the effect of cartelizing nearly all sales of tampico fiber in the

United States and artificially inflating the prices of tampico fiber.

BFI's supplier in this scheme has already plead guilty and agreed to

enter a consent decree in response to criminal and civil charges

relating to the entire agreement.

III

Explanation of the Proposed Final Judgment

The United States and the defendant have stipulated that a final

judgment, in the form filed with the Court, may be entered by the Court

at any time after compliance with the APPA, 15 U.S.C. 16 (b)-(h). The

proposed final judgment provides that the entry of the final judgment

does not constitute any evidence against or an admission by any party

with respect to any issue of fact or law. Under the provisions of

Section 2(e) of the APPA, entry of the proposed final judgment is

conditioned upon the Court finding that its entry will be in the public

interest.

The proposed final judgment contains two principal forms of relief.

First, the defendant is enjoined from repeating the conduct it

undertook in connection with the tampico fiber conspiracy and from

certain other conduct that could have similar anticompetitive effects.

Second, the proposed final judgment places affirmative burdens on the

defendant to pursue an antitrust compliance program directed toward

avoiding a repetition of the tampico fiber conspiracy.

A. Prohibited Conduct

Section IV of the proposed final judgment broadly enjoins the

defendant from conspiring to fix prices, allocate sales, discourage new

entrants, or otherwise restrict or eliminate the supply of tampico

fiber sold to any customer in the United States, or from communicating

certain pricing or sales information that could further such a

conspiracy (IV (A), (B), (C) and (D)); from agreeing with a supplier to

set or control the resale prices of defendant or any other distributor

to its customers (IV (E)); and from joining any group whose aims or

activities are prohibited by Sections IV (A)-(E) of the final judgment

(IV (F)).

Specifically, as regards tampico fiber sold in the United States,

Sections IV (A)-(F) of the proposed final judgment provides as follows.

Section IV (A) of the proposed final judgment enjoins the defendant

from directly or indirectly agreeing with any other distributor or with

any supplier of tampico fiber to (1) raise, fix or maintain the prices

or other terms or conditions for the sale or supply of tampico fiber;

(2) allocate sales volumes, territories or customers for tampico fiber;

(3) discourage or

[[Page 48168]]

eliminate any new entrant into the tampico fiber market; and (4)

restrict or eliminate the supply of tampico fiber to any customer.

Section IV(B) of the proposed final judgment enjoins the defendant

from communicating to, requesting from or exchanging with any

distributor or supplier (other than its own supplier) of tampico fiber

any current or future price, price change, discount or other term or

condition of sale charged or quoted, or to be charged or quoted to any

customer or potential customer for tampico fiber, whether communicated

in the form of a specific price or in the form of information from

which such specific price may be computed.

Section IV(C) of the proposed final judgment enjoins the defendant

from distributing to any distributor or supplier (other than its own

supplier) of tampico fiber price lists or other pricing material that

is used, has been used, or will be used in computing prices or terms or

conditions of sale charged or to be charged for tampico fiber.

Section IV(D) of the proposed final judgment enjoins the defendant

from communicating to, requesting from or exchanging with any

distributor or supplier (other than its own supplier) of tampico fiber

information regarding the volume of sales of tampico fiber or the

location or identity of customers.

Section IV(E) of the proposed final judgment enjoins the defendant

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 supplier to fix or

maintain the prices at which tampico fiber may be resold or offered for

sale by defendant or any other distributor.

Section IV(F) of the proposed final judgment enjoins the defendant

from participating or engaging, directly or indirectly, through any

trade association, organization or other group, in any activity which

is prohibited in Sections IV (A)-(E) of the proposed final judgment.

B. Permitted Conduct

Two exceptions to the broad prohibitions of Section IV of the

proposed final judgment are contained in Section V. Section V(A)

permits any necessary negotiations or communications with any

distributor or supplier, or any agent, broker or representative of such

distributor or supplier in connection with bona fide proposed or actual

purchases of tampico fiber from or sales of tampico fiber to that

distributor or supplier. Section V(B) makes it clear that the final

judgment does not prohibit the defendant from unilaterally deciding to

resell tampico fiber at prices suggested by its supplier. However, the

defendant is obliged to make and retain written reports as to any

suggestion by its supplier as to appropriate resale prices and deliver

copies of the written reports to the Antitrust Division on or about

each anniversary date of the final judgment.

C. Defendant's Affirmative Obligations

Section VI requires that within thirty (30) days of entry of the

final judgment, the defendant adopt or pursue an affirmative compliance

program directed toward ensuring that its employees comply with the

antitrust laws. More specifically, the program must include the

designation of an Antitrust Compliance Officer responsible for

compliance with the final judgment and reporting any violations of its

terms. It further requires that the defendant furnish a copy of the

final judgment to each of its officers and directors and each of its

employees who is engaged in or has responsibility for or authority over

pricing of tampico fiber within sixty (60) days of the date of entry,

and to certify that it has distributed those copies and designated an

Antitrust Compliance Officer within seventy-five (75) days. Copies of

the final judgment also must be distributed to anyone who becomes such

an officer, director or employee within thirty (30) days of holding

that position and to all such individuals annually.

Furthermore, Section VI requires the defendant to brief each

officer, director and employee engaged in or having responsibility over

pricing of tampico fiber as to the defendant's policy regarding

compliance with the Sherman Act and with the final judgment, including

the advice that his or her violation of the final judgment could result

in a conviction for contempt of court and imprisonment, a fine, or

both, and that the defendant will make legal advice available to such

persons regarding compliance questions or problems. The defendant

annually must obtain (and maintain) certifications from each such

person that the aforementioned briefing, advice and a copy of the final

judgment were received and understood and that he or she is not aware

of any violation of the final judgment that has not been reported to

the Antitrust Compliance Officer. Finally, the defendant must submit to

the plaintiff an annual declaration as to the fact and manner of its

compliance with the final judgment, including any reports responsive to

Section V of the final judgment.

Under Section VII of the final judgment, the Justice Department

will have access, upon reasonable notice, to the defendant's records

and personnel in order to determine defendant's compliance with the

judgment.

D. Scope of the Proposed Judgment

(1) Persons Bound by the Decree

The proposed judgment expressly provides in Section III that its

provisions apply to the defendant and each of its officers, directors,

agents and employees, subsidiaries, successors and assigns and to all

other persons who receive actual notice of the terms of judgment.

In addition, Section III of the judgment prohibits the defendant

from selling or transferring all or substantially all of its stock or

assets used in its tampico fiber business unless the acquiring party

files with the Court its consent to be bound by the provisions of the

judgment.

(2) Duration of the Judgment

Section IX provides that the judgment will expire on the tenth

anniversary of its entry.

E. Effect of the Proposed

Judgment on Competition

The prohibition terms of Section IV of the final judgment are

designed to ensure that the defendant will act independently in

determining the prices and terms and conditions at which it will sell

or offer to sell tampico fiber, and that there will be no

anticompetitve restraints (horizontal or vertical) in the tampico fiber

market. The affirmative obligations of Sections VI and VII are designed

to insure that the corporate defendant's employees are aware of their

obligations under the decree in order to avoid a repetition of behavior

that occurred in the tampico fiber industry during the conspiracy

period. Compliance with the proposed judgment will prevent price

collusion, allocation of sales, markets and customers, concerted

activities in restricting new entrants and customers, and resale price

restraints by the defendant with other tampico fiber distributors and

such distributors' suppliers.

IV

Remedies Available to Potential Private Plaintiffs

After entry of the proposed final judgment, any potential private

plaintiff who might have been damaged by the alleged violation will

retain the same right to sue for monetary damages and any other legal

and equitable remedies which he or she may have had if the proposed

judgment had not been

[[Page 48169]]

entered. The proposed judgment may not be used, however, as prima facie

evidence in private litigation, pursuant to Section 5(a) of the Clayton

Act, as amended, 15 U.S.C. 16(a).

V

Procedures Available for Modification of the Proposed Consent Judgment

The proposed final judgment is subject to a stipulation between the

government and the defendant which provides that the government may

withdraw its consent to the proposed judgment any time before the Court

has found that entry of the proposed judgment is in the public

interest. By its terms, the proposed judgment provides for the Court's

retention of jurisdiction of this action in order to permit any of the

parties to apply to the Court for such orders as may be necessary or

appropriate for the modification of the final judgment.

As provided by the APPA (15 U.S.C. 16), any person wishing to

comment upon the proposed judgment may, for a sixty-day (60) period

subsequent to the publishing of this document in the Federal Register,

submit written comments to the United States Department of Justice,

Antitrust Division, Attention: Robert E. Connolly, Chief, Middle

Atlantic Office, Suite 650 West, 7th and Walnut Streets, Philadelphia,

Pennsylvania 19106. Such comments and the government's response to them

will be filed with the Court and published in the Federal Register. The

government will evaluate all such comments to determine whether there

is any reason for withdrawal of its consent to the proposed judgment.

VI

Alternative to the Proposed Final Judgment

The alternative to the proposed final judgment considered by the

Antitrust Division was a full trial of the issues on the merits and on

relief. The Division considers the substantive language of the proposed

judgment to be of sufficient scope and effectiveness to make litigation

on the issues unnecessary, as the judgment provides appropriate relief

against the violations alleged in the complaint.

VII

Determinative Materials and Documents

No materials or documents were considered determinative by the

United States in formulating the proposed final judgment. Therefore,

none are being filed pursuant to the APPA, 15 U.S.C. 16(b).

Dated:

Respectfully submitted,

Joel I. Klein,

Acting Assistant Attorney General.

Rebecca P. Dick,

Deputy Director of Operations.

Robert E. Connolly,

Chief, Middle Atlantic Office.

Edward S. Panek,

Michelle A. Pionkowski,

Roger L. Currier,

Joseph Muoio,

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

Atlantic Office, The Curtis Center, Suite 650W, 7th & Walnut Streets,

Philadelphia, PA 19106, Tel.: (215) 597-7401.

[FR Doc. 96-23378 Filed 9-11-96; 8:45 am]

BILLING CODE 4410-01-M