UNITED
STATES DISTRICT COURT
MIDDLE
DISTRICT OF
GEORGIA THOMASVILLE
DIVISION
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UNITED STATES OF AMERICA, |
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Plaintiff, |
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v. |
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Civil Action No.:
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ENGELHARD CORPORATION, |
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Filed:
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FLORIDIN COMPANY, |
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U.S. BORAX INC., and |
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U.S. SILICA COMPANY, |
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Defendants. |
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FINAL
PRE-TRIAL ORDER - NON-JURY CASE
The
following constitutes a pre-trial order entered in the above-styled case
after conference with
counsel for the
parties: (1) The
name, address, and telephone number of the attorneys who
will conduct the trial
are as
follows: Plaintiff: Angela
L. Hughes, Lead
Attorney Nina
B.
Hale John
R.
Read Mark
F.
Sheridan John
S.
Sciortino William
J.
Hughes Alexander
Y.
Thomas Michele
B. Felasco
Trial
Attorneys U.S.
Department of Justice, Antitrust
Division 555
Fourth Street, N.W., Room
9810 Washington,
D.C.
20001 (202)
307-6351
Page 2
Defendant: Attorneys
for
Defendant Engelhard
Corporation:
William
T.
Lifland Dean
Ringel Howard
G.
Sloane Scott
Martin Christopher
Nelson Cahill
Gordon &
Reindel 80
Pine
Street New
York, New York
10005 (212)
701-3000
H.
Jerome
Strickland Jones,
Cork &
Miller Post
Office Box
6437 435
Second Street, 5th
Floor Macon,
Georgia
31201 (912)
745-2821
Attorneys
for
Defendant Floridin
Company, U.S.
Silica Company
and U.S. Borax Inc.
George
Chester Robert
A.
Long William
J.
Shieber Covington
&
Burling 1201
Pennsylvania Avenue,
N.W. Washington,
D.C.
20044 (202)
662-6000
Robert
Gunn Michael
Smith Martin,
Snow, Grant &
Napier 240
Third
Street Post
Office Box
1606 Macon,
Georgia
31202 (912)
743-7051 It
is understood that only counsel who personally appear at the
pretrial conference
will be allowed to participate in the trial.
Page 3
(2) (a) Companion
cases pending in this and other Federal or State
courts are: None. (b) Possible
derivative claims not now the subject of pending litigation:
None. (c) The
estimated time required for trial is: two
weeks. (3) (a) The
parties agree that the court has jurisdiction of the parties
and the subject matter
pursuant to 15 U.S.C. §§ 1331 and
1337. (b) There
are no motions pending for consideration by the court
except as follows:
Plaintiff's Motion to Strike Defendants' Efficiencies Affirmative
Defense, Plaintiff's
Motion in Limine to Exclude Testimony by Defendants' Executives
Respecting Customers'
Opinions About the Transaction, and Plaintiff's Motion in Limine to
Exclude Evidence
Relating to Engelhard's Threat to Exit the Business if the Transaction
is Enjoined. There may
be other issues relating to the admissability of exhibits
or deposition testimony
that are pending as of the time of the pretrial conference.
(4) Proposed
findings of fact and conclusions of law with citations to
the record where the
evidence may be found or to the statute or case from which the law
is derived will be
filed with the court 21 days after the end of the trial, accompanied
by post-trial briefs.
Reply briefs are due ten days
thereafter. (5) (a) All
discovery has been completed, unless otherwise noted, and
the court will not
consider any further motions to compel discovery except for good
cause shown.
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(b) Unless
otherwise noted, the names of the parties as shown in
the caption to this
order are correct and complete, and there is no question by any party
as to the misjoinder or
non-joinder of any
parties. (6) The
plaintiff's outline of the case and contentions are contained in
the Trial Brief of the
United States filed with this Court on July 14,
1995. (7) The
defendants' outline of the case and contentions are contained in
the Defendants'
Pretrial Memorandum filed with this Court on July 14,
1995. (8) The
issues for determination by the court as set forth by the plaintiff are
as follows: (A) Whether
the United States has carried its burden of proving
that Engelhard's
proposed acquisition of Floridin's assets may
substantially lessen
competition in the relevant product and geographic markets
in violation
of Section 7 of the Clayton
Act. 1. Whether
the relevant product market is the
mining, processing,
and sale of gellant-quality attapulgite clay ("gel
clay"). 2. Whether
the relevant geographic market is the
United States. 3. (a) Whether
the proposed acquisition is
presumptively illegal
because it will substantially increase concentration in
a highly
concentrated market;
or (b) If
defendants successfully rebut the presumption
of illegality
based on market concentration, whether there is
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evidence
of anticompetitive effects of the
proposed acquisition,
that
is: i. Whether
the proposed acquisition will result
in a
reduction in competition in the mining of gel
clay. ii. Whether
the proposed acquisition will result
in a
reduction in competition in processing of gel
clay. iii. Whether
the proposed acquisition will result
in a
reduction in competition in gel clay product
quality and
innovation. iv. Whether
the proposed acquisition will result
in a
reduction in gel clay price
competition. (B) Whether
defendants have carried their burden of proving new
entry or
expansion in the relevant market is likely to offset the
anticompetitive effects
of the proposed
acquisition. 1. Whether
there are substantial barriers to entry into
the United
States gel clay
market. 2. Whether
Oil-Dri, who previously entered the
market unsuccessfully
and exited the market in 1992, is likely to
re-enter the
United States gel clay
market. 3. Whether
foreign gel clay is likely to enter the United
States gel
clay market.
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(C) Whether
defendants have carried their burden of proving that
their alleged
efficiencies have a legal and factual basis, and if so, that
they outweigh
the anticompetitive harm of the proposed
acquisition. (D) Whether
the Engelhard/ITC Supply Contract will be adequate
and effective
relief to restore the competition that would be lost as a result
of Engelhard's
acquisition of the Floridin assets, and if so, the extent
to which
the Court must supervise performance of the Supply Contract
and retain
jurisdiction to protect gel clay customers and the
public. (9) The
issues for determination by the court as set forth by the
defendants are as
follows: (A) Whether
the United States has carried its burden of proving
that the
transaction as proposed, including the agreement of March 22,
1995 between
Engelhard and ITC, will probably substantially lessen
competition in
relevant product and geographic markets in violation of Section 7 of
the Clayton
Act. (B) Whether
new entry or expansion in the relevant market is likely
to offset
any anticompetitive effects of the transaction as are
proved. (C) Whether
defendants have presented sufficient evidence to rebut
a prima
facie case, if established by the plaintiff, by showing that
the transaction
as proposed will create significant efficiencies in the
relevant market
that will ultimately benefit competition and, hence, consumers.
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(D) Whether
any prima facie case, if established by the plaintiff,
has been
rebutted by evidence indicating that Engelhard will withdraw
from the
attapulgite business if the transaction as proposed is
enjoined. (10)
The parties have stipulated and agreed
that: (A) this
Court has jurisdiction over this action and the
parties; (B) venue
is proper in this District; and
(C) the
defendants are engaged in interstate commerce and
in activities
substantially affecting interstate
commerce. The
parties are still discussing proposed stipulations and will present
any other
stipulations to which they have agreed to the Court on Monday, July 24
at 8:00
am.
(11) The
list of documentary and physical evidence that will be tendered at
the trial by the
plaintiff is attached as Exhibit
A. (12) The
list of documentary and physical evidence that will be tendered at
the trial by the
defendants is attached as Exhibit
B. (13) The
plaintiff's final witness list is attached as Exhibit
C. (14) The
defendants' final witness list is attached as Exhibit
D. As
to any will call witnesses, opposing counsel may rely on
representation by
the designated party that he will have a witness present unless
notice to
the contrary
is given in sufficient time prior to trial to allow the other party
to subpoena
the witness or obtain his testimony by other means. Only those
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witnesses
listed in the pre-trial order will be allowed to testify and only
in
the manner
listed. (15) Set
down on non-jury calendar for: July 24,
1995 (16) Other
matters:
None. Dated:
Submitted
by:
________________________________ Angela
L.
Hughes Lead
Attorney for the
Plaintiff United
States Department of
Justice Antitrust
Division 555
Fourth Street, N.W., Room
9401 Washington,
D.C. 20001
___________________________ |
______________________________ |
George Chester |
Dean Ringel |
Covington & Burling |
Cahill Gordon & Reindel |
1201 Pennsylvania Avenue, N.W. |
80 Pine Street |
Washington, D.C. 20044 |
New York, New York 10005 |
Telephone: (202) 662-6000 |
Telephone: (212) 701-3000 |
Facsimile: (202) 662-6291 |
Facsimile: (212) 5420 |
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___________________________ |
______________________________ |
Robert Gunn |
H. Jerome Strickland |
Martin, Snow, Grant & Napier |
Jones, Cork & Miller |
240 Third Street |
Post Office Box 6437 |
Post Office Box 1606 |
435 Second Street, 5th Floor |
Macon, Georgia 31202 |
Macon, Georgia 31201 |
Telephone: (912) 743-7051 |
Telephone: (912) 745-2821 |
Facsimile: (912) 743- 4204 |
Facsimile: (912) 743-9609 |
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Attorneys for Defendants |
Attorneys for Defendant |
Floridin Company, U.S. Borax Inc. and U.S. Silica Company |
Engelhard Corporation |
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It
is hereby ORDERED that the foregoing, including the attachments thereto,
constitutes the
pre-trial order in the above case and supersedes the pleadings
which may not be
further amended except by order of the court to prevent manifest
injustice. This
________ day of ________________________, 1995.
________________________________ W.
LOUIS
SANDS UNITED
STATES DISTRICT
JUDGE MIDDLE
DISTRICT OF GEORGIA
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