FOR THE EASTERN DISTRICT OF VIRGINIA
TEMPORARY RESTRAINING ORDER
This matter is before the Court on Plaintiff's Emergency Motion for a Temporary Restraining Order and Preliminary Injunction. On December 18, 2008, the United States of America filed a Verified Complaint ("complaint") in the above-captioned case to obtain temporary and permanent equitable and other relief against defendant Microsemi Corporation ("Microsemi") to remedy the harm to competition allegedly caused by Microsemi's acquisition of assets of Semicoa, Inc. ("Semicoa") in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 2 of the Sherman Act, 15 U.S.C. § 2. This Court has authority under Section 15 of the Clayton Act, 15 U.S.C. § 25, and Section 4 of the Sherman Act, 15 U.S.C. § 4, as amended, to issue such temporary restraining orders ("TRO") as may be deemed just in the premises to prevent and restrain violations of the Clayton and Sherman Acts.
The attorney for the United States certified that on December 22, 2008, Microsemi was informed by telephone of its emergency motion for a TRO and was provided copies of the complaint and a draft proposed TRO, as efforts to negotiate an Agreed Order to Preserve Assets failed. The attorney for the United States also certified that on December 22, 2008, simultaneous with the filing of the emergency motion, Plaintiff provided defendant's counsel copies of the TRO motion, the proposed TRO, the memorandum in support of the motion, and declarations and exhibits in support thereof.
Upon consideration of the pleadings, declarations, memoranda, and other exhibits filed in support of the application of the United States, the Court GRANTS the Temporary Restraining Order and finds that:
1. This Court has jurisdiction over the subject matter of this case, there is good cause to believe it has jurisdiction over the parties hereto, and venue in this district is proper.
2. It appears from Plaintiff's evidence that Microsemi and Semicoa were the only manufacturers of JANS small signal transistors, which are used in spacecraft, missiles and other applications critical to the national security of the United States. Microsemi and Semicoa also were two of the three likely manufacturers of JANS 5811 diodes, which are also used in such applications.
3. On July 14, 2008, Microsemi purchased most of the assets of Semicoa, including all of the manufacturing facility and equipment used to make these transistors and diodes.
4. Enjoining Microsemi from destroying, disposing of, or ceasing operation of any asset purchased from Semicoa is necessary to ensure the Court's ability to fashion effective relief, as well as preclude irreparable injury to competition and the public interest. The evidence raises serious questions that go to the merits of the case, and the balance of hardships favors the granting of preliminary relief.
5. No security is required of any agency of the United States for issuance of a restraining order. Fed. R. Civ. P. 65(c).
THEREFORE, IT IS ORDERED AS FOLLOWS:
For the purpose of this Order, the following definitions shall apply:
A. "Microsemi" means Defendant Microsemi Corporation, a Delaware corporation with its headquarters in Irvine, CA, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
B. "Semicoa" means Semicoa, Inc., a California corporation with its headquarters in Costa Mesa, CA, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.
C. "Semicoa Assets" means all assets acquired by Microsemi from Semicoa on July 14, 2008, including but not limited to:
ORDER TO PRESERVE STATUS QUO
IT IS HEREBY ORDERED THAT
A. Microsemi, and its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with Microsemi who receive actual notice of this Order by personal service or otherwise, are hereby ordered to preserve and maintain the Semicoa Assets, and are restrained from
or causing or assisting others in carrying out any of these prohibited activities.
B. Microsemi, and its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with Microsemi who receive actual notice of this Order by personal service or otherwise, are hereby ordered
Microsemi, and its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with Microsemi who receive actual notice of this Order by personal service or otherwise, are hereby ordered to appoint a person or persons to oversee the Semicoa Assets who will be responsible for Microsemi's compliance with this Order and shall have complete managerial responsibility for such assets.
EXPIRATION OF THIS ORDER
IT IS FURTHER ORDERED, pursuant to Fed. R. Civ. P. 65(b), that the Temporary Restraining Order granted herein shall expire within 10 days of its entry, unless within such time the Order, for good cause shown, is extended, or unless the Defendant consents that it should be extended for a longer period of time.
SO ORDERED, this ____ day of ____________,
2008, at ______ _ .m.