United States v. Third Point Offshore Fund, Ltd., et al.; Proposed Final Judgment and Competitive Impact Statement
Federal Register, Volume 80 Issue 168 (Monday, August 31, 2015)
Federal Register Volume 80, Number 168 (Monday, August 31, 2015)
Notices
Pages 52500-52509
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2015-21534
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Third Point Offshore Fund, Ltd., et al.; Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in United States v. Third Point Offshore Fund, Ltd. et al., Civil Action No. 1:15-cv-01366. On August 24, 2015, the United States filed a Complaint alleging that Third Point Offshore Fund, Ltd., Third Point Ultra, Ltd., and Third Point Partners Qualified L.P. (collectively ``the Defendant Funds'') violated the premerger
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notification and reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 18a in connection with the acquisition of voting securities of Yahoo! Inc. The proposed Final Judgment, filed at the same time as the Complaint, prohibits the Defendant Funds, along with Defendant Third Point LLC, from acquiring a reportable amount of voting securities of an issuer in reliance on the exemption from the HSR Act of acquisitions made solely for the purpose of investment if they have taken certain specified actions in the four months prior to the acquisition.
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), on the Department of Justice's Web site at http://www.justice.gov/atr, and at the Office of the Clerk of the United States District Court for the District of Columbia. Copies of these materials may be obtained from the Antitrust Division upon request and payment of the copying fee set by Department of Justice regulations.
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the U.S. Department of Justice, Antitrust Division's internet Web site, filed with the Court and, under certain circumstances, published in the Federal Register. Comments should be directed to Daniel P. Ducore, Special Attorney, c/o Federal Trade Commission, Washington, DC 20580, dducore@ftc.gov (telephone: 202-326-2526).
Patricia A. Brink,
Director of Civil Enforcement.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
United States of America, c/o Department of Justice, Washington, D.C. 20530, Plaintiff, v. Third Point Offshore Fund, Ltd., c/o Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands, Third Point Ultra, Ltd., c/o Walkers Chambers, 171 Main Street, P.O. Box 92, Road Town, Tortola, British Virgin Islands, Third Point Partners Qualified L.P., 390 Park Ave, 19th Floor, New York, NY 10022, and Third Point, LLC, 390 Park Ave., 19th Floor, New York, NY 10022, Defendants.
Case No.: 1:15-cv-01366
Judge: Ketanji Brown Jackson
Filed: 08/24/2015
COMPLAINT FOR INJUNCTIVE RELIEF FOR FAILURE TO COMPLY WITH THE PREMERGER REPORTING AND WAITING REQUIREMENTS OF THE HART-SCOTT-RODINO ACT
The United States of America, Plaintiff, by its attorneys, acting under the direction of the Attorney General of the United States and at the request of the Federal Trade Commission, brings this civil antitrust action to obtain injunctive relief against Defendants Third Point Offshore Fund, Ltd. (``Third Point Offshore''), Third Point Ultra, Ltd. (``Third Point Ultra''), Third Point Partners Qualified L.P. (``Third Point Partners'') (collectively, ``Defendant Funds''), and Third Point LLC (together with the Defendant Funds collectively, ``Defendants''). Plaintiff alleges as follows:
NATURE OF THE ACTION
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Defendant Funds violated the notice and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 18a (``HSR Act'' or ``Act''), with respect to the acquisition of voting securities of Yahoo! Inc. (``Yahoo'') in August and September 2011.
JURISDICTION AND VENUE
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This Court has jurisdiction over the subject matter of this action pursuant to Section 7A(g) of the Clayton Act, 15 U.S.C. 18a(g), and pursuant to 28 U.S.C. 1331, 1337(a), 1345, and 1355, and over the Defendants by virtue of Defendants' consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District.
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Venue is properly based in this District by virtue of Defendants' consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District.
THE DEFENDANTS
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Defendant Third Point Offshore is an offshore fund organized under the laws of the Cayman Islands, with its principal office and place of business c/o Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands.
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Defendant Third Point Ultra is an offshore fund organized under the laws of the British Virgin Islands, with its principal office and place of business c/o Walkers Chambers, 171 Main Street, Road Town, Tortola, British Virgin Islands.
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Defendant Third Point Partners is a limited partnership organized under the laws of the State of Delaware, with its principal office and place of business at 390 Park Avenue, 19th Floor, New York, NY 10022.
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Defendant Third Point LLC is a limited liability company organized under the laws of the State of Delaware, with its principal office and place of business at 390 Park Avenue, 19th Floor, New York, NY 10022. Third Point LLC makes all the investment decisions for each of the Defendant Funds, including decisions to nominate a candidate to the board of directors of a company in which Defendants have invested or to launch a proxy fight to obtain board representation on behalf of Defendants.
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Defendants are engaged in commerce, or in activities affecting commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 18a(a)(1). At all times relevant to this complaint, each Defendant Fund had total assets in excess of $13.2 million.
OTHER ENTITIES
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Yahoo is a corporation organized under the laws of Delaware with its principal place of business at 701 First Avenue, Sunnyvale, CA 94089. Yahoo is engaged in commerce, or in activities affecting commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 18a(a)(1). At all times relevant to this complaint, Yahoo had annual net sales in excess of $131.9 million.
THE HART-SCOTT-RODINO ACT AND RULES
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The HSR Act requires certain acquiring persons and certain persons whose voting securities or assets are acquired to file notifications with the federal antitrust agencies and to observe a waiting period before consummating certain acquisitions of voting securities or assets. 15 U.S.C. 18a(a) and (b). The HSR Act's notification and waiting period are intended to give the federal antitrust agencies prior notice of, and information about, proposed transactions. The waiting period is also intended to provide the federal antitrust agencies with an opportunity to investigate a proposed transaction and to determine whether to seek an injunction to prevent the consummation of a transaction that may violate the antitrust laws.
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The HSR Act's notification and waiting period requirements apply to acquisitions that meet the HSR Act's thresholds, which are adjusted annually. During the period of 2011
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pertinent to this Complaint, the HSR Act's reporting and waiting period requirements applied to transactions that would result in the acquiring person holding more than $66 million, if certain size of person tests were met, except for certain exempted transactions.
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Section (c)(9) of the HSR Act, 15 U.S.C. 18a(c)(9), exempts from the requirements of the HSR Act acquisitions of voting securities ``solely for the purpose of investment'' if, as a result of the acquisition, the securities held do not exceed 10 percent of the outstanding voting securities of the issuer.
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Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. 18a(d)(2), the Federal Trade Commission promulgated rules to carry out the purpose of the HSR Act. 16 CFR 801-03 (``HSR Rules''). The HSR Rules, among other things, define terms contained in the HSR Act.
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Section 801.2(a) of the HSR Rules, 16 CFR 801.2(a), provides that ``any person which, as a result of an acquisition, will hold voting securities'' is deemed an ``acquiring person.''
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Section 801.1(a)(1) of the HSR Rules, 16 CFR 801.1(a)(1), provides that the term ``person'' means ``an ultimate parent entity and all entities which it controls directly or indirectly.''
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Section 801.1(a)(3) of the HSR Rules, 16 CFR 801.1(a)(3), provides that the term ``ultimate parent entity'' means ``an entity which is not controlled by any other entity.''
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Each of the Defendant Funds is its own ultimate parent entity and Defendant Third Point LLC does not control any of the Defendant Funds within the meaning of the HSR Rules.
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Pursuant to Section 801.13(a)(1) of the HSR Rules, 16 CFR 801.13(a)(1), ``all voting securities of an issuer which will be held by the acquiring person after the consummation of an acquisition''--
including any held before the acquisition--are deemed held ``as a result of'' the acquisition at issue.
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Pursuant to Sections 801.13(a)(2) and 801.10(c)(1) of the HSR Rules, 16 CFR 801.13(a)(2) and 801.10(c)(1), the value of voting securities already held is the market price, defined to be the lowest closing price within 45 days prior to the subsequent acquisition.
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Section 801.1(i)(1) of the HSR Rules, 16 CFR 801.1(i)(1), defines the term ``solely for the purpose of investment'' as follows:
Voting securities are held or acquired ``solely for the purpose of investment'' if the person holding or acquiring such voting securities has no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer.
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Section 7A(g)(2) of the Clayton Act, 15 U.S.C. 18a(g)(2), provides that if any person fails substantially to comply with the notification requirement under the HSR Act, the district court may grant such equitable relief as the court in its discretion determines necessary or appropriate, upon application of the Federal Trade Commission or the Assistant Attorney General.
VIOLATIONS ALLEGED
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Plaintiff alleges and incorporates paragraphs 1 through 21 as if set forth fully herein.
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On or about August 8, 2011, Third Point LLC began acquiring voting securities of Yahoo on behalf of the Defendant Funds. In general, the voting securities were allocated to each Defendant Fund, as well as to other investment funds managed by Third Point LLC, in proportion to such fund's total capital. These acquisitions were accomplished by open market purchases through the NASDAQ Stock Market. Defendant Funds continued to acquire voting securities of Yahoo after August 8, 2011. Other than the Defendant Funds, no fund managed by Third Point LLC held Yahoo voting securities in excess of the HSR threshold.
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On or about August 10, 2011, Defendant Third Point Offshore's aggregate value of Yahoo voting securities exceeded $66 million.
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On or about August 17, 2011, Defendant Third Point Ultra's aggregate value of Yahoo voting securities exceeded $66 million.
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On or about August 30, 2011, Defendant Third Point Partners' aggregate value of Yahoo voting securities exceeded $66 million.
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Third Point LLC continued to acquire voting securities of Yahoo on behalf of the Defendant Funds through September 8, 2011, when Third Point LLC filed a Schedule 13D with the Securities and Exchange Commission publicly disclosing the Defendant Funds' holdings in Yahoo.
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The transactions described in Paragraphs 24 through 27 were subject to the notification and waiting periods of the HSR Act and the HSR Rules. The HSR Act and HSR Rules in effect during the time period pertinent to this proceeding required that each Defendant Fund file a notification and report form with the Department of Justice and the Federal Trade Commission and observe a waiting period before acquiring and holding an aggregate total amount of voting securities of Yahoo in excess of $66 million.
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The Defendant Funds did not comply with the reporting and waiting period requirements of the HSR Act and HSR Rules in connection with the transactions described in Paragraphs 24 through 27.
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Defendants cannot demonstrate that any of the HSR Act's exemptions applied to the transactions described in Paragraphs 24 through 27. In particular, Defendants' intent when making these acquisitions was inconsistent with the exemption for acquisitions made ``solely for the purpose of investment.'' Defendants' intent to acquire voting securities of Yahoo other than solely for the purpose of investment is evidenced by the following acts, among others, contemporaneous with the acquisitions. Defendants and/or their agents: contacted certain individuals to gauge their interest and willingness to become the CEO of Yahoo or a potential board candidate of Yahoo; took other steps to assemble an alternate slate of board of directors for Yahoo; drafted correspondence to Yahoo to announce that Third Point LLC was prepared to join the board of Yahoo; internally deliberated the possible launch of a proxy battle for directors of Yahoo; and made public statements that they were prepared to propose a slate of directors at Yahoo's next annual meeting.
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On or about September 16, 2011, each of the Defendant Funds filed a notification and report form under the HSR Act with the Department of Justice and the Federal Trade Commission. The waiting period relating to these filings expired on or about October 17, 2011.
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Defendant Third Point Offshore was in violation of the HSR Act each day during the period beginning on August 10, 2011, and ending on or about October 17, 2011.
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Defendant Third Point Ultra was in violation of the HSR Act each day during the period beginning on August 17, 2011, and ending on or about October 17, 2011.
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Defendant Third Point Partners was in violation of the HSR Act each day during the period beginning on August 30, 2011, and ending on or about October 17, 2011.
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Section (g)(2) of the HSR Act, 15 U.S.C. 18a(g)(2), provides that if any person fails substantially to comply with the notification requirement under the HSR Act, the district court may grant such equitable relief as the court in its discretion determines necessary or appropriate.
REQUESTED RELIEF
Wherefore, Plaintiff requests:
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That the Court adjudge and decree that Defendant Third Point Offshore's acquisition of Yahoo voting securities on August 10, 2011, without having
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filed a notification and report form and observed a waiting period, violated the HSR Act; and that Defendant Third Point Offshore was in violation of the HSR Act each day from August 8, 2011, through October 17, 2011;
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That the Court adjudge and decree that Defendant Third Point Ultra's acquisition of Yahoo voting securities on August 17, 2011, without having filed a notification and report form and observed a waiting period, violated the HSR Act; and that Defendant Third Point Ultra was in violation of the HSR Act each day from August 17, 2011, through October 17, 2011;
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That the Court adjudge and decree that Defendant Third Point Partners' acquisition of Yahoo voting securities on August 30, 2011, without having filed a notification and report form and observed a waiting period, violated the HSR Act; and that Defendant Third Point Partners was in violation of the HSR Act each day from August 30, 2011, through October 17, 2011;
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That the Court adjudge and decree that Defendant Third Point LLC had the power and authority to prevent the violations by the Defendant Funds, and that relief against Third Point LLC is necessary and appropriate to ensure future compliance with the HSR Act by the Defendant Funds.
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That the Court issue an appropriate injunction preventing future violations by the Defendants as provided by the HSR Act, 15 U.S.C. 18a(g)(2);
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That the Court order such other and further relief as the Court may deem just and proper; and
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That the Court award the Plaintiff its costs of this suit.
Dated: August 24, 2015
Respectfully submitted,
FOR THE PLAINTIFF UNITED STATES OF AMERICA:
___/s/___
William J. Baer (D.C. Bar #324723)
Assistant Attorney General
Department of Justice
Antitrust Division
Washington, DC 20530
___/s/___
Daniel P. Ducore (D.C. Bar #933721)
Elizabeth A. Piotrowski (D.C. Bar #348052)
Kenneth A. Libby
Jennifer Lee
Special Attorneys
Federal Trade Commission
Washington, DC 20580
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff, v. THIRD POINT OFFSHORE FUND, LTD., THIRD POINT ULTRA, LTD., THIRD POINT PARTNERS QUALIFIED L.P., and THIRD POINT, LLC, Defendants.
CASE NO.: 1:15-cv-01366
JUDGE: Ketanji Brown Jackson
FILED: 08/24/2015
COMPETITIVE IMPACT STATEMENT
The United States, pursuant to the Antitrust Procedures and Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement to set forth the information necessary to enable the Court and the public to evaluate the proposed Final Judgment that would terminate this civil antitrust proceeding.
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NATURE AND PURPOSE OF THIS PROCEEDING
On August 24, 2015, the United States filed a Complaint against Third Point Offshore Fund, Ltd. (``Offshore''), Third Point Ultra, Ltd. (``Ultra''), Third Point Partners Qualified L.P. (``Qualified'') (collectively ``the Defendant Funds''), and Third Point LLC (together with the Defendant Funds collectively, ``Defendants'') related to the Defendant Funds' acquisition of voting securities of Yahoo! Inc. (``Yahoo'') in 2011.
The Complaint alleges that the Defendant Funds violated Section 7A of the Clayton Act, 15 U.S.C. 18a, commonly known as the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 (the ``HSR Act''). The HSR Act requires certain acquiring and acquired parties to file pre-
acquisition Notification and Report Forms with the Department of Justice and the Federal Trade Commission (collectively, the ``federal antitrust agencies'' or ``agencies'') and to observe a statutorily mandated waiting period before consummating their acquisition.\1\ The fundamental purpose of the notification and waiting period is to allow the agencies an opportunity to conduct an antitrust review of proposed transactions that meet the HSR Act's jurisdictional thresholds before they are consummated. The Complaint alleges that the Defendant Funds each acquired voting securities of Yahoo in excess of the statutory thresholds without making the required filings with the agencies and without observing the waiting period, and that the Defendant Funds and Yahoo each meet the statutory size of person threshold.
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\1\ The HSR Act requires that ``no person shall acquire, directly or indirectly, any voting securities of any person'' exceeding certain thresholds until both have made premerger notification filings and the post-filing waiting period has expired. 15 U.S.C. 18a(a). The post-filing waiting period is either 30 days after filing or, if the relevant federal antitrust agency requests additional information, 30 days after the parties comply with the agency's request. 15 U.S.C. 18a(b). The agencies may grant early termination of the waiting period, 15 U.S.C. 18a(b)(2), and often do so when an acquisition poses no competitive problems.
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The Complaint further alleges that the Defendant Funds could not rely on the HSR Act's exemption for acquisitions made solely for the purpose of investment (``investment-only exemption'') because they could not show they had ``no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer,'' as the exemption is defined in the rules promulgated under the HSR Act. See 16 CFR 801.1(i)(1). The Complaint alleges that the Defendants and/or their agents engaged in a number of acts that showed an intent inconsistent with the exemption. The Complaint seeks an adjudication that the Defendant Funds' acquisitions of voting securities of Yahoo violated the HSR Act, and asks the Court to issue an appropriate injunction.
At the same time the Complaint was filed, the United States also filed a Stipulation and Order and proposed Final Judgment, which are designed to prevent and restrain Defendants' HSR Act violations. Under the proposed Final Judgment, which is explained more fully below, Defendants are prohibited from acquiring voting securities without observing the HSR Act's notification and waiting period requirements in reliance on the investment-only exemption if they have engaged in certain specified acts during the four (4) months prior to an acquisition that is otherwise reportable under the Act, unless they have affirmatively stated that they are not pursuing board or management representation with respect to the issuer of those voting securities.
The United States and the Defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA, unless the United States first withdraws its consent. Entry of the proposed Final Judgment would terminate this case, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and punish violations thereof. Entry of this judgment would not constitute evidence against, or an admission by, any party with respect to any issue of fact or law involved in the case and is conditioned upon the Court's finding that entry is in the public interest.
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DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATIONS OF THE ANTITRUST LAWS
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The Defendants and the Acquisitions of Yahoo Voting Securities
Offshore is an offshore fund organized under the laws of the Cayman Islands, with offices at c/o Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands. Offshore invests in securities and other investments on behalf of its investors.
Ultra is an offshore fund organized under the laws of the British Virgin Islands, with offices at c/o Walkers Chambers, 171 Main Street, Road Town, Tortola, British Virgin Islands. Ultra invests in securities and other investments on behalf of its investors.
Partners is a limited partnership organized under the laws of the State of Delaware, with offices at 390 Park Avenue, 19th Floor, New York, NY 10022. Partners invests in securities and other investments on behalf of its partners.
Third Point LLC is a limited liability company organized under the laws of the State of Delaware, with its principal place of business at 390 Park Avenue, 19th Floor, New York, NY 10022. Third Point LLC makes all the investment decisions for each of the Defendant Funds, including decisions to nominate a candidate to the board of directors of a company in which Defendants have invested, or to launch a proxy fight to obtain board representation on behalf of Defendants.
On August 8, 2011, Third Point LLC began acquiring voting securities of Yahoo on behalf of the Defendant Funds. In general, the voting securities were allocated to each Defendant Fund, as well as to other investment funds managed by Third Point LLC, in proportion to such fund's total capital. Other than the Defendant Funds, no fund managed by Third Point LLC held Yahoo voting securities in excess of the HSR threshold.
On August 10, 2011, the value of Offshore's holdings of Yahoo voting securities exceeded the HSR Act's $66 million size-of-
transaction threshold then in effect. On August 17, 2011, the value of Ultra's holdings of Yahoo voting securities exceeded $66 million. On August 30, 2011, the value of Partners' holdings of Yahoo voting securities exceeded $66 million. Third Point LLC continued to acquire voting securities of Yahoo on behalf of the Defendant Funds through September 8, 2011, when Third Point LLC filed a Schedule 13D with the Securities and Exchange Commission publicly disclosing the Defendant Funds' holdings in Yahoo.
On September 16, 2011, the Defendant Funds each filed a Notification and Report Form under the HSR Act with the federal antitrust agencies to acquire voting securities of Yahoo. The waiting period on the Notification and Report Forms expired on October 17, 2011.
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The Defendant Funds' Unlawful Conduct
Compliance with the HSR Act is critical to the federal antitrust agencies' ability to investigate large acquisitions before they are consummated, prevent acquisitions determined to be unlawful under Section 7 of the Clayton Act (15 U.S.C. 18), and design effective divestiture relief when appropriate. Before Congress enacted the HSR Act, the federal antitrust agencies often were forced to investigate anticompetitive acquisitions that had already been consummated without public notice. In those situations, the agencies' only recourse was to sue to unwind the parties' merger. The combined entity usually had the incentive to delay litigation, and years often passed before the case was adjudicated and relief was pursued or obtained. During this extended time, consumers were harmed by the reduction in competition between the merging parties and, even after the court's adjudication, effective relief was often impossible to achieve. Congress enacted the HSR Act to address these problems and to strengthen and improve antitrust enforcement by giving the agencies an opportunity to investigate certain large acquisitions before they are consummated.
As alleged in the Complaint, the Defendant Funds each acquired in excess of $66 million in voting securities of Yahoo without complying with the pre-merger notification and waiting period requirements of the HSR Act. Defendants' failure to comply undermined the statutory scheme and the purpose of the HSR Act by precluding the agencies' timely review of the Defendants' acquisitions.
The Complaint further alleges that the Defendant Funds could not rely on the HSR Act's investment-only exemption because, at the time of the acquisitions, they were engaging in activities that evidenced an intent inconsistent with the exemption. Namely, the Defendants and/or their agents contacted certain individuals to gauge their interest and willingness to become the CEO of Yahoo or a potential board candidate of Yahoo; took other steps to assemble an alternate slate of board of directors for Yahoo; drafted correspondence to Yahoo to announce that Third Point LLC was prepared to join the board of Yahoo (i.e., propose Third Point people as candidates for the board of Yahoo); internally deliberated the possible launch of a proxy battle for directors of Yahoo; and made public statements that they were prepared to propose a slate of directors at Yahoo's next annual meeting. These actions were inconsistent with the exemption's requirement that an acquiring person have ``no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer.'' See 16 CFR 801.1(i)(1).
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EXPLANATION OF THE PROPOSED FINAL JUDGMENT
The proposed Final Judgment contains injunctive relief designed to prevent future violations of the HSR Act. The proposed Final Judgment sets forth specific prohibited conduct, requires that the Defendants maintain a compliance program, and provides access and inspection procedures to enable the United States to determine and ensure compliance with the Final Judgment. The acts that are prohibited by the proposed Final Judgment are not the only activities that might show an intention inconsistent with the investment-only exemption; they are, however, the actions in which the Defendants engaged in this particular case and are therefore appropriately prohibited by the resolution of this case.
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Prohibited Conduct
Section IV of the proposed Final Judgment is designed to prevent future HSR Act violations of the sort alleged in the Complaint. Under this provision, Defendants may not consummate acquisitions of voting securities that would otherwise be subject to the HSR Act's Notification and Reporting requirements, and not otherwise exempt, in reliance on the investment-only exemption if, at the time of an acquisition of a particular issuer, or in the four (4) months prior to the acquisition, Defendants have engaged in certain specified activities. These activities are: Nominating a candidate for the board of directors of the issuer; proposing corporate action requiring shareholder approval; soliciting proxies with respect to such issuer; having a representative serve as an officer or director of the issuer; being a competitor of the issuer; doing any of the above activities with regard to an entity controlled by the issuer; inquiring of a third party as to his or her interest in being a candidate for the board or chief executive officer of the issuer, and not
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abandoning such efforts; communicating with the issuer about potential candidates for the board or chief executive officer of the issuer, and not abandoning such efforts; or assembling a list of possible candidates for the board or chief executive officer of the issuer, if done through, at the instruction of, or with the knowledge of the chief executive officer of Third Point LLC or a person who has the authority to act for Third Point LLC with respect to finding candidates for the board or management.
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Compliance
Section V of the proposed Final Judgment sets forth required compliance procedures. Section V sets up an affirmative compliance program directed toward ensuring Defendants' compliance with the limitations imposed by the proposed Final Judgment. The compliance program includes the designation of a compliance officer, who is required to distribute a copy of the Final Judgment to each present and succeeding person who has responsibility for or authority over acquisitions of voting securities by Defendants, and to obtain a certification from each such person that he or she has received a copy of the Final Judgment and understands his or her obligations under the judgment. Additionally, the compliance officer is tasked with providing written instructions, on an annual basis, to all of Defendants' employees regarding the prohibitions contained in the Final Judgment. Lastly, Defendants must file an annual statement with the United States detailing the manner of their compliance with the Final Judgment, including a list of all acquisitions in which they have relied on the investment-only exemption.
To facilitate monitoring Defendants' compliance with the Final Judgment, Section VI grants duly authorized representatives of the United States Department of Justice (``DOJ'') access, upon reasonable notice, to Defendants' records and documents relating to matters contained in the Final Judgment. Defendants must also make its personnel available for interviews or depositions regarding such matters. In addition, Defendants must, upon written request from duly authorized representatives of the Assistant Attorney General in charge of the DOJ's Antitrust Division, submit written reports relating to matters contained in the Final Judgment.
These provisions are designed to prevent recurrence of the type of illegal conduct alleged in the Complaint and ensure that, in future transactions, Defendants do not improperly rely on the HSR Act's investment-only exemption.
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REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal district court to recover three times the damages the person has suffered, as well as the costs of bringing a lawsuit and reasonable attorney's fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no effect as prima facie evidence in any subsequent private lawsuit that may be brought against Defendants.
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PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by this Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon this Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed injunction contained in the Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the Federal Register, or the last date of publication in a newspaper of the summary of this Competitive Impact Statement, whichever is later. The United States will evaluate and respond to comments. All comments received during this period will be considered by the United States, which remains free to withdraw its consent to the proposed Final Judgment at any time prior to entry. The comments and the response of the United States will be filed with this Court and published in the Federal Register. Written comments should be submitted to: Daniel P. Ducore, Special Attorney, United States, c/o Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580, dducore@ftc.gov.
The proposed Final Judgment provides that this Court retains jurisdiction over this action, and the parties may apply to this Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
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ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT
As an alternative to the proposed Final Judgment, the United States considered a full trial on the merits against the Defendants, including an action for civil penalties. In determining not to seek civil penalties, the United States considered a variety of factors. Chief among them were the fact that the Defendants have no previous record of HSR violations, and that they made their HSR filings within just a few weeks after the date on which they should have filed under the appropriate interpretation of the exemption. In these circumstances, the United States is satisfied that the proposed injunctive relief is sufficient to address the violation alleged in the Complaint and has the added advantage that it gives guidance to similarly-situated entities in the future.
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STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT
The APPA requires that injunctions of anticompetitive conduct contained in proposed consent judgments in antitrust cases brought by the United States be subject to a sixty (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 statute 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
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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); see generally United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (assessing public interest standard under the Tunney Act); United States v. U.S. Airways Group, Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (noting the court has broad discretion of the adequacy of the relief at issue); United States v. InBev N.V./S.A., No. 08-1965 (JR), 2009-2 Trade Cas. (CCH) 76,736, 2009 U.S. Dist. LEXIS 84787, at *3, (D.D.C. Aug. 11, 2009) (noting that the court's review of a consent judgment is limited and only inquires ``into whether the government's determination that the proposed remedies will cure the antitrust violations alleged in the complaint was reasonable, and whether the mechanism to enforce the final judgment are clear and manageable.'').\2\
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\2\ The 2004 amendments substituted ``shall'' for ``may'' in directing relevant factors for court to consider and amended the list of factors to focus on competitive considerations and to address potentially ambiguous judgment terms. Compare 15 U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004 amendments ``effected minimal changes'' to Tunney Act review).
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As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties. See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the relief secured by the decree, a court may not ``engage in an unrestricted evaluation of what relief would best serve the public.'' United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, at *3. Courts have held that:
the balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court's role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether the settlement is ``within the reaches of the public interest.'' More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\3\ In determining whether a proposed settlement is in the public interest, a district court ``must accord deference to the government's predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d at 17; see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that a court should not reject the proposed remedies because it believes others are preferable); Microsoft, 56 F.3d at 1461 (noting the need for courts to be ``deferential to the government's predictions as to the effect of the proposed remedies''); United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the United States' prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case).
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\3\ Cf. BNS, 858 F.2d at 464 (holding that the court's ``ultimate authority under the APPA is limited to approving or disapproving the consent decree''); United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the court is constrained to ``look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass''). See generally Microsoft, 56 F.3d at 1461 (discussing whether ``the remedies obtained in the decree are so inconsonant with the allegations charged as to fall outside of the `reaches of the public interest''').
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Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. ``A proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.''' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also U.S. Airways, 38 F. Supp. 3d at 76 (noting that room must be made for the government to grant concessions in the negotiation process for settlements (citing Microsoft, 56 F.3d at 1461)); United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even though the court would have imposed a greater remedy). To meet this standard, the United States ``need only provide a factual basis for concluding that the settlements are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
Moreover, the court's role under the APPA 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 (``the `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. As this Court recently confirmed in SBC Communications, courts ``cannot look beyond the complaint in making the public interest determination unless the complaint is drafted so narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that ``nothing 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.'' 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). The language wrote into the statute what Congress intended when it 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 decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with
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the recognition that the court's ``scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11.\4\ 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.
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\4\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the ``Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone''); United States v. Mid-Am. Dairymen, Inc., No. 73-CV-681-W-1, 1977-1 Trade Cas. (CCH) 61,508, at 71,980, *22 (W.D. Mo. 1977) (``Absent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should . . . carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.''); S. Rep. No. 93-298, at 6 (1973) (``Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized.'').
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DETERMINATIVE DOCUMENTS
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Date: August 24, 2015
Respectfully Submitted,
Kenneth A. Libby
Special Attorney
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff, v. THIRD POINT OFFSHORE FUND, LTD., THIRD POINT ULTRA, LTD., THIRD POINT PARTNERS QUALIFIED L.P., and THIRD POINT LLC, Defendants.
CASE NO.: 1:15-cv-01366
JUDGE: Ketanji Brown Jackson
FILED: 08/24/2015
FINAL JUDGMENT
WHEREAS, Plaintiff United States of America filed its Complaint on August 24, 2015, alleging that Defendants Third Point Offshore Fund, Ltd., Third Point Ultra, Ltd., and Third Point Partners Qualified L.P. (collectively, ``Third Point Funds'') violated Section 7A of the Clayton Act (15 U.S.C. 18a, commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the ``HSR Act'')), and Plaintiff and Defendants Third Point Funds and Third Point LLC (collectively, ``Defendants''), by their respective attorneys, have consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against, or any admission by, any party regarding any such issue of fact or law;
AND WHEREAS Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
NOW, THEREFORE, before any testimony is taken, and without trial or adjudication of any issue of fact or law, and upon the consent of the parties, it is ORDERED, ADJUDGED AND DECREED:
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JURISDICTION
This Court has jurisdiction over the subject matter of this action. The Defendants consent solely for the purpose of this action and the entry of this Final Judgment that this Court has jurisdiction over each of the parties to this action and that the Complaint states a claim upon which relief can be granted.
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DEFINITIONS
As used in this Final Judgment:
(A) ``Abandonment'' means a statement that Defendants are not pursuing Board or Management Representation.
(B) ``Board or Management Representation'' means being a candidate for, or member of, the board of directors or chief executive officer of the relevant Issuer.
(C) ``Board or Management Slate'' means a Person or a group of Persons for possible Board or Management Representation.
(D) ``Covered Acquisition'' means an acquisition of Voting Securities of an Issuer that is subject to the reporting and waiting requirements of the HSR Act, 15 U.S.C. 18a, and that is not otherwise exempt from the requirements of the HSR Act, but for which Defendants have not reported under the HSR Act, in reliance on the exemption pursuant to Section (c)(9) of the HSR Act, 15 U.S.C. 18a(c)(9) (``Exemption'').
(E) ``Flat Exemption'' means a modification to the Exemption or the regulations that implement the Exemption to exempt from the reporting requirements of the HSR Act the acquisition of Voting Securities of an Issuer by any Acquiring Person, or by an Acquiring Person who is not a competitor of the Issuer, on the sole basis that the acquisition results in the Acquiring Person's holding less than a specified percentage of the outstanding Voting Securities of the Issuer.
(F) ``Issuer'' means a legal entity that issues Voting Securities.
(G) ``Person'' means any natural person.
(H) ``Third Parties'' means any Person, partnership, joint venture, firm, corporation, association, trust, unincorporated organizations, or other business, and any subsidiaries, divisions, groups or affiliates thereof, that are not Defendants or a relevant Issuer.
(I) ``Third Point LLC'' means Defendant Third Point LLC, a limited liability company organized under the laws of the State of Delaware, with its principal place of business at 390 Park Avenue, 19th Floor, New York, NY 10022.
(J) ``Third Point Management'' means the chief executive officer of Third Point LLC and/or a Person who has the authority to act for Third Point LLC with respect to Board or Management Representation.
(K) ``Third Point Offshore Fund, Ltd.'' means Defendant Third Point Offshore Fund, Ltd., an offshore fund organized under the laws of the Cayman Islands, with its registered office at Walkers, 190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands.
(L) ``Third Point Partners Qualified L.P.'' means Defendant Third Point Partners Qualified L.P., a limited partnership organized under the laws of the State of Delaware, with its principal place of business at 390 Park Avenue, 19th Floor, New York, NY 10022.
(M) ``Third Point Ultra, Ltd.'' means Defendant Third Point Ultra, Ltd., an offshore fund organized under the laws of the British Virgin Islands, with its registered office at Walkers Chambers, 171 Main Street, P.O. Box 92, Road Town, Tortola, British Virgin Islands.
(N) Other capitalized terms have the meanings as defined in the HSR Act and Regulations promulgated thereunder, 16 CFR 801-803.
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APPLICABILITY
This Final Judgment applies to all Defendants, including each of their directors, officers, managers, agents, employees, parents, subsidiaries, successors and assigns, all in their capacities as such, and to all other Persons and entities who are in active concert or participation with any of the foregoing with respect to conduct prohibited in Paragraph IV when the relevant Persons or entities have received actual notice of this Final Judgment by personal service or otherwise.
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PROHIBITED CONDUCT
Defendants are enjoined from making, directly or indirectly, a Covered Acquisition, without filing and observing the waiting period as required by the HSR Act, 15 U.S.C. 18a, if: (1) at
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the time Defendants make such Covered Acquisition, or (2) during the four (4) months preceding that time, as applicable, Defendants:
(A) Nominated a candidate for the board of directors of such Issuer;
(B) Proposed corporate action requiring shareholder approval with respect to such Issuer;
(C) Solicited proxies with respect to such Issuer;
(D) Have, or are an Associate of an entity that has, a controlling shareholder, director, officer, or employee who is simultaneously serving as an officer or director of such Issuer;
(E) Are competitors of such Issuer;
(F) Have done any of the activities identified in Paragraphs IV.A.-
IV.D. with respect to, or are a competitor of, any entity directly or indirectly controlling such Issuer;
(G) Inquired of a Third Party as to his or her interest in Board or Management Representation and did not later engage in Abandonment and communicate such Abandonment to the Third Party, unless Defendants can show that such activity occurred without the knowledge of Third Point Management;
(H) Sent a written communication to, or initiated an oral communication with, the relevant Issuer regarding Board or Management Representation by Persons employed by, affiliated with, or advanced by Defendants and did not later engage in Abandonment and communicate such Abandonment to the relevant Issuer, unless Defendants can show that such activity occurred without the knowledge of Third Point Management; or
(I) Assembled in writing a Board or Management Slate if Defendants were acting through, instructed by, or with the knowledge of Third Point Management and did not later engage in Abandonment.
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COMPLIANCE
(A) Defendants shall maintain a compliance program that shall include designating, within thirty (30) days of the entry of this Final Judgment, a Compliance Officer with responsibility for achieving compliance with this Final Judgment. The Compliance Officer shall, on a continuing basis, supervise the review of current and proposed activities to ensure compliance with this Final Judgment. The Compliance Officer shall be responsible for accomplishing the following activities:
(1) Distributing, within thirty (30) days of the entry of this Final Judgment, a copy of this Final Judgment to any Person who has responsibility for or authority over acquisitions by Defendants of Voting Securities;
(2) Distributing in a timely manner a copy of this Final Judgment to any Person who succeeds to a position described in Paragraph V.A.1.;
(3) Obtaining within sixty (60) days from the entry of this Final Judgment, and once within each calendar year after the year in which this Final Judgment is entered during the term of this Final Judgment, and retaining for the term of this Final Judgment, a written certification from each Person designated in Paragraphs V.A.1. and V.A.2. that he or she: (a) has received, read, understands, and agrees to abide by the terms of this Final Judgment; (b) understands that failure to comply with this Final Judgment may result in conviction for criminal contempt of court; and (c) is not aware of any violation of the Final Judgment; and
(4) Providing written instruction, within sixty (60) days from the entry of this Final Judgment, and once within each calendar year after the year in which this Final Judgment is entered during the term of this Final Judgment, to all employees of Third Point who are not Third Point Management: (a) not to make an inquiry of a Third Party, as described in Paragraph IV.G., or a communication with an Issuer, as described in Paragraph IV.H., without the authorization of Third Point Management; and (b) that if, without such authorization, such employee engages in an activity that may qualify as an inquiry or communication described in Paragraphs IV.G. or H., respectively, such employee shall report the event to the Compliance Officer.
(B) Within sixty (60) days of the entry of this Final Judgment, Defendants shall certify to Plaintiff that they have (1) designated a Compliance Officer, specifying his or her name, business address and telephone number; and (2) distributed the Final Judgment in accordance with Paragraph V.A.1.
(C) On or before November 30, 2016, and on or before November 30th (or, if November 30th is not a business day, the next business day) each year thereafter during the term of this Final Judgment, Defendants shall file with Plaintiff a statement (the ``Compliance Report'') as to the fact and manner of their compliance with the provisions of Paragraphs IV and V during the year preceding September 30th of the year in which the Compliance Report is filed (the ``Reporting Period''). This Compliance Report shall also contain (1) the Issuer and date of each Covered Acquisition during the Reporting Period where a Defendant held the relevant Voting Securities for more than seven (7) days; and (2) a written statement containing the following information regarding all instances, if any, of events during the Reporting Period where a non-Third Point Management employee made an inquiry of a Third Party, as described in Paragraph IV.G., or a communication with an Issuer, as described in Paragraph IV.H., without the authorization of Third Point Management, and as reported to the Compliance Officer: (i) the non-Third Point Management employee involved; (ii) the Issuer; and (iii) the date such inquiry or communication occurred.
(D) If any of Defendants' directors or officers or the Compliance Officer learns of any violation of this Final Judgment, Defendants shall within ten (10) business days make a corrective filing under the HSR Act with respect to the relevant Covered Acquisition.
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PLAINTIFF'S ACCESS AND INSPECTION
(A) For the purpose of determining or securing compliance with this Final Judgment, and subject to any legally recognized privilege, duly authorized representatives of the United States Department of Justice shall, upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1) Access during Defendants' office hours to inspect and copy, or at Plaintiff's option, to require Defendants to provide copies of all records and documents in their possession or control relating to any matters contained in this Final Judgment; and
(2) To interview, either informally or on the record, Defendants' directors, officers, employees, agents or other Persons, who may have their individual counsel present, relating to any matters contained in this Final Judgment. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
(B) Upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports, under oath if requested, relating to any of the matters contained in this Final Judgment as may be requested.
(C) No information or documents obtained by the means provided in this Final Judgment shall be divulged by the Plaintiff to any person other than an authorized representative of the executive branch of the United States or of the Federal Trade Commission, except in the course of legal proceedings
Page 52509
to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
(D) If, at the time information or documents are furnished by Defendants to Plaintiff, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, ``Subject to claim of protection under Rule 26(c)(1) of the Federal Rules of Civil Procedure,'' then the United States shall give ten (10) calendar days' notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding) to which Defendants are not a party.
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RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify or terminate any of its provisions, to enforce compliance, and to punish any violations of its provisions.
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EXPIRATION OF FINAL JUDGMENT
This Final Judgment shall expire five (5) years from the date of its entry, except that, if, during the term of this Final Judgment, the Exemption is replaced by a Flat Exemption, then the Final Judgment shall expire on the date that the Flat Exemption is effective.
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COSTS
Each party shall bear its own costs.
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PUBLIC INTEREST DETERMINATION
The entry of this Final Judgment is in the public interest.
DATED:
Court approval subject to the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16
United States District Judge
FR Doc. 2015-21534 Filed 8-28-15; 8:45 am
BILLING CODE P
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