United States v. Central Parking Corporation and Allright Holdings, Inc.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Central Parking Corporation and Allright

Holdings, Inc.; Proposed Final Judgment and Competitive Impact

Statement

Notice is hereby given pursuant to the Antitrust Procedures and

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

Final Judgment, Stipulation and Competitive Impact Statement have been

filed with the United States District Court for the District of

Columbia in United States v. Central Parking Corporation and Allright

Holdings, Inc., No. 1:99CV00652. On March 16, 1999, the United States

filed a Complaint alleging that the proposed merger of Central Parking

and Allright Holdings would violate section 7 of the Clayton Act, 15

U.S.C. 18. The proposed Final Judgment, filed the same time as the

Complaint, requires the defendants to divest their interest in certain

parking facilities in Cincinnati and Columbus, Ohio; Nashville,

Knoxville, and Memphis, Tennessee; Dallas, Houston, El Paso, and San

Antonio, Texas; Baltimore, Maryland; Denver, Colorado; Jacksonville,

Tampa, and Miami, Florida; San Francisco, California; Kansas City,

Missouri; New York, New York; and Philadelphia, Pennsylvania. Copies of

the Complaint, proposed Final Judgment and Competitive Impact Statement

are available for inspection on the Antitrust Division's web site

(www.usdoj.gov/atr/cases.html); at the Antitrust Division, 325 7th

Street, NW Room 215, Washington, DC 20530 (telephone: 202-514-2481);

and at the Office of the Clerk of the United States District Court for

the District of Columbia, Washington, DC.

[[Page 15796]]

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

notice. Comments, with Antitrust Division responses, will be published

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

directed to Craig Conrath, Chief, Merger Task Force, Antitrust

Division, 1401 H Street, NW, Suite 4000, Washington, DC 20530 (Tel.

202-307-0001).

Constance K. Robinson,

Director of Operations and Merger Enforcement.

Stipulation

It is 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 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. 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;

3. The defendants (as defined in Section II of the proposed Final

Judgment attached hereto) agree to abide by and comply with the

provisions of the proposed Final Judgment pending entry of the Final

Judgment by the Court, 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 the same were in full force and

effect as an order of the Court;

4. In the event the United States withdraws its consent, as

provided in paragraph 2 above, or if 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 has not otherwise ordered continued compliance

with the terms and provisions of the proposed Final Judgment, this

Stipulation shall be of no effect whatever, and the making of this

Stipulation shall be without prejudice to any party in this or any

other proceeding;

5. Central and Allright represent that the divestitures ordered in

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

Allright will later raise no claims of hardship or difficulty as

grounds for asking the court to modify any of the divestiture

provisions contained therein;

6. All parties agree that this agreement can be signed in multiple

counterparts.

Dated: March 12, 1999.

For Plaintiff United States

Allee A. Ramadhan (162131),

John C. Filippini (165159),

Joseph M. Miller (439965),

U.S. Department of Justice, Antitrust Division, Merger Task Force, 1401

H Street, NW, Suite 4000, Washington, DC 20005, (202) 307-0001.

For Defendant Central Parking Corporation

David Marx, Jr.,

James H. Sneed (194803),

McDermott, Will & Emery, 227 West Monroe Street, Chicago, IL 60606,

(312) 984-7668.

For Defendant Allright Holdings, Inc.

Michael L. Weiner,

Charles B. Crisman, Jr. (240135),

Skadden, Arps, Slate, Meagher & Flom L.L.P., 919 Third Avenue, New

York, NY 10022, (212) 735-2632.

Final Judgment

Whereas, plaintiff, the United States of America, and defendants

Central Parking Corporation (``Central'') and Allright Holdings, Inc.

(``Allright''), 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 provision 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 parking facilities to ensure that competition is

not substantially lessened;

And whereas, plaintiff requires defendants to make certain

divestitures for the purpose of preserving competition in the off-

street parking services markets specified in the Complaint;

And whereas, defendants have represented to the plaintiff that the

divestitures 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, as hereinafter

defined, under section 7 of the Clayton Act, as amended, 15 U.S.C. 18.

II. Definitions

As used in this Final Judgment:

A. ``Central'' means defendant Central Parking Corporation, a

Tennessee corporation with its headquarters in Nashville, Tennessee,

and includes its successors and assigns, and its subsidiaries,

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

officers, managers, agents, and employees.

B. ``Allright'' means defendant Allright Holdings, Inc., a Delaware

corporation with its headquarters in Houston, Texas, and includes its

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

affiliates, partnerships, joint ventures, directors, officers,

managers, agents, and employees.

C. ``Owned Parking Facilities'' shall consist of all assets and

properties owned by defendants listed in Schedule A.

D. ``Parking Facility Agreements'' shall consist of all agreements

between or among the defendants and the owner or manager of the parking

facilities listed in Schedule B.

E. ``Acquirer'' means the entity or entities to whom the defendants

divest the Parking Facilities, or that succeed to the defendants'

interests in any Parking Facility Agreement that is transferred

pursuant to this Final Judgment.

F. ``Parking Facilities'' means the properties listed in Schedules

A and B.

G. ``Divest'' or ``Divestiture'' means, (1) in connection with the

Owned Parking Facilities listed in Schedule A, their sale, and (2), in

connection with the Parking Facilities listed in Schedule B, the

transfer of the Parking Facility Agreements by termination or

assignment.

III. Applicability

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

their successors and assigns, subsidiaries, directors, officers,

managers, agents, and employees, and all other persons in

[[Page 15797]]

active concert or participation with any of them who shall have

received actual notice of this Final Judgment by personal service or

otherwise.

B. Defendant Central shall require, as a condition of the sale of

all or substantially all of its assets, that the Acquirer or Acquirers

agree to be bound by the provisions of this Final Judgment; however,

defendant Central need not obtain such an agreement from an Acquirer in

connection with the divestiture of the Parking Facilities.

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 the Final Judgment,

whichever is later, to divest all Parking Facilities identified in

Schedules A and B to this Final Judgment as viable, ongoing parking

services businesses. The divestiture of Parking Facilities shall be to

an Acquirer or Acquirers acceptable to the United States in its sole

discretion.

B. In accomplishing the divestitures ordered by this Final

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

means, the availability of the Parking Facilities to be divested.

Defendants shall inform any person making an inquiry that the

divestiture 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 bona fide prospective Acquirers, subject to

customary confidentiality assurances, all information regarding the

Parking Facilities customarily provided in a due diligence process

except such information subject to attorney-client privilege or

attorney work-product privilege. Defendants shall make available such

information to the United States at the same time that such information

is made available to any other person.

C. Defendants shall permit prospective Acquirers of the Parking

Facilities to have access to personnel and to any and all zoning,

building, and other permit documents and information, and to make

inspection of the Parking Facilities and of any and all financial,

operational, or other documents and information customarily provided as

part of a due diligence process.

D. Defendants shall use their best efforts to accomplish the

divestitures ordered by this Final Judgment as expeditiously as

possible. The United States, in its sole discretion, may extend the

time period for any divestiture for two (2) additional thirty (30) day

periods, not to exceed sixty (60) calendar days in total.

E. Defendants shall use all commercially practical means to enable

the Acquirer of any Parking Facility to employ any person whose primary

responsibility concerns any parking services business connected with

the Parking Facilities. Defendants shall not interfere with any

negotiations by any Acquirer to employ any Central or Allright (or

former Central or Allright) employee where primary responsibility

concerns any parking services business connected with the Parking

Facilities. Defendants shall provide to any Acquirer information

relating to such personnel to enable the Acquirer to make offers of

employment, and defendants shall remove any impediments that may deter

these employees from accepting such employment, including but not

limited to, non-compete agreements.

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

will impede in any way the operation of any parking business connected

with the Parking Facilities, or take any action, direct or indirect,

that would impede the divestiture of any Parking Facility.

G. Defendants may not enter into any agreement to operate any

parking business at the facilities listed in Scheduled B within two (2)

years of divestiture.

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

divestitures pursuant to Section IV, or by trustee appointed pursuant

to Section VI, shall include all the Parking Facilities and be

accomplished by divesting the Parking Facilities to an Acquirer or

Acquirers in such a way as to satisfy the United States, in its sole

discretion, that the Parking Facilities can and will be used by the

Acquirers as viable ongoing off-street parking services businesses, and

the divestitures will remedy the harm alleged in the Complaint. The

divestitures, whether pursuant to Section IV or Section VI of the Final

Judgment, shall be made to an Acquirer or Acquirers that, in the United

States' sole judgment, has the intent and capability (including the

necessary managerial, operational, and financial capability) of

competing effectively with the defendants in providing off-street

parking services.

V. 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 VI 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 divestiture.

B. The notice of any proposed divestiture 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, management or leasehold interest in the facility 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 a divestiture notice, the United States, in its

sole discretion, may request from defendants, the proposed Acquirer,

the trustee, or any other third party additional information concerning

the proposed divestiture and the proposed Acquirer. 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 the defendants, the proposed Acquirer, the trustee, or

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

applicable) that it does not object, then the divestiture may be

consummated, subject only to defendants' limited right to object to the

sale under Section VI(F) of this Final Judgment.

C. Absent written notice that the United States does not object to

the proposed Acquirer, or upon objection by the United States, a

proposed divestiture under Section IV or Section VI may not be

consummated. Upon objection by defendants under the provision in

Section VI(F), a divestiture proposed under Section VI shall not be

consummated unless approved by the Court.

VI. Appointment of Trustee

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

Facilities as specified in Section IV of this Final Judgment, the Court

shall appoint, on

[[Page 15798]]

application of the United States, a trustee selected by the United

States, to effect the divestiture of each such Parking Facility.

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

trustee shall have the right to divest Parking Facilities.

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

and all divestitures of Parking Facilities 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.

D. Subject to Section VI(G) of this Final Judgment, the trustee

shall have the power and authority to hire at the cost and expense of

the defendants any investment bankers, attorneys, or other agents

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

divestitures or terminations, 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.

E. The trustee shall have the authority to accomplish the

divestitures of Parking Facilities to an Acquirer or Acquirers

acceptable to the United States, in its sole discretion, and shall have

such other powers as this Court shall deem appropriate.

F. Defendants shall not object to a divestiture 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 V of this Final Judgment.

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

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

account for all monies derived from the divestiture of each Parking

Facility divested by the trustee. The trustee shall also account for

all costs and expenses incurred to accomplish the divestitures. 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 such trustee and of any

professionals and agents retained by the trustee shall be reasonable in

light of the value of the divested facility 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.

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

accomplishing the required divestitures, including 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 Parking Facilities to be divested, and

defendants shall develop financial or other information relevant to the

businesses to be divested customarily provided in a due diligence

process as the trustee may reasonably request, subject to customary

confidentiality assurances. Defendants shall take no action to

interfere with or impede the trustee's accomplishment of the

divestitures. Defendants shall permit bona fide prospective Acquirers

of the Parking Facilities 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 divestitures required by this Final Judgment.

I. 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 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 Parking Facilities 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 Parking Facilities.

J. If the trustee has not accomplished such divestitures within

ninety (90) days 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

deems 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 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.

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 VI 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 VI

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 Parking Facilities to be divested, and shall described

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 an Acquirer for any and all Parking

Facilities, to provide required information to prospective Acquirers,

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. Until one year after all the divestitures have been completed,

defendants shall preserve all records of all efforts made to effect

each divestiture.

VIII. Compliance Inspection

For purposes of determining or securing compliance with the Final

Judgment 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 Assistant Attorney General in

charge of the Antitrust Division, and on reasonable notice to

defendants made to their principal offices, shall be permitted:

[[Page 15799]]

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 the matters contained in this

Final Judgment; 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 Assistant Attorney General in

charge of the Antitrust Division, defendants shall submit such written

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

in the Final Judgment.

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

Sections VII or VIII 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 United States, defendants represent and identify in

writing the material in any such information or documents to which a

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

Rules of Civil Procedure, and defendants mark each pertinent page of

such material, ``Subject to claim of protection under Rule 26(c)(7) of

the Federal Rules of Civil Procedure,'' then ten (10) calendar days

notice shall be given by the United States to defendants prior to

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

jury proceeding) to which defendants are not a party.

IX. 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.

X. Financing

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

any divestiture made pursuant to Sections IV or VI of this Final

Judgment.

XI. Termination

Unless this Court grants an extension, this Final Judgment will

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

XII. Public Interest

Entry of this Final Judgment is in the public interest.

Dated ____________________, 1999.

Court approval subject to procedures of Antitrust Procedures and

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

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

United States District Judge

Schedule A

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

City Facility

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

San Antonio, TX.............. Allright Facility 45 at 408 Martin St.

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

Schedule B

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

City Facility

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

Baltimore, MD................ Central Facility 40 at 1 South Street.

Cincinnati, OH............... Allright Facility 81 at 312 Elm St.

Central Facility 20 at 30 W. 4th St.

Columbus, OH................. Allright Facility 33 at 503 S. Front St.

Central Facility 117 at 329 State St.

Dallas, TX................... Allright Facility 381 at 608 N. St Paul St.

Allright Facility 382 at 2013 San Jacinto St.

Allright Facility 383 at 502 N. St Paul St.

Central Facility 61 at Corner of Routh St. and Ross St.

Denver, CO................... Allright Facility 108 at 1801 Market St.

Allright Facility 268 at 1735 Blake St.

Allright Facility 269 at 1775 Blake St.

Allright Facility 485 at 1670 Larimer St.

Central Facility 21 at 17th and Blake St.

Central Facility 50 at 1627 California St.

El Paso, TX.................. Allright Facility 208 at 149 Ochoa St.

Allright Facility 205 at 605 Myrtle Ave.

Houston, TX.................. Allright Facility 589 at 1110 Lamar St.

Central Facility 31 at 1111 Fannin St.

Allright Facility 168 at 1204 Bagby St.

Allright Facility 501 at 1000 Bell Ave.

Jacksonville, FL............. Allright Facility 13 at 425 W. Adams St.

Allright Facility 21 at 304 N. Pearl St.

Allright Facility 22 at 325 N. Broad St.

Allright Facility 82 at SW Corner Clay/Forsyth.

Central Facility 107 at 213-4 Julie St.

Kansas City, MO.............. Allright Facility 155 at 714 E. 11th St.

Knoxville, TN................ Allright Facility 110 at 505 Locust St S.W.

Allright Facility 149 at 408 Church Ave. S.W.

Allright Facility 181 at 508A Clinch Ave.

Memphis, TN.................. Allright Facility 335 at 215 Jefferson Ave.

[[Page 15800]]

Allright Facility 333 at 199 Jefferson Ave.

Allright Facility 381 at 120 Union Ave.

Allright Facility 141 at 188 South Main St.

Central Facility 510 at 54 N. 2nd St.

Central Facility 511 at 160 Court St.

Central Facility 512 at 20 S. Front St.

Central Facility 513 at 100 N. Front St.

Central Facility 517 at 236 Adams St.

Central Facility 525 at 444 North Main St.

Miami, FL.................... Allright Facility 161 at 153 SE 2nd St.

Central Facility 6136 at 300 SE 3rd Ave.

Central Facility 6137 at 301 SE 3rd Ave.

Central Facility 6138 at 200 SE 3rd Ave.

Nashville, TN................ Allright Facilities 64 and 118 at 210-220 4th Ave. S.

Allright Facility 11 at 143 7th Ave. No.

Allright Facility 34 at 719-721 Church St.

Allright Facility 115 at 217 7th Ave. So.

Allright Facility 70 at 703 3rd Ave. N.

Allright Facility 6 at 168 8th Ave. N.

Allright Facility 114 at SW Corner of 2nd Ave. S and Molloy St.

Central Facility 89 at 501 Broadway.

Central Facility 85 at 149 7th Ave. S.

Central Facility 27 at 128 8th Ave. N.

Central Facility 109 at 147 4th Avenue N.

Central Facility 36 at 144 5th Avenue N.

Central Facility 53 at 116 5th Avenue N.

Allright Facilities 35 and 48 at 411 Church St.

New York, NY................. Central Facility 2227 at 345 W. 58th St.

Allright Facility 249 at 14-26 S. William St.

Allright Facility 41 at 136 W. 40th St.

Allright Facility 282 at 401-471 W. 42nd St.

Philadelphia, PA............. Central Facility 27 at 210 W. Rittenhouse Sq.

Allright Facility 81 at 1215 Walnut St.

San Antonio, TX.............. Allright Facility 38 at 422 Bonham St.

Allright Facility 18 at 309 Elm St.

Allright Facility 42 at 303 Blum St.

Central Facility 709 at 300 East Houston St.

Central Facility 789 at 240 Broadway St.

Central Facility 790 at 110 Broadway St.

Central Facility 794 at 213 Broadway St.

San Francisco, CA............ Central Facility 135 at 3rd. and Brannan St.

Tampa, FL.................... Allright Facility 415 at 1001 N. Morgan St.

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

Certificate of Service

I hereby certify that on March 16, 1999, I served a copy of the

Complaint, Final Judgment and Stipulation on each of the defendants

listed below:

Counsel for Central Parking Corporation

David Marx, Jr., Esq.,

McDermott, Will & Emery, 227 West Monroe Street, Chicago, IL 60606,

(312) 984-7668 (By facsimile and express mail).

Counsel for Allright Holdings, Inc.

Michael L. Weiner, Esq.,

Skadden, Arps, Slate, Meagher & Flom L.L.C., 919 Third Avenue, New

York, NY 10022, (212) 735-3000 (By facsimile and express mail).



Joseph M. Miller,

DC Bar No. 439965, U.S. Department of Justice, Antitrust Division, 1401

H Street, NW, Suite 4000, Washington, D.C. 20530, (202) 305-8462.

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 be proposed Final

Judgment submitted for entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

The plaintiff filed a civil antitrust Complaint in this Court on

March 16, 1999, alleging that the proposed merger between Central

Parking Corporation (Central) and Allright Holdings, Inc. (Allright)

would violate section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint

alleges that Central and Allright own, lease, and manage off-street

parking facilities for motorists in several cities of the United

States, and that they are direct and substantial competitors of each

other in certain local parking markets identified in the Complaint. The

Complaint also states that Central is the largest parking management

company, in terms of parking locations, spaces, and parking revenues,

that Allright is the second largest parking management company in

[[Page 15801]]

the United States, and that they are two of only four such companies

with a nationwide presence. The proposed acquisition would give Central

a dominant market share of off-street parking facilities for motorists

in local markets identified in the Complaint. In such markets,

meaningful entry would be unlikely, untimely, and insufficient to

undermine anticompetitive effects likely to result from the proposed

merger.

The prayer for relief seeks: (a) adjudication that Central's

proposed merger with Allright would violate section 7 of the Clayton

Act; (b) permanent injunctive relief preventing the consummation of the

proposed acquisition; (c) and such relief as is proper.

A proposed settlement has now been reached which is designed to

eliminate the anticompetitive effects likely to result from the

proposed merger. Within five months after the filng of the Complaint in

this case, the defendants have agreed to divest their parking

facilities in those local markets in which they are likely to be able

to exert market power as a result of the proposed merger. A Stipulation

and proposed Final Judgment embodying the settlement has been filed

with the Court.

The proposed Final Judgment orders the defendants to divest certain

of their off-street parking facilities which they operate, within five

months after the filing of the Complaint in this case, unless the

United States grants an extension of time. If the defendants fail to

divest these parking properties within the five month period, the Court

may appoint a trustee to divest the parking facilities identified in

the Final Judgment. The proposed Final Judgment also prohibits the

defendants from taking any action that would impede the operation of

the parking facilities. The proposed Final Judgment also requires that

the divestitures be made to an acquirer or acquirers that have the

capability and intent to compete effectively in the provision of off-

street parking services.

The plaintiff and the defendants have stipulated that the proposed

Final Judgment may be entered after compliance with the APPA. Entry of

the proposed Final Judgment would terminate this 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. The Alleged Violations

A. The Defendants

Central is headquartered in Nashville, Tennessee and provides off-

street parking services to motorists in the United States, Canada,

Mexico, Germany, Spain, and Malaysia. It is the largest company in the

United States offering such services, in terms of the number of

facilities. The company operates over 2,400 parking facilities

containing over a million spaces. Its portfolio of parking facilities

include owned, leased and managed properties. In fiscal year 1997,

Central had revenues of $222,976,000.

Allright is headquartered in Houston, Texas and provides off-street

parking services to motorists in the United States. The company is

currently 44.5% owned by Apollo Real Estate Investment Fund II, L.P.,

44.5% owned by AEW Partners L.P., 9.1% owned by management, and 1.9%

owned by certain financial advisors to Apollo and AEW and one member of

the previous Allright management team. It is the second largest parking

company, in terms of the number of locations in the United States.

Allright operates over 2,300 parking facilities containing nearly

600,000 spaces. Like Central, its portfolio of parking facilities

includes owned, leased and managed properties. In fiscal year 1997,

Allright had annual revenues of $178,637,000.

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

On or about September 21, 1998, Central and Allright entered into

an agreement whereby Allright will become a wholly owned subsidiary of

Central, which will continue as the surviving entity in structure and

in name. Current Central shareholders will own approximately 80% of

Central's common stock, and current Allright shareholders will own

approximately 20% of Central's common stock. The total value of the

proposed merger at the time it was announced was approximately $585

million.

C. Anticompetitive Consequences of the Proposed Merger

The Complaint alleges that off-street parking services for

motorists constitutes a line of commerce, or relevant product market,

for antitrust purposes. It also alleges that relevant geographic

markets in which to measure the effects of the proposed merger are no

larger than the central business districts (CBDs) of the cities

identified in the Complaint. The Complaint further alleges that Central

and Allright are direct and substantial competitors in offering off-

street parking services to consumers.

Central and Allright establish parking prices, either unilaternally

or in conjunction with the owners of parking facilities, on a location-

by-location basis. In determining the appropriate price and service for

any location, the defendants consider the prices charged by other

providers of off-street parking services in the geographic market, as

well as overall demand for parking services, and the availability of

other off-street parking locations. The Complaint alleges that the

proposed merger threatens competition by substantially increasing

Central's market shares in the relevant markets, and accordingly, would

allow Central to exercise substantial control over prices and services

available to consumers.

Entry into the relevant markets is unlikely to occur in response to

a small but significant price increase. To enter a relevant market and

discipline a noncompetitive price increase, a firm must add to the

supply of parking spaces that motorists view as substitutes. Creation

of new parking spaces in a CBD, however, is most often a byproduct of

construction or tearing down of buildings. Given the local character of

competition, the cost of land, the limited availability of

substitutable parking facilities, and the alternative options for the

use of convenient land in the market, entry cannot be viewed as a

likely and timely response that would undermine an anticompetitive

price increase.

III. Explanation of the Proposed Final Judgment

The proposed Final Judgment would preserve competition in the

relevant markets identified in the Complaint by reducing Central's

market share where Central would be dominant as a result of the

proposed merger. To that end, it requires the divestiture of 74 off-

street parking facilities owned, leased or managed by Central and

Allright in 18 cities. This relief is designed to ensure that the

merger does not increase Central's market share in the local markets of

the relevant cities to a level likely to lend to the exercise of market

power.

Section IV of the proposed Final Judgment requires the defendants

to divest those parking facilities identified in Schedules A and B of

the Final Judgment as viable, ongoing businesses. Under the proposed

Final Judgment, the defendants must take all reasonable steps necessary

to accomplish quickly the divestiture of the specified assets, and

shall cooperate with bona fide prospective purchasers by supplying all

[[Page 15802]]

information relevant to the proposed sale. Unless the United States

grants an extension of time, the defendants must divest the parking

facilities within 150 days after the Complaint is filed. Until the

divestitures take place, the parking properties must continue to be

operated as parking facilities.

The defendants are also prohibited from entering into any agreement

to operate any of the leased or managed properties divested within two

(2) years of the divestiture.

If the defendants fail to divest any of the parking facilities

within the time period specified in the Final Judgment, or extension

thereof, the Court, upon application of the United States, shall

appoint a trustee to effect the required divestitures. If a trustee is

appointed, Section VI of the proposed Final Judgment provides that the

defendants will pay all costs and expenses of the trustee and any

professionals and agents retained by the trustee. The compensation paid

to the trustee and any persons retained by the trustee shall be

reasonable and shall be 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. After

appointment, the trustee will file monthly reports with the United

States, the defendants and the Court, setting forth the trustee's

efforts to accomplish the divestitures ordered under the proposal Final

Judgment. If the trustee has not accomplished the divestitures within

ninety (90) days after its appointment, the trustee shall promptly file

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. At the same time, the trustee will

furnish such report to the United States and defendants, who will each

have the right to be heard and to make additional recommendations

consistent with the purpose of the trust.

The relief in the proposed Final Judgment is intended to remedy the

likely anticompetitive effects of the proposed merger between Allright

and Central. Nothing in the proposed Final Judgment is intended to

limit the United States's ability to investigate or bring actions,

where appropriate, challenging other past or future activities of the

defendants.

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 the 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 (60) days preceding

the effective date of the proposed Final Judgment within which any

person may submit to the United States written comments regarding the

proposed Final Judgment. Any person who wishes to comment should do so

within sixty (60) days of the date of publication of this Competitive

Impact Statement in the Federal Register. The United States will

evaluate and respond to the comments. All comments will be given due

consideration by the Department of Justice, which remains free to

withdraw its consent to the proposed Final Judgment at any time prior

to its entry. The comments and the response of the United States will

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

Any such written comments should be submitted to: Craig W. Conrath,

Chief, Merger Task Force, Antitrust Division, United States Department

of Justice, 1401 H Street, NW, Suite 4000, Washington, DC 20530.

The proposed Final Judgment provides that the Court retains

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

for any order necessary or appropriate for the modification,

interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

The United States considered, as an alternative to the proposed

Final Judgment, the filing of a complaint and a full trial on the

merits of its complaint. The United States is satisfied, however, that

the divestitures as called for by the proposed Final Judgment and other

relief contained in the proposed Final Judgment will preserve viable

competition in the relevant markets. Thus, the proposed Final Judgment

would achieve the relief the Government would have sought through

litigation, but avoids the time, expense and uncertainty of a full

trial on the merits of the complaint.

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

The APPA requires that proposed consent judgments in antitrust

cases brought by the United States be subject to a sixty (60) day

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

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

that determination, the court may consider--

(1) The competitive impact of such judgment, including

termination of alleged violations, provisions for enforcement and

modification, duration or relief sought, anticipated effects of

alternative remedies actually considered, and any other

considerations bearing upon the adequacy of such judgment;

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

generally and individuals alleging specific injury from the

violations set forth in the complaint including consideration of the

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

issues at trial.

15 U.S.C. 16(e). As the United States Court of Appeals for the D.C.

Circuit recently held, this statute permits a court to consider, among

other things, the relationship between the remedy secured and the

specific allegations set forth in the government's complaint, whether

the decree is sufficiently clear, whether enforcement mechanisms are

sufficient, and whether the decree may positively harm third parties.

See United States v. Microsoft, 56 F.3d 1448, 1461-62 (D.C. Cir. 1995).

In conducting this inquiry, ``[t]he 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. Rep. 93-1463, 93rd Cong.

2d Sess. 8-9 (1974), reprinted in U.S.C.C.A.N. 6535, 6538.

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

[[Page 15803]]

[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., 1997-1 Trade Cas.

para. 61,508, at 71.980 (W.D. Mo. 1997).

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), citing United States v. Bechtel

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

at 1460-62. 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, 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 Microsoft, 56 F.3d at 1461

(whether ``the remedies [obtained in the decree are] so inconsonant

with the allegations charged as to fall outside of the `reaches of

the public interest' '')(citations omitted).

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

The proposed Final Judgment, therefore, should not be reviewed

under a standard of whether it is certain to eliminate every

anticompetitive effect of a particular practice or whether it mandates

certainty of 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 even if it falls short of the remedy the court would

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

acceptability or is within the reaches of public interest.'' \3\

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

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

131, 151 (D.D.C. 1982), aff'd. sub nom. Maryland v. United States,

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

(citations omitted); United States v. Alcan Aluminum Ltd., 605 F.

Supp. 619, 622 (W.D. Ky. 1985).

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

This is strong and effective relief that should fully address the

likely competitive harm posed by the proposed merger.

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: March 23, 1999.

Respectfully submitted,

Allee A. Ramadhan, John C. Filippini, Joseph M. Miller,

Attorneys, Merger Task Force, U.S. Department of Justice, Antitrust

Division, 1401 H Street, N.W., Suite 4000, Washington, D.C. 20530,

(202) 307-0001.

[FR Doc. 99-7975 Filed 3-31-99; 8:45 am]

BILLING CODE 4410-11-M