[Federal Register: August 18, 2005 (Volume 70, Number 159)]
[Notices]
[Page 48590-48603]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au05-67]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Waste Industries USA, Inc.; Proposed Final
Judgment and Competitive Impact Statement
Notice is hereby given, pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a Complaint, proposed Final
Judgment, Stipulation, and Competitive Impact Statement were filed with
the United States District Court for the Eastern District of Virginia
in United States v. Waste Industries USA, Inc., Civ. Action No.
2:05CV468. On August 8, 2005, the United States filed a Complaint,
which sought to compel Waste Industries USA, Inc., to divest certain
small container
[[Page 48591]]
commercial hauling assets in the Norfolk, Virginia area acquired from
Allied Waste Industries, Inc., and to enjoin Waste Industries from
continuing certain anticompetitive contracting practices. The Complaint
alleges that Waste Industries' acquisition of these assets from Allied
has substantially lessened competition in the market for small
container commercial hauling services in the Norfolk, Virginia area, in
violation of Section 7 of the Clayton Act, as amended, 15 U.S.C. 18.
The proposed Final Judgment, also filed on August 8, 2005, requires the
defendant to divest contracts and accounts on selected Waste Industries
small container commercial hauling routes in the Norfolk, Virginia
area, and to alter its existing or future small container commercial
waste hauling contracts in that area. A Competitive Impact Statement
filed by the United States describes the Complaint, the proposed Final
Judgment, and the remedies available to private litigants who may have
been injured by the alleged violation.
Copies of the Complaint, proposed Final Judgment, Stipulation, and
Competitive Impact Statement are available for inspection at the U.S.
Department of Justice, Antitrust Division, 325 Seventh Street, NW.,
Suite 215, Washington, DC 20530 (telephone: 202-514-2481), on the
Internet at http://www.usdoj.gov/atr, and at the Clerk's Office of the
United States District Court for the Eastern District of Virginia
(Norfolk Division). Copies of these materials may be obtained upon
request and payment of a copying fee.
Public comment is invited within the statutory 60-day comment
period. Such comments and responses thereto will be published in the
Federal Register and filed with the Court. Comments should be directed
to Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division,
U.S. Department of Justice, 1401 H Street, NW., Suite 3000, Washington,
DC 20530 (telephone: 202-307-0924).
Dorothy B. Fountain,
Deputy Director of Operations, Antitrust Division.
United States District Court for the Eastern District of Virginia--
Norfolk Division
United States of America, Department of Justice, Antitrust Division,
1401 H Street, NW., Suite 3000, Washington, DC 20530, v. Waste
Industries USA, Inc., 3301 Benson Drive, Suite 601, Raleigh, NC 27609,
Defendant,
Civil No. 2:05cv468 Filed:
Complaint
Plaintiff United States of America, acting under the direction of
the Attorney General of the United States, brings this civil antitrust
action to obtain equitable and other appropriate relief against
defendant Waste Industries USA, Inc., (``Waste Industries''), including
compelling Waste Industries to divest certain waste hauling assets and
enjoining Waste Industries from continuing certain anticompetititve
contracting practices. The United States complains and alleges as
follows:
I. Nature of Action
1. On August 1, 2003, Waste Industries purchased from Allied Waste
Industries, Inc., (``Allied'') certain waste-hauling assets. Waste
Industries and Allied were two of only a few providers of waste
collection services in the independent cities of Norfolk, Chesapeake,
Virginia Beach, Portsmouth, Suffolk, and Franklin, Virginia and the
country of Southampton, Virginia (hereinafter the ``Southside''). The
transaction has lessened substantially competition in Southside small
container commercial waste collection services.
2. This action seeks to undo the anticompetitive effects of the
acquisition of Allied's waste hauling assets by Waste Industries. The
divestitures and contracting practice relief sought herein will restore
the benefits of the competition that was lost as a result of the
transaction.
II. Jurisdiction and Venue
3. This action is filed by the United States of America under
Section 15 of the Clayton Act, 15 U.S.C. 25, to prevent and restrain
the violation by Waste Industries of Section 7 of the Clayton Act, 15
U.S.C. 18.
4. Waste Industries is located in and transacts business in the
Eastern District of Virginia, and Waste Industries submits to the
personal jurisdiction of the Eastern District of Virginia in this
proceeding. Venue is therefore proper in this district under Section 12
of the Clayton Act, 15 U.S.C. 22 and 28 U.S.C. 1391(c).
5. Waste Industries collects municipal solid waste from
residential, commercial, and industrial customers, and owns and
operates landfills, which process and dispose of municipal solid waste.
In its waste collection and waste disposal businesses, Waste Industries
makes sales and purchases in interstate commerce, ships waste in the
flow of interstate commerce, and engages in activities substantially
affecting interstate commerce. The Court has jurisdiction over this
action and over Waste Industries pursuant to 15 U.S.C. 22 and 28 U.S.C.
1331 and 1337.
III. Waste Industries and the Transaction
6. Waste Industries is a North Carolina corporation with its
principal office in Raleigh, North Carolina. It is engaged in providing
waste collection and disposal services throughout the Southeastern
United States. In 2004, Waste Industries reported total revenues of
approximately $291 million.
7. Effective August 1, 2003, Waste Industries and Allied completed
a purchase and sale of assets in Charlotte, North Carolina; Sumter,
South Carolina; Mobile, Alabama; Biloxi, Mississippi; Clarksville,
Tennessee; and the Southside. No premerger notification was required
under Section 7A of the Clayton Act, 15 U.S.C. 18a(c).
IV. Trade and Commerce
A. The Relevant Service Market: Small Container Commercial Waste
Collection
8. Municipal solid waste (``MSW'') is solid putrescible waste
generated by households and commercial establishments such as retail
stores, offices, restaurants, warehouses, and nonmanufacturing
activities in industrial facilities. MSW does not include special
handling waste (e.g., waste from manufacturing processes, regulated
medical waste, sewage, and sludge), hazardous waste, or waste generated
by construction or demolition sites.
9. Waste collection firms, or ``haulers,'' collect MSW from
residential, commercial and industrial establishments and transport the
waste to a disposal site, such as a transfer station, sanitary
landfill, or incinerator, for processing and disposal. Private waste
haulers typically contract directly with individual customers for the
collection of waste generated by
[[Page 48592]]
commercial accounts. MSW generated by residential customers, on the
other hand, is often collected by either local governments or by
private haulers pursuant to contracts bid by, or franchises granted by,
municipal authorities.
10. Small container commercial waste collection service is the
business of collecting MSW from commercial and industrial accounts,
usually in ``dumpsters'' (i.e., a small container with one to ten cubic
yards of storage capacity), and transporting or ``hauling'' such waste
to a disposal site by use of a front- or rear-end loader truck. Typical
commercial waste collection customers include office and apartment
buildings and retail establishments (e.g., stores and restaurants).
11. Small container commercial waste collection differs in many
important respects from the collection of residential or other types of
waste. An individual commercial customer typically generates
substantially more MSW than a residential customer. To handle this high
volume of MSW efficiently, haulers provide commercial customers with
small dumpsters for storing the waste. Haulers organize their
commercial accounts into routes and collect and transport the MSW
generated by these accounts in vehicles uniquely well suited for small
container waste collection, primarily front-end loader (``FEL'')
trucks. Less frequently, haulers may use more maneuverable, but less
efficient, rear-end loader (``REL'') trucks, especially in those areas
in which a collection route includes narrow alleyways or streets. FEL
trucks are unable to navigate narrow passageways easily and cannot
efficiently collect waste located in them.
12. On a typical small container commercial waste collection route,
an operator drives a FEL vehicle to the customer's container, engages a
mechanism that grasps and lifts the container over the front of the
truck, and empties the container into the vehicle's storage section,
where the waste is compacted and stored. The operator continues along
the route, collecting MSW from each of the commercial accounts, until
the vehicle is full. The operator then drives the FEL truck to a
disposal facility, such as a transfer station, landfill, or
incinerator, and empties the contents of the vehicle. Often, the
operator returns to the route and repeats the process.
13. In contrast to a commercial collection route, a residential
waste collection route is significantly more labor intensive. The
customer's MSW is stored in much smaller containers (e.g., garbage bags
or trash cans) and instead of FEL trucks, waste collection firms
routinely use REL or side-load trucks, manned by larger crews (usually,
two- or three-person teams). On residential routes, the crews generally
hand-load the customer's MSW, typically by tossing garbage bags and
emptying trash cans into the vehicle's storage section. Because of the
differences in collection processes, residential customers and
commercial customers usually are organized into separate routes. For a
variety of reason, other types of collection activities, such as roll-
off containers (typically used for construction debris) and collection
of liquid or hazardous waste, are rarely combined with commercial waste
collection activities. This separation of routes is due to differences
in the hauling equipment required, the volume of waste collected,
health and safety concerns, and the ultimate disposal option used.
14. The differences in the types and volume of MSW collected and in
the equipment used in collection distinguish small container commercial
waste collection from all other types of waste collection activities.
These differences mean that small container commercial waste collection
firms can profitably increase their charges for small container
commercial waste collection services without losing significant sales
or revenues to firms engaged in the provision of other types of waste
collection services. Thus, small container commercial waste collection
service is a line of commerce, or relevant service, for purpose of
analyzing the effects of the acquisition under Section 7 of the Clayton
Act.
B. The Relevant Geographic Market: The Southside
15. Small container commercial waste collection service is
generally provided in highly localized areas because, to operate
efficiently and profitably, a hauler must have sufficient density in
its commercial waste collection operations (i.e., a large number of
commercial accounts that are reasonably close together). In addition, a
FEL or REL vehicle cannot be efficiently driven long distances without
collecting significant amounts of MSW, which makes it economically
impractical for a small container commercial waste collection firm to
serve metropolitan areas from a distant base. Haulers, therefore,
generally establish garages and related facilities within each major
local area served.
16. Local small container commercial waste collection firms on the
Southside can profitably increase charges to local customers without
losing significant sales to more distant competitors. The Southside is
the relevant geographic market, for purposes of analyzing the effects
of the acquisition under Section 7 of the Clayton Act.
C. Reduction in Competition As a Consequence of the Acquisition
17. Allied and Waste Industries directly competed in small
container commercial waste collection service on the Southside. In this
market, Allied and Waste Industries each accounted for a substantial
share of total revenues from commercial waste collection services.
18. On the Southside, the acquisition reduced from four to three
the number of significant firms competing in the collection of small
container commercial waste. Because of the acquisition, Waste
Industries now controls about 43%--and the two largest firms about
82%--of the small container commercial waste hauling market. The total
Southside market generates annual revenues of about $25 million.
D. Entry into Small Container Commercial Waste Collection of MSW
19. Significant new entry into small container commercial waste
collection service is difficult and time consuming on the Southside. A
new entrant into small container commercial waste collection service
cannot provide a significant competitive constraint on the prices
charged by market incumbents until it achieves minimum efficient scale
and operating efficiencies comparable to existing firms. In order to
obtain comparable operating efficiency, a new firm must achieve route
density comparable to existing firms. However, the incumbents' use of
price discrimination and long-term contracts prevents new entrants from
winning a large enough base of customers to achieve efficient routes in
sufficient time to constrain the post-acquisition firm from
significantly raising prices after the transaction. Differences in the
service provided by an incumbent hauler to customers permit the
incumbent to meet competition easily from new entrants by pricing its
services lower to any customer that wants to switch to the new entrant.
An incumbent's use of long-term contracts, which contain large
liquidated damage provisions for contract termination and automatically
renew, make it more difficult for the customer to switch to a new
hauler and obtain lower prices. Long-term contracts increase the cost
and time required by an entrant to form an efficient route, reducing
the likelihood that the entrant will be successful.
[[Page 48593]]
E. Harm to Competition
20. The acquisition by Waste Industries of Allied's Southside
assets has removed a significant competitor in an already highly
concentrated and difficult-to-enter Southside small container
commercial waste collection market. In the Southside market, the
resulting substantial increase in concentration, loss of competition,
and absence of reasonable prospect of significant new entry, has denied
small container commercial waste customers the benefits of
competition--lower prices and better service.
V. Violation Alleged
21. On or about August 1, 2003, Waste Industries acquired Allied's
Southside small container commercial waste collection assets. The
effect of this acquisition has been to substantially lessen competition
in interstate trade and commerce in violation of Section 7 of the
Clayton Act.
22. The transaction has had the following effects, among others:
a. Competition generally in small container commercial waste
collection service in the Southside market has been lessened
substantially;
b. Actual and potential competition between Allied and Waste
Industries in small container commercial waste collection service was
eliminated on the Southside; and
c. Small container commercial waste customers in the Southside
market have been denied the benefits of competition, including
competition based on price and service.
VI. Requested Relief
The United States requests that this Court:
1. Adjudge and decree the acquisition of Allied's Southside small
container commercial waste assets by defendant Waste Industries to
violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18;
2. Compel Waste Industries to divest waste hauling assets
sufficient to restore the competition that was lost as a result of the
transaction;
3. Enjoin Waste Industries from continuing certain anticompetitive
contracting practices;
4. Award the United States the cost of this action; and
5. Award the United States such other and further relief as the
case requires and the Court deems proper.
Respectfully submitted,
August 8, 2005.
For Plaintiff United States
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Thomas O. Barnett,
Acting Attorney General.
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Dorothy B. Fountain,
Deputy Director of Operations.
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Maribeth Petrizzi,
Chief, Litigation II Section,
James J. Tierney,
Assistant Chief, Litigation II Section.
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Leslie D. Peritz.
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Lowell Stern,
VA Bar No. 33460.
Michael K. Hammaker,
Janet A. Nash,
Kerrie Freeborn,
U.S. Department of Justice, Antitrust Division, Litigation II
Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530.
leslie.peritz@usdoj.gov. (202) 307-0924.
United States District Court for the Eastern District of Virginia--
Norfolk Division
United States of America, Plaintiff, v. Waste Industries USA, Inc.,
Defendant
Final Judgment
Whereas, the plaintiff United States of America, having filed its
Complaint in this action on August 8, 2005 and the plaintiff and the
defendant Waste Industries USA, Inc., by their respective attorneys,
have consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law, and without this Final
Judgment constituting any evidence against or an admission by any party
with respect to any issue of law or fact;
And Whereas, the defendant agrees 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 Relevant Hauling Assets by the defendant to
ensure that competition is substantially restored;
And Whereas, the United States requires the defendant to amend
certain provisions of its waste hauling contracts and to make certain
divestitures in order to remedy the loss of competition alleged in the
Complaint;
And Whereas, the defendant has represented to the United States
that the divestiture required below can and will be made and that the
defendant will late raise no claims of hardship or difficulty as
grounds for asking the Court to modify any of the divestiture or other
injunctive provisions contained below;
Now, Therefore, before the taking of any testimony, and without
trial or adjudication of any issue of fact or law, and upon consent of
the parties, it is hereby ordered, adjudged, and decreed:
I. Jurisdiction
This Court has jurisdiction over each of the parties and over the
subject matter of this action. The Complaint states a claim upon which
relief may be granted against the defendant under Section 7 of the
Clayton Act, as amended, 15 U.S.C. Sec. 18.
II. Definitions
As used in this Final Judgment:
A. ``Acquirer''means the entity to whom the defendant divests the
Relevant Hauling Assets.
B. ``Hauling'' means the collection of waste from customers and the
shipment of the collected waste to disposal sites. Hauling does not
include collection of roll-off containers.
C. ``MSW''means municipal solid waste, a term of art used to
describe solid putrescible waste generated by household and commercial
establishment such as retail stores, offices, restaurants, warehouses,
and nonmanufacturing activities in industrial facilities. MSW does not
include special handling waste (e.g., waste from manufacturing
processes, regulated medical waste, sewage, and sludge), hazardous
waste, or waste generated by construction or demolition sites.
D. ``Relevant Hauling Assets'' means $780,000 in annual Southside
small container commercial waste collection revenue comprised of
customers from Waste Industries' waste collection routes 22 and 914
that operate in Norfolk and Virginia Beach, respectively, and all
intangible assets and records related to such customers, including
contracts, hauling-related customer lists, account files, and credit
records. (The divested customers from Routes 22 and 914 are identified
in Exhibit A to this Final Judgment.) If the defendant Acquirer
mutually agree, Acquirer may: (1) Purchase any other hauling-related
assets used in connection with providing service to the customers
identified in Exhibit A, including trucks and other vehicles,
containers, materials, and supplies; and (2) negotiate with, and make
offers of employment to, personnel involved in the operation and
management of the Relevant Hauling Assets.
E. ``Small container commercial waste collection services'' means
the business of collecting MSW from commercial and industrial accounts,
usually in ``dumpsters'' (i.e., a small container with one to ten cubic
yards of storage capacity), and transporting or hauling
[[Page 48594]]
such waste to a disposal site by use of a front-or rear-end loader
truck. Typical commercial waste collection customers include office and
apartment buildings and retail establishments (e.g., stores and
restaurants).
F. ``Southside'' means the independent cities of Norfolk,
Chesapeake, Virginia Beach, Portsmouth, Suffolk and Franklin, Virginia,
and the county of Southampton, Virginia.
G. ``Waste Industries'' means the defendant Waste Industries USA,
Inc., a North Carolina corporation with its headquarters in Raleigh,
North Carolina, and includes its successors and assigns, and its
subsidiaries, division, groups, affiliates, partnerships, joint
ventures, and their directors, officers, managers, agents, and
employees.
III. Applicability
A. This Final Judgment applies to Waste Industries, as defined
above, and all other persons in active concert or participation with
Waste Industries who receive actual notice of this Final Judgment by
personal service or otherwise.
B. The defendant shall require, as a condition of the sale or other
disposition of all or substantially all of its assets, that the
purchaser agree to be bound by the provisions of this Final Judgment.
IV. Divestiture
A. The defendant is hereby ordered and directed, within ninety (90)
calendar days after the filing of the Complaint in this matter, or five
(5) days after notice of the entry of this Final Judgment by the Court,
whichever is later, to divest the Relevant Hauling Assets in a manner
consistent with this Final Judgment to an Acquirer acceptable to the
United States in its sole discretion. The United States, in its sole
discretion, may agree to an extension of this time period of up to
thirty (30) calendar days, and shall notify the Court in such
circumstances. The defendant agrees to use its best efforts to divest
the Relevant Hauling Assets as expeditiously as possible.
B. In accomplishing the divestiture ordered by this Final Judgment,
the defendant promptly shall make known, by usual and customary means,
the availability of the Relevant Hauling Assets. The defendant shall
inform any person making inquiry regarding a possible purchase of the
Relevant Hauling Assets that they are being divested pursuant to this
Final Judgment and provide that person a copy of this Final Judgment.
The defendant shall offer to furnish to each prospective Acquirer,
subject to customary confidentiality assurances, all information and
documents relating to the Relevant Hauling Assets customarily provided
in a due diligence process except such information or documents subject
to the attorney-client or work-product privileges. The defendant shall
make available such information to the United States at the same time
that such information is made available to any other person.
C. The defendant shall permit each prospective Acquirer of the
Relevant Hauling Assets to have reasonable access to personnel and
access to any and all financial, operational, or other documents and
information customarily provided as part of a due diligence process. If
agreed to by the defendant and the prospective Acquirer, the defendant
shall provide information relating to the personnel involved in the
operation and management of the Relevant Hauling Assets to enable the
Acquirer to make offers of employment. The defendant will not interfere
with any negotiations by the Acquirer to employ any defendant employee.
D. The defendant shall warrant to the Acquirer of the Relevant
Hauling Assets that each asset will be operational on the date of sale.
E. 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 the entire Relevant
Hauling Assets, and shall be accomplished in such a way as to satisfy
the United States, in its sole discretion, that the Relevant Hauling
Assets can and will be used by the Acquirer as part of a viable,
ongoing MSW hauling business. Divestiture of the Relevant Hauling
Assets may be made to an Acquirer, provided that it is demonstrated to
the sole satisfaction of the United States that the Relevant Hauling
Assets will remain viable and the divestiture of such assets will
remedy the competitive harm alleged in the Complaint. The divestiture,
whether pursuant to Section IV or Section V of this Final Judgment:
1. Shall be made to an Acquirer that, in the United States' sole
judgment, has the intent and capability, including managerial,
operational, and financial capability, to compete effectively in the
waste hauling business; and
2. Shall be accomplished so as to satisfy the United States, in its
sole discretion, that none of the terms of any agreement between an
Acquirer and Waste Industries gives Waste Industries the ability
unreasonably to raise the Acquirer's costs, to lower the Acquirer's
efficiency, or otherwise to interfere in the ability of the Acquirer to
compete effectively.
V. Appointment of Trustee
A. If the defendant has not divested the Relevant Hauling Assets
within the time period specified in Section IV.A, the defendant shall
notify the United States of that fact in writing. Upon application of
the United States, in its sole discretion, the Court shall appoint a
trustee selected by the United States and approved by the Court to
effect the divestiture of the Relevant Hauling Assets.
B. After the appointment of the trustee becomes effective, only the
trustee shall have the right to sell the Relevant Hauling Assets. the
trustee shall have the power and authority to accomplish the
divestiture to an Acquirer acceptable to the United States, in its sole
discretion, at such price, and on such terms as are then obtainable
upon reasonable effort by the trustee, subject to the provisions of
Sections IV, V, and VI of this Final Judgment, and shall have other
powers as this Court deems appropriate. Subject to Section V.D of this
Final Judgment, the trustee may have at the cost and expense of the
defendant any investment bankers, attorneys, or other agents, who shall
be solely accountable to the trustee, reasonably necessary in the
trustee's judgment to assist in the divestiture.
C. The defendant shall not object to a sale by the trustee on any
ground other than the trustee's malfeasance. Any such objections by the
defendant must be conveyed in writing in the United States and the
trustee within ten (10) calendar days after the trustee has provided
the notice required under Section VI.
D. The trustee shall serve at the cost and expense of the
defendant, on such terms and conditions as the United States approves,
and shall account for all monies derived from the sale of the Relevant
Hauling 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
the defendant and the trust shall then be terminated. The compensation
of the trustee and any professionals and agents retained by the trustee
shall be reasonable in light of the value of the Relevant Hauling
Assets 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, but timeliness is paramount.
[[Page 48595]]
E. The defendant shall use its best efforts to assist the trustee
in accomplishing the required divestiture. 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 the
defendant shall develop financial and other information relevant to
such business as the trustee may reasonably request, subject to
customary confidentiality protection for trade secret or other
confidential research, development, or commercial information. The
defendant shall take no action to interfere with or to impede the
trustee's accomplishment of the divestiture.
F. After its appointment, the trustee shall file monthly reports
with the United States and the Court settling forth the trustee's
efforts to accomplish the divestiture ordered under this Final
Judgment. To the extent that 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 proceeding
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 Relevant Hauling Assets,
and shall describe in detail each contact with any such person. The
trustee shall maintain full records of all efforts made to divest the
Relevant Hauling Assets.
G. If the trustee has not accomplished such divestiture within six
(6) months after its appointment, the trustee shall promptly file 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. To the extent that 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 United States who shall
have the right to make additional recommendations consistent with the
purpose of the trust. The Court thereafter shall enter such orders as
it shall deem appropriate to carry out the purpose of the Final
Judgment, which may, if necessary, including extending the trust and
the term of the trustee's appointment by a period requested by the
United States.
VI. Notice of Proposed Divestiture
A. Within two (2) business days following execution of a definitive
divestiture agreement, the defendant or the trustee, whichever is then
responsible for effecting the divestiture required herein, shall notify
the United States of any proposed divestiture required by Section IV or
V of this Final Judgment. If the trustee is responsible, it shall
similarly notify the defendant. The notice shall set forth the details
of the proposed divestiture and list the name, address, and telephone
number of each person not previously identified who offered or
expressed an interest in or desire to acquire any ownership interest in
the Relevant Hauling Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United
States of such notice, the United States, in its sole discretion, may
request from the defendant, the proposed Acquirer, any other third
part, or the trustee, if applicable, additional information concerning
the proposed divestiture, the proposed Acquirer, and any other
potential Acquirer. The defendant and the trustee shall furnish any
additional information requested within fifteen (15) calendar days of
the receipt of the request, unless the parties shall otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice or
within twenty (20) calendar days after the Unites States has been
provided the additional information requested from the defendant, the
proposed Acquirer, any third party, or the trustee, whichever is later,
the United States, in its sole discretion, shall provide written notice
to the defendant and the trustee, if there is one, stating whether or
not it objects to the proposed divestiture. If the United States
provides written notice that it does not object, the divestiture may be
consummated, subject only to the defendant's limited right to object to
the sale under Section V.C of this Final Judgment. Absent written
notice that the United states does not object to the proposed Acquirer
or upon objection by the United States, a divestiture proposed under
Section IV or Section V shall not be consummated. Upon objection by the
defendant under Section V.C, a divestiture proposed under Section V
shall not be consummated unless approved by the Court.
VII. Financing
The defendant shall not finance all or any part of any purchase
made pursuant to Section IV or V of this Judgment.
VIII. Preservation of Relevant Hauling Assets
A. Until the divestiture required by this Final Judgment has been
accomplished, the defendant shall: (1) Preserve and maintain the value
and goodwill of the Relevant Hauling Assets; (2) operate the Relevant
Hauling Assets in the ordinary course of business, including reasonable
efforts to maintain and increase sales and revenues; and (3) take no
action that would jeopardize, delay, or impede the sale of the Relevant
Hauling Assets.
B. The divested customers on Routes 22 and 914 identified in
Exhibit A collectively generate approximately $65,000 in monthly small
container commercial waste collection revenue ($780,000 annual
revenue), as of May 2005. If, prior to divestiture, any customer
identified in Exhibit A let their contracts expire, terminate their
contracts, or reduce small container commercial waste collection
services such that small container commercial waste collection revenue
to be divested declines by five (5) percent or more, the defendant
shall divest additional small container commercial waste collection
customers to replace these revenues up to $780,000. The defendant shall
provide monthly customer reports that update Exhibit A and identify any
lost customers, customer price increases or service changes, and
overall revenue changes. Any change in the Relevant Hauling Assets must
be reviewed by and approved by the United States. All revenue
calculations under Section VIII.B of this Final Judgment shall be based
on monthly revenues for May 2005.
IX. 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 under Section IV or V, the defendant
shall deliver to the United States an affidavit as to the fact and
manner of its compliance with Section IV or V of this Final Judgment.
Each such affidavit shall include the name, address, and telephone
number of each person who, during the preceding thirty (30) days, 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 Relevant Hauling Assets, and shall
describe in detail each contact with any such person during that
period. Each such affidavit shall also include a description of the
efforts the defendant has taken to solicit buyers for the Relevant
Hauling
[[Page 48596]]
Assets, and to provide required information to each prospective
Acquirer, 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 provide by
the defendant, including limitations on information, shall be made
within fourteen (14) days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint
in this matter, the defendant shall deliver to the United States an
affidavit that describes in reasonable detail all actions the defendant
has taken and all steps the defendant has implemented on an ongoing
basis to comply with Section VIII of this Final Judgment. The defendant
shall deliver to the United States an affidavit describing any changes
to the efforts and actions outlined in the defendant's earlier
affidavits filed pursuant to this section within fifteen (15) calendar
days after the change is implemented.
C. The defendant shall keep all records of all efforts made to
preserve the Relevant Hauling Assets and to divest the Relevant Hauling
Assets until one year after such divestiture has been completed.
X. Compliance Inspection
A. 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 duly authorized representatives of the United States
Department of Justice, including consultants and other persons retained
by the United States, shall, upon written request of a duly authorized
representative of the Assistant Attorney General in charge of the
Antitrust Division, and on reasonable notice to the defendant and
counsel of record, be permitted:
1. access during the defendant's office hours to inspect and copy,
or at the United States' option, to require the defendant to provide
copies of all books, ledgers, accounts, records, and documents in the
possession or control of the defendant, relating to any matters
contained in this Final Judgment; and
2. to interview, either informally or on the record, the
defendant's officers, employees, or agents, who may have their
individual counsel present, regarding such matters. The interviews
shall be subject to the reasonable convenience of the interviewee and
without restraint or interference by the defendant.
B. Upon the written request of a duly authorized representative of
the Assistant Attorney General in charge of the Antitrust Division, the
defendant shall submit such written reports or responses to written
interrogatories, under oath if requested, relating to any of the
matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in
this section shall be divulged by the United States to any person other
than an 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 the
defendant to the United States, the defendant represents and identifies
in writing the material in any such information or documents to which a
claim of protection may be asserted under Rule 26(c)(7) of the Federal
Rules of Civil Procedure, and the defendant marks each pertinent page
of such material, ``Subject to claim of protection under Rule 26(c)(7)
of the Federal Rules of Civil Procedure,'' then the United States shall
give the defendant ten (10) calendar days notice prior to divulging
such material in any legal proceeding (other than a grand jury
proceeding).
XI. No Reacquisition
The defendant may not reacquire all or substantially all of the
Relevant Hauling Assets listed in Exhibit A during the term of this
Final Judgment. Nothing herein shall preclude the defendant from
competing for the hauling business of any individual customer listed in
Exhibit A, so long as the defendant's conduct is consistent with a
commercially reasonable sales agreement negotiated with the Acquirer of
the Relevant Hauling Assets.
XII. Southside Contract Relief
A. The defendant shall alter the standard contract form (``the
Standard Contract'') it uses with small container commercial waste
collection customers in the Southside and the Standard Contract shall
contain the following terms:
1. an initial term no longer than two (2) years;
2. a renewal term no longer than one (1) year;
3. a notice of termination no9 more than thirty (30) days prior to
the end of any initial term or renewal term;
4. liquidated damages of no more than three (3) times the
contract's average monthly charge during the first year the customer
has had service with the defendant; and
5. liquidated damages of no more than two (2) times the contract's
average monthly charge after the first year the customer has had
service with the defendant.
B. Within thirty (30) calendar days of the filing of the Complaint
in this matter, the defendant, by means of a letter approved by the
United States, shall inform its existing Southside small container
commercial waste collection customers about the terms, conditions and
rights set forth in Sections XII.A and XII.B of this Final Judgment and
shall offer in writing to the customers the option to enter into the
Standard Contract. Should an existing customer request the Standard
Contract, the defendant shall execute the Standard Contract with that
customer. The defendant shall not initiate negotiations with existing
customers to modify the Standard Contract; however, upon the request of
the customer, the defendant may modify the Standard Contract subject to
the procedures set forth in Section XII.C of this Final Judgment.
Should an existing customer continue with its current contract, the
defendant shall not enforce any term or condition that is inconsistent
with Section XII.A of this Final Judgment. For example, if an existing
customer contract has a five-year initial term, the defendant may only
enforce this provision for a two-year period from the date the contract
was executed.
C. From the date of filing the Compliant in this action, the
defendant shall use the Standard Contract with all new customers and
any existing customer that may request the Standard Contract. The
defendant may negotiate terms and conditions different from those set
forth in Section XII.A of this Final Judgment, provided that the
Standard Contract form is utilized, the customer is notified in writing
that it can accept the Standard Contract without modification, the
modification(s) are made in the physical presence of the customer, the
modification(s) are made in writing on the Standard Contract, and the
customer initials each modification. If the defendant complies with the
requirements set forth in this subsection C, this Final Judgment shall
not prevent the enforcement by either the defendant or customer of any
such negotiated modifications that are different from those set forth
in Section XII.A.
[[Page 48597]]
D. The provisions of Section XII of this Final Judgment will expire
on August 8, 2010.
XIII. Retention of Jurisdiction
This Court retains jurisdiction to enable any party to this Final
Judgment to apply to this Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XIV. Expiration of Final Judgment
Unless this Court grants an extension or as otherwise noted in
Section XII.D, this Final Judgment shall expire ten (10) years from the
date of its entry.
XV. Public Interest Determination
Entry of this Final Judgment is in the public interest.
-----------------------------------------------------------------------
Date:------------------------------------------------------------------
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. 16
-----------------------------------------------------------------------
United States District Judge
Exhibit A
----------------------------------------------------------------------------------------------------------------
Customer Customer
Route Code No. Route Code No.
----------------------------------------------------------------------------------------------------------------
0022........................................... 136 914................................... 237
0022........................................... 367 914................................... 244
0022........................................... 604 914................................... 375
0022........................................... 763 914................................... 572
0022........................................... 781 914................................... 979
0022........................................... 921 914................................... 1176
0022........................................... 3143 914................................... 1560
0022........................................... 1154 914................................... 1791
0022........................................... 5014 914................................... 2770
0022........................................... 5456 914................................... 5041
0022........................................... 28287 914................................... 6167
0022........................................... 100079 914................................... 6692
0022........................................... 100097 914................................... 9679
0022........................................... 100541 914................................... 100034
0022........................................... 100684 914................................... 100172
0022........................................... 100699 914................................... 100178
0022........................................... 103169 914................................... 100497
0022........................................... 103228 914................................... 101187
0022........................................... 103940 914................................... 101375
0022........................................... 103941 914................................... 101531
0022........................................... 104024 914................................... 102162
0022........................................... 104089 914................................... 102374
0022........................................... 608 914................................... 102458
0022........................................... 545 914................................... 103088
0022........................................... 546 914................................... 103939
0022........................................... 547 914................................... 104579
0022........................................... 550 914................................... 104834
0022........................................... 626 914................................... 100017
0022........................................... 3486 914................................... 104455
0022........................................... 101015 914................................... 104601
0022........................................... 1334 914................................... 104649
0022........................................... 3513 914................................... 4564
0022........................................... 100957 914................................... 5020
0022........................................... 103536 914................................... 199
0022........................................... 104867 914................................... 261
0022........................................... 100045 914................................... 285
0022........................................... 101295 914................................... 316
0022........................................... 101486 914................................... 422
0022........................................... 103102 914................................... 476
0022........................................... 103978 914................................... 693
0022........................................... 103040 914................................... 710
0022........................................... 3102 914................................... 725
0022........................................... 100681 914................................... 774
0022........................................... 102270 914................................... 775
0022........................................... 104583 914................................... 788
0022........................................... 104868 914................................... 811
0022........................................... 246 914................................... 856
0022........................................... 257 914................................... 924
0022........................................... 305 914................................... 1065
0022........................................... 354 914................................... 1070
0022........................................... 368 914................................... 1122
0022........................................... 495 914................................... 1835
0022........................................... 500 914................................... 2995
0022........................................... 515 914................................... 3880
0022........................................... 625 914................................... 3902
0022........................................... 630 914................................... 3952
0022........................................... 638 914................................... 4518
0022........................................... 639 914................................... 4836
[[Page 48598]]
0022........................................... 653 914................................... 5236
0022........................................... 654 914................................... 6010
0022........................................... 667 914................................... 6486
0022........................................... 668 914................................... 6605
0022........................................... 687 914................................... 6956
0022........................................... 691 914................................... 6969
0022........................................... 728 914................................... 7110
0022........................................... 852 914................................... 7924
0022........................................... 863 914................................... 8374
0022........................................... 897 914................................... 9515
0022........................................... 922 914................................... 9551
0022........................................... 966 914................................... 9578
0022........................................... 991 914................................... 9638
0022........................................... 1022 914................................... 9778
0022........................................... 1146 914................................... 9802
0022........................................... 1151 914................................... 9831
0022........................................... 1165 914................................... 14897
0022........................................... 1167 914................................... 26813
0022........................................... 1169 914................................... 27632
0022........................................... 1876 914................................... 27794
0022........................................... 2311 914................................... 28203
0022........................................... 2371 914................................... 28206
0022........................................... 2404 914................................... 28285
0022........................................... 2570 914................................... 28296
0022........................................... 2845 914................................... 28556
0022........................................... 3371 914................................... 28670
0022........................................... 3439 914................................... 28909
0022........................................... 4022 914................................... 28970
0022........................................... 4086 914................................... 100003
0022........................................... 4096 914................................... 100016
0022........................................... 4220 914................................... 100028
0022........................................... 4638 914................................... 100029
0022........................................... 4952 914................................... 100032
0022........................................... 4987 914................................... 100039
0022........................................... 5030 914................................... 100041
0022........................................... 5197 914................................... 100059
0022........................................... 5725 914................................... 100065
0022........................................... 6908 914................................... 100066
0022........................................... 7103 914................................... 100080
0022........................................... 7437 914................................... 100091
0022........................................... 7438 914................................... 100095
0022........................................... 7971 914................................... 100107
0022........................................... 8171 914................................... 100111
0022........................................... 28239 914................................... 100119
0022........................................... 28250 914................................... 100147
0022........................................... 28288 914................................... 100170
0022........................................... 28694 914................................... 100272
0022........................................... 100013 914................................... 100322
0022........................................... 100098 914................................... 100358
0022........................................... 100133 914................................... 100373
0022........................................... 100169 914................................... 100417
0022........................................... 100276 914................................... 100421
0022........................................... 100295 914................................... 100476
0022........................................... 100300 914................................... 100485
0022........................................... 100310 914................................... 100508
0022........................................... 100315 914................................... 100544
0022........................................... 100316 914................................... 100575
0022........................................... 100337 914................................... 100582
0022........................................... 100478 914................................... 100593
0022........................................... 100521 914................................... 100634
0022........................................... 100620 914................................... 100647
0022........................................... 100663 914................................... 100702
0022........................................... 100676 914................................... 100713
0022........................................... 100709 914................................... 100722
0022........................................... 100764 914................................... 100742
0022........................................... 100816 914................................... 100782
0022........................................... 100893 914................................... 100796
0022........................................... 100995 914................................... 100930
0022........................................... 101030 914................................... 100931
0022........................................... 101044 914................................... 100953
0022........................................... 101112 914................................... 100967
[[Page 48599]]
0022........................................... 101148 914................................... 100990
0022........................................... 101247 914................................... 100991
0022........................................... 101335 914................................... 101011
0022........................................... 101541 914................................... 101097
0022........................................... 101657 914................................... 101166
0022........................................... 101788 914................................... 101283
0022........................................... 101812 914................................... 101293
0022........................................... 102431 914................................... 101323
0022........................................... 102643 914................................... 101341
0022........................................... 102645 914................................... 101359
0022........................................... 102814 914................................... 101421
0022........................................... 102823 914................................... 101433
0022........................................... 102931 914................................... 101451
0022........................................... 102943 914................................... 101453
0022........................................... 103070 914................................... 101464
0022........................................... 103157 914................................... 101474
0022........................................... 103250 914................................... 101524
0022........................................... 103278 914................................... 101568
0022........................................... 103279 914................................... 101603
0022........................................... 103485 914................................... 101604
0022........................................... 103627 914................................... 101610
0022........................................... 103640 914................................... 101612
0022........................................... 103777 914................................... 102140
0022........................................... 103834 914................................... 102338
0022........................................... 103835 914................................... 102355
0022........................................... 103879 914................................... 102366
0022........................................... 103949 914................................... 102604
0022........................................... 103979 914................................... 102698
0022........................................... 104005 914................................... 102707
0022........................................... 104038 914................................... 102708
0022........................................... 104062 914................................... 102926
0022........................................... 104334 914................................... 102959
0022........................................... 104460 914................................... 102965
0022........................................... 104475 914................................... 102981
0022........................................... 104491 914................................... 103014
0022........................................... 104518 914................................... 103015
0022........................................... 104536 914................................... 103087
0022........................................... 104542 914................................... 103099
0022........................................... 104560 914................................... 103119
0022........................................... 104600 914................................... 103120
0022........................................... 104700 914................................... 103161
0022........................................... 104704 914................................... 103170
0022........................................... 104707 914................................... 103180
0022........................................... 104732 914................................... 103231
0022........................................... 104819 914................................... 103249
0022........................................... 104870 914................................... 103519
0022........................................... 104905 914................................... 103577
0022........................................... 104942 914................................... 103772
Total Customers................................ 177 914................................... 103780
........... 914................................... 103814
........... 914................................... 103822
........... 914................................... 103889
........... 914................................... 103930
........... 914................................... 103965
........... 914................................... 103990
........... 914................................... 104036
........... 914................................... 104067
........... 914................................... 104077
........... 914................................... 104162
........... 914................................... 104231
........... 914................................... 104449
........... 914................................... 104470
........... 914................................... 104511
........... 914................................... 104521
........... 914................................... 104525
........... 914................................... 104526
........... 914................................... 104578
........... 914................................... 104590
........... 914................................... 104606
........... 914................................... 104619
........... 914................................... 104635
[[Page 48600]]
........... 914................................... 104651
........... 914................................... 104656
........... 914................................... 104659
........... 914................................... 104831
........... 914................................... 104850
........... 914................................... 104887
........... 914................................... 104916
........... 914................................... 105001
........... Total Customers....................... 208
----------------------------------------------------------------------------------------------------------------
United States District Court for the Eastern District of Virginia--
Norfolk Division
United States of America, Plaintiff, v. Waste Industries USA, Inc.,
Defendant
Civil No.
Filed:
Competitive Impact Statement
Plaintiff United States of America (``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
Defendant Waste Industries USA, Inc. (``Waste Industries'')
purchased from Allied Waste Industries, Inc. (``Allied''), effective
August 1, 2003, certain waste-hauling assets located in the independent
cities of Norfolk, Chesapeake, Virginia Beach, Portsmouth, Suffolk, and
Franklin, Virginia and the county of Southampton, Virginia (hereinafter
the ``Southside''). The United States filed a civil antitrust Complaint
on August 8, 2005, seeking a declaration that Waste Industries'
purchase from Allied violated Section 7 of the Clayton Act and
requesting equitable relief. The Complaint alleges that the transaction
substantially lessened competition for small container commercial waste
collection services in the Southside. This loss of competition has
denied Southside customers the benefits of competition--lower prices
and better service.
At the same time the Complaint was filed, the United States also
filed a proposed Final Judgment, which is designed to eliminate the
anticompetitive effects of the acquisition. Under the proposed Final
Judgment, which is explained more fully below, Waste Industries is
required within ninety (90) days after the filing of the Complaint, or
five (5) days after notice of the entry of the Final Judgment by the
Court, whichever is later, to divest, as a viable business operation,
specified waste-hauling assets. In addition to the divestiture, the
proposed Final Judgment also requires Waste Industries to comply with
certain conditions regarding its customer contracts in the Southside.
The United States and Waste Industries 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. Description of the Events Giving Rise to the Alleged Violation
A. The Acquisition
On August 1, 2003, Waste Industries acquired Allied's hauling
assets in the Southside. The transaction has lessened competition in
the Southside small container commercial waste collection services
market. Waste Industries, with revenues in 2004 of approximately $291
million, is engaged in providing waste collection and disposal services
throughout the southeastern United States. Allied, with revenues in
2004 of approximately $5.4 billion, is the nation's second-largest
waste collection and disposal company.
B. Southside Small Container Commercial Waste Collection Services
Market
Municipal solid waste (``MSW'') is solid, putrescible waste
generated by households and commercial establishments. Waste collection
firms, or haulers, contract to collect MSW from residential and
commercial customers and transport the waste to private and public
disposal facilities (e.g., transfer stations, incinerators and
landfills), which, for a fee, process and legally dispose of the waste.
Small container commercial waste collection is one component of MSW
collection, which also includes residential and other waste collection.
Small container commercial waste collection service is the
collection of MSW from commercial businesses such as office and
apartment buildings and retail establishments (e.g., stores and
restaurants) for shipment to, and disposal at, an approved disposal
facility. Because of the type and volume of waste generated by
commercial accounts and the frequency of service required, haulers
organize commercial accounts into special routes, and generally use
specialized equipment to store, collect, and transport waste from these
accounts to approved disposal sites. This equipment (i.e., one- to ten-
cubic-yard containers for waste storage, and front-end load vehicles
commonly used for collection and transportation) is uniquely well
suited for providing small container commercial waste collection
service.
Providers of other types of waste collection services (e.g.,
residential and roll-off services) are not good substitutes for small
container commercial waste collection firms. In their waste collection
efforts, these firms use different waste storage equipment (e.g.,
garbage cans or semi-stationary roll-off containers) and different
vehicles (e.g., rear-load, side-load, or roll-off trucks), which, for a
variety of reasons, cannot be conveniently or efficiently used to
store, collect, or transport waste generated by commercial accounts,
and hence, are generally not used on small container commercial waste
collection routes. The Complaint alleges that, in the event of a small
but significant increase in price for small container commercial waste
collection services, customers would not switch to any other
alternative and that, therefore, the provision of small container
commercial waste collection services constitutes a line of commerce, or
relevant service, for purposes of analyzing the effects of the
transaction.
[[Page 48601]]
The Complaint alleges that the provision of small container
commercial waste collection service takes place in compact, highly
localized geographic markets. It is expensive to ship waste long
distances in waste collection operations. To minimize transportation
costs and maximize the scale, density, and efficiently of their waste
collection operations, small container commercial waste collection
firms concentrate their customers and collection routes in small areas.
Firms with operations concentrated in a distant area cannot easily
compete against firms whose routes and customers are locally based.
Distance may significantly limit a remote firm's ability to provide
commercial waste collection service as frequently or conveniently as
that offered by local firms with nearby routes. Also, local commercial
waste collection firms have significant cost advantages over other
firms and can profitably increase their charges to local commercial
customers without losing significant sales to firms outside the area.
Based on these circumstances, the Complaint alleges that the Southside
constitutes a section of the country, or relevant geographic market,
for the purpose of assessing the competitive effects of Waste
Industries' purchase of Allied's Southside hauling assets in the
provision of small container commercial waste collection services.
There are significant entry barriers in small container commercial
waste collection services. A new entrant in small container commercial
waste collection services must achieve a minimum efficient scale and
operating efficiencies comparable to those of existing firms to provide
a significant competitive constraint on the prices charged by market
incumbents. In order to obtain comparable operating efficiencies, a new
firm must achieve route density similar to existing firms. Because most
customers have their waste collected once or twice a week, a new
entrant generally requires several hundred customers in close proximity
to construct an efficient route. However, the common use of price
discrimination and long-term contracts by existing commercial waste
collection firms can leave too few customers available to the entrant
in a sufficiently confined geographic area to create an efficient
route. The incumbent firm can selectively and temporarily charge an
extraordinarily low price to specified customers targeted by new
entrants. Long-term contracts often run for three to five years and may
automatically renew or contain large liquidated damage provisions for
contract termination. Such terms make it more costly or difficult for a
customer to switch to a new hauler and obtain lower prices for its
collection service. Because of these factors, a new entrant may find it
difficult to compete by offering its services at price levels
comparable to the incumbents' pre-entry prices. Such difficulties may
cause an increase in the cost and time required to form an efficient
route, thereby limiting a new entrant's ability to build an efficient
route and reducing the likelihood that the entrant will ultimately be
successful.
The need for route density, the use of long-term contracts with
restrictive terms, and the ability of existing firms to price
discriminate raise significant barriers to entry by new firms, which
will likely be forced to complete at lower than pre-entry price levels.
C. Anticompetitive Effects of the Transaction
Waste Industries' acquisition of Allied's hauling assets reduced
from four to three the number of significant firms that compete in the
collection of small container commercial waste in the Southside. Waste
Industries now controls about 43% of the Southside small container
commercial waste hauling market. The total Southside market generates
annual revenues of approximately $25 million. Two firms, Waste
Industries and Waste Management, Inc., control about 82% of the market.
The Complaint alleges that Waste Industries' acquisition of
Allied's hauling assets in the Southside has removed a significant
competitor in small container commercial waste collection services. The
resulting increase in concentration, loss of competition, and absence
of any reasonable prospect of significant new entry or expansion by
market incumbents has denied Southside customers the benefits of
competition--lower prices and better service.
III. Explanation of the Proposed Final Judgment
The proposed Final Judgment is designed to return the Southside
small container commercial waste collection services market to its pre-
acquisition competitive state while recognizing changes to other
haulers since the acquisition. At the time of the acquisition, there
were four significant competitors in the Southside market. Allied and
Waste Management, Inc. dominated the market with substantial market
shares. Waste Industries and another local hauler were small but
significant players. Thus, post-acquisition, there is one less
competitor in a market with two dominant participants and one small
participant whose operations have expanded slightly since the
acquisition.
The divestiture and contract relief provisions of the proposed
Final Judgment will eliminate the anticompetitive effects of the
acquisition by establishing a new, independent, and economically viable
competitor or by strengthening an existing, in-market hauler, and by
also reducing the barriers to entry created by the contracts currently
used by Waste Industries.
A. Divestiture
The proposed Final Judgment requires Waste Industries, within
ninety (90) days after the filing of the Complaint, or five (5) days
after notice of the entry of the Final Judgment by the Court, whichever
is later, to divest as a viable ongoing business specified small
container commercial waste collection assets in the Southside. Under
the proposed Final Judgment, Waste Industries is required to divest the
specified assets to a new, independent, and economically viable
competitor or to an existing, independent, and economically viable
small hauler. The proposed Final Judgment requires divestiture of
certain small container commercial waste collection customers that
produce annual revenues of $780,000. A divestiture of this size will
reduce Waste Industries' market share to approximately Allied' July
2003 premerger market share. The divested customers come from two
existing Waste Industries routes, one in Virginia Beach and the other
in Norfolk. These two areas account for the majority of Waste
Industries' Southside small container commercial waste revenues. Waste
Industries will retain certain customers on the designated routes,
including customers that would be difficult to divest because, for
example, the customer is serviced as part of a national account or the
customer has multiple locations that are serviced on Waste Industries
routes not subject to divestiture.
The assets must be divested in such a way as to satisfy the United
States that the operations can and will be operated by the purchaser as
a viable, ongoing business that can compete effectively in the
Southside. Waste Industries must take all reasonable steps necessary to
accomplish the divestiture quickly and shall cooperate with prospective
purchasers.
Under the proposed Final Judgment, Waste Industries will be
required to preserve and maintain the divested
[[Page 48602]]
assets and to operate the assets in the ordinary course of business,
including reasonable efforts to maintain and increase sales and
revenues. To ensure that Waste Industries takes no action to jeopardize
the divested assets, in the event revenues generated by the divested
customers decline by 5% or more, the proposed Final Judgment will
require that Waste Industries divest additional customers to replace
the lost revenues.
In the event that Waste Industries does not accomplish the
divestiture within the period prescribed by the proposed Final
Judgment, the Final Judgment provides that the Court will appoint a
trustee selected by the United States to effect the divestiture. If a
trustee is appointed, the proposed Final Judgment provides that Waste
Industries will pay all costs and expenses of the trustee. The
trustee's compensation will be structured so as to provide an incentive
for the trustee based on the price obtained and the speed with which
the divestiture is accomplished. After his or her appointment becomes
effective, the trustee will file monthly reports with the Court and the
United States as appropriate, setting forth his or her efforts to
accomplish the divestiture. At the end of six months, if the
divestiture has not been accomplished, the trustee and the United
States as appropriate, will make recommendations to the Court, which
shall enter such orders as appropriate to carry out the purpose of the
trust, including extending the trust or the term of the trustee's
appointment.
While the proposed Final Judgment prohibits Waste Industries from
reacquiring all or substantially all of the small container commercial
waste customers to be divested, it encourages ongoing Southside
competition by permitting Waste Industries to continue to compete for
the hauling business of any individual customer to be divested. Waste
Industries' conduct in this regard must be consistent with a
commercially reasonable sales agreement negotiated with the acquirer of
the divested assets.
B. Contract Relief
Because the divestiture alone will not fully eliminate the
anticompetitive effects of the acquisition, the proposed Final Judgment
also requires contract relief. The Final Judgment obligates Waste
Industries, for a period of five (5) years from August 8, 2005, to
offer all new customers and all existing customers who initiate
negotiations, a contract with at least the following conditions (``the
Standard Contract''): (1) No initial term longer than two years; (2) no
renewal term longer than one year; (3) no requirement that the customer
give Waste Industries notice of termination more than thirty days prior
to the end of any initial term or renewal term; (4) no requirement that
the customer pay liquidated damages more than three times its average
monthly charge during the first year the customer has had service with
Waste Industries; and (5) no requirement that the customer pay
liquidated damages more than two times it average monthly charge after
the first year the customer has had service with Waste Industries.
Waste Industries will be required to send a letter to its current
customers advising them of the new contract terms and that Waste
Industries may not enforce more restrictive terms even if the customer
does not enter into a new contract. The proposed Final Judgment
provides that as to Waste Industries' current customers, only the
customer can initiate negotiations to replace its existing contract.
Waste Industries shall offer in writing the Standard Contract to all
new customers and any existing customers who choose to initiate
contract negotiations. Waste Industries and these customers are then
free to negotiate modifications to the Standard Contract terms,
provided that the modifications are made in the presence of the
customer, in writing, and initiated by the customer. The proposed Final
Judgment shall not prevent the enforcement by either the defendant or
customer of any such negotiated modification.
This contract relief is significant because it lowers barriers to
entry by giving new and existing customers greater leverage in contract
negotiations with Waste Industries and allowing existing customers to
consider competitive alternatives by providing for the termination of
existing contracts through the payment of reasonable liquidated
damages. Implementation of the proposed contract relief will make it
easier for customers to switch haulers and should enable the purchaser
of the divested assets and other competitors to gain customers if Waste
Industries raises prices. The combined divestiture and contract relief
sought in the Southside will ensure that consumers of small container
commercial waste collection services will continue to receive the
benefits of competition.
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 Judgement will neither
impair nor assist the bring 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 Waste
Industries.
V. Procedures Available for Modification of the Proposed Final Judgment
The United States and Waste Industries 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 United States, which remains free to withdraw its
consent to the proposed Final 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: Maribeth Petrizzi, Chief,
Litigation II Section, Antitrust Divsion, U.S. Department of Justice,
1401 H Street, NW., Suite 3000, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits against Waste Industries.
The United States could have continued the litigation and requested
that the Southside transaction be adjudged and decreed to be unlawful
and in violation
[[Page 48603]]
of Section 7 of the Clayton Act. The United States is satisfied,
however, that the divestiture of assets and the contract relief
described in the proposed Final Judgment will preserve competition for
small container commercial waste collection services in the Southside.
VII. Standard of Review Under the APPA for the Proposed Final Judgment
The APPA requires that proposed consent judgments in antitrust
cases brought by the United States be subject ot a sixty-day comment
period, after which the Court shall determine whether entry of the
proposed Final Judgment ``is in the public interest.'' 15 U.S.C.
16(e)(1). In making that determination, the Court shall 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, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(2) The impact of entry of such judgment upon competition in the
relevant market or markets, 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)(1). As the United States Court of Appeals for the
District of Columbia Circuit has held, the APPA permits a court to
consider, among other things, the relationship between the remedy
secured and the specific allegations set forth in the government's
complaint, whether the decree is sufficiently clear, whether
enforcement mechanisms are sufficient, and whether the decree may
positively harm third parties. See United States v. Microsoft Corp., 56
F.3d 1448, 1458-62 (D.C. Cir. 1995).
``Nothing in this section shall be construed to require the court
to conduct an evidentiary hearing or to require the court to permit
anyone to intervene.'' 15 U.S.C. 16(e)(2). Thus, 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.'' 119 Cong. Rec. 24,598 (1973) (statement of Senator
Tunney).\1\ Rather:
\1\ See United States v. Gillette Co., 406 F. Supp. 713, 716 (D.
Mass. 1975) (recognizing it was not the court's duty to settle;
rather, the court must only answer ``whether the settlement achieved
[was] within the reaches of the public interest''). A ``public
interest'' determination can be made properly on the basis of the
Competitive Impact Statement and Response to Comments filed by the
Department of Justice 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. No. 93-1463, 93rd Cong., 2d Sess. 8-9 (1974),
reprinted in 1974 U.S.C.C.A.N. 6535, 6538.
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[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-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ]
61,508, at 71,980 (W.D. Mo. 1977).
Accordingly, with respect to the adequacy of the relief secured by
the decree, a court may not ``engage in 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 R.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at
1460-62. Courts have held that
[t]he 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.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\2\
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\2\ Cf. BNS, 858 F.2d at 463 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); Gillette, 406 F. Supp. at 716
(noting that, in this way, the court is constrained to ``look at the
overall picture not hypercritically, nor with a microscope, but with
an artist's reducing glass''). See generally Microsoft, 56 F.3d at
1461 (discussing 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' ''.
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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.' '' United
States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982)
(citations omitted) (quoting Gillette, 406 F. Supp. at 716), aff'd sub
nom. Maryland v. United States, 460 U.S. 1001 (1983); see also United
States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985)
(approving the consent decree even though the court would have imposed
a greater remedy).
Moreover, the Court's role under the APPA is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its Complaint, and does not authorize the Court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459. Because the ``court's
authority to review the decree depends entirely on the government's
exercising its prosecutorial discretion by bringing a case in the first
place,'' it follows that ``the court is only authorized to review the
decree itself,'' and not to ``effectively redraft the complaint'' to
inquire into other matters that the United States might have but did
not pursue. Id. at 1459-60.
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: August 8, 2005.
Respectfully submitted,
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Leslie Peritz,
PA Bar No. 87539.
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Lowell Stern,
VA Bar No. 33460,
U.S. Department of Justice, Antitrust Division, Litigation II
Section, 1401 H Street, NW., Suite 3000, Washington, DC 20530.
leslie.peritz@usdoj.gov. (202) 307-0925.
[FR Doc. 05-16232 Filed 8-17-05; 8:45 am]
BILLING CODE 4410-11-M