Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices 81651 

Falls Church, VA; University of 

Arkansas at Pine Bluff, Pine Bluff, AR; 

University of Texas at El Paso, El Paso, 

TX; Voorheese College, Denmark, SC; 

Wilberforce University, Wilberforce, 

OH; and Winston-Salem State 

University, Winston-Salem, NC. 

The general area of UNCFSP–RDC’s 

planned activity is: (a) conduct research 

and development activities that advance 

the state-of-the-art as well as the 

scientific, technology, engineering and 

mathematical skills in the fields that are 

needed to develop and transition new 

technologies for national defense, 

homeland security, medicine, energy 

and space; (b) to enter into a Section 845 

‘‘Other Transactions’’ Agreement with 

the U.S. Army (the ‘‘Government’’) for 

the funding of certain research and 

development to be conducted, in 

partnership with the Government, the 

Consortium and other Consortium 

Members, to enhance the capabilities of 

the U.S. Government and its 

departments and agencies in the fields 

utilizing science, technology, 

engineering and mathematics; (c) to 

increase the competitiveness of 

Historically Black Colleges and 

Universities and Other Minority 

Institutions including Hispanic Serving 

Institutions, Tribal Colleges and 

Universities and Other Minority Serving 

Institutions in Government research and 

development programs by partnering 

and collaborating with each other and 

the Government laboratories; (d) to 

provide a unified and coordinated 

message to the U.S. Government’s 

Legislative Branch and the Departments 

of Defense, Homeland Security, Energy, 

and Health and Human Services and 

NASA as to the strategic importance of 

HBCUs and MIs in Federal research and 

development; and (e) to define programs 

and obtain program funding that is 

focused on the development of this 

under utilized national asset that will 

result in improvements or new research 

and development in all the sciences. 

Additional information concerning 

the UNCFSP–RDC can be obtained from 

Mr. Darold L. Griffin, Organization 

Committee, UNCFSP–RDC, in care of 

Engineering and Management 

Executive, Inc. (EME), 101 South 

Whiting Street, Suite 204, Alexandria, 

VA 22304–3416, telephone (703) 

212–8030, Ext. 224, fax (703) 212–8035, 

e-mail: emelbmt@aol.com; Mr. Michael 

J. Hester, Vice President, UNCF Special 

Programs Corporation, 6402 Arlington 

Boulevard, Suite 600, Falls Church, VA 

22042, telephone (703) 205–8133, fax 

(703) 205–7651, e-mail: 

michael.hester@uncfsp.org; or Dr. James 

J. Valdes (PhD), Scientific Advisor for 

Biotechnology, U.S. Army Edgewood 

Chemical and Biological Center, ATTN: 

RDCB–DR, 5183 Blackhawk Road, 

Aberdeen Proving Ground, MD 21020– 

5424, telephone (410) 436–1396, fax 

(410) 436–3930, e-mail: 

james.valdes@us.army.mil. 

Patricia A. Brink, 

Director of Civil Enforcement, Antitrust 

Division. 

[FR Doc. 2010–32430 Filed 12–27–10; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Lucasfilm Ltd.; 

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. 

Lucasfilm Ltd., Civil Case No. 1:10–cv– 

02220. On December 21, 2010, the 

United States filed a Complaint alleging 

that Lucasfilm Ltd. and Pixar entered 

into an agreement, in violation of 

Section 1 of the Sherman Act, 15 U.S.C. 

1, in which they agreed not to actively 

solicit each other’s highly skilled digital 

animators and other employees, to 

notify each other when making an offer 

to an employee of the other company, 

and that the company making an offer 

to the other company’s employee would 

not counteroffer above its initial offer. 

The proposed Final Judgment, filed the 

at same time as the Complaint, requires 

Lucasfilm to refrain from entering into 

similar agreements in the future. 

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. 

United States District Court for the 

District of Columbia 

United States of America, U.S. Department 

of Justice, Antitrust Division, 450 Fifth 

Street, NW., Suite 7100, Washington, DC 

20530, Plaintiff, v. Lucasfilm Ltd., 1110 

Gorgas Avenue, San Francisco, CA 94129, 

Defendant. 

Case: 1:10–cv–02220. 

Assigned To: Walton, Reggie B. 

Assign. Date: 12/21/2010. 

Description: Antitrust. 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action to obtain equitable 

relief against Defendant Lucasfilm Ltd. 

(‘‘Lucasfilm’’), alleging as follows: 

Nature of the Action 

This action challenges under Section 

1 of the Sherman Act an agreement 

between Lucasfilm and Pixar that 

restrained competition between them 

for highly skilled digital animators. 

Lucasfilm and Pixar compete for 

highly skilled digital animators and 

solicit employees at other digital 

animation studios to fill employment 

openings. Lucasfilm and Pixar entered 

into an agreement not to cold call, not 

to make counteroffers under certain 

circumstances, and to provide 

notification when making employment 

offers to each other’s employees. This 

agreement reduced Lucasfilm’s and 

Pixar’s ability to compete for employees 

and disrupted the normal price-setting 

mechanisms that apply in the labor 

setting. This agreement is facially 

anticompetitive. It eliminated 

significant forms of competition to 

attract digital animators and, overall, 

substantially diminished competition to 

the detriment of the affected employees 

who likely were deprived of 

competitively important information 

and access to better job opportunities. 

Lucasfilm and Pixar’s agreement is a 

restraint of trade that is per se unlawful 

under Section 1 of the Sherman Act, 

15 U.S.C. 1. The United States seeks an 

order prohibiting such an agreement. 

Jurisdiction and Venue 

Lucasfilm hires specialized digital 

animators throughout the United States, 

and sells completed digital animation 


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81652 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices 

films throughout the United States. 

Such activities, including the 

recruitment and hiring activities at issue 

in this Complaint, are in the flow of and 

substantially affect interstate commerce. 

The Court has subject matter 

jurisdiction under Section 4 of the 

Sherman Act, 15 U.S.C. 4, and under 28 

U.S.C. 1331 and 1337 to prevent and 

restrain Lucasfilm from violating 

Section 1 of the Sherman Act, 15 U.S.C. 

1. 

Venue is proper in this judicial 

district under Section 12 of the Clayton 

Act, 15 U.S.C. 22, and under 28 U.S.C. 

1391(b)(2), (c). Lucasfilm transacts or 

has transacted substantial business here. 

Defendant 

6. Lucasfilm is a California 

corporation with its principal place of 

business in San Francisco, California. 

Trade and Commerce 

12. Digital animation labor is 

characterized by expertise and 

specialization. Lucasfilm and Pixar 

compete for digital animators on the 

basis of salaries, benefits, and career 

opportunities. In recent years, talented 

digital animation employees have been 

in high demand. 

13. Although Lucasfilm and Pixar 

employ a variety of recruiting 

techniques, cold calling another studio’s 

employees is an effective method of 

competing for digital animators. Cold 

calling involves communicating directly 

in any manner (including orally, in 

writing, telephonically, or 

electronically) with another firm’s 

employee who has not otherwise 

applied for a job opening. Lucasfilm and 

Pixar frequently recruit employees by 

cold calling because other studios’ 

employees have the specialized skills 

necessary for the vacant position and 

may be unresponsive to other methods 

of recruiting. 

14. Lucasfilm and Pixar also 

aggressively bid against other digital 

animation studios for the services of 

talented employees and prospective 

employees. When the labor market is 

functioning without illegal competitive 

restraints, savvy employees can use 

these studios’ aggressive tactics to 

extract multiple rounds of bidding, thus 

increasing their eventual salaries. 

15. In a well-functioning labor market, 

employers compete to attract the most 

valuable talent for their needs. 

Lucasfilm’s and Pixar’s behavior both 

reduced their ability to compete for 

employees and disrupted the normal 

price-setting mechanisms that apply in 

the labor setting. Lucasfilm’s and Pixar’s 

agreement not to cold call, not to make 

counter offers under certain 

circumstances, and to provide 

notification when making employment 

offers is facially anticompetitive. It 

eliminated significant forms of 

competition to attract digital animators 

and, overall, substantially diminished 

competition to the detriment of the 

affected employees who likely were 

deprived of competitively important 

information and access to better job 

opportunities. 

The Unlawful Agreement 

16. Beginning no later than January 

2005, Lucasfilm and Pixar agreed to a 

protocol regarding the recruitment of 

each other’s employees. The agreement 

included three requirements: (1) That 

the firms not cold call each other’s 

employees; (2) that the firms notify each 

other when making an offer to an 

employee of the other firm; and (3) that 

the firm making an offer to the other 

firm’s employee not counteroffer above 

its initial offer. 

17. This agreement was not ancillary 

to any legitimate collaboration between 

Lucasfilm and Pixar. Senior executives 

at Lucasfilm and Pixar reached this 

express agreement through direct and 

explicit communications. The 

executives actively managed and 

enforced the agreement through direct 

communications. 

18. The agreement between Lucasfilm 

and Pixar covered all digital animators 

and other employees and was not 

limited by geography, job function, 

product group, or time period. 

Moreover, employees did not agree to 

this restriction. 

19. In furtherance of this agreement, 

Pixar drafted the terms of the agreement 

with Lucasfilm and communicated 

those written terms to Lucasfilm. Both 

firms internally communicated the 

agreement to management and select 

employees with hiring or recruiting 

responsibilities. 

20. Lucasfilm and Pixar, through their 

senior executives, policed potential 

breaches of the agreement. For example, 

twice in 2007, Pixar complained to 

Lucasfilm about recruiting efforts 

Lucasfilm had made. Complaints about 

breaches of the agreement led the 

parties to modify their conduct going 

forward to conform to the agreement. 

Violation Alleged 

(Violation of Section 1 of the Sherman 

Act) 

21. The United States hereby 

incorporates paragraphs 1 through 20. 

22. Lucasfilm is a direct competitor to 

Pixar for digital animators and other 

employees covered by the agreement at 

issue here. Lucasfilm’s behavior both 

reduced its ability to compete for 

employees and disrupted the normal 

price-setting mechanisms that apply in 

the labor setting. This agreement is 

facially anticompetitive because it 

eliminated significant forms of 

competition to attract digital animators 

and, overall, substantially diminished 

competition to the detriment of the 

affected employees who likely were 

deprived of competitively important 

information and access to better job 

opportunities. 

23. Lucasfilm’s agreement constitutes 

an unreasonable restraint of trade that is 

per se unlawful under Section 1 of the 

Sherman Act, 15 U.S.C. 1. 

Requested Relief 

The United States requests that the 

Court: 

(A) Adjudge and decree that 

Lucasfilm’s agreement not to compete 

constitutes an illegal restraint of 

interstate trade and commerce in 

violation of Section 1 of the Sherman 

Act; 

(B) Enjoin and restrain Lucasfilm from 

enforcing or adhering to existing 

agreements that unreasonably restrict 

competition for employees; 

(C) Permanently enjoin and restrain 

Lucasfilm from establishing any similar 

agreement unreasonably restricting 

competition for employees except as 

prescribed by the Court; 

(D) Award the United States such 

other relief as the Court may deem just 

and proper to redress and prevent 

recurrence of the alleged violations and 

to dissipate the anticompetitive effects 

of the illegal agreements entered into by 

Lucasfilm; and 

(E) Award the United States the costs 

of this action. 

Dated this 21st day of December 2010. 

Respectfully submitted, 

FOR PLAINTIFF UNITED STATES: 

Christine A. Varney, 

Assistant Attorney General, DC Bar #411654. 

Molly S. Boast, 

Deputy Assistant Attorney General. 

Katherine S. Forrest, 

Deputy Assistant Attorney General. 

Patricia A. Brink, 

Director of Civil Enforcement, 

James J. Tierney, Chief, 

Networks and Technology Section, DC Bar 

#434610. 

Scott A. Scheele, Assistant Chief, 

Networks and Technology Section, DC Bar 

#429061. 

Adam T. Severt, 

Ryan S. Struve (DC Bar #495406), 

Jessica N. Butler-Arkow (DC Bar #430022), 

H. Joseph Pinto III, 

Anthony D. Scicchitano, 

Trial Attorneys. 

U.S. Department of Justice, Antitrust 

Division, Networks and Technology Section, 

450 Fifth Street, NW., Suite 7100, 

Washington, DC 20530. 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices 81653 

Telephone: (202) 307–6200. 

Facsimile: (202) 616–8544. 

adam.severt@usdoj.gov. 

Certificate of Service 

I, Adam Severt, hereby certify that on 

December 21, 2010, I caused a copy of 

the Complaint to be served on 

Defendant Lucasfilm by mailing the 

document via e-mail to the duly 

authorized legal representatives of the 

defendant, as follows: 

FOR DEFENDANT LUCASFILM, LTD., 

Claudia R. Higgins, Esq., 

Kaye Scholer LLP, 

901 Fifteenth Street, NW., Washington, DC 

20005. 

Adam T. Severt, 

Trial Attorney, Networks & Technology 

Section, U.S. Department of Justice, Antitrust 

Division, 450 Fifth Street, NW., Suite 7100, 

Washington, DC 20530. 

Telephone: (202) 307–6200. 

Fax: (202) 616–8544. 

E-mail: adam.severt@usdoj.gov. 

United States District Court for the 

District of Columbia 

United States of America, U.S. Department 

of Justice, Antitrust Division, 450 Fifth 

Street, NW., Suite 7100, Washington, DC 

20530, Plaintiff, v. Lucasfilm Ltd., 1110 

Gorgas Avenue, San Francisco, CA 94129, 

Defendant. 

Case: 1:10–cv–02220. 

Assigned To: Walton, Reggie B. 

Assign. Date: 12/21/2010. 

Description: Antitrust. 

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 

submitted for entry in this civil antitrust 

proceeding. 

I. Nature and Purpose of the Proceeding 

The United States brought this 

lawsuit against Defendant Lucasfilm 

Ltd. (‘‘Lucasfilm’’) on December 21, 

2010, to remedy a violation of Section 

1 of the Sherman Act, 15 U.S.C. 1. The 

Complaint alleges that Lucasfilm 

entered an agreement with Pixar, 

pursuant to which each agreed to 

restrict certain employee recruiting 

practices. The effect of this agreement 

was to reduce competition for highlyskilled digital animators and other 

employees, diminish potential 

employment opportunities for those 

same employees, and interfere in the 

proper functioning of the price-setting 

mechanism that would otherwise have 

prevailed. The agreement is a naked 

restraint of trade and violates Section 1 

of the Sherman Act, 15 U.S.C. 1. 

At the same time the Complaint was 

filed, the United States also filed a 

proposed Final Judgment, which would 

remedy the violation by having the 

Court declare the agreement illegal, 

enjoin Lucasfilm from enforcing any 

such agreements currently in effect, and 

prohibit Lucasfilm from entering similar 

agreements in the future. The United 

States has sought a similar proposed 

Final Judgment against Pixar in a 

separate civil action, United States v. 

Adobe Systems, Inc., No. 1:10–cv– 

01629, 75 FR 60820, 60828–30 (D.D.C. 

filed Sept. 24, 2010). The United States 

and Lucasfilm 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 of the Antitrust 

Laws 

Lucasfilm and Pixar are rival digital 

animation studios. Beginning no later 

than January 2005, Lucasfilm and Pixar 

agreed to a three-part protocol that 

restricted recruiting of each other’s 

employees. First, Lucasfilm and Pixar 

agreed they would not cold call each 

other’s employees. Cold calling involves 

communicating directly in any manner 

(including orally, in writing, 

telephonically, or electronically) with 

another firm’s employee who has not 

otherwise applied for a job opening. 

Second, they agreed to notify each other 

when making an offer to an employee of 

the other firm. Third, they agreed that, 

when offering a position to the other 

company’s employee, neither would 

counteroffer above the initial offer. 

The protocol covered all digital 

animators and other employees of both 

firms and was not limited by geography, 

job function, product group, or time 

period. Senior executives at the two 

firms agreed on the protocol through 

direct and explicit communications. In 

furtherance of this agreement, Pixar 

drafted the terms of the agreement with 

Lucasfilm and communicated those 

written terms to Lucasfilm. Both firms 

communicated the agreement to 

management and select employees with 

hiring or recruiting responsibilities. 

Twice in 2007, Pixar complained to 

Lucasfilm about recruiting efforts 

Lucasfilm had made. Complaints about 

breaches of the agreement led the two 

firms to alter their conduct going 

forward to conform to the agreement. 

Lucasfilm’s and Pixar’s agreed-upon 

protocol disrupted the competitive 

market forces for employee talent. It 

eliminated a significant form of 

competition to attract digital animation 

employees and other employees covered 

by the agreement. Overall, it 

substantially diminished competition to 

the detriment of the affected employees 

who likely were deprived of information 

and access to better job opportunities. 

The agreement was a naked restraint 

of trade that was per se unlawful under 

Section 1 of the Sherman Act, 15 U.S.C. 

1. 

III. The Agreement Was a Naked 

Restraint and Not Ancillary To 

Achieving Legitimate Business 

Purposes 

Section 1 of the Sherman Act outlaws 

‘‘[e]very contract, combination in the 

form of trust or otherwise, or 

conspiracy, in restraint of trade or 

commerce among the several States.’’ 

15 U.S.C. 1. The Sherman Act is 

designed to ensure ‘‘free and unfettered 

competition as the rule of trade. It rests 

on the premise that the unrestrained 

interaction of competitive forces will 

yield the best allocation of our 

economic resources, the lowest prices, 

the highest quality and the greatest 

material progress * * *.’’ National 

Collegiate Athletic Ass’n v. Board of 

Regents of Univ. of Okla., 468 U.S. 85, 

104 n.27 (1984) (quoting Northern Pac. 

Ry. v. United States, 356 U.S. 1, 4–5 

(1958)). 

The law has long recognized that 

‘‘certain agreements or practices which 

because of their pernicious effect on 

competition and lack of any redeeming 

virtue are conclusively presumed to be 

unreasonable and therefore illegal 

without elaborate inquiry as to the 

precise harm they have caused or the 

business excuse for their use.’’ Northern 

Pac. Ry., 356 U.S. at 545; accord, 

Catalano, Inc. v. Target Sales, Inc., 446 

U.S. 643, 646 n.9 (1980). Such naked 

restraints of competition among 

horizontal competitors (i.e., agreements 

that have a pernicious effect on 

competition with no redeeming virtue) 

are deemed per se unlawful. 

The United States has previously 

challenged restraints on employment as 

per se illegal. In September 2010, the 

United States filed suit charging six 

high technology firms with a per se 

violation of Section 1 for entering 

bilateral agreements to prohibit each 

firm from cold calling the other firm’s 

employees. United States v. Adobe 

Systems, Inc., No. 1:10–cv–01629, 

Complaint, 75 FR 60822 (D.D.C. filed 

Sept. 24, 2010); Competitive Impact 


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81654 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices 

1See Weyerhaeuser Co. v. Ross-Simmons 

Hardwood Lumber Co., Inc., 549 U.S. 312, 321 

(2007) (‘‘Predatory-pricing and predatory-bidding 

are analytically similar. This similarity results from 

the close theoretical connection between monopoly 

and monopsony.’’) 

2See generally Department of Justice, Antitrust 

Division, and Federal Trade Commission, Antitrust 

Guidelines for Collaborations Among Competitors 

§ 1.2 (2000) (‘‘Collaboration Guidelines’’). See also 

Major League Baseball v. Salvino, 542 F.3d 290, 339 

(2d Cir. 2008) (Sotomayor, J., concurring) (‘‘a per se 

or quick look approach may apply * * * where a 

particular restraint is not reasonably necessary to 

achieve any of the efficiency-enhancing benefits of 

a joint venture and serves only as a naked restraint 

against competition.’’); Dagher v. Saudi Refining, 

Inc., 369 F.3d 1108, 1121 (9th Cir. 2004) 

(‘‘reasonably necessary to further the legitimate aims 

of the joint venture’’); rev’d on other grounds sub 

nom. Texaco v. Dagher, 547 U.S. 1, 8 (2006); 

Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 

792 F.2d 210, 227 (DC Cir. 1986) (‘‘the restraints it 

imposes are reasonably necessary to the business it 

is authorized to conduct’’); In re Polygram 

Holdings., Inc., 2003 WL 21770765 (F.T.C. 2003) 

(parties must prove that the restraint was 

‘‘reasonably necessary’’ to permit them to achieve 

particular alleged efficiency), aff’d, Polygram 

Holdings, Inc. v. F.T.C., 416 F.3d 29 (DC Cir. 2005). 

3See Rothery Storage & Van Co., 792 F.2d at 227 

(national moving network in which the participants 

shared physical resources, scheduling, training, and 

advertising resources, could forbid contractors from 

free riding by using its equipment, uniforms, and 

trucks for business they were conducting on their 

own); Salvino, 542 F.3d at 337 (Sotomayor, J., 

concurring) (Major League Baseball teams created a 

formal joint venture to exclusively license, and 

share profits for, team trademarks, resulting in 

‘‘decreased transaction costs, lower enforcement 

and monitoring costs, and the ability to one-stop 

shop. * * *’’ Such benefits ‘‘could not exist without 

the * * * agreements.’’); Addamax v. Open 

Software Found., 152 F.3d 48 (1st Cir. 1998) 

(computer manufacturers formed nonprofit joint 

research and development venture to develop 

operating system; agreement on price to be paid for 

security software that was used by joint venture was 

ancillary to effort to develop a new system). See 

also Collaboration Guidelines at § 3.2 (‘‘[I]f the 

participants could achieve an equivalent or 

comparable efficiency-enhancing integration 

through practical, significantly less restrictive 

means, then * * * the agreement is not reasonably 

necessary.’’). 

Statement, 75 FR 60823 (D.D.C. filed 

Sept. 24, 2010). 

The restraint challenged here is 

broader than the no cold call restraints 

challenged in United States v. Adobe 

Systems, Inc. The prohibition on 

counteroffers by non-employing firms 

renders the Lucasfilm-Pixar agreement, 

taken as a whole, more pernicious than 

an agreement to refrain from coldcalling, and is per se unlawful. See 

National Soc’y of Prof. Engineers v. 

United States, 435 U.S. 679, 695 (1978); 

Harkins Amusement Enterprises, Inc. v. 

General Cinema Corp., 850 F.2d 477, 

487 (9th Cir. 1988). 

Prior to United States v. Adobe 

Systems, Inc., the United States brought 

a per se challenge in 1996 to 

employment restraints contained within 

guidelines designed to curb competition 

between residency programs for senior 

medical students and residents of other 

programs. Members of the Association 

of Family Practice Residency Directors 

had agreed not to directly solicit 

residents from each other, conduct 

recognized as ‘‘per se unlawful’’ under 

Section 1. United States v. Association 

of Family Practice Residency Doctors, 

No. 96–575–CV–W–2, Complaint at 6 

(W.D.Mo. May 28, 1996); Competitive 

Impact Statement, 61 FR 28891, 28894 

(W.D.Mo. May 28, 1996). The Court 

entered an agreed-upon Final Judgment, 

enjoining the association from 

restraining competition among 

residency programs for residents, 

including enjoining all prohibitions on 

direct and indirect solicitation of 

residents from other programs. 1996–2 

Trade Cases ¶ 71,533, 28894 (W.D.Mo. 

Aug. 15, 1996). 

In analogous circumstances, the Sixth 

Circuit has held that an agreement 

among competitors not to solicit one 

another’s customers was a per se 

violation of the antitrust laws. U.S. v. 

Cooperative Theaters of Ohio, Inc., 845 

F.2d 1367 (6th Cir. 1988). In that case, 

two movie theater booking agents agreed 

to refrain from actively soliciting each 

other’s customers. Despite the 

defendants’ arguments that they 

‘‘remained free to accept unsolicited 

business from their competitors’ 

customers,’’ id. (emphasis in original), 

the Sixth Circuit found their ‘‘nosolicitation agreement’’ was ‘‘undeniably 

a type of customer allocation scheme 

which courts have often condemned in 

the past as a per se violation of the 

Sherman Act.’’ Id. at 1373. 

Antitrust analysis of downstream 

customer-related restraints applies 

equally to upstream monopsony 

restraints on employment opportunities. 

In 1991, the Antitrust Division brought 

an action against conspirators who 

competed to procure billboard leases 

and who had agreed to refrain from 

bidding on each other’s former leases for 

a year after the space was lost or 

abandoned by the other conspirator. 

United States v. Brown, 936 F.2d 1042 

(9th Cir. 1991) (affirming jury verdict 

convicting defendants of conspiring to 

restrain trade in violation of 15 U.S.C. 

1). The agreement was limited to an 

input market (the procurement of 

billboard leases) and did not extend to 

downstream sales (in which the parties 

also competed). In affirming defendants’ 

convictions, the appellate court held 

that the agreement was per se unlawful: 

The agreement restricted each company’s 

ability to compete for the other’s billboard 

sites. It clearly allocated markets between the 

two billboard companies. A market allocation 

agreement between two companies at the 

same market level is a classic per se antitrust 

violation. 

Id. at 1045. 

Allocation agreements cannot be 

distinguished from one another based 

solely on whether they involve input or 

output markets. Anticompetitive 

agreements in both input and output 

markets create allocative inefficiencies.1

Hence, naked restraints on cold calling 

customers, suppliers, or employees are 

similarly per se unlawful. 

Still, an agreement that would 

normally be condemned as a per se 

unlawful restraint on competition may 

nonetheless be lawful if it is ancillary to 

a legitimate procompetitive venture and 

reasonably necessary to achieve the 

procompetitive benefits of the 

collaboration. Ancillary restraints 

therefore are not per se unlawful, but 

rather evaluated under the rule of 

reason, which balances a restraint’s 

procompetitive benefits against its 

anticompetitive effects.2 To be 

considered ‘‘ancillary’’ under established 

antitrust law, however, the restraint 

must be a necessary or intrinsic part of 

the procompetitive collaboration.3

Restraints that are broader than 

reasonably necessary to achieve the 

efficiencies from a business 

collaboration are not ancillary and are 

properly treated as per se unlawful. 

Although Lucasfilm and Pixar have at 

times engaged in legitimate 

collaborative projects, the recruiting 

agreement into which they entered was 

not, under established antitrust law, 

properly ancillary to those 

collaborations. The agreement was not 

tied to any specific collaboration. The 

agreement extended to all employees at 

the firms, regardless of any employee’s 

relationship to any collaboration. The 

agreement was not limited by 

geography, job function, product group, 

or time period. The agreement was not 

reasonably necessary for any 

collaboration and hence, not a 

legitimate ancillary restraint. 

Lucasfilm’s agreement with Pixar is 

per se unlawful under Section 1 of the 

Sherman Act. The two firms’ concerted 

behavior both reduced their ability to 

compete for employees and disrupted 

the normal price-setting mechanisms 

that apply in the labor setting. The 

agreement is facially anticompetitive 

because it eliminated a significant form 

of competition to attract digital 

animators and other employees. Overall, 

it substantially diminished competition 

to the detriment of the affected 

employees who likely were deprived of 

competitively important information 

and access to better job opportunities. 


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4Section II.C. of the proposed Final Judgment 

defines ‘‘no direct solicitation provision’’ as ‘‘any 

agreement, or part of an agreement, among two or 

more persons that restrains any person from cold 

calling, soliciting, recruiting, or otherwise 

competing for employees of another person.’’ 

5The Complaint alleges a violation of the 

Sherman Antitrust Act, 15 U.S.C. 1. The scope of 

the Final Judgment is limited to violations of the 

Federal antitrust laws. It prohibits certain conduct 

and specifies other conduct that the Judgment 

would not prohibit. The Judgment does not address 

whether any conduct it does not prohibit would be 

prohibited by other Federal or State laws, including 

California Business & Professions Code § 16600 

(prohibiting firms from restraining employee 

movement). 

6For example, Lucasfilm might document these 

requirements through electronic mail or in 

memoranda that it will retain. 

IV. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment sets 

forth (1) Conduct in which Lucasfilm 

may not engage; (2) conduct in which 

Lucasfilm may engage without violating 

the proposed Final Judgment; (3) certain 

actions Lucasfilm is required to take to 

ensure compliance with the terms of the 

proposed Final Judgment; and (4) 

oversight procedures the United States 

may use to ensure compliance with the 

proposed Final Judgment. Section VI of 

the proposed Final Judgment provides 

that these provisions will expire five 

years after entry of the proposed Final 

Judgment. 

A. Prohibited Conduct 

The proposed Final Judgment is 

substantially similar to that proposed in 

United States v. Adobe Systems, Inc., 

No. 1:10–cv–01629, Proposed Final 

Judgment, 75 FR 60828–30 (D.D.C. Sept. 

24, 2010). Section IV of the proposed 

Final Judgment preserves competition 

for employees by prohibiting Lucasfilm, 

and all other persons in active concert 

or participation with Lucasfilm with 

notice of the proposed Final Judgment, 

from agreeing, or attempting to agree, 

with another person to refrain from cold 

calling, soliciting, recruiting, or 

otherwise competing for employees of 

the other person. It also prohibits 

Lucasfilm from requesting or pressuring 

another person to refrain from cold 

calling, soliciting, recruiting, or 

otherwise competing for employees of 

the other person. These provisions 

prohibit agreements not to make 

counteroffers and agreements to notify 

each other when making an offer to each 

other’s employee. 

B. Conduct Not Prohibited 

The Final Judgment does not prohibit 

all agreements related to employee 

solicitation and recruitment. Section V 

makes clear that the proposed Final 

Judgment does not prohibit ‘‘no direct 

solicitation provisions’’ 4 that are 

reasonably necessary for, and thus 

ancillary to, legitimate procompetitive 

collaborations.5 Such restraints remain 

subject to scrutiny under the rule of 

reason. 

Section V.A.1 does not prohibit no 

direct solicitation provisions contained 

in existing and future employment or 

severance agreements with Lucasfilm’s 

employees. Narrowly tailored no direct 

solicitation provisions are often 

included in severance agreements and 

rarely present competition concerns. 

Sections V.A.2–5 also make clear that 

the proposed Final Judgment does not 

prohibit no direct solicitation provisions 

reasonably necessary for: 

1. Mergers or acquisitions 

(consummated or unconsummated), 

investments, or divestitures, including 

due diligence related thereto; 

2. Contracts with consultants or 

recipients of consulting services, 

auditors, outsourcing vendors, 

recruiting agencies or providers of 

temporary employees or contract 

workers; 

3. The settlement or compromise of 

legal disputes; and 

4. Contracts with resellers or OEMs; 

contracts with certain providers or 

recipients of services; or the function of 

a legitimate collaboration agreement, 

such as joint development, technology 

integration, joint ventures, joint projects 

(including teaming agreements), and the 

shared use of facilities. 

Section V of the proposed Final 

Judgment contains additional 

requirements applicable to no direct 

solicitation provisions contained in 

these types of contracts and 

collaboration agreements. The proposed 

Final Judgment recognizes that 

Lucasfilm may sometimes enter written 

or unwritten contracts and collaboration 

agreements and sets forth requirements 

that recognize the different nature of 

written and unwritten contracts. 

Thus, for written contracts, Section 

V.B of the proposed Final Judgment 

requires Lucasfilm to: (1) Identify, with 

specificity, the agreement to which the 

no direct solicitation provision is 

ancillary; (2) narrowly tailor the no 

direct solicitation provision to affect 

only employees who are anticipated to 

be directly involved in the arrangement; 

(3) identify with reasonable specificity 

the employees who are subject to the no 

direct solicitation provision; (4) include 

a specific termination date or event; and 

(5) sign the agreement, including any 

modifications to the agreement. 

If the no direct solicitation provision 

relates to an oral agreement, Section V.C 

of the proposed Final Judgment requires 

Lucasfilm to maintain documents 

sufficient to show the terms of the no 

direct solicitation provision, including: 

(1) The specific agreement to which the 

no direct solicitation provision is 

ancillary; (2) an identification, with 

reasonable specificity, of the employees 

who are subject to the no direct 

solicitation provision; and (3) the no 

direct solicitation provision’s specific 

termination date or event.6

The purpose of Sections V.B. and V.C. 

is to ensure that no direct solicitation 

provisions related to Lucasfilm’s 

contracts with resellers, OEMs, and 

providers of services, and collaborations 

with other companies, are reasonably 

necessary to the contract or 

collaboration. In addition, the 

requirements set forth in Sections V.B 

and V.C of the proposed Final Judgment 

provide the United States with the 

ability to monitor Lucasfilm’s 

compliance with the proposed Final 

Judgment. 

Lucasfilm has a large number of 

routine consulting and services 

agreements that contain no direct 

solicitation provisions that may not 

comply with the terms of the proposed 

Final Judgment. To avoid the 

unnecessary burden of identifying these 

existing contracts and re-negotiating any 

no direct solicitation provisions, Section 

V.D of the proposed Final Judgment 

provides that, subject to the conditions 

below, Lucasfilm shall not be required 

to modify or conform existing no direct 

solicitation provisions included in 

consulting or services agreements to the 

extent such provisions violate this Final 

Judgment. The Final Judgment further 

prohibits Lucasfilm from enforcing any 

such existing no direct solicitation 

provision that would violate the 

proposed Final Judgment. 

Finally, Section V.E of the proposed 

Final Judgment provides that Lucasfilm 

is not prohibited from unilaterally 

adopting or maintaining a policy not to 

consider applications from employees of 

another person, or not to solicit, cold 

call, recruit or hire employees of 

another person, provided that Lucasfilm 

does not request or pressure another 

person to adopt, enforce, or maintain 

such a policy. 

C. Required Conduct 

Section VI of the proposed Final 

Judgment sets forth various mandatory 

procedures to ensure Lucasfilm’s 

compliance with the proposed Final 

Judgment, including providing officers, 

directors, human resource managers, 

and senior managers who supervise 

employee recruiting with copies of the 


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7The 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). 

proposed Final Judgment and annual 

briefings about its terms. Section VI.A.5 

requires Lucasfilm to provide its 

employees with reasonably accessible 

notice of the existence of all agreements 

covered by Section V.A.5 and entered 

into by the company. 

Under Section VI, Lucasfilm must file 

annually with the United States a 

statement identifying any agreement 

covered by Section V.A.5., and 

describing any violation or potential 

violation of the Final Judgment known 

to any officer, director, human resources 

manager, or senior manager who 

supervises employee recruiting, 

solicitation, or hiring efforts. If one of 

these persons learns of a violation or 

potential violation of the Judgment, 

Lucasfilm must take steps to terminate 

or modify the activity to comply with 

the Judgment and maintain all 

documents related to the activity. 

D. Compliance 

To facilitate monitoring of Lucasfilm’s 

compliance with the proposed Final 

Judgment, Section VII grants the United 

States access, upon reasonable notice, to 

Lucasfilm’s records and documents 

relating to matters contained in the 

proposed Final Judgment. Lucasfilm 

must also make its employees available 

for interviews or depositions about such 

matters. Moreover, upon request, 

Lucasfilm must answer interrogatories 

and prepare written reports relating to 

matters contained in the proposed Final 

Judgment. 

V. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

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

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in Federal 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 Lucasfilm. 

VI. Procedures Applicable for Approval 

or Modification of the Proposed Final 

Judgment 

The United States and Lucasfilm 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 sixty (60) days preceding the 

effective date of the proposed Final 

Judgment within which any person may 

submit to the United States written 

comments regarding the proposed Final 

Judgment. Any person who wishes to 

comment should do so within sixty (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement, whichever is later. All 

comments received during this period 

will be considered by the United States, 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to 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. 

VII. Alternatives to the Proposed Final 

Judgment 

The United States considered, as an 

alternative to the proposed Final 

Judgment, a full trial on the merits 

against Lucasfilm. The United States is 

satisfied, however, that the relief 

contained in the proposed Final 

Judgment will quickly establish, 

preserve, and ensure that employees can 

benefit from competition between 

Lucasfilm and others. Thus, the 

proposed Final Judgment would achieve 

all or substantially all of the relief the 

United States would have obtained 

through litigation, but avoids the time, 

expense, and uncertainty of a full trial 

on the merits of the Complaint. 

VIII. 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 sixtyday 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 

(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’’).7

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’ 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 


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8Cf. 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.’ ’’). 

9See 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.’’). 

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).8 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’ 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. 

American 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 11.9

IX. 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: December 21, 2010. 

Respectfully submitted, 

Adam T. Severt, 

Ryan S. Struve (DC Bar #495406), 

Jessica N. Butler-Arkow (DC Bar #430022), 

H. Joseph Pinto III, 

Anthony D. Scicchitano, 

Trial Attorneys. 

U.S. Department of Justice, Antitrust 

Division, Networks and Technology Section, 

450 Fifth Street, NW., Suite 7100, 

Washington, DC 20530. 

Telephone: (202) 307–6200. 

Facsimile: (202) 616–8544. 

adam.severt@usdoj.gov. 

United States District Court for the 

District of Columbia 

United States of America, U.S. Department 

of Justice, Antitrust Division, 450 Fifth 

Street, NW., Suite 7100, Washington, DC 

20530, Plaintiff, v. Lucasfilm Ltd., 1110 

Gorgas Avenue, San Francisco, CA 94129, 

Defendant. 

[Proposed] Final Judgment 

Whereas, the United States of 

America filed its Complaint on 

December 21, 2010, alleging that the 

Defendant participated in an agreement 

in violation of Section One of the 

Sherman Act, and the United States and 

the Defendant, by their attorneys, have 

consented to the entry of this Final 

Judgment without trial or adjudication 

of any issue of fact or law; 

And whereas this Final Judgment 

does not constitute any admission by 

the Defendant that the law has been 

violated or of any issue of fact or law, 

other than that the jurisdictional facts as 

alleged in the Complaint are true; 

And whereas, the Defendant agrees to 

be bound by the provisions of this Final 


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Judgment pending its approval by this 

Court; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, and upon 

consent of the Defendant, it is ordered, 

adjudged, and decreed. 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter and the parties to this 

action. The Complaint states a claim 

upon which relief may be granted 

against the Defendant under Section 

One of the Sherman Act, as amended, 

15 U.S.C. 1. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Lucasfilm’’ means Lucasfilm Ltd., 

its (i) successors and assigns, (ii) 

controlled subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and (iii) directors, officers, 

managers, agents acting within the 

scope of their agency, and employees. 

B. ‘‘Agreement’’ means any contract, 

arrangement, or understanding, formal 

or informal, oral or written, between 

two or more persons. 

C. ‘‘No direct solicitation provision’’ 

means any agreement, or part of an 

agreement, among two or more persons 

that restrains any person from cold 

calling, soliciting, recruiting, or 

otherwise competing for employees of 

another person. 

D. ‘‘Person’’ means any natural person, 

corporation, company, partnership, joint 

venture, firm, association, 

proprietorship, agency, board, authority, 

commission, office, or other business or 

legal entity, whether private or 

governmental. 

E. ‘‘Senior manager’’ means any 

company officer or employee above the 

level of vice president. 

III. Applicability 

This Final Judgment applies to 

Lucasfilm, as defined in Section II, and 

to all other persons in active concert or 

participation with Lucasfilm who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

IV. Prohibited Conduct 

The Defendant is enjoined from 

attempting to enter into, entering into, 

maintaining or enforcing any agreement 

with any other person to in any way 

refrain from, requesting that any person 

in any way refrain from, or pressuring 

any person in any way to refrain from 

soliciting, cold calling, recruiting, or 

otherwise competing for employees of 

the other person. 

V. Conduct Not Prohibited 

A. Nothing in Section IV shall 

prohibit the Defendant and any other 

person from attempting to enter into, 

entering into, maintaining or enforcing 

a no direct solicitation provision, 

provided the no direct solicitation 

provision is: 

1. Contained within existing and 

future employment or severance 

agreements with the Defendant’s 

employees; 

2. Reasonably necessary for mergers 

or acquisitions, consummated or 

unconsummated, investments, or 

divestitures, including due diligence 

related thereto; 

3. Reasonably necessary for contracts 

with consultants or recipients of 

consulting services, auditors, 

outsourcing vendors, recruiting agencies 

or providers of temporary employees or 

contract workers; 

4. Reasonably necessary for the 

settlement or compromise of legal 

disputes; or 

5. Reasonably necessary for (i) 

contracts with resellers or OEMs; (ii) 

contracts with providers or recipients of 

services other than those enumerated in 

paragraphs V.A. 1–4 above; or (iii) the 

function of a legitimate collaboration 

agreement, such as joint development, 

technology integration, joint ventures, 

joint projects (including teaming 

agreements), and the shared use of 

facilities. 

B. All no direct solicitation provisions 

that relate to written agreements 

described in Section V.A.5.i, ii, or iii, 

that the Defendant enters into, renews, 

or affirmatively extends after the date of 

entry of this Final Judgment shall: 

1. Identify, with specificity, the 

agreement to which it is ancillary; 

2. Be narrowly tailored to affect only 

employees who are anticipated to be 

directly involved in the agreement; 

3. Identify with reasonable specificity 

the employees who are subject to the 

agreement; 

4. Contain a specific termination date 

or event; and 

5. Be signed by all parties to the 

agreement, including any modifications 

to the agreement. 

C. For all no direct solicitation 

provisions that relate to unwritten 

agreements described in Section V.A.5.i, 

ii, or iii, that the Defendant enters into, 

renews, or affirmatively extends after 

the date of entry of this Final Judgment, 

the Defendant shall maintain documents 

sufficient to show: 

1. The specific agreement to which 

the no direct solicitation provision is 

ancillary; 

2. The employees, identified with 

reasonable specificity, who are subject 

to the no direct solicitation provision; 

and 

3. The provision’s specific 

termination date or event. 

D. The Defendant shall not be 

required to modify or conform, but shall 

not enforce, any no direct solicitation 

provision to the extent it violates this 

Final Judgment if the no direct 

solicitation provision appears in the 

Defendant’s consulting or services 

agreements in effect as of the date of this 

Final Judgment (or in effect as of the 

time the Defendant acquires a company 

that is a party to such an agreement). 

E. Nothing in Section IV shall prohibit 

the Defendant from unilaterally 

deciding to adopt a policy not to 

consider applications from employees of 

another person, or to solicit, cold call, 

recruit or hire employees of another 

person, provided that the Defendant is 

prohibited from requesting that any 

other person adopt, enforce, or maintain 

such a policy, and is prohibited from 

pressuring any other person to adopt, 

enforce, or maintain such a policy. 

VI. Required Conduct 

A. The Defendant shall: 

1. Furnish a copy of this Final 

Judgment and related Competitive 

Impact Statement within sixty days of 

entry of the Final Judgment to its 

officers, directors, human resources 

managers, and senior managers who 

supervise employee recruiting, 

solicitation, or hiring efforts; 

2. Furnish a copy of this Final 

Judgment and related Competitive 

Impact Statement to any person who 

succeeds to a position described in 

Section VI.A.1 within thirty days of that 

succession; 

3. Annually brief each person 

designated in Sections VI.A.1 and 

VI.A.2 on the meaning and requirements 

of this Final Judgment and the antitrust 

laws; 

4. Obtain from each person designated 

in Sections VI.A.1 and VI.A.2, within 60 

days of that person’s receipt of the Final 

Judgment, a certification that he or she 

(i) has read and, to the best of his or her 

ability, understands and agrees to abide 

by the terms of this Final Judgment; (ii) 

is not aware of any violation of the Final 

Judgment that has not been reported to 

the Defendant; and (iii) understands that 

any person’s failure to comply with this 

Final Judgment may result in an 

enforcement action for civil or criminal 

contempt of court against the Defendant 

and/or any person who violates this 

Final Judgment; 

5. Provide employees reasonably 

accessible notice of the existence of all 

agreements covered by Section V.A.5 

and entered into by the company; and 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Notices 81659 

6. Maintain (i) a copy of all 

agreements covered by Section V.A.5; 

and (ii) a record of certifications 

received pursuant to this Section. 

B. For five (5) years after the entry of 

this Final Judgment, on or before its 

anniversary date, the Defendant shall 

file with the United States an annual 

statement identifying and providing 

copies of any agreement and any 

modifications thereto described in 

Section V.A.5, as well as describing any 

violation or potential violation of this 

Final Judgment known to any officer, 

director, human resources manager, or 

senior manager who supervises 

employee recruiting, solicitation, or 

hiring efforts. Descriptions of violations 

or potential violations of this Final 

Judgment shall include, to the extent 

practicable, a description of any 

communications constituting the 

violation or potential violation, 

including the date and place of the 

communication, the persons involved, 

and the subject matter of the 

communication. 

C. If any officer, director, human 

resources manager, or senior manager 

who supervises employee recruiting, 

solicitation, or hiring efforts of the 

Defendant learns of any violation or 

potential violation of any of the terms 

and conditions contained in this Final 

Judgment, the Defendant shall promptly 

take appropriate action to terminate or 

modify the activity so as to comply with 

this Final Judgment and maintain all 

documents related to any violation or 

potential violation of this Final 

Judgment. 

VII. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, from time to time authorized 

representatives of the United States 

Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon the 

written request of an authorized 

representative of the Assistant Attorney 

General in charge of the Antitrust 

Division, and on reasonable notice to 

the Defendant, subject to any legally 

recognized privilege, be permitted: 

1. Access during the Defendant’s 

regular office hours to inspect and copy, 

or at the option of the United States, to 

require the Defendant to provide 

electronic or hard copies of, all books, 

ledgers, accounts, records, data, and 

documents in the possession, custody, 

or control of the Defendant, relating to 

any matters contained in this Final 

Judgment; and 

2. To interview, either informally or 

on the record, the Defendant’s officers, 

employees, or agents, who may have 

their counsel, including any individual 

counsel, present, regarding such 

matters. The interviews shall be subject 

to the reasonable convenience of the 

interviewee and without restraint or 

interference by the Defendant. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, the Defendant 

shall submit written reports or 

responses to written interrogatories, 

under oath if requested, relating to any 

of the matters contained in this Final 

Judgment as may be requested. 

C. No information or documents 

obtained by the means provided in this 

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 the 

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 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 

Defendant ten (10) calendar days notice 

prior to divulging such material in any 

legal proceeding (other than a grand jury 

proceeding). 

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 this court grants an extension, 

this Final Judgment shall expire five (5) 

years from the date of its approval by 

the Court. 

X. Notice 

For purposes of this Final Judgment, 

any notice or other communication shall 

be given to the persons at the addresses 

set forth below (or such other addresses 

as they may specify in writing to 

Lucasfilm): 

Chief, Networks & Technology 

Enforcement Section, U.S. Department 

of Justice, Antitrust Division, 450 Fifth 

Street, NW., Suite 7100, Washington, 

DC 20530. 

XI. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the Procedures 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 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16, United States District Judge. 

[FR Doc. 2010–32601 Filed 12–27–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Agency Information Collection 

Activities; Submission for OMB 

Review; Comment Request; Affordable 

Care Act Enrollment Opportunity 

Notice—Prohibition on Lifetime Limits 

ACTION: Notice. 

SUMMARY: The Department of Labor 

(DOL) hereby announces the submission 

of the Employee Benefits Security 

Administration (EBSA) sponsored 

information collection request (ICR) 

titled, ‘‘Affordable Care Act Enrollment 

Opportunity Notice—Prohibition on 

Lifetime Limits,’’ to the Office of 

Management and Budget (OMB) for 

review and approval for continued use 

in accordance with the Paperwork 

Reduction Act of 1995 (Pub. L. 104–13, 

44 U.S.C. chapter 35). 

DATES: Submit comments on or before 

January 27, 2011. 

ADDRESSES: A copy of this ICR, with 

applicable supporting documentation; 

including a description of the likely 

respondents, proposed frequency of 

response, and estimated total burden 

may be obtained from the RegInfo.gov 

Web site, http://www.reginfo.gov/ 

public/do/PRAMain or by contacting 

Michel Smyth by telephone at 202–693– 


emcdonald on DSK2BSOYB1PROD with NOTICES