82 FR 8858 - United States v. Ahmet H. Okumus; Proposed Final Judgment and Competitive Impact Statement
DEPARTMENT OF JUSTICE
Antitrust Division Federal Register Volume 82, Issue 19 (January 31, 2017)
Antitrust Division
Federal Register Volume 82, Issue 19 (January 31, 2017)
| Page Range | 8858-8863 | |
| FR Document | 2017-02024 |
[Federal Register Volume 82, Number 19 (Tuesday, January 31, 2017)] [Notices] [Pages 8858-8863] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-02024] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Antitrust Division United States v. Ahmet H. Okumus; 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 of America v. Ahmet H. Okumus, Civil Action No. 1:17-cv-00104. On January 17, 2017, the United States filed a Complaint alleging that Ahmet H. Okumus violated the notice and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 18a, with respect to his acquisition of voting securities of Web.com Group, Inc. The proposed Final Judgment, filed at the same time as the Complaint, requires Ahmet H. Okumus to pay a civil penalty of $180,000. Copies of the Complaint, proposed Final Judgment, and Competitive Impact Statement are available for inspection on the Antitrust Division'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 Antitrust Division's 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, United States, c/o Federal Trade Commission, 600 Pennsylvania Avenue NW., CC-8416, Washington DC 20580 (telephone: 202- 326-2526; email: [email protected]). 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. Ahmet H. Okumus, 767 Third Avenue, 35th Floor, New York, NY 10017, Defendant. Case No.: 1:17-cv-00104 Judge: Rosemary M. Collyer Filed: 01/17/2017 COMPLAINT FOR CIVIL PENALTIES 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 monetary relief in the form of civil penalties against Defendant Ahmet H. Okumus (``Okumus''). Plaintiff alleges as follows: NATURE OF THE ACTION 1. Okumus 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 Web.com Group, Inc. (``Web.com''). JURISDICTION AND VENUE 2. 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 Defendant by virtue of Defendant's consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District. 3. Venue is properly based in this District by virtue of Defendant's consent, in the Stipulation relating hereto, to the maintenance of this action and entry of the Final Judgment in this District. THE DEFENDANT 4. Defendant Okumus is a natural person with his principal office and place of business at 767 Third Avenue, 35th Floor, New York, NY 10017. Okumus 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, Okumus had sales or assets in excess of $156.3 million. OTHER ENTITIES 5. Web.com is a corporation organized under the laws of Delaware with its principal place of business at 12808 Gran Bay Parkway West, Jacksonville, FL 32258. Web.com 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, Web.com had sales or assets in excess of $15.6 million. THE HART-SCOTT-RODINO ACT AND RULES 6. 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). These notification and waiting period requirements apply to acquisitions that meet the HSR Act's thresholds. As of February 1, 2001, the size of transaction threshold was $50 million. In addition, there is a separate filing requirement for transactions in which the acquirer will hold voting securities in excess of $100 million, and for transactions in which the acquirer will hold voting securities in excess of $500 million. With respect to the size of person thresholds, the HSR Act requires one person involved in the transaction to have sales or assets in excess of $10 million, and the other person to have sales or assets in excess of $100 million. Since 2004, the size of transaction and size of person thresholds have been adjusted annually. 7. The HSR Act's notification and waiting period requirements are intended to give the federal antitrust agencies prior notice of, and information about, proposed transactions. The waiting period is also [[Page 8859]] 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. 8. 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 made solely for the purpose of investment if, as a result of the acquisition, the securities acquired or held do not exceed ten percent of the outstanding voting securities of the issuer. 9. Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. 18a(d)(2), rules were promulgated to carry out the purposes of the HSR Act. 16 CFR 801-03 (``HSR Rules''). The HSR Rules, among other things, define terms contained in the HSR Act. 10. 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. 11. 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. 12. Section 802.21 of the HSR Rules, 16 CFR 802.21, provides that once a person has filed under the HSR Act and the waiting period has expired, the person can acquire additional voting securities of the issuer without making a new filing for five years from the expiration of the waiting period, so long as the holdings do not exceed a higher threshold than was indicated in the filing. 13. Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1), provides that any person, or any officer, director, or partner thereof, who fails to comply with any provision of the HSR Act is liable to the United States for a civil penalty for each day during which such person is in violation. Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 701 (further amending the Federal Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade Commission Rule 1.98, 16 CFR 1.98, 81 FR 42,476 (June 30, 2016), the maximum amount of civil penalty is $40,000 per day. DEFENDANT'S PRIOR VIOLATION OF THE HSR ACT 14. On September 11, 2014, Okumus acquired voting securities of Web.com. As a result of this acquisition, Okumus held approximately 13.5% of the voting securities of Web.com. Okumus did not file under the HSR Act because he was relying on the exemption for acquisitions solely for the purpose of investment. However, that exemption is limited to acquisitions which result in holding 10% or less of the voting securities of the issuer. Accordingly, Okumus was required to file under the HSR Act prior to acquiring Web.com voting securities on September 11, 2014. Okumus continued to acquire voting securities of Web.com through November 6, 2014. 15. On November 21, 2014, Okumus made a corrective filing under the HSR Act for the acquisitions of Web.com voting securities. In a letter accompanying the corrective filing, Okumus acknowledged that the transaction was reportable under the HSR Act, but asserted that the failure to file and observe the waiting period was inadvertent. 16. On December 31, 2014, the Premerger Notification Office of the Federal Trade Commission sent a letter to Okumus indicating that it would not recommend a civil penalty action regarding the September 11, 2014, Web.com acquisition. The letter advised, however, that Okumus ``still must bear responsibility for compliance with the Act'' and was ``accountable for instituting an effective program to ensure full compliance with the Act's requirements.'' DEFENDANT'S VIOLATION OF THE HSR ACT 17. In his corrective HSR Act filing for the 2014 Web.com acquisitions, Okumus filed at the $50 million threshold. After the expiration of the waiting period, Okumus was permitted under the HSR Act to acquire additional voting securities of Web.com without making another HSR Act filing so long as he did not exceed the $100 million threshold, as adjusted. As of February 25, 2016, the adjusted $100 million threshold was $156.3 million. 18. On June 2, 2016, Okumus began acquiring additional voting securities of Web.com. Okumus continued to acquire additional voting securities of Web.com through June 27, 2016. 19. On June 27, 2016, Okumus acquired 236,589 voting securities of Web.com. As a result of this acquisition, Okumus held voting securities of Web.com valued in excess of the $156.3 million threshold then in effect. 20. Although required to do so, Okumus did not file under the HSR Act or observe the HSR Act's waiting period prior to completing the June 27, 2016, transaction. 21. On July 14, 2016, Okumus sold 33,200 voting securities of Web.com. As a result of this sale, Okumus no longer held voting securities of Web.com valued in excess of the $156.3 million HSR Act threshold. 22. Okumus was in continuous violation of the HSR Act from June 27, 2016, when he acquired the Web.com voting securities valued in excess of the HSR Act's then applicable $156.3 filing threshold, through July 14, 2016, when he no longer held voting securities of Web.com valued in excess of $156.3 million. REQUESTED RELIEF WHEREFORE, Plaintiff requests: a. That the Court adjudge and decree that Defendant's acquisition of Web.com voting securities on June 27, 2016, was a violation of the HSR Act, 15 U.S.C. 18a; and that Defendant was in violation of the HSR Act each day from June 27, 2016, through July 14, 2016; b. That the Court order Defendant to pay to the United States an appropriate civil penalty as provided by the HSR Act, 15 U.S.C. 18a(g)(1), and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, Sec. 701 (further amending the Federal Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade Commission Rule 1.98, 16 CFR 1.98, 81 FR 42,476 (June 30, 2016); c. That the Court order such other and further relief as the Court may deem just and proper; and d. That the Court award Plaintiff its costs of this suit. Dated: 01/17/2017------------------------------------------------------ FOR THE PLAINTIFF UNITED STATES OF AMERICA: /s/-------------------------------------------------------------------- Renata B. Hesse, D.C. Bar No. 466107 Acting Assistant Attorney General, Department of Justice, Antitrust Division, Washington, DC 20530, D.C. Bar No. 269266. /s/-------------------------------------------------------------------- Daniel P. Ducore, D.C. Bar No. 933721 Special Attorney. /s/-------------------------------------------------------------------- Roberta S. Baruch Special Attorney. /s/-------------------------------------------------------------------- Kenneth A. Libby Special Attorney. /s/-------------------------------------------------------------------- Jennifer Lee, Special Attorney, Federal Trade Commission, Washington, DC 20580, (202) 326-2694. [[Page 8860]] UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA United States of America, Plaintiff, v. Ahmet H. Okumus, Defendant. Case No.: 1:17-cv-00104 Judge: Rosemary M. Collyer Filed: 01/17/2017 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. I. NATURE AND PURPOSE OF THIS PROCEEDING On January 17, 2017, the United States filed a Complaint against Defendant Ahmet H. Okumus (``Okumus''), related to Okumus's acquisition of voting securities of Web.com Group, Inc. (``Web.com'') in June 2016. The Complaint alleges that Okumus 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 provides that ``no person shall acquire, directly or indirectly, any voting securities of any person'' exceeding certain thresholds until that person has filed pre-acquisition notification and report forms with the Department of Justice and the Federal Trade Commission (collectively, the ``federal antitrust agencies'' or ``agencies'') and the post-filing waiting period has expired. 15 U.S.C. 18a(a). A key purpose of the notification and waiting period is to protect consumers and competition from potentially anticompetitive transactions by providing the agencies an opportunity to conduct an antitrust review of proposed transactions before they are consummated. The Complaint alleges that Okumus acquired voting securities of Web.com in excess of then-applicable statutory thresholds without making the required pre-acquisition HSR filings with the agencies and without observing the waiting period, and that Okumus and Web.com met the applicable statutory size of person thresholds. At the same time the Complaint was filed in the present action, the United States also filed a Stipulation and proposed Final Judgment that eliminates the need for a trial in this case. The proposed Final Judgment is designed to deter Okumus' HSR Act violations. Under the proposed Final Judgment, Okumus must pay a civil penalty to the United States in the amount of $180,000. The United States and the Defendant 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. II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATIONS OF THE ANTITRUST LAWS Okumus is an investor with his principal office and place of business in New York City. At all times relevant to the Complaint, Okumus had sales or assets in excess of $156.3 million. At all times relevant to the Complaint, Web.com, a Delaware corporation headquartered in Jacksonville, Florida, had sales or assets in excess of $15.6 million. On November 21, 2014, Okumus filed under the HSR Act to acquire voting securities of Web.com. Okumus filed at the $50 million threshold, as adjusted. After the waiting period expired, Okumus was permitted under the HSR Act to acquire additional voting securities of Web.com for five years without making a new HSR filing so long as his holdings did not exceed the $100 million threshold, as adjusted. On June 27, 2016, Okumus acquired additional voting securities of Web.com. As a result of this acquisition, Okumus held voting securities of Web.com valued at approximately $156.6 million, which was in excess of $156.3 million, the as adjusted $100 million threshold in effect at the time. Although he was required to do so under the HSR Act, Okumus failed to make an HSR filing and observe the statutory waiting period before consummating the June 27, 2016 acquisition. On July 14, 2016, Okumus sold voting securities of Web.com. As a result of this sale, he no longer held voting securities valued in excess of $156.3 million, and was no longer in violation of the HSR Act. The Complaint further alleges that Okumus's June 2016 HSR Act violation was not the first time Okumus had failed to observe the HSR Act's notification and waiting period requirements. On September 11, 2014, Okumus acquired voting securities of Web.com. As a result of this acquisition, Okumus held approximately 13.5 percent of the voting securities of Web.com. Okumus did not file under the HSR Act prior to making this acquisition, relying on the exemption for acquisitions made solely for the purpose of investment. See 15 U.S.C. 18a(c)(9). However, the exemption is limited to acquisitions that result in holdings that do not exceed ten percent of the voting securities of the issuer; acquisitions that result in holding in excess of ten percent require an HSR filing regardless of the purpose of the acquisition. On November 21, 2014, Okumus made a corrective HSR filing for the September 11, 2014 acquisition, and explained in a letter accompanying the corrective filing that his failure to file was inadvertent. On December 31, 2014, the Premerger Notification Office of the Federal Trade Commission notified Okumus by letter that it would not recommend a civil penalty for the violation, but advised Okumus that he was ``accountable for instituting an effective program to ensure full compliance with the Act's requirements.'' III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT The proposed Final Judgment imposes a $180,000 civil penalty designed to deter the Defendant and others from violating the HSR Act. The United States adjusted the penalty downward from the maximum permitted under the HSR Act because the violation was inadvertent, the Defendant promptly corrected the violation after discovery by selling voting securities, and the Defendant is willing to resolve the matter by consent decree and avoid prolonged investigation and litigation. The relief will have a beneficial effect on competition because the agencies will be properly notified of future acquisitions, in accordance with the law. At the same time, the penalty will not have any adverse effect on competition. IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS There is no private antitrust action for HSR Act violations; therefore, entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust action. V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT The United States and the Defendant 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. [[Page 8861]] 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 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. 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. In addition, comments will be posted on the U.S. Department of Justice, Antitrust Division's internet Web site and, under certain circumstances, 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. CC-8416 Washington, DC 20580 Email: [email protected]. 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. VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT As an alternative to the proposed Final Judgment, the United States considered pursuing a full trial on the merits against the Defendant. The United States is satisfied, however, that the proposed relief is an appropriate remedy in this matter. Given the facts of this case, including the Defendant's self-reporting of the violation and willingness to promptly settle this matter, the United States is satisfied that the proposed civil penalty is sufficient to address the violation alleged in the Complaint and to deter violations by similarly situated entities in the future, without the time, expense, and uncertainty of a full trial on the merits. VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT The APPA requires 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. Id. Sec. 16(e)(1)(A) & (B). In considering these statutory factors, the court's inquiry is necessarily a limited one, as the government is entitled to ``broad discretion to settle with the defendant within the reaches of the public interest.'' United States v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); 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 that the court's ``inquiry is limited'' because the government has ``broad discretion'' to determine the adequacy of the relief secured through a settlement); 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.'').\1\ --------------------------------------------------------------------------- \1\ 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. Sec. 16(e) (2004), with 15 U.S.C. Sec. 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). --------------------------------------------------------------------------- As the United States Court of Appeals for the District of Columbia Circuit has held, a court conducting an inquiry under the APPA may consider, 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: [t]he 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).\2\ In determining whether a proposed settlement is in the public interest, a district court ``must accord deference to the government's predictions about the [[Page 8862]] 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 government's prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case). --------------------------------------------------------------------------- \2\ 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' ''). --------------------------------------------------------------------------- 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 (concluding that ``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 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.'' 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 ``[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.'' 15 U.S.C. 16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76 (indicating that a court is not required to hold an evidentiary hearing or to permit intervenors as part of its review under the Tunney Act). This language codified what Congress intended when it enacted the Tunney Act in 1974, as the author of this legislation, 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 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.\3\ 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. --------------------------------------------------------------------------- \3\ See also 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.''). --------------------------------------------------------------------------- VIII. 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: January 17, 2017 Respectfully submitted, /s/-------------------------------------------------------------------- Kenneth A. Libby, Special Attorney U.S. Department of Justice, Antitrust Division, c/o Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, Phone: (202) 326-2694, Email: [email protected]. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA United States of America, Plaintiff, v. Ahmet H. Okumus, Defendant. Case No.: 1:17-cv-00104 Judge: Rosemary M. Collyer Filed: 01/17/2017 FINAL JUDGMENT Plaintiff, the United States of America, having commenced this action by filing its Complaint herein for violation of Section 7A of the Clayton Act, 15 U.S.C. 18a, commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and Plaintiff and Defendant Ahmet H. Okumus, by their respective attorneys, having consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting any evidence against or an admission by the Defendant with respect to any such issue: NOW, THEREFORE, before the taking of any testimony and without trial or adjudication of any issue of fact or law herein, and upon the consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND DECREED: I. The Court has jurisdiction of the subject matter of this action and of the Plaintiff and the Defendant. The Complaint states a claim upon which relief can be granted against the Defendant under Section 7A of the Clayton Act, 15 U.S.C. 18a. II. Judgment is hereby entered in this matter in favor of Plaintiff and against Defendant, and, pursuant to Section 7A(g)(1) of the Clayton Act, 15 U.S.C. [[Page 8863]] 18a(g)(1), and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74 Sec. 701 (amending the Federal Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade Commission Rule 1.98, 16 CFR 1.98, 81 FR 42,476 (June 30, 2016), Defendant is hereby ordered to pay a civil penalty in the amount of one hundred eighty thousand dollars ($180,000). Payment of the civil penalty ordered hereby shall be made by wire transfer of funds or cashier's check. If the payment is made by wire transfer, Defendant shall contact Janie Ingalls of the Antitrust Division's Antitrust Documents Group at (202) 514-2481 for instructions before making the transfer. If the payment is made by cashier's check, the check shall be made payable to the United States Department of Justice and delivered to: Janie Ingalls United States Department of Justice Antitrust Division, Antitrust Documents Group 450 5th Street, NW Suite 1024 Washington, D.C. 20530 Defendant shall pay the full amount of the civil penalty within thirty (30) days of entry of this Final Judgment. In the event of a default or delay in payment, interest at the rate of eighteen (18) percent per annum shall accrue thereon from the date of the default or delay to the date of payment. III. Each party shall bear its own costs of this action. IV. 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' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest. Dated:----------------------------------------------------------------- ----------------------------------------------------------------------- United States District Judge [FR Doc. 2017-02024 Filed 1-30-17; 8:45 am] BILLING CODE 4410-11-P
![8858 Federal Register / Vol. 82, No. 19 / Tuesday, January 31, 2017 / Notices
notifications simultaneously with the upon request and payment of the consent, in the Stipulation relating
Attorney General and the Federal Trade copying fee set by Department of Justice hereto, to the maintenance of this action
Commission disclosing changes in its regulations. and entry of the Final Judgment in this
membership. The notifications were Public comment is invited within 60 District.
filed for the purpose of extending the days of the date of this notice. Such
THE DEFENDANT
Act’s provisions limiting the recovery of comments, including the name of the
antitrust plaintiffs to actual damages submitter, and responses thereto, will be 4. Defendant Okumus is a natural
under specified circumstances. posted on the Antitrust Division’s Web person with his principal office and
Specifically, AT&T, Alpharetta, GA, has site, filed with the Court, and, under place of business at 767 Third Avenue,
been added as a party to this venture. certain circumstances, published in the 35th Floor, New York, NY 10017.
No other changes have been made in Federal Register. Comments should be Okumus is engaged in commerce, or in
either the membership or planned directed to Daniel P. Ducore, Special activities affecting commerce, within
activity of the group research project. Attorney, United States, c/o Federal the meaning of Section 1 of the Clayton
Membership in this group research Trade Commission, 600 Pennsylvania Act, 15 U.S.C. 12, and Section 7A(a)(1)
project remains open, and fd.io intends Avenue NW., CC–8416, Washington DC of the Clayton Act, 15 U.S.C. 18a(a)(1).
to file additional written notifications 20580 (telephone: 202–326–2526; email: At all times relevant to this complaint,
disclosing all changes in membership. dducore@ftc.gov). Okumus had sales or assets in excess of
On May 4, 2016, fd.io filed its original $156.3 million.
notification pursuant to Section 6(a) of Patricia A. Brink,
Director of Civil Enforcement. OTHER ENTITIES
the Act. The Department of Justice
published a notice in the Federal 5. Web.com is a corporation organized
UNITED STATES DISTRICT COURT under the laws of Delaware with its
Register pursuant to Section 6(b) of the FOR THE DISTRICT OF COLUMBIA
Act on June 9, 2016 (81 FR 37211). principal place of business at 12808
United States of America, c/o Department of Gran Bay Parkway West, Jacksonville,
Patricia A. Brink, Justice, Washington, D.C. 20530, Plaintiff, FL 32258. Web.com is engaged in
Director of Civil Enforcement, Antitrust v. Ahmet H. Okumus, 767 Third Avenue, commerce, or in activities affecting
Division. 35th Floor, New York, NY 10017, commerce, within the meaning of
[FR Doc. 2017–02019 Filed 1–30–17; 8:45 am] Defendant.
Section 1 of the Clayton Act, 15 U.S.C.
Case No.: 1:17–cv–00104
BILLING CODE P
Judge: Rosemary M. Collyer 12, and Section 7A(a)(1) of the Clayton
Filed: 01/17/2017 Act, 15 U.S.C. 18a(a)(1). At all times
relevant to this complaint, Web.com had
DEPARTMENT OF JUSTICE COMPLAINT FOR CIVIL PENALTIES sales or assets in excess of $15.6
FOR FAILURE TO COMPLY WITH THE million.
Antitrust Division PREMERGER REPORTING AND
WAITING REQUIREMENTS OF THE THE HART-SCOTT-RODINO ACT AND
United States v. Ahmet H. Okumus; RULES
HART-SCOTT RODINO ACT
Proposed Final Judgment and
The United States of America, 6. The HSR Act requires certain
Competitive Impact Statement
Plaintiff, by its attorneys, acting under acquiring persons and certain persons
Notice is hereby given pursuant to the the direction of the Attorney General of whose voting securities or assets are
Antitrust Procedures and Penalties Act, the United States and at the request of acquired to file notifications with the
15 U.S.C. 16(b)–(h), that a proposed the Federal Trade Commission, brings federal antitrust agencies and to observe
Final Judgment, Stipulation, and this civil antitrust action to obtain a waiting period before consummating
Competitive Impact Statement have monetary relief in the form of civil certain acquisitions of voting securities
been filed with the United States penalties against Defendant Ahmet H. or assets. 15 U.S.C. 18a(a) and (b). These
District Court for the District of Okumus (‘‘Okumus’’). Plaintiff alleges notification and waiting period
Columbia in United States of America v. as follows: requirements apply to acquisitions that
Ahmet H. Okumus, Civil Action No. meet the HSR Act’s thresholds. As of
1:17–cv–00104. On January 17, 2017, NATURE OF THE ACTION February 1, 2001, the size of transaction
the United States filed a Complaint 1. Okumus violated the notice and threshold was $50 million. In addition,
alleging that Ahmet H. Okumus violated waiting period requirements of the Hart- there is a separate filing requirement for
the notice and waiting period Scott-Rodino Antitrust Improvements transactions in which the acquirer will
requirements of the Hart-Scott-Rodino Act of 1976, 15 U.S.C. 18a (‘‘HSR Act’’ hold voting securities in excess of $100
Antitrust Improvements Act of 1976, 15 or ‘‘Act’’), with respect to the million, and for transactions in which
U.S.C. 18a, with respect to his acquisition of voting securities of the acquirer will hold voting securities
acquisition of voting securities of Web.com Group, Inc. (‘‘Web.com’’). in excess of $500 million. With respect
Web.com Group, Inc. The proposed to the size of person thresholds, the HSR
Final Judgment, filed at the same time JURISDICTION AND VENUE Act requires one person involved in the
as the Complaint, requires Ahmet H. 2. This Court has jurisdiction over the transaction to have sales or assets in
Okumus to pay a civil penalty of subject matter of this action pursuant to excess of $10 million, and the other
$180,000. Section 7A(g) of the Clayton Act, 15 person to have sales or assets in excess
Copies of the Complaint, proposed U.S.C. 18a(g), and pursuant to 28 U.S.C. of $100 million. Since 2004, the size of
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Final Judgment, and Competitive Impact 1331, 1337(a), 1345, and 1355 and over transaction and size of person
Statement are available for inspection the Defendant by virtue of Defendant’s thresholds have been adjusted annually.
on the Antitrust Division’s Web site at consent, in the Stipulation relating 7. The HSR Act’s notification and
http://www.justice.gov/atr and at the hereto, to the maintenance of this action waiting period requirements are
Office of the Clerk of the United States and entry of the Final Judgment in this intended to give the federal antitrust
District Court for the District of District. agencies prior notice of, and
Columbia. Copies of these materials may 3. Venue is properly based in this information about, proposed
be obtained from the Antitrust Division District by virtue of Defendant’s transactions. The waiting period is also
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intended to provide the federal antitrust DEFENDANT’S PRIOR VIOLATION OF 20. Although required to do so,
agencies with an opportunity to THE HSR ACT Okumus did not file under the HSR Act
investigate a proposed transaction and 14. On September 11, 2014, Okumus or observe the HSR Act’s waiting period
to determine whether to seek an acquired voting securities of Web.com. prior to completing the June 27, 2016,
injunction to prevent the consummation As a result of this acquisition, Okumus transaction.
of a transaction that may violate the held approximately 13.5% of the voting 21. On July 14, 2016, Okumus sold
antitrust laws. securities of Web.com. Okumus did not 33,200 voting securities of Web.com. As
8. Section (c)(9) of the HSR Act, 15 file under the HSR Act because he was a result of this sale, Okumus no longer
U.S.C. 18a(c)(9), exempts from the relying on the exemption for held voting securities of Web.com
requirements of the HSR Act acquisitions solely for the purpose of valued in excess of the $156.3 million
acquisitions of voting securities made investment. However, that exemption is HSR Act threshold.
solely for the purpose of investment if, limited to acquisitions which result in 22. Okumus was in continuous
as a result of the acquisition, the holding 10% or less of the voting violation of the HSR Act from June 27,
securities acquired or held do not securities of the issuer. Accordingly, 2016, when he acquired the Web.com
exceed ten percent of the outstanding Okumus was required to file under the voting securities valued in excess of the
voting securities of the issuer. HSR Act prior to acquiring Web.com HSR Act’s then applicable $156.3 filing
voting securities on September 11, 2014. threshold, through July 14, 2016, when
9. Pursuant to Section (d)(2) of the Okumus continued to acquire voting
HSR Act, 15 U.S.C. 18a(d)(2), rules were he no longer held voting securities of
securities of Web.com through Web.com valued in excess of $156.3
promulgated to carry out the purposes November 6, 2014.
of the HSR Act. 16 CFR 801–03 (‘‘HSR million.
15. On November 21, 2014, Okumus
Rules’’). The HSR Rules, among other made a corrective filing under the HSR REQUESTED RELIEF
things, define terms contained in the Act for the acquisitions of Web.com
HSR Act. WHEREFORE, Plaintiff requests:
voting securities. In a letter
accompanying the corrective filing, a. That the Court adjudge and decree
10. Pursuant to section 801.13(a)(1) of
Okumus acknowledged that the that Defendant’s acquisition of Web.com
the HSR Rules, 16 CFR 801.13(a)(1), ‘‘all
transaction was reportable under the voting securities on June 27, 2016, was
voting securities of [an] issuer which
HSR Act, but asserted that the failure to a violation of the HSR Act, 15 U.S.C.
will be held by the acquiring person
file and observe the waiting period was 18a; and that Defendant was in violation
after the consummation of an
inadvertent. of the HSR Act each day from June 27,
acquisition’’—including any held before
16. On December 31, 2014, the 2016, through July 14, 2016;
the acquisition—are deemed held ‘‘as a
result of’’ the acquisition at issue. Premerger Notification Office of the b. That the Court order Defendant to
Federal Trade Commission sent a letter pay to the United States an appropriate
11. Pursuant to sections 801.13(a)(2) to Okumus indicating that it would not civil penalty as provided by the HSR
and 801.10(c)(1) of the HSR Rules, 16 recommend a civil penalty action Act, 15 U.S.C. 18a(g)(1), and the Federal
CFR 801.13(a)(2) and 801.10(c)(1), the regarding the September 11, 2014, Civil Penalties Inflation Adjustment Act
value of voting securities already held is Web.com acquisition. The letter Improvements Act of 2015, Pub. L. 114–
the market price, defined to be the advised, however, that Okumus ‘‘still 74, § 701 (further amending the Federal
lowest closing price within 45 days must bear responsibility for compliance Civil Penalties Inflation Adjustment Act
prior to the subsequent acquisition. with the Act’’ and was ‘‘accountable for of 1990), and Federal Trade Commission
12. Section 802.21 of the HSR Rules, instituting an effective program to Rule 1.98, 16 CFR 1.98, 81 FR 42,476
16 CFR 802.21, provides that once a ensure full compliance with the Act’s (June 30, 2016);
person has filed under the HSR Act and requirements.’’ c. That the Court order such other and
the waiting period has expired, the DEFENDANT’S VIOLATION OF THE further relief as the Court may deem just
person can acquire additional voting HSR ACT and proper; and
securities of the issuer without making d. That the Court award Plaintiff its
a new filing for five years from the 17. In his corrective HSR Act filing for
the 2014 Web.com acquisitions, costs of this suit.
expiration of the waiting period, so long
as the holdings do not exceed a higher Okumus filed at the $50 million Dated: 01/17/2017 llllllllllll
threshold than was indicated in the threshold. After the expiration of the FOR THE PLAINTIFF UNITED STATES OF
filing. waiting period, Okumus was permitted AMERICA:
under the HSR Act to acquire additional /s/ lllllllllllllllllll
13. Section 7A(g)(1) of the Clayton voting securities of Web.com without Renata B. Hesse, D.C. Bar No. 466107
Act, 15 U.S.C. 18a(g)(1), provides that making another HSR Act filing so long Acting Assistant Attorney General,
any person, or any officer, director, or as he did not exceed the $100 million Department of Justice, Antitrust Division,
partner thereof, who fails to comply threshold, as adjusted. As of February Washington, DC 20530, D.C. Bar No. 269266.
with any provision of the HSR Act is 25, 2016, the adjusted $100 million /s/ lllllllllllllllllll
liable to the United States for a civil threshold was $156.3 million. Daniel P. Ducore, D.C. Bar No. 933721
penalty for each day during which such 18. On June 2, 2016, Okumus began Special Attorney.
person is in violation. Pursuant to the acquiring additional voting securities of /s/ lllllllllllllllllll
Federal Civil Penalties Inflation
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Web.com. Okumus continued to acquire Roberta S. Baruch
Adjustment Act Improvements Act of additional voting securities of Web.com Special Attorney.
2015, Pub. L. 114–74, 701 (further through June 27, 2016. /s/ lllllllllllllllllll
amending the Federal Civil Penalties 19. On June 27, 2016, Okumus Kenneth A. Libby
Inflation Adjustment Act of 1990), and acquired 236,589 voting securities of Special Attorney.
Federal Trade Commission Rule 1.98, 16 Web.com. As a result of this acquisition, /s/ lllllllllllllllllll
CFR 1.98, 81 FR 42,476 (June 30, 2016), Okumus held voting securities of Jennifer Lee,
the maximum amount of civil penalty is Web.com valued in excess of the $156.3 Special Attorney, Federal Trade Commission,
$40,000 per day. million threshold then in effect. Washington, DC 20580, (202) 326–2694.
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![Federal Register / Vol. 82, No. 19 / Tuesday, January 31, 2017 / Notices 8861
The APPA conditions entry of the VII. STANDARD OF REVIEW UNDER to enforce the final judgment are clear
decree upon this Court’s determination THE APPA FOR THE PROPOSED and manageable.’’).1
that the proposed Final Judgment is in FINAL JUDGMENT As the United States Court of Appeals
the public interest. for the District of Columbia Circuit has
The APPA provides a period of at The APPA requires proposed consent held, a court conducting an inquiry
least sixty (60) days preceding the judgments in antitrust cases brought by under the APPA may consider, among
effective date of the proposed Final the United States be subject to a sixty other things, the relationship between
Judgment within which any person may (60) day comment period, after which the remedy secured and the specific
submit to the United States written the court shall determine whether entry allegations set forth in the government’s
comments regarding the proposed Final of the proposed Final Judgment is ‘‘in complaint, whether the decree is
Judgment. Any person who wishes to the public interest.’’ 15 U.S.C. 16(e)(1). sufficiently clear, whether enforcement
comment should do so within sixty (60) In making that determination, the court, mechanisms are sufficient, and whether
days of the date of publication of this in accordance with the statute as the decree may positively harm third
Competitive Impact Statement in the amended in 2004, is required to parties. See Microsoft, 56 F.3d at 1458–
Federal Register, or the last date of consider: 62. With respect to the adequacy of the
publication in a newspaper of the relief secured by the decree, a court may
(A) the competitive impact of such
summary of this Competitive Impact not ‘‘engage in an unrestricted
judgment, including termination of
Statement, whichever is later. All evaluation of what relief would best
alleged violations, provisions for
comments received during this period serve the public.’’ United States v. BNS,
enforcement and modification, duration
will be considered by the United States, Inc., 858 F.2d 456, 462 (9th Cir. 1988)
of relief sought, anticipated effects of
which remains free to withdraw its (quoting United States v. Bechtel Corp.,
alternative remedies actually 648 F.2d 660, 666 (9th Cir. 1981)); see
consent to the proposed Final Judgment considered, whether its terms are
at any time prior to entry. The also Microsoft, 56 F.3d at 1460–62;
ambiguous, and any other competitive United States v. Alcoa, Inc., 152 F.
comments and the response of the considerations bearing upon the
United States will be filed with this Supp. 2d 37, 40 (D.D.C. 2001); InBev,
adequacy of such judgment that the 2009 U.S. Dist. LEXIS 84787, at *3.
Court. In addition, comments will be
court deems necessary to a Courts have held that:
posted on the U.S. Department of
determination of whether the consent
Justice, Antitrust Division’s internet [t]he balancing of competing social and
judgment is in the public interest; and
Web site and, under certain political interests affected by a proposed
circumstances, published in the Federal (B) the impact of entry of such antitrust consent decree must be left, in
Register. Written comments should be judgment upon competition in the the first instance, to the discretion of the
submitted to: relevant market or markets, upon the Attorney General. The court’s role in
public generally and individuals protecting the public interest is one of
Daniel P. Ducore
alleging specific injury from the insuring that the government has not
Special Attorney, United States violations set forth in the complaint breached its duty to the public in
c/o Federal Trade Commission including consideration of the public consenting to the decree. The court is
600 Pennsylvania Avenue NW. benefit, if any, to be derived from a required to determine not whether a
CC–8416 determination of the issues at trial. particular decree is the one that will
Washington, DC 20580 best serve society, but whether the
Id. § 16(e)(1)(A) & (B). In considering
settlement is ‘‘within the reaches of the
Email: dducore@ftc.gov. these statutory factors, the court’s
public interest.’’ More elaborate
The proposed Final Judgment inquiry is necessarily a limited one, as
requirements might undermine the
provides that this Court retains the government is entitled to ‘‘broad
effectiveness of antitrust enforcement by
jurisdiction over this action, and the discretion to settle with the defendant
consent decree.
parties may apply to this Court for any within the reaches of the public Bechtel, 648 F.2d at 666 (emphasis
order necessary or appropriate for the interest.’’ United States v. Microsoft added) (citations omitted).2 In
modification, interpretation, or Corp., 56 F.3d 1448, 1461 (D.C. Cir. determining whether a proposed
enforcement of the Final Judgment. 1995); see generally United States v. settlement is in the public interest, a
SBC Commc’ns, Inc., 489 F. Supp. 2d 1 district court ‘‘must accord deference to
VI. ALTERNATIVES TO THE (D.D.C. 2007) (assessing public interest
PROPOSED FINAL JUDGMENT the government’s predictions about the
standard under the Tunney Act); United
As an alternative to the proposed States v. U.S. Airways Group, Inc., 38 F. 1 The 2004 amendments substituted ‘‘shall’’ for
Final Judgment, the United States Supp. 3d 69, 75 (D.D.C. 2014) (noting ‘‘may’’ in directing relevant factors for court to
that the court’s ‘‘inquiry is limited’’ consider and amended the list of factors to focus on
considered pursuing a full trial on the competitive considerations and to address
merits against the Defendant. The because the government has ‘‘broad potentially ambiguous judgment terms. Compare 15
United States is satisfied, however, that discretion’’ to determine the adequacy U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1)
the proposed relief is an appropriate of the relief secured through a (2006); see also SBC Commc’ns, 489 F. Supp. 2d at
settlement); United States v. InBev N.V./ 11 (concluding that the 2004 amendments ‘‘effected
remedy in this matter. Given the facts of minimal changes’’ to Tunney Act review).
this case, including the Defendant’s self- S.A., No. 08–1965 (JR), 2009–2 Trade 2 Cf. BNS, 858 F.2d at 464 (holding that the
reporting of the violation and Cas. (CCH) ¶ 76,736, 2009 U.S. Dist.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
court’s ‘‘ultimate authority under the [APPA] is
willingness to promptly settle this LEXIS 84787, at *3 (D.D.C. Aug. 11, limited to approving or disapproving the consent
matter, the United States is satisfied that 2009) (noting that the court’s review of decree’’); United States v. Gillette Co., 406 F. Supp.
a consent judgment is limited and only 713, 716 (D. Mass. 1975) (noting that, in this way,
the proposed civil penalty is sufficient the court is constrained to ‘‘look at the overall
to address the violation alleged in the inquires ‘‘into whether the government’s picture not hypercritically, nor with a microscope,
Complaint and to deter violations by determination that the proposed but with an artist’s reducing glass’’). See generally
remedies will cure the antitrust Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the
similarly situated entities in the future, remedies [obtained in the decree are] so
without the time, expense, and violations alleged in the complaint was inconsonant with the allegations charged as to fall
uncertainty of a full trial on the merits. reasonable, and whether the mechanism outside of the ‘reaches of the public interest’ ’’).
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![8862 Federal Register / Vol. 82, No. 19 / Tuesday, January 31, 2017 / Notices
efficacy of its remedies, and may not against those the court believes could A court can make its public interest
require that the remedies perfectly have, or even should have, been determination based on the competitive
match the alleged violations.’’ SBC alleged’’). Because the ‘‘court’s authority impact statement and response to public
Commc’ns, 489 F. Supp. 2d at 17; see to review the decree depends entirely comments alone. U.S. Airways, 38 F.
also U.S. Airways, 38 F. Supp. 3d at 75 on the government’s exercising its Supp. 3d at 76.
(noting that a court should not reject the prosecutorial discretion by bringing a
proposed remedies because it believes case in the first place,’’ it follows that VIII. DETERMINATIVE DOCUMENTS
others are preferable); Microsoft, 56 F.3d ‘‘the court is only authorized to review There are no determinative materials
at 1461 (noting the need for courts to be the decree itself,’’ and not to ‘‘effectively or documents within the meaning of the
‘‘deferential to the government’s redraft the complaint’’ to inquire into APPA that were considered by the
predictions as to the effect of the other matters that the United States did United States in formulating the
proposed remedies’’); United States v. not pursue. Microsoft, 56 F.3d at 1459– proposed Final Judgment.
Archer-Daniels-Midland Co., 272 F. 60. As this Court confirmed in SBC Date: January 17, 2017
Supp. 2d 1, 6 (D.D.C. 2003) (noting that Communications, courts ‘‘cannot look Respectfully submitted,
the court should grant due respect to the beyond the complaint in making the /s/ lllllllllllllllllll
government’s prediction as to the effect public interest determination unless the Kenneth A. Libby,
of proposed remedies, its perception of complaint is drafted so narrowly as to Special Attorney U.S. Department of Justice,
the market structure, and its views of make a mockery of judicial power.’’ 489 Antitrust Division, c/o Federal Trade
the nature of the case). F. Supp. 2d at 15. Commission, 600 Pennsylvania Avenue NW,
Courts have greater flexibility in In its 2004 amendments, Congress Washington, DC 20580, Phone: (202) 326–
approving proposed consent decrees made clear its intent to preserve the 2694, Email: klibby@ftc.gov.
than in crafting their own decrees practical benefits of utilizing consent
following a finding of liability in a decrees in antitrust enforcement, adding UNITED STATES DISTRICT COURT
litigated matter. ‘‘[A] proposed decree the unambiguous instruction that FOR THE DISTRICT OF COLUMBIA
must be approved even if it falls short ‘‘[n]othing in this section shall be United States of America, Plaintiff, v.
of the remedy the court would impose construed to require the court to Ahmet H. Okumus, Defendant.
on its own, as long as it falls within the conduct an evidentiary hearing or to Case No.: 1:17–cv–00104
range of acceptability or is ‘within the require the court to permit anyone to Judge: Rosemary M. Collyer
reaches of public interest.’ ’’ United intervene.’’ 15 U.S.C. 16(e)(2); see also Filed: 01/17/2017
States v. Am. Tel. & Tel. Co., 552 F. U.S. Airways, 38 F. Supp. 3d at 76
FINAL JUDGMENT
Supp. 131, 151 (D.D.C. 1982) (citations (indicating that a court is not required
omitted) (quoting United States v. to hold an evidentiary hearing or to Plaintiff, the United States of
Gillette Co., 406 F. Supp. 713, 716 (D. permit intervenors as part of its review America, having commenced this action
Mass. 1975)), aff’d sub nom., Maryland under the Tunney Act). This language by filing its Complaint herein for
v. United States, 460 U.S. 1001 (1983); codified what Congress intended when violation of Section 7A of the Clayton
see also U.S. Airways, 38 F. Supp. 3d at it enacted the Tunney Act in 1974, as Act, 15 U.S.C. 18a, commonly known as
76 (noting that room must be made for the author of this legislation, Senator the Hart-Scott-Rodino Antitrust
the government to grant concessions in Tunney, explained: ‘‘The court is Improvements Act of 1976, and Plaintiff
the negotiation process for settlements nowhere compelled to go to trial or to and Defendant Ahmet H. Okumus, by
(citing Microsoft, 56 F.3d at 1461)); engage in extended proceedings which their respective attorneys, having
United States v. Alcan Aluminum Ltd., might have the effect of vitiating the consented to the entry of this Final
605 F. Supp. 619, 622 (W.D. Ky. 1985) benefits of prompt and less costly Judgment without trial or adjudication
(approving the consent decree even settlement through the consent decree of any issue of fact or law herein, and
though the court would have imposed a process.’’ 119 Cong. Rec. 24,598 (1973) without this Final Judgment
greater remedy). To meet this standard, (statement of Sen. Tunney). Rather, the constituting any evidence against or an
the United States ‘‘need only provide a procedure for the public interest admission by the Defendant with
factual basis for concluding that the determination is left to the discretion of respect to any such issue:
settlements are reasonably adequate the court, with the recognition that the NOW, THEREFORE, before the taking
remedies for the alleged harms.’’ SBC court’s ‘‘scope of review remains of any testimony and without trial or
Commc’ns, 489 F. Supp. 2d at 17. sharply proscribed by precedent and the adjudication of any issue of fact or law
Moreover, the court’s role under the nature of Tunney Act proceedings.’’ herein, and upon the consent of the
APPA is limited to reviewing the SBC Commc’ns, 489 F. Supp. 2d at 11.3 parties hereto, it is hereby
remedy in relationship to the violations ORDERED, ADJUDGED, AND
that the United States has alleged in its 3 See also United States v. Enova Corp., 107 F.
DECREED:
Complaint, and does not authorize the Supp. 2d 10, 17 (D.D.C. 2000) (noting that the
court to ‘‘construct [its] own ‘‘Tunney Act expressly allows the court to make its I.
public interest determination on the basis of the
hypothetical case and then evaluate the competitive impact statement and response to The Court has jurisdiction of the
decree against that case.’’ Microsoft, 56 comments alone’’); United States v. Mid-Am. subject matter of this action and of the
F.3d at 1459; see also U.S. Airways, 38 Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade Plaintiff and the Defendant. The
Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977)
F. Supp. 3d at 75 (noting that the court (‘‘Absent a showing of corrupt failure of the Complaint states a claim upon which
must simply determine whether there is
asabaliauskas on DSK3SPTVN1PROD with NOTICES
government to discharge its duty, the Court, in relief can be granted against the
a factual foundation for the making its public interest finding, should . . . Defendant under Section 7A of the
government’s decisions such that its carefully consider the explanations of the
government in the competitive impact statement
Clayton Act, 15 U.S.C. 18a.
conclusions regarding the proposed and its responses to comments in order to
settlements are reasonable); InBev, 2009 determine whether those explanations are
II.
U.S. Dist. LEXIS 84787, at *20 reasonable under the circumstances.’’); S. Rep. No. Judgment is hereby entered in this
93–298, at 6 (1973) (‘‘Where the public interest can
(concluding that ‘‘the ‘public interest’ is be meaningfully evaluated simply on the basis of
matter in favor of Plaintiff and against
not to be measured by comparing the briefs and oral arguments, that is the approach that Defendant, and, pursuant to Section
violations alleged in the complaint should be utilized.’’). 7A(g)(1) of the Clayton Act, 15 U.S.C.
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![Federal Register / Vol. 82, No. 19 / Tuesday, January 31, 2017 / Notices 8863
18a(g)(1), and the Federal Civil Penalties NATIONAL AERONAUTICS AND Center, Huntsville, AL 35812, (256)
Inflation Adjustment Act Improvements SPACE ADMINISTRATION 544–5226.
Act of 2015, Pub. L. 114–74 §701
[Notice: (17–003)] SUPPLEMENTARY INFORMATION: This
(amending the Federal Civil Penalties
notice of intent to grant an exclusive
Inflation Adjustment Act of 1990), and Notice of Intent To Grant Exclusive patent license is issued in accordance
Federal Trade Commission Rule 1.98, 16 Patent License with 35 U.S.C. 209(e) and 37 CFR
CFR 1.98, 81 FR 42,476 (June 30, 2016), 404.7(a)(1)(i). The patent rights in these
Defendant is hereby ordered to pay a AGENCY: National Aeronautics and
Space Administration. inventions have been assigned to the
civil penalty in the amount of one United States of America as represented
hundred eighty thousand dollars ACTION: Notice of intent to grant
exclusive patent license. by the Administrator of the National
($180,000). Payment of the civil penalty Aeronautics and Space Administration.
ordered hereby shall be made by wire NASA hereby gives notice of
SUMMARY: The prospective exclusive license will
transfer of funds or cashier’s check. If its intent to grant an exclusive patent comply with the requirements of 35
the payment is made by wire transfer, license in the United States to practice U.S.C. 209 and 37 CFR 404.7.
Defendant shall contact Janie Ingalls of the invention described and claimed in
the Antitrust Division’s Antitrust Information about other NASA
U.S. Patent Number 7,867,589 entitled inventions available for licensing can be
Documents Group at (202) 514–2481 for ‘‘Hybrid Cryogenic Tank Construction
instructions before making the transfer. found online at http://
and Method of Manufacture thereof;’’ technology.nasa.gov.
If the payment is made by cashier’s U.S. Patent Number 7,641,949 entitled
check, the check shall be made payable ‘‘Pressure Vessel with Improved Impact Mark P. Dvorscak,
to the United States Department of resistance and Method of making the Agency Counsel for Intellectual Property.
Justice and delivered to: same;’’ U.S. Patent Number 8,561,829 [FR Doc. 2017–02007 Filed 1–30–17; 8:45 am]
Janie Ingalls entitled ‘‘Composite Pressure Vessel
BILLING CODE 7510–13–P
including Crack Arresting Barrier;’’ U.S.
United States Department of Justice Patent Number 8,297,468 entitled ‘‘Fuel
Antitrust Division, Antitrust Documents Tank for Liquefied Natural Gas’’ and
Group U.S. Patent Number 6,953,129 entitled NATIONAL SCIENCE FOUNDATION
450 5th Street, NW ‘‘Pressure Vessel with Impact and Fire
Resistant and Method of making same’’ Sunshine Act Meetings; National
Suite 1024 to Cimarron Composites, having its Science Board
Washington, D.C. 20530 principal place of business in
Huntsville, Alabama (USA). The fields The National Science Board’s
Defendant shall pay the full amount
of use may be limited to design and Committee on Strategy, pursuant to NSF
of the civil penalty within thirty (30)
manufacturing of composite tanks and regulations (45 CFR part 614), the
days of entry of this Final Judgment. In pressure vessels for aerospace and other
the event of a default or delay in National Science Foundation Act, as
commercial applications. amended (42 U.S.C. 1862n–5), and the
payment, interest at the rate of eighteen
DATES: The prospective exclusive Government in the Sunshine Act (5
(18) percent per annum shall accrue
license may be granted unless, within U.S.C. 552b), hereby gives notice of the
thereon from the date of the default or
fifteen (15) days from the date of this scheduling of a teleconference for the
delay to the date of payment.
published notice, NASA receives transaction of National Science Board
III. written objections including evidence business, as follows:
and argument that establish that the
Each party shall bear its own costs of grant of the license would not be DATE AND TIME: Tuesday, February 7,
this action. consistent with the requirements 2017 at 11:30 to 12:30 p.m. EST. Open
regarding the licensing of federally session: 11:30 to 12:00 p.m.; closed
IV. session: 12:00 to 12:30 p.m.
owned inventions as set forth in the
Entry of this Final Judgment is in the Bayh-Dole Act and implementing SUBJECT MATTER: Open meeting subject:
public interest. The parties have regulations. Competing applications Review and discuss draft charge for the
complied with the requirements of the completed and received by NASA Committee on Strategy. Closed meeting
Antitrust Procedures and Penalties Act, within fifteen (15) days of the date of subject: Review and discuss NSF draft
15 U.S.C. 16, including making copies this published notice will also be Strategic Plan, 2018–2022.
available to the public of this Final treated as objections to the grant of the
Judgment, the Competitive Impact contemplated exclusive license. STATUS: Partly open, partly closed.
Statement, and any comments thereon Objections submitted in response to this This meeting will be held by
and the United States’ responses to notice will not be made available to the teleconference. A public listening line
comments. Based upon the record public for inspection and, to the extent will be available for the open portion of
before the Court, which includes the permitted by law, will not be released the meeting. Members of the public
Competitive Impact Statement and any under the Freedom of Information Act. must contact the Board Office (call 703–
comments and response to comments ADDRESSES: Objections relating to the 292–7000 or send an email message to
asabaliauskas on DSK3SPTVN1PROD with NOTICES
filed with the Court, entry of this Final prospective license may be submitted to nationalsciencebrd@nsf.gov) at least 24
Judgment is in the public interest. Mr. James J. McGroary, Chief Patent hours prior to the teleconference for the
Counsel/LS01, Marshall Space Flight public listening number. Please refer to
Dated: lllllllllllllllll Center, Huntsville, AL 35812, (256)
the National Science Board Web site for
lllllllllllllllllllll 544–0013. additional information and schedule
United States District Judge FOR FURTHER INFORMATION CONTACT: Mr. updates (time, place, subject matter or
[FR Doc. 2017–02024 Filed 1–30–17; 8:45 am] Sammy Nabors, Technology Transfer status of meeting) which may be found
BILLING CODE 4410–11–P Office/ZP30, Marshall Space Flight at http://www.nsf.gov/nsb/notices/. The
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Document Created: 2017-01-31 00:20:09
Document Modified: 2017-01-31 00:20:09
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Dates | January 17, 2017 Respectfully submitted, /s/-------------------------------------------------------------------- Kenneth A. Libby, Special Attorney U.S. Department of Justice, Antitrust Division, c/o Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, Phone: (202) 326-2694, Email: [email protected] | |
| FR Citation | 82 FR 8858 |
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