Notice2026-08095
United States et al. v. Constellation Energy Corporation, Inc. et al. Response of Plaintiff United States to Public Comments on the Proposed Final Judgment
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Published
April 24, 2026
Issuing agencies
Justice DepartmentAntitrust Division
Full Text
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<title>Federal Register, Volume 91 Issue 79 (Friday, April 24, 2026)</title>
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[Federal Register Volume 91, Number 79 (Friday, April 24, 2026)]
[Notices]
[Pages 22167-22172]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08095]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States et al. v. Constellation Energy Corporation, Inc. et
al. Response of Plaintiff United States to Public Comments on the
Proposed Final Judgment
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that the Response of Plaintiff
United States to Public Comment on the Proposed Final Judgment has been
filed with the United States District Court for the District of
Columbia in United States of America et al. v. Constellation Energy
Corporation, Inc. et al., Civil Action No. 1:25-cv-04235.
The United States' Response and the public comment received are
reprinted below. Copies of the public comment
[[Page 22168]]
and the United States' Response are available for inspection on the
Antitrust Division's website at <a href="http://www.justice.gov/atr">http://www.justice.gov/atr</a>.
Suzanne Morris,
Deputy Director Civil Enforcement Operations, Antitrust Division.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
United States of America, and State of Texas, Plaintiffs, v.
Constellation Energy Corporation, Calpine Corporation, and CPN CS
Holdco Corp. Defendants.
Case No. 1:25-cv-04235-ABJ
Response of Plaintiff United States to Public Comment on the Proposed
Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act (the
``Tunney Act''), 15 U.S.C. 16(b)-(h), the United States submits this
response to the one public comment received regarding the proposed
Final Judgment in this case. After careful consideration of the only
submitted comment, the United States continues to believe that the
proposed Final Judgment is in the public interest because it will
provide an effective and appropriate remedy for the antitrust violation
the Complaint alleged. The proposed Final Judgment remedies the lost
competition that the Complaint alleged was otherwise likely to have
resulted from the acquisition of Calpine Corporation (``Calpine'') by
Constellation Energy Corporation (``Constellation'') (the
``Transaction'').
Specifically, the proposed Final Judgment will protect competition
by requiring Defendants to divest seven electric generating facilities
(the ``Divestiture Assets'') in two of the nation's major electricity
grids--The Electric Reliability Council of Texas (``ERCOT'') \1\ and
PJM Interconnection LLC (``PJM'') \2\ to acquirers acceptable to the
United States.
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\1\ ERCOT encompasses most of Texas.
\2\ PJM includes all or parts of Delaware, Illinois, Indiana,
Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio,
Pennsylvania, Tennessee, Virginia, West Virginia, and the District
of Columbia.
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After this Response has been published in the Federal Register,
pursuant to 15 U.S.C. 16(d), the United States will move that the Court
enter the proposed Final Judgment.
I. Procedural History
On December 5, 2025, the United States, along with the State of
Texas, filed a civil antitrust Complaint seeking to enjoin the
Transaction. Dkt. 1. The Complaint alleges that Constellation's
acquisition of Calpine threatens to substantially lessen competition in
wholesale electricity markets in ERCOT and PJM Coastal Mid-Atlantic (a
distinct area within the PJM region that includes southeastern
Pennsylvania, New Jersey, Delaware, and the eastern shores of Maryland
and Virginia), in violation of Section 7 of the Clayton Act, 15 U.S.C.
18.
Concurrent with the filing of the Complaint, Plaintiffs filed the
proposed Final Judgment, as well as an Asset Preservation and Hold
Separate Stipulation and Order (``Stipulation and Order'') signed by
all parties consenting to entry of the proposed Final Judgment after
compliance with the requirements of the Tunney Act. Dkt. 2-1 and 2-2.
On December 12, 2025, the United States filed a Competitive Impact
Statement describing the proposed Final Judgment. Dkt. 20.
The United States arranged for the publication of the Complaint,
the proposed Final Judgment, and the Competitive Impact Statement in
the Federal Register on December 18, 2025, and caused notice regarding
the same, together with directions for the submission of written
comments relating to the proposed Final Judgment, to be published in
The Washington Post and the Houston Chronicle from December 20 to
December 26, 2025. See Dkt. 22. The single public comment received in
response is described below and attached as Exhibit A. The 60-day
period for public comment has now ended.
II. Standard of Judicial Review
The Clayton Act, as amended by the Tunney Act, requires that
proposed consent judgments in antitrust cases brought by the United
States are subject to a 60-day comment period, after which the Court
shall determine whether entry of the proposed Final Judgment ``is in
the public interest.'' 15 U.S.C. 16(e)(1). In making that
determination, the Court, in accordance with the Tunney Act, as amended
in 2004, is required to consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e)(1)(A), (B).
In considering these statutory factors, the Court's inquiry is
necessarily a limited one, as the government is entitled to ``broad
discretion to settle with the defendant within the reaches of the
public interest.'' United States v. Microsoft Corp., 56 F.3d 1448, 1461
(D.C. Cir. 1995); United States v. U.S. Airways Grp., Inc., 38 F. Supp.
3d 69, 75 (D.D.C. 2014) (explaining that the ``court's inquiry is
limited'' in Tunney Act settlements); United States v. InBev N.V./S.A.,
No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11,
2009) (noting that a court's review of a proposed Final Judgment is
limited and inquires only ``into whether the government's determination
that the proposed remedies will cure the antitrust violations alleged
in the complaint [is] reasonable, and whether the mechanisms to enforce
the final judgment are clear and manageable''); United States v.
Charleston Area Med. Ctr., Inc., No. 2:16-3664, 2016 U.S. Dist. LEXIS
145963, at *5 (S.D.W. Va. Oct. 21, 2016) (``In evaluating whether the
proposed final judgment is in the public interest, the inquiry is `a
narrow one''' (quoting Massachusetts v. Microsoft Corp., 373 F.3d 1199,
1236 (D.C. Cir. 2004))).
As the U.S. Court of Appeals for the District of Columbia Circuit
has held, under the Tunney Act, a court considers, among other things,
the relationship between the remedy secured and the specific
allegations in the government's complaint, whether the proposed Final
Judgment is sufficiently clear, whether its enforcement mechanisms are
sufficient, and whether it may positively harm third parties. See
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the
relief secured by the proposed Final Judgment, a court may not ``make
de novo determination of facts and issues.'' United States v. Western
Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993) (quotation marks
omitted); see also Microsoft, 56 F.3d at 1460-62; United States v.
Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); United States v.
Enova Corp., 107 F. Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S.
Dist. LEXIS 84787, at *3. Instead, ``[t]he balancing of competing
social and political interests affected by a proposed antitrust
[judgment] must be left, in the first instance, to the discretion of
the Attorney General.'' Western Elec. Co., 993 F.2d at 1577 (quotation
marks omitted). ``The court should also bear in mind the flexibility of
the public
[[Page 22169]]
interest inquiry: the court's function is not to determine whether the
resulting array of rights and liabilities is the one that will best
serve society, but only to confirm that the resulting settlement is
within the reaches of the public interest.'' Microsoft, 56 F.3d at 1460
(internal quotation marks omitted); see also United States v. Deutsche
Telekom AG, No. 19-2232 (TJK), 2020 U.S. Dist. LEXIS 65096, at *12
(D.D.C. Apr. 14, 2020). More demanding requirements would ``have
enormous practical consequences for the government's ability to
negotiate future settlements,'' contrary to congressional intent.
Microsoft, 56 F.3d at 1456. ``The Tunney Act was not intended to create
a disincentive to the use of the consent [judgment].'' Id.
The United States' predictions about the efficacy of the remedy are
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at
1461 (recognizing courts should give ``due respect to the Justice
Department's . . . view of the nature of its case''); United States v.
Republic Servs., Inc., 723 F. Supp. 2d 157, 160 (D.D.C. 2010) (noting
``the deferential review to which the government's proposed remedy is
accorded''); United States v. Archer-Daniels-Midland Co., 272 F. Supp.
2d 1, 6 (D.D.C. 2003) (``A district court must accord due respect to
the government's prediction as to the effect of proposed remedies, its
perception of the market structure, and its view of the nature of the
case.''). The ultimate question is whether ``the remedies [obtained by
the Final Judgment are] so inconsonant with the allegations charged as
to fall outside of the `reaches of the public interest.' '' Microsoft,
56 F.3d at 1461.
Moreover, the Court's role under the Tunney Act is limited to
reviewing the remedy in relationship to the violations that the United
States has alleged in its Complaint and does not authorize the Court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways,
38 F. Supp. 3d at 75 (noting that the court must simply determine
whether there is a factual foundation for the government's decisions
such that its conclusions regarding the proposed settlements are
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``[T]he
`public interest' is not to be measured by comparing the violations
alleged in the complaint against those the court believes could have,
or even should have, been alleged.''). Because the ``court's authority
to review the decree depends entirely on the government's exercising
its prosecutorial discretion by bringing a case in the first place,''
it follows that ``the court is only authorized to review the decree
itself,'' and not to ``effectively redraft the complaint'' to inquire
into other matters that the United States did not pursue. Microsoft, 56
F.3d at 1459-60. Further, ``[i]n evaluating objections to settlement
agreements under the Tunney Act, a court must be mindful that [t]he
government need not prove that the settlements will perfectly remedy
the alleged antitrust harms[;] it need only provide a factual basis for
concluding that the settlements are reasonably adequate remedies for
the alleged harms.'' United States v. Iron Mountain, Inc., 217 F. Supp.
3d 146, 152-53 (D.D.C. 2016) (internal citations omitted). The Court's
authority is essentially binary: it may approve a proposed final
judgment that falls within the ``reaches of the public interest,'' or
it may reject one that does not. Microsoft, 56 F.3d at 1461-62. ``Short
of that eventuality, the Tunney Act cannot be interpreted as an
authorization for a district judge to assume the role of Attorney
General.'' Id. at 1462.\3\
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\3\ If the Court concludes that the proposed Final Judgment is
not in the public interest, each party must then determine its next
steps for the litigation, which may include continuing to litigate
the case, attempting to settle the case on different terms, or
Plaintiffs' dismissing the case
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In its 2004 amendments to the Tunney Act, Congress made clear its
intent to preserve the practical benefits of using judgments proposed
by the United States in antitrust enforcement and added the unambiguous
instruction that ``[n]othing in this section shall be construed to
require the court to conduct an evidentiary hearing or to require the
court to permit anyone to intervene.'' Public Law 108-237, 221, 118
Stat. 668-69 (codified as amended at 15 U.S.C. 16(e)(2)); see also U.S.
Airways, 38 F. Supp. 3d at 76 (indicating that a court is not required
to hold an evidentiary hearing or to permit intervenors as part of its
review under the Tunney Act). This language explicitly wrote into the
statute what Congress intended when it first enacted the Tunney Act in
1974. As Senator Tunney explained: ``The court is nowhere compelled to
go to trial or to engage in extended proceedings which might have the
effect of vitiating the benefits of prompt and less costly settlement
through the consent [judgment] process.'' 119 Cong. Rec. 24,598 (1973)
(statement of Sen. Tunney). ``A court can make its public interest
determination based on the competitive impact statement and response to
public comments alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citing
Enova Corp., 107 F. Supp. 2d at 17).
III. The Complaint and the Proposed Final Judgment
The Complaint alleges that Constellation's proposed acquisition of
Calpine was likely to substantially lessen competition for wholesale
electricity in ERCOT and PJM Coastal Mid-Atlantic, in violation of 15
U.S.C. 18.
Constellation is a Pennsylvania corporation headquartered in
Baltimore, Maryland, and is one of the largest electric generation
companies in the nation, as measured by owned and contracted megawatts.
Dkt. 7-1 at ] 9. Calpine is a Delaware corporation headquartered in
Houston, Texas, and is the largest generator of electricity from
natural gas and geothermal resources in the United States. Id. at ] 12.
Constellation's acquisition of Calpine would have eliminated the
direct competition between Constellation and Calpine and enhanced
Constellation's post-Transaction ability and incentive to withhold
electricity to raise wholesale electricity price anticompetitively in
those markets. Id. at ] 36.
The proposed Final Judgment provides an effective and appropriate
remedy for the likely competitive harms arising from the Transaction.
The proposed Final Judgment has several components, which the parties
agreed to abide by during the pendency of the Tunney Act proceeding,
and which the Court ordered in entering the Stipulation and Order on
January 2, 2026. Dkt. 25.
First, Defendants must divest the Divestiture Assets to acquirers
acceptable to the United States in its sole discretion, after
consultation with Texas. Dkt. 2-2 at 10-12.
Second, the proposed Final Judgment contains provisions intended to
facilitate the acquirers' efforts to hire certain employees. The
Defendants must cooperate with and assist any Acquirer(s) in
identifying the ``Relevant Personnel,'' who are full-time, part time,
or contract employees of the Defendants who are stationed at or
assigned to a specific Divestiture Asset and are involved in its
operations. Id. at 13-14. The Defendants must make such Relevant
Personnel available for interview and must not interfere with any
effort by an Acquirer to employ any Relevant Personnel. Id. at 14-15.
Third, the proposed Final Judgment requires Defendants to warrant
that the Divestiture Assets are operational and without material defect
on the date of their transfer and to use best efforts to assist an
Acquirer to obtain all
[[Page 22170]]
necessary licenses, registrations, and permits. Id. at 15-16.
The proposed Final Judgment also includes robust mechanisms that
will allow the United States and the Court to monitor the effectiveness
of the relief and to enforce compliance. For example, the proposed
Final Judgment provides that the United States may apply to this Court
for the appointment of divestiture trustee if the Defendants have not
divested all of the Divesture Assets within a 240-day period set out in
the proposed Final Judgment. Id. at 16. Upon appointment, that
divestiture trustee will have the sole right to sell the Divestiture
Assets to an acquirer or acquirers acceptable to the United States, in
its sole discretion, after consultation with Texas. Id. at 16-17.
In addition, the proposed Final Judgment provides the United States
with the ability to investigate Defendants' compliance with the Final
Judgment and expressly retains and reserves all rights for the United
States to enforce the provisions of the proposed Final Judgment,
including its rights to seek an order of contempt from the Court. Id.
at 22-25.
Together, these requirements of the proposed Final Judgment will
preserve competition for wholesale electricity in the ERCOT and PJM
Coastal Mid-Atlantic markets.
IV. Summary of Public Comment and the United States' Response
The United States received a single public comment about the
proposed Final Judgment. This comment was submitted by the Pennsylvania
Office of Consumer Advocate (the ``PA OCA''), an entity established by
the Pennsylvania General Assembly in 1976 to represent Pennsylvania
consumers in matters involving their utility service.\4\ In its
comment, the PA OCA begins by ``appreciat[ing] the Antitrust Division's
engagement in addressing competitive concerns'' arising from the
Transaction and the Division's ``commitment to safeguarding competition
in electricity markets.'' Exhibit A at 1. The PA OCA then raises two
state-specific Pennsylvania issues. First, the PA OCA notes that the
proposed Final Judgment does not address the Transaction's potential
effects on the default service supply procurements in the PJM wholesale
market that the Pennsylvania local utilities conduct to meet their
provider of last resort obligations for retail electricity consumers.
Id. at 1-2. Second, the PA OCA notes that the proposed Final Judgment
does not address the potential impacts of the Transaction on
Pennsylvania's retail electricity market. Id. at 2. The PA OCA notes
that it is considering these issues ``and the appropriate state and
federal administrative forums'' in which these might be addressed. Id.
The PA OCA concludes by ``thank[ing] the Antitrust Division for its
important work in this matter.'' Id.
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\4\ See <a href="http://www.oca.pa.gov">www.oca.pa.gov</a>.
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The issues raised by the PA OCA's comment relate to retail
electricity markets, not the wholesale electricity markets alleged in
the Complaint, and do not suggest that the proposed remedy obtained by
the Division is inadequate to resolve the competitive harm the
Transaction would create in those wholesale electricity markets.
Accordingly, because the PA OCA's comment does not relate to whether
the proposed Final Judgment reasonably addresses the harms alleged in
the Complaint, it falls outside the scope of this Tunney Act proceeding
and does not provide a basis for rejecting the proposed Final Judgment.
See U.S. Airways, 38 F. Supp. 3d at 76 (``[T]he Court's role under the
[Tunney Act] is limited to reviewing the remedy in relationship to the
violations that the United States has alleged in its Complaint.'')
(internal citation omitted).
V. Conclusion
After careful consideration of the one public comment received, the
United States continues to believe the proposed Final Judgment provides
an effective and appropriate remedy for the antitrust violations
alleged in the Complaint and is therefore in the public interest. The
public comment and this response will be published in the Federal
Register, as required by 15 U.S.C. 16(d).
After publication of the comment, the United States will move this
Court to enter the proposed Final Judgment.
Dated: April 9, 2026
Respectfully Submitted,
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Joseph Chandra Mazumdar
Joseph Chandra Mazumdar, Jeremy Evans (DC Bar #478097), United
States Department of Justice, Antitrust Division, 450 Fifth Street,
NW, Suite 8000, Washington, DC 20530, Tel: (202) 353-1560, Email:
<a href="/cdn-cgi/l/email-protection#a0c3c8c1ce8ecdc1dad5cdc4c1d2e0d5d3c4cfca8ec7cfd6"><span class="__cf_email__" data-cfemail="016269606f2f6c607b746c656073417472656e6b2f666e77">[email protected]</span></a>, Counsel for Plaintiff United States.
EXHIBIT A
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[FR Doc. 2026-08095 Filed 4-23-26; 8:45 am]
BILLING CODE 4410-11-P
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