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The Â鶹´«Ã½ Trade Commission today announced that it is closing its investigation into Arch Coal, Inc.’s (Arch) acquisition of the Triton Coal Company’s (Triton) North Rochelle coal mine, saying that it will not continue with administrative litigation challenging the deal. The vote to close the investigation and discontinue administrative action was 4-1, with Commissioner Pamela Jones Harbour dissenting. The Commission majority issued a statement, Commissioner Harbour issued a dissenting statement, and Commissioner Thomas B. Leary issued an additional statement.

The Commission’s Statement

In its statement, the Commission said that “the public interest would not be benefitted by an administrative trial in this instance.” The Commission based its decision on application of the criteria set forth in the 1995 Statement of the Â鶹´«Ã½ Trade Commission Policy Regarding Administrative Matter Litigation Following the Denial of Preliminary Injunction. These criteria are: the district court’s factual findings and conclusions of law; any new evidence developed during the preliminary injunction proceeding; whether the transaction raises important issues of fact, law, or merger injunction policy that need resolution in administrative litigation; the costs and benefits of further proceedings; and any additional relevant factor. The Commission concluded that each of these criteria support a decision not to pursue administrative litigation.

The Commission stated that neither the district court’s factual findings nor its legal conclusions warrant continued administrative litigation. The Commission statement notes that “[t]he district court conducted a lengthy preliminary injunction hearing that amounted to nearly a full trial on the merits. . . . [T]he breadth of the district court’s factual record suggests that, absent significant new evidence that supports the case, administrative litigation could amount to an unproductive repetition of the same litigation.” The statement continues that, since the district court issued its opinion, the staff obtained new evidence about “one of the central issues – the capacity, expansion plans and production levels of most of the [Southern Powder River Basin] coal producers. On balance, however, this new evidence did not support continued administrative litigation.”

The statement notes that the Commission strongly disagreed with the district court’s legal ruling that it was “novel” for the Commission to advance a theory based on the likelihood of coordinated decisions on output. It further states, however, that this legal ruling did not justify administrative litigation because, on appeal, the Court of Appeals for the District of Columbia Circuit expressly rejected the ruling.

The statement continues that “a balancing of the costs and benefits of administrative litigation also supports closing the case. . . . While the Commission continues to believe that administrative litigation plays a vital role in the development and enforcement of the antitrust laws, it is equally clear, however, that administrative litigation does not always advance the public interest.” The Commission states that incurring the costs of administrative litigation would not serve the public interest in this case because: “(1) Staff would essentially duplicate its prior efforts by presentation of largely the same record evidence that the district court found insufficient to warrant an injunction; and (2) the court of appeals corrected the most significant legal error by the district court that might have impeded the Commission’s merger enforcement responsibility.”

The statement emphasizes that the decision “not to pursue administrative litigation is consistent with the Commission’s established policy of evaluating, on a case-by-case basis, whether pursuit of administrative litigation after the denial of a preliminary injunction motion would serve the public interest.” The statement concludes that the FTC “will continue to closely monitor competition among coal and other energy producers, and aggressively enforce the antitrust laws against producers that engage in anticompetitive conduct . . .,” and that, “As Commissioner Leary explains in his additional statement, the Commission remains free to enforce the antitrust laws in these markets.”

Commissioner Harbour’s Statement

In her separate statement, Commissioner Harbour said that she respectfully dissented from the vote, as “The Commission should take advantage of this opportunity to conduct a thorough, independent review of the evidence, to determine whether an antitrust violation has occurred, and to write an opinion clarifying the law relating to coordinated interaction.” More than a year after the Commission voted to file its complaint in this matter, she said, “The evidence still supports – and, if anything, more strongly supports – a ‘reason to believe’ that Arch’s acquisition of Triton’s North Rochelle mine may substantially lessen competition in the [SPRB] coal market, and therefore may have violated the antitrust laws.”

She continued by saying that, “My disagreement with the majority’s position has both substantive and procedural dimensions. Substantively, I believe that there remains a strong factual and legal basis for an antitrust challenge, regardless of the district court and appellate court findings. I base this conclusion not only on the existing evidentiary record, but also on substantial new evidence that tends to further support the likelihood of coordinated interaction. I further believe that the district court made numerous errors of fact and economic inference, and also applied the law incorrectly. If the Commission does not continue its enforcement action, we run the risk that the district court opinion will impose an unnecessarily high burden of proof for future merger challenges predicated on coordinated effects.”

Procedurally, she said, “I believe that the pursuit of administrative litigation would fulfill our Congressionally-mandated responsibility – as expert antitrust fact finders and adjudicators – to further develop the factual record, clarify the law of mergers with respect to coordinated effects, and offer much-needed guidance to the legal and business communities.”

Commissioner Leary’s Statement

In his separate statement, Commissioner Leary said that while he joined in the decision to close this matter and agree[d] with the Commission’s statement of its reasons for doing so, he chose to comment because he originally dissented from the decision to seek a preliminary injunction, and said then “that the administrative arena is the best place to address the challenging issues presented by this case.”

While he still believes that an administrative trial would have been preferable, and stated his reasons for this belief, Commissioner Leary said, “However, that was then and this is now. In light of the facts developed during the preliminary injunction proceeding, I no longer have reason to believe that the merger is likely to have an adverse effect on competition.” He did say, though, that the Commission “can always intervene down the road, should the need arise,” due to anticompetitive conduct.

Background

The FTC voted to challenge the proposed acquisition in April 2004, filing complaints before both a federal district court and an FTC administrative law judge. The case subsequently was heard before the U.S. District Court for the District of Columbia, which denied the Commission’s motion for a preliminary injunction. The Commission then filed a motion for an injunction pending appeal in the U.S. Court of Appeals for the District of Columbia Circuit, which denied the motion. On September 10, 2004, the Commission withdrew the matter from administrative litigation.

The action announced today concludes the FTC’s law enforcement actions to enjoin the acquisition.

The Commission’s statement, as well as those of Commissioners Harbour and Leary, are available on the FTC’s Web site as a link to this press release.

Copies of the three statements are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. The FTC’s Bureau of Competition seeks to prevent business practices that restrain competition. The Bureau carries out its mission by investigating alleged law violations and, when appropriate, recommending that the Commission take formal enforcement action. To notify the Bureau concerning particular business practices, call or write the Office of Policy and Evaluation, Room 394, Bureau of Competition, Â鶹´«Ã½ Trade Commission, 600 Pennsylvania Ave, N.W., Washington, DC 20580, Electronic Mail: antitrust@ftc.gov; Telephone (202) 326-3300. For more information on the laws that the Bureau enforces, the Commission has published “Promoting Competition, Protecting Consumers: A Plain English Guide to Antitrust Laws,” which can be accessed at http://www.ftc.gov/bc/compguide/index.htm.

(FTC File No. 031-0191; Docket No. D09316)