UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
INBEV USA LLC, and
ANHEUSER-BUSCH COMPANIES, INC.
| CASE NO: 1:08-cv-01965 (JR)
JUDGE: Robertson, James
PLAINTIFF UNITED STATES' MOTION FOR ENTRY OF
FINAL JUDGMENT AND MEMORANDUM IN SUPPORT
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. §
16(b)-(h) ("APPA" or "Tunney Act"), plaintiff United States moves for entry of the proposed
Final Judgment filed in this civil antitrust case. The proposed Final Judgment (which is
attached) may be entered at this time without further hearing if the Court determines that entry is
in the public interest. The defendants do not object to entry of the proposed Final Judgment
without a hearing. The Competitive Impact Statement ("CIS") and Response to Public
Comments, filed by plaintiff United States in the above-captioned matter, respectively, on
November 14, 2008 and February 26, 2009, explain why entry of the proposed Final Judgment is
in the public interest. Plaintiff United States is filing simultaneously with this motion a
Certificate of Compliance setting forth the steps taken by the parties to comply with all
applicable provisions of the APPA and certifying that the statutory waiting periods have expired.
On November 14, 2008, the United States filed a civil antitrust Complaint seeking to
enjoin the proposed acquisition of Anheuser-Busch Companies, Inc. ("Anheuser-Busch") by
InBev N.V./S.A. ("InBev"). As explained more fully in the Complaint and CIS the likely effect
of the merger would be to lessen competition substantially in the market for beer in the
metropolitan areas of Buffalo, Rochester, and Syracuse, New York, in violation of Section 7 of
the Clayton Act, 15 U.S.C. § 18. In each of these metropolitan areas, the transaction would
combine two of the three major manufacturers of beer, creating a highly concentrated market.
The transaction would also eliminate substantial head-to-head competition between InBev and
Anheuser-Busch in these regions. This loss of competition likely would result in higher beer
prices to consumers in those areas.
At the same time that the Complaint was filed, the United States also filed a Hold
Separate Stipulation and Order ("Stipulation") and a proposed Final Judgment, which are
designed to eliminate the anticompetitive effects of the merger. Under the proposed Final
Judgment, defendants are required to divest InBev USA d/b/a Labatt USA ("IUSA"), a Delaware
limited liability company and wholly-owned subsidiary of InBev with its headquarters in Buffalo,
New York, and a perpetual, assignable, transferable, and fully-paid-up license and the other
rights needed to brew, promote, market, distribute, and sell Labatt brand beer for consumption in
the United States (hereafter the "Divestiture Assets"). Under the terms of the Stipulation,
defendants will take certain steps to ensure that the Divestiture Assets are operated as an
ongoing, economically viable, and independent competitive business in the brewing, promotion,
marketing, distribution, and sale of Labatt brand beer for consumption in the United States.
The United States and defendants have stipulated that the proposed Final Judgment may
be entered after compliance with the APPA. Entry of the proposed Final Judgment would
terminate this action, except that the Court would retain jurisdiction to construe, modify, or
enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Defendants have also stipulated that they will comply with the terms of the Stipulation and the
proposed Final Judgment from the date of signing of the Stipulation, pending entry of the
proposed Final Judgment by the Court and the required divestitures. Should the Court decline to
enter the proposed Final Judgment, defendants have also committed to continue to abide by its
requirements and those of the Stipulation until the expiration of time for appeal.
II. Compliance with the APPA
The APPA requires a sixty-day period for the submission of public comments on a
proposed Final Judgment. See 15 U.S.C. § 16(b). In compliance with the APPA, plaintiff United
States filed the CIS in this Court on November 14, 2008; published the proposed Final Judgment
and CIS in the Federal Register on November 25, 2008, see 73 Fed. Reg. 71682 (2008); and
published a summary of the terms of the proposed Final Judgment in the Washington Post for
seven days beginning on December 7, 2008 and continuing on consecutive days through
December 13, 2008. The 60-day period for public comments ended on February 11, 2009, and
four comments was received. Plaintiff United States filed its Response to Public Comments and
the comments themselves with this Court on February 26, 2009, and published the Response and
the public comments in the Federal Register on March 10, 2009, see 74 Fed. Reg. 10279 (2009).
The Certificate of Compliance filed simultaneously with this Motion recites that all the
requirements of the APPA have now been satisfied. It is therefore appropriate for the Court to
make the public interest determination required by 15 U.S.C. § 16(e) and to enter the Final
III. Standard of Judicial Review
Before entering the proposed Final Judgment, the Court must determine whether the
Judgment "is in the public interest." See 15 U.S.C. § 16(e)(1). In making that determination, the
Court shall 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).
In its CIS filed on November 14, 2008 and its Response to Public Comments filed on
February 26, 2009, plaintiff United States explained the meaning and proper application of the
public interest standard under the APPA and now incorporates those statements herein by
reference. The public, including affected competitors and customers, has had the opportunity to
comment on the proposed Final Judgment as required by law. In its response to that comment,
plaintiff United States explained why the arguments raised therein should not concern this Court
in its public interest inquiry. The proposed Final Judgment is within the range of settlements
consistent with the public interest.
For the reasons set forth in this Memorandum, the CIS, and the Response to Public
Comments, the Court should find that the proposed Final Judgment is in the public interest and
should enter the proposed Final Judgment without further hearings. Plaintiff United States
respectfully requests that the proposed Final Judgment be entered as soon as possible.
|Dated: March 11, 2009
Mitchell H. Glende
Litigation I Section - Antitrust Division
United States Department of Justice
1401 H Street NW, Suite 4000
Washington, D.C. 20530
(202) 307-5802 (facsimile)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
INBEV USA LLC, and
ANHEUSER-BUSCH COMPANIES, INC.
| CASE NO: 1:08-cv-01965 (JR)
JUDGE: Robertson, James
DATE: March 11, 2009
WHEREAS, Plaintiff, United States of America, filed its Complaint on November 14,
2008, and the United States of America and defendants InBev N.V./S.A., InBev USA LLC d/b/a
Labatt USA, and Anheuser-Busch Companies, Inc. (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 admission by any party regarding any 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;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain
divestiture of certain rights or assets by the Defendants to assure that competition is not
AND WHEREAS, the United States requires Defendants to make certain divestitures for
the purpose of remedying the loss of competition alleged in the Complaint;
AND WHEREAS, Defendants have represented to the United States that the divestitures
required herein can and will be made and that Defendants will later raise no claim of hardship or
difficulty as grounds for asking the Court to modify any of the divestiture provisions contained
NOW THEREFORE, before any testimony is taken, without trial or adjudication of any
issue of fact or law, and upon consent of the parties, it is ORDERED, ADJUDGED, AND
This Court has jurisdiction over the subject matter of and each of the parties to this
action. The Complaint states a claim upon which relief may be granted against Defendants under
Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18.
As used in this Final Judgment:
- "Acquirer" means the entity or entities to whom Defendants divest the Divestiture
- "Advertising" means all existing advertising and promotional materials owned or
Licensed by LBCL, including without limitation all copyrights therein, bearing the Licensed
Marks for use in the marketing, sale, and distribution of Labatt Brand Beer in the United States.
- "Anheuser-Busch" means defendant Anheuser-Busch Companies, Inc., a
Delaware corporation, with its headquarters in St. Louis, Missouri, its successors and assigns,
and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their
directors, officers, managers, agents, and employees.
- "Beer" means any fermented alcoholic beverage that (1) is composed in part of
water, a type of starch, yeast, and a flavoring and (2) has undergone the process of brewing.
- "Defendants" means InBev N.V./S.A., InBev USA LLC d/b/a Labatt USA, and
Anheuser-Busch Companies, Inc.
- "Divestiture Assets" means:
- an exclusive, perpetual, assignable, transferable, and fully-paid-up license that
grants the Acquirer the right:
- to brew Labatt Brand Beer in Canada and/or the United States for sale
for consumption in the United States;
- to promote, market, distribute, and sell Labatt Brand Beer for sale for
consumption in the United States; and
- to use all intellectual property rights associated with the brewing,
marketing, sale, and distribution of Labatt Brand Beer for sale for
consumption in the United States, including, without limitation, the Trade
Dress, the Advertising, the Licensed Marks, the Recipes, and such molds
and designs as are used in the manufacturing process of bottles for the
Labatt Brand Beer;
- all production know-how for Labatt Brand Beer, including, without limitation,
all Recipes and packaging, marketing, and distribution know-how and documentation;
- all of the tangible and intangible assets of IUSA, including, without
limitation, (A) all real property (owned or leased), office equipment, office furniture,
fixtures, materials, supplies, and other tangible property of IUSA; (B) all contracts and
agreements of IUSA except the Existing Import Agreement, including, without limitation,
wholesaler and distributor agreements into which InBev or IUSA have entered for the sale
or distribution of Labatt Brand Beer within the United States, sponsorship agreements
with sports teams and other entities, agreements relating to the placement of advertising,
agreements with public relations firms, and agreements with co-packers; (C) all existing
inventories of Labatt Brand Beer owned by IUSA; (D) all customer lists, customer
accounts, and credit records; (E) all licenses, permits, and authorizations issued by any
governmental organization relating to the marketing, sales, and distribution of Labatt
Brand Beer in the United States, including, without limitation, brand registrations; and
(F) copies of all business, financial and operational books, records and data, both current
and historical, that relate to Labatt Brand Beer sold and distributed in the United States;
provided, however, that, for books, records, or data that relate to Labatt Brand Beer, but
not solely to Labatt Brand Beer sold in the United States, LBCL shall provide only the
excerpts of those books, records, or data that relate to the Labatt Brand Beer sold and
distributed in the United States;
- provided, however, that the Acquirer shall have no right to use, and shall not
use, the term "InBev" or any derivative of the term "InBev," and provided, further, that
the Acquirer shall have no rights to market or sell any brands of Beer owned by InBev
other than Labatt Brand Beer.
- "Existing Import Agreement" means the Exclusive Distributor Agreement dated
as of December 1, 1994, among LBCL, Labatt Importers Inc., Labatt's USA Inc., and John Labatt
- "InBev" means defendant InBev N.V./S.A., a public company organized under the
laws of Belgium, with its headquarters in Leuven, Belgium, its successors and assigns, and its
subsidiaries, divisions, groups, affiliates, partnerships, joint ventures, and their respective
directors, officers, managers, agents, and employees.
- "IUSA" means defendant InBev USA LLC d/b/a Labatt USA, a Delaware limited
liability company and wholly-owned, indirect subsidiary of InBev, with its headquarters in
Buffalo, New York.
- "Labatt Brand Beer" means the following brands of Beer: Labatt Blue, Labatt
Blue Light, Labatt's 50, Labatt ICE, Labatt Double Blue, Labatt Nordic, Labatt Select, Labatt
Non-Alcoholic, Labatt Holiday, and Max ICE, and any extensions of any one or more of such
brands for use in connection with brewing, distributing, promoting, marketing, or selling Beer as
may be developed from time to time by the Acquirer.
- "LBCL" means Labatt Brewing Company Limited, a Canadian corporation and
wholly-owned, indirect subsidiary of Companhia de Bebidas das Américas AmBev, a Brazilian
corporation and majority-owned subsidiary of InBev.
- "Licensed Marks" means all trademarks, service marks, or trade names for the
Labatt Brand Beer belonging or licensed to LBCL and/or its subsidiaries, divisions, groups,
affiliates, partnerships, and joint ventures (whether registered or unregistered, or whether the
subject of a pending application) used to brew, distribute, market, and sell Labatt Brand Beer in
the United States.
- "Recipes" means all LBCL's formulae, recipes, processes, and specifications
specified by LBCL for use in connection with the production and packaging of Labatt Brand Beer
in the United States, including, without limitation, LBCL's yeast, brewing processes, equipment
and material specifications, trade and manufacturing secrets, know-how, and scientific and
technical information for the Labatt Brand Beer.
- "Supply Agreement" means an agreement pursuant to which InBev shall supply to
the Acquirer Labatt Brand Beer in quantities and units and at prices agreed to between InBev and
the Acquirer subject to the approval of the United States in its sole discretion.
- "Trade Dress" means the print, style, color, labels, and other elements of trade
dress currently used by LBCL and/or its subsidiaries, divisions, groups, affiliates, partnerships,
and joint ventures in connection with the marketing, sale, and distribution of Labatt Brand Beer
in the United States.
- This Final Judgment applies to the Defendants, as defined above, and all other
persons in active concert or participation with the Defendants who receive actual notice of this
Final Judgment by personal service or otherwise.
- If, prior to complying with Sections IV and V of this Final Judgment, Defendants
sell, license, or otherwise dispose of all or substantially all of their assets or lesser business units
that include the Divestiture Assets, Defendants shall require the purchaser to be bound by the
provisions of this Final Judgment. Defendants need not obtain such an agreement from the
Acquirer of the assets divested pursuant to this Final Judgment.
- Defendants are ordered and directed, within ninety (90) calendar days after the
filing of the Complaint in this matter, or five (5) calendar days after notice of the entry of this
Final Judgment by the Court, whichever is later, to divest the Divestiture Assets in a manner
consistent with this Final Judgment to an Acquirer approved by the United States in its sole
discretion. The United States, in its sole discretion, may agree to one or more extensions of this
time-period, such extensions not to exceed ninety (90) calendar days in total, and shall notify the
Court in such circumstances. Defendants agree to use their best efforts to divest the Divestiture
Assets as expeditiously as possible.
- In accomplishing the divestiture ordered by this Final Judgment, Defendants
promptly shall make known, by usual and customary means, the availability of the Divestiture
Assets. Defendants shall inform any person making inquiry regarding a possible purchase of the
Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that
person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective
Acquirers, subject to customary confidentiality assurances, all information and documents
relating to the Divestiture Assets customarily provided in a due diligence process except such
information or documents subject to the attorney-client privilege or work-product doctrine.
Defendants shall make available such information to the United States at the same time that such
information is made available to any other person.
- Defendants shall not take any action that will impede in any way the permitting,
operation, or divestiture of the Divestiture Assets.
- Defendants shall warrant to the Acquirer that each asset will be operational on the
date of sale.
- Defendants shall not manufacture, market, distribute, introduce, or sell in the
United States any Beer under any brand name or trade name that contains the word "Labatt" after
the date of the execution of the divestiture agreement with the Acquirer, except (i) pursuant to
the terms of the Supply Agreement, and (ii) as necessary to satisfy a legal requirement to identify
the brewer for and origin of other brands of beer brewed by LBCL and sold in the United States
where the corporate identity of the brewer includes the word "Labatt"; provided, however, that
Defendants shall not be in violation of this consent decree if an independent party ships Labatt
Brand Beer from Canada to the United States without Defendants' permission or knowledge.
- Defendants shall provide the Acquirer and the United States information relating
to IUSA's personnel involved in the management, operations, or sales activities in the United
States relating to the Divestiture Assets to enable the Acquirer to make offers of employment.
Defendants will not interfere with any efforts by the Acquirer to employ any personnel employed
by IUSA having management, operations, or sales responsibilities relating to the Divestiture
- Unless the United States otherwise consents in writing, Defendants shall permit
prospective Acquirers of the Divestiture Assets to have reasonable access to personnel and to
make reasonable inspections of the physical facilities; access to any and all environmental,
zoning, and other permit documents and information; and access to any and all financial,
operational, or other documents and information customarily provided as part of a due diligence
- Notwithstanding anything to the contrary in this Final Judgment, at the option of the Acquirer, Defendants shall enter into a transition services agreement for a limited
period with respect to information technology support, information technology licensing,
computer operations, data processing, logistics support, and such other services as are reasonably
necessary to operate the Divestiture Assets, with the scope, terms, and conditions of such
agreement being subject to the approval of the United States in its sole discretion. Such an
agreement may not exceed twelve (12) months from the date of divestiture.
- Unless the United States otherwise consents in writing, the divestiture pursuant to
Section IV, or by trustee appointed pursuant to Section V, of this Final Judgment, shall include
the entire Divestiture Assets and shall be accomplished in such a way as to satisfy the United
States, in its sole discretion, that the Divestiture Assets can and will be used by the Acquirer as
part of a viable, ongoing business engaged in the sale of Beer; provided that it is demonstrated to
the sole satisfaction of the United States that the Divestiture Assets will remain viable and the
divestiture of such assets will remedy the competitive harm alleged in the Complaint. The
divestiture, whether pursuant to Section IV or Section V of this Final Judgment,
- shall be made to an Acquirer that, in the United States's sole judgment,
has the intent and capability (including the necessary managerial, operational, technical,
and financial capability) of competing effectively in the sale of Beer; and
- shall be accomplished so as to satisfy the United States, in its sole
discretion, that none of the terms of any agreement between the Acquirer and Defendants
give Defendants the ability unreasonably to raise the Acquirer's costs, to lower the
Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer to compete
- As part of a divestiture, and at the option of the Acquirer, Defendants shall
negotiate and consummate a Supply Agreement to supply Labatt Brand Beer in quantities and
units and at prices agreed to between InBev and the Acquirer with the approval of the United
States. The Supply Agreement shall be no more than three (3) years in length. The terms and
conditions of any such Supply Agreement shall be subject to the approval of the United States in
its sole discretion. During the term of the Supply Agreement, Defendants shall establish,
implement, and maintain procedures and take such other steps that are reasonably necessary to
prevent the disclosure of the quantities and units of Labatt Brand Beer ordered or purchased from
the Defendants by the Acquirer, the prices paid by the Acquirer, and any other competitively
sensitive information regarding the Defendants' or the Acquirer's performance under the Supply
Agreement, to any employee of the Defendants that has direct responsibilities for marketing,
distributing, or selling Beer in competition with the Acquirer in the United States.
V. Appointment of Trustee
- If Defendants have not divested the Divestiture Assets within the time period
specified in Section IV(A), Defendants shall notify the United States of that fact in writing.
Upon application of the United States, the Court shall appoint a trustee selected by the United
States and approved by the Court to effect the divestiture of the Divestiture Assets.
- After the appointment of a trustee becomes effective, only the trustee shall have
the right to sell the Divestiture Assets. The trustee shall have the power and authority to
accomplish the divestiture to an Acquirer acceptable to the United States at such price and on
such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions
of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as this Court
deems appropriate. Subject to Section V(D) of this Final Judgment, the trustee may hire at the
cost and expense of Defendants any investment bankers, attorneys, or other agents, who shall be
solely accountable to the trustee, reasonably necessary in the trustee's judgment to assist in the
- Defendants shall not object to a sale by the trustee on any ground other than the
trustee's malfeasance. Any such objection by Defendants must be conveyed in writing to the
United States and the trustee within ten (10) calendar days after the trustee has provided the
notice required under Section VI.
- The trustee shall serve at the cost and expense of Defendants, on such terms and
conditions as the United States approves, and shall account for all monies derived from the sale
of the assets sold by the trustee and all costs and expenses so incurred. After approval by the
Court of the trustee's accounting, including fees for its services and those of any professionals
and agents retained by the trustee, all remaining money shall be paid to Defendants and the trust
shall then be terminated. The compensation of the trustee and any professionals and agents
retained by the trustee shall be reasonable in light of the value of the Divestiture Assets and
based on a fee arrangement providing the trustee with an incentive based on the price and terms
of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
- Defendants shall use their best efforts to assist the trustee in accomplishing the
required divestiture. The trustee and any consultants, accountants, attorneys, and other persons
retained by the trustee shall have full and complete access to the personnel, books, records, and
facilities of the business to be divested, and Defendants shall develop financial and other
information relevant to such business as the trustee may reasonably request, subject to reasonable
protection for trade secrets or other confidential research, development, or commercial
information. Defendants shall take no action to interfere with or to impede the trustee's
accomplishment of the divestiture.
- After its appointment, the trustee shall file monthly reports with the United States
and the Court setting forth the trustee's efforts to accomplish the divestiture ordered under this
Final Judgment. To the extent such reports contain information that the trustee deems
confidential, such reports shall not be filed in the public docket of the Court. Such reports shall
include the name, address, and telephone number of each person who, during the preceding
month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to
acquire, or was contacted or made an inquiry about acquiring any interest in the Divestiture
Assets, and shall describe in detail each contact with any such person. The trustee shall maintain
full records of all efforts made to divest the Divestiture Assets.
- If the trustee has not accomplished the divestiture ordered under this Final
Judgment within six (6) months after its appointment, the trustee shall promptly file with the
Court a report setting forth (1) the trustee's efforts to accomplish the required divestiture; (2) the
reasons, in the trustee's judgment, why the required divestiture has not been accomplished; and
(3) the trustee's recommendations. To the extent such reports contain information that the
trustee deems confidential, such reports shall not be filed in the public docket of the Court. The
trustee shall at the same time furnish such report to the United States, which shall have the right
to make additional recommendations consistent with the purpose of the trust. The Court
thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of this
Final Judgment, which may, if necessary, include extending the trust and the term of the trustee's
appointment by a period requested by the United States.
VI. Notice of Proposed Divestiture
- Within two (2) business days following execution of a definitive divestiture
agreement, Defendants or the trustee, whichever is then responsible for effecting the divestiture
required herein, shall notify the United States of any proposed divestiture required by Section IV
or V of this Final Judgment. If the trustee is responsible, it shall similarly notify Defendants.
The notice shall set forth the details of the proposed divestiture and list the name, address, and
telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details
of the same.
- Within fifteen (15) calendar days of receipt by the United States of such notice,
the United States may request from Defendants, the proposed Acquirer, any other third party, or
the trustee, if applicable, additional information concerning the proposed divestiture, the
proposed Acquirer, and any other potential Acquirer. Defendants and the trustee shall furnish
any additional information requested within fifteen (15) calendar days of the receipt of the
request, unless the parties shall otherwise agree.
- Within thirty (30) calendar days after receipt of the notice, or within twenty (20)
calendar days after the United States has been provided the additional information requested
from Defendants, the proposed Acquirer, any third party, and the trustee, whichever is later, the
United States shall provide written notice to Defendants and the trustee, if there is one, stating
whether or not it objects to the proposed divestiture. If the United States provides written notice
that it does not object, the divestiture may be consummated, subject only to Defendants' limited
right to object to the sale under Section V(C) of this Final Judgment. Absent written notice that
the United States does not object to the proposed Acquirer or upon objection by the United
States, a divestiture proposed under Section IV or Section V shall not be consummated. Upon
objection by Defendants under Section V(C), a divestiture proposed under Section V shall not be
consummated unless approved by the Court.
Defendants shall not finance all or any part of any purchase made pursuant to Section IV
or V of this Final Judgment.
VIII. Hold Separate
Until the divestiture required by this Final Judgment has been accomplished, Defendants
shall take all steps necessary to comply with the Hold Separate Stipulation and Order entered by
this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this
- Within twenty (20) calendar days of the filing of the Complaint in this matter, and
every thirty (30) calendar days thereafter until the divestiture has been completed under Section
IV or V, Defendants shall deliver to the United States an affidavit as to the fact and manner of its
compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the
name, address, and telephone number of each person who, during the preceding thirty (30)
calendar days, made an offer to acquire, expressed an interest in acquiring, entered into
negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the
Divestiture Assets, and shall describe in detail each contact with any such person during that
period. Each such affidavit shall also include a description of the efforts Defendants have taken
to solicit buyers for the Divestiture Assets, and to provide required information to a prospective
Acquirer, including the limitations, if any, on such information. Assuming the information set
forth in the affidavit is true and complete, any objection by the United States to information
provided by Defendants, including limitation on information, shall be made within fourteen (14)
calendar days of receipt of such affidavit.
- Within twenty (20) calendar days of the filing of the Complaint in this matter,
Defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions Defendants have taken and all steps Defendants have implemented on an ongoing basis to
comply with Section VIII of this Final Judgment. Defendants shall deliver to the United States
an affidavit describing any changes to the efforts and actions outlined in Defendants' earlier
affidavits filed pursuant to this section within fifteen (15) calendar days after the change is
- Defendants shall keep all records of all efforts made to preserve and divest the
Divestiture Assets until one year after such divestiture has been completed.
X. Compliance Inspection
- For the purposes of determining or securing compliance with this Final Judgment,
or of determining whether this Final Judgment should be modified or vacated, and subject to any
legally recognized privilege, from time to time authorized representatives of the United States
Department of Justice Antitrust Division ("DOJ"), including consultants and other persons
retained by the United States, shall, upon written request of an authorized representative of the
Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to
Defendants, be permitted:
- access during Defendants' office hours to inspect and copy, or at the
option of the United States, to require Defendants to provide hard copy or electronic
copies of, all books, ledgers, accounts, records, data, and documents in the possession,
custody, or control of Defendants, relating to any matters contained in this Final
- to interview, either informally or on the record, Defendants' officers,
employees, or agents, who may have their individual counsel present, regarding such
matters. The interviews shall be subject to the reasonable convenience of the interviewee
and without restraint or interference by Defendants.
- Upon the written request of an authorized representative of the Assistant Attorney
General in charge of the Antitrust Division, Defendants shall submit written reports or respond to
written interrogatories, under oath if requested, relating to any of the matters contained in this
Final Judgment as may be requested.
- No information or documents obtained by the means provided in this section shall
be divulged by the United States to any person other than an authorized representative of the
executive branch of the United States, except in the course of legal proceedings 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.
- If, at the time information or documents are furnished by Defendants to the United
States, 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)(G) 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)(G) of the Federal Rules of Civil Procedure," then the
United States shall give Defendants ten (10) calendar days' notice prior to divulging such
material in any legal proceeding (other than a grand jury proceeding).
XI. No Reacquisition
Defendants may not reacquire any part of the Divestiture Assets during the term of this
XII. Retention of Jurisdiction
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this
Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to enforce compliance, and
to punish violations of its provisions.
XIII. Expiration of Final Judgment
Unless this Court grants an extension, this Final Judgment shall expire ten (10) years
from the date of its entry.
XIV. Public Interest Determination
Entry of this Final Judgment is in the public interest. The parties have complied with the
requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making
copies available to the public of this Final Judgment, the Competitive Impact Statement, and any
comments thereon and the United States's responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any comments and responses to
comments filed with the Court, entry of this Final Judgment is in the public interest.
||Court approval subject to procedures of
Antitrust Procedures and Penalties Act,
15 U.S.C. § 16.
United States District Judge