United States v. Nagel Motors, Inc., et al.; Proposed Final Judgment and Competitive Impact Statement |
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Topics: Nagel Motors
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Gary R. Spratling
Richard B. Cohen
Carla G. Addicks
Department of Justice
5 July 1994
[Federal Register Volume 59, Number 127 (Tuesday, July 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15911]
[[Page Unknown]]
[Federal Register: July 5, 1994]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Nagel Motors, Inc., et al.; Proposed Final
Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Stipulation, and Competitive Impact Statement have been lodged with the
United States District Court for the District of Wyoming in United
States of America v. Nagel Motors, Inc., et al., Civil Action No.
94CV146-J. The Complaint in this case alleges that the three defendant
corporations and co-conspirators agreed to participate in discussions
and information exchanges to facilitate an increase in the rates
charged for automobile body repair services in the Casper, Wyoming area
in violation of Section 1 of the Sherman Act, 15 U.S.C. 1. The proposed
Final Judgment enjoins the defendants from agreeing with any other
automobile body repair shop to fix an hourly rate or part price or
discount. It also enjoins the defendants from participating in any
discussion with or communicating with any other automobile repair shop
concerning adherence to or changes to, or the need or desirability of
adhering to or changing, any hourly rate or part price or discount. The
proposed Final Judgment further enjoins the defendants from
disseminating any information to any automobile body repair shop
concerning any planned or contemplated change in an hourly rate or part
price or discount. Each defendant is required to establish an antitrust
compliance program.
Public comment on the proposed Final Judgment is invited within the
statutory 60-day comment period. Such comments, and responses thereto,
will be published in the Federal Register and filed with the Court.
Comments should be directed to Gary R. Spratling, Chief, San Francisco
Office, Box 36046, Antitrust Division, U.S. Department of Justice, San
Francisco, California 94102 (telephone: (415) 556-6300).
Constance K. Robinson,
Director of Operations, Antitrust Division.
In the United States District Court, District of Wyoming
United States of America, Plaintiff, vs. Nagel Motors, Inc.,
Greiner Motor Company, Inc., and Benson Chevrolet, Inc., Defendants.
Civil No. 94-CV-146-J.
Complaint
The United States of America, plaintiff, by its attorneys, acting
under the direction of the Attorney General of the United States,
brings this civil action to obtain equitable relief against the
defendants named herein, and complains and alleges as follows:
I. Jurisdiction and Venue
1. This Complaint is filed under Section 4 of the Sherman Act, 15
U.S.C. 4, as amended, in order to prevent and restrain the continuing
violations by the defendants of Section 1 of the Sherman Act, 15 U.S.C.
1.
2. Each of the defendants maintains an office, transacts business,
and is found within the District of Wyoming, within the meaning of 15
U.S.C. 22 and 28 U.S.C. 1391(c).
II. Defendants
3. Nagel Motors, Inc. (``Nagel'') is made a defendant herein. Nagel
operates a General Motors Corporation dealership with its principal
place of business in Casper, Wyoming. Nagel sells both new and used
automobiles and offers a full range of automobile repair services,
including automobile body repair services. Nagel is engaged in
interstate commerce and in activities substantially affecting
interstate commerce.
4. Greiner Motor Company, Inc., d/b/a Greiner Motor & Marine
(``Greiner''), is made a defendant herein. Greiner operates a Ford
Motor Company dealership with its principal place of business in
Casper, Wyoming. Greiner sells both new and used automobiles and offers
a full range of automobile repair services, including automobile body
repair services. Greiner is engaged in interstate commerce and in
activities substantially affecting interstate commerce.
5. Benson Chevrolet, Inc. (``Benson'') is made a defendant herein.
Benson operates a General Motors Corporation dealership with its
principal place of business in Casper, Wyoming. Benson sells both new
and used automobiles and offers a full range of automobile repair
services, including automobile body repair services. Benson is engaged
in interstate commerce and in activities substantially affecting
interstate commerce.
6. Whenever this Complaint refers to any corporation's act, deed,
or transaction, it means that such corporation engaged in the act,
deed, or transaction by or through its officers, directors, agents,
employees, or other representatives while they actively were engaged in
the management, direction, control, or transaction of its business or
affairs.
III. Co-Conspirators
7. Various firms and individuals, not named as defendants in this
Complaint, have participated as co-conspirators with defendants in the
violations alleged in this Complaint, and have performed acts and made
statements in furtherance thereof.
IV. Trade and Commerce
8. During the period covered by this Complaint, each of the
defendants has engaged in the business of providing automobile repair
services, including automobile body repair services, in Casper,
Wyoming.
9. Between January 1, 1991 and June 30, 1993 the defendants' total
revenue from automobile body repair services was approximately
$3,250,000.
10. During the period covered by this Complaint, the activities of
each of the defendants that are the subject of this Complaint, and the
activities of their co-conspirators, have been within the flow of, and
have substantially affected, interstate trade and commerce.
11. Each of the defendants and their co-conspirators perform
automobile body repair services for out-of-state customers as well as
Wyoming customers.
12. Each of the defendants and their co-conspirators purchase
substantial quantities of parts, paints and materials for use in
automobile body repair from various sources located outside the State
of Wyoming.
13. Each of the defendants and their co-conspirators do business
with insurance carriers with headquarters located outside the State of
Wyoming and receive payments from such insurance carriers which are
issued from offices located outside the State of Wyoming.
V. Violation Alleged
14. During the period beginning at least as early as December 1990
and continuing through at least July 1993, the defendants and their co-
conspirators engaged in a combination and conspiracy in unreasonable
restraint of interstate trade and commerce in violation of Section 1 of
the Sherman Act, 15 U.S.C. 1. This offense is likely to recur unless
the relief hereinafter sought is granted.
15. This combination and conspiracy consisted of a continuing
agreement, understanding, and concert of action among the defendants
and co-conspirators to participate in discussions and information
exchanges to facilitate an increase in the rates charged for automobile
body repair services in the Casper, Wyoming area.
16. For the purpose of forming and effectuating this combination
and conspiracy, the defendants and their co-conspirators did the
following things, among others:
(a) discussed insurance company requirements that an automobile
body repair rate increase would not be accepted unless a requisite
number of area automobile body repair shops had adopted such a rate
increase;
(b) disseminated information relating to possible changes in
automobile body repair rates; and
(c) discussed plans of various area automobile body repair shops
concerning possible rate increases.
17. This combination and conspiracy had the following effects,
among others:
(a) coordinated interaction among the defendants and co-
conspirators was made more successful and more complete;
(b) price competition among the defendants and their co-
conspirators for providing automobile body repair services in the
Casper, Wyoming area has been unreasonably restrained and eliminated;
and
(c) consumers have been deprived of the benefits of free and open
competition in the purchase of automobile body repair services.
VI. Prayer
WHEREFORE, the plaintiff prays:
1. That the Court adjudge and decree that the defendants and their
co-conspirators engaged in unlawful agreements, combinations and
conspiracies in unreasonable restraint of interstate trade and commerce
in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
2. That each defendant, its officers, directors, agents, employees,
and successors and all other persons acting or claiming to act on its
behalf be enjoined, restrained ad prohibited for a period of ten years
from:
(a) agreeing with any other automobile body repair shop to fix,
establish, raise, stabilize or maintain any hourly rate or part price
of discount;
(b) participating in any discussion with or communicating with any
other automobile body repair shop concerning adherence to or changes
to, or the need or desirability of adhering to or changing, any hourly
rate or part price or discount; and
(c) disseminating any information to any automobile body repair
shop concerning any planned or contemplated change in an hourly rate or
part price or discount.
3. That each defendant shall establish and maintain an antitrust
compliance program.
4. That for ten years after the entry of the Final Judgment, on or
before its anniversary date, each defendant shall file with plaintiff
an annual Declaration reporting that such defendant has complied with
the terms of the Final Judgment and has engaged in no activities of the
type prohibited by the Final Judgment.
5. That plaintiff have such other relief as the nature of the case
may require and the Court may deem just and proper.
6. That plaintiff recover the costs of this suit.
Dated: June 2, 1994.
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Deputy Assistant Attorney General.
March C. Schechter,
Gary R. Spratling,
Attorneys, U.S. Department of Justice.
David D. Freudenthal,
United States Attorney, District of Wyoming.
Richard B. Cohen,
Carla G. Addicks,
Attorneys, U.S. Department of Justice, Antitrust Division, Box 36046,
450 Golden Gate Avenue, San Francisco, CA 94102, (415) 556-6300.
In The United States District Court, District of Wyoming
United States of America, Plaintiff, vs. Nigel Motors, Inc.,
Greiner Motor Company, Inc. and Benson Chevrolet, Inc., Defendants.
Civil No. 94-CV-146.
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The Court has jurisdiction over the subject matter of this
action and over each of the parties thereto, and venue of this action
is proper in the District of Wyoming;
2. The parties consent that a Final Judgment in the form hereto
attached may be filed and entered by the Court, upon the motion of any
party or upon the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. 16), and without further notice to any party or other
proceedings, provided that Plaintiff has not withdrawn its consent,
which it may do at any time before the entry of the proposed Final
Judgment by serving notice thereof on Defendants and by filing that
notice with the Court;
3. In the event Plaintiff withdraws its consent or if the proposed
Final Judgment is not entered pursuant to this Stipulation, this
Stipulation shall be of no effect whatever and the making of this
Stipulation shall be without prejudice to any party in this or any
other proceeding.
Dated: June 2, 1994.
For Plaintiff United States of America.
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Deputy Assistant Attorney General.
Mark C. Schechter,
Gary R. Spratling,
Attorneys, U.S. Department of Justice.
David D. Freudenthal,
United States Attorney, District of Wyoming.
Richard B. Cohen,
Carla G. Addicks,
Attorneys, U.S. Department of Justice, Antitrust Division, Box 36046,
450 Golden Gate Avenue, San Francisco, California 94102, (415) 556-
6300.
For Defendant Nagel Motors, Inc.: Stoel, Rives, Boley, Jones &
Grey.
By:
J. Ronald Sim,
One Union Square, 36th Floor, 600 University Street, Seattle,
Washington 98101, (206) 386-7592.
For Defendant Greiner Motor Company, Inc.: Brown and Drew.
By:
W. Thomas Sullins II,
123 West 1st Street, Suite 800, Casper, Wyoming 82601, (307) 234-1000.
For Defendant Benson Chevrolet, Inc: By: Keith P. Tyler, Esq.,
P.O. Box 2671, Casper, Wyoming 82602, (307) 266-0129.
In The United States District Court, District of Wyoming
United States of America, Plaintiff, vs. Nagel Motors, Inc.,
Greiner Motor Company, Inc. and Benson Chevrolet, Inc., Defendants.
Civil No. 94-CV-146.
Final Judgment
Plaintiff, United States of America, filed its Complaint on June 2,
1994. Plaintiff and defendants, by their respective attorneys, have
consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law. This Final Judgment shall not
be evidence against or an admission by any party with respect to any
issue of fact or law. Therefore, before the taking of any testimony and
without trial or adjudication of any issue of fact or law herein, and
upon consent of the parties, it is hereby
Ordered, Adjudged, and Decreed, as follows:
I. Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting hereto. The Complaint states a
claim upon which relief may be granted against the defendants under
Section 1 of the Sherman Act, 15 U.S.C. 1.
II. Definitions
As used herein, the term:
(A) ``Automobile body repair services'' means work performed by
automobile body repair shops applying new or used parts and labor to
the damaged bodies and frames of automobiles and trucks for the purpose
of repairing them;
(B) `'Automobile body repair shop'' means any person engaged in the
performance and sale of automobile body repair services;
(C) ``Hourly rate'' means the dollar charge per hour in connection
with time spent on automobile body repair services; and
(D) ``Person'' means any individual, partnership, corporation,
association, firm, or any other business or legal entity.
III. Applicability
(A) This Final Judgment applies to the defendants and to each of
their successors, assigns, and to all other persons in active concert
or participation with any of them who shall have received actual notice
of the Final Judgment by personal service or otherwise.
(B) Nothing herein contained shall suggest that any portion of this
Final Judgment is or has been created for the benefit of any third
party and nothing herein shall be construed to provide any rights to
any third party.
IV. Prohibited Conduct
Each of the defendants is enjoined and restrained from:
(A) Agreeing with any other automobile body repair shop to fix,
establish, raise, stabilize or maintain any hourly rate or part price
or discount;
(B) Participating in any discussion with or communicating with any
other automobile body repair shop concerning adherence to or changes
to, or the need or desirability of adhering to or changing, any hourly
rate or part price or discount; and
(C) Disseminating any information to any automobile body repair
shop concerning any planned or contemplated change in an hourly rate or
part price or discount.
V. Compliance Program
(A) Each defendant is ordered to establish and maintain an
antitrust compliance program which shall include designating, within 30
days of entry of this Final Judgment, an Antitrust Compliance Officer
with responsibility for accomplishing the antitrust compliance program
and achieving compliance with this Final Judgment. The Antitrust
Compliance Officer shall, on a continuing basis, supervise the review
of the current and proposed activities of his or her defendant company
to ensure that the company complies with this Final Judgment. The
Antitrust Compliance Officer shall be responsible for accomplishing the
following requirements:
(1) Distributing, within 60 days of the entry of this Final
Judgment, a copy of this Final Judgment to all officers and to
employees who have any responsibility for approving, disapproving,
monitoring, recommending, or implementing any hourly rate or part price
or discount;
(2) Distributing in a timely manner a copy of this Final Judgment
to any officer or employee who succeeds to a position described in
Section V(A)(1);
(3) Briefing annually those persons designated in Section V(A)(1)
on the meaning and requirements of this Final Judgment and the
antitrust laws and advising them that the defendant's legal advisors
are available to confer with them regarding compliance with the Final
Judgment and the antitrust laws;
(4) Obtaining from each officer or employee designated in section
V(A)(1) an annual written certification that he or she: (a) Has read,
understands, and agrees to abide by the terms of this Final Judgment;
(b) has been advised and understands that his or her failure to comply
with this Final Judgment may result in conviction for criminal contempt
of court; and (c) is not aware of any violation of the Final Judgment
that has not been reported to the Antitrust Compliance Officer;
(5) Maintaining a record of persons to whom the Final Judgment has
been distributed and from whom the certification in section V(A)(4) has
been obtained; and
(6) Reporting to the Department of Justice any violation of the
Final Judgment.
(B) Each defendant is ordered to distribute, within 60 days of
entry of this Final Judgment, a copy of this Final Judgment to an owner
or manager of each automobile body repair shop located within 50 miles
of Casper, Wyoming, which is presently in business and which has
purchased parts or automobile body repair services from the defendant
in the last five years.
VI. Certification
(A) Within 75 days of the entry of this Final Judgment, each
defendant shall certify to the plaintiff whether it has designated an
Antitrust Compliance Officer and has distributed the Final Judgment in
accordance with section V (A)(1) and (B) above.
(B) For ten years after the entry of this Final Judgment, on or
before its anniversary date, each defendant shall file with the
plaintiff an annual Declaration as to the fact and manner of its
compliance with the provisions of sections IV and V(A).
VII. Plaintiff Access
(A) To determine or secure compliance with this Final Judgment and
for no other purpose, duly authorized representatives of the plaintiff
shall, upon written request of the Assistant Attorney General in charge
of the Antitrust Division, and on reasonable notice to any defendant
made to its principal office, be permitted, subject to any legally
recognized privilege:
(1) Access during such defendant's office hours to inspect and copy
all documents in the possession or under the control of such defendant,
who may have counsel present, relating to any matters contained in this
Final Judgment; and
(2) Subject to the reasonable convenience of such defendant and
without restraint or interference from it, to interview officers,
employees or agents of such defendant, who may have such defendant's
counsel and/or their own counsel present, regarding such matters.
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division made to any defendant's principal
office, such defendant shall submit such written reports, under oath if
requested, relating to any matters contained in this Final Judgment as
may be reasonably requested, subject to any legally recognized
privilege.
(C) No information or documents obtained by the means provided in
section VII shall be divulged by the plaintiff to any person other than
a duly authorized representative of the Executive Branch of the United
States, except in the course of legal proceedings to which the United
States is a party, or for the purpose of securing compliance with this
Final Judgment, or as otherwise required by law.
(D) If at the time information or documents are furnished by any
defendant to plaintiff, such 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 such 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 10 days notice shall be
given by plaintiff to such defendant prior to divulging such material
in any legal proceeding (other than a grand jury proceeding) to which
that defendant is not a party.
(E) Nothing set forth in this Final Judgment shall prevent the
Antitrust Division from utilizing other investigative alternatives,
such as the Civil Investigative Demand process provided by 15 U.S.C.
1311-1314 or a Federal grand jury, to determine if the defendant has
complied with this Final Judgment.
VIII. Further Elements of the Final Judgment
(A) This Final Judgment shall expire ten years from the date of its
entry.
(B) Jurisdiction is retained by this Court for the purpose of
enabling any of the parties to this Final Judgment to apply to this
Court at any time for further orders and directions as may be necessary
or appropriate to carry out or construe this Final Judgment, to modify
or terminate any of its provisions, to enforce compliance, and to
punish violations of its provisions.
(C) Entry of this Final Judgment is in the public interest.
In The United States District Court, District of Wyoming
United States of America, Plaintiff, vs. Nagel Motors, Inc.,
Greiner Motor Company, Inc. and Benson Chevrolet, Inc., Defendants.
Civil No. 94-CV-146.
Competitive Impact Statement
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties
Act, 15 U.S.C. 16(b)-(h), the United States submits this Competitive
Impact Statement relating to the proposed Final Judgment submitted for
entry with the consent of Nagel Motors, Inc., Greiner Motor Company,
Inc. and Benson Chevrolet, Inc. in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
On June 2, 1994, the United States filed a civil antitrust
complaint alleging that Nagel Motors, Inc., Greiner Motor Company,
Inc., Benson Chevrolet, Inc. and their co-conspirators conspired to
unreasonably restrain competition among Casper, Wyoming automobile body
repair shops in violation of Section 1 of the Sherman Act, 15 U.S.C. 1.
The Complaint asks the Court to find that Nagel Motors, Inc., Greiner
Motor Company, Inc., and Benson Chevrolet, Inc. have violated Section 1
of the Sherman Act and further requests the Court to enjoin the
continuance of the conspiracy.
Entry of the proposed Final Judgment will terminate the action,
except that the Court will retain jurisdiction over the matter for
further proceedings which may be required to interpret, enforce or
modify the Judgment or to punish violations of any of its provisions.
II. Practices Giving Rise to the Alleged Violations
Defendants, Nagel Motors, Inc., Greiner Motor Company, Inc. and
Benson Chevrolet, Inc. are automobile dealerships operating in Casper,
Wyoming. They each offer a full range of automobile repair services,
including automobile body repair work.
The Government contends, and was prepared to show at trial, that
during the period beginning as early as December 1990 and continuing
through at least July 1993, the defendants and their co-conspirators
agreed, combined and conspired to unreasonably restrain competition
among Casper, Wyoming area automobile body repair shops in violation of
Section 1 of the Sherman Act. These agreements, combinations and
conspiracies consisted of discussions and information exchanges aimed
at increasing the rates charged for automobile body repair services in
the Casper area.
For the purpose of forming and effectuating these agreements,
combinations and conspiracies, Nagel Motors, Inc., Greiner Motor
Company, Inc., Benson Chevrolet, Inc., and their co-conspirators,
communicated with each other concerning the need to increase automobile
body repair rates and, in conjunction with these discussions,
disseminated to each other information concerning contemplated changes
in automobile body repair rates. As a result of their discussions and
exchange of contemplated changes in repair rates, coordinated rate
increases were put into effect.
These agreements, combinations and conspiracies suppressed price
competition among the defendants and their co-conspirators for
providing automobile body repair services in the Casper area and
deprived consumers of the benefits of free and open competition in the
purchase of automobile body repair services.
III. Explanation of the Proposed Final Judgment
The United States and Nagel Motors, Inc., Greiner Motor Company,
Inc. and Benson Chevrolet, Inc. have stipulated that the Court may
enter the proposed Final Judgment after compliance with the Antitrust
Procedures and Penalties Act, 15 U.S.C. 16(b)-(h). The proposed Final
Judgment provides that its entry does not constitute any evidence
against or admission of any party with respect to any issue of fact or
law.
Under the provisions of Section 2(e) of the Antitrust Procedures
and Penalties Act, 15 U.S.C. 16(e), the proposed Final Judgment may not
be entered unless the Court finds that entry is in the public interest.
Section VIII of the proposed Final Judgment sets forth such a finding.
The proposed Final Judgment is intended to ensure that Nagel
Motors, Inc., Greiner Motor Company, Inc. and Benson Chevrolet, Inc.
discontinue all practices which unreasonably restrain competition among
automobile body repair shops.
A. Prohibitions and Obligations
Under Section IV of the proposed Final Judgment, Nagel Motors,
Inc., Greiner Motor Company, Inc. and Benson Chevrolet, Inc. are
enjoined and restrained from: (1) Agreeing with any other automobile
body repair shop to fix, establish, raise, stabilize or maintain any
hourly rate or part price or discount; (2) participating in any
discussion with or communicating with any other automobile body repair
shop concerning adherence to or changes to, or the need or desirability
of adhering to or changing, any hourly rate or part price or discount;
and (3) disseminating any information to any automobile body repair
shop concerning any planned or contemplated change in an hourly rate or
part price or discount.
Section V of the proposed Final Judgment obligates Nagel Motors,
Inc., Greiner Motor Company, Inc. and Benson Chevrolet, Inc. to
implement and maintain an antitrust compliance program. This program
would require each defendant to designate an Antitrust Compliance
Officer within 30 days of entry of the Final Judgment. The Antitrust
Compliance Officer for each defendant would be responsible for
implementing and supervising the antitrust compliance program and
compliance with the Final Judgment. Section V also obligates Nagel
Motors, Inc., Greiner Motor Company, Inc. and Benson Chevrolet, Inc. to
distribute within 60 days from entry of the Final Judgment, a copy of
the Final Judgment to all officers and employees responsible for
approving, disapproving, monitoring, recommending, or implementing any
hourly rate or part price or discount, as well as any officer or
employee who succeeds to such a position, and briefing those persons
annually on the meaning and requirements of the Final Judgment and the
antitrust laws and advising them that the defendant's legal advisors
are available to confer with them regarding compliance with the Final
Judgment and the antitrust laws. Further the Antitrust Compliance
Officer must obtain from each such officer or employee, annual written
certifications stating that he or she: (1) Has read, understands, and
agrees to abide by the terms of the Final Judgment; (2) has been
advised and understands that his or her failure to comply with the
Final Judgment may result in conviction for criminal contempt of court;
and (3) is not aware of any violation of the Final Judgment that has
not been reported to the Antitrust Compliance Officer. The Antitrust
Compliance Officer must maintain a record of recipients to whom the
Final Judgment has been distributed and from whom certifications have
been obtained. He or she must also report to the Department of Justice
any violation of the Final Judgment. Finally, the Antitrust Compliance
Officer must also distribute copies of the Final Judgment to the owner
or manager of each automobile body repair shop, located within 50 miles
of Casper, Wyoming, which is presently in business and has purchased
parts or body repair services from the defendant in the last five
years.
In addition to the prohibitions and obligations contained in
Section IV and V, Nagel Motors, Inc., Greiner Motor Company, Inc. and
Benson Chevrolet, Inc. are further obligated, under Section VI, to
certify, within 75 days after the entry of the Final Judgment, that
they have designated an Antitrust Compliance Officer and have
distributed the Final Judgment in accordance with the Section V
requirement. Section VI also requires Nagel Motors, Inc., Greiner Motor
Company, Inc. and Benson Chevrolet, Inc., for a period of ten years
after the entry of the Final Judgment, on or before its anniversary
date, to file with the Government, a statement as to the fact and
manner of compliance with the provisions of Section V of the Final
Judgment.
B. Scope of the Proposed Final Judgment
Section VIII of the proposed Final Judgment provides that the Final
Judgment shall remain in effect for ten years.
Section III of the proposed Final Judgment provides that the Final
Judgment shall apply to Nagel Motors, Inc., Greiner Motor Company, Inc.
and Benson Chevrolet, Inc. and to each of their successors, assigns,
and to all other persons in active concert or participation with any of
them who shall have received actual notice of the Final Judgment by
personal service or otherwise.
C. Effect of the Proposed Final Judgment on Competition
The relief set out in the proposed Final Judgment is designed to
prevent recurrence of the activities alleged in the Complaint. The
proposed Final Judgment's provisions are designed to remove the
artificial restraints that the defendants have imposed on competition
among automobile body repair shops and create an environment in which
more vigorous competition may take place. It is intended to ensure that
marketing and pricing decisions of Nagel Motors, Inc., Greiner Motor
Company, Inc. and Benson Chevrolet, Inc. are made independently,
without any discussions and conversations with each other. The
Department of Justice believes that the proposed Final Judgment
contains sufficient provisions to prevent further violations of the
type alleged in the Complaint.
IV. Alternatives to the Proposed Final Judgment
The alternative to the proposed Final Judgment would be a full
trial of the case. In the view of the Department of Justice, such a
trial would involve substantial cost to the United States and is not
warranted because the proposed Final Judgment provides relief that will
remedy the violations of the Sherman Act alleged in the United States'
Complaint.
V. Remedies Available to 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 suffered, as well as costs and reasonable attorney's fees.
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C.
16(a), the Final Judgment has no prima facie effect in any subsequent
lawsuits that may be brought against any defendant in this matter.
VI. Procedures Available for Modification of the Proposed Judgment
As provided by the Antitrust Procedures and Penalties Act, any
person believing that the proposed judgment should be modified may
submit written comments to Gary R. Spratling, Chief, San Francisco
Office, Department of Justice, Antitrust Division, 450 Golden Gate
Avenue, San Francisco, California 94102, within the 60-day period
provided by the Act. These comments, and the Government's responses to
them, will be filed with the Court and published in the Federal
Register. All comments will be given due consideration by the
Department of Justice, which remains free to withdraw its consent to
the proposed judgment at any time prior to its entry if it should
determine that some modification of the judgment is necessary to the
public interest. The proposed judgment itself provides that the Court
will retain jurisdiction over this action, and that the parties may
apply to the court for such orders as may be necessary or appropriate
for the modification or enforcement of the judgment.
VII. Determinative Documents
No materials and documents of the type described in Section 2(b) of
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b), were
considered in formulating the proposed judgment. Consequently, none are
filed herewith.
Gary R. Spratling,
Richard B. Cohen,
Carla G. Addicks,
Attorneys, U.S. Department of Justice.
[FR Doc. 94-15911 Filed 7-1-94; 8:45 am]
BILLING CODE 4410-01-M