United States v. Waste Management, Inc.; Proposal Final Judgment and Competitive Impact Statement
Federal RegisterMar 5, 1996
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DEPARTMENT OF JUSTICE
United States v. Waste Management, Inc.; Proposal 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 Consent
Judgment, Stipulation, and Competitive Impact Statement have been filed
with the United States District Court for the Southern District of
Georgia in the above-captioned case.
On February 15, 1996, the United States filed a civil antitrust
Complaint to prevent and restrain Waste Management, Inc. (``WMI''),
Waste Management of Georgia, Inc. (``WMG''), d/b/a Waste Management of
Savannah, and Waste Management of Louisiana, Inc. (``WML''), d/b/a
Waste Management of Central Louisiana from maintaining and enhancing
their market power by using contracts that have restrictive and
anticompetitive effects, in violation of Section 2 of the Sherman Act,
15 U.S.C. 2.
The Complaint alleges that: (1) Defendant WMG has market power in
small containerized hauling service in the Savannah, GA market and
Defendant WML has market power in small containerized hauling service
in the Central Louisiana market; (2) Defendants, acting with specific
intent, used and enforced contracts containing restrictive provisions
to exclude and constrain competition and to maintain and enhance their
market power in small containerized hauling service in those markets;
(3) in the context of their large market shares and market power,
Defendants' use and enforcement of those contracts in the Savannah and
Central Louisiana markets has had anticompetitive and exclusionary
effects by significantly increasing barriers to entry facing new
entrants and barriers to expansion faced by small incumbents; (4)
Defendants' market power is maintained and enhanced by their use and
enforcement of those contracts; and, (5) as a result, there is a
dangerous probability that Defendants will achieve monopoly power in
the Savannah and Central Louisiana markets.
The proposed Final Consent Judgment would require that, in dealing
with small-container customers in the Savannah and Central Louisiana
markets, Defendants only to enter into contracts containing
significantly less restrictive terms than the contracts they now have
in use in those markets. Specifically, the Defendants will be
[[Page 8654]]
prohibited from using any contract with small-container customers in
the Savannah and Central Louisiana markets that:
(1) Has an initial term longer than two years (unless a longer term
is requested by the customer and other conditions are met);
(2) Has any renewal term longer than one year;
(3) Requires the customer give notice of termination more than 30
days prior to the end of a term;
(4) Requires the customer to pay liquidated damages over 3 times
the greater of its prior monthly charge or its average monthly charge
during the first year of the initial term of the customer's contract,
or over 2 times the greater of its prior monthly charge or its average
monthly charge thereafter;
(50 Requires the customer to give Waste Management notice of any
offer by or to another solid waste hauling firm or requires the
customer to give it a reasonable opportunity the right to respond to
such an offer for any period not covered by the contract (``right to
compete'' clause);
(6) Is not labeled ``Service Contract'' and is not easily readable;
or
(7) Requires a customer to give Waste Management the right or
opportunity to provide hauling services for all solid wastes and
recyclables, unless the customer affirmatively indicates that is its
desire. Furthermore, Defendants would be prohibited from enforcing
provisions in existing contracts that are inconsistent with the Final
Judgment.
Public comment is invited within the statutory 60-day period. Such
comments will be published in the Federal Register and filed with the
Court. Comments should be addressed to Anthony V. Nanni, Chief,
Litigation I Section, U.S. Department of Justice, Antitrust Division,
1401 H St., N.W., Suite 4000, Washington, D.C. 20530 (phone 202/307-
6576).
Rebecca P. Dick,
Deputy Director of Operations.
United States District Court for the Southern District of Georgia,
Savannah Division
In the matter of United States of America, Plaintiff, v. Waste
Management of Georgia, Inc., d/b/a Waste Management of Savannah, and
Waste Management of Louisiana, Inc., d/b/a Waste Management of
Central Louisiana, and Waste Management, Inc., Defendants. Civil
Action No.: CV496-35, filed: February 15, 1996.
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 hereto for the purposes of this
proceeding. Defendant Waste Management of Georgia, Inc., d/b/a Waste
Management of Savannah, transacts business and is found within the
district. Defendants Waste Management of Louisiana, Inc., d/b/a Waste
Management of Central Louisiana, and Waste Management, Inc. consent to
personal jurisdiction in this proceeding. Defendants waive any
objections as to venue and the parties stipulate that venue for this
action is proper in the Southern District of Georgia;
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(b)-(h)), 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 the Defendants and by
filing that notice with the Court; and
3. Defendants agree to be bound by the provisions of the proposed
Final Judgment pending its approval by the Court. If the Plaintiff
withdraws its consent or if the proposed Final Judgment is not entered
pursuant to this Stipulation, this Stipulation shall be of no effect
whatsoever, and the making of this Stipulation shall be without
prejudice to any party in this or in any other proceeding.
Dated this 15th day of February, 1996.
Respectfully submitted,
For the Plaintiff the United States of America:
Anne K. Bingaman,
Assistant Attorney General, Antitrust Division, U.S. Department of
Justice.
Lawrence R. Fullerton,
Deputy Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Harry D. Dixon, Jr.,
United States Attorney, Southern District of Georgia.
Anthony V. Nanni,
Chief, Litigation I Section.
Nancy H. McMillen,
Peter H. Goldberg,
Evangelina Almirantearena,
Attorneys, U.S. Department of Justice, Antitrust Division, City
Center Building, Suite 4000, 1401 H Street, N.W., Washington, D.C.
20530, 202/307-5777.
For the Defendants Waste Management, Inc., Waste Management of
Georgia, Inc., and Waste Management of Louisiana, Inc.:
Robert Bloch, Esquire,
Mayer Brown & Platt, 2000 Pennsylvania Ave., N.W., Washington, D.C.
20006.
Michael Sennett, Esquire,
Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison Street,
Chicago, IL 60602.
Glen M. Darbyshire, Esquire (Georgia Bar #205210),
Hunter, Maclean, Exley & Dunn, P.C., 200 East St. Julian Street,
Savannah, GA 31412-0048, (912) 236-0261.
United States District Court for the Southern District of Georgia,
Savannah Division
In the matter of United States of America, Plaintiff, v. Waste
Management of Georgia, Inc., d/b/a Waste Management of Savannah,
Waste Management of Louisiana, Inc., d/b/a Waste Management of
Central Louisiana, and Waste Management, Inc., Defendants. Civil
Action No.: CF496-35, filed: Feb. 15, 1996.
Final Judgment
Whereas Plaintiff, United States of America, having filed its
Complaint in this action on February 15, 1996, and Plaintiff and
Defendants, by their respective attorneys, having consented to the
entry of this Final Judgment without trial or adjudication of any issue
of fact or law; and without this Final Judgment constituting any
evidence or admission by any party with respect to any issue of fact or
law;
Now, 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:
[[Page 8655]]
I.
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of the persons of the Defendants, Waste Management, Inc., Waste
Management of Georgia, Inc., d/b/a Waste Management of Savannah, and
Waste Management of Louisiana, Inc., d/b/a Waste Management of Central
Louisiana. The Complaint states a claim upon which relief may be
granted against the Defendants under Section 2 of the Sherman Act, 15
U.S.C. 2.
II.
Definitions
As used in this Final Judgment:
(A) ``Savannah market'' means Chatham, Effingham, and Bryan
Counties, Georgia.
(B) ``Central Louisiana market'' means Rapides, Natchitoches,
Avoyelles, Red River, Winn, and Sabine Parishes, Louisiana.
(C) ``Solid waste hauling'' means the collection and transportation
to a disposal site of trash and garbage (but not construction and
demolition debris; medical waste; hazardous waste; organic waste; or
special waste, such as contaminated soil, or sludge; or recyclable
materials) from residential, commercial and industrial customers. Solid
waste hauling includes hand pick-up, containerized pick-up, and roll-
off service.
(D) ``Defendants'' means defendant Waste Management, Inc., a
Delaware corporation with its headquarters in Oak Brook, Illinois,
defendant Waste Management of Georgia, Inc. d/b/a Waste Management of
Savannah, a Georgia corporation with offices in Savannah, Georgia, and
defendant Waste Management of Louisiana, Inc., d/b/a Waste Management
of Central Louisiana, a Louisiana corporation with offices in
Alexandria, Louisiana, and includes their officers, directors,
managers, agents, employees, successors, assigns, parents, and
subsidiaries.
(E) ``Small Container'' means a 2 to 10 cubic yard container.
(F) ``Small Containerized Solid Waste Hauling Service'' means
providing solid waste hauling service to customers by providing the
customer with a Small Container that is picked up mechanically using a
frontload, rearload, or sideload truck, and expressly excludes hand
pick-up service, and service using a compactor attached to or part of a
small container.
(G) ``Customer'' means a Small Containerized Solid Waste Hauling
Service customer.
III.
Applicability
This Final Judgment applies to Defendants and to their officers,
directors, managers, agents, employees, successors, assigns, parents
and subsidiaries, 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. Nothing contained
in 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.
IV.
Prohibited Conduct
Defendants are enjoined and restrained as follows:
(A) Except as set forth in paragraph IV (B) and (G), Defendants
shall not enter into any contract with a Customer for a service
location in the Savannah or Central Louisiana markets that:
(1) Has an initial term longer than two (2) years;
(2) Has any renewal term longer than one (1) year;
(3) Requires that the Customer give Defendants notice of
termination more than thirty (30) days prior to the end of any initial
term or renewal term;
(4) Requires that the Customer pay liquidated damages in excess of
three times the greater of its prior monthly charge or its average
monthly charge over the most recent six months during the first year of
the initial term of the Customer's contract;
(5) Requires that the Customer pay liquidated damages in excess of
two times the greater of its prior monthly charge or its average
monthly charge over the most recent six months after the Customer has
been a Customer of a Defendant for a continuous period in excess of one
(1) year;
(6) Requires the Customer to give Defendants notice of any offer by
or to another solid waste hauling firm or requires the Customer to give
Defendants a reasonable opportunity to respond to such an offer for any
period of covered by the contract (sometimes referred to as a ``right
to compete'' clause);
(7) Is not easily readable (e.g., formatting and typeface) and is
not labeled, in large letters, SERVICE CONTRACT; or
(8) Requires a Customer to give Defendants the right or opportunity
to provide hauling service for recyclables or more than one solid waste
hauling service for a Customer unless the Customer affirmatively
chooses to have Defendant do so by so stating on the front of the
contract.
(B) Notwithstanding the provisions of paragraph IV(A) of this Final
Judgment, Defendants may enter into a contract with a Customer for a
service location in the Savannah or Central Louisiana markets with an
initial term in excess of two years provided that:
(1) The Customer has acknowledged in writing that the Defendants
have offered to the Customer the form contracts Defendants are required
herein to offer generally to Customers;
(2) the Customer has the right to terminate the contract after 2
years by giving notice to Defendants thirty (30) days or more prior to
the end of that 2 year period;
(3) the contract otherwise complies with the provisions of
paragraph IV(A) (2)-(8); and
(4) the number of service locations subject to contracts permitted
under subparagraph (B) in either the Savannah or Central Louisiana
markets does not exceed 25% of the total number of service locations
for small containerized solid waste hauling service in each such market
in any year.
(C) From the date of filing of an executed Stipulation in the form
attached hereto as Exhibit A, Defendants shall offer to new Customers
with service locations in the Savannah and Central Louisiana markets
only contracts that conform to the requirements of paragraphs IV (A) or
(B) of this Final Judgment, except as provided in IV(G).
(D) Except as provided in IV(G), within thirty (30) days following
the entry of this Final Judgment, Defendants shall send to all existing
Customers with service locations in the Savannah and Central Louisiana
markets with contracts having an initial term longer than 2 years and
which otherwise do not conform with paragraph IV(B) a notice in the
form attached hereto as Exhibit B.
(E) Except as provided in IV(G), for each Customer with a contract
having an initial term longer than 2 years and which otherwise does not
conform to paragraph IV(B) that enters a renewal term 120 days after
entry of this Final Judgment, Defendants shall send a reminder to that
Customer in the form attached hereto as Exhibit C ninety (90) days or
more prior to the effective date of the renewal term. This reminder may
be sent to the Customer as part of a monthly bill, but if it is, it
must be displayed on a separate page and in large print.
(F) Upon entry of this Final Judgment, Defendants may not enforce
those
[[Page 8656]]
contract provisions that are inconsistent with this Final Judgment.
(G) Notwithstanding the provisions of this Final Judgment,
Defendants may enter into contracts with municipal or governmental
entities that are not in compliance with paragraphs IV (A)-(F) provided
that those contracts are awarded to Defendants on the basis of a formal
request for bids or a formal request for proposals issued by the
Customer.
(H) Notwithstanding the provisions of this Final Judgment,
Defendants shall not be required to do business with any Customer.
V.
Reporting
(A) To determine or secure compliance with this Final Judgment,
duly authorized representatives of the Plaintiff shall, upon written
request of the Assistant Attorney General in charge of the Antitrust
Division, on reasonable notice given to Defendants at their principal
offices, subject to any lawful privilege, be permitted:
(1) Access during normal office hours to inspect and copy all
books, ledgers, accounts, correspondence, memoranda and other documents
and records in the possession, custody, or control of Defendants, which
may have counsel present, relating to any matters contained in this
Final Judgment.
(2) Subject to the reasonable convenience of Defendants and without
restraint or interference from them, to interview officers, employees,
or agents of Defendants, who may have counsel present, regarding any
matters contained in this Final Judgment.
(B) Upon written request of the Assistant Attorney General in
charge of the Antitrust Division, on reasonable notice given to
Defendants at their principal offices, subject to any lawful privilege,
Defendants shall submit such written reports, under oath if requested,
with respect to any matters contained in this Final Judgment.
(C) No information or documents obtained by the means provided by
this Section shall be divulged by the Plaintiff to any person other
than a duly authorized representative of the Executive Branch of the
United States government, 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
Defendants to Plaintiff, Defendants represent and identify in writing
the material in any such information or document to which a claim of
protection may be asserted under Rule 26(c)(7) of the Federal Rules of
Civil Procedure, and Defendants mark each pertinent page of such
material ``Subject to Claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure,'' then ten days notice shall be given
by Plaintiff to Defendants prior to divulging such material in any
legal proceeding (other than a grand jury proceeding) to which
Defendants are not a party.
VI.
Further Elements of Judgment
(A) This Final Judgment shall expire on the tenth anniversary of
the date of its entry.
(B) Jurisdiction is retained by this Court over this action and the
parties thereto for the purpose of enabling any of the parties thereto
to apply to this Court at any time for further orders and directions as
may be necessary or appropriate to carry out or construe this Final
Judgment, to modify or terminate any of its provisions, to enforce
compliance, and to punish violations of its provisions.
VII.
Public Interest
Entry of this Final Judgment is in the public interest.
Entered: ____________
United States District Judge
----------------------------------------------------------------------
Exhibit A
United States District Court for the Southern District of Georgia,
Savannah Division
In the matter of United States of America, Plaintiff, v. Waste
Management of Georgia, Inc., d/b/a Waste Management of Savannah, and
Waste Management of Louisiana, Inc., d/b/a Waste Management of
Central Louisiana, and Waste Management, Inc., Defendants. Civil
Action No.: CV496-35, filed: February 15, 1996.
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 hereto for the purposes of this
proceeding. Defendant Waste Management of Georgia, Inc., d/b/a Waste
Management of Savannah, transacts business and is found within the
district. Defendants Waste Management of Louisiana, Inc., d/b/a Waste
Management of Central Louisiana, and Waste Management, Inc. consent to
personal jurisdiction in this proceeding. Defendants waive any
objection as to venue and the parties stipulate that venue for this
action is proper in the Southern District of Georgia;
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. 16 (b)-(h)), 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 the Defendants and by filing that
notice with the Court; and
3. Defendants agree to be bound by the provisions of the proposed
Final Judgment pending its approval by the Court. If the Plaintiff
withdraws its consent or if the proposed Final Judgment is not entered
pursuant to this Stipulation, this Stipulation shall be of no effect
whatsoever, and the making of this Stipulation shall be without
prejudice to any party in this or in any other proceeding.
Dated this ____th day of February, 1996.
Respectfully submitted,
For the Plaintiff the United States of America:
Anne K. Bingaman,
Assistant Attorney General, Antitrust Division, U.S. Department of
Justice.
Lawrence R. Fullerton,
Deputy Assistant Attorney General.
Rebecca P. Dick,
Deputy Director of Operations.
Harry D. Dixon, Jr.,
United States Attorney, Southern District of Georgia.
Anthony V. Nanni,
Chief, Litigation I Section.
Nancy H. McMillen,
Peter H. Goldberg,
Evangelina Almirantearena,
Attorneys, U.S. Department of Justice, Antitrust Division, City Center
Building, Suite 4000, 1401 H. Street, N.W., Washington, D.C. 20530,
202/307-5777.
[[Page 8657]]
For the Defendants Waste Management, Inc., Waste Management of
Georgia, Inc., and Waste Management of Louisiana, Inc.:
Robert Bloch, Esquire,
Mayer Brown & Platt, 2000 Pennsylvania Ave., N.W., Washington, D.C.
20006.
Michael Sennett, Esquire,
Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison Street,
Chicago, IL 60602.
Exhibit B
Notice to Customers
Dear Valued Customer: [Insert name of local operating company]
is offering a new two year contract to all small containerized solid
waste hauling customers with service locations in [insert market
here]. We would like to take this opportunity to offer this contract
to you. Of course, if you prefer, you can continue with your
existing contract.
In most cases, this new contract will have terms that are more
advantageous to customers than their current contracts. This new
contract has the following features:
an initial term of 2 years (unless you request a longer
term);
a renewal term of 1 year;
at the end of your initial term, you may take no action
and your contract will renew or you can choose not to renew the
contract by simply giving us notice at any time up to 30 days prior
to the end of your term;
1 if you request a contract with a term longer than 2 years, you can
cancel that contract after 2 years by giving us notice at any time
up to 30 days prior to the end of the first 2 years;
if you terminate the contract at any other time, you
will be required to pay, as liquidated damages, no more than 3 times
the greater of your prior monthly or average monthly charge. If
you've been a customer continuously for more than 1 year, the
liquidated damages would be reduced to 2 times the greater of your
prior monthly or average monthly charge;
you will not be required to give us notice of any offer
from another waste hauling firm or to give us an opportunity to make
a counteroffer although you may do so if you wish;
you will be able to choose on the contract which
specific types of waste hauling services you would like us to
perform.
You may obtain a new contract containing these terms by calling
[insert CSR telephone number or sales rep name and number].
If you prefer, you may continue with your existing contract. If
you retain your existing contract, we will not enforce any terms
that are inconsistent with the new form contract terms.
We thank you for your business and look forward to a continued
relationship with you. If you have any questions, please call [WM
contact person and phone number].
Reminder to Customers
Your contract will automatically renew on MM/DD/YY unless we
receive your cancellation by MM/DD/YY.
You may also obtain a new form contract with some terms more
advantageous to you than your current contract.
You may obtain a new contract containing these terms by calling
(insert CSR telephone number or sales rep name and number).
United States District Court for the Southern District of Georgia
Savannah Division
In the matter of United States of America, Plaintiff, v. Waste
Management of Georgia, Inc.,d/b/a Waste Management of Savannah,
Waste Management of Louisiana, Inc., d/b/a Waste Management of
Central Louisiana, and Waste Management, Inc., Defendants. [Civil
Action No.: CV496-35 Filed: February 15, 1996.]
Competitive Impact Statement
The United States, pursuant to Section 2(b) of the Antitrust
Procedures and Penalties Act (``APPA''), 15 U.S.C. Sec. 16 (b)-(h),
files this Competitive Impact Statement relating to the proposed Final
Judgment submitted for entry in this civil proceeding.
I.
Nature and Purpose of the Proceeding
On February 15, 1996, the United States filed a civil antitrust
Compliant to prevent and restrain Waste Management, Inc. (``WMI''),
Waste Management of Georgia, Inc. (``WMG''), d/b/a Waste Management of
Savannah, and Waste Management of Louisiana, Inc. (``WML''), d/b/a
Waste Management of Central Louisiana from using contracts that have
restrictives and anticompetitive effects in the small containerized
hauling service markets in Savannah and Central Louisiana, in violation
of Section 2 of the Sherman Act, 15 U.S.C. As alleged in the Compliant,
Defendants has attempted to monopolize small containerized hauling
service in the Savannah and Central Louisiana geographic markets by
using and enforcing contracts containing restrictive provisions to
maintain and enhance their existing market power there.
The Complaint alleges that: (1) Defendant WMG has market power in
small containerized hauling services in the Savannah, GA market and
Defendant WML has market power in small containerized hauling service
in the Central Louisiana market; (2) Defendants, acting with specific
intent, used and enforced contracts containing restrictives provisions
to exclude and constrain competition and to maintain and enhance their
market power in small containerized hauling service in those markets;
(3) in the context of their large market shares and market power,
Defendants' use and enforcement of those contracts in the Savannah and
Central Louisiana markets has had anticompetitive and exclusionary
effects by significantly increasing barriers to entry facing new
entrants and barriers to expansion faced by small incumbents; (4)
Defendants' market power is maintained and enhanced by their use and
enforcement of those contracts; and, (5) as a result, there is a
dangerous probability that Defendants will achieve monopoly power in
the Savannah and Central Louisiana markets.
In its Compliant, Plaintiff seeks, among other relief, a permanent
injunction preventing Defendants from continuing any of the
anticmpetitive practices alleged to violate the Sherman Act, and thus
affording fair opportunities for other firms to compete in small
containerized hauling service in the Savannah and Central Louisiana
markets.
The United States and Defendants also have filed a stipulation by
which the parties consented to the entry of a proposed Final Judgment
designed to eliminate the anticompetitive effects of Defendants'
actions in the Savannah and Central Louisiana markets. Under the
proposed Final Judgment, as explained more fully below, in dealing with
small-container customers in the Savannah and Central Louisiana
markets, Defendants would only be permitted to enter into contracts
containing significantly less restrictive terms than the contracts they
now in use in those markets. Furthermore, Defendants would be
prohibited from enforcing provisions in existing contracts that are
inconsistent with the Final Judgment.
The United States and the Defendants have stipulated that the
proposed Final Judgment may be entered after compliance with the APPA.
Entry of the proposed Final Judgment would
[[Page 8658]]
terminate the action, except that the Court would retain jurisdiction
to construe, modify, or enforce the provisions of the proposed Final
Judgment and to punish violations thereof.
Description of the Events Giving Rise to the Alleged Violation
Waste Management, Inc. (``WMI''), a subsidiary of WMX Technologies,
Inc., is the world's largest company engaged in the solid waste hauling
and disposal business, with operations throughout the United States.
WMI had total 1994 revenues of approximately $5.8 billion.
Waste Management of Georgia, Inc. (``WMG''), d/b/a Waste Management
of Savannah, is a subsidiary of WMI with its principal offices in
Savannah, GA. It is the largest solid waste hauling and disposal
company in the Savannah market. WMG had revenues of over $14 million in
its 1994 fiscal year.
Waste Management of Louisiana, Inc. (``WML''), d/b/a Waste
Management of Central Louisiana, is also a subsidiary of WMI. It has
offices in Alexandria, LA and Natchitoches, LA. It is the largest solid
waste hauling and disposal company in the Central Louisiana market. WML
had revenues over $3 million in its 1994 fiscal year.
A. The Solid Waste Hauling Industry
Solid waste hauling involves the collection of paper, food,
construction material and other solid waste from homes, businesses and
industries, and the transporting of that waste to a landfill or other
disposal site. These services may be provided by private haulers
directly to residential, commercial and industrial customers, or
indirectly through municipal contracts and franchises.
Service to commercial customers accounts for a large percentage of
total hauling revenues. Commercial customers include restaurants, large
apartment complexes, retail and wholesale stores, office buildings, and
industrial parks. These customers typically generate a substantially
larger volume of waste than do residential customers. Waste generated
by commercial customers is generally placed in metal containers of two
to ten cubic yards provided by their hauling company. In the markets at
issue, two to ten cubic yard containers are called ``small containers''
Small containers are collected primarily by frontend load vehicles that
lift the containers over the front of the truck by means of a hydraulic
hoist and empty them into the storage section of the vehicle, where the
waste is compacted. Service to commercial customers that use small
containers is called ``small containerized hauling service.''
Solid waste hauling firms also provide service to residential and
industrial (or ``roll-off'') customers. Residential customers,
typically households and small apartment complexes that generate small
amounts of waste, use noncontainerized solid waste hauling service,
normally placing their waste in plastic bags, trash cans, or small
plastic containers at curbside.
Industrial or roll-off customers include factories and construction
sties. These customers either generate non-compactible waste, such as
concrete or building debris, or very large quantities of compactible
waste. They deposit their waste into very large containers (usually 20
to 40 cubic yards) that are loaded onto a roll-off truck and
transported individually to the disposal site where they are emptied
before being returned to the customer's premises. Some customers, like
shopping malls, use large, roll-off containers with compactors. This
type of customer generally generates compactible trash similar to the
waste of commercial customers, but in much greater quantities; it is
more economical for this type of customer to use roll-off service with
a compactor than to use a number of small containers picked up multiple
times a week.
B. Relevant Product Market
The revelant product market is small containerized hauling service.
There are no practical substitutes for this service. Small
containerized hauling service customers will not generally switch to
noncontainerized service in the event of a price increase, because it
is too impractical and more costly for those customers to bag and carry
their volume of trash to the curb for hand pick-up. Similarly, roll-off
service is much too costly and the container takes up too much space
for most small containerized hauling service customers. Only customers
that generate the largest volumes of compactible solid waste can
economically consider roll-off service, and for customers that do
generate large volumes of waste, roll-off service is usually the only
viable option.
C. Relevant Geographic Markets
The relevant geographic markets are the Savannah market and the
Central Louisiana market. Small containerized solid waste hauling
services are generally provided in very localized areas. Route density
(a large number of customers that are close together) is necessary for
small containerized solid waste hauling firms to be profitable. In
addition, it is not economically efficient for heavy trash hauling
equipment to travel long distances from customers without collecting
significant amounts of waste. Thus, it is not efficient for a hauler to
serve major metropolitan areas from a distant base. Haulers, therefore,
generally establish garages and related facilities within each major
local area served.
D. Defendants' Attempt to Monopolize
Defendant WMG has market power in small containerized hauling
service in the Savannah market. WMG has maintained a very high market
share since at least 1991--consistently in excess of 60 percent.
Defendant WML has market power in small containerized hauling
service in the Central Louisiana market. WML has maintained a very high
market share since at least 1988--consistently in excess of 60 percent.
There are substantial barriers to entry and to expansion into the
small containerized hauling markets in Savannah and in Central
Louisiana. A new entrant or small incumbent hauler must be able to
achieve minimum efficient scale to be competitive. First, it must be
able to generate enough revenues to cover significant fixed costs and
overhead.
Second, a new entrant or small incumbent hauler must be able to
obtain enough customers to use its trucks efficiently. For example, it
is not efficient to use a truck half a day because the firm doesn't
have enough customers to fill up the truck.
Third, a new entrant or small incumbent hauler needs to obtain
customers that are close together on its routes (called ``route
density''). Having customers close together enables a company to pick
up more waste in less time (and generate more revenues in less time).
The better a firm's route density, the lower its operating costs.
Until a firm overcomes these barriers, the new entrant or small
incumbent will have higher operating costs than Defendants in the
relevant geographic markets, may not operate at a profit, and will be
unable effectively to constrain pricing by Defendants in those markets.
Defendant WMG in the Savannah market and Defendant WML in the
Central Louisiana market have entered into written contracts with the
vast majority of their small containerized hauling customers. Many of
these contracts contain terms that, when taken together in the relevant
markets where Defendants have market power, make it more difficult and
costly for customers to switch to a competitor of Defendants and allows
Defendants to bid to retain customers approached by a competitor.
[[Page 8659]]
The contracts enhance and maintain Defendants' market power in the
Savannah and Central Louisiana markets by significantly raising the
cost and time required by a new entrant or small incumbent firm to
build its customer base and obtain efficient scale and route density.
Therefore, Defendants' use and enforcement of these contracts in the
Savannah and Central Louisiana markets raise barriers to entry and
expansion in those markets. Those contract terms are:
a. A provision giving Defendants the exclusive right to collect and
dispose of all the customers' solid waste and recyclables;
b. An initial term of three years;
c. A renewal term of three years that automatically renews unless
the customer sends Defendants a written notice of cancellation by
certified mail more than 60 days from the end of the initial or renewal
term;
d. A term that requires a customer that terminates the contract at
any other time to pay Defendants, as liquidated damages, its most
recent monthly charge times six (if the remaining term is six or more
months) or its most recent monthly charge times the number of months
remaining under the contract (if the remaining term is less than six
months); and
e. A ``right to compete'' clause that requires the customer to give
Defendants notice of any offer by or to a hauling competitor or
requires the customer to give Defendants a reasonable opportunity to
respond to such an offer for any period not covered by the contract.
The appearance and format of the contracts also enhances
Defendants' ability to use the contracts to maintain their market power
in these markets. The provisions that make it difficult for a customer
to switch to a competing hauler are not obvious to customers in the
relevant markets. The document is not labeled ``Contract'' so its
legally binding nature is not always apparent to the customer. Also,
all the restrictive provisions mentioned above are in small print on
the back of the document.
Defendats' use and enforcement of the contracts described above in
the Savannah and Central Louisiana markets have raised the barriers
already faced by new entrants and small existing firms in those
markets. Defendants' use and enforcement of the contracts has reduced
the likelihood that the customers will switch to a Defendant's
competitor. Given Defendants' market power, this has made it more
difficult for competitors to achieve efficient scale, obtain sufficient
customers to use their trucks efficiently, and develop sufficient route
density to be profitable and to constrain Defendants' pricing in those
markets.
III
Explanation of the Proposed Final Judgment
The proposed Final Judgment will end the unlawful practices
currently used by Defendants to perpetuate and enhance their market
power in the Savannah and Central Louisiana markets. It requires
Defendants to offer less restrictive contracts to small containerized
hauling customers in the Savannah and Central Louisiana markets.\1\
\1\ The proposed Final Judgment applies to all contracts entered
into by Defendants with customers for service locations in the
relevant markets except contracts described in Paragraph IV (G).
Contracts awarded to Defendants by municipal or government entities
as a result of a formal request for bids or a formal request for
proposals need not contain the provisions dictated by the proposed
Final Judgment. These contracts were excluded from the decree to
assure that competition for such bids would not be adversely
affected by preventing Defendants from bidding.
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In particular, Paragraphs IV (A) and (B) prohibit Defendants from
entering into contracts containing the type of restrictive terms
described above. Paragraphs IV(C), (D), (E), and (F) are designed to
bring existing contracts into compliance with the proposed Final
Judgment on an expeditious basis.
A. Prohibition of Contract Terms and Formats
The Contracts used most frequently by defendants in the relevant
markets have an initial term of three years and renew automatically and
perpetually for additional three-year terms unless cancelled by the
customer. In these markets, given that the Defendants have market power
and a vast majority of their existing customers are subject to such
contracts, the long initial term and long renewal terms prevent new
entrants and small incumbents, no matter how competitive, from quickly
obtaining enough customers that are close together to be profitable.
Shortening the initial term and the renewal term will allow competitors
to compete for more of the customer base each year and, if they compete
effectively, to obtain efficient scale and route density more quickly.
This, in turn, will enhance competition in the relevant markets and
will help offset Defendants' market power.
Paragraph IV(A)(1) prohibits Defendants from using contracts for
service locations in the Savannah and Central Louisiana markets that
have an initial term longer than two years, except under certain very
limited circumstances.
A contract with an initial term in excess of two years in the
relevant markets is permitted, under limited circumstances, pursuant to
Paragraph IV(B) of the proposed Final Judgment, but the contracts must
otherwise conform to the Final Judgment. The United States is aware
that some customers, for valid business reasons such as long-term price
assurance, want contracts with an initial term longer than two years.
Paragraph IV(B) is intended to permit customers who want them to have
such contracts, while ensuring that customers who have not made such a
choice do not, nevertheless, find themselves with long contracts. Under
Paragraph IV(B)(1), Defendants may sign a contract of longer than two
years with a customer, but only if the customer has been offered the
two year contract and has acknowledged, in writing, that this offer was
made.\2\ Even if the customer signs a contract with an initial term
longer than two years, the customer retains the right to terminate that
contract at the end of the first two years, without payment of any
liquidated damages, pursuant to Paragraph IV(B)(2). Paragraph IV(B) was
included to give Defendants the ability to contract with customers who
truly want a longer term, for the United States anticipates that
contracts with initial terms longer than two years will be the
exception, not the rule. To assure such an outcome, Paragraph IV(B)(4)
limits the number of service locations subject to such contracts in
either the Savannah or Central Louisiana markets to no more than 25
percent of the total number of small containerized solid waste hauling
service locations in each relevant market.
\2\ The United States envisions that the customer's written
acknowledgment that the two year contract was offered, but declined,
by the customer could be made by having the customer check an
appropriate box on the face of the contract near the customer's
signature, or by some similar mechanism.
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Paragraph IV(A)(2) prohibits Defendants from signing a contract
with a renewal term longer than one year in length, down from the
three-year renewal term used as a standard in the Savannah and Central
Louisiana markets.
Paragraph IV(A)(3) increases the period of time that a customer may
notify Defendants of its intention not to renew the contract from a
period ending 60 days before the end of any initial or renewal term to
a period ending 30 days before the end of any such term. This allows
the customer to make a decision concerning renewal closer to the end of
[[Page 8660]]
the contract term. A customer is more likely to consider whether or not
it wants its existing contract renewal the closer than customer is to
the end of the contract term. Paragraph IV(A)(3) assures that a
customer will be able to choose not to renew its contract up to 30 days
from the end of the contract term. Paragraph IV(A)(3) also eliminates
the requirement that a customer give its nonrenewal notice in writing
and send it to Defendants by certified mail. A telephone call or letter
is sufficient under the proposed Final Judgment. These changes in the
notification provisions make it easier for the customer not to renew
within the terms of the contract. This, in turn, enhances customer
choice and enables a new entrant or small incumbent to compete for more
customers.
A liquidated damages provision is intended to allow a seller to
recover otherwise unrecoverable costs where the amount of the damage
resulting from a breach of contract is difficult to determine.
Defendants do incur some unrecoverable costs, including sales costs, in
contracting with customers for small containerized solid waste hauling
services. The contract currently most widely used by Defendants in the
relevant markets contain the following liquidation damages provision
for early termination: the customer must pay six times its prior
monthly charge unless the contract has a remaining term of less than
six months, in which case the customer pays its prior monthly charge
times the number of months remaining in its contract term. If this case
went to trial, the United States believes it could prove that these
liquidated damages far surpass the contracting costs the Defendants
incur, and that, in the relevant markets where Defendants have market
power, Defendants have threatened to enforce such liquidated damages
provisions with the effect that customers did not switch to new
entrants and small incumbents when they desired to do so. In the
presence of market power, the threat of enforcing large liquidated
damages provisions can deter sufficient customers from switching to a
competitor and harm competition.
Paragraphs IV(A) (4) and (5) reduce the amount of liquidated
damages Defendants can collect from a customer. The liquidated damages
Defendants may collect from a customer in the relevant markets during
the first year of the initial term of a customer's contract are reduced
to the greater of three times the customer's prior monthly charge or
average monthly charge over the prior six months. A firm that has been
a customer of a Defendant for a continuous period in excess of one year
can be required to pay Defendants no more than two times the greater of
the customer's prior monthly charge or average monthly charges over the
past six months. The changes made in the liquidated damages provisions
make it less expensive (and therefore more likely) that a customer can
switch to a competing hauler should it choose to do so during the
contract term. Defendants have incurred costs to sign small
containerized solid waste hauling customers to contracts. However, as
customers pay their monthly bills over time, the unrecovered amount of
those costs decreases. That fact is reflected in the proposal Final
Judgment by the reduction of the liquidated damages Defendants may
collect once a firm has been Defendants' customer for more than one
year.
Paragraph IV(A)(6) prohibits Defendants from including a ``right to
compete'' clause in their contracts in the relevant markets. That
clause requires a customer to give Defendants notice of any offer by or
to another solid waste hauling firm or requires the customer to give
Defendants a reasonable opportunity to respond to such an offer for any
period not covered by the contract. Defendants currently use a clause
in the vast majority of contracts in use in the Savannah and Central
Louisiana markets.\3\ Such a clause enables a firm with market power
easily to deny a sufficient customer base to new entrants or small
incumbents because the customer must notify it of the terms of offers
from competitors before the competitor obtains a single customer's
business. It is a simple matter for the dominant firm to match or beat
the competitor's price and induce the customer not to switch to the
competitor. Furthermore, it allows the dominant firm to target price
reductions only to those customers approached by a competitor without
dropping prices across the board. The existence of this clause reduces
a new entrant's expected profitability for luring a customer away from
Defendants. It has the effect of retarding entry. The Final Judgment
prohibits the use of this provision in the relevant markets.
\3\ The clause reads: ``RIGHT TO COMPETE. Customer grants to
Contractor the right to compete with any offer which Customer
receives (or intends to make) relating to the provision of
nonhazardous waste collection and disposal services upon the
termination of this Agreement for any reason, and agrees to give
Contractor written notice of any such offer and reasonable
opportunity to respond to it.''
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The contracts predominantly used by Defendants in the relevant
markets currently give Defendants the exclusive right to perform all of
a customer's solid waste hauling services and recycling, just because
the customer has signed a contract for small containerized solid waste
hauling service. Paragraph IV(A)(8) of the proposed Final Judgment
prohibits this provision in the relevant markets. Instead, it provides
that Defendants may perform only those services a customer selects.
Defendants may perform all types of solid waste hauling services and
recycling for a customer only if the customer affirmatively chooses to
have Defendants do so by so stating on the front of the contract.\4\
The United States does not intend this provision to prohibit Defendants
from requiring that it be the exclusive supplier of any type of service
for which it contracts with a customer. For example, if a customer
contracts with Defendants to perform small containerized solid waste
hauling service at a specific service location, Defendants may require
that it be the exclusive supplier for that service at that location.
\4\ The United States anticipates that the customer should be
able to affirmatively indicate its choice of service types by
checking a box, by writing in the type of service it wants on the
front of the contract, or by some similar mechanism.
---------------------------------------------------------------------------
Paragraph IV(A)(7) of the proposed Final Judgment also requires
Defendant to change the appearance and format of its contracts in the
relevant markets. If this case went to trial, evidence from customers
in those markets would show that some of them were not aware they had
signed legally binding documents. Therefore, the proposed Final
Judgment requires that the document be labeled ``SERVICE CONTRACT'' in
large letters. Furthermore, evidence from customers in the relevant
markets would show that the contractual provisions that enable a firm
with market power to restrict customers from switching to a competitor
are in very small print on the back of the document. The proposed Final
Judgment requires that the contracts used in the relevant markets be
easily readable in formatting and type-face.
B. Transition Rules
In the Stipulation consenting to the entry of the proposed Final
Judgment, Defendants agreed to abide by the provisions of the proposed
Final Judgment immediately upon the filing of the Complaint, i.e., as
of February 15, 1996. Among other things, the transition provisions
described herein will require Defendants to abide by the foregoing
limitations and prohibitions when entering into any contracts with new
small containerized hauling customers after February 15, 1996. Certain
additional provisions of the proposed
[[Page 8661]]
Final Judgment also apply to existing customer contracts that are
inconsistent with the proposed Final Judgment's requirements for new
customer contracts.
Under Paragraph IV(C), Defendants must offer contracts that conform
with Paragraphs IV(A) or (B) of the proposed Final Judgment to all new
customers with service locations in the Savannah and Central Louisiana
markets beginning today, the date of the filing of the executed
Stipulation.
Under Paragraph IV(D), within 30 days of the entry of the proposed
Final Judgment, Defendants must notify existing customers in the
Savannah and Central Louisiana markets who have contracts with an
initial term longer than two years and do not otherwise comply with the
proposed Final Judgment of their right to sign a new contract complying
with the proposed Final Judgment. These notices must also inform any
customers choosing to retain their existing contracts that no
provisions inconsistent with the proposed Final Judgment will be
enforced against them. With regard to municipal and government
entities, Defendants are not required to notify those entities with
nonconforming contracts that were awarded on the basis of a formal
request for bids or a formal request for proposals issued by the
customer.
Paragraph IV(E) requires Defendants to give an additional notice in
the form of a reminder to any customer subject to a nonconforming
contract that enters a renewal term 120 days or more after the entry of
the proposed Final Judgment. Defendants must send the reminder to each
such customer ninety (90) days or more prior to the effective date of
the renewal term. The reminder informs the customer that it must cancel
its contract by a certain date or the contract will renew. It also
reminds the customer that it may enter into a new contract conforming
to the proposed Final Judgment on request and that terms in the
customer's existing contract that are inconsistent with the new form
will not be enforced against it. Defendants may send this reminder as
part of a monthly bill, as long as it appears on a separate page and in
large print so that it will be noticeable.
Under Paragraph IV(F), Defendants may not enforce contract
provisions inconsistent with the Final Judgment upon entry of the Final
Judgment by the Court.
Under Paragraphs IV (G) and (H), the proposed Final Judgment makes
clear that contracts awarded by municipal or government entities on the
basis of a formal request for bids or proposals issued by the customer
need not comply with Paragraphs IV (A)-(F). Moreover, nothing in the
proposed Final Judgment requires Defendants to do business with any
customer.
Paragraphs IV (C)-(F) further two consistent goals. Opportunities
for competition in small containerized hauling service in the relevant
markets will be fostered by a rapid end to the provisions that
significantly raise entry barriers in the relevant markets. At the same
time, the transition rules avoid creating any unnecessary disruption of
the customers' trash hauling service that might result from voiding all
nonconforming contracts. Existing customers are not required to
terminate or amend their existing contracts with Defendants; the choice
belongs to the customer. However, Defendants may not enforce against
any customer any provision inconsistent with the proposed Final
Judgment.
To ensure that existing customers learn of their rights under the
proposed Final Judgment, Paragraphs IV (D) and (E) require Defendants
to notify customers of their rights under the Final Judgment and remind
them of their right to terminate their existing contract or to sign a
new contract form.
C. Enforcement
Section V of the proposed Final Judgment establishes standards and
procedures by which the Department of Justice may obtain access to
documents and information from Defendants related to their compliance
with the proposed Final Judgment.
D. Duration
Section VI of the proposed Final Judgment provides that the Final
Judgment will expire on the tenth year after its entry. Jurisdiction
will be retained by the Court to conduct further proceedings relating
to the Final Judgment, as specified in Section VI.
IV
Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act (15 U.S.C. 15) provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of Section 5(a) of the Clayton Act (15 U.S.C.
16(a)), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against defendants.
V
Procedures Available for Modification of the Proposed Final Judgment
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least 60 days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within
sixty (60) days of the date of publication of this Competitive Impact
Statement in the Federal Register. The United States will evaluate and
respond to the comments. All comments will be given due consideration
by the Department of Justice, which remains free to withdraw its
consent to the proposed Judgment at any time prior to entry. 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: Anthony V. Nanni, Chief,
Litigation I Section, Antitrust Division, United States Department of
Justice, 1401 H Street NW., Suite 4000, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI
Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, litigation against Defendants. The United States could
have brought suit and sought preliminary and permanent injunctions
against the use and enforcement of these contracts by Defendants in the
relevant markets. The United States is satisfied, however, that the
relief outlined in the proposed Final Judgment will elimination
Defendants' ability to use restrictive and anticompetitive contracts to
maintain and enhance their market power in the relevant markets. The
United States believes that these contracts will no
[[Page 8662]]
longer inhibit the ability of a new entrant to compete with the
Defendants. The relief sought will allow new entry and expansion by
existing firms in those markets.
VII
Standard of Review Under the APPA for Proposed Final Judgment
The APPA requires that proposed consent judgments in antitrust
cases brought by the United States be subject to a sixty-day comment
period, after which the court shall determine whether entry of the
proposed Final Judgment ``is in the public interest.'' In making that
determination, the court may consider--
(1) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration or relief sought, anticipated effects of
alternative remedies actually considered, and any other
considerations bearing upon the adequacy of such judgment;
(2) the impact of entry of such judgment upon the public
generally and individuals alleging specific injury from the
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trial.
15 U.S.C. 16(e). As the D.C. Circuit recently held this statute permits
a court to consider, among other things, the relationship between the
remedy secured and the specific allegations set forth in the
government's complaint, whether the decree is sufficiently clear,
whether enforcement mechanisms are sufficient, and whether the decree
may positively harm third parties. See United States v. Microsoft, 56
F.3d 1448, 1462 (D.C. Cir. 1995). In conducting this inquiry, ``the
Court is nowhere compelled to go to trial or to engage in extended
proceedings which might have the effect of vitiating the benefits of
prompt and less costly settlement through the consent decree process.''
\5\ Rather,
\5\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest''
determination can be made properly on the basis of the Competitive
Impact Statement and Responses to Comments filed pursuant to the
APPA. Although the APPA authorizes the use of additional procedures,
15 U.S.C. Sec. 16(f), those procedures are discretionary. A court
need not invoke any of them unless it believes that the comments
have raised significant issues and that further proceedings would
aid the court in resolving those issues. See H.R. Rep. 93-1463, 93rd
Cong. 2d Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News
6535, 6538.
---------------------------------------------------------------------------
absent a showing of corrupt failure of the government to discharge
its duty, the Court, in making its public interest finding, should .
. . carefully consider the explanations of the government in the
competitive impact statement and its responses to comments in order
to determine whether those explanations are reasonable under the
circumstances.
United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. para.
61,508, at 71,980 (W.D. Mo. 1977).
The Court's inquiry, under the APPA, is whether the settlement is
``within the reaches of the public interest.''\6\ The proposed Final
Judgment enjoins the Defendants' continued use of overly restrictive
contract terms and opens local markets to increased competition, thus
effectively furthering the public interest.
\6\ United States v. Bechtel, 648 F.2d 660, 666 (9th Cir.),
cert. denied, 454 U.S. 1083 (1981); (citations omitted) (emphasis
added); see United States v. BNS, Inc., 858 F.2d 456, 463, (9th Cir.
1988); United States v. National Broadcasting Co., 449 F. Supp.
1127, 1143 (C.D. Cal 1978); United States v. Gillette Co., 406 F.
Supp. at 716; see also United States v. American Cyanamid Co., 719
F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984);
United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 150
(D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S.
1001 (1983) quoting United States v. Gillette Co., supra, 406 F.
Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F. Supp.
619, 622 (W.D. Ky 1985).
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VIII.
Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: February 15, 1996.
Respectfully submitted,
Nancy H. McMillen,
Peter H. Goldberg,
Evangelina Almirantearena,
Attorneys, Antitrust Division, U.S. Department of Justice, 1401 H
Street NW., Suite 4000, Washington, D.C. 20530, (202) 307-5777.
Certification of Service
I hereby certify that a copy of the foregoing has been served upon
Waste Management, Inc., Waste Management of Georgia, Inc., and Waste
Management of Louisiana, Inc., by placing a copy of this Competitive
Impact Statement in the U.S. mail, directed to each of the above-named
parties at the addresses given below, this 15th day of February, 1996.
Michael Sennett,
Esquire, Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison
Street, Chicago, IL 60602.
Robert E. Bloch,
Esquire, Mayer, Brown & Platt, 2000 Pennsylvania Ave., N.W.,
Washington, D.C. 20003.
Harold Hellin,
Esquire,
Glen Darbyshire,
Esquire, Hunter, MacLean, Exler & Dunn, 200 East Street Julian,
Savannah, GA 31401.
Nancy H. McMillen,
Attorney, U.S. Department of Justice, Antitrust Division, 1401 H
Street, N.W., Suite 4000, Washington, D.C. 20530, (202) 307-5777.
United States District Court for the Southern District of Georgia,
Savannah Division
In the matter of United States of America, Plaintiff, v. Waste
Management of Georgia, Inc., d/b/a Waste Management of Savannah,
Waste Management of Louisiana, Inc., d/b/a Waste Management of
Central Louisiana, and Waste Management, Inc. Defendants. [Civil
Action No.: CV496-35] filed February 15, 1996.
Motion of United States to Exclude Case From All Discovery Requirements
and To Follow the Procedures of the Antitrust Procedures and Penalties
Act
The United States of America hereby moves the Court for an order to
exclude this case from all discovery requirements under the Federal
Rules of Civil Procedure and the Local Rules of the United States
District Court for the Southern District of Georgia, given that the
disposition of a negotiated civil antitrust case brought and settled by
the United States is governed by the Antitrust Procedures and Penalties
Act, 15 U.S.C. 16 (b)-(h) [hereinafter ``the APPA'']. The United States
further moves the Court for inclusion in this Order for an exemption
from the requirement that Defendants file any responsive pleading to
the Complaint.
As set forth below, the parties have consented to the entry of the
proposed Final Judgment without trial or adjudication of any issue of
fact or law, and without the Final Judgment constituting any evidence
against or an admission by any party with respect to any such issue.
Pursuant to the procedures of the APPA, discovery between the parties
is unnecessary and would be contrary to the intentions of the parties.
Therefore, the United States respectfully requests that the Court enter
the attached Order which excludes the case from all discovery
requirements
[[Page 8663]]
of the Federal Rules of Civil Procedure and the Local Rules of the
United States District Court for the Southern District of Georgia, and
states that the disposition of the case will be consistent with the
APPA.
1. On February 15,1996, the United States filed a Complaint and a
Stipulation by which the parties agreed to the Court's entry of an
attached proposed Final Judgment following compliance with the APPA.
2. The United States also filed on February 15, 1996, a Competitive
Impact Statement as required by 15 U.S.C. 16(b).
3. The APPA also requires the United States to publish a copy of
the proposed Final Judgment and the Competitive Impact Statement in the
Federal Register. It further requires the publication of summaries of
the terms of the proposed Final Judgment and the Competitive Impact
Statement in at least two newspapers of general circulation. This
notice will inform members of the public that they may submit comments
about the Final Judgment to the United States Department of Justice,
Antitrust Division. 15 U.S.C. 16(b)-(c).
4. Following such publication in the newspapers and Federal
Register, a sixty-day waiting period will begin. During this time, the
United States will consider, and at the close of that period respond
to, any public comments that it receives. It will publish the comments
and its responses in the Federal Register. 15 U.S.C. 16(d).
5. After the expiration of the sixty-day period, the United States
will file with the Court the comments, the Government's responses, and
a Motion For Entry of the Final Judgment. 15 U.S.C. 16(d).
6. After the filing of the Motion For Entry of the Final Judgment,
the Court may enter the Final Judgment without a hearing, if it finds
that the Final Judgment is in the public interest. 15 U.S.C. 16(e)-(f).
7. The parties fully intend to comply with the requirements of the
APPA.
As stated above, the Antitrust Procedures and penalties Act governs
the disposition of civil antitrust cases brought and settled by the
United States. Discovery between the parties, which have consented to
the proposed settlement filed with the Court, is unnecessary.
Accordingly, the attached Order is justified and should be entered by
the Court.
Respectfully submitted,
Harry D. Dixon, Jr.,
United States Attorney, Southern District of Georgia, 100 Bull Street,
Suite 201, Savannah, GA 31401, Tel.: (912) 652-4422.
Nancy H. McMillen,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 1401 H
Street NW., Suite 4000, Washington, DC 20530, Tel.: (202) 307-5777.
Certificate of Service
I hereby certify that on February 15, 1996, a true and correct copy
of the foregoing has been served on the parties below by placing a copy
of this MOTION OF UNITED STATES TO EXCLUDE CASE FROM ALL DISCOVERY
REQUIREMENTS AND TO FOLLOW THE PROCEDURES OF THE ANTITRUST PROCEDURES
AND PENALTIES ACT in the U.S. Mail, postage prepaid, to the addresses
given below.
For Defendants Waste Management of Georgia, Inc., Waste Management
of Louisiana, Inc., and Waste Management, Inc.:
Michael Sennett, Esquire, Bell, Boyd & Lloyd, 3 First National Plaza,
70 West Madison Street, Chicago, IL 60602
Robert Bloch, Esquire, Mayer, Brown & Platt, 2000 Pennsylvania Ave.
NW., Washington, DC 20006
Harold Hellin, Esquire, Glen Darbyshire, Esquire, Hunter, MacLean,
Exler & Dunn, 200 East Street Julian, Savannah, GA 31401.
Nancy H. McMillen,
Trial Attorney, U.S. Department of Justice, Antitrust Division, 1401 H
Street NW., Suite 4000, Washington, DC 20530, (202) 307-5777.
United States District Court for the Southern District of Georgia
Savannah Division
In the matter of United States of America, Plaintiff, v. Waste
Management of Georgia, Inc., d/b/a Waste Management of Savannah,
Waste Management of Louisiana, Inc. d/b/a Waste Management of
Central Louisiana, and Waste Management, Inc., Defendants. Civil
Action No.: CV496-35, filed: Feb. 15, 1996.
Order Excluding Case From All Discovery Requirements and To Follow the
Procedures of the Antitrust Procedures and Penalties Act
Plaintiff, the United States of America, has moved the Court to
exclude this case from all discovery requirements under the Federal
Rules of Civil Procedure and the Local Rules of the United States
District Court for the Southern District of Georgia, given that the
disposition of negotiated civil antitrust consent decrees are governed
by the Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h).
The Court is of the opinion that this motion should be granted.
It is therefore Ordered that this case is excluded from all
discovery requirements under the Federal Rules of Civil Procedure and
the Local Rules of the United States District Court for the Southern
District of Georgia. It is further ORDERED that the Defendants are not
required to file any responsive pleading to the Complaint.
It is also therefore Ordered that the procedures to be followed in
this case shall be consistent with the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16 (b)-(h).
Dated:-----------------------------------------------------------------
----------------------------------------------------------------------
United States District Judge.
[FR Doc. 96-5040 Filed 3-4-96; 8:45 am]
BILLING CODE 4410-01-M
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