U.S. v. Seminole Fertilizer Corporation; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

U.S. v. Seminole Fertilizer Corporation; 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 Middle District of Florida in

United States of America v. Seminole Fertilizer Corporation, Civil No.

97-1507-CIV-T-17E.

The Complaint in the case alleges that Seminole restrained trade by

entering into a secret bidding agreement with its chief rival for the

purchase of an ammonia storage facility located in Tampa, Florida. The

Complaint alleges that the agreement had the effect of eliminating

Seminole as a viable competing bidder.

In the proposed Final Judgment, Seminole agrees not to enter into

agreements with others illegally setting the price of fertilizer

assets. Seminole also agrees not to submit joint bids for fertilizer

assets without first notifying the seller of the asset and the person

administering the sale of the asset that the bid has been jointly

prepared.

Public Comments on the proposed Final Judgment is invited within

the statutory 60-day comment period. Such comments and responses

thereto will be published in the Federal Register and filed with the

Court. Comments should be directed to John T. Orr, Chief, Atlanta Field

Office, Antitrust Division, Department of Justice, Suite 1176, Richard

B. Russell Federal Building, 75 Spring Street, S.W., Atlanta, Georgia

30303 (telephone: 404-331-7100).

Rebecca P. Dick,

Deputy Director of Operations, Antitrust Division.

Stipulation

Judge Elizabeth A. Kovachevich

It is stipulated by and between the undersigned parties that:

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

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

is proper in the Middle District of Florida, Tampa Division;

[[Page 34306]]

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U.S.C. 16), provided that Plaintiff has not withdrawn its consent,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 Defendant and by filing that

notice with the Court;

3. In the event 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; and

4. This Stipulation and the Final Judgment to which it relates are

for settlement purposes only and do not constitute an admission by

Defendant in this or any other proceeding; that Section 1 of the

Sherman Act, 15 U.S.C. 1, or any other provision of law, has been

violated.

This 18th day of June, 1997.

Gary R. Trombley,

Attorney for Defendant, Trombley & Associates, P.A., P.O. Box 3356,

Tampa, Florida 33601, (813) 229-7918.

Karen E. Sampson,

Belinda A. Barnett,

Attorneys for Plaintiff, U.S. Department of Justice, Antitrust

Division, 75 Spring Street, S.W., Suite 1176, Atlanta, Georgia 30303,

(404) 331-7100.

Final Judgment

Judge Elizabeth A. Kovachevich

Whereas plaintiff, United States of America, having filed its

Complaint in this action on June 18, 1997, and plaintiff and defendant,

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 against,

or any admission by, any party with respect to any such issue of fact

or law.

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

this Final Judgment pending its approval by the Court.

Now, therefore, before any testimony is taken, and without trial or

adjudication of any issue of fact or law, and upon the consent of the

parties,

It is hereby ordered, adjudged and decreed as follows:

I

Jurisdiction

This Court has jurisdiction over the subject matter of this action,

and over the person of the defendant, Seminole Fertilizer Corporation.

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

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

II

Definitions

As used in this Final Judgment:

A. ``Defendant'' means Seminole Fertilizer Corporation and its

affiliates, parents, subsidiaries, successors and assigns, directors,

officers, managers, agents, and employees engaged in the fertilizer

business, and any other person acting for or on behalf of them with

respect to the fertilizer business.

B. ``Fertilizer asset'' means any asset used principally in the

manufacture, processing, production, storage, distribution, or sale of

fertilizer or ammonia.

C. ``Fertilizer business'' means the manufacturing, processing,

production, storage, distribution, or sale of fertilizer or ammonia.

D. ``Jointly determined bid'' or ``joint bid'' means any combining,

pooling, or supplementing of resources, money, or property in

connection with an actual or proposed offer for property which is to be

sold through a bid process.

E. ``Person'' means any individual, association, cooperative,

partnership, corporation, or other business or legal entity.

III

Applicability

This Final Judgment shall apply to defendant, including each of its

directors, officers, managers, agents, employees, affiliates, parents,

subsidiaries, and successors and assigns engaged now or in the future

in the fertilizer business, and to all other persons in active concert

or participation with defendant in the fertilizer business who shall

have received actual notice of this Final Judgment by personal service

or otherwise.

IV

Prohibited Conduct

Defendant is enjoined and restrained from:

A. Directly, indirectly, or through any joint venture, partnership,

or other device, entering into, attempting to enter into, organizing or

attempting to organize, implementing or attempting to implement, or

soliciting any agreement, understanding, contract, or combination,

either express or implied, with any other person:

1. To submit any jointly determined bids for the acquisition of any

fertilizer asset located in the United States; or

2. To illegally set or establish the price or other terms and

conditions of any bids for the acquisition of any fertilizer asset

located in the United States;

B. Directly, indirectly, or through any joint venture, partnership,

or other device, communicating or inquiring about any intentions,

decisions, or plans to refrain from bidding or to bid, including any

intentions, decisions, or plans regarding any actual or proposed bid

amounts, for the acquisition of any fertilizer asset located in the

United States, where such communication or inquiry is to:

1. Any other person that is known or reasonably should be known by

defendant to be a potential bidder on the sale of that fertilizer

asset; or

2. Any other person that has announced an intention to bid on the

sale of that fertilizer asset; and

C. Directly, indirectly, or through any joint venture, partnership,

or other device, requesting, suggesting, urging, or advocating that any

other person not bid on, or suggesting that it would not be profitable,

desirable, or appropriate for any other person to bid on, the sale of

any fertilizer asset located in the United States.

V

Limiting Conditions

A. Nothing in Section IV (A) and (B) shall prohibit defendant from

entering an agreement, understanding, contract, or combination with any

other person to submit any jointly determined bids for the acquisition

of any fertilizer asset located in the United States so long as the

purpose or effect is not to eliminate or suppress competition and where

before or at the time of submitting any such jointly determined bids,

defendant:

1. Discloses to the seller of the asset and the person

administering the sale of the asset that a jointly determined bid is

being submitted, the nature of the joint bid arrangement, and with whom

the joint bid is being submitted; and

2. Does not, without disclosing to the seller in advance of the

sale, violate any of the terms or conditions for bidding imposed by the

seller of the asset or violate any of the terms or conditions for

bidding imposed by the person administering the sale of the asset.

B. Section IV (B) and (C) shall not apply to communications to

[[Page 34307]]

shareholders, potential purchasers of substantially all of the

defendant's stock or assets, lenders, creditors, or subcontractors, who

are not competitors, where such communications are limited to the

context of such relationship.

VI

Notification

Defendant currently is not engaged in the fertilizer business. If

defendant re-enters and engages in the fertilizer business at any time

during the term of this Final Judgment, then within thirty (30) days of

such re-entry, defendant shall cause to be delivered, by certified

letter or its equivalent, a copy of this Final Judgment to all persons

with whom defendant then is engaged in a partnership, joint venture, or

other similar relation in the fertilizer business, and to all persons

with whom defendant then is engaged in discussions or negotiations

regarding the possible submission of a joint bid for the acquisition of

any fertilizer asset.

VII

Compliance

A. In view of the fact that defendant is not currently engaged in

the fertilizer business, all of defendant's compliance obligations

under Section VII of this Final Judgment are suspended until such time

as defendant re-enters and engages in the fertilizer business during

the term of this Final Judgment.

B. If and when defendant re-enters the fertilizer business during

the term of this Final Judgment, within thirty (30) days of re-entry

defendant is ordered to establish and maintain for as long as it

engages in the fertilizer business an antitrust compliance program

which shall include designating an Antitrust Compliance Officer with

responsibility for accomplishing the antitrust compliance program and

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

Antitrust Compliance Officer shall, on a continuing basis, supervise

the review of the current and proposed activities of the defendant to

ensure that it complies with this Final Judgment. The Antitrust

Compliance Officer shall be responsible for accomplishing the following

activities:

1. Distributing, within ninety (90) days of the date of defendant's

re-entry in the fertilizer business, a copy of this Final Judgment to

all officers and directors, and any person who otherwise manages

defendant with respect to the fertilizer business;

2. Distributing in a timely manner a copy of this Final Judgment to

any person who succeeds to a position described in Section VII (B)(1);

3. Briefing annually defendant's officers and directors engaged in

the fertilizer business on the meaning and requirements of this Final

Judgment and the antitrust laws;

4. Obtaining annually from each officer or employee designated in

Section VII(B)(1) and (2) a written certification that he or she: (a)

Has read, understands, and agrees to abide by the term of this Final

Judgment; (b) understands that failure to comply with this Final

Judgment may result in conviction for criminal contempt of court; and

(c) is not aware of any violation of the Final Judgment that has not

been reported to the Antitrust Compliance Officer;

5. Maintaining a record of recipients from whom the certification

required by Section VII(B)(4) has been obtained; and

6. Distributing in a timely manner, and in all cases before

entering any agreement, understanding, contract, or combination to

submit a joint bid and before making the notification to the required

parties under Section V, above, a copy of this Final Judgment to any

person with whom the defendant enters into discussions or negotiations

for the possible submission of a joint bid for the acquisition of any

fertilizer asset.

C. Defendant is also ordered to file with this Court and serve upon

plaintiff, within ninety (90) days after the date of defendant's re-

entry in the fertilizer business, an affidavit as to the fact and

manner of its compliance with this Final Judgment.

D. If defendant's Antitrust Compliance Officer learns of any

violations of this Final Judgment, defendant shall forthwith take

appropriate action to terminate or modify the activity so as to assure

compliance with this Final Judgment.

VIII

Plaintiff Access

A. For the purpose of determining or securing compliance with this

Final Judgment, and subject to any legally recognized privilege, duly

authorized representatives of the plaintiff shall, upon written request

by the Assistant Attorney General in charge of the Antitrust Division,

and on reasonable notice to the defendant, be permitted:

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

all records and documents in its possession or control relating to the

fertilizer business specifically described in this Final Judgment; and

2. Subject to the reasonable convenience of defendant and without

restraint or interference from defendant, to interview the defendant's

officers, employees, or agents engaged in the fertilizer business, who

may have counsel present, regarding the defendant's fertilizer

business.

B. Upon written request by the Assistant Attorney General in charge

of the Antitrust Division, the defendant shall submit such written

reports, under oath if requested, relating to the fertilizer business

concerning matters contained in this Final Judgment as may be

requested, subject to any legally recognized privilege.

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

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

other than a duly authorized representative of the Executive Branch of

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

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

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

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

defendant to plaintiff, defendant represents and identifies in writing

the material in any such information or documents to which a claim of

protection may be asserted under Rule 26(c)(7) of the Federal Rules of

Civil Procedure, and the 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 20 days' notice shall be given

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

proceeding (other than a grand jury proceeding) to which that defendant

is not a party.

IX

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 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 herewith, and to

punish any violations of its provisions. Nothing in this provision

shall give standing to any person not a party to this Final Judgment to

seek any relief related to it.

X

Term

This Final Judgment will expire on the tenth anniversary of its

date of entry.

[[Page 34308]]

XI

Public Interest

Entry of this Final Judgment is in the public interest.

Dated: ______

Court approval subject to the Antitrust Procedures and Penalties

Act, 15 U.S.C. 16.

United States District Judge

Competitive Impact Statement

Judge Elizabeth A. Kovachevich

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

Act, 15 U.S.C. 16(b)-(h), the United States submits this Competitive

Impact Statement relating to the proposed Final Judgment submitted for

entry with the consent of Seminole Fertilizer Corporation in this civil

antitrust proceeding.

I

Nature and Purpose of the Proceeding

On June 18, 1997 the United States filed a civil antitrust

complaint alleging that defendant and others conspired unreasonably to

restrain competition in violation of Section 1 of the Sherman Act, 15

U.S.C. 1. The Complaint alleges that defendant, Norsk Hydro USA Inc.

(``Norsk USA''), and Farmland Industries, Inc. (``Farmland'') met on

March 5, 1992, and discussed sharing pipeline capacity and the cost of

bidding on an ammonia tank and pipeline interest, hereinafter referred

to as the Tampa Facility. At the conclusion of the meeting, defendant,

Norsk USA, and Farmland reached a tentative agreement, which was later

reduced to writing. The Complaint also alleges that on March 9 and

March 10, 1992, defendant and Norsk USA discussed the terms of the

agreement by telephone on several occasions and that they executed the

written agreement two hours before the scheduled auction of the Tampa

Facility on March 12, 1992. The agreement provided that defendant would

give bid support of up to $2.5 million to Norsk USA, if necessary, to

defeat a competing bid. In exchange, Norsk USA agreed to give defendant

increased pipeline capacity if Norsk USA was the successful bidder.

This agreement had the effect of eliminating defendant, Norsk USA's

chief rival, as a viable competing bidder for the Tampa Facility.

Almost immediately after signing the agreement, defendant stated that

it was no longer going to attend the auction of the Tampa Facility. At

the auction on the afternoon of March 12, there were no bids for the

Tampa Facility other than the one previously submitted by Norsk USA.

On ____, the United States and defendant filed a Stipulation by

which they consented to the entry of a proposed Final Judgment

following compliance with the Antitrust Procedures and Penalties Act,

15 U.S.C. 16(b)-(h). The proposed Final Judgment, as will be discussed

in detail in Section IV.A., would order defendant to refrain from

soliciting, entering, or attempting to enter any agreement to submit

any jointly determined bids for the acquisition of any fertilizer asset

(as defined in the Final Judgment) located in the United States with

any other person that is known or reasonably should be known to

defendant to be a potential bidder on the sale of that fertilizer

asset. The Final Judgment would also enjoin defendant from soliciting,

entering, or attempting to enter any agreement to set or establish the

price or other terms and conditions of any bids for the acquisition of

any fertilizer asset located in the United States.

II

Description of Defendant

Defendant, a wholly owned subsidiary of Tosco Corporation, sold all

of its assets in May 1993. Before its assets were sold, defendant

maintained its corporate offices in Stamford, Connecticut, and was a

manufacturer and distributor of phosphatic fertilizer. It operated

production and storage facilities in central Florida, near Tampa.

III

The Tampa Facility and Events Leading Up to the Alleged Violation

A. The Tampa Facility

The Tampa Facility, which consists of an ammonia terminal located

in the Port of Tampa, Florida, and a one-half interest in a pipeline

system connected to the ammonia terminal,\1\ is used for storing,

handling, and delivering anhydrous ammonia, one of the raw materials

used in the manufacture of phosphatic fertilizers. Located on

approximately 17\1/2\ acres of land leased from the Tampa Port

Authority, the Tampa Facility has a single tank with a 35,000 metric

ton storage capacity. It services five nearby phosphatic fertilizer

plants,\2\ where the ammonia is combined with phosphoric acid to create

diammonium phosphate. The Tampa Facility is able to service by truck or

rail other phosphatic fertilizer plants not connected to it. During the

early 1990's the Tampa Facility was owned by the Royster Company

(``Royster''), now known as Mulberry Phosphates, Inc. (``MPI'').

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\1\ Defendant owned the other one-half interest in the pipeline,

along with a separate ammonia terminal (consisting of two ammonia

tanks) that also was connected to the pipeline.

\2\ If defendant had been successful in acquiring the Tampa

Facility, it would have been the exclusive supplier to those five

plants.

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B. The Bankruptcy of Royster and the Failed Auction

Royster was a manufacturer of phosphatic fertilizers and related

products for the domestic and export markets. Its principal facilities

included a plant for the production of diammonium phosphate, located in

Mulberry, Florida, and the Tampa Facility. Royster filed for bankruptcy

protection on April 8, 1991, after months of experiencing financial

hardships. Under the reorganization plan submitted to the Bankruptcy

Court, Royster proposed to liquidate certain assets, including its

Tampa Facility. Shortly after news of the potential sale of the Tampa

Facility went public, Norsk USA and defendant separately expressed

interest in acquiring it. After extensive negotiations with Royster

officials, Norsk USA agreed to purchase the property for $15.5 million

and executed an asset purchase agreement for the property on September

25, 1991. The agreement guaranteed Royster the right to purchase a

continuing supply of ammonia from the terminal for its Mulberry plant

and contained a through-put provision that permitted it to put the

ammonia through the pipeline from the terminal to the plant. In

November of that same year, the Bankruptcy Court ordered that the Tampa

Facility be sold by auction and that bids be taken against Norsk USA's

offer of $15.5 million. The auction was scheduled for March 12, 1992.

It was not until the auction was announced that a third Company, CF

Industries (``CF''),\3\ publicly expressed any interest in acquiring

that Tampa Facility.

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\3\ CF is a cooperative which has been a major participant in

the fertilizer business since the mid-1960's and has operated world-

scale phosphatic fertilizer plants in Florida since 1969.

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On December 18, 1991, the Bankruptcy Court issued an order

approving bidding procedures in connection with the proposed sale of

the Tampa Facility. Any third party offer had to: (1) Be substantially

similar to the one contained in the Norsk USA Asset Purchase Agreement;

(2) be at least $1 million more than the Norsk USA offer of $15.5

million; (3) include an offer to enter into a through-put agreement

with Royster; and (4) include a confidentiality agreement with Royster

and Norsk USA regarding disclosure of the terms of the Royster/Norsk

USA

[[Page 34309]]

Through-put Agreement. In addition, the Order required that the third

party deposit $1 million in escrow no later than the time at which it

submitted an offer. The money deposited was to remain in escrow pending

the earlier of (a) the closing of the sale to the third party if its

offer was approved by the Bankruptcy Court or (b) the entry of an order

approving the sale of the Tampa Facility to either Norsk USA or another

third party bidder. After depositing the $1 million, the third party

was entitled to receive documents setting forth the results of the

inspection of the Tampa Facility's tank, the cost of repair, the terms

of the Royster/Norsk USA Through-put Agreement, and the terms of any

through-put agreements submitted by any other third parties.

In February 1992, CF deposited $1 million in escrow. Defendant made

its escrow deposit on March 9, 1992, three days before the auction. At

the time of the auction, there were four bidders who were qualified to

bid: Norsk USA, CF, defendant, and Superfos Investments Limited

(``Superfos'').\4\ CF informed Royster shortly before the auction that

it would not be bidding, because of environmental concerns raised by a

just-completed study it had done. Only Norsk USA appeared at the

auction site on the afternoon of March 12 to bid on the Tampa Facility.

There having been no new bids tendered, Norsk USA's standing offer of

$15.5 million was accepted, pending approval by the Bankruptcy Court.

In a meeting later that afternoon to finalize the details of the sale

before a March 13 court hearing, Royster representatives discovered

that Norsk USA and defendant had executed a joint bidding agreement

approximately two hours before the auction was scheduled to begin.

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\4\ Since Superfos was a major creditor of Royster, the

Bankruptcy Court exempted Superfos from the $1 million escrow

requirement and gave it permission to submit a credit bid. Thus,

Superfos could deduct from its bid offer the amount it was owed by

Royster.

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At the hearing the following day, Royster representatives advised

the Bankruptcy Court of the agreement between defendant and Norsk USA.

The Bankruptcy Court deferred ratification of the sale and ordered

discovery to be taken. A few days later, the Bankruptcy Court received

two anonymous communications regarding the bidding agreement. One

communication was a letter alleging that defendant had agreed to

backstop Norsk USA's bid and that defendant's bid supplement was leaked

to CF, causing them to withdraw. The letter pinpointed Steve Yurman,

defendant's president, as the villain in the alleged deal. The other

communication was one of defendant's internal memoranda written by

Yurman describing the terms of the March 12 agreement. After reviewing

the information obtained during discovery in light of the anonymous

correspondence, the Bankruptcy Court, at a hearing on March 20, refused

to ratify the sale of the Tampa Facility to Norsk USA and ordered that

a second auction be held. At the second auction, on June 17, 1992, CF

and Norsk USA submitted bids, and CF won the Tampa Facility with a

final bid of $21.6 million. (By the time of the second auction, CF had

been able to resolve its environmental concerns.)

C. Evidence of Collusion

On February 26, 1992, representatives of defendant, Norsk USA, and

Farmland met at the Rihga Royal Hotel in New York to discuss an alleged

``joint venture'' proposal by defendant. The proposal involved Norsk

USA buying the Tampa Facility and keeping the interest in the pipeline,

but possibly selling the tank to CF. The meeting concluded with no

agreements being reached.

The same parties met again on March 5, 1992, at the same hotel.

They primarily discussed sharing pipeline capacity and the cost of

bidding on the terminal. Specifically, Norsk USA, Farmland, and

defendant proposed that Norsk USA and defendant enter into an agreement

whereby defendant would supplement Norsk USA's bid and consent to

Royster's transfer of its pipeline interest to Norsk USA in return for

Norsk USA giving defendant extra pipeline capacity.\5\ A tentative

agreement was reached and Norsk USA indicated that it would have its

attorneys reduce the agreement to writing and send defendant a draft to

review. Norsk USA sent the first written draft to defendant on March 6,

and on March 9 and March 10 representatives of Norsk USA and defendant

discussed, via telephone on several occasions, the terms of the draft

agreement.

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\5\ As owner of the other one-half interest in the Tampa

Facility's pipeline lease, defendant already had the right to use

450,000 tons of the pipeline's 900,000 ton capacity.

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On the morning of March 12, officials of Farmland, Norsk USA,

Tosco, and defendant, along with their attorneys, met in Tampa,

Florida, at the law offices of MacFarlane Ferguson, Norsk USA's local

counsel, to resume negotiating the details of the proposed agreement.

After hours of negotiations, the parties agreed, in part, that (a)

defendant would supplement Norsk USA's bid up to $2.5 million and

consent to Royster's assignment of its one-half interest in the

pipeline lease to Norsk USA and (b) Norsk USA, in return, would give

defendant the right to use an extra 40,000 tons of the pipeline's

capacity. Almost immediately after signing the agreement, defendant

stated that it was no longer attending the auction.

One of defendant's representatives appeared at the auction moments

before it started and advised Royster that it was withdrawing from the

bidding. Later that evening, representatives of Norsk USA and defendant

talked by telephone and agreed to instruct their counsel to confer with

one another to prepare for the court hearing the next day.

In this case, there was virtually no evidence of covert activity,

which indicated that the subjects of the investigation were not aware

of, or did not appreciate, the full consequences of their actions. This

lack of covertness is one of the main reasons this case is being filed

civilly rather than criminally. See Antitrust Division Manual, Section

III.E., at III-12 (October 18, 1987) (Second Edition).

IV

Explanation of Proposed Final Judgment

A. Prohibited Conduct

Section IV. A. enjoins defendant from directly, indirectly, or

through any joint venture, partnership, or other device, entering into,

attempting to enter into, organizing or attempting to organize,

implementing or attempting to implement, or soliciting any agreement,

understanding, contract, or combination, either express or implied,

with any other person: (1) To submit any jointly determined bids for

the acquisition of any fertilizer asset located in the United States;

or (2) to illegally set or establish the price or other terms and

conditions of any bids for the acquisition of any fertilizer asset

located in the United States.

Paragraph B. of Section IV. also enjoins defendant from directly,

indirectly, or through any joint venture, partnership, or other device,

communicating or inquiring about any intentions, decisions, or plans to

refrain from bidding or to bid, including any intentions, decisions, or

plans regarding any actual or proposed bid amounts, for the acquisition

of any fertilizer asset located in the United States, where such

communication or inquiry is to (1) any other person that is known or

reasonably should be known by defendant to be a potential bidder on the

sale of that fertilizer asset or (2) any other person that has

announced an

[[Page 34310]]

intention to bid on the sale of that fertilizer asset.

Paragraph C. of Section IV. enjoins the defendant from directly,

indirectly, or through any joint venture, partnership, or other device,

requesting, suggesting, urging, or advocating that any other person not

bid on, or suggesting that it would not be profitable, desirable, or

appropriate for any other person to bid on, the sale of any fertilizer

asset located in the United States.

B. Compliance Program and Certification

The Final Judgment acknowledges that defendant currently is not

engaged in the fertilizer business and, as a result, suspends all of

defendant's compliance obligations under Section VII. of the Final

Judgment until such time as defendant re-enters and engages in the

fertilizer business during the term of the Final Judgment. If and when

defendant re-enters the fertilizer business during the term of the

Final Judgment, within thirty (30) days of re-entery defendant must

establish and maintain for as long as it engages in the fertilizer

business an antitrust compliance program which shall include

designating an Antitrust Compliance Officer with responsibility for

accomplishing the compliance program. The Antitrust Compliance Officer

is required to, on a continuing basis, supervise the review of the

current and proposed activities of the defendant to ensure that it is

in compliance with the program. The Antitrust Compliance Officer is

also required to (1) distribute a copy of the Final Judgment to all

officers and directors, and any person who otherwise manages defendant

with respect to the fertilizer business, (2) distribute in a timely

manner copy of the Final Judgment to any person who succeeds to a

position described in Section VII.B.1. of the Final Judgment, (3) brief

annually defendant's officers and directors engaged in the fertilizer

business on the meaning and requirements of the Final Judgment and the

antitrust laws, and (4) obtain annually from each officer or employee

designated in Section VII.B.1 and 2. of the Final Judgment a written

certification that he or she: (a) Has read, understands, and agrees to

abide by the terms of the Final Judgment; (b) understands that failure

to comply with the Final Judgment may result in conviction for criminal

contempt of court; and (c) is not aware of any violation of the Final

Judgment that has not been reported to the Antitrust Compliance

Officer.

Moreover, defendant is required to distribute in a timely manner a

copy of the Final Judgment to any person with whom the defendant enters

into discussions or negotiations for the possible submission of a joint

bid for the acquisition of any fertilizer asset and file with this

Court and serve upon plaintiff, within ninety (90) days after the date

of defendant's re-entry in the fertilizer business, an affidavit as to

the fact and manner of its compliance with this Final Judgment.

Defendant is also required to take appropriate action to terminate or

modify any activities it uncovers that violate any provision of the

Final Judgment.

V

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 being 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 actions under

the Clayton Act. 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 private lawsuit that may be brought against the

defendant.

VI

Procedures Available for Modification of the Proposed Final Judgment

As provided by the Antitrust Procedures and Penalties Act, any

person believing that the proposed Final Judgment should be modified

may submit written comments to John T. Orr, Chief, Atlanta Field

Office, U.S. Department of Justice, Antitrust Division, 75 Spring

Street, S.W., Suite 1176, Atlanta, Georgia, 30303, within the 60-day

period provided by the Act. These comments, and the Department's

responses, will be filed with the Court and published in the Federal

Register. All comments will be given due consideration by the

Department of Justice, which remains free to withdraw its consent to

the proposed Final Judgment at any time prior to entry.

VII

Alternative to the Proposed Final Judgment

The Department considered, as an alternative to the proposed Final

Judgment, litigation seeking comparable equitable relief. In the view

of the Department of Justice, a trial would involve substantial cost to

the United States and is not warranted because the Proposed Judgment

provides relief that will remedy the violations of the Sherman Act

alleged in the Complaint of the United States.

VIII

Determinative Materials and Documents

No materials and documents described in Section 2(b) of the

Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b), were used in

formulating the proposed Final Judgment.

Date: ______

Respectfully submitted,

Karen E. Sampson,

Belinda A. Barnett,

Attorneys for Plaintiff, U.S. Department of Justice, Antitrust

Division, 75 Spring Street, S.W., Suite 1176, Atlanta, Georgia 30303,

(404) 331-7100.

[FR Doc. 97-16593 Filed 6-24-97; 8:45 am]

BILLING CODE 4410-11-M