I. Nature and Purpose of the Proceeding The United States filed a civil antitrust Complaint on January 24, 2008, seeking to enjoin the proposed acquisition by Pearson plc and Pearson Education Inc. (collectively ‘‘Pearson’’) of Harcourt Assessment Inc. (hereafter ‘‘Harcourt’’), a wholly-owned subsidiary of Reed Elsevier PLC and Reed Elsevier NV (collectively ‘‘Reed Elsevier’’). The Complaint alleges that the likely effects of this acquisition would be to lessen competition substantially in the markets for individually-administered standardized norm-referenced comprehensive clinical tests (hereafter ‘‘clinical tests’’) in the subject areas of: (1) Adaptive behavior; (2) speech and language; and (3) adult abnormal personality, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The loss of competition caused by the acquisition will result in increased prices and decreased innovation for adaptive behavior and speech and language clinical tests in the United States.

The Acquisition is illegal under Section 7 of the Clayton Act if “the effect of such acquisition may be substantially to lessen competition.” 15 U.S.C. § 18. Case 1:12-cv-00560-BLW Document 464 Filed 01/24/14 Page 41 of 52Case 3:12-cv-04854- B ocu ent 72 Filed 02/05/14 Page 76 of 87 Findings of Fact & Conclusions of Law – page 42 11.

Section 16 of the Clayton Act creates a private right of action for injunctive relief for any corporation or firm “threatened [with] loss or damage by a violation of the antitrust laws,” including mergers and acquisitions that violate Section 7 of the Clayton Act. See 15 U.S.C. §§ 18, 26. In Brunswick and Cargill, the Supreme Court explained that the loss or damage referenced in Section 16 must constitute “antitrust injury” for a party to have standing to pursue the action.

Pacorini USA thus respectfully submits that Plaintiffs' Section 2 claims against it should be dismissed.4 IV. THE SACAC FAILS TO STATE A PLAUSIBLE SECTION 7 CLAIM The SACAC contains a wholly new claim, namely that the acquisition of Pacorini USA by Glencore Ltd. violated Section 7 of the Clayton Act, 15 U.S.C. § 18, in the market for LME U.S. Zinc. SACAC ¶ 240.

The transaction therefore will not increase concentration in any supposed market for the supply of backhaul services. Section 7 of the Clayton Act prohibits only those mergers that “may . . . substantially . . . lessen competition,” 15 U.S.C. § 18, and “is concerned with whether an acquisition or merger itself may cause antitrust injury,” Geneva Pharm. Tech.

Case 1:11-cv-00948-BAH Document 40 Filed 08/05/11 Page 22 of 53 - 18 - Under Section 7 of the Clayton Act, a merger is illegal “where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition or tend to create a monopoly.” 15 U.S.C. § 18 (emphasis added). Under the law, the Court is charged with assessing the future effects of an acquisition and, accordingly, its assessment necessarily concerns “probabilities, not certainties.”

that competition is not substantially lessened; AND WHEREAS, the United States requires Defendants to make certain divestitures for the purpose of remedying the loss of competition alleged in the Complaint; Case 1:08-cv-00262-TFH Document 15-2 Filed 05/29/2008 Page 1 of 40 -2- AND WHEREAS, Defendants have represented to the United States that the divestitures required below can and will be made and that Defendants will later raise no claim of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below; NOW THEREFORE, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the Defendants, it is ORDERED, ADJUDGED AND DECREED: I. Jurisdiction This Court has jurisdiction over the subject matter of and each of the Defendants to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18. II.

Section 7 prohibits any “person engaged in commerce” from acquiring stock or assets where the “effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” 15 U.S.C. § 18. Most commonly, § 7 is used to challenge mergers or asset acquisitions that create high levels of concentration in an industry.

Section 7 of the Clayton Act prohibits only those acquisitions where “the effect of such acquisition may be substantially to lessen competition or to tend to create a monopoly”. 15 U.S.C. § 18 (emphasis added). But Plaintiffs do not allege that ABI and MillerCoors’ alleged “control over 70% of the market” is an “effect of the acquisition”.

Overall, the Department concluded that if Verso and NewPage had completed the proposed transaction as structured, the loss of competition likely would have resulted in higher prices to consumers. For these reasons, the Department filed a civil antitrust lawsuit to block the merger and alleged that the proposed transaction violated Section 7 of the Clayton Act, 15 U.S.C. § 18. The proposed Final Judgment eliminates the anticompetitive effects identified in the Complaint by requiring Defendants to divest NewPage’s Rumford, Maine and Biron, Wisconsin paper mills and related assets (collectively, “the Divestiture Assets”) to Catalyst Paper Corporation (“Catalyst”) on terms acceptable to the United States.