United States of America v. Alcoa Inc., ACX Technologies, Inc., and Golden Aluminum Company; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States of America v. Alcoa Inc., ACX Technologies, Inc.,

and Golden Aluminum Company; 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. Alcoa Inc., ACX Technologies,

Inc., and Golden Aluminum Company, Civil No. 99-2943 on November 5,

1999. On December 6, 1999, the United States filed a Competitive Impact

Statement. The Complaint alleged that the proposed acquisition by Alcoa

Inc. (``Alcoa'') of ACX Technologies, Inc.'s (``ACX'') interest in

Golden Aluminum Company (``Golden'') would violate Section 7 of the

Clayton Act, as amended, 15 U.S.C. 18, in the market for aluminum food

and beverage can lid stock (``lid stock''). The proposed Final

Judgment, filed at the same time as the Complaint, requires Alcoa to

sell Golden's Fort Lupton, Colorado aluminum business. The proposed

Final Judgment requires that the purchaser of the divested assets

continue to operate them in the manufacture and sale of lid stock. 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. These materials are also located on the

Antitrust Division's web site (www.usdoj.gov/atr/cases.html).

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 Roger W. Fones, Chief, Transportation, Energy & Agriculture Section,

Antitrust Division, United States Department of Justice, 325 Seventh

Street, NW., Suite 500, Washington, DC 20530 (telephone: 202-307-6351).

Constance K. Robinson,

Director of Operations and Merger Enforcement.

Stipulation and Order

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

their respective attorneys, as follows:

1. 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.

2. The parties stipulate that a Final Judgment in the form hereto

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

party or upon the Court's own motion, at any time after compliance with

the requirements of the Antitrust Procedures and Penalties Act (15

U.S.C. Sec. 16), and without further notice to any party or other

proceedings, provided that plaintiff has not withdrawn its consent,

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

Judgment by serving notice thereof on defendants and by filing that

notice with the Court.

3. 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 Stipulation by the parties, comply with all

the terms and provisions of the proposed Final Judgment as though they

were in full force and effect as an order of the Court.

4. This Stipulation 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.

5. In the event that plaintiff withdraws its consent, as provided

in paragraph 2 above, or in the event that the proposed Final Judgment

is not entered pursuant to this Stipulation, the time has expired for

all appeals of any Court ruling declining entry of the proposed Final

Judgment, and the Court

[[Page 73067]]

has not otherwise ordered continued compliance with the terms and

provisions of the proposed Final Judgment, then the parties are

released from all further obligations under this Stipulation, and the

making of this Stipulation shall be without prejudice to any party in

this or any other proceeding.

6. Defendants represent that the divestiture ordered in the

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

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

asking the Court to modify any of the divestiture provisions contained

therein..

7. Defendants agree not to consummate their transaction before the

Court has signed this Stipulation and Order.

Dated: November 5, 1999.

Respectfully submitted,

For Plaintiff

United States of America: Nina B. Hale, Washington Bar #18776;

Laura M. Scott, Attorneys, Antitrust Division, U.S. Department of

Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20004,

(202) 307-6351.

For Defendant:

Alcoa, Inc., W. Randolph Smith, DC Bar #________, Crowell &

Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2595,

(202) 624-2700.

For Defendants:

ACX Technologies, Inc., and Golden Aluminum Company: W. Todd

Miller, DC Bar #414930, Baker & Miller, 915 15th Street, Suite 1000,

Washington, DC 20005-2302.

Order

It is so ordered, this ____ day of ________, 1999.

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

United States District Court Judge

Hold Separate Stipulation and Order

It is hereby Stipulated by and between the undersigned parties,

subject to approval and entry by the Court, that:

I. Definitions

As used in this Hold Separate Stipulation and Order:

A. ``Alcoa'' means defendant Alcoa Inc., a Pennsylvania corporation

with its headquarters in Pittsburgh, Pennsylvania, and its successors,

assigns, subsidiaries, divisions, groups, affiliates, partnerships and

joint ventures, and directors, officers, managers, agents, and

employees.

B. ``ACX'' means ACX Technologies, Inc., a Colorado corporation

with its headquarters in Golden, Colorado, and its successors, assigns,

subsidiaries, divisions, groups, affiliates, partnerships and joint

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

C. ``Golden'' means Golden Aluminum Company, a wholly owned

subsidiary of ACX, with two principal aluminum sheet manufacturing

facilities located in Fort Lupton, Colorado, and San Antonio, Texas,

and its successors, assigns, subsidiaries, divisions, groups,

affiliates, partnerships and joint ventures, and directors, officers,

managers, agents, and employees.

D. ``Fort Lupton Assets'' means all assets included within Golden's

Fort Lupton, Colorado operation including:

1. All tangible assets, including the Fort Lupton manufacturing

facility located at 1405 E. 14th Street, Fort Lupton, Colorado 80621-

0207 (``the Fort Lupton Facility'') and the real property on which the

Fort Lupton Facility is situated; any facilities used for research and

development activities, including Golden Engineering, AG, a Swiss

company, and GAC Technology, a Colorado corporation, both of which

provide engineering support to the Fort Lupton Facility (``the

Engineering Facilities''), and any real property associated with those

facilities, manufacturing assets relating to the Fort Lupton Facility

and to the Engineering Facilities, including capital equipment,

vehicles, supplies, personal property, inventory, office furniture,

fixed assets and fixtures, materials, on-site warehouses or storage

facilities, and other tangible property or improvements; all licenses,

permits and authorizations issued by any governmental organization

relating to the Fort Lupton Facility and to the Engineering Facilities;

all contracts, agreements, leases, commitments and understandings

pertaining to the operations of the Fort Lupton Facility and of the

Engineering Facilities; supply agreements; all customer lists,

accounts, and credit records; and other records maintained by Golden in

connection with the operations of the Fort Lupton Facility and of the

Engineering Facilities;

2. All intangible assets, including but not limited to all patents,

licenses and sublicenses, intellectual property, trademarks, trade

names, service marks, service names, technical information, know-how,

trade secrets, drawings, blueprints, designs, design protocols,

specifications for materials, specifications for parts and devices,

safety procedures for the handling of materials and substances, quality

assurance and control procedures, design tools and simulation

capability, and all manuals and technical information Golden provides

to its employees, customers, suppliers, agents or licensees in

connection with the operations of the Fort Lupton Facility and of the

Engineering Facilities; except that Alcoa may retain a non-exclusive,

non-transferable, royalty-free license to use all patents, licenses,

and sublicenses, intellectual property, technical information, know-

how, trade secrets, specifications for materials, and quality assurance

and control procedures necessary to operate the block caster at

Golden's San Antonio, Texas manufacturing facility (``the San Antonio

block caster''), provided, however, that if Alcoa sells the San Antonio

block caster to ACX Technologies, Inc. or an affiliate of ACX

Technologies, Inc., it may provide ACX Technologies, Inc. or the ACX

Technologies, Inc. affiliate with a non-exclusive, non-transferable,

royalty-free license for use solely in connection with the operation of

the San Antonio block caster; and

3. All research data concerning historic and current research and

development efforts relating to the operation of the Fort Lupton

Facility and of the Engineering Facilities, including designs of

experiments, and the results of unsuccessful designs and experiments.

E. ``Lid stock'' means an aluminum sheet product from which the

ends, tabs and pull-off lids of food and beverage cans are made.

II. Objectives

The Final Judgment filed in this case is meant to ensure Alcoa's

prompt divestiture of the Fort Lupton Assets for the purpose of

maintaining a viable competitor in the manufacture and sale of lid

stock to remedy the effects that the United States alleges would

otherwise result from Alcoa's proposed acquisition of Golden.

This Hold Separate Stipulation and Order ensures, prior to such

divestiture, that the Fort Lupton Assets, which are being divested, be

maintained as an independent, economically viable, ongoing business

concern, and that competition is maintained during the pendency of the

divestiture.

III. Hold Separate Provisions

Until the divestiture required by the Final Judgment has been

accomplished:

A. Alcoa shall preserve, maintain, and operate the Fort Lupton

Assets as an independent competitor with management, research,

development, production, sales and operations held entirely separate,

distinct and apart from those of Alcoa. Alcoa shall not coordinate the

manufacture, marketing or sale of products from the Fort Lupton

[[Page 73068]]

Assets with its existing lid stock business. Within twenty (20)

calendar days of the filing of the Complaint in this matter, Alcoa will

inform plaintiff of the steps taken to comply with this provision.

B. Alcoa shall take all steps necessary to ensure that the Fort

Lupton Assets will be maintained and operated as an independent,

ongoing, economically viable and active competitor in the manufacture

and sale of lid stock; that the management of the Fort Lupton Assets

will not be influenced by Alcoa, and that the books, records,

competitively sensitive sales, marketing and pricing information, and

decision-making associated with the Fort Lupton Assets will be kept

separate and apart from the operations of Alcoa. Alcoa's influence over

the Fort Lupton Assets shall be limited to that necessary to carry out

Alcoa's obligations under this Order and the Final Judgment. Alcoa may

receive historical aggregate financial information (excluding capacity

or pricing information) relating to the Fort Lupton Assets to the

extent necessary to allow Alcoa to prepare financial reports, tax

returns, personnel reports, and other necessary or legally required

reports.

C. Alcoa shall use all reasonable efforts to maintain lid stock

manufacturing and sales levels at the Fort Lupton Facility, and to

maintain research and development activities and engineering support at

the Engineering Facilities. Alcoa shall maintain at current or

previously approved levels, whichever are higher, internal research and

development funding, promotional, advertising, sales, technical

assistance, marketing and merchandising support for the Fort Lupton

Assets.

D. Alcoa shall provide and maintain sufficient working capital to

maintain the Fort Lupton Assets as an economically viable, on going

business.

E. Alcoa shall provide and maintain sufficient lines and sources of

credit to maintain the Fort Lupton Assets as an economically viable,

ongoing business.

F. Alcoa shall take all steps necessary to ensure that the Fort

Lupton Facility is fully maintained in operable condition at no lower

than its current rated capacity, and shall maintain and adhere to

normal repair and maintenance schedules for the Fort Lupton Facility.

G. Alcoa shall not, except as part of a divestiture approved by

plaintiff, remove, sell, lease, assign, transfer, pledge or otherwise

dispose of or pledge as collateral for loans, any of the Fort Lupton

Assets, including the intangible assets that are described in Section

II of the Final Judgment.

H. Alcoa shall maintain, in accordance with sound accounting

principles, separate, true, accurate and complete financial ledgers,

books and records that report, on a periodic basis, such as the last

business day of every month, consistent with part practices, the

assets, liabilities, expenses, revenues, income, profit and loss of the

Fort Lupton Assets.

1. Until such time as the Fort Lupton Assets are divested, except

in the ordinary course of business or as is otherwise consistent with

this Hold Separate Agreement, Alcoa shall not hire, transfer or

terminate, or alter, to the detriment of any employee, any current

employment or salary agreements for any Golden employees who on the

date of the signing of this Agreement work for the Fort Lupton

Facility, or for the Engineering Facilities, unless such individual has

a written offer of employment from a third party for a like position.

J. Alcoa shall take no action that would interfere with the ability

of any trustee appointed pursuant to the Final Judgment to complete the

divestiture pursuant to the Final Judgment to a suitable purchaser.

K. The Hold Separate Stipulation and Order shall remain in effect

until the divestiture required by the Final Judgment is complete, or

until further Order of the Court. Respectfully submitted,

For Plaintiff:

United States of America: Nina B. Hale, Washington Bar #18776,

Laura M. Scott, Attorneys, Antitrust Division, U.S. Department of

Justice, 325 Seventh St., N.W., Suite 500, Washington, DC 20004,

(202) 307-6351.

Dated this 5th day of November 1999.

For Defendant:

Alcoa, Inc.: W. Randolph Smith, Crowell & Moring, 1001

Pennsylvania Avenue, N.W., Washington DC 20004-2595, (202) 624-2700.

For Defendants:

ACX Technologies, Inc. and Golden Aluminum Company: W. Todd

Miller, Baker & Miller, 915 15th Street, Suite 1000, Washington, DC

20005-2302.

Order

It is so ordered, this __________ day of ____________, 1999.

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

United States District Court Judge

Dated: November 5, 1999.

Respectfully submitted,

For Plaintiff United States of America Nina B. Hale Washington

Bar #1877G, Laura M. Scott, Attorneys, Antitrust Division, U.S.

Department of Justice, 325 Seventh St., NW, Suite 500, Washington,

DC 20004, (202) 307-6351.

For Defendant Alcoa, Inc.

W. Randolph Smith DC Bar #356402 Crowell & Moring, 1001 Pennsylvania

Avenue, NW, Washington, DC 20004-2595, (202) 624-2700.

For Defendants ACX Technologies, Inc. and Golden Aluminum

Company

W. Todd Miller DC Bar #________ Baker & Miller, 915 15th Street,

Suite 1000, Washington, DC 20005-2302.

Order

It is so ordered, this ________ day of __________, 1999.

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

United States District Court Judge

Final Judgment

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

States''), filed its complaint in this action on November 5, 1999, and

plaintiff and defendants, Alcoa Inc. (``Alcoa''), ACX Technologies,

Inc. (``ACX''), and Golden Aluminum Company (``Golden''), 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 Fort Lupton Assets of ACX's subsidiary,

Golden Aluminum Company (``Golden''), to assure that competition is not

substantially lessened;

And Whereas, plaintiff requires defendant Alcoa to divest the Fort

Lupton Assets for the purpose of remedying the loss of competition

alleged in the Complaint;

And Whereas, defendants have represented to 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 or contract

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 the subject matter of this action

and over each of the parties hereto. The Complaint states a claim upon

which relief may be granted against the defendants, as hereinafter

defined, under Section 7 of the Clayton Act, as amended (15 U.S.C.

Sec. 18).

[[Page 73069]]

II. Definitions

As used in this Final Judgment:

A. ``Alcoa'' means defendant Alcoa, Inc., a Pennsylvania

corporation with its headquarters in Pittsburgh, Pennsylvania, and its

successors, assigns, subsidiaries, divisions, groups, affiliates,

partnerships and joint ventures, and directors, officers, managers,

agents, and employees.

B. ``ACX'' means ACX Technologies, Inc., a Colorado corporation

with its headquarters in Golden, Colorado, and its successors, assigns,

subsidiaries, divisions, groups, affiliates, partnerships and joint

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

C. ``Golden'' means Golden Aluminum Company, a wholly owned

subsidiary of ACX, with two principal aluminum sheet manufacturing

facilities located in Fort Lupton, Colorado, and San Antonio, Texas,

and its successors, assigns, subsidiaries, divisions, groups,

affiliates, partnerships and joint ventures, and directors, officers,

managers, agents, and employees.

D. ``Fort Lupton Assets'' means all assets included within Golden's

Fort Lupton, Colorado operation including:

1. All tangible assets, including the Fort Lupton manufacturing

facility located at 1405 E. 14th Street, Fort Lupton, Colorado 80621-

0207 (``the Fort Lupton Facility'') and the real property on which the

Fort Lupton Facility is situated; any facilities used for research and

development activities, including Golden Engineering, AG, a Swiss

company, and GAC Technology, a Colorado corporation, both of which

provide engineering support to the Fort Lupton Facility (``the

Engineering Facilities''), and any real property associated with those

facilities; manufacturing assets relating to the Fort Lupton Facility

and to the Engineering Facilities, including capital equipment,

vehicles, supplies, personal property, inventory, office furniture,

fixed assets and fixtures, materials, on-site warehouses or storage

facilities, and other tangible property or improvements; all licenses,

permits and authorization issued by any governmental organization

relating to the Fort Lupton Facility and to the Engineering Facilities;

all contracts, agreements, leases, commitments and understandings

pertaining to the operations of the Fort Lupton Facility and of the

Engineering Facilities; supply agreements; all customers lists,

accounts, and credit records; and other records maintained by Golden in

connection with the operations of the Fort Lupton Facility and of the

Engineering Facilities;

2. All intangible assets, including but not limited to all parents,

licenses and sublicenses, intellectual property, trademarks, trade

names, service marks, service names, technical information, know-how,

trade secrets, drawings, blueprints, designs, design protocols,

specifications for materials, specifications for parts and devices,

safety procedures for the handling of materials and substances, quality

assurance and control procedures, design tools and simulation

capability, and all manuals and technical information Golden provides

to its employees, customers, suppliers, agents or licensees in

connection with the operations of the Fort Lupton Facility and of the

Engineering Facilities, except that Alcoa may retain a non-exclusive,

non-transferable, royalty-free license to use all patents, licenses,

and sublicenses, intellectual property, technical information, know-

how, trade secrets, specifications for materials, and quality assurance

and control procedures necessary to operate the block caster at

Golden's San Antonio, Texas manufacturing facility (``the San Antonio

block caster''), provided, however, that if Alcoa sells the San Antonio

block caster to ACX Technologies, Inc. or an affiliate of ACX

Technologies, Inc., it may provide ACX Technologies, Inc., or the ACX

Technologies, Inc. affiliate with a non-exclusive, non-transferable,

royalty-free license for use solely in connection with the operation of

the San Antonio block caster; and

3. All research data concerning historic and current research and

development efforts relating to the operations of the Fort Lupton

Facility and of the Engineering Facilities, including designs of

experiments, and the results of unsuccessful designs and experiments.

E. ``Lid stock'' means an aluminum sheet product from which the

ends, tabs and pull-off lids of food and beverage cans are made.

III. Applicability

A. The provisions of this Final Judgment apply to Alcoa and ACX, 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. Alcoa shall require, as a condition of the sale or other

disposition of all or substantially all of the Fort Lupton Assets, that

the acquiring party or parties agree to be bound by the provisions of

this Final Judgment.

IV. Divestiture of Assets

A. Alcoa is hereby ordered and directed in accordance with the

terms of this Final Judgment, within sixty (60) calendar days after the

filing of the Complaint in this matter, or five (5) days after notice

of entry of this Final Judgment by the Court, whichever is later, to

divest the Fort Lupton Assets as an ongong business to a purchaser

acceptable to the United States in its sole discretion.

B. Alcoa shall use its best efforts to accomplish the divestiture

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

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

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

C. In accomplishing the divestiture ordered by this Final Judgment,

Alcoa promptly shall make known, by usual and customary means, the

availability of the Fort Lupton Assets described in this Final

Judgment. Alcoa 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.

Alcoa shall also offer to furnish to all prospective purchasers,

subject to customary confidentiality assurances, all information

regarding the Fort Lupton Assets customarily provided in a due

diligence process except such information subject to attorney-client

privilege or attorney work-product privilege. Alcoa shall make

available such information to the plaintiff at the same time that such

information is made available to any other person.

D. Alcoa shall provide to any purchaser of the Fort Lupton Assets

information relating to the personnel involved in the manufacture and

sale of lid stock in connection with the Fort Lupton Assets to enable

the purchaser to make offers of employment. Alcoa shall not interfere

with any negotiations by any purchaser to employ any Golden employee

who works for the Fort Lupton Facility or for the Engineering

Facilities, or whose principal responsibility involves the manufacture

and sale of lid stock associated with the Fort Lupton Assets.

E. Alcoa shall permit prospective purchasers of the Fort Lupton

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

the Fort Lupton Assets; access to any and all environmental, zoning,

and other permit documents and information customarily provided as part

of a due diligence process.

[[Page 73070]]

F. Alcoa shall warrant to the purchaser of the Fort Lupton Assets

that all necessary environmental, zoning and other permits relating to

the Fort Lupton assets are in order in all material respects. Alcoa

will not undertake, directly or indirectly, following the divestiture

of the Fort Lupton Assets, any challenges to the environmental, zoning,

or other permits pertaining to the operation of the Fort Lupton Assets.

G. Alcoa shall warrant to the purchaser of the Fort Lupton Assets

that the Fort Lupton Assets will be operational on the date of the

sale.

H. Alcoa shall not take any action, direct or indirect, that will

impede in any way the operation of the Fort Lupton Assets.

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

divestiture pursuant to Section IV, or by trustee appointed pursuant to

Section V of this final Judgment, shall include all of the Fort Lupton

Assets, operated pursuant to the Hold Separate Stipulation and Order,

and be accomplished by selling or otherwise conveying the Fort Lupton

Assets to a purchaser in such a way as to satisfy the United States, in

its sole discretion, that the Fort Lupton Assets can and will be used

by the purchaser as part of a viable, ongoing business or businesses

engaged in the manufacture and sale of lid stock. The divestiture,

whether pursuant to Section IV or Section V of this Final Judgment,

shall be made to a purchaser with respect to whom it is demonstrated to

the United States' sole satisfaction that: (1) The purchaser has the

capability and intent of competing effectively in the manufacture and

sale of lid stock; (2) The purchaser has the managerial, operational,

and financial capability to compete effectively in the manufacture and

sale of lid stock; (3) None of the terms of any agreement between the

purchaser and Alcoa gives Alcoa the ability unreasonably to raise the

purchaser's costs, to lower the purchaser's efficiency, or otherwise to

interfere in the ability of the purchaser to compete effectively; and

(4) The divestiture will remedy the competitive harm alleged in the

Complaint.

V. Appointment of Trustee

A. In the event that Alcoa has not divested the Fort Lupton 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 effect the divestiture of the Fort

Lupton Assets.

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

trustee shall have the right to sell the Fort Lupton Assets. The

trustee shall have the power and authority to accomplish the

divestiture at the best price then obtainable upon a reasonable effort

by the trustee, subject to the provisions of Sections IV, V, and VI 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 Alcoa any investment bankers, attorneys, or other agents

reasonably necessary in the judgment of the trustee to assist in the

divestiture, and such professionals and agents shall be accountable

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

to accomplish the divestiture at the earliest possible time to a

purchaser acceptable to the United States in its sole discretion. Alcoa

shall not object to a sale by the trustee on any grounds other than the

trustee's malfeasance. Any such objections by Alcoa must be conveyed in

writing to plaintiff and the trustee within ten (10) 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 Alcoa, on

such terms and conditions as the Court may prescribe, and shall account

for all monies derived from the sale of the assets sold by the trustee

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 Alcoa and the trust shall then be terminated.

The compensation of such trustee and of professionals and agents

retained by the trustee shall be reasonable in light of the value of

the divested business and based on a fee arrangement providing the

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

divestiture and the speed with which it is accomplished.

D. Alcoa shall use its best efforts to assist the trustee in

accomplishing the required divestiture, including its best efforts to

effect all necessary regulatory 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 business to be divested, and Alcoa shall

develop financial or other information relevant to the business to be

divested customarily provided in a due diligence process as the trustee

may reasonably request, subject to customary confidentiality

assurances. Alcoa shall permit bona fide prospective acquirers of the

Fort Lupton 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 the divestiture required by this Final Judgment. Alcoa shall take no

action to interfere with or to impede the trustee's accomplishment of

the divestiture.

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 divestiture ordered under this 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 business to be divested,

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 divest the business to be divested.

F. If the trustee has not accomplished such divestiture 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 divestiture; (2) the reasons, in the

trustee's judgment, why the required divestiture has not been

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

that to the extent such report contains information that the trustee

deems confidential, such report shall not be filed in the public docket

of the Court. The trustee shall at the same time furnish such report to

the plaintiff and to defendant Alcoa, 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

Final Judgment, 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. Notification

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

[[Page 73071]]

proposed divestiture pursuant to Sections IV and V of this Final

Judgment, Alcoa or the trustee, whichever is then responsible for

effecting the divestiture, shall notify plaintiff or the proposed

divestiture. If the trustee is responsible, it shall similarly notify

Alcoa. The notice shall set forth the details of the proposed

transaction and 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

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

discretion, may request from Alcoa, the trustee, the proposed

purchaser, or any other third party additional information concerning

the proposed divestiture, the proposed purchaser, and any other

potential purchaser. Alcoa 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 plaintiff has been provided the

additional information requested from Alcoa, the trustee, the proposed

purchaser, or any third party, whichever is later, the United States

shall provide written notice to Alcoa 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 Alcoa and the trustee that it

does not object, then the divestiture may be consummated, subject only

to Alcoa's 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 Section V shall not

be consummated. Upon objection by Alcoa under the provision in Section

(V)(B), a divestiture proposed under Section V shall not be consummated

unless approved by the Court.

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

divestiture has been completed whether pursuant to Section IV or

Section V of this Final Judgment, Alcoa shall deliver to plaintiff an

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

Section 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 business to be divested, 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 Alcoa has taken to solicit a buyer for the Fort Lupton

Assets and to provide required information to prospective purchasers.

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

in this matter, Alcoa shall deliver to plaintiff an affidavit which

describes in detail all actions Alcoa has taken and all steps Alcoa has

implemented on an on-going basis to preserve the Fort Lupton 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, Alcoa's efforts to maintain and

operate the Fort Lupton Assets as an active competitor, maintain the

management, staffing, research and development activities, sales,

marketing, and pricing of the Fort Lupton Assets, and maintain the Fort

Lupton Assets in operable condition at current capacity configurations.

Alcoa shall deliver to plaintiff an affidavit describing any changes to

the efforts and actions outlined in Alcoa's earlier affidavit(s) filed

pursuant to Section VII(B) within fifteen (15) calendar days after the

change is implemented.

C. Until one year after such divestiture has been completed, Alcoa

shall preserve all records of all efforts made to preserve the business

to be divested and effect the divestiture.

VIII. Hold Separate Order

Until the divestitures required by the Final Judgment have been

accomplished, Alcoa shall take all steps necessary to comply with the

Hold Separate Stipulation and Order entered by this Court and to

preserve the Fort Lupton Assets. Defendants shall take no action that

would jeopardize the divestiture of the Fort Lupton Assets.

IX. Financing

Alcoa is ordered and directed not to finance all or any part of any

purchase by an acquirer made pursuant to Section IV or V of this Final

Judgment.

X. Compliance Inspection

For the 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 matters 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 of the

matters contained in this Final Judgment and the Hold Separate

Stipulation and Order.

C. No information nor any documents obtained by the means provided

in Sections 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), or for the purpose of

securing compliance with this Final Judgment, or as otherwise required

by law.

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

defendants to plaintiff, defendants represent and identify in writing

the material in any such information or documents for 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 plaintiff shall give ten (10)

days notice to defendants prior to divulging such material in any legal

proceeding (other

[[Page 73072]]

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 on the tenth anniversary of the date of its entry.

XIII. Public Interest

Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------

Court approval subject to procedures of Antitrust Procedures and

Penalties Act, 15 U.S.C. Sec. 16

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

United States District Judge

Competitive Impact Statement

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

Procedures and Penalties Act (``APPA''), 15 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.

I. Nature and Purpose of the Proceeding

On November 5, 1999 the United States filed a civil antitrust

Complaint alleging that the proposed acquisition by Alcoa Inc.

(``Alcoa'') of ACX Technologies, Inc.'s (``ACX'') interest in Golden

Aluminum Company (``Golden'') would violate Section 7 of the Clayton

Act, 15 U.S.C. Sec. 18. The Complaint alleges that the transaction

would result in Alcoa increasing its already dominant share of the

aluminum food and beverage can lid stock (``lid stock'') production

business in North America. Alcoa is the largest producer of lid stock

in North America. Golden is a small, but low cost producer of lid

stock. They compete to produce and sell the best quality lid stock at

the lowest prices, and to provide the best technological, marketing,

and customer support services. Alcoa and ACX have proposed a

transaction that would eliminate this competition, further increase

concentration in the already highly concentrated lid stock business,

and further increase the market power of the dominant firm--Alcoa. The

proposed transaction would make it more likely that the few remaining

lid stock producers will engage in anticompetitive coordination to

increase prices, reduce quality, and decrease production of lid stock.

The prayer for relief in the Complaint seeks: (1) A judgment that

the proposed acquisition would violate Section 7 of the Clayton Act;

and (2) A permanent injunction preventing Alcoa from acquiring Golden

from ACX.

When the Complaint was filed, the United States also filed a

proposed settlement that would permit Alcoa to complete its acquisition

of Golden, but requires a divestiture that will preserve competition in

the relevant market. This settlement consists of a Stipulation and

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

Judgment.

The proposed Final Judgment orders Alcoa to divest, within sixty

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

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

Court, whichever is later, Golden's Fort Lupton Assets (as defined in

the Final Judgment) as an ongoing business to an acquirer acceptable to

the Antitrust Division of the Department of Justice (``DOJ''). ``Fort

Lupton Assets'' means all assets included within Golden's Fort Lupton,

Colorado aluminum operation including all tangible and intangible

assets, and all facilities which provide engineering support to the

Fort Lupton, Colorado facility.

Until such divestiture is completed, the terms of the Hold Separate

Stipulation and Order entered into by the parties apply to ensure that

the Fort Lupton Assets shall be maintained as an independent competitor

from Alcoa.

The plaintiff and defendants 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.

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

A. The Defendants and the Proposed Transaction

Alcoa is a Pennsylvania corporation, with its principal offices

located in Pittsburgh, Pennsylvania. Alcoa is the world's largest

integrated aluminum company, engaging in all phases of the aluminum

business--from the mining and processing of bauxite to the production

of primary aluminum and fabrication of products. In 1998, Alcoa had

revenues of over $15 billion. Alcoa produces lid stock at its rolling

mill located in Warrick, Indiana. Alcoa's 1998 sales of lid stock in

North America were approximately $700 million.

ACX is a Colorado corporation, headquartered in Golden, Colorado.

ACX owns 100% of the stock of Golden, whose primary assets are two

continuous cast facilities. At its facility located in Fort Lupton,

Colorado, Golden produces lid stock. Golden produces a variety of

aluminum sheet products (but not lid stock) at its facility located in

San Antonio, Texas. In 1998, ACX reported total sales of about $988.4

million.

On August 17, 1999, Alcoa and ACX entered into an agreement under

which Alcoa would acquire all of ACX's interest in Golden. This

transaction, which would increase concentration in the already highly

concentrated lid stock market, precipitated the government's suit.

B. Lid Stock Market

Lid stock is a flat rolled aluminum product that is typically

manufactured in a rolling mill. A typical rolling mill contains a hot

mill, which performs the initial reduction of the thickness of the

ingot, one or more cold mills, which finish the metal to the desired

thickness and width, and a variety of ancillary equipment. Lid stock

can also be produced in a continuous cast facility. In a continuous

cast facility, a thin sheet of molten metal is poured onto a base and

pressed between two blocks or belts to achieve the desired thickness

and width.

Lid stock differs from other aluminum sheet products. Lid stock is

made from a harder alloy than other aluminum sheet products, such as

the sheet product from which the bodies of beverage cans are made

(``can body stock''). Consequently, lid stock requires more powerful

mills and more mill time to produce than can body stock and other sheet

products. Lid stock is therefore more expensive to produce per pound

than many other sheet products.

Lid stock is sold to can makers in large coils that are fed into

lid making machines, which stamp out rings and scored circles to form

the ends, tabs, and pull-off lids of food and beverage cans. Because of

the metallurgical characteristics of lid stock, can makers cannot use

their equipment to produce lids from can body stock or other materials,

such as steel.

Can makers sell lids to food and beverage companies which used them

to seal their beer, soft drink, and food cans.

[[Page 73073]]

The food and beverage companies cannot use other types of lids to seal

their cans.

As a result, a small but significant increase in lid stock prices

would not cause a significant number of customers to substitute other

products for lid stock.

C. Harm to Competition as a Consequence of the Acquisition

The proposed acquisition would likely lessen competition in the

manufacture and sale of lid stock. Alcoa controls over 50 percent of

the aluminum can lid stock market in North America. Golden is one of

only five other companies that manufactures lid stock in North America.

The proposed transaction will make it more likely that the few

remaining lid stock producers will engage in anticompetitive

coordination to increase prices, reduce quality, and decrease

production of lid stock.

The Complaint alleges that the transaction would likely have the

following effects, among others: actual and potential competition

between Alcoa and Golden in the lid stock market would be eliminated;

competition generally in the sale and manufacture of lid stock would be

lessened substantially; prices for lid stock would increase; and the

quality and amount of lid stock produced would decrease.

III. Explanation of the Proposed Final Judgment

The provisions of the proposed Final Judgment are designed to

eliminate the anticompetitive effects of the acquisition of Golden by

Alcoa.

The proposed Final Judgment provides that Alcoa must divest, within

sixty (60) calendar days after the filing of the Complaint in this

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

by the Court, whichever is later, Golden's Fort Lupton Assets as an

ongoing business to an acquirer acceptable to DOJ. If defendants fail

to divest the Fort Lupton Assets, a trustee (selected by DOJ) will be

appointed.

The Final Judgment provides that Alcoa will pay all costs and

expenses of the trustee. After his or her other appointment becomes

effective, the trustee will file monthly reports with the parties and

the Court, setting forth the trustee's efforts to accomplish

divestiture. At the end of six (6) months, if the divestiture has not

been accomplished, the trustee and the parties will have the

opportunity to make recommendations to the Court, which shall enter

such orders as appropriate in order to carry out the purpose of the

Final Judgment, including extending the trust or the term of the

trustee's appointment.

Divestiture of the Fort Lupton Assets preserves competition because

it will restore the lid stock market to a structure that existed prior

to the acquisition and will preserve the existence of an independent

competitor. Thus, the divestiture will preserve and encourage ongoing

competition in the production and sale of lid stock.

IV. Remedies Available to Potential Private Litigants

Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any

person who has been injured as a result of conduct prohibited by the

antitrust laws may bring suit in federal court to recover three times

the damages the person has suffered, as well as costs and reasonable

attorneys' fees. Entry of the proposed Final Judgment will neither

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

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

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

subsequent private lawsuit that may be brought against defendants.

V. Procedures Available for Modification of the Proposed Final

Judgment

The United States and defendants have stipulated that the proposed

Final Judgment may be entered by the Court after compliance with the

provisions of the APPA, provided that the United States has not

withdrawn its consent. The APPA conditions entry upon the Court's

determination that the proposed Final Judgment is in the public

interest.

The APPA provides a period of at least sixty 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 days of the date of publication of this Competitive Impact

Statement in the Federal Register. The United States will evaluate and

respond to the comments. All comments will be given due consideration

by the Department of Justice, which remains free to withdraw its

consent to the proposed Judgment at any time prior to entry. The

comments and the response of the United States will be filed with the

Court and published in the Federal Register. Written comments should be

submitted to: Roger W. Fones, Chief, Transportation, Energy &

Agriculture Section, Antitrust Division, United States Department of

Justice, 325 Seventh Street, NW., Suite 500, Washington, DC. 20004.

The proposed Final Judgment provides that the Court retains

jurisdiction over this action, and the parties may apply to the Court

for any order necessary or appropriate for the modification,

interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

The United States considered, as an alternative to the proposed

Final Judgment, a full trial on the merits against defendants Alcoa,

ACX and Golden.

The United States is satisfied that the divestiture of the

described assets specified in the proposed Final Judgment will

encourage viable competition in the production and sale of lid stock.

The United States is satisfied that the proposed relief will prevent

the acquisition from having anticompetitive effects in the market, The

divestiture of the Fort Lupton Assets will restore the lid stock market

to a structure that existed prior to the acquisition and will preserve

the existence of an independent competitor.

VII. Standard of Review Under the APPA for Proposed Final Judgment

The APPA requires that proposed consent judgments in antitrust

cases brought by the United States be subject to sixty-day comment

period, after which the court shall determine whether entry of the

proposed Final Judgment ``is in the public interest.'' In making the

determination, the court may consider.

(1) The competitive impact of such judgment, including

termination of alleged violations, provisions for enforcement and

modification, duration or relief sought, anticipated effects of

alternative remedies actually considered, and any other

considerations bearing upon the adequacy of such judgment;

(2) The impact of entry of such judgment upon the public

generally and individuals alleging specific injury from the

violations set forth in the complaint including consideration of the

public benefit, if any, to be derived from a determination of the

issues at trial.

15 U.S.C. 16(e). As the Court of Appeals for the District of Columbia

Circuit recently 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

[[Page 73074]]

United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. 1995).

In conducting this inquiry, ``the Court is nowhere compelled to go

to trial or to engage in extending proceedings which with have the

effect of vitiating the benefits of prompt and less costly settlement

through the consent decree process.'' \1\ Rather,

\1\ 119 Cong. Rec. 244598 (1973). See also 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. Sec. 16(f), those procedures are

discretionary. A court need not invoke any of them unless it

believes that the comments have raised significant issues and that

further proceedings would aid the court in resolving those issues.

See H.R. 93-1463, 93rd Cong. 2d Sess. 8-9, reprinted in (1974) U.S.

Code Cong. & Ad. News 6535, 6538.

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

absent a showing to 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 statements 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, 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 (D.C. Cir. 1995). Precedent requires that

[t]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\ United States v. Bechtel, 648 F.2d at 666 (internal

citations omitted) (emphasis added); see United States v. BNS, Inc.,

858 F.2d at 463; United States v. National Broadcasting Co., 449 F.

Supp. 1127, 1143 (C.D. Cal. 1978); Gillette, 406 F. Supp. at 716.

See also United States. v. American Cyanamid Co., 719 F.2d 558, 565

(2d Cir. 1983).

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

The proposed Final Judgment, therefore, should not be reviewed

under a standard of whether it is certain to eliminate every

anticompetitive competitive effect of a particular practice or whether

it mandates certainty of the free competition in the future. Court

approval of a 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 on even if it falls short of the

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

range of acceptability or is `within the reaches of public interest'

(citations omitted).''\3\

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

\3\ United States v. American Tel & Tel., Co., 552 F. Supp. 131,

150 (D.C.C. 1982), aff'd sub nom. Maryland v. United States, 460

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

States v. Alcan Aluminum, Ltd., 605 F. Supp. 619 (W.D. Ky. 1985).

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

VIII. Determinative Documents

There are no determinative materials or documents within the

meaning of the APPA that were considered by the United States in

formulating the proposed Final Judgment.

Dated: December 6, 1999.

For Plaintiff United States of America:

Respectfully submitted,

Nina B. Hale,

Washington Bar #18776.

Laura M. Scott,

Virginia Bar #36587.

Trial Attorneys, U.S. Department of Justice, Antitrust Division, 325

Seventh Street, NW, Suite 500, Washington, DC 20004, 202-307-0892 202-

307-2441 (Facsimile).

[FR Doc. 99-33410 Filed 12-28-99; 8:45 am]

BILLING CODE 4410-11-M