ANTITRUST CIVIL INVESTIGATIVE DEMAND

Transcription

1 STATE OF FLORIDA Department of Legal Affairs OFFICE OF THE ATTORNEY GENERAL Tallahassee, Florida ANTITRUST CIVIL INVESTIGATIVE DEMAND TO: BP Products North America, Inc. No c/o The Prentice-Hall Corporation System, Inc Hays Street Suite 105 Tallahassee, FL This antitrust civil investigative demand is issued pursuant to the Florida Antitrust Act of 1980, Section , Florida Statutes, in the course of an official investigation to determine whether there is, has been or may be a violation of Sections or , Florida Statutes (parts of the Florida Antitrust Act of 1980); or sections 1 or 2 of the Sherman Antitrust Act (15 U.S.C. 1, 2), by conduct, activities or proposed action of the following nature: possible contracts, combinations, or conspiracies in restraint of trade, or monopolization, attempted monopolization, or combinations or conspiracies to monopolize trade or commerce, relating to the combination or conspiracy in restraint of trade in the wholesale or retail sale of gasoline in the State of Florida INTERROGATORIES You are required by this demand to answer the interrogatories on the Attachment and tender them to the custodians named below on or before June 30, Each interrogatory must be answered separately and fully in writing under oath, unless it is objected to, in which case the reasons for the objection must be stated in lieu of an answer. The answers must be submitted under a sworn certificate, in the form printed on the reverse side of this demand, executed by the person to whom this demand is directed or, if not directed to a natural person, by the person or persons responsible for answering each interrogatory. PRODUCTION OF DOCUMENTS You are required by this demand to produce all documentary material and other tangible evidence indicated in the Attachment that is in your possession, custody, or control, and to make it available for inspection and copying or reproduction by a custodian named below. Such production shall occur on June 30, 2004 at the following location: Office of the Attorney General, 107 West Gaines Street, 5 th Floor, Tallahassee, Florida. The production of documentary material in response to this demand must be made under sworn certificate, in the form printed on the reverse side of this demand, executed by the person to whom this demand is directed, or, if not directed to a natural person, by a person having knowledge of the facts and circumstances relating to such production. For purposes of this investigation, the following are designated as the custodians and deputy custodians to whom the documentary material shall be made available: Elizabeth Arthur and Nicholas Weilhammer, Assistant Attorneys General Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida , (850) Your attention is directed to Sections (14) and , Florida Statutes, printed on the reverse side of this document. Issued at Tallahassee, Florida, this th day of May, CHARLES J. CRIST, Jr. Attorney General Countersigned: XXXXXXXX By: XXXXXXXX CHARLIE CRIST PATRICIA A. CONNERS Attorney General Director, Antitrust Division

2 FORM OF CERTIFICATE OF COMPLIANCE I/We have read the provisions of Section (14), Florida Statutes, and do hereby certify that all information required by Civil Investigative Demand No which is in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted to a custodian named therein. Signature Title Sworn to before me this day of, Notary Public Civil Investigative Demand. (14)(a) No person, knowing or having reason to believe that a demand pursuant to this section is pending, shall: 1. Alter, destroy, conceal, or remove any record, document, or thing with the purpose of impairing its verity or availability in such proceeding or investigation; or 2. Make, present, or use any record, document, or thing, knowing it to be false. (b) Any person who violates any provision of this subsection is guilty of a felony of the third degree, punishable as provided in s , s , or s Perjury in official proceedings.- (1) [W]hoever makes a false statement, which he or she does not believe to be true, under oath in an official proceeding in regard to any material matter, commits a felony of the third degree, punishable as provided in s , s , or s (3) Knowledge of the materiality of the statement is not an element of the crime of perjury under subsection (1)... and the defendant s mistaken belief that the statement was not material is not a defense.

3 ATTACHMENT TO ANTITRUST CIVIL INVESTIGATIVE DEMAND PART ONE -- DEFINITIONS NO. 04-XXX 1. Document includes, but is not limited to, the original and any nonidentical copy (which is different from the original because of notations on such copy or otherwise) of all correspondence, s, telegrams, teletype messages, contracts (including drafts, proposals, and any and all exhibits thereto), agreements, draft minutes and agendas, memoranda (including inter- and intra-office memoranda, memoranda for file, pencil jottings, diary entries, desk calendar entries, reported recollections, and any other written form of notation of events or intentions), transcripts and recordings of conversations and telephone calls, books, records, photographs, reports, tabulations, charts, books of account, ledgers, invoices, financial statements, purchase orders, receipts, canceled checks and all other documentary material of any nature whatever, together with any attachments thereto or enclosures therewith. The term document shall include data stored, maintained or organized electronically or magnetically through computer equipment, translated, if necessary, by you into reasonably usable form. The term document shall also include audio and/or video recordings. 2. Identify means to state: (a) in the case of a person other than a natural person, its name and principal address and telephone number, its agent for service of process within the State of Florida, and the address for the agent for service of process in the State of Florida, and, if a trust, the name, address and telephone number of the trustee of the trust; (b) in the case of a natural person, his or her name, home and business addresses and telephone numbers, employer, title or position, date of birth and social security number; (c) in the case of a communication, its date, type (e.g., telephone conversation, letter, or meeting), the place where it occurred, the identity of each person who received the communication or who was present when it was made, and the subject matter discussed; and (d) in the case of a document, either (i) the title of the document, the author s identity, the addressee s identity, the type and subject matter of the document, the date it was prepared, and the number of pages it comprises, or (ii) its production number. 3. Person means any natural person; public or private corporation, whether or not organized for profit; governmental entity; partnership; association; cooperative; joint venture; trust; sole proprietorship; or other legal entity. With respect to a business entity, the term "Person" includes any natural person acting formally or informally as an employee, officer, agent, attorney, consultant or other representative of the business entity. 4. Procedures includes any formal or informal, oral or written, policy, plan, practice, program, strategy or guideline. 5. Relating to means discussing, describing, referring to, reflecting, containing, analyzing, studying, reporting on, commenting on, evidencing, constituting, setting forth, considering, recommending, regarding, concerning, or pertaining to, in whole or in part.

4 6. The singular form of a noun or pronoun includes within its meaning the plural form of the noun or pronoun, and vice versa. The past tense includes within its meaning the present tense and vice versa, unless the clear meaning is distorted thereby. Any means one or more. And and or are terms of inclusion, not exclusion. Including means including, but not limited to. 7. Unless otherwise indicated, documents included in the Relevant Period are those which were prepared, sent, dated, received, in effect, or otherwise came into existence at any time during the period commencing on January 1, 2002, and ending on the date of the production of all documents by the Company in response to said CID. 8. Communication means any exchange, transfer or dissemination of information, regardless of the means by which it is accomplished. 9. The Company means <<<XXX>>>, its domestic and foreign parents, predecessors, divisions, and wholly or partially owned subsidiaries, affiliates, partnerships, and joint ventures; and all directors, officers, employees, consultants, agents, attorneys and representatives of the foregoing. The terms subsidiary, Affiliate, and joint venture refer to any Person in which there is partial (50 percent or more) or total ownership or control by the Company. 10. Each, any, and all mean each and every. Each includes every, and vice versa. 11. Sales means net sales, i.e., total sales after deducting discounts, returns, allowances and excise taxes. 12. Branded means gasoline Sales or resales that occur under Company s brand name. 13. Dealer means any Person who sells gasoline at the retail level of the market, i.e., to the end customer. 14. Dealer Tank Wagon (DTW) Prices means the price charged by a refiner or a jobber to a Branded Dealer by the truckload or less for delivery at the retail outlet. 15. Exchange Agreements means any oral or written contract, arrangement or understanding, whether formal or informal, together with all modifications or amendments thereto, between Company and another Person for the acquisition of gasoline at any level of the market that is tied in any way to an offsetting disposition of gasoline or other product. 16. Matched Purchase/Sales Agreements means any oral or written contract, arrangement or understanding, whether formal or informal, together with all modifications or amendments thereto, between Company and another Person for the purchase of gasoline at any level of the market that is tied in any way to an offsetting sale of gasoline or other product. 17. Monthly Wholesale Cost means the cost, including purchases from third parties as well as the cost of Company s production of gasoline, on a monthly basis. 2

5 18. Pipeline Problems means a shutdown, disruption or interruption in the normal process by which a pipeline transporting gasoline operates. 19. Purchase Agreements means any oral or written contract, arrangement or understanding, whether formal or informal, together with all modifications or amendments thereto, between Company and another Person for the acquisition of gasoline at any level of the market that is not tied in any way to an offsetting sale of gasoline or other product. 20. Retail Station means the outlet that sells gasoline to end-use consumers. 21. Sales Agreements means any oral or written contract, arrangement or understanding, whether formal or informal, together with all modifications or amendments thereto, between Company and another Person for the disposition of gasoline at any level of the market that is not tied in any way to an offsetting purchase of gasoline or other product. 22. Unbranded means gasoline Sales or resales that are not Branded. 23. Volume means quantity expressed in barrels or gallons. 24. Wholesale means the portion or level of the market between the point at which gasoline leaves the refinery up to the point at which the product enters the Retail Station. 25. Wholesale Prices means the price charged at the Wholesale level of the market including spot waterborne or cargo prices, terminal, rack, or DTW Prices. 26. Wholesaler means a Person who buys or sells at the Wholesale level of the market. 27. Zones mean geographical areas defined for purposes of establishing areas facing similar local market conditions. PART TWO -- INTERROGATORIES A. INSTRUCTIONS 1. If you do not have sufficient information to answer an interrogatory fully, submit as complete an answer as possible and explain why the answer is incomplete. For that part of your answer for which you lack information, submit your best estimate or judgment, so identified, and state the source or basis of the estimate or judgment. Where incomplete answers, or estimates or judgments are submitted, and you believe that other sources of more complete or accurate information exist, identify and describe those sources. 2. For each interrogatory that you refuse to answer in whole or in part pursuant to any claim of privilege, state in your response the nature and basis of the privilege claimed. 3

6 3. Certain words in the Interrogatories are capitalized. Any special meanings for those words, in addition to their normal usage, are defined in Part One to this Attachment, entitled Definitions. 4. If the person to whom the Antitrust Civil Investigative Demand ( CID ) is directed believes that any part of the CID can be narrowed in any way that is consistent with this Office s need for documents and information, you are encouraged to discuss possible modifications with the representative of this Office identified in the CID as the one to whom inquiries concerning compliance should be directed. All modifications to the CID must be agreed to in writing by said representative. 5. Unless otherwise indicated, all answers provided shall be limited to the Relevant Period. B. INTERROGATORIES 1. Describe Company s document retention policy. 2. Describe Company s Procedures Relating to the process by which Company sets Wholesale Prices of each grade of gasoline sold by Company in Florida, and Identify all Persons participating in the formation or implementation of such Procedures. 3. Describe Company s Procedures Relating to the process by which Company sets quantities of gasoline produced, purchased or held in inventory in the United States since January 1, 2000, and Identify all Persons participating in the formation or implementation of such Procedures. 4. Describe Procedures Relating to the process by which Company uses the cost of crude oil, inventory of crude oil, or production of crude oil to set gasoline prices at the Wholesale and retail levels of the market since January 1, 2000, and Identify all Persons participating in the formation or implementation of such Procedure. 5. Describe Company s Procedures Relating to the process by which Company sets retail prices for each grade and type of gasoline produced, purchased or held in inventory in the United States since January 1, 2000, and Identify all Persons participating in the formation of such Procedures. 6. Identify all rebate amounts given by Company to a Dealer or Wholesaler for Sales of gasoline in Florida. 7. Identify Company s monthly per-gallon cost to manufacture gasoline sold in Florida. 8. Identify the daily Unbranded rack prices established by Company for each grade and type (reformulated and conventional) of gasoline where Company sells gasoline for resale in Florida. 9. Identify the daily Branded rack prices established by Company for each grade and type (reformulated and conventional) of gasoline where Company sells gasoline for resale in Florida. 4

7 10. Identify the Daily Dealer Tankwagon prices established by Company for each grade and type (reformulated and conventional) of gasoline at each location in Florida. 11. Identify the Zones in Florida by which Company sets retail prices, including the number of different Zones, their location and the basis upon which they were defined. 12. Identify all refineries owned in part or in whole by Company that produced gasoline sold in the United States. 13. Identify the capacity for producing gasoline at each refinery identified in the answer to Interrogatory Number Twelve (12) since January 1, Identify the monthly Volume of gasoline actually produced at each refinery identified in the answer to Interrogatory Number Twelve (12) since January 1, Describe any shutdowns, interruptions, or other disruptions at any of the refineries identified in the answer to Interrogatory Number Twelve (12) that affected Company s ability to produce gasoline, and Identify the refinery that was affected, the approximate duration, and the amount of lost gasoline production. 16. Describe any supply disruptions, accidents, or force majeure that affected Company s ability to supply gasoline. This specification includes, but is not limited to, Pipeline Problems, barge accidents, or acts of nature. 17. Identify the monthly Volume by refinery of gasoline actually produced at each refinery identified in the answer to Interrogatory Number Twelve (12) and sold in Florida since January 1, Identify by seller the monthly Volume of gasoline purchased for resale in Florida by Company from other refiners operating in the United States since January 1, Include the monthly purchase price and monthly transportation costs of such purchases. 19. Identify by country of origin the monthly Volume of gasoline purchased by Company from outside the United States for resale in Florida since January 1, Include the monthly purchase price and monthly transportation costs of such purchases. 20. Identify all monthly costs to transport gasoline from any of Company s refineries to terminals in Florida. Include the monthly costs Company paid to Persons to ship gasoline from refineries to Florida. 21. Identify the location, ownership, and storage capacity of each terminal used by Company for distribution of gasoline for resale in Florida since January 1, Identify Retail Stations carrying Company s Branded gasoline in Florida, including the ownership structure of such Retail Stations (e.g., company-owned, dealer leased, independently owned, etc.). 23. Identify the monthly Volume of Branded gasoline Sales Company made in Florida at the Wholesale level. 5

8 24. Identify the monthly Volume of Branded gasoline Sales Company made in Florida at the retail level. 25. Identify the monthly Volume of Unbranded gasoline Sales Company made in Florida. 26. Identify all Communications Relating to any decision or consideration of a decision Company made to reduce gasoline supplies from being sold in the United States. 27. Describe how Company retains Documents Relating to Purchase Agreements, Sales Agreements, Matched Purchase/Sales Agreements, or Exchange Agreements between Company and any Persons for gasoline delivered, distributed, or sold in Florida. 28. Identify each Person answering any part of these interrogatories, indicating which interrogatory each Person answered. 29. Identify the daily retail prices established by Company by Retail Station for each grade and type (reformulated and conventional) of gasoline where Company sells gasoline in Florida. PART THREE-- PRODUCTION OF DOCUMENTS A. INSTRUCTIONS 1. This demand for production of documents calls for the production of all responsive documents in the Company s possession, custody, or control without regard to the physical location of said documents. This demand for production of documents is a continuing request to the extent indicated in the CID or in the Schedule of Documents to be produced. 2. All documents shall be originals unless otherwise indicated. If your original is a photocopy (or other copy), then the copy should be produced as the original. 3. The documents produced shall be segregated according to, and enclosed in file folders or boxes marked so as to clearly identify, the particular paragraph (or subparagraph or category within a paragraph or subparagraph, if applicable) of this documents request in response to which they are being produced. Within the response to a given paragraph, subparagraph, or category, documents shall be organized and identified according to the files in which they were kept, identifying the Persons for whom the files were kept and the place where the files were kept. 4. Each of the documents produced pursuant to this documents request shall be marked (such as by Bates stamp) with an identifying number, which shall begin with an alphabetical identifier for the producing entity and shall be placed on the lower right-hand corner of the page (except where such placement would obscure the text). 6

9 5. If the Company possesses no documents responsive to a paragraph of this documents request, state this fact, specifying the paragraph concerned, in your response. In the event that the Company should withhold any document under claim of any constitutional or other legal right or privilege, please state the following as to each such document: a. The name of each author, writer, sender, or initiator of such document or thing, if any; b. The name of each recipient, addressee, or party for whom such document was intended, if any; c. The date of such document, if any, or an estimate thereof and so indicated as an estimate if no date appears on said document; d. The general subject matter of the document; e. The claimed constitutional or other legal right or privilege the Company contends applies with respect to the document (e.g., attorney-client privilege ). 6. Certain words in the demand for Production of Documents are capitalized. Any special meanings for those words, in addition to their normal usage, are defined in Part One of this Attachment, entitled Definitions. 7. Unless otherwise indicated, all answers provided shall be limited to the Relevant Period. 8. Provide the requested data in spreadsheet form as a computer file. Such a computer file should be in the form of a non-encrypted computer spreadsheet file compatible with Microsoft Excel Office 2000 version, and the Microsoft Windows NT 4.0 (or 2000) operating system. Submit the computer file readable on a computer running the Microsoft Windows NT operating system, and submit a paper printout of the summary information contained in the computer file. 9. If images or OCR records of submitted documents exist as computer file(s) or are created by the Company in the connection with this investigation, provide the images and OCR records in machine-readable form. B. SCHEDULE OF DOCUMENTS TO BE PRODUCED 1. Provide all organizational charts for Company Relating to the production, supply, distribution, storage, transportation and sale of gasoline in Florida since January 1, Identify Persons responsible for all decisions Relating to marketing and pricing of gasoline at the Wholesale and retail levels in Florida. 3. Provide all Documents Relating to the answer provided to Interrogatory Number Three (3). 7

10 4. Provide all Documents Relating to the answer provided to Interrogatory Number Four (4). 5. Provide Documents sufficient to support Company s answer provided to Interrogatory Number Seven (7). 6. Provide all Documents Relating to price changes for gasoline sold in Florida since December 1, Provide Documents sufficient to show Company s Monthly Wholesale Cost of gasoline that is transported for resale into Florida by terminal location. 8. Provide all Communications between Company and any price reporting company including, but not limited to, OPIS, DTN, Lundberg, and Platt s Relating to the pricing of gasoline at any level of distribution. 9. Provide all Documents Company used to calculate net income, refining margins, earnings before interest and taxes, and refinery and marketing profitability Relating to the production, sale, and distribution of gasoline for Company reporting levels that include the state of Florida, including but not limited to, internal managerial accounting reports, internal cost reports, internal margin reports, fixed cost reports and variable cost reports. 10. Provide all Purchase Agreements, Sales Agreements, Matched Purchase/Sales Agreements, or Exchange Agreements between Company and any Persons for gasoline delivered, distributed, or sold in Florida. 11. Provide the contents of all the files containing the documents produced in response to Request for Production Number Ten (10). 12. Provide Documents sufficient to show the monthly Volume and dollars of Sales of gasoline in Florida by Company at the Wholesale and retail levels. 13. Provide Documents sufficient to show the weekly Volume of gasoline held in storage or inventory, at each location identified in the answer to Interrogatory Number Twenty-One (21). 14. Provide Documents sufficient to show the monthly Volume of gasoline held in storage or inventory that Company ultimately sold or supplied in Florida. 15. Provide all Documents Relating to the Communications identified in the answers to Interrogatory Number Twenty-Six (26). 16. Provide all Communications between Company and any Person Relating to the amount of gasoline held in inventory, transported, or sold in the United States since January 1, Provide Documents sufficient to show Company s market share in Florida of gasoline Sales at the Wholesale level annually for each of the last five years. 8

11 18. Provide Documents sufficient to show Company s market share in Florida of gasoline Sales at the retail level annually for each of the last five years. 19. Provide all Documents Relating to how the Company s cost of crude oil, inventory of crude oil, or production of crude oil was used by the Company to set gasoline prices at the Wholesale and retail levels of the market. 20. Provide the following Documents filed with the Energy Information Administration: EIA-14 EIA-28 EIA-182 EIA-782A EIA-782C EIA-800 EIA-801 EIA-802 EIA-803 EIA-804 EIA-805 EIA-810 EIA-811 EIA-812 EIA-813 EIA-814 EIA-815 EIA-817 EIA-819 EIA-856 EIA-863 EIA-878 EIA-888 Refiners' Monthly Cost Report Financial Reporting System Domestic Crude Oil First Purchase Report Refiners'/Gas Plant Operators' Monthly Petroleum Product Sales Report Monthly Report of Prime Supplier Sales of Petroleum Products Sold for Local Consumption Weekly Refinery and Fractionator Report Weekly Bulk Terminal Report Weekly Product Pipeline Report Weekly Crude Oil Stocks Report Weekly Imports Report Weekly Terminal Blenders Report Monthly Refinery Report Monthly Bulk Terminal Report Monthly Product Pipeline Report Monthly Crude Oil Report Monthly Imports Report Monthly Terminal Blenders Report Monthly Tanker and Barge Movement Report Monthly Oxygenate Report Monthly Foreign Crude Oil Acquisition Report Petroleum Product Sales Identification Survey Motor Gasoline Price Survey On-Highway Diesel Fuel Price Survey 9