Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Notices 21017 

Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16. 

United States District Judge. lllllll

[FR Doc. 2011–9106 Filed 4–13–11; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Google Inc. and ITA 

Software Inc., 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. 

Google Inc. and ITA Software Inc., Civil 

Case No. 1:11–cv–00688. On April 8, 

2011, the United States filed a 

Complaint alleging that Google’s 

proposed acquisition of ITA Software 

Inc. would substantially reduce 

competition in the online travel 

planning industry, in violation of 

Section 7 of the Clayton Act, 15 U.S.C. 

18. The proposed Final Judgment would 

require Google to continue licensing 

ITA Software’s products for a period of 

five years following the merger. 

Copies of the Complaint, proposed 

Final Judgment and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

450 Fifth Street, NW., Suite 1010, 

Washington, DC 20530 (telephone: 202– 

514–2481), on the Department of 

Justice’s Web site at http:// 

www.justice.gov/atr, and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia. 

Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to James J. Tierney, 

Chief, Networks and Technology 

Section, Antitrust Division, U.S. 

Department of Justice, 450 Fifth Street, 

NW., Suite 7100, Washington, DC 20530 

(telephone: 202–307–6200). 

Patricia A. Brink, 

Director of Civil Enforcement. 

In the United States District Court for 

the District of Columbia 

United States of America, United States 

Department of Justice, Antitrust Division, 450 

Fifth Street, NW., Suite 7100, Washington, 

DC 20530, Plaintiff, v. Google Inc., 1600 

Amphitheatre Parkway, Mountain View, CA 

94043, and ITA Software, Inc., 141 Portland 

Street, Cambridge, MA 02139, Defendants. 

Civil Action No. 1:11–cv–00688. 

Filed: 4/8/2011. 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil action against Google Inc. 

(‘‘Google’’) and ITA Software, Inc. 

(‘‘ITA’’) pursuant to the antitrust laws of 

the United States to enjoin Google’s 

proposed acquisition of ITA, and to 

obtain such other equitable relief as the 

Court deems appropriate. The United 

States alleges as follows: 

I. Nature of Action 

1. On July 1, 2010, Google, a 

significant provider of general Internet 

search and search advertising in the 

United States, entered into a merger 

agreement to acquire ITA, the provider 

of the leading independent airfare 

pricing and shopping system (‘‘P&S 

system’’), for $700 million. P&S systems 

provide flight pricing, schedule and seat 

availability information to Internet 

travel sites. 

2. Online travel represents a 

significant share of e-commerce in the 

United States. Consumers rely on the 

Internet to make their travel plans, and 

often begin by shopping for airfare. 

Online travel intermediaries (‘‘OTIs’’) 

such as Orbitz, Kayak and Expedia 

allow consumers to compare flight 

prices, schedules, and seat availability 

on multiple airlines simultaneously. 

OTIs, and the flight search services they 

offer, have become very popular with 

consumers who want to ensure they are 

getting the best deal. Indeed, most U.S. 

consumers compare flight options on an 

OTI Web site before purchasing a ticket 

online. 

3. ITA’s P&S system, QPX, powers a 

significant share of the domestic 

comparative flight searches conducted 

by U.S. consumers. ITA licenses QPX to 

many of the most popular and 

innovative OTI’s providing comparative 

flight search services, including Orbitz, 

Kayak, and Microsoft’s Bing Travel. 

QPX is a critical flight search tool for 

many of its licensees, as other P&S 

systems cannot match its speed and 

flexibility, and are not poised to do so 

in the near future. Thus, these OTIs 

currently have no adequate alternatives 

to QPX and will not have any following 

the merger. 

4. Google has the most widely used 

general Internet search engine in the 

United States and is the leading seller 

of Internet search advertising. Google 

seeks to expand its search services by 

launching an Internet travel site to offer 

comparative flight search services. 

5. The proposed merger will give 

Google the means and incentive to use 

its ownership of QPX to foreclose or 

disadvantage its prospective flight 

search rivals by degrading their access 

to QPX, or denying them access to QPX 

altogether. As a result, the proposed 

merger is likely to result in reduced 

quality, variety, and innovation for 

consumers of comparative flight search 

services. 

II. Jurisdiction, Venue and Commerce 

6. The United States brings this action 

under Section 15 of the Clayton Act, as 

amended, 15 U.S.C. 25, to prevent and 

restrain Google and ITA from violating 

Section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18. 

7. Google is a corporation organized 

and existing under the laws of the State 

of Delaware, with its principal place of 

business located in Mountain View, CA. 

In 2009, Google earned more than $23 

billion in revenues in the United States. 

Google is engaged in interstate 

commerce and in activities substantially 

affecting interstate commerce. It sells 

online search advertising throughout the 

United States. Its sales of online search 

advertising in the United States 

represent a regular, continuous and 

substantial flow of interstate commerce, 

and have had a substantial effect upon 

interstate commerce. 

8. ITA is a corporation organized and 

existing under the laws of the State of 

Delaware, with its principal place of 

business located in Cambridge, MA. ITA 

is engaged in interstate commerce and 

in activities substantially affecting 

interstate commerce. It makes sales 

throughout the United States. Its sales in 

the United States represent a regular, 

continuous and substantial flow of 

interstate commerce, and have had a 

substantial effect upon interstate 

commerce. 

9. The Court has subject-matter 

jurisdiction over this action and these 

defendants pursuant to Section 15 of the 

Clayton Act, as amended, 15 U.S.C. 25, 

and 28 U.S.C. 1331, 1337(a), and 1345. 

10. Venue is proper in this District 

under Section 12 of the Clayton Act, 15 

U.S.C. 22, and 28 U.S.C. 1391(b)(1) and 

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21018 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Notices 

(c). Defendants Google and ITA transact 

business and are found within the 

District of Columbia. Google and ITA 

have submitted to personal jurisdiction 

in this District. 

III. The Merger Is Likely To Lessen 

Competition Substantially in the 

Market for Comparative Flight Search 

Services in the United States 

A. Overview of Comparative Flight 

Search Services and P&S Systems 

11. Major airlines developed the first 

flight search systems in the 1950s and 

1960s for their own internal use. In the 

1970s, the airlines started releasing 

specialized versions of these systems for 

use by professional ‘‘brick and mortar’’ 

travel agents. These systems provided 

both flight search and booking 

functionality. They were known first as 

‘‘computer reservation systems’’ 

(‘‘CRSs’’), and later as ‘‘global 

distribution systems’’ (‘‘GDSs’’) as 

airlines divested their ownership 

interests and the companies expanded 

their presence outside of the United 

States. The GDS firms function as 

intermediaries between the airlines 

looking to sell tickets and travel agents 

with customers looking to buy tickets. 

12. The early flight search systems 

were relatively limited in their search 

capabilities. They generated a limited 

set of results per query, and did not 

present the list of flight options in a 

user-friendly format. Travel agents 

received special training in order to use 

the systems, and brought their training 

and experience to bear both in 

performing flight queries and 

interpreting the results for consumers. 

Consumers made travel decisions based 

on information extracted from these 

systems by professional travel agents. 

13. With the advent of the Internet, 

two different types of OTIs emerged that 

allow U.S. consumers to search for 

domestic flight prices, schedules, and 

seat availability on multiple airlines 

simultaneously: Online travel agencies 

(‘‘OTAs’’) such as Expedia, Travelocity 

and Priceline, and travel meta-search 

engines (‘‘Metas’’) such as Kayak, 

TripAdvisor and Bing Travel. Like the 

‘‘brick and mortar’’ travel agencies, 

OTAs provide both flight search and 

booking services. Also like the ‘‘brick 

and mortar’’ travel agencies, OTAs split 

booking fees with the GDSs. They 

supplement this revenue by selling 

advertising on their Web sites to 

airlines, hotels and other companies 

offering travel-related products and 

services. 

14. Metas enable consumers to search 

for flights but do not offer booking 

services. When a consumer on a Meta 

travel site enters a flight query, the Meta 

provides a set of flight options, and for 

each option, a set of links to various 

airline and OTA Web sites. To purchase 

a ticket, the consumer must click a link 

to an airline or OTA Web site. In 

contrast to OTAs, which generate 

revenue primarily through booking fees 

and secondarily through advertising 

sales, Metas generate revenue through 

advertising sales and referral fees 

collected from the airlines and OTAs. 

15. To attract traffic, Metas generally 

offer innovative flight search features 

that capture the consumer’s attention, 

and provide an array of attractive flight 

options in response to each query. 

Metas also prioritize quick response 

times because consumers on their sites 

are often at an earlier stage of the travel 

planning process, and are less likely to 

endure a prolonged wait for search 

results. Although Metas are the 

newcomers, they are driving 

competition in comparative flight search 

services through innovation, and are 

progressively gaining ground. 

16. To perform a flight search on an 

OTA or a Meta, a consumer typically 

enters an origin and destination city and 

desired travel dates and times. The 

travel site then provides a number of 

options on different airlines with 

varying routes and pricing. Some travel 

sites—particularly the Metas—also offer 

more sophisticated and innovative flight 

search features, for example, a fare 

predictor that allows consumers to 

identify the best time to buy a ticket for 

a particular trip, or an ‘‘anywhere’’ 

feature that allows them to explore 

different destinations by specifying a 

price range, desired activity (e.g., beach, 

golf, skiing) and desired temperature 

(e.g., average high of 80). 

17. To provide flight search 

functionality, OTAs and Metas rely on 

P&S systems such as ITA’s QPX. A 

system includes not only the P&S 

engine software, but also on-going 

access to seat and fare class availability 

data. When a consumer on a Meta or 

OTA Web site submits a flight query 

(e.g., Boston to San Francisco, March 1, 

2011, returning March 14, 2011), the 

Web site sends the query to the P&S 

system. The P&S system accesses the 

fare, schedule, and seat availability 

information of multiple airlines, and 

uses a sophisticated algorithm to 

analyze the flight possibilities and 

convert the query into a list of available 

flight options. It sends these options 

back to the OTA or Meta, which 

presents the available flight options to 

the consumer in a format that facilitates 

comparison (e.g., organized by price, 

departure or arrival time, or number and 

length of connections). P&S systems 

differ in their speed; flexibility; ability 

to find the lowest price itinerary; ability 

to obtain accurate seat availability 

information; and breadth of results 

presented. 

18. Although the flight queries 

submitted on OTA and Meta Web sites 

are often simple, the computing 

challenges involved in providing the 

underlying flight search functionality 

are quite significant. Airfare pricing and 

seat availability change from moment to 

moment, and are governed by a complex 

system of fare rules that vary by airline. 

There are thousands of possible flight 

paths that can be used to travel between 

any two cities on a given day; when 

different airlines, departure and arrival 

times, and fare codes are taken into 

account, the number of possible flight 

combinations can number in the 

billions. In order to present consumers 

with flight options that are actually 

available for purchase, the billions of 

possible combinations must be checked 

against seat availability data and fare 

rules. 

B. Relevant Product Market 

1. Comparative Flight Search Services 

19. One of the markets affected by this 

transaction is comparative flight search 

services. Comparative flight search 

service providers enable consumers to 

search online for flight prices, 

schedules, and seat availability on 

multiple airlines simultaneously. 

Comparative flight search services is a 

relevant antitrust product market 

because no other flight search service is 

as useful and convenient to consumers. 

20. Current competitors in this market 

include Metas (e.g., Kayak and Bing 

Travel), and OTAs (e.g., Expedia, Orbitz 

and Travelocity) whose comparative 

flight search services can be consumed 

separately from their flight booking and 

other travel services. 

21. Airline Web sites and reservation 

lines are not reasonable substitutes for 

comparative flight search services 

because they do not allow consumers to 

compare prices and schedules across 

multiple airlines simultaneously. It is 

significantly more cumbersome for a 

consumer to compare flight prices and 

schedules by going to many different 

airlines’ Web sites separately, and even 

then the consumer might not find the 

best fare. 

22. Using a ‘‘brick and mortar’’ travel 

agent is also not a reasonable substitute 

for comparative flight search services 

online because travel agents do not 

provide the same sort of user control, 

instantaneous response, and flight 

search flexibility as OTAs and Metas. 

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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Notices 21019 

23. There are no reasonable 

substitutes for comparative flight search 

services, and thus, a small but 

significant degradation in the quality of 

comparative flight search services or 

increase in price to consumers of these 

services would not cause a significant 

number of users to switch to other 

services, such as airline Web sites or 

‘‘brick and mortar’’ travel agents. 

Accordingly, comparative flight search 

services is a relevant product market for 

purposes of Section 7 of the Clayton 

Act. 

2. P&S Systems 

24. This transaction also impacts the 

P&S systems market. P&S systems have 

two main components: a continuouslyupdated database of airline pricing, 

schedule and seat availability 

information, and a software algorithm 

used to search the database for flight 

options that best match consumers’ 

search criteria. The significant 

competitors in this market include ITA, 

Travelport, Sabre, Amadeus, and 

Expedia. 

25. P&S systems is a relevant antitrust 

product market because no other 

comparative flight search technology is 

as fast or as reliable. The closest 

alternative to P&S systems is screenscraping software which pulls or 

‘‘scrapes’’ airline pricing and scheduling 

information from airline Web sites and 

other OTIs instead of accessing a 

centralized database of flight pricing, 

schedule, and seat availability 

information. Screen-scraping technology 

is not a reasonable substitute for P&S 

systems because it is significantly 

slower and less reliable. 

26. A small but significant increase in 

the licensing fees charged to OTIs for 

use of P&S systems would not cause a 

sufficient number of these sites to 

substitute to screen scraping technology 

to make such price increases 

unprofitable. Accordingly, P&S systems 

is a relevant product market for 

purposes of Section 7 of the Clayton 

Act. 

C. Relevant Geographic Market 

1. Comparative Flight Search Services 

27. The relevant geographic market 

for comparative flight search services is 

the United States. All the major OTIs 

that allow consumers to compare 

domestic flight prices and schedules are 

optimized for use by U.S. consumers. 

While some of the Web sites have 

foreign versions (e.g., http:// 

www.expedia.co.uk), the foreign 

versions are not adequate substitutes for 

most U.S. consumers because they list 

flight prices in their local currency, and 

sell tickets in that currency, requiring a 

currency conversion fee. 

2. P&S Systems 

28. The relevant geographic market 

for P&S systems is the United States. In 

order for a P&S system to serve U.S. 

consumers, it must have access to 

comprehensive and reliable seat and 

fare class availability data on routes 

with at least one U.S. endpoint, and 

software which provides fare, tax, and 

fee calculations denominated in U.S. 

dollars. Accordingly, OTIs serving U.S. 

consumers cannot reasonably substitute 

software that is optimized for a different 

geographic market (e.g., Europe) and not 

the United States. 

D. Anticompetitive Effects 

29. The acquisition of ITA by Google 

is likely to lessen competition 

substantially in the market for 

comparative flight search services in the 

United States. After acquiring ITA, 

Google intends to use QPX as the backend technology for its forthcoming 

comparative flight search services. 

Google’s travel service will compete 

with OTIs. As Google has recognized, 

QPX is a unique P&S system because it 

has superior features that cannot be 

quickly replaced or replicated. After 

acquiring QPX, Google will have the 

ability and incentive to foreclose 

competing OTIs’ access to QPX and 

thereby weaken the ability of its rivals 

to compete. 

1. ITA’s QPX Is Dominant in P&S 

Systems and Serves as the Leading 

Platform for Web Sites Offering the Most 

Innovative Flight Search Services 

30. Since its entry into the P&S 

systems market in 2001, ITA has 

dramatically expanded its portfolio of 

customers. ITA has won virtually every 

competition for business in the United 

States in which the customer did not 

already have a P&S system provider or 

product. At the same time, ITA has lost 

very few customers. Today, QPX powers 

all major Metas and three major OTAs 

and handles more domestic flight 

comparison queries than any other P&S 

system. QPX is widely recognized as the 

best P&S system in the U.S. market due 

to its superior speed and flexibility. 

31. QPX has a significant speed 

advantage because it can more quickly 

determine seat availability using its 

proprietary Dynamic Availability 

Calculating System (‘‘DACS’’). ITA’s 

DACS is a unique system which can 

quickly estimate seat availability 

without polling the airlines’ systems 

(which slows the process) or relying on 

data from prior queries (which is 

sometimes stale and inaccurate). Speed 

is important because the longer it takes 

to respond to a query, the greater the 

likelihood that the consumer will 

abandon the search and switch to 

another flight search site. 

32. QPX is also highly configurable. 

QPX has more than a thousand different 

parameters that can be adjusted or 

‘‘tuned’’ to meet the needs of individual 

travel site customers. QPX’s flexibility 

also allows it to more efficiently handle 

the complex queries demanded by more 

innovative flight search features such as 

Bing Travel’s Fare Predictor, which 

predicts whether prices for a particular 

route are trending up or down. 

33. ITA also leads in P&S system 

innovation. For example, ITA is 

developing a new product called 

InstaSearch which relies on cutting-edge 

computing techniques to significantly 

reduce query response times. ITA 

expects InstaSearch to be particularly 

useful in reducing the response times 

for more innovative flight search 

features such as ‘‘calendar’’ features 

which allow consumers to search for the 

lowest fares for a particular route over 

a period of weeks or months; and 

‘‘anywhere’’ features which enable 

consumers to explore different 

destinations by specifying a price range, 

desired activity (e.g., beach, golf, skiing) 

and desired temperature. 

34. QPX’s flexible design makes it the 

tool of choice for Metas. Indeed, ITA is 

the only P&S system currently capable 

of supporting many of the innovative 

comparative flight search services that 

are the core attraction for these travel 

sites. 

2. Currently Available P&S System 

Alternatives Are Not Adequate 

Substitutes for QPX 

35. The three GDSs—Sabre, 

Travelport and Amadeus—license P&S 

systems to third-parties (generally 

OTAs), but usually as part of a broader 

software package that includes booking 

and ticketing functionality. In addition, 

one of the OTAs, Expedia, has a 

proprietary P&S system to support its 

own travel Web site, which is based on 

a GDS product, but it has never licensed 

its system to third parties. 

36. QPX’s significant qualitative 

advantages have prompted some OTIs 

with ready access to a GDS or 

proprietary P&S system to license QPX. 

For example, Hotwire, an OTA, and 

TripAdvisor, a Meta, license QPX even 

though their corporate affiliate, Expedia, 

owns and operates its own proprietary 

P&S system. Similarly, Orbitz and 

Cheaptickets are part-owned (48%) by 

Travelport, one of the GDS firms, but 

have opted to license ITA’s QPX 

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21020 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Notices 

because it provides superior flight 

search functionality. 

37. ITA has a superior flight search 

tool and is driving innovation in P&S 

system technology. Although the GDS 

firms and Expedia have responded by 

improving their P&S systems, they 

continue to be followers rather than 

leaders. As competition both in P&S 

systems and comparative flight search 

services is driven increasingly by 

innovation, the GDS firms have been 

unable to close the gap allowing ITA to 

progressively grow its share. 

3. Google Will Have the Incentive To 

Foreclose Rivals’ Access to QPX 

38. The proposed merger will 

eliminate ITA as an independent and 

unique source of P&S system technology 

for competing OTIs, potentially 

stripping these sites of the technology 

needed to support their existing 

comparative flight search services, and 

delaying or deterring their efforts to 

develop new flight search features. After 

the merger, Google would have the 

ability to use its ownership of QPX to 

foreclose or disadvantage rivals of 

Google’s travel service. For example, 

Google could refuse to renew existing 

QPX contracts, refuse to enter into new 

QPX contracts, enter into contracts on 

less favorable terms than ITA would 

have, or degrade the speed or quality of 

QPX offered to licensees. Unlike ITA, 

Google plans to develop a travel Web 

site. Therefore, Google will have the 

incentive to weaken competing OTIs by 

denying or degrading their access to 

QPX because increased profits from 

driving customers to its new travel 

service from rival OTIs will likely 

outweigh any lost profits from reduced 

licensing revenues from QPX. 

39. The elimination of an 

independent ITA will also reduce travel 

site innovation. ITA partners with many 

different travel sites, and consumers 

have benefitted from the variety of flight 

search features that these collaborations 

have produced. Thus, consumers are 

likely to be harmed through reduced 

innovation and diminished consumer 

choice in the comparative flight search 

services market. 

40. Finally, the proposed merger will 

provide Google access to competitively 

sensitive information from competing 

OTIs relating to their use of QPX, 

including tuning parameters and plans 

to offer new or improved services. 

Disclosure of such competitively 

sensitive information from competitors 

to Google will likely harm competition 

in the market for comparative flight 

services. 

E. Difficulty of Entry in the Comparative 

Flight Search Services Market 

41. The proposed merger would raise 

entry barriers into the comparative flight 

search market by placing QPX into 

Google’s hands and beyond the reach of 

potential entrants. P&S systems are a 

critical input to the provision of 

comparative flight search services. No 

other firm offers a P&S system that is 

comparable to QPX. 

42. The entry barriers associated with 

developing a new P&S system are 

extremely high. Indeed, two firms, 

Vayant and Everbread, have been 

developing P&S systems for several 

years, but have yet to garner any 

significant U.S.-based OTIs as 

customers. In addition, Google looked at 

developing its own P&S system as an 

alternative to acquiring ITA but 

concluded it would take several years 

and require numerous engineers due to 

the complexity of the algorithms. 

VI. Violation Alleged 

43. The United States incorporates the 

allegations of paragraphs 1 through 41 

above. 

44. The proposed transaction between 

Google and ITA would likely 

substantially lessen competition in 

interstate trade and commerce in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18, in the market for 

comparative flight search services in the 

United States. 

VII. Relief Requested 

45. The United States request that: 

a. The proposed merger of Google and 

ITA be adjudged to violate Section 7 of 

the Clayton Act, 15 U.S.C. 18; 

b. Google and ITA be enjoined from 

carrying out the proposed merger or 

carrying out any other agreement, 

understanding, or plan by which Google 

and ITA would acquire, be acquired by, 

or merge with each other; 

c. The United States be awarded their 

costs of this action; and 

d. The United States receive such 

other and further relief as the case 

requires and the Court deems just and 

proper. 

Dated: April 8, 2011. 

Respectfully submitted, 

For Plaintiff United States: 

Katherine B. Forrest, 

Deputy Assistant Attorney General. 

Joseph F. Wayland, 

Deputy Assistant Attorney General. 

Patricia A. Brink, 

Director of Civil Enforcement. 

James J. Tierney, 

(DC Bar # 434610), 

Chief. 

Scott A. Scheele 

(DC Bar # 429061), Assistant Chief, Networks 

and Technology Enforcement Section. 

Aaron D. Hoag, 

Attorney, Networks and Technology 

Enforcement Section, Antitrust Division, U.S. 

Department of Justice, 450 Fifth Street, NW., 

7th Floor, Washington, DC 20530. Telephone: 

(202) 307–6153. Fax: (202) 616–8544. E-mail: 

aaron.hoag@usdoj.gov. 

Michael D. Bonanno, 

(DC Bar # 998208), 

Kent Brown, 

Pam Cole, 

Aaron Comenetz 

(DC Bar # 479572), 

Lauren I. Dubick, 

John F. Greaney, 

F. Patrick Hallagan, 

Danielle G. Hauck, 

Anurag Maheshwary 

(DC Bar # 490535), 

Alexander Paul Okuliar 

(DC Bar # 481103), 

Kathleen S. O’Neill, 

Adam T. Severt, 

Ryan S. Struve 

(DC Bar # 495406), 

Jennifer A. Wamsley 

(DC Bar # 486540), 

Attorneys for the United States. 

Certificate of Service 

I, Aaron D. Hoag, hereby certify that 

on April 8, 2011, I caused a copy of the 

Complaint to be served on defendants 

Google Inc. and ITA Software, Inc. by 

mailing the document via e-mail to the 

duly authorized legal representatives of 

the defendants, as follows: 

For Google: 

John D. Harkrider, 

Axinn, Veltrop & Harkrider LLP, 114 West 

47th Street, New York, NY 10036, E-mail: 

jdh@avhlaw.com. 

For ITA: 

Michele Sasse Harrington, Hogan Lovells US 

LLP, 555 Thirteenth Street, NW., Washington, 

DC 20004. E-mail: 

michele.harrington@hoganlovells.com. 

For Plaintiff United States of America 

Aaron D. Hoag, Attorney, U.S. Department of 

Justice, Antitrust Division, 450 Fifth Street, 

NW., 7th Floor, Washington, DC 20530. Tel: 

(202) 307–6153. Fax: (202) 616–8544. E-mail: 

aaron.hoag@usdoj.gov. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Google Inc., and ITA Software, Inc., 

Defendants. 

Civil Action No. 1:11-cv-00688. 

Filed: 4/8/2011. 

Competitive Impact Statement 

Plaintiff United States of America 

(‘‘United States’’), pursuant to Section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney Act’’), 

15 U.S.C. 16(b)–(h), files this 

Competitive Impact Statement relating 

to the proposed Final Judgment 

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Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Notices 21021 

1 Google has the largest online search engine and 

generates revenue through the sale of online 

advertising. 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of This 

Proceeding 

On July 1, 2010, Google Inc. 

(‘‘Google’’) entered into a merger 

agreement to acquire ITA Software Inc. 

(‘‘ITA’’) for $700 million. ITA develops 

and licenses a software product called 

‘‘QPX.’’ QPX is used by many airlines, 

online travel agents and online travel 

search sites to provide extremely 

complex and customized flight search 

functionality to consumers. QPX has 

unique capabilities and acts as a type of 

mini-search engine for travel sites. 

When a customer wants to know the 

availability and cost of flights from 

Boston to San Francisco, for example, 

QPX is the tool that provides the 

answer. 

Google intends to offer an online 

travel search product that will compete 

with existing travel search sites that 

provide the ability to search for airfares 

across a range of airlines, many of 

whom use QPX; these Web sites are 

referred to as Online Travel 

Intermediaries (‘‘OTIs’’). In essence, 

Google is acquiring a critical input not 

previously owned by a company that is 

a horizontal competitor to users of ITA. 

This transaction therefore posed a 

significant risk that Google could use 

the acquisition to foreclose rivals or 

unfairly raise their costs. Accordingly, 

the United States brought this lawsuit 

against Google and ITA on April 8, 

2011, seeking to enjoin the proposed 

transaction. Following a thorough 

investigation, the United States believes 

that, unless enjoined, the likely effect of 

the transaction as proposed by the 

parties would be to lessen competition 

substantially for comparative flight 

search services in violation of Section 7 

of the Clayton Act, 15 U.S.C. 18. This 

loss of competition likely would result 

in reduced innovation and reduced 

consumer choice in the comparative 

flight search market. 

Simultaneous with the filing of the 

Complaint, the United States also filed 

a proposed Final Judgment designed to 

remedy the Section 7 violation. The 

Final Judgment does not settle any 

claims which may arise under any other 

provisions of the laws, including 

Section 2 of the Sherman Act. 

Under the proposed Final Judgment, 

which is explained more fully below, 

Defendants are subject to a variety of 

affirmative obligations, all of which are 

designed to ensure ongoing access to 

QPX for current ITA licensees and to 

enable new entrants or new licensees to 

obtain the QPX software on fair, 

reasonable, and non-discriminatory 

terms. The licensing provisions require 

Google to honor existing QPX licenses 

for OTIs, renew existing licenses under 

similar terms and conditions, and offer 

licenses to any OTIs not under contract 

on fair, reasonable, and nondiscriminatory terms, judged in 

reference to similarly situated entities. 

Google must continue with the 

development of ordinary course 

upgrades and enhancements to QPX, 

and must devote substantially as many 

resources to research and development 

for QPX as ITA did prior to the 

acquisition. Google must license 

InstaSearch, an add-on to QPX which 

enables consumers to enter more 

flexible and creative queries in 

searching for flights. Google must 

observe strict firewall commitments to 

ensure the confidentiality of licensee 

information. In addition, Google must 

report certain complaints that it has 

directly or indirectly treated OTIs 

unfairly. This obligation will enable 

OTIs who believe that Google has acted 

in an unfair manner with respect to 

flight search advertising 1 to make 

complaints and have written complaints 

brought directly to the attention of the 

Department of Justice. 

Google’s affirmative obligations 

ensure that OTIs will have continued 

access to QPX after the merger, while 

preserving Google’s ability to use QPX 

and ITA’s engineering talent as a 

platform for developing new and 

innovative flight search services for 

consumers. The proposed Final 

Judgment therefore strikes an 

appropriate balance between competing 

interests by preserving the potential 

significant efficiencies from the 

combination of Google’s and ITA’s 

complementary expertise while 

redressing the potential for 

anticompetitive foreclosure that could 

result from the acquisition. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA, unless the 

United States withdraws its consent. 

Entry of the proposed Final Judgment 

would terminate this action, except that 

this Court would retain jurisdiction to 

construe, modify, and enforce the 

proposed Final Judgment and to punish 

violations thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Comparative Flight Search 

Industry 

Over the past decade, consumer 

access to direct search and booking of 

air travel has been revolutionized. The 

Internet has provided consumers with 

tools that enable them directly to search 

for customized itineraries. Innovation in 

flight search tools has provided 

consumers with quick and convenient 

access to the most responsive and useful 

itineraries and prices. Two different 

types of Web sites enable U.S. 

consumers to conduct Internet searches 

for domestic flight prices, schedules, 

and seat availability on multiple airlines 

simultaneously: Online travel agencies 

(‘‘OTAs’’) and travel meta-search engines 

(‘‘Metas’’). In many respects, OTAs 

function like the online equivalent of 

brick and mortar travel agents, assisting 

users in identifying travel options and 

then in booking the consumer’s choice. 

Examples of OTAs are Expedia, 

Travelocity, and Priceline. By contrast, 

the so-called Metas, such as Kayak, 

TripAdvisor, and Bing Travel, provide 

highly differentiated products with 

broad search capabilities—functioning 

almost like mini-search engines to 

enable consumers to search for flights. 

The Metas, however, do not offer direct 

booking services (i.e., to purchase a 

ticket, consumers must click a link to an 

airline’s Web site or to an OTA). The 

largest Metas are all powered by QPX. 

In addition to providing comparative 

flight search services, both Metas and 

OTAs often enable consumers to search 

for other travel products and services 

such as hotel rooms, rental cars, and 

vacation packages. When described 

together, OTAs and Metas constitute 

OTIs. 

To perform a flight search on any OTI, 

a consumer typically enters an origin 

and destination city and desired travel 

dates. The OTI then provides a number 

of options on different airlines with 

varying routes and pricing. Some travel 

sites—particularly the Metas powered 

by QPX, which has some unique 

capabilities and advantages—also offer 

more sophisticated and innovative flight 

search features, such as a fare predictor 

that allows consumers to identify the 

best time to buy a ticket for a particular 

trip, or an ‘‘anywhere’’ feature that 

allows them to explore different 

destinations by specifying a desired 

price range, activity, and/or temperature 

at the destination. 

To provide flight search functionality, 

OTIs rely on pricing and shopping 

(‘‘P&S’’) systems. ITA’s QPX is a 

sophisticated P&S system that is 

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differentiated in several respects from 

its competitors. P&S systems include 

not only the engine that performs the 

search, but also on-going access to seat 

and fare class availability data. When a 

consumer on a OTI Web site submits a 

flight query (e.g., Boston to San 

Francisco, departing March 1, 2011, 

returning March 14, 2011), the Web site 

sends the query to the P&S system. The 

P&S system accesses the fare, schedule, 

and seat availability information of 

multiple airlines, and uses a 

sophisticated algorithm to analyze the 

flight possibilities and convert the query 

into a list of available flight options. It 

sends these options back to the OTI, 

which presents the available flight 

options to the consumer in a format that 

facilitates comparison (e.g., organized 

by price, departure or arrival time, or 

number and length of connections). 

QPX is a highly accurate and well 

developed P&S system. 

B. The Defendants and the Proposed 

Transaction 

Google’s principal business is an 

online search engine. Measured by the 

number of search queries or advertising 

revenue, Google is the largest search 

engine by far. See Author’s Guild v. 

Google, No. 05 Civ. 8136 (DC), 2011 WL 

986049, at *12 (S.D.N.Y. Mar. 22, 2011) 

(recognizing ‘‘Google’s market power in 

the online search market’’). In 2009, 

Google earned more than $23 billion in 

revenues in the United States. Google 

derives nearly all of its revenue from 

online search advertising, or the ads 

accompanying search engine results. 

Google’s only significant online 

search engine competitor is Bing, which 

has a much smaller share of both 

queries and advertising revenue. In 

addition to providing general purpose 

search engines, Google and Bing also 

provide specialized search sites, known 

as ‘‘vertical’’ sites. Bing, for example, 

offers a travel site that utilizes QPX to 

provide comparative flight search 

services. In conjunction with its 

acquisition of QPX, Google has 

announced its intention to launch new 

travel search functionality on its Web 

sites. 

ITA is the leading producer of P&S 

systems in the United States. ITA’s 

software is widely used by airlines and 

OTIs to search for, price, and display 

results for airline travel queries. 

On July 1, 2010, Google and ITA 

entered into a merger agreement. 

Unremedied, this transaction would 

provide Google with the incentive and 

ability to foreclose rivals (actually or 

effectively) from the comparative flight 

search market. This could be 

accomplished by preventing licensees 

and potential licensees access to the 

leading comparative flight search 

product, QPX, or by hobbling them by 

failing to continue development at 

levels commensurate with the premerger environment. This would 

diminish competition in this market and 

effectively diminish consumer choice. 

The transaction would substantially 

lessen competition in the comparative 

flight search market and is the subject 

of the Complaint and proposed Final 

Judgment filed by the United States in 

this matter. 

C. Relevant Markets 

Antitrust law, including Section 7 of 

the Clayton Act, protects consumers 

from anticompetitive conduct, such as 

firms’ acquisition of the ability to raise 

prices or reduce choice. Market 

definition assists antitrust analysis by 

focusing attention on those markets 

where competitive effects are likely to 

be felt. Well-defined markets encompass 

the economic actors including both 

sellers and buyers whose conduct most 

strongly influences the nature and 

magnitude of competitive effects. To 

ensure that antitrust analysis takes 

account of a broad enough set of 

products to evaluate whether a 

transaction is likely to lead to a 

substantial lessening of competition, 

defining relevant markets in merger 

cases frequently begins by identifying a 

collection of products or set of services 

over which a hypothetical monopolist 

profitably could impose a small but 

significant and non-transitory increase 

in price. 

Here, the United States’s investigation 

revealed that all OTIs rely on a P&S 

system, such as ITA’s QPX, to drive the 

comparative airfare search offerings 

such Web sites offer their users. Should 

one company control all P&S systems, 

OTIs would have no alternative 

products to which they could turn to 

defeat a price increase. As such, the 

market for P&S systems is a relevant 

product market. 

The comparative flight search market 

is an additional relevant market 

implicated by this merger. The market 

participants are OTIs that offer the 

ability for users to compare flights and 

prices across different airlines. 

Comparative flight search is a relevant 

market because there are no reasonable 

substitutes consumers could turn to if a 

company controlling all comparative 

flight search Web sites reduced the 

quality of its service. Airline Web sites 

and reservation lines are not reasonable 

substitutes because they do not offer the 

comparative aspect of OTIs. Brick and 

mortar travel agents are also not 

reasonable substitutes because travel 

agents do not provide the same sort of 

user control, instantaneous response, 

and flight search flexibility as OTIs. 

Accordingly, comparative flight search 

services is a relevant product market. 

Antitrust analysis must also consider 

the geographic dimensions of 

competition. Here, the relevant markets 

exist within the United States and are 

not affected by competition outside the 

United States. The competitive 

dynamics for both markets is distinctly 

different outside the United States. 

D. Competitive Effects 

Since its introduction to the market in 

2001, ITA has been the leader in P&S 

systems. ITA has won nearly every 

competition for business in the United 

States in which the customer did not 

already have a P&S system in place. ITA 

has also lost very few customers due to 

its ability to provide highly and 

uniquely customized P&S functionality. 

ITA’s customers include two of the five 

largest OTAs in the United States, and 

all five of the largest Metas. ITA’s P&S 

system, QPX, has an advantageous 

position against its competitors in terms 

of speed, configurability, and accuracy. 

QPX consistently leads the industry in 

innovation. In short, ITA has a leading 

position in P&S systems. From a 

competition perspective, ITA’s 

corporate independence from any 

particular OTI ensures that all of its 

customers receive the benefits of ITA’s 

cutting edge innovation—i.e., there is 

currently no vertically integrated OTI 

owned by ITA that receives favorable 

treatment relative to ITA’s other 

customers. 

This will not be the case once Google 

purchases ITA. Google intends to 

launch a new service after completing 

the transaction that will compete 

directly with other OTIs by providing 

flight search results. Because so many 

OTIs rely on ITA as an input to their 

services, Google will have the ability 

and incentive to either shut off access to 

ITA to those competitors, or degrade the 

quality of QPX that is available to those 

competitors. Such actions in the 

upstream pricing and shopping market 

would substantially reduce competition 

in the downstream comparative flight 

search market. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment sets 

forth: (1) Requirements regarding the 

parties’ continued licensing and 

improvement of QPX; (2) requirements 

regarding the parties’ licensing of 

InstaSearch, a new flight search 

technology under development by ITA; 

(3) procedures for resolving disputes 

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between OTIs and the parties regarding 

licensing of QPX or InstaSearch; (4) 

requirements for the creation of a 

firewall at the parties’ business 

regarding use of competitively sensitive 

information gained through provision of 

QPX or InstaSearch services; and (5) 

oversight procedures the United States 

may use to ensure compliance with the 

proposed Final Judgment. Section IX of 

the proposed Final Judgment states that 

these provisions will expire five years 

after entry of the proposed Final 

Judgment. 

As discussed earlier, the United 

States’ concerns regarding the proposed 

transaction revolve around Google’s 

ability and incentive to weaken its 

competitors in the comparative flight 

search market by denying or degrading 

their access to QPX. Denying or 

degrading rivals’ access to QPX would 

potentially diminish competition in the 

comparative flight search market. 

Therefore, as discussed in more detail 

below, the key remedies embodied 

within the proposed Final Judgment 

include guarantees that the key products 

on which OTIs rely will continue to be 

available in a robust fashion for at least 

five years after the entry of the Final 

Judgment. Five years will provide those 

OTIs that do not wish to be dependent 

on Defendants’ P&S system a sufficient 

period of time to switch to an 

alternative system. 

A. Licensing and Improving of QPX 

Section IV.A–G of the proposed Final 

Judgment preserves competition for 

OTIs by creating a legally enforceable 

commitment that Defendants will 

continue to license and improve QPX. 

Sections IV.A–C require Defendants to 

honor the terms of all QPX agreements 

in effect as of the entry of the Final 

Judgment, negotiate extensions to 

existing QPX agreements with any OTI 

on the terms set forth in the OTI’s 

existing contract for up to five years 

from the entry of the Final Judgment, 

and negotiate new QPX agreements with 

any OTI who is not party to an existing 

QPX agreement on terms that are fair, 

reasonable, and non-discriminatory. 

Section IV.D prohibits Defendants 

from entering into any new QPX 

agreement that would prevent an OTI 

from using alternative products to QPX. 

Defendants and an OTI, however, are 

free to enter into an exclusive QPX 

agreement if Defendants offer a nonexclusive agreement on fair, reasonable, 

and non-discriminatory terms. 

Section IV.E requires Defendants to 

make available to OTIs ordinary course 

upgrades to QPX at the same price those 

upgrades are made available to other 

customers. Section IV.F requires 

Defendants to devote substantially the 

same resources to the research and 

development and maintenance of QPX 

for the use of customers as ITA did in 

the average of the two years prior to the 

filing of the Complaint. This 

requirement eases concerns that postmerger Defendants will let the QPX 

product languish without committing 

resources to improve it over time. 

Finally, Google intends to introduce a 

new travel search service that will 

include airfare pricing and shopping 

functionality. Section IV.G provides that 

Defendants are not required to offer 

OTIs any product, service or 

functionality that Google develops 

exclusively for its new travel search 

service. 

B. Licensing of InstaSearch 

Prior to the proposed transaction, ITA 

was developing a product, called 

InstaSearch, for license to customers 

that promised to be the next generation 

in pricing and shopping services. 

InstaSearch was being developed to use 

a cache of results to provide 

instantaneous or near-instantaneous 

results to airfare search queries. One 

concern of the proposed transaction is 

that Google will prevent this innovative 

product from being made available to its 

OTI competitors. As such, the decree 

aims to ensure InstaSearch is available 

for license. 

Sections IV.H–J of the proposed Final 

Judgment preserves competition for 

OTIs by requiring Defendants to 

negotiate InstaSearch agreements for 

terms up to five years from the entry of 

the Final Judgment. While ITA 

developed InstaSearch for future sale, it 

has not sold a commercial version of the 

product to any customers. ITA, 

however, has entered into a contract 

with one customer to deliver a ‘‘proof of 

concept’’ implementation of InstaSearch. 

The proposed Final Judgment requires 

Defendants to offer OTIs at least the 

same functionality as contained in the 

proof of concept attached to the 

proposed Final Judgment, and requires 

Defendants to make commercially 

reasonable efforts to ensure that the 

InstaSearch implementation conforms to 

the proposed technical specifications. 

Should Defendants provide an 

InstaSearch implementation to any of 

their customers that is superior to the 

version envisioned by the proof of 

concept, the proposed Final Judgment 

requires Defendants to make that 

improved product available to all OTIs. 

Finally, the proposed Final Judgment 

allows Defendants to charge fair, 

reasonable and non-discriminatory fees 

for InstaSearch. 

C. Arbitration Provisions 

The proposed Final Judgment requires 

that the Defendants negotiate in good 

faith with any OTI, but also sets forth 

certain procedures by which Defendants 

and OTIs can resolve disputes over the 

fees charged for any type of service 

should Defendants and an OTI not reach 

agreement over fees. As described in 

Sections IV.K–M, Defendants shall 

submit to binding arbitration over the 

disputed fees once certain conditions 

have been met. The Defendants and the 

OTI must, prior to submitting a matter 

to arbitration, designate a person at each 

company with the authorization to 

resolve the dispute in a final and 

binding fashion, and those individuals 

must meet in an attempt to resolve a 

dispute. Additionally, prior to 

Defendants’ being obligated to enter into 

binding arbitration with an OTI, that 

OTI must certify to the United States 

that it negotiated in good faith with 

Defendants, and further receive consent 

of the United States to initiate 

arbitration. Upon receiving consent of 

the United States to initiate arbitration, 

the OTI may commence arbitration 

through the American Arbitration 

Association. The parties may agree to 

suspend the arbitration proceedings to 

attempt to resolve the dispute. 

These procedures ensure that 

Defendants negotiate in good faith with 

all OTIs, and that if an agreement 

cannot be reached between the OTI and 

Defendants on a price term, that a 

resolution can be had quickly by an 

impartial third party using clear 

benchmarks from existing contracts. For 

non-price terms, the traditional decree 

enforcement provisions will provide the 

mechanism for resolving disputes. 

D. Additional Provisions 

Section V of the proposed Final 

Judgment prohibits Google from taking 

certain actions that could undermine 

the purpose of the proposed Final 

Judgment. Access to airline seat and 

booking class information is a critical 

input to a P&S system. To ensure that 

Defendants do not restrict access to this 

crucial information, Section V.A 

prohibits Defendants from entering into 

agreements with an airline that restricts 

the airline’s right to share seat and 

booking class information with 

Defendants’ competitors, unless one or 

more airlines enter into exclusive 

agreements with a competitor. Subject 

to certain limitations, Sections V.B–C 

require Google to make available to OTIs 

any seat and booking class information 

Defendants obtain for use in Google’s 

new flight search service. Finally, 

Section V.D prohibits Defendants from 

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conditioning the provision of QPX or 

InstaSearch on whether or how much an 

OTI spends on other products or 

services sold by Google. 

E. Firewall Requirements 

As alleged in the Complaint, 

Defendants could use information and 

data gained through contracts with OTIs 

to then compete with those OTIs. 

Section VI of the proposed Final 

Judgment requires Defendants to 

establish a firewall at the company to 

prevent the misappropriation of 

competitively sensitive information and 

data. That section requires that 

Defendants only use an OTI’s 

confidential information for the 

provision of any product or service to 

that specific OTI, for routine 

administrative or financial purposes, or 

for the continued development and 

improvement of QPX or InstaSearch. 

Google may use more limited query 

information, which does not include 

data regarding how OTIs configure the 

QPX product, for the improvement of 

Defendants’ airfare pricing and 

shopping engines. Section VI.A 

prohibits, subject to a small list of 

exclusions, employees working on 

Google’s travel search product from 

accessing confidential OTI information. 

Section VI.D requires Defendants to 

implement procedures to prevent 

confidential information from being 

used or accessed by employees other 

than those having a legitimate need for 

such information. Finally, Section VI.E 

requires the Defendants to submit its 

proposed procedures to the United 

States for its approval or rejection of 

those procedures. 

F. Compliance 

To facilitate monitoring of 

Defendants’ compliance with the 

proposed Final Judgment, Section VII 

grants the United States access, upon 

reasonable notice, to Defendants’ 

records and documents relating to 

matters contained in the proposed Final 

Judgment. Defendants must also make 

their employees available for interviews 

or depositions about such matters. 

Moreover, upon request, Defendants 

must answer interrogatories and prepare 

written reports relating to matters 

contained in the proposed Final 

Judgment. 

In addition, Sections IV.N–O requires 

Google to create a Web site where OTIs 

can access a copy of the proposed Final 

Judgment and submit complaints that 

Google is violating the terms of the 

proposed Final Judgment or is acting, 

directly or indirectly, in an unfair 

manner in connection with flight search 

advertising in the United States. Google 

must provide copies of these complaints 

to the United States for a period of time 

from the earlier of five years from entry 

of the proposed Final Judgment, or two 

years from the date Google launches its 

new travel flight search service. 

IV. Remedies Applicable to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in Federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against Defendants. 

V. Procedures Applicable for Approval 

or Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least 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 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 the Court’s entry of 

judgment. The comments and the 

response of the United States will be 

filed with the Court and published in 

the Federal Register. 

Written comments should be 

submitted to: James J. Tierney, Chief, 

Networks & Technology Enforcement 

Section, Antitrust Division, United 

States Department of Justice, 450 Fifth 

Street, NW., Suite 7100, Washington, 

DC 20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action, and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, seeking preliminary and 

permanent injunctions against 

Defendants’ transaction and proceeding 

to a full trial on the merits. The United 

States is satisfied, however, that the 

relief in the proposed Final Judgment 

will preserve competition in the 

comparative flight search market. Thus, 

the proposed Final Judgment would 

protect competition as effectively as 

would any remedy available through 

litigation, but avoids the time, expense, 

and uncertainty of a full trial on the 

merits. 

VII. Standard of Review Under the 

APPA for Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a 60-day 

comment period, after which the Court 

shall determine whether entry of the 

proposed Final Judgment ‘‘is in the 

public interest.’’ 15 U.S.C. 16(e)(1). In 

making that determination, the Court, in 

accordance with the statute as amended 

in 2004, is required to consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration of relief sought, 

anticipated effects of alternative remedies 

actually considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the adequacy of 

such judgment that the court deems 

necessary to a determination of whether the 

consent judgment is in the public interest; 

and 

(B) The impact of entry of such judgment 

upon competition in the relevant market or 

markets, upon the public generally and 

individuals alleging specific injury from the 

violations set forth in the complaint 

including consideration of the public benefit, 

if any, to be derived from a determination of 

the issues at trial. 

15 U.S.C. 16(e)(1)(A) & (B). In 

considering these statutory factors, the 

Court’s inquiry is necessarily a limited 

one as the United States 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 (DC 

Cir. 1995); see generally United States v. 

SBC Commc’ns, Inc., 489 F. Supp. 2d 1 

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1The 2004 amendments substituted ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for a court to 

consider and amended the list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms. Compare 15 

U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); 

see also SBC Commc’ns, 489 F. Supp. 2d at 11 

(concluding that the 2004 amendments ‘‘effected 

minimal changes’’ to Tunney Act review). 

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.’ ’’). 

3 See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (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, 93d Cong., 1st Sess., 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.’’). 

(D.D.C. 2007) (assessing public interest 

standard under the Tunney Act); United 

States v. InBev N.V./S.A., 2009–2 Trade 

Cas. (CCH) ¶ 76,736, 2009 U.S. Dist. 

LEXIS 84787, No. 08–1965 (JR), 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

Under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations set forth in the 

United States’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) (citing 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 

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 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-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003) (noting that the court 

should grant due respect to the United 

States’s prediction as to the effect of 

proposed remedies, its perception of the 

market structure, and its views of the 

nature of the case). 

In addition, ‘‘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 

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 InBev, 2009 U.S. 

Dist. LEXIS 84787, at *20 (‘‘[T]he ‘public 

interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d. at 1459–60. Courts 

‘‘cannot look beyond the complaint in 

making the public interest 

determination unless the complaint is 

drafted so narrowly as to make a 

mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments, Congress 

made clear its intent to preserve the 

practical benefits of utilizing consent 

decrees in antitrust enforcement, adding 

the unambiguous instruction that 

‘‘[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). This 

language effectuates what Congress 

intended when it enacted the Tunney 

Act in 1974, as Senator Tunney 

explained: ‘‘[t]he 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 Senator 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

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that the United States considered 

in formulating the proposed Final 

Judgment. 

Dated: April 8, 2011. 

Respectfully submitted, 

For Plaintiff United States of America, 

Aaron D. Hoag, Attorney, U.S. Department of 

Justice, Antitrust Division, 450 Fifth Street, 

NW., 7th Floor, Washington, DC 20530, Tel: 

(202) 307–6153, Fax: (202) 616–8544, E-mail: 

aaron.hoag@usdoj.gov. 

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21026 Federal Register / Vol. 76, No. 72 / Thursday, April 14, 2011 / Notices 

Certificate of Service 

I, Aaron D. Hoag, hereby certify that 

on April 8, 2011, I caused a copy of the 

Competitive Impact Statement to be 

served on defendants Google Inc. and 

ITA Software, Inc. by mailing the 

document via e-mail to the duly 

authorized legal representatives of the 

defendants, as follows: 

For Google: 

John D. Harkrider, 

Axinn, Veltrop & Harkrider LLP, 114 West 

47th Street, New York, NY 10036, E-mail: 

jdh@avhlaw.com. 

For ITA: 

Michele Sasse Harrington, Hogan Lovells 

U.S. LLP, 555 Thirteenth Street, NW., 

Washington, DC 20004, E-mail: 

michele.harrington@hoganlovells.com. 

For Plaintiff United States of America 

Aaron D. Hoag, Attorney, U.S. Department of 

Justice, Antitrust Division, 450 Fifth Street, 

NW., 7th Floor, Washington, DC 20530, Tel: 

(202) 307–6153, Fax: (202) 616–8544, E-mail: 

aaron.hoag@usdoj.gov. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff v. 

Google Inc. and ITA Software, Inc. 

Defendants. 

[Proposed] Final Judgment 

Whereas, Plaintiff United States of 

America (‘‘United States’’) filed its 

Complaint on April 8, 2011, the United 

States and Defendants Google Inc. and 

ITA Software, Inc., by their respective 

attorneys, have consented to 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 the Final 

Judgment pending its approval by the 

Court; 

And whereas, the United States 

requires that Defendants agree to 

undertake certain actions and refrain 

from certain conduct for the purpose of 

remedying the loss of competition 

alleged in the Complaint; 

And whereas, Defendants have 

represented to the United States that the 

actions and conduct restrictions can and 

will be undertaken and that Defendants 

will later raise no claim of hardship or 

difficulty as grounds for asking the 

Court to modify any of the provisions 

contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of Defendants, it is ordered, 

adjudged and decreed: 

I. Jurisdiction 

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). 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘AAA’’ means the American 

Arbitration Association. 

B. ‘‘Affiliate’’ means, with respect to 

any entity, another entity that controls, 

is controlled by or is under common 

control of the first entity. 

C. ‘‘Airline Customer’’ means a 

Customer that operates an airline or is 

an Affiliate of an airline. 

D. ‘‘Availability Information’’ means 

information about the availability of a 

seat at a specific booking class on a 

specific flight obtained by ITA as an 

input to QPX, including information in 

ITA’s Dynamic Availability Calculating 

System and its system for processing 

other types of availability data, 

including Availability Status (‘‘AVS’’) 

and Numeric Availability Status 

(‘‘NAVS’’), but excluding fully computed 

pricing and shopping results. 

E. ‘‘Covered Employee’’ means an 

employee of a Defendant having as a job 

responsibility the day-to-day 

development of, or day-to-day strategic 

decision-making with respect to, the 

Google Consumer Flight Search Service, 

other than an Excepted Employee. 

F. ‘‘Customer’’ means a company that 

has entered into a QPX Agreement or an 

agreement for InstaSearch with 

Defendants. Customer does not include 

Google or ITA. 

G. ‘‘Customized Software’’ means any 

version of QPX or the InstaSearch 

Service that is modified specifically for 

a Customer in response to a request 

made by a Customer for particular 

features or functionality not included in 

the commercially available version of 

QPX or the InstaSearch Service. If the 

modified version is made available to 

other Customers (other than Affiliates of 

the requesting Customer), it no longer 

qualifies as ‘‘Customized Software’’ 

(provided that Customized Software that 

is provided in response to good faith 

requests from two or more Customers 

may be substantially similar). 

H. ‘‘Database Query,’’ with respect to 

any OTI, has the definition set forth in 

the QPX Agreement in effect between 

ITA and such OTI (or a definition given 

therein for ‘‘observation query’’). 

I. ‘‘Defendants’’ means Google and 

ITA, as defined below, and any 

successor or assign to all or 

substantially all of the business or assets 

of Google and ITA involved in the 

provision of QPX, the InstaSearch 

Service, or the Google Consumer Flight 

Search Service. 

J. ‘‘Embedded Software’’ means any 

version of QPX or the InstaSearch 

Service that is modified from the 

commercially available version for the 

purpose of integrating it into software 

that provides significantly greater 

functionality than QPX or the 

InstaSearch Service, such as a passenger 

reservation system or Internet booking 

engine. The software into which such 

version of QPX is integrated shall also 

be deemed ‘‘Excluded Software.’’ 

K. ‘‘EU’’ means an execution unit (a 

measure of the independent processing 

cores in a server). For example, a single 

core such as an Intel Pentium 4 has one 

EU, whereas a dual core chip such as 

the Intel Pentium D has two EUs. A dual 

Intel Pentium D server, in turn, would 

have four EUs. 

L. ‘‘Excepted Employee’’ means an 

individual employed by ITA at the time 

of the complaint in this matter who has 

been designated in writing by 

Defendants and approved by the United 

States. With the consent of the United 

States, which shall not be unreasonably 

withheld, Defendants shall be entitled 

to designate a replacement for any 

Excepted Employee who is no longer 

employed by Defendants or ceases to 

have day-to-day job responsibilities 

involving QPX or InstaSearch. 

M. ‘‘Excluded Information’’ means: 

(1) Information available to the public 

or obtained by a Defendant from a thirdparty not under an obligation of 

confidentiality to the OTI licensee of 

QPX who disclosed such information to 

a Defendant; 

(2) Information obtained by Google as 

part of its Web search business; 

(3) Information provided to a 

Defendant in connection with a product 

or service other than QPX or the 

InstaSearch Service; and 

(4) Schedule, fare, flight or 

availability information of any airline. 

N. Nothing in any QPX Agreement 

shall be read as modifying the definition 

of Excluded Information so as to require 

Defendants to treat any Excluded 

Information as OTI Confidential 

Information pursuant to this Final 

Judgment. 

O. ‘‘Excluded Software’’ means (i) 

Customized Software; (ii) Embedded 

Software; and (iii) Experimental 

Software. 

P. ‘‘Experimental Software’’ means a 

beta or test version of QPX or the 

InstaSearch Service that is made 

available to a limited number of 

customers, for a limited period of time, 

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specifically for the purpose of testing 

new or modified features prior to the 

commercial release of those new or 

modified features as part of QPX or the 

InstaSearch Service. While Defendants 

remain free to determine whether a new 

or modified feature is ever ultimately 

incorporated into the commercially 

available version of QPX or the 

InstaSearch Service that must be 

licensed pursuant to this Final 

Judgment, Defendants may not use the 

exclusion of Experimental Software to 

circumvent the licensing obligation set 

forth in Section IV.E. 

Q. ‘‘Final Offer’’ means the proposed 

pricing terms for a QPX Agreement and/ 

or InstaSearch Agreement, pursuant to 

which Defendants will provide QPX 

and/or InstaSearch to the OTI. 

R. ‘‘Google’’ means Defendant Google 

Inc., a Delaware corporation 

headquartered in Mountain View, 

California, any successor to all or 

substantially all of its business or assets, 

and its subsidiaries (whether partially or 

wholly owned), divisions, groups, 

Affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees (but 

excluding in all cases ITA, as defined 

below). 

S. ‘‘Google Consumer Flight Search 

Service’’ means a publicly available Web 

site, product or service owned or 

operated by a Defendant that provides 

airfare price, schedule or Availability 

Information to consumers based on 

results returned from an airfare pricing 

and shopping engine, as well as any 

syndicated versions thereof. 

T. ‘‘Google Services’’ means Web sites, 

products or services owned or operated 

by a Defendant, including but not 

limited to the Google Consumer Flight 

Search Service. 

U. ‘‘InstaSearch’’ means a technology 

under development by ITA prior to the 

date of the Complaint herein in which 

specified pricing and shopping queries 

are pre-computed using QPX, stored in 

a cache and made available to one or 

more Customers from the cache. 

V. ‘‘InstaSearch Agreement’’ means an 

agreement between a Defendant and an 

OTI, negotiated pursuant to the terms of 

this Final Judgment, providing such OTI 

the right to submit queries to the 

InstaSearch Service, subject to the terms 

and conditions set forth in Section IV.H 

of this Final Judgment. 

W. ‘‘InstaSearch Proof of Concept’’ 

means a specific implementation of 

InstaSearch, incorporating a QPX cache 

and associated interfaces, that ITA, prior 

to the date of the Complaint herein, 

agreed to deliver as a proof-of-concept 

to a Customer, as more fully defined in 

a Solution Document/Interface 

Definition Document (the ‘‘InstaSearch 

POC Solution Document’’), attached to 

this Final Judgment as Exhibit 1. 

X. ‘‘InstaSearch Service’’ means the 

service to be offered by Defendants to 

OTIs as required by this Final Judgment 

having the same InstaSearch 

functionality as the InstaSearch Proof of 

Concept but permitting an OTI to vary 

the number of covered markets and the 

targeted refresh rate. 

Y. ‘‘ITA’’ means Defendant ITA 

Software, Inc., a Delaware corporation 

headquartered in Cambridge, 

Massachusetts, and its subsidiaries 

(whether partially or wholly owned), 

divisions, groups, Affiliates, 

partnerships, and joint ventures, and 

their directors, officers, managers, 

agents, and employees (but excluding in 

all cases Google, as defined above.) 

Z. ‘‘Level 1 Query’’ means a specific 

type of pricing and shopping query, 

with the definition and input and 

output data definitions specified in the 

InstaSearch POC Solution Document, 

which, when submitted to the 

InstaSearch Service, returns certain 

cached results. As explained in detail in 

the InstaSearch POC Solution 

Document, a Level 1 Query will return 

data that enables the OTI to populate a 

map showing to the user the best price 

to a range of destinations from a 

particular origin over a particular range 

of dates. 

AA. ‘‘Level 2 Query’’ means a specific 

type of pricing and shopping query, 

with the definition and input and 

output data definitions specified in the 

InstaSearch POC Solution Document, 

which, when submitted to the 

InstaSearch Service, is passed through 

to QPX and is not intended to return 

cached results. As explained in detail in 

the InstaSearch POC Solution 

Document, a Level 2 Query narrows the 

result set to the particular destination 

selected during the user’s Level 1 

Query, and returns the cheapest 

solution for a range of departure days 

and stay lengths. 

BB. ‘‘Level 3 Query’’ means a query 

submitted to the InstaSearch Service 

other than a ‘‘Level 1 Query’’ or ‘‘Level 

2 Query.’’ 

CC. ‘‘Live Query,’’ with respect to any 

OTI, has the definition set forth in the 

QPX Agreement in effect between ITA 

and such OTI (or a definition given 

therein for ‘‘user query’’). 

DD. ‘‘OTI,’’ or online travel 

intermediary, means a Web site offering 

(or proposing to offer) airfare search 

functionality to consumers in the 

United States, other than a Web site 

owned or operated by an airline. 

Provided, however, that in the case of 

an OTI that is a line of business, 

business unit, subsidiary, or Affiliate of 

a company that also has non-OTI lines 

of business, business units, subsidiaries 

or Affiliates, the provisions in this Final 

Judgment that apply to OTIs will only 

apply to that line of business, business 

unit, subsidiary or Affiliate that offers 

airfare search services to consumers, 

and not to lines of business, business 

units, subsidiaries or Affiliates that do 

not offer airfare search services to 

consumers. 

EE. ‘‘OTI Confidential Information’’ 

means confidential and proprietary 

inventions, products, designs and ideas 

(including computer software), 

functionality, concepts, processes, 

internal structure, external elements, 

user interfaces, technology, and 

documentation belonging to an OTI, OTI 

Configuration Information, as well as 

confidential and proprietary 

information relating to the OTI’s 

operations, plans, opportunities, 

finances, research, technology, 

developments, know-how, and 

personnel, that is disclosed to a 

Defendant by an OTI pursuant to a QPX 

Agreement or an InstaSearch Agreement 

to which such OTI is a party, except to 

the extent that such information is 

Excluded Information. 

FF. ‘‘OTI Configuration Information’’ 

means information related to an OTI’s 

configuration or tuning of QPX or the 

InstaSearch Service or the parameters 

used by the OTI for particular types of 

queries. 

GG. ‘‘OTI Plan Information’’ means 

confidential information related to an 

OTI’s current or future product or 

marketing plans that is disclosed by 

such OTI to a Defendant pursuant to a 

QPX Agreement or InstaSearch 

Agreement to which such OTI is a party, 

except to the extent that such 

information is necessary to implement a 

feature or features for the OTI or 

represents Excluded Information. 

HH. ‘‘QA Information’’ means Query 

Information or other information related 

to the performance, quality or accuracy 

of any software or service provided by 

a Defendant in connection with a QPX 

Agreement or InstaSearch Agreement, or 

one or more results generated by any 

such software or service, including: 

(1) Reports of bugs or defects; 

(2) Information related to the success 

or failure of an attempt to book or 

otherwise use a pricing and shopping 

solution provided by Defendants; 

(3) Information related to the 

existence of solutions which potentially 

should have been, but were not, 

included in the results provided by 

Defendants; and 

(4) Information related to instances in 

which other sources of information or 

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methods of calculation lead to a 

different fare than that calculated by 

Defendants’ products or services for a 

particular pricing and shopping solution 

(without regard to the merits of the 

different calculations). 

(5) QA Information may include OTI 

Configuration Information to the extent 

that it is associated with a particular 

query, result, report or request, provided 

that Defendants may not access the 

information in order to separate OTI 

Configuration Information from the QA 

Information as a whole, or to use the 

OTI Configuration Information for a 

purpose prohibited by Section VI. 

II. ‘‘QPX’’ means the airfare pricing 

and shopping engine and Related 

Software deployed in production by ITA 

for Customers as of the date of the 

Complaint herein (provided that 

nothing in this Final Judgment shall 

confer any rights to use the Related 

Software other than to the extent that 

such Related Software is used by QPX), 

together with any enhancements, 

upgrades, updates, or bug fixes thereto 

that Defendants must develop or license 

pursuant to Sections IV.E and IV.F of 

this Final Judgment, whether or not 

licensed under the name QPX, provided 

that in no event shall QPX include: 

(1) Fare management capabilities that 

are part of ITA’s Rule and Fare Display 

System; 

(2) Refund/reissue capability using 

Airline Tariff Publishing Company 

(‘‘ATPCO’’) Category 31 and Category 33; 

(3) Award travel or frequent flyer 

related functionality; 

(4) InstaSearch in any form (including 

but not limited to that comprised in the 

InstaSearch Proof of Concept or required 

to be licensed pursuant to this Final 

Judgment), or any other technology 

having substantially greater or different 

hardware requirements than QPX as 

deployed in production by ITA for 

Customers (other than any Excluded 

Software) as of the date of the 

Complaint herein that is not otherwise 

required to be licensed pursuant to 

existing QPX Agreements or the terms of 

this Final Judgment; 

(5) Middleware or other applications 

that may be related to, but are separate 

from, the base airfare pricing and 

shopping engine; 

(6) Any Web site or consumer-facing 

interface, application or technology, 

whether or not syndicated to multiple 

Web sites, including but not limited to 

the Google Services; 

(7) Any product, service, application, 

technology, feature, or functionality not 

made available to Customers, whether 

or not derived from or based upon QPX, 

including, but not limited to, any 

product, service, application, 

technology, feature, or functionality that 

is exclusively used in or by one or more 

Google Services; or 

(8) Excluded Software. 

JJ. ‘‘QPX Agreement’’ means an 

agreement, other than an InstaSearch 

Agreement, between a Defendant and a 

Customer permitting the Customer to 

submit queries to or otherwise use QPX, 

whether denominated as a License 

Agreement, Services Agreement, or 

otherwise. 

KK. ‘‘Qualifying Complaint’’ means a 

written complaint from an OTI that (i) 

identifies the OTI on behalf of whom 

the complaint is submitted; and (ii) 

alleges that Google is violating this Final 

Judgment or acting, directly or 

indirectly, in an unfair manner in 

connection with flight search 

advertising in the United States. 

LL. ‘‘Query Information’’ means 

information related to the execution and 

results of a particular query, including 

the query submitted to such service, the 

results returned in response to such 

query, operational data related to the 

execution of the query (e.g. the 

particular server(s) on which it was 

executed, the time it was received, the 

length of time needed to execute it, etc.), 

any intermediate results or errors 

generated during the execution of the 

query, and any information that is 

known or received regarding the success 

or failure of the query for the Customer 

(e.g. bookability or pricing errors in the 

results). 

MM. ‘‘Related Software’’ means 

availability management and other 

software operated by ITA in connection 

with the provision of pricing and 

shopping results to Customers as of the 

date of the Complaint herein. 

NN. ‘‘Reporting Period’’ means the 

period beginning upon the entry of this 

Final Judgment and expiring at the 

earlier of (i) five years from the entry of 

the Final Judgment; or (ii) two years 

from the date that Google launches a 

Google Consumer Flight Search Service. 

OO. ‘‘Similarly Situated OTIs’’ means, 

with respect to any particular OTI 

seeking to enter into a QPX Agreement 

or InstaSearch Agreement, other OTIs 

having actual, reasonably expected (in 

terms of the OTI’s own projections of its 

expected volume), and/or minimum 

QPX or InstaSearch query volumes (in 

the aggregate and as to specific types of 

queries) and, for QPX Agreements, fee 

metrics (e.g. per-query, per-ticket or perPassenger Name Record (‘‘PNR’’)), that 

are similar to those of such OTI (but 

excluding the OTI itself and its 

Affiliates). This provision shall be 

interpreted broadly so as to avoid, 

where reasonably possible, the situation 

where an OTI has no or few Similarly 

Situated OTIs. 

III. Applicability 

This Final Judgment applies to 

Defendants, as defined above, and all 

other persons in active concert or 

participation with any of them who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

IV. Required Conduct 

Licensing of QPX 

A. Defendants shall honor the terms 

of all QPX Agreements in effect as of the 

entry of this Final Judgment (including 

terms related to customization and 

query tuning services for QPX), except 

and unless the terms of this Final 

Judgment provide additional rights to, 

or eliminate restrictions on, OTIs, in 

which case Defendants may not enforce 

such terms against the OTI. 

B. At the request of any OTI who is 

a party to a QPX Agreement as of the 

entry of this Final Judgment, Defendants 

shall negotiate an extension of such 

OTI’s QPX Agreement for a term set at 

the reasonable discretion of the OTI (but 

that shall be no less than one year and 

that need not extend beyond five years 

from the entry of this Final Judgment, 

provided that if such extension would 

commence more than four years from 

the entry of this Final Judgment, its term 

shall expire five years from the entry of 

this Final Judgment), on: 

(1) Commercial terms (e.g. price, 

functionality, minimum query volumes 

and permitted uses of QPX, as well as 

customization and query tuning services 

for QPX) that are substantially similar to 

those governing such OTI’s use of QPX 

as of the entry of the Final Judgment, 

and 

(2) Other terms (e.g. audit rights, 

choice of law and indemnification) that 

are fair, reasonable, and nondiscriminatory. 

(3) Notwithstanding anything in this 

paragraph, Defendants shall not require 

an OTI to include in an extension any 

provision that Defendants would be 

prohibited from requiring in a new QPX 

Agreement pursuant to section IV.D of 

this Final Judgment, provided that, if an 

OTI elects to remove such a provision 

from the extension, or requests an 

extension with a different term than its 

QPX Agreement in effect as of the entry 

of the Final Judgment, the commercial 

terms of such extension shall be 

modified in a corresponding manner 

that is fair, reasonable and nondiscriminatory in light of the 

commercial terms of QPX Agreements 

in effect between Defendants and 

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Similarly Situated OTIs as of or 

subsequent to the date of this Final 

Judgment. 

C. At the request of any OTI who is 

not party to a QPX Agreement, or whose 

QPX Agreement will expire within one 

year of such request, Defendants shall 

negotiate a QPX Agreement with such 

OTI for a term set at the reasonable 

discretion of the OTI (but that shall be 

no less than one year and that need not 

extend beyond the date that is five years 

from the entry of this Final Judgment, 

provided that if such QPX Agreement 

would commence more than four years 

from the entry of this Final Judgment, 

its term shall expire five years from the 

entry of this Final Judgment), on: 

(1) Commercial terms (e.g. price, 

functionality, minimum query volumes 

and permitted uses of QPX, as well as 

customization and query tuning services 

for QPX) that are fair, reasonable and 

non-discriminatory judged exclusively 

in relation to the OTI’s chosen contract 

term, desired fee metrics (e.g. per-query, 

per-ticket, or per-PNR), reasonably 

expected query volume, the minimum 

query volume to be included in such 

QPX Agreement, and the commercial 

terms of QPX Agreements in effect 

between Defendants and Similarly 

Situated OTIs as of or subsequent to the 

date of this Final Judgment, and 

(2) Other terms (e.g. audit rights, 

choice of law, and indemnification) that 

are fair, reasonable, and nondiscriminatory. 

D. Defendants may not require that a 

QPX Agreement entered into pursuant 

to Section IV.B or Section IV.C of this 

Final Judgment prevent the OTI from 

using alternative products to QPX sold 

by companies other than Defendants. 

Defendants and the OTI may, however, 

enter an exclusive QPX Agreement if 

Defendants offer the OTI a nonexclusive agreement on fair, reasonable, 

and non-discriminatory terms. 

E. All QPX Agreements with OTIs 

shall include the right to use ordinary 

course upgrades to QPX that Defendants 

make available to Customers without 

additional charge during the term of 

such QPX Agreement. If Defendants 

make an ordinary course upgrade to 

QPX available to Customers, but require 

the payment of an additional charge, 

Defendants may condition the use of 

such upgrade pursuant to this paragraph 

upon the payment of an equivalent 

charge, provided that such charge is fair, 

reasonable, and non-discriminatory. 

Defendants shall make available to OTIs 

the same version of QPX as they make 

available to Customers, including but 

not limited to any version made 

available to Airline Customers. This 

paragraph does not require Defendants 

to make available to OTIs InstaSearch or 

any other product, feature or technology 

excluded from the definition of QPX 

above, including the Excluded Software. 

F. Defendants shall, on an annual 

basis, devote substantially as many (or 

more) engineering resources (in terms of 

budget and full-time-equivalent 

employees) to the research and 

development and maintenance of QPX 

and the InstaSearch Service (other than 

resources devoted to the development of 

the InstaSearch Proof of Concept as 

required by agreements entered into by 

ITA prior to the date of the Complaint 

herein) for the use of Customers as ITA 

did in the average of the two years prior 

to the filing of the Complaint herein 

(excluding resources devoted by ITA to 

any aspect of its passenger service 

system, reservations system, inventory 

system or Internet booking engine, 

including but not limited to the 

integration of QPX into such system, 

and resources devoted to the 

development of products or services 

that are excluded from the definition of 

QPX in this Final Judgment, including 

but not limited to ITA’s InstaSearch). 

Defendants shall make commercially 

reasonable efforts to respond to 

Customers’ requests for development of 

QPX, consistent with ITA’s past practice 

prior to the date of the Complaint 

herein. Provided, however, that: 

(1) If the amount of revenue derived 

by Defendants from third-party 

licensing of QPX materially decreases 

during the term of the Final Judgment, 

Defendants shall be permitted to make 

a corresponding reduction in the 

amount of resources committed 

pursuant to this paragraph, provided 

that Defendants shall obtain the consent 

of the United States prior to making 

such reduction, which consent shall not 

be unreasonably withheld or delayed; 

and 

(2) The degree to which particular 

efforts benefit Defendants or Google 

Services shall not be considered in 

evaluating whether such efforts qualify 

as ‘‘research and development and 

maintenance of QPX for the use of 

Customers,’’ so long as those efforts are 

legitimately beneficial to Customers and 

not solely beneficial to Defendants or 

Google Services. 

G. Nothing in this Final Judgment 

shall require Defendants to provide to 

any third party any product, service, or 

technology (or feature thereof) that 

Defendants develop exclusively for use 

in the Google Services, nor shall any 

such product, service, or technology, or 

the relative functionality of one or more 

Google Services (including, but not 

limited to, the Google Consumer Flight 

Search Service) when compared to 

third-party Web sites using QPX, be 

considered in determining Defendants’ 

compliance with any provision of this 

Final Judgment. 

(1) Licensing of InstaSearch 

H. At the request of any OTI, 

Defendants shall negotiate an 

InstaSearch Agreement with such OTI 

for a term set at the reasonable 

discretion of the OTI (but that shall be 

no less than one year and that need not 

extend beyond five years from the entry 

of this Final Judgment, provided that if 

such InstaSearch Agreement would 

commence more than four years from 

the entry of this Final Judgment, its term 

shall expire five years from the entry of 

this Final Judgment). Such InstaSearch 

Agreement shall: 

(1) Offer the OTI the same 

functionality as the InstaSearch Proof of 

Concept, except that Defendants shall 

permit the OTI to increase the number 

of markets covered and contemplated 

cache refresh rate beyond that of the 

InstaSearch Proof of Concept, subject to 

the payment of appropriate fees as set 

forth below (and such InstaSearch 

Agreement shall expressly provide that 

Defendants shall have no obligation to 

implement any other functionality); 

(2) At Defendants’ option, disclaim 

any representations, warrantees, 

guarantees, or service level agreements 

as to the performance of the InstaSearch 

Service, or its fitness for any use, 

notwithstanding any statements to the 

contrary made by ITA in connection 

with the InstaSearch Proof of Concept, 

including but not limited to in the 

InstaSearch POC Solution Document, 

provided that if, during the term of such 

QPX Agreement, Defendants make any 

representations, warrantees, guarantees 

or service level agreements to any 

Customers as to the performance of the 

InstaSearch Service, Defendants shall 

offer the same representations, 

warrantees, guarantees or service level 

agreements to OTIs with equivalent 

projected usage of the InstaSearch 

Service (including the number and 

types of markets to be covered, refresh 

rate, provisioned hardware and total 

expected volume), subject to such OTI 

agreeing to pay a fair, reasonable and 

non-discriminatory fee for the receipt of 

such representation, warrantee, 

guarantee or service level agreement, 

which may differ from the pricing 

structure and limits set forth in Section 

IV.H.4 below. 

(3) Provide that Defendants shall have 

no obligation to improve the InstaSearch 

Service, except that: 

(a) If during the term of such 

InstaSearch Agreement, Defendants 

provide their Customers, including 

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solely Airline Customers, an 

implementation of InstaSearch with 

greater functionality than the 

InstaSearch Service described herein 

without requiring them to pay an 

additional charge (other than in 

Excluded Software), Defendants shall 

make reasonable commercial efforts to 

also make such improved version 

available to the OTI pursuant to its 

InstaSearch Agreement (recognizing that 

not all implementations will be suitable 

for all types of Customers even after the 

use of reasonable commercial efforts), 

under the same pricing terms provided 

for in such InstaSearch Agreement; and 

(b) If Defendants require its 

Customers, including its Airline 

Customers, to pay an additional fee to 

obtain an upgrade which can be 

provided to OTIs with reasonable 

commercial efforts, Defendants shall 

offer the upgrade to OTIs with an 

InstaSearch Agreement, but may 

condition availability of the upgrade on 

payment of a fair, reasonable, and nondiscriminatory charge (which may differ 

from the pricing structure and limits set 

forth in Section IV.H.4 below); 

(4) Obligate the OTI to: 

(a) Provision with Defendants a 

number of EUs for its InstaSearch 

Service that, in Defendants’ discretion, 

which shall be applied in a fair, 

reasonable, and non-discriminatory 

manner, is reasonable given the OTI’s 

intended covered markets and refresh 

rate, and to pay a monthly per-EU fee 

for each EU so provisioned (including 

any EUs used for computing, storing, 

managing or retrieving cached results) 

equal to the lesser of (i) for OTIs with 

a QPX Agreement in effect, the per-EU 

fee set forth in such QPX Agreement 

(giving effect to all volume discounts 

and aggregating EUs provisioned for 

InstaSearch with those provisioned for 

other purposes, including, but not 

limited to, QPX.); or (ii) a per-EU fee 

that is fair, reasonable, and nondiscriminatory solely in light of the EU 

fees charged by Defendants to Similarly 

Situated OTIs in QPX Agreements then 

in effect. 

(b) Pay a fair, reasonable and nondiscriminatory per-query fee for each 

Level 1 and Level 2 Query it submits to 

the InstaSearch Service that shall be (i) 

greater than the effective per-query fee 

paid by such OTI for Database Queries 

(or, if no such rate exists, an amount 

that is fair, reasonable, and nondiscriminatory in light of the effective 

per-query fees then charged by 

Defendants to Similarly Situated OTIs 

for Database Queries), and (ii) less than 

the effective per-query fee paid by such 

OTI for Live Queries (or, if no such rate 

exists, an amount that is fair, 

reasonable, and non-discriminatory in 

light of the effective per-query fees then 

charged by Defendants to Similarly 

Situated OTIs for Live Queries); and 

(c) Pay a per-query fee for each Level 

3 Query it submits equal to the effective 

per-query fee paid by such OTI for Live 

Queries (or, if no such rate exists, an 

amount that is fair, reasonable, and nondiscriminatory in light of the effective 

per-query fees then charged by 

Defendants to Similarly Situated OTIs 

for Live Queries). 

I. Defendants shall make 

commercially reasonable efforts to 

ensure that the InstaSearch Service 

conforms to the technical specifications 

set forth in the InstaSearch POC 

Solution Document, but it is specifically 

understood that, other than as set forth 

in any representations, warrantees, 

guarantees or service level agreements 

that Defendants are otherwise required 

to make pursuant to this Final 

Judgment, or that Defendants make in 

any particular InstaSearch Agreement, 

Defendants make no representation, 

either to the United States, the Court or 

to any Customer that the InstaSearch 

Service will prove commercially useful 

for any Customer. 

J. Nothing in this Final Judgment shall 

be deemed to require Defendants to 

permit an OTI to host any portion of the 

InstaSearch Service, or the EUs used for 

such service, on the OTI’s own 

hardware, notwithstanding any 

provisions of such OTI’s QPX 

Agreement. 

K. Arbitration 

L. Defendants shall negotiate in good 

faith with any OTI seeking a QPX 

Agreement or an InstaSearch Agreement 

pursuant to this Final Judgment 

(including, but not limited to, existing 

licensees seeking to renew their 

agreements). If Defendants and the OTI 

are unable to reach agreement on the 

amount to be charged for any type of 

query pursuant to Sections IV.B.1, 

IV.C.1, or IV.H.4 of this Final Judgment, 

Defendants shall submit the matter to 

binding arbitration under the following 

conditions: 

(1) Prior to submitting any matter to 

arbitration, Defendants and the OTI 

shall each designate a contact having 

the proper authorization to resolve the 

dispute in a final and binding fashion, 

who shall meet in person or by 

telephone for a period of 30 days (or 

such other period of time as Google and 

the OTI shall mutually agree) in an 

attempt to resolve the dispute. The 

contact for Defendants shall be Google’s 

General Counsel or his or her designee. 

(2) No arbitration shall be commenced 

unless the OTI (i) has certified to the 

United States that it negotiated in good 

faith, including participation in the 

resolution procedure described in the 

preceding paragraph; and (ii) has 

obtained the consent of the United 

States, in its sole discretion, to initiate 

arbitration. 

(3) Arbitration pursuant to this Final 

Judgment shall be conducted in 

accordance with the AAA’s Commercial 

Arbitration Rules and Expedited 

Procedures, except where inconsistent 

with specific procedures prescribed by 

this Final Judgment. As described below 

in Section IV.J.12, the arbitrator shall 

select the Final Offer of either the OTI 

or the Defendants and may not alter, or 

request or demand alteration of, any 

terms of those Final Offers. The decision 

of the arbitrator shall be binding on the 

parties as to the matters properly 

submitted to arbitration pursuant to this 

Final Judgment, and Defendants shall 

abide by the arbitrator’s decision by 

offering an executable QPX Agreement 

or InstaSearch Agreement (as 

appropriate) to the OTI incorporating 

the pricing terms selected by the 

arbitrator. 

(4) Defendants and an OTI may, by 

agreement, modify any time periods 

specified in this Section IV.J. 

(5) Upon obtaining the consent of the 

United States to initiate arbitration, the 

OTI may commence arbitration by filing 

with the AAA and furnishing to the 

AAA and the United States its Final 

Offer. Within five business days of the 

commencement of an arbitration, 

Defendants shall file with the AAA and 

furnish to the United States their Final 

Offer. After the AAA has received Final 

Offers from the OTI and Defendants, it 

will immediately furnish a copy of each 

Final Offer to the other party. 

(6) Within five business days of the 

commencement of an arbitration, the 

OTI and the Defendants each shall 

furnish a legally binding writing to the 

other and to the United States 

committing to maintain the 

confidentiality of the arbitration and of 

any Final Offers and discovery materials 

exchanged during the arbitration, and to 

limit the use of any Final Offers and 

discovery materials to the arbitration. 

The writing shall expressly state that all 

records of the arbitration and any 

discovery materials may be disclosed to 

the United States. 

(7) At any time after the 

commencement of arbitration, the OTI 

and Defendants may agree to suspend 

the arbitration, for periods not to exceed 

14 days in the aggregate, to attempt to 

resolve their dispute through 

negotiation. The OTI and the 

Defendants shall effectuate such 

suspension through a joint writing filed 

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with the AAA and furnished to the 

United States. Either the OTI or the 

Defendants may terminate the 

suspension at any time by filing with 

the AAA and furnishing to the United 

States a writing calling for the 

arbitration to resume. 

(8) The AAA, in consultation with the 

United States, shall assemble a list of 

potential arbitrators, to be furnished to 

the OTI and Defendants as soon as 

practicable after commencement of the 

arbitration. Such potential arbitrators 

shall, to the greatest extent possible, be 

individuals familiar with the travel 

industry as well as this Final Judgment. 

Within five business days after receipt 

of this list, the OTI and Defendants each 

may submit to the AAA the names of up 

to 20 percent of the persons on the list 

to be excluded from consideration, and 

shall rank the remaining arbitrators in 

their orders of preference. The AAA, in 

consultation with the United States, will 

appoint as arbitrator the candidate with 

the highest ranking who is not excluded 

by the OTI or Defendants. 

(9) The OTI and the Defendants shall 

exchange written discovery requests 

within five business days of receiving 

the other party’s Final Offer, and shall 

exercise reasonable diligence to respond 

within 14 days. Discovery shall be 

limited to the following items in the 

possession of the parties: (i) previous 

agreements between the OTI and the 

Defendants; (ii) current and prior QPX 

Agreements and agreements relating to 

InstaSearch between the Defendants and 

other OTIs; and (iii) records of past 

arbitrations pursuant to this Final 

Judgment. 

(10) The scope of the arbitration shall 

be limited to the determination of a fair, 

reasonable and non-discriminatory fee 

to be charged for each type of query in 

dispute, judged exclusively in light of 

the following factors: 

(a) The OTI’s actual or reasonably 

expected query volume; 

(b) The minimum query volume to be 

required in the QPX Agreement or 

InstaSearch Agreement for such query 

type; 

(c) The amounts charged for such 

queries to Similarly Situated OTIs 

pursuant to QPX Agreements in effect 

between Defendants and such OTIs, as 

appropriately adjusted for the change in 

the Consumer Price Index, for all Urban 

Consumers, Subgroup ‘‘All Items’’, U.S. 

City Average, for (base Year 1982– 

84=100) subsequent to the date of such 

agreements; and 

(d) if applicable, the nature and extent 

of any representations, warrantees, 

guarantees or service level agreements 

offered to such OTI. 

(11) In reaching his or her decision, 

the arbitrator may consider only 

documents exchanged in discovery 

between the parties, testimony 

explaining the documents and the 

parties’ Final Offers, and briefs 

submitted and arguments made by 

counsel. 

(12) Arbitrations under this Final 

Judgment shall begin within 30 days of 

the AAA furnishing to the OTI and to 

the Defendants, pursuant to Section 

IV.J.5, each party’s Final Offer. The 

arbitration hearing shall last no longer 

than ten business days, after which the 

arbitrator shall have five business days 

to inform the OTI and the Defendants 

which Final Offer best reflects fair, 

reasonable, and non-discriminatory 

terms under this Final Judgment. 

(13) The Arbitrator shall have no 

authority to consider or determine 

Defendants’ compliance with the terms 

of this Final Judgment or with any other 

agreement, or to determine the 

reasonableness of any provision of a 

proposed or negotiated QPX Agreement 

or InstaSearch Agreement other than 

those for which arbitration was 

specifically provided for above. 

(14) Any Arbitrator’s fees and any 

costs payable to the Arbitrator shall be 

shared equally by the parties to the 

arbitration. Each party to the arbitration 

shall bear its own legal fees and 

expenses. 

M. Nothing in Section IV.K shall 

prevent Defendants from agreeing with 

an OTI (i) on fees or other terms that are 

more favorable to the OTI than those 

required by this Final Judgment, (ii) to 

withdraw a matter from arbitration prior 

to decision; or (iii) to supersede a 

previously arbitrated rate as a part of a 

freely negotiated contract or 

amendment. 

N. Nothing in Section IV.K shall limit 

the ability of the United States to 

enforce this Final Judgment in Court, 

including as to matters covered by an 

existing or potential arbitration 

proceeding. 

O. Required Disclosures 

P. Google shall, throughout the 

Reporting Period, make available a Web 

page at http:// 

itaqualifyingcomplaint.com which shall 

contain a Web form permitting OTIs to 

submit Qualifying Complaints, as well 

as a link to this Final Judgment, and 

shall, on a semiannual basis during the 

Reporting Period, furnish copies of any 

Qualifying Complaints received via 

such form to the Department of Justice. 

Q. To the extent that, during the 

Reporting Period, an attorney employed 

by Google’s Legal Department (or an 

outside attorney retained by Google and 

acting at the direction of Google’s Legal 

Department) communicates with an OTI 

with respect to a written complaint that 

the Google attorney reasonably believes 

would, if submitted as set forth in the 

preceding paragraph, be a Qualifying 

Complaint, such attorney shall take 

reasonable steps to ensure that the OTI 

is informed of its right to submit a 

Qualifying Complaint and the Web 

address at which it can do so. 

V. Additional Provisions 

A. Defendants shall not enter into any 

agreement with an airline that restricts 

that airline’s right to share any 

Availability Information with parties 

other than Defendants, provided that 

this paragraph shall cease to apply to 

any type of Availability Information 

(regardless of source) if one or more 

airlines enters into an agreement with 

one or more of Defendants’ competitors 

(either in the provision of airfare pricing 

and shopping services or in the 

provision of OTI services) that restricts 

that airline’s right to share such 

Availability Information with parties 

other than such competitor(s). 

B. To the extent that Defendants 

obtain Availability Information from 

any airline for use as an input to an 

airfare pricing and shopping engine 

used by the Google Consumer Flight 

Search Service, Defendants shall also 

incorporate such Availability 

Information into QPX results generated 

for all OTIs who are party to a QPX 

Agreement, unless the airline explicitly 

and unilaterally restricts the use of such 

Availability Information by or for one or 

more OTIs. Defendants shall not provide 

any incentive to an airline to restrict the 

use of Availability Information by 

another OTI. 

C. Notwithstanding the foregoing, 

nothing in this Final Judgment shall (i) 

restrict Defendants’ right to enter into 

agreements by which they become an 

authoritative source of an airline’s 

Availability Information for third parties 

(including, but not limited to, 

agreements to provide passenger service 

systems, reservations systems, 

availability hubs or similar systems); or 

(ii) be deemed to prohibit Defendants 

from obtaining access to or using 

Availability Information merely because 

the providing airline has not provided it 

to any party other than Defendants, so 

long as the airline retains the right to 

provide such Availability Information to 

another party at any time, in its 

unilateral discretion. 

D. Defendants shall not condition the 

provision of QPX or the InstaSearch 

Service on whether or how much an 

OTI spends on other products or 

services sold by Google. 

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E. Nothing in this Final Judgment 

shall be deemed to alter, in any way, the 

terms of any agreement Defendants may 

have with any customer related to any 

product or service other than QPX or the 

InstaSearch Service. 

VI. Firewall 

A. No Covered Employee shall access 

any OTI Configuration Information or 

any OTI Plan Information, except to the 

extent such information constitutes or is 

included within QA Information, or 

with the written consent of the OTI 

concerned. 

B. Defendants shall not use OTI 

Confidential Information for any 

purpose other than: 

(1) In connection with the marketing, 

sale, or provision of any product or 

service to such OTI (or, with the consent 

of such OTI, its Affiliates); 

(2) In connection with billing, 

invoicing, financial reporting, financial 

or capacity forecasting, compensation, 

audit, legal, compliance, or similar 

administrative or financial purposes; 

(3) In connection with the 

development, maintenance and 

improvement of QPX and the 

InstaSearch Service, in accord with 

ITA’s past practices prior to agreeing to 

be acquired by Google; or 

(4) As permitted by such OTI in 

writing. 

C. Notwithstanding anything in this 

Final Judgment, Defendants shall be 

permitted to access and use QA 

Information in connection with the 

development, maintenance and 

improvement of Defendants’ airfare 

pricing and shopping engines (including 

those not made available to any 

Customers), provided that Defendants 

shall not extract any customer 

identifiable OTI Configuration 

Information or use any OTI 

Configuration Information for the 

purpose of changing, improving or 

comparing the Google Consumer Flight 

Search Service’s use of any airfare 

pricing and shopping engine. 

D. Defendants shall implement 

reasonable procedures to prevent OTI 

Confidential Information from being 

used or accessed by employees other 

than those having a legitimate need for 

such information in connection with the 

permitted uses of such information set 

forth in this Section VI. Nothing in this 

Final Judgment shall restrict 

Defendants’ right to assign any 

employee to any job responsibility, or 

otherwise to restrict the ability of 

employees who have previously had 

access to or used OTI Confidential 

Information in the course of prior job 

responsibilities from subsequently 

assuming additional or different 

responsibilities for Defendants, 

provided that such employees shall not 

use OTI Confidential Information for 

any purpose other than as permitted by 

this Final Judgment. An employee shall 

not be deemed to have ‘‘used’’ OTI 

Confidential Information solely on 

account of his or her prior access to OTI 

Confidential Information, absent 

evidence of intentional reliance on 

information other than information that 

is retained in the unaided memory of 

such employee (provided that memory 

is ‘‘unaided’’ if the employee has not 

intentionally memorized the 

information for the purpose of retaining 

and subsequently using or disclosing it) 

or an affirmative intention to violate or 

evade the terms of this Final Judgment. 

Defendants shall, upon the reasonable 

request of the United States, provide the 

United States with a list of employees 

who have had access to or used OTI 

Confidential Information at any point 

after the filing of the complaint in this 

matter who also have job 

responsibilities in addition to those set 

forth in Section VI.B, above. 

E. Defendants shall, within thirty (30) 

calendar days of the entry of the 

Stipulation and Order, submit to the 

Department of Justice a document 

setting forth in detail the procedures 

implemented to effect compliance with 

Sections VI.A, VI.B, and VI.C of this 

Final Judgment. The Department of 

Justice shall notify Defendants within 

ten (10) business days whether it 

approves of or rejects Defendants’ 

compliance plan, in its sole discretion. 

In the event that Defendants’ 

compliance plan is rejected, the reasons 

for the rejection shall be provided to 

Defendants and Defendants shall be 

given the opportunity to submit, within 

ten (10) business days of receiving the 

notice of rejection, a revised compliance 

plan. If the parties cannot agree on a 

compliance plan, the United States shall 

have the right to request that the Court 

rule on whether Defendants proposed 

compliance plan is reasonable. 

F. Defendants may at any time submit 

to the United States evidence relating to 

the actual operation of the firewall in 

support of a request to modify the 

firewall set forth in Section VI. In 

determining whether it would be 

appropriate for the United States to 

consent to modify the firewall, the 

United States, in its sole discretion, 

shall consider the need to protect OTI 

Confidential Information and the impact 

the firewall has had on Defendants’ 

ability to efficiently support OTIs and 

the Google Consumer Flight Search 

Service. 

VII. Compliance Inspection 

A. For purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

duly authorized representatives of the 

Department of Justice, including 

consultants and other persons retained 

by the Department of Justice, 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 

(1) Access during the Defendants’ 

office hours to inspect and copy, or at 

the option of the United States, to 

require Defendants to provide to the 

United States 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 Judgment; and 

(2) To interview, either informally or 

on the record, the 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. 

B. 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. Written reports authorized 

under this paragraph may, at the sole 

discretion of the United States, require 

Defendants to conduct, at their cost, an 

independent audit or analysis relating to 

any of the matters contained in this 

Final Judgment. 

C. 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. 

D. If at the time information or 

documents are furnished by a Defendant 

to the United States, the Defendant 

represents and identifies in writing the 

material in any such information or 

documents to which a claim of 

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protection may be asserted under Rule 

26(c)(1)(G) of the Federal Rules of Civil 

Procedure, and the Defendant marks 

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 the Defendants ten (10) 

calendar days notice prior to divulging 

such material in any legal proceeding 

(other than a grand jury proceeding). 

The United States will provide such 

notice electronically to an individual 

designated by Google to receive such 

notices. 

VIII. 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. 

IX. Expiration of Final Judgment 

Unless modified by this Court, this 

Final Judgment shall expire five years 

from the date of its entry. 

X. 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’ 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. 

Court approval subject to procedures of the 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16. 

United States District Judge. 

[FR Doc. 2011–9020 Filed 4–13–11; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–74,364] 

International Business Machines (IBM), 

Sales and Distribution Business Unit, 

Global Sales Solution Department, OffSite Teleworker in Centerport, New 

York; Notice of Affirmative 

Determination Regarding Application 

for Reconsideration 

By application dated November 29, 

2011, by a petitioner requested 

administrative reconsideration of the 

negative determination regarding 

workers’ eligibility to apply for Trade 

Adjustment Assistance (TAA) 

applicable to workers and former 

workers of International Business 

Machines (IBM), Sales and Distribution 

Business Unit, Global Sales Solution 

Department, off-site teleworker, 

Centerport, New York (subject firm). 

The determination was issued on 

October 29, 2010. The Department’s 

Notice of Determination was published 

in the Federal Register on November 17, 

2010 (75 FR 70296). The workers supply 

computer software development and 

maintenance services for the Sales and 

Distribution Business Unit. 

The negative determination was based 

on the findings that Criterion I has not 

been met because fewer than three 

workers were separated and further 

separations are not threatened. 

With respect to Section 222(c) of the 

Act, the investigation revealed that 

Criterion (1) has not been met because 

fewer than three workers were separated 

and further separations are not 

threatened. The investigation also 

revealed that the group eligibility 

requirements under Section 222(f) of the 

Act, 19 U.S.C. 2272(f), have not been 

satisfied because the workers’ firm has 

not been identified in an affirmative 

finding of injury by the International 

Trade Commission. 

In the request for reconsideration, the 

petitioner alleged that the subject firm 

outsourced their job as well as 2,544 

other IBM jobs to India. 

The Department has carefully 

reviewed the request for reconsideration 

and the existing record, and has 

determined that there may have been a 

misinterpretation of the worker group. 

The Department will conduct further 

investigation to determine if the 

petitioning workers meet the eligibility 

requirements of the Trade Act of 1974, 

as amended. 

Conclusion 

After careful review of the 

application, I conclude that the claim is 

of sufficient weight to justify 

reconsideration of the U.S. Department 

of Labor’s prior decision. The 

application is, therefore, granted. 

Signed at Washington, DC, on this 6th day 

of April 2011. 

Del Min Amy Chen, 

Certifying Officer, Office of Trade Adjustment 

Assistance. 

[FR Doc. 2011–8980 Filed 4–13–11; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–75,192, TA–W–75,192A] 

Core Industries, Inc., DBA Star Trac, 

Including On-Site Leased Workers 

From Aerotek, Helpmates, Mattson, 

and Empire Staffing, Irvine, CA and 

Core Industries, Inc., DBA Star Trac, 

Including On-Site Leased Workers 

From Aerotek, Helpmates, Mattson, 

and Empire Staffing, Murrieta, CA; 

Amended Certification Regarding 

Eligibility To Apply for Worker 

Adjustment Assistance 

In accordance with Section 223 of the 

Trade Act of 1974, as amended (‘‘Act’’), 

19 U.S.C. 2273, the Department of Labor 

issued a Certification of Eligibility to 

Apply for Worker Adjustment 

Assistance on February 15, 2011, 

applicable to workers of Core Industries, 

Inc., DBA Star Trac, Irvine, California. 

The notice was published in the Federal 

Register on March 10, 2011 (75 FR 

13230). 

At the request of the company, the 

Department reviewed the certification 

for workers of the subject firm. The 

workers produce commercial fitness 

equipment. 

The Murrieta, California location 

operated in conjunction with the Irvine, 

California location. Both locations were 

part of the overall production operation 

and were affected by the firm’s 

acquisition of commercial fitness 

equipment from a foreign country. 

Accordingly, the Department is 

amending the certification to include 

workers of the Murrieta, California 

location of Core Industries, Inc., DBA 

Star Trac, Irvine, California. 

The amended notice applicable to 

TA–W–75,192 is hereby issued as 

follows: 

All workers of Core Industries, Inc., DBA 

Star Trac, including on-site leased workers 

from Aerotek, Helpmates, Mattson, and 

mstockstill on DSKH9S0YB1PROD with NOTICES