United States of America v. Fiat S.p.A., Fiat Acquisition Corporation, New Holland N.V., New Holland North America, Inc., and Case Corporation; Proposed Final judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States of America v. Fiat S.p.A., Fiat Acquisition

Corporation, New Holland N.V., New Holland North America, Inc., and

Case Corporation; Proposed Final judgment and Competitive Impact

Statement

Notice is hereby given pursuant to the Antitrust Procedures and

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

Hold Separate Stipulation and Order, and a proposed Final Judgment were

filed with the United States District Court for the District of

Columbia in United States of America v. Fiat S.p.A., Fiat Acquisition

Corporation, New Holland N.V., New Holland North America, Inc., and

Case Corporation, Civil No. 1:99CV02927JR on November 4, 1999. On

November 19, 1999, the United States filed a Competitive Impact

Statement. The Complaint alleged that the proposed acquisition of

certain assets of Case Corporation (``Case'') by Fiat S.p.A. would

violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, in the

markets for two-wheel-drive and four-wheel-drive agricultural tractors,

large square balers, small square balers and self-propelled windrowers.

The proposed Final Judgment, filed at the same time as the Complaint,

requires New Holland and Case, among other things, to do the following:

(1) Sell New Holland's Versatile line of our-wheel-drive tractors; (2)

sell New Holland's Genesis line of large two-wheel-drive agriculture

tractors; and (3) sell Case's interest in Hay & Forage Industries

(``HFI''), a joint venture that sells hay tools. The proposed Final

judgment requires that the purchaser of the divested assets continue to

operate them in the manufacture and distribution of four-wheel-drive,

large two-wheel-drive tractors and hay tools. The Competitive Impact

Statement describes the Complaint, the proposed Final judgment, the

industry, and the remedies available to private litigants who may have

been injured by the alleged violation. Copies of the Complaint, Hold

Separate Stipulation and Order, proposed Final judgment, and

Competitive Impact Statement are available for inspection in Room 215

of the U.S. Department of Justice, Antitrust Division, 325 7th Street,

NW, Washington, DC, and at the office of the Clerk of the United States

District Court for the District of Columbia, Washington, DC. Copies of

any of these materials may be obtained upon request and payment of a

copying fee.

Public comment is invited within 60 days of the date of this

notice. Such comments, and response thereto, will be published in the

Federal Register and filed with the Court. Comments should be directed

to J. Robert Kramer II, Chief, Litigation III Section, Antitrust

Division, United States Department of Justice, 1401 H Street, NW, Suite

3000, Washington, DC 20530 (telephone: 202-307-0924).

Constance K. Robinson,

Director of Operations.

Hold Separate Stipulation and order

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

their respective attorneys that:

I. Definitions

As used in this Hold Separate Stipulation and Order:

A. ``Fiat'' means defendant Fiat S.p.A., an Italian corporation

with its headquarters in Turin, Italy, its successors and assigns, and

its subsidiaries, divisions, groups, affiliates, partnerships, joint

ventures, directors, officers, managers, agents, and employees.

B. ``Case'' means Case Corporation, a Delaware corporation with its

headquarters in Racine, Wisconsin, its successors and assigns, and its

subsidiaries, divisions, groups, affiliates, partnerships, joint

ventures, directors, officers, managers, agents, and employees.

C. ``HFI'' means Hay and Forage Industries, the hay and forage

equipment manufacturing joint venture between Case and AGCO Corporation

(``AGCO'') whose plant is located in Hesston, Kansas.

D. ``Hold Separate Assets'' means the assets required to be

divested under the proposed Final Judgment, as defined in

[[Page 68378]]

Section II.J of the proposed Final Judgment.

II. Objectives

The proposed Final Judgment filed in this case is meant to ensure

Fiat's prompt divestiture of certain assets to remedy the effects that

the United States alleges would otherwise result from Fiat's proposed

acquisition of Case. This Hold Separate Stipulation and Order ensures

that, prior to such divestitures, the Hold Separate Assets be

maintained and operated as independent, economically viable, ongoing

business concerns in the manufacture and sale of tractors and hay and

forage equipment until the required divestitures are complete.

III. Jurisdiction and Venue

The Court has jurisdiction over the subject matter of this action

and over each of the parties hereto, and venue of this action is proper

in the United States District Court for the District of Columbia.

IV. Compliance With and Entry of Final Judgment

A. The parties stipulate that a Final Judgment in the form attached

hereto may be filed with 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), and without further notice to any party or other

proceedings, provided that the United States has not withdrawn its

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

Final Judgment by serving notice thereof on defendants and by filing

that notice with the Court.

B. Defendants shall abide by and comply with the provisions of the

proposed Final Judgment pending entry of the Final Judgment by the

Court, or until expiration of time for all appeals of any Court ruling

declining entry of the proposed Final Judgment, and shall, from the

date of the signing of this Hold Separate Stipulation and Order by the

parties, comply with all the terms and provisions of the proposed Final

Judgment as though the same were in full force and effect as an Order

of the Court.

C. This Hold Separate Stipulation and Order shall apply with equal

force and effect to any amended proposed Final Judgment agreed upon in

writing by the parties and submitted to the Court.

D. In the event the United States has withdrawn its consent, as

provided in Paragraph IV.A above, or if the proposed Final Judgment is

not entered pursuant to this Hold Separate Stipulation and Order, or if

the time has expired for all appeals of any Court ruling declining

entry of the proposed Final Judgment, and the Court has not otherwise

ordered continuing compliance with the terms and provisions of the

proposed Final Judgment, then the parties are released from all further

obligations under this Hold Separate Stipulation and Order, and the

making of this Hold Separate Stipulation and Order shall be without

prejudice to any party in this or any other proceeding.

E. Defendants represent that the divestiture ordered in the

proposed Final Judgment can and will be made, and that defendants will

later raise no claim of hardship or difficulty as grounds for asking

the Court to modify any of the divestiture provisions contained

therein.

V. Hold Separate Provisions

Until the divestitures required by the proposed Final Judgment bave

been accomplished:

A. Fiat shall preserve, maintain, and operate the Hold Separate

Assets as viable competitive businesses, with management and direction

of research, development, production, sales, and operations of such

assets held entirely separate, distinct and apart from those of Fiat.

Fiat shall not coordinate with the management of the Hold Separate

Assets in its production, marketing or sale of any products with that

of any of the Hold Separate Assets that Fiat will own as a result of

the acquisition of Case. Within fifteen (15) days of the entering of

this Hold Separate Stipulation and Order, Fiat will inform the United

States of the steps taken to comply with this provision.

B. Fiat shall not influence or attempt to influence any operational

or financial decision of HFI and shall not obtain, directly or

indirectly, any information, except information that is clearly

necessary for Fiat to comply with federal, state or local laws and

regulations or financial information that has been made available to

potential purchasers. Fiat or Case Corporation shall cause the Case-

appointed members of the HFI Management Committee to resign and shall

assign to AGCO Case's right to appoint members of the HFI Management

Committee pending the divestiture. If AGCO agrees that the current

Case-appointed HFI General Manager continues in his position, Fiat and

Case will ensure that he complies with the firewall specified in

Section V.D. In the event that the current Case-appointed HFI General

Manager resigns his position as HFI General Manager, Fiat or Case shall

assign to AGGO Case's right to appoint the HFI General Manager. In

addition, Fiat or Case shall immediately vest all unvested pension and

other equity rights of the current Case-appointed HFI General Manager

and provide that employee all benefits the employee would be entitled

to if terminated without cause. Within ten (10) working days of the

entering of this Hold Separate Stipulation and Order by the Court, Fiat

will inform the United States of the steps to comply with this

provision.

C. Fiat shall take all steps necessary to ensure that the Hold

Separate Assets will be maintained and operated as ongoing,

economically viable and active competitors in the development,

production and sale of tractors and hay and foraging equipment, that

the management of the Hold Separate Assets will not be influenced by

Fiat, and that the books, records, competitively sensitive sales,

marketing and pricing information, and decision-making associated with

the Hold Separate Assets including the performance and decision-making

functions regarding internal research and development, sales and

pricing, will be kept separate and apart from the business of Fiat.

Fiat's influence over the Hold Separate Assets shall be limited to that

necessary to carry out Fiat's obligations under this Hold Separate

Stipulation and Order and the proposed Final Judgment.

D. Defendants shall construct and maintain in place a firewall that

prevents any information about the Hold Separate Assets, including but

not limited to information about AGCO's and defendants' requirements,

purchases, or future requirements for tractors and for hay and foraging

equipment manufactured by HFI, from flowing to any employee of

defendants not involved in the operation of the Hold Separate Assets.

To implement this provision, defendants shall identify those employees

involved in the operation of the Hold Separate Assets, and all

employees not so identified shall be prohibited from receiving any

information from or about the Hold Separate Assets, including but not

limited to defendants' and AGCO's requirements, purchases, or future

requirements for tractors and for hay and foraging equipment from HFI.

All identified employees who receive any such information shall be

prohibited from passing on such information to employees not so

identified.

E. Fiat shall, within ten (10) business days of the filing of the

Complaint, submit to the Department of Justice a document setting forth

in detail the procedures to effect compliance with

[[Page 68379]]

Paragraph D. The Department of Justice shall have the sole discretion

to approve the compliance plan and shall notify defendants within three

(3) business days whether it approves of or rejects the compliance

plan. In the event that the compliance plan is rejected, the reasons

for the rejection shall be provided to defendants and defendants shall

be given the opportunity to submit, within two (2) business days of

receiving the notice of rejection, a revised compliance plan. If the

parties cannot agree on a compliance plan within an additional three

(3) business days, a plan will be devised by the Department of Justice

and implemented by defendants.

F. Fiat shall provide and maintain sufficient working capital to

maintain the Hold Separate Assets as viable, ongoing operations,

consistent with current business plans.

G. Fiat shall provide and maintain sufficient lines and sources of

credit to maintain the Hold Separate Assets as viable, ongoing

operations, consistent with current business plans.

H. Fiat shall use all reasonable efforts to maintain and increase

the sales of the Hold Separate Assets, including funding at previously

approved levels for 1999 for internal research and development, sales,

marketing, and support for the Hold Separate Assets.

I. Fiat shall not sell, lease, assign, transfer or otherwise

dispose of, or pledge as collateral for loans, assets that may be

required to be divested pursuant to the proposed Final Judgment.

J. Except in the ordinary course of business or as is otherwise

consistent with this Hold Separate Stipulation and Order, defendants

shall not transfer or terminate, or alter, to the detriment of any

employee, any current employment or salary agreements for any employee

who, on the date of entry of this Hold Separate Stipulation and Order,

works for Case or Fiat and whose primary responsibility relates to the

Hold Separate Assets.

K. Within ten (10) days of the filing of this Hold Separate

Stipulation and Order, defendants shall appoint one or more persons

from current management, acceptable to the United States in its sole

discretion, who shall have complete managerial responsibility for the

Hold Separate Assets, subject to the provisions of this Hold Separate

Stipulation and Order and the proposed Final Judgment, until such time

as this Hold Separate Stipulation and Order is terminated. In the event

that such manager(s) is unable to perform his or her duties, Fiat shall

appoint from the current management of the Hold Separate Assets,

subject to the approval of the United States in its sole discretion, a

replacement within ten (10) working days. Should Fiat fail to initially

appoint a manager acceptable to the United States, or fail to appoint

any replacement required within ten (10) working days, the United

States shall appoint the manager.

L. Fiat shall take no action that would interfere with the ability

of any trustee appointed pursuant to the proposed Final Judgment to

complete the divestiture pursuant to the proposed Final Judgment to a

suitable purchaser.

M. This Hold Separate Order and Stipulation shall remain in effect

until the divestitures required by the Final Judgment are complete, or

until further Order of the Court.

Dated: November 4, 1999.

For Plaintiff United States of America

Joan Farragher, Esquire,

U.S. Department of Justice, Antitrust Division, Litigation II

Section, 1401 H Street, N.W., Suite 3000, Washington, D.C. 20005,

(202) 307-0001.

For Defendants

Steven C. Sunshine, Esq.,

Counsel for Fiat S.p.A., New Holland N.V., New Holland N.A., and

Fiat Acquisition Corp., Sherman & Sterling, 801 Pennsylvania Avenue,

NW., Washington, DC 20004-2604, (202) 508-8022.

Richard J. Favretto, Esq.,

Counsel for Case Corporation, Mayer, Brown & Platt, 1909 K Street,

NW., Washington, DC 20006, (202) 263-3000.

So Ordered:

Dated:

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United States District Judge

Final Judgment

Whereas, plaintiff, the United States of America (``United

States''), and defendants Fiat S.p.A., Fiat Acquisition Corporation,

New Holland N.V., New Holland North America, Inc., and Case

Corporation, by their respective attorneys, having consented to the

entry of this Final Judgment without trial or adjudication of any issue

of fact or law herein, and without this Final Judgment constituting any

evidence against or an admission by any party with respect to any issue

of law or fact herein;

And whereas, defendants have agreed to be bound by the provisions

of this Final Judgment pending its approval by the Court;

And whereas, the essence of this Final Judgment is the prompt and

certain divestiture of the identified assets to assure that competition

is not substantially lessened;

And whereas, plaintiff requires defendants to make a certain

divestiture for the purpose of remedying the loss of competition

alleged in the Complaint;

And whereas, defendants have represented to the plaintiff that the

divestiture ordered herein can and will be made and that defendants

will later raise no claims of hardship or difficulty as grounds for

asking the Court to modify any of the divestiture provisions contained

below;

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

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

consent of the parties hereto, it is hereby ordered, adjudged, and

decreed as follows:

I. Jurisdiction

This Court has jurisdiction over each of the parties hereto and

over the subject matter of this action. The Complaint states a claim

upon which relief may be granted against defendants under Section 7 of

the Clayton Act, as amended, 15 U.S.C. 18.

II. Definitions

As used in this Final Judgment:

A. ``Fiat'' means defendant Fiat S.p.A., an Italian corporation

with its headquarters in Turin, Italy, its successors and assigns, and

its subsidiaries, divisions, groups, affiliates, partnerships, joint

ventures, directors, officers, managers, agents, and employees.

B. ``Fiat Acquisition'' means Fiat Acquisition Corporation, a

subsidiary of Fiat, and its successors and assigns, its subsidiaries,

divisions, groups, affiliates, partnerships, joint ventures, directors,

officers, managers, agents, and employees.

C. ``New Holland N.V.'' means defendant New Holland N.V., a

Netherlands corporation, its successors and assigns, and its

subsidiaries, divisions, groups, affiliates, partnerships, joint

ventures, directors, officers, managers, agents, and employees.

D. ``New Holland'' means defendant New Holland North America, Inc.,

a subsidiary of New Holland N.V. and a Delaware corporation, with its

headquarters in New Holland, Pennsylvania, its successors and assigns,

its subsidiaries, divisions, groups, affiliates, partnerships, joint

ventures, directors, officers, managers, agents, and employees.

E. ``Case'' means Case Corporation, a Delaware Corporation with its

headquarters in Racine, Wisconsin, its successors and assigns, and its

subsidiaries, divisions, groups, affiliates, partnerships, joint

ventures, directors, officers, managers, agents, and employees.

F. ``HFI'' means Hay and Forage Industries, the hay and forage

[[Page 68380]]

equipment manufacturing joint venture between Case and Hesston

Corporation, which has a plant located in Hesston, Kansas.

G. ``Hay and Forage Assets'' means Case's ownership interest in

HFI.

H. ``2WD Assets'' means New Holland's Genesis line of two-wheel-

drive (``2WD'') tractors, including:

(1) All tangible assets that comprise the 2WD Assets business in

North America, including research and development activities; all

manufacturing equipment, tooling and fixed assets, personal property,

inventory, office furniture, materials, supplies, and other tangible

property and all other assets used exclusively in connection with the

2WD Assets; all licenses, permits and authorizations issued by any

governmental organization for the 2WD Assets; all contracts, teaming

arrangements, agreements, leases, commitments and understandings

relating to the 2WD Assets, including supply agreements; all lists and

credit records of ultimate customers; repair and tractor performance

records and all other records relating to the 2WD Assets; and the sale

of the New Holland Winnipeg, Manitoba, Canada plant;

(2) Any and all intangible assets used in the development,

production, servicing and sale of 2WD Assets, including, but not

limited to: (a) the Genesis brand name and all other intellectual

property rights used exclusively in connection with the 2WD Assets; (b)

with respect to all other intellectual property rights used in

connection with both the 2WD Assets and other nondivested New Holland

assets, a transferable, paid-up license, exclusive in the 2WD Assets

field of use; (c) all existing licenses and sublicenses relating

exclusively to the 2WD Assets; and (d) a transferable, paid-up

sublicense, exclusive in the 2WD Assets field of use, to all other

existing licenses and sublicenses relating to the 2WD Assets.

Intellectual property rights comprise, but are not limited to, patents,

licenses and sublicenses, technical information, computer software and

related documentation, know-how, trade secrets, drawings, blueprints,

designs, design protocols, specifications for materials and substances,

quality assurance and control procedures, design tools and simulation

capability, manuals, and all research data concerning historic and

current research and development relating to the 2WD Assets.

I. ``4WD Assets'' means New Holland's Versatile line of four-wheel-

drive (``4WD'') tractors and its tracked tractor line that is in

development, including:

(1) All tangible assets that comprise the 4WD Assets business in

North America, including research and development activities; all

manufacturing equipment, tooling and fixed assets, personal property,

inventory, office furniture, materials, supplies, and other tangible

property and all other assets used exclusively in connection with the

4WD Assets; all licenses, permits and authorizations issued by any

governmental organization for the 4WD Assets; all contracts, teaming

arrangements, agreements, leases, commitments and understandings

relating to the 4WD Assets, including supply agreements; all ultimate

customer lists and credit records; and all other records relating to

the 4WD Assets; and a sale of the New Holland Winnipeg, Manitoba,

Canada plant;

(2) Any and all intangible assets used in connection with the 4WD

Assets, including, but not limited to: (a) the Versatile brand name and

all other intellectual property rights used exclusively in connection

with the 4WD Assets; (b) with respect to all other intellectual

property rights used in connection with both the 4WD Assets and other

nondivested New Holland assets, a transferable, paid-up license,

exclusive in the 4WD Assets field of use; (c) all existing licenses and

sublicenses relating exclusively to the 4WD Assets; and (d) a

transferable, paid-up sublicense, exclusive in the 4WD Assets field of

use, to all other existing licenses and sublicenses relating to the 4WD

Assets. Intellectual property rights comprise, but are not limited to,

patents, licenses and sublicenses, technical information, computer

software and related documentation, know-how, trade secrets, drawings,

blueprints, designs, design protocols, specifications for materials and

substances, quality assurance and control procedures, design tools and

simulation capability, manuals, and all research data concerning

historic and current research and development relating to the 4WD

Assets.

J. ``Divested Assets'' means ``Hay and Forage Assets,'' 2WD

Assets'' and ``4WD Assets.'' The sale of each of the Divested Assets

shall include the purchaser's right to reasonable access to the

technical, service, production and administrative employees of the

defendants for a period not to exceed 12 months from the date of

purchase.

III. Applicability

A. The provisions of this Final Judgment apply to the defendants,

as defined above, and all other persons in active concert or

participation with any of them who shall have received actual notice of

this Final Judgment by personal service or otherwise.

B. Defendants shall require, as a condition of the sale of all or

substantially all of their assets of lesser business units that include

the Divested Assets, that the purchaser or purchasers agree to be bound

by the provisions of this Final Judgment.

IV. Divestitures

A. Defendants are hereby ordered and directed, in accordance with

the terms of this Final Judgment, within one hundred and fifty (150)

calendar days after the filing of the Complaint in this matter, or

within five (5) days after notice of entry of this Final Judgment,

whichever is later, to sell the Divested Assets as viable, ongoing

businesses to a purchaser or purchasers acceptable to the United States

in its sole discretion.

B. Defendants shall use their best efforts to accomplish said

divestiture as expeditiously as possible. The United States, in its

sole discretion, may extend the time period for any divestiture for an

additional period of time not to exceed thirty (30) calendar days.

C. In accomplishing the divestitures ordered by this Final

Judgment, defendants shall make known promptly, by usual and customary

means, the availability of the Divested Assets. Defendants shall inform

any person making an inquiry regarding a possible purchase that the

sale is being made pursuant to this Final Judgment and provide such

person with a copy of this Final Judgment. Defendants shall also offer

to furnish to all prospective purchasers, subject to customary

confidentiality assurances, all information regarding the Divested

Assets customarily provided in a due diligence process, except such

information subject to attorney-client privilege or attorney work-

product privilege. Defendants shall make such information available to

the United States at the same time that such information is made

available to any other person.

D. Defendants shall permit prospective purchasers of the Divested

Assets to have reasonable access to personnel and to make inspection of

the Divested Assets; access to any and all zoning, building, and other

permit documents and information; and access to any and all financial,

operational, or other documents and information as is

[[Page 68381]]

customarily provided as part of a due diligence process.

E. Defendants shall not interfere with any negotiations by any

purchaser or purchasers to employ any Defendants' employee who works at

the Divested Assets, or whose principal responsibility concerns the

Divested Assets.

F. Defendants shall not take any action, direct or indirect, that

would impede in any way the operation of any business connected with

the assets to be divested, or take any action, direct or indirect, that

would impede the divestiture of any asset for two years after the

divestiture.

G. Defendants shall not take any action, direct or indirect, that

would prevent or discourage in any way any dealer from distributing the

Divested Assets for two years after the divestiture. Nothing in this

provision, however, shall prevent the defendants from promoting and

selling in the ordinary course of business products that compete with

the Divested Assets.

H. Unless the United States otherwise consents in writing, the

divestitures pursuant to section IV of this Final Judgment, or by a

trustee appointed pursuant to section V, shall include all the Divested

Assets operated in place pursuant to the Hold Separate Stipulation and

Order. Such divestiture shall be accomplished by selling or otherwise

conveying the Divested Assets to a purchaser or purchasers in such a

way as to satisfy the United States, in its sole discretion, that the

Divested Assets can and will be used by the purchaser as part of a

viable, ongoing business, engaged in the manufacture and distribution

of: 2WD tractors, 4 WD tractors, and/or hay and forage equipment. Each

divestiture, whether pursuant to section IV or section V of this Final

Judgment, shall be made to a purchaser that has satisfied the United

States in its sole discretion, that it: (1) Has the capability and

intent of competing effectively in the development, production and sale

of the divested asset; (2) has the managerial, operational, and

financial capability to compete effectively in the manufacture of the

divested asset; and (3) is not hindered by the terms of any agreement

between the purchaser and defendants which gives defendants the ability

unreasonably to raise the purchaser's costs, to lower the purchaser's

efficiency, or otherwise to interfere with the ability of the purchaser

to compete.

I. In connection with any divestiture of 4WD Assets and/or 2WD

Assets pursuant to section IV of this Final Judgment, or by a trustee

appointed pursuant to section V, not accompanied by the sale of the

Winnipeg plant, the defendant shall offer the purchaser a short-term,

transitional agreement, not to exceed two years in length, to

manufacturer and deliver to the purchaser in a timely manner, the

purchaser's requirements for Genesis and/or Versatile series tractors

and parts, on such terms and conditions as are reasonably designed to

enable the purchaser(s) to compete with defendants in the sale of 4WD

and 2WD tractors, and are acceptable to the United States in its sole

discretion.

J. Under each divestiture pursuant to Section IV of this final

Judgment, or by a trustee appointed pursuant to Section V, defendants

retain the right to negotiate a transitional supply agreement to

manufacture and deliver to defendants in a timely manner defendants'

requirements for Genesis and Versatile tractors and hay and forage

equipment. Such agreements shall not include the use of the Versatile

or Genesis trade names and shall not last for a term longer than, for

2WD or 4WD tractors, 24 months from the filing of the Hold Separate

Stipulation and Order in this case, and for hay tools and forage

equipment, 18 months from the filing of the Hold Separate Stipulation

and Order in this case. Transfer pricing shall be based on auditable

cost data and such agreements shall include terms and conditions

reasonably designed to enable the defendants to compete with

purchaser(s) in the sale of 4WD tractors, 2WD tractors and hay tools

and forage equipment. The terms and conditions of any such agreements

must be acceptable to the United States in its sole discretion. Such

agreements may only be amended with the prior approval of the United

States in its sole discretion.

V. Appointment of Trustee

A. In the event that defendants have not divested the Divested

Assets within the time specified in Section IV of this Final Judgment,

the Court shall appoint, on application of the United States, a trustee

selected by the United States, to affect the divestitures of the

Divested Assets.

B. After the appointment of a trustee becomes effective, only the

trustee shall have the right to sell the Divested Assets. The trustee

shall have the power and authority to accomplish the divestitures at

the best price then obtainable upon a reasonable effort by the trustee,

subject to the provisions of Sections IV and V of this Final Judgment,

and shall have such other powers as the Court shall deem appropriate.

Subject to Section V.C. of this Final Judgment, the trustee shall have

the power and authority to hire at the cost and expense of defendants

any investments bankers, attorneys, or other agents reasonably

necessary in the judgment of the trustee to assist in the divestitures,

and such professionals and agents shall be accountable solely to the

trustee. The trustee shall have the power and authority to accomplish

the divestitures at the earliest possible time to a purchaser or

purchasers acceptable to the United States, in its sole discretion, and

shall have such other powers as this Court shall deem appropriate.

Defendants shall not object to a sale by the trustee on any ground

other than the trustee's malfeasance. Any such objections by defendants

must be conveyed in writing to the United States and the trustee within

ten (10) calendar days after the trustee has provided the notice

required under Section VI of this Final Judgment.

C. The trustee shall serve at the cost and expense of defendants,

on such terms and conditions as the Court may prescribe and the trustee

shall account for all monies derived from the sale of the Divested

Assets sold and all costs and expenses so incurred. After approval by

the Court of the trustee's accounting, including fees for its services

and those of any professionals and agents retained by the trustee, all

remaining money shall be paid to defendants and the trust shall then be

terminated. The compensation of the trustee and of any professionals

and agents retained by the trustee shall be reasonable in light of the

value of the divested Assets and based on a fee arrangement providing

the trustee with an incentive based on the price and terms of the

divestitures and the speed with which they are accomplished.

D. Defendants shall use their best efforts to assist the trustee in

accomplishing the required divestitures, including their best efforts

to effect all necessary regulatory or other approvals. The trustee and

any consultants, accountants, attorneys, and other persons retained by

the trustee shall have full and complete access to the personnel,

books, records, and facilities of the businesses to be divested, and

defendants shall develop financial or other information relevant to the

Divested Assets customarily provided in a due diligence process as the

trustee may reasonably request, subject to customary confidentiality

assurances. Defendants shall permit prospective purchasers or the

Divested Assets to have reasonable access to personnel and to make such

inspection of physical facilities and any and all financial,

operational or other documents and other information as may be relevant

to

[[Page 68382]]

the divestitures required by their Final Judgment.

E. After its appointment, the trustee shall file monthly reports

with the parties and the Court setting forth the trustee's efforts to

accomplish the divestitures ordered under the Final Judgment; provided,

however, that to the extent such reports contain information that the

trustee deems confidential, such reports shall not be filed in the

public docket of the Court. Such reports shall include the name,

address and telephone number of each person who, during the preceding

month, made an offer to acquire, expressed an interest in acquiring,

entered into negotiations to acquire, or was contacted or made an

inquiry about acquiring, any interest in the Divested Assets, and shall

describe in detail each contact with any such person during that

period. The trustee shall maintain full records of all efforts made to

sell the Divested Assets.

F. If the trustee has not accomplished such divestitures within six

(6) months after its appointment, the trustee thereupon shall file

promptly with the Court a report setting forth: (1) The trustee's

efforts to accomplish the required divestitures; (2) the reasons, in

the trustee's judgment, why the required divestitures have not been

accomplished; and (3) the trustee's recommendations; provided, however,

that to the extent such reports contain information that the trustee or

the defendants deem confidential, such reports shall not be filed in

the public docket of the Court. The trustee shall at the same time

furnish such report to the parties, who shall each have the right to be

heard and to make additional recommendations consistent with the

purpose of the trust. The Court shall enter thereafter such orders as

it shall deem appropriate in order to carry out the purpose of the

trust, which may, if necessary, include extending the trust and the

term of the trustee's appointment by a period requested by the United

States.

VI. Notice of Proposed Divestitures

A. Within two (2) business days following execution of a definitive

agreement, contingent upon compliance with the terms of this Final

Judgment, to effect, in whole or in part, any proposed divestiture

pursuant to Section IV or V of this Final Judgment, defendants or the

trustee, whichever is then responsible for effecting the divestiture,

shall notify the United States of the proposed divestiture. If the

trustee is responsible, it shall similarly notify defendants. The

notice shall set forth the details of the proposed transaction and

shall list the name, address, and telephone number of each person not

previously identified who offered to, or expressed an interest in or a

desire to, acquire any ownership interest in the businesses to be

divested that is the subject of the binding contract, together with

full details of same. Within fifteen (15) calendar days of receipt by

the United States of such notice, the United States, in its sole

discretion, may request from defendants, the proposed purchaser, or any

other third party additional information concerning the proposed

divestiture and the proposed purchaser. Defendants and the trustee

shall furnish any additional information requested from them within

fifteen (15) calendar days of the receipt of the request, unless the

parties shall otherwise agree. Within thirty (30) calendar days after

receipt of the notice or within twenty (20) calendar days after the

United States has been provided the additional information requested

from defendants, the proposed purchaser, and any third party, whichever

is later, the United States shall provide written notice to defendants

and the trustee, if there is one, stating whether or not it objects to

the proposed divestiture. If the United States provides written notice

to defendants and the trustee, if there is one, that it does not

object, then the divestiture may be consummated, subject only to

defendants' limited right to object to the sale under Section V.B of

this Final Judgment. Absent written notice that the United States does

not object to the proposed purchaser or upon objection by the United

States, a divestiture proposed under Section IV or V shall not be

consummated. Upon objection by defendants under the provision in

Section V.B, a divestiture proposed under Section V shall not be

consummated unless approved by the Court.

B. Purchasers of the 2WD Assets and 4WD Assets must be defined

simultaneously by the defendants, or by the applicable trustee, in

order that the proposed divestitures may be reviewed jointly by the

United States.

VII. Affidavits

A. Within twenty (20) calendar days of the filing of the Complaint

in this matter and every thirty (30) calendar days thereafter until the

divestitures have been completed pursuant to Section IV or V of this

Final Judgment, defendants shall deliver to the United States an

affidavit as to the fact and manner of compliance with Section IV or V

of this Final Judgment. Each such affidavit shall include, inter alia,

the name, address, and telephone number of each person who, at any time

after the period covered by the last such report, made an offer to

acquire, expressed an interest in acquiring, entered into negotiations

to acquire, or was contacted or made an inquiry about acquiring, any

interest in the Divested Assets, and shall describe in detail each

contact with any such person during that period. Each such affidavit

shall also include a description of the efforts that defendants have

taken to solicit buyers for the Divested Assets, and to provide

required information to prospective purchasers, including the

limitations, if any, on such information. Assuming the information set

forth in the affidavit is true and complete, any objection by the

United States to information provided by defendants, including

limitations on information, shall be made within fourteen (14) days of

receipt of such affidavit.

B. Within twenty (20) calendar days of the filing of the Complaint

in this matter, defendants shall deliver to the United States an

affidavit which describes in detail all actions defendants have taken

and all steps defendants have implemented on an ongoing basis to

preserve the Divested Assets pursuant to Section VIII of this Final

Judgment and the Hold Separate Stipulation and Order entered by the

Court. The affidavit also shall describe, but not be limited to,

defendants' efforts to maintain and operate the Divested Assets as an

active competitor, maintain the management, staffing, research and

development activities, sales, marketing and pricing of the Divested

Asset, and maintain the Divested Assets in operable condition at

current capacity configurations. Defendants shall deliver to the United

States an affidavit describing any changes to the efforts and actions

outlined in defendants' earlier affidavit(s) filed pursuant to this

Section within fifteen (15) calendar days after the change is

implemented.

C. Until one year after the divestiture has been completed,

defendants shall preserve all records of all efforts made to preserve

the Divested Assets and to effect the divestitures.

VIII. Hold Separate Order

Until the divestiture required by the Final Judgment has been

accomplished, defendants shall take all steps necessary to comply with

the Hold Separate Stipulation and Order entered by this Court.

Defendants shall take no action that would jeopardize the divestiture

of the Divested Assets.

IX. Financing

Defendants are ordered and directed not to finance all or any part

of any

[[Page 68383]]

acquisition by any person made pursuant to Sections IV or V of this

Final Judgment.

X. Compliance Inspection

For purposes of determining or securing compliance with this Final

Judgment, or of determining whether the Final Judgment should be

modified or vacated, and subject to any legally recognized privilege,

from time to time.

A. Duly authorized representatives of the United States Department

of Justice, upon written request of the Attorney General or the

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

reasonable notice to defendants made to their principal offices, shall

be permitted:

(1) Access during office hours of defendants to inspect and copy

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

records and documents in the possession or under the control of

defendants, who may have counsel present, relating to any matter

contained in this Final Judgment and the Hold Separate Stipulation and

Order; and

(2) Subject to the reasonable convenience of defendants and without

restraint or interference from them, to interview, either informally or

on the record, their officers, employees, and agents, who may have

counsel present, regarding any such matters.

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

Assistant Attorney General in charge of the Antitrust Division, made to

defendants at their principal offices, defendants shall submit such

written reports, under oath if requested, with respect to any matter

contained in this Final Judgment and the Hold Separate Stipulation and

Order.

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

Sections V, VI, VII or X of this Final Judgment shall be divulged by a

representative of the United States 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 (including grand jury proceedings), of 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 the United States, defendants represent and identify in

writing the material in any such information or documents as 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 the United States shall

give ten (10) calendar days' notice to defendants prior to divulging

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

proceeding) to which defendants are not a party.

XI. Retention of Jurisdiction

Jurisdiction is retained by this Court for the purpose of enabling

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

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

appropriate for the construction or carrying out of this Final

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

enforcement of compliance herewith, and for the punishment of any

violations hereof.

XII. Termination

Unless this Court grants an extension, this Final Judgment will

expire upon the tenth anniversary of the date of its entry.

XIII. Public Interest

Entry of this Final Judgment is in the public interest.

Dated------------------------------------------------------------------

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

United States District Judge

Competitive Impact Statement

The United States, pursuant to Section 2(b) of the Antitrust

Procedures and Penalties Act (``APPA''), 14 U.S.C. 16(b)-(h), files

this Competitive Impact Statement relating to the proposed Final

Judgment submitted for entry in this civil antitrust proceeding.

1. Nature and Purpose of the Proceeding

On November 4, 1999, the United States filed a civil antitrust

Complaint alleging that the proposed acquisition of Cases Corporation

(``Case'') by Fiat S.p.A. (``Fiat''), and Fiat subsidiaries, Fiat

Acquisition Corporation (``Fiat Acquisition''), New Holland, N.V., and

North Holland North America, Inc. (``New Holland''), would violate

Section 7 of the Clayton Act, as amended, 15 U.S.C. 18. the Complaint

alleges that the acquisition likely would substantially reduce

competition in the manufacture and sale of four-wheel-drive (``4WD'')

tractors and large two-wheel-drive (``2WD'') tractors, and in the

manufacture and sale of small square balers, large square balers, and

self-propelled windrowers (collectively ``hay and forage equipment''),

in the United States and Canada. The Compliant seeks: (1) A judgment

that the proposed acquisition would violate Section 7 of the Clayton

Act; (2) injunctive relief preventing consummation of the proposed

acquisition; (3) an award of costs to the plaintiff; and (4) such other

relief as the Court may deem just and proper.

When it filed the Complaint, the United States also filed a Hold

Separate Stipulation and Order and a proposed Final Judgment, which

would settle the lawsuit. The proposed Final Judgment permits Fiat and

its subsidiaries to acquire Case, but requires divestitures that will

preserve competition in the five relevant product markets alleged in

the Complaint. The proposed Final Judgment orders defendants to divest

New Holland's Genesis line of 4WD tractors; New Holland's Versatile

line of 2WD tractors and its line of tracked tractors that is currently

in development; and Case's ownership interest in Hay and Forage

Industries (``HFI''), a joint venture that makes hay and forage

equipment.

Defendants must accomplish the divestitures within one hundred and

fifty (150) calendar days after the filing of the Compliant, or five

(5) days after notice of the entry of the proposed Final Judgment by

the Court, whichever is later, to purchasers acceptable to the United

States. If the defendants do not do so within the time specified in the

proposed Final Judgment, a trustee appointed by the Court would be

empowered for an additional six months to sell those assets. If the

trustee is unable to do so in that time, the Court could enter such

orders as it might deem appropriate to carry out the purpose of the

Final Judgment, which may, if necessary, include extending the trust

and the trustee's appointment by a period requested by the United

States.

In addition, under the terms of the Hold Separate Stipulation and

Order, defendants must hold specified assets separate and apart from

their other businesses until the required divestitures have been

accomplished. Until the required divestitures are accomplished,

defendants must preserve and maintain the specified assets to be

divested as saleable and economically viable ongoing concerns.

The parties have stipulated that the proposed Final Judgment may be

entered after compliance with the APPA. Entry of the proposed Final

Judgment would 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.

[[Page 68384]]

II. Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction

Fiat is an Italian corporation with its corporate headquarters and

principal place of business in Turin, Italy. Fiat is an international

automotive, construction and agricultural equipment company that

manufactures cars, trucks, construction equipment, tractors, and hay

and forage equipment. Fiat reported revenues of $56.6 billion in 1998.

Among Fiat's subsidiaries are New Holland N.V., New Holland, and

Fiat Acquisition. New Holland N.V. produces construction equipment,

tractors, hay and forage equipment, and other agricultural equipment;

it is the third largest supplier of agricultural equipment in the

United States and Canada. New Holland manufactures 4WD agricultural

tractors, large 2WD agricultural tractors and hay and forage equipment.

Case is a Delaware corporation with its headquarters and principal

place of business in Racine, Wisconsin. Case manufactures 4WD tractors

and large 2WD agricultural tractors. Case also owns 50 percent of HFI,

a joint venture which produces hay and forage equipment. HFI sells the

equipment it manufactures to Case and its joint venture partner for

distribution and sale under each company's respective trade names. In

1998, Case reported revenues of $6.1 billion.

On or about May 15, 1999, Fiat entered into an Agreement and Plan

of Merger (``Agreement'') to acquire Case for approximately $4.3

billion. Under the Agreement, Fiat Acquisition and Case will merge,

with Case being the surviving entity. New Holland N.V. will

subsequently acquire all the issued and outstanding shares of the

surviving entity. This transaction, which would eliminate head-to-head

competition between Case and New Holland and increase concentration in

already highly concentrated markets for tractors and hay and forage

equipment precipitated the government's suit.

B. The Markets

1. Tractors. Agricultural tractors are used primarily on farms for

a variety of applications, including pulling implements to till soil

and to plant and cultivate crops. Agricultural tractors are produced in

a range of horsepower (``hp'') and may be either wheeled or tracked. In

general, as the size and weight of the implement increases, the

horsepower of the tractor required to pull it increases as well. 4WD

tractors are high horsepower (205 hp to 425 hp) tractors used mostly

for heavy-duty farm applications, including tilling, cultivating, and

pulling large implements. Large 2WD tractors are lower horsepower

tractors that are typically used to pull medium-sized implements for

farm applications that do not require the heavy-duty performance of a

4WD tractor.

2. Hay and Forage Equipment. A self-propelled windrower cuts hay,

breaks it up for faster drying and lays it on the ground in long

columns called windows that the hay can dry quickly. Balers collect hay

after it has dried in the field, compact it into square bales, tie the

bales together with twine, and eject them onto the ground for

subsequent collection or transportation. A small square balers produces

a bale of hay with a rectangular face less than two square feet in

size; a large square baler generally produces an eight-foot long bale

of hay with a rectangular face that is more than four square feet in

size.

C. Harm to Competition as a Result of the Proposed Transaction

The Complaint alleges that the acquisition would eliminate head-to-

head competition between Fiat and Case in markets for 4WD tractors,

large 2WD tractors, small square balers, large square balers, and self-

propelled windrowers in the United States and Canada. The Complaint

also alleges that the acquisition would significantly increase

concentration in these markets. As a result of this increased

concentration and reduced competition, farmers would likely face higher

prices, lower quality, and less innovation in markets for 2WD tractors,

large 2WD tractors, small square balers, and self-propelled windrowers.

Furthermore, entry by new companies would not be timely, likely, or

sufficient to prevent these anticompetitive effects.

III. Explanation of the Proposed Final Judgment

A. The Divestiture Requirements

The provisions of the proposed Final Judgment are designed to

preserve competition in markets for tractors and hay and forage

equipment in the United States and Canada. To preserve competition in

the markets for 4WD and 2WD tractors, Section IV.A of the proposed

Final Judgment orders defendants to divest New Holland's Genesis line

of large 2WD tractors, New Holland's Versatile line of 4WD tractors,

and its line of tracked tractors that is currently in development. To

preserve competition in the markets for small square balers, large

square balers, and self-propelled windrowers, Section IV.A of the

proposed Final Judgment also orders defendants to divest Case's

interest in HFI.

B. Short-Term Supply Agreements for Tractors

New Holland produces in Genesis line of large 2WD tractors and

Versatile line of 4WD tractors at its Winnipeg, Manitoba, Canada plant.

Section IV.A of the proposed Final Judgment requires New Holland to

offer the Winnipeg plant for sale. Should the divestiture of either the

large 2WD or the 4WD lines be unaccompanied by the sale of the Winnipeg

plant, under Section IV.1, the purchaser of the large 2WD or the 4WD

line shall be offered a short-term transitional supply agreement, not

to exceed two years in length, to manufacture and deliver the

purchaser's requirements for Genesis to Versatile series tractors and

parts on terms and conditions designed to enable the purchaser to

compete effectively with defendants in the sale of 4WD and large 2WD

tractors. The terms and conditions of this agreement must be acceptable

to the United States in its sole direction.

Section IV.J of the Final Judgment provides that, under each

divestiture, defendants retain the right to negotiate a transitional

supply agreement under which this purchaser of the divested assets

would manufacture and deliver to defendants in a timely manner

defendants' requirements for 4WD and large 2WD tractors and hay and

forage equipment. Defendants have independent distributors whose

viability may be affected, in the absence of such a supply agreement,

by the unavailability of 4WD and large 2WD tractors and hay and forage

equipment during a limited transition period. A purchaser may also find

it in its best interest to enter into such a transitional supply

agreement to achieve sufficient manufacturing volumes to realize scale

economies. The Final Judgment is permissive on this point and does not

obligate the purchaser of the 2WD line, the 4WD line, or the hay and

forage equipment assets to enter into transitional supply agreements

with the defendants.

Any such supply agreements to the defendants shall not include the

use of the Versatile or Genesis trade names and shall not last for a

term longer than, for 2WD or 4WD tractors, 24 months from the filing of

the Hold Separate Stipulation and Order in this case, and for hay tools

and forage equipment, 18 months from the filing of the Hold Separate

Stipulation and Order in this case. Transfer pricing shall be based on

audible cost data and such agreements

[[Page 68385]]

shall include terms and conditions reasonably designed to enable the

defendants to compete with the purchaser(s) in the sale of 4WD

tractors, 2WD tractors, and hay tools and forage equipment. The terms

and conditions of any such agreements must be acceptable to the United

States in its sole discretion. Such agreements may be amended only with

the prior approval of the United States in its sole discretion.

C. General Divestiture Provisions

Under Section IV.A of the proposed Final Judgment, defendants must

accomplish the required divestitures within one hundred and fifty (150)

calendar days after the filing of the Complaint, or within five (5)

days after notice of the entry of the proposed Final Judgment by the

Court, whichever is later, to a purchaser acceptable to the United

States. Section IV.B of the proposed Final Judgment requires that

defendants shall use their best efforts to accomplish said divestiture

as expeditiously as possible. The United States, in its sole

discretion, may extend the time period for any divestiture for an

additional period of time not to exceed thirty (30) calendar days.

Section IV.H requires that the assets to be divested be used by the

purchaser as part of a viable, ongoing business engaged in the

manufacture and distribution of 2WD tractors, 4WD tractors, and/or hay

and forage equipment.

Until the required divestitures have been accomplished, under

Section VIII, defendants must take certain steps to ensure that all

assets to be divested will be maintained as separate, distinct and

saleable assets. Until such divestitures, the defendants shall continue

to operate the assets as independent, economically viable, ongoing

business concerns in the manufacture and sale of tractors and hay and

forage equipment until the required divestitures are complete.

Under Section IV.C and IV.D of the proposed Final Judgment,

defendants shall make known, by usual and customary means, the

availability of the assets and provide any prospective purchasers with

a copy of the Final Judgment. The defendants are required to offer to

furnish any prospective purchaser, subject to customary confidentiality

assurances, all information regarding the assets customarily provided

in a due diligence process, except such information subject to

attorney-client privilege or attorney work-product privilege.

Defendants must also permit prospective purchasers to have reasonable

access to personnel and to make inspection of physical facilities and

financial, operational, or other documents and information customarily

provided as part of a due diligence process.

Sections IV.E provides that defendants shall not interfere with

negotiations by any purchaser to employ any of defendants' employees

who worked at the divested assets. Sections IV.F and IV.G require that

defendants not impede the operation of any business connected with the

assets to be divested or prevent any dealer from distributing the

divested assets for two years after the divestiture.

D. Trustee Provisions

If defendants fail to divest the assets within the specified

period, Section V.A of the proposed Final Judgment provides that the

Court shall appoint a trustee, selected by the United States, to

accomplish the divestitures. If a trustee is appointed, Section V.C of

the proposed Final Judgment requires the defendants to pay all costs

and expenses of the trustee. After the trustee's appointment becomes

effective, section V.E provides that the trustee will file monthly

reports with the parties and the Court, setting forth the trustee's

efforts to accomplish divestiture. Under Section V.F, at the end of six

months after the trustee's appointment, if the divestitures have not

been accomplished, the trustee must make recommendations to the Court,

which shall enter such orders as appropriate in order to carry out the

purpose of the trust, including extending the trust and the term of the

trustee's appointment.

E. Notification Provisions

Section VI of the proposed Final Judgment assures the United States

an opportunity to review any proposed sale, whether by the defendants

or the trustee, before it occurs. Under this provision, the United

States is entitled to receive complete information regarding any

proposed sale or any prospective purchaser prior to consummation of the

sale. If there is more than one purchaser of New Holland's tractor

lines, they must be simultaneously identified in order that the United

States may jointly review the proposed tractor divestitures. Absent

written notice from the United States that it does not object to a

proposed sale of any of the divestiture assets by the defendants or the

trustee, the proposed divestiture may not be completed. Should

defendants object to a divestiture by the trustee on the basis of the

trustee's malfeasance, that sale shall not be consummated unless

approved by the Court.

Section VII.A of the proposed Final Judgment provides that within

twenty (20) calendar days of the filing of the Complaint and every

thirty (30) calendar days thereafter until the divestitures have been

completed pursuant to Section IV or V of the Final Judgment, defendants

shall deliver to the United States an affidavit as to the fact and

manner of compliance with Section IV or V of this Final Judgment.

Section VII.B of the proposed Final Judgment provides that within

twenty (20) calendar days of the filing of the Complaint, defendants

shall deliver to the United States an affidavit which describes in

detail all actions defendants have taken and all steps defendants have

implemented on an ongoing basis to preserve the divestiture assets.

F. Compliance Inspection, Retention of Jurisdiction, and Termination

Provisions

Section X requires defendants to make available, upon request, the

business records and the personnel of its businesses. This provision

allows the United States to inspect defendants' facilities and ensure

that they are complying with the requirements of the proposed Final

Judgment. Section XI provides for jurisdiction to be maintained by the

Court. Section XII of the proposed Final Judgment provides that it will

expire on the tenth anniversary of its entry by the Court.

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 parties have stipulated that the Court may enter the proposed

Final Judgment 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

[[Page 68386]]

proposed Final Judgment is in the public interest.

The APPA provides a period of at least sixty (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 give

all comments due consideration and respond to each of them. The United

States remains free to withdraw its consent to the proposed Final

Judgment at any time prior to entry. The comments and responses will be

filed with the Court and published in the Federal Register. Written

comments should be submitted to; J. Robert Kramer II, Chief, Litigation

II Section, Antitrust Division, United States Department of Justice,

1401 H Street, N.W., Suite 3000, 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

As an alternative to the proposed Final Judgment, the United States

also considered a full trial on the merits against defendants. The

United States is satisfied, however, that the divestitures required by

the proposed Final Judgment will facilitate continued viable

competition in the manufacture and sale of 4WD tractors, large 2WD

tractors, small square balers, large square balers, and self-propelled

windrowers, and will effectively prevent the anticompetitive effects

that would result from the proposed acquisition.

VII. Standard of Review Under the APPA for the 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. Sec. 16(e). As the Court of Appeals for the District of

Columbia Circuit held, the APPA 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, 1458-62 (D.C. Cir. 1995).

The courts have recognized that the term ```public interest' take[s]

meaning from the purposes of the regulatory legislation.'' NAACP v.

Federal Power Comm'n, 425 U.S. 662, 669 (1976). Since the purposes of

the antitrust laws is to preserve ``free and unfettered competition as

the rule of trade,'' Northern Pacific Railway Co. v. United States, 456

U.S. 1, 4 (1958), the focus of the ``public interest'' inquiry under

the APPA is whether the proposed Final Judgment would serve the public

interest in free and unfettered competition. United States v. American

Cyanamid Co., 719 F.2d 558, 565 (2d Cir. 1983); United States v. Waste

Management, Inc, 1985-2 Trade Cas. para. 66,651, at 63,046 (D.D.C.

1985). 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.''\1\ Rather,

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

\1\ 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 Response to Comments filed pursuant to the

APPA. Although the APPA authorizes the use of additional procedures,

15 U.S.C. 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. 93-1463, 93rd Cong. 2d

Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535,

6538.

[a]bsent 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).

Accordingly, with respect to the adequacy of the relief secured by

the decree, a court may not ``engage in an unrestricted evaluation of

what relief would best serve the public.'' United States v. BNS, Inc.

858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel

Corp., 648 F.2d 660, 666 (9th Cir. 1981)). See also Microsoft, 56 F.3d

1448. Precedent requires that:

the balancing of competing social and political interests affected

by a proposed antitrust consent decree must be left, in the first

instance, to the discretion of the Attorney General. The court's

role in protecting the public interest is one of insuring that the

government has not breached its duty to the public in consenting to

the decree. The court is required to determine not whether a

particular decree is the one that will best serve society, but

whether the settlement is ``within the reaches of the public

interest.'' More elaborate requirements might undermine the

effectiveness of antitrust enforcement by consent decree.\2\

\2\ Bechtel, 648 F.2d at 666 (citations omitted) (emphasis

added); see BNS, Inc., 858 F.2d at 463; United States v. National

Broadcasting Co., 449 F. Supp. 1127, 1143 (C.D. Cal. 1978); Gillette

Co., 406 F. Supp. at 716. See also American Cyanamid Co., 719 F.2d

at 565.

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A proposed consent decree is an agreement between the parties which

is reached after exhaustive negotiations and discussions. Parties do

not hastily and thoughtlessly stipulate to a decree because, in doing

so, they

waive their right to the issues involved in the case and thus save

themselves the time, expense, and inevitable risk of litigation.

Naturally, the agreement reached normally embodies a compromise; in

exchange for the saving of cost and the elimination of risk, the

parties each give up something they might have won had they

proceeded with the litigation.

United States v. Armour & Co., 402 U.S. 673, 681 (1971).

The proposed Final Judgment, therefore, should not be reviewed

under a standard of whether it is certain to eliminate ever

anticompetitive effect of a particular practice or whether it mandates

certainty of free competition in the future. Court approval of a

proposed final judgment requires a standard more flexible and less

strict than the standard required for a finding of liability. ``[A]

proposed decree must be approved even if it falls short of the remedy

the court would impose on its own, as long as it falls within the range

or acceptability or is `within the reaches of public interest.'' \13\

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\3\ United States v. American Tel. and Tel. Co., 552 F. Supp.

131, 150 (D.D.C. 1982), affd sub nom. Maryland v. United States, 460

U.S. 1001 (1983), quoting Gillette Co., 406 F. Supp. at 716; United

States v. Alcan Aluminum, Ltd, 605 F. Supp. 619, 622 (WD. Ky. 1985).

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[[Page 68387]]

VIII. Determinative Documents

There were 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: November 19, 1999.

Respectfully submitted,

Joan Farragher,

U.S. Department of Justice, Antitrust Division, 1401 H Street, N.W.,

Suite 3000, Washington, DC 20530, Telephone: (202) 307-6355.

Certificate of Service

I hereby certify under penalty of perjury that on this 19th day of

November, 1999, I caused a copy of the Competitive Impact statement to

be served by first class mail, postage prepaid, upon the following:

Steven C. Sunshine, Esq,

Shearman & Sterling, 801 Pennsylvania Avenue, NW., Washington, DC

20004-2604; Counsel for Fiat S.p.A., New Holland N.V., New Holland

North America, Inc., and Fiat Acquisition Corp.

Roy Engler, Esq.,

Mayer, Brown & Platt, 2000 Pennsylvania Avenue, NW, Washington, DC

20006; Counsel for Case Corporation.

Joan Farragher,

Trial Counsel, U.S. Department of Justice, Antitrust Division, 1401 H

Street, NW, Washington, DC 20530; Telephone: (202) 307-6355; Facsimile:

(202) 307-5802.

[FR Doc. 99-31626 Filed 12-6-99; 8:45 am]

BILLING CODE 4410-11-M