0910138 

UNITED STATES OF AMERICA 

BEFORE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Jon Leibowitz, Chairman 

 Pamela Jones Harbour 

 William E. Kovacic 

 J. Thomas Rosch 

______________________________________________________ 

 ) 

In the Matter of ) 

 ) 

SERVICE CORPORATION INTERNATIONAL ) Docket No. C-4275 

 ) 

 a corporation. ) 

 ) 

______________________________________________________) 

DECISION AND ORDER 

 The Federal Trade Commission (“Commission”), having initiated an investigation of the 

proposed acquisition by Respondent Service Corporation International (“SCI”) of Palm Mortuary 

Inc. (“Palm”), and Respondent having been furnished thereafter with a copy of a draft of 

Complaint that the Bureau of Competition proposed to present to the Commission for its 

consideration and which, if issued by the Commission, would charge Respondent with violations 

of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade 

Commission Act, as amended, 15 U.S.C. § 45; and 

 Respondent, its attorneys, and counsel for the Commission having thereafter executed an 

Agreement Containing Consent Orders (“Consent Agreement”) containing an admission by 

Respondent of all the jurisdictional facts set forth in the aforesaid draft of Complaint, a statement 

that the signing of said Consent Agreement is for settlement purposes only and does not 

constitute an admission by Respondent that the law has been violated as alleged in such 

Complaint, or that the facts as alleged in such Complaint, other than jurisdictional facts, are true, 

and waivers and other provisions as required by the Commission’s Rules; and 

 The Commission having thereafter considered the matter and having determined that it 

had reason to believe that Respondent has violated the said Acts, and that a Complaint should 

issue stating its charges in that respect, and having thereupon issued its Complaint and an Order 

to Maintain Assets, and having accepted the executed Consent Agreement and placed such 

Consent Agreement on the public record for a period of thirty (30) days for the receipt and 

consideration of public comments, now in further conformity with the procedure described in 

Commission Rule 2.34, 16 C.F.R. § 2.34, the Commission hereby makes the following 

jurisdictional findings and issues the following Decision and Order (“Order”): 
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1. Respondent Service Corporation International (“SCI”) is a corporation organized, 

existing and doing business under and by virtue of the laws of the State of Texas, 

with its corporate head office and principal place of business located at 1929 

Allen Parkway, Houston, Texas 77109. 

2. The Commission has jurisdiction of the subject matter of this proceeding and of 

Respondent, and the proceeding is in the public interest. 

ORDER 

I.

 IT IS ORDERED that, as used in the Order, the following definitions shall apply: 

A. “SCI” means Service Corporation International, its directors, officers, employees, agents, 

representatives, successors and assigns; and its subsidiaries, divisions, groups, and 

affiliates controlled by Service Corporation International (including, after the Acquisition 

Date, Palm) and the respective directors, officers, employees, agents, representatives, 

successors, and assigns of each. 

B. “Palm” means Palm Mortuary, Inc., a corporation organized, existing and doing business 

under and by virtue of the laws of the State of Nevada, with its headquarters address at 

1325 North Main Street, Las Vegas, Nevada 89101, and the subsidiaries, divisions, 

groups, and affiliates controlled by Palm Mortuary, Inc. 

C. “Respondent” means SCI. 

D. “Commission” means the Federal Trade Commission. 

E. “Acquirer(s)” means any Person(s) that receives the prior approval of the Commission to 

acquire the Divestiture Business pursuant to this Order. 

F. “Acquisition” means the proposed acquisition described in and contemplated by the 

Equity Purchase Agreement by and among Alderwoods (Nevada), Inc., Palm Mortuary, 

Inc., its Stockholders, Knauss Enterprises Limited Liability Company, Knauss Holdings, 

LLC, and its Members, dated as of August 5, 2009. 

G. “Acquisition Agreement” means the Equity Purchase Agreement, dated as of August 5, 

2009. 

H. “Acquisition Effective Date” means the earliest of the following dates: 
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1. the date the Respondent and Palm close on the Acquisition pursuant to the 

Acquisition Agreement; or 

2. the date on which Respondent, directly or indirectly, acquires a controlling 

interest in Palm. 

I. “Cemetery Services” means all activities relating to the promotion, marketing, sale and 

provision of property, goods and services, to provide for the final disposition of human 

remains in a cemetery, whether by burial, entombment in a mausoleum or crypt, or 

disposition in a niche. 

J. “Confidential Business Information” means information not in the public domain related 

to the Divestiture Business, except for any information that was or becomes generally 

available to the public other than as a result of a disclosure by Respondent, or was 

available, or becomes available, to Respondent on a non-confidential basis, but only if, to 

the knowledge of Respondent, the source of such information is not in breach of a 

contractual, legal, fiduciary, or other obligation to maintain the confidentiality of the 

information. 

K. “Davis Pre-need Contracts” means any type of contract or other agreement entered into 

by a person with Davis Funeral Home and Memorial Park, 6200 South Eastern Avenue, 

Las Vegas, Nevada 89119, or the Davis Funeral Home, 2127 West Charleston Boulevard, 

Las Vegas, Nevada 89102. for the purchase of Funeral Services or Cemetery Services at a 

future time, regardless of whether such agreement is revocable or how payment for such 

services is arranged. 

L. “Direct Cost” means a cost not to exceed the cost of labor, material, travel and other 

expenditures to the extent the costs are directly incurred to provide the relevant assistance 

or service. “Direct Cost” to the Acquirer for its use of any of Respondent’s employees’ 

labor shall not exceed the average hourly wage rate for such employee. 

M. “Divestiture Agreement” means an agreement or agreements divesting the Divestiture 

Assets to an Acquirer, and in a manner, that has been approved by the Commission. 

N. “Divestiture Assets” means all of Respondent’s rights, title, and interest in all property 

and assets, tangible or intangible, of every kind and description, wherever located, and 

any improvements or additions thereto, used in the operation of the Divestiture Business, 

including but not limited to: 

1. All real property interests (including fee simple interests and real property leasehold interests), including all easements, appurtenances, licenses, and permits, 
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together with all buildings and other structures, facilities, and improvements 

located thereon, owned, leased, or otherwise held; 

2. All Tangible Personal Property used in the Divestiture Business, including 

without limitation, Tangible Personal Property removed (and not replaced) from 

the Divestiture Business at any time after August 5, 2009, if such Property is 

necessary to operate the Davis Divestiture Business as a going concern, unless 

such Property was removed in the ordinary course of business and has a cost of 

less than $1,000; 

3. The trade name “Davis Funeral Home and Memorial Park” and all commercial 

names, trade names, “doing business as” (d/b/a) names, registered and 

unregistered trademarks, service marks and applications using the term “Davis,” 

“Davis Funeral Home,” “Davis Memorial Park,” or “Davis Funeral Home and 

Memorial Park”; 

4. All inventories; 

5. All accounts receivable; 

6. All agreements, contracts, and leases and all rights thereunder and related thereto, 

including without limitation, all Davis Pre-Need Contracts; 

7. All consents, licenses, certificates, registrations, or permits issued, granted, given 

or otherwise made available by or under the authority of any governmental body 

or pursuant to any legal requirement, and all pending applications therefore or 

renewals thereof, to the extent assignable; 

8. All Divestiture Business Intellectual Property used exclusively in the Divestiture 

Business; 

9. Intangible rights and property other than Intellectual Property, including going 

concern value, goodwill, internet, telephone, telecopy, e-mail, telephone numbers, 

addresses, domain names, listings, and websites, 

 provided that Respondent is not required to divest any portion of domain 

names or websites content that contain registered or unregistered trademarks, 

service marks and applications using the words “Alderwoods,” “Service 

Corporation International,” “SCI,” “Dignity” or “Dignity Memorial.” 

10. All Confidential Business Records used exclusively in the Divestiture Business; 
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11. All insurance benefits, rights, and proceeds, including those arising from any 

Davis Pre-need Contracts; and 

12. All rights relating to pre-need deposits (including bank, trust, or other accounts 

relating to or arising from any Davis Pre-need Contracts and endowment or 

perpetual care funds), claims for refunds, and rights to offset in respect thereof. 

provided, however, that the Divestiture Assets need not include: 

i) assets located at facilities or offices not included in the Divestiture Business and 

whose use is not exclusively or primarily related to the operation of the 

Divestiture Businesses; 

ii) motor vehicles used by the relevant Divestiture Businesses if the Acquirer does 

not need them and the Commission approves the divestiture without such 

vehicles; 

iii) rights in any lease of Tangible Personal Property that pertains to generally 

available property relating to office furniture, office equipment, or computers; 

iv) rights in, and records and documents (or portions thereof) exclusively concerning, 

any national license, national supply or service agreement, national proprietary or 

licensed advertising program, or national proprietary product associated with 

SCI’s Dignity Memorial program; 

v) rights to records and documents (or portions thereof) exclusively concerning, 

commercial names, trade names, “doing business as” (d/b/a) names, registered 

and unregistered trademarks, service marks and applications using the words 

“Alderwoods,” “Service Corporation International,” “SCI,” “Dignity” (including 

“Dignidad,” “Dignite,” and other translations of Dignity into languages other than 

English), or “Dignity Memorial”; or 

vi) any other assets, rights, or agreements not needed by the Acquirer if the 

Commission approves a Divestiture Agreement that does not divest, grant or 

transfer such assets, rights, or agreements. 
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O. “Divestiture Business” means all activities of Respondent related to 

1. providing Funeral Services and Cemetery Services at the Davis Funeral Home 

and Memorial Park, 6200 South Eastern Avenue, Las Vegas, Nevada 89119; and 

2. marketing, promoting, selling and maintaining Davis Pre-Need Contracts. 

P. “Divestiture Business Employee(s)” means any and all full-time, part-time, or contract 

employees of SCI whose duties, at any time during the ninety (90) days preceding the 

Acquisition Effective Date, related primarily to the Divestiture Business. 

Q. “Divestiture Business Intellectual Property” means all Intellectual Property related to or 

used in the Divestiture Business. 

R. “Divestiture Business License(s)” means a worldwide, royalty-free, paid-up, perpetual, 

irrevocable, transferable, sublicensable, non-exclusive license(s) to the following: 

1. Divestiture Business Intellectual Property not included in the Divestiture Assets; 

2. Divestiture Business Records not included in the Divestiture Assets, 

 provided, however, that the Divestiture Business License(s) need not include 

rights to, or documents or records (or portions thereof) exclusively containing, (i) 

commercial names, trade names, “doing business as” (d/b/a) names, registered and 

unregistered trademarks, service marks and applications using the words “Alderwoods,” 

“Service Corporation International,” “SCI,” “Dignity,” (including “Dignidad,” 

“Dignite,” and other translations of Dignity into languages other than English), or 

“Dignity Memorial,” (ii) national proprietary or licensed advertising programs, (iii) 

national proprietary products associated with Respondent’s Dignity Memorial program, 

(iv) national proprietary software used to service a national network of funeral homes 

and cemeteries or (v) generally available software; 

 provided, further, that Divestiture Business License(s) need not include any 

Divestiture Business Intellectual Property or Divestiture Business Records not needed by 

the Acquirer if the Commission approves a Divestiture Agreement without it. 

S. “Divestiture Business Records” means all information, documents and records, including 

all electronic records wherever stored, that are related to or used in the Divestiture 

Business, including without limitation, client and customer lists, referral sources, research 

and development reports, production reports, service and warranty records, equipment 

logs, operating guides and manuals, financial and accounting documents, creative 

materials, advertising materials, promotional materials, studies, reports, correspondence, 
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financial statements, financial plans and forecasts, operating plans, price lists, cost 

information, supplier and vendor contracts, marketing analyses, customer lists, customer 

contracts, employee lists, salaries and benefits information, and, subject to legal 

requirements, copies of all personnel files. 

T. “Divestiture Closing Date” means the date on which Respondent (or a Divestiture 

Trustee) consummates a transaction to assign, grant, license, divest, transfer, deliver, or 

otherwise convey the Divestiture Assets to an Acquirer pursuant to this Order. 

U. “Funeral Services” means all activities relating to the promotion, marketing, sale and 

provision of funeral services and funeral goods, including, but not limited to, goods and 

services used to care for and prepare bodies for burial, cremation, or other final 

disposition; and goods and services used to arrange, supervise, or conduct the funeral 

ceremony or final disposition of human remains. 

V. “Intellectual Property” means all intellectual property owned or licensed (as licensor or 

licensee) by Respondent, in which Respondent has a proprietary interest, including (i) 

commercial names, trade names, “doing business as” (d/b/a) names, registered and 

unregistered trademarks, logos, service marks and applications; (ii) all patents, patent 

applications, inventions and discoveries that may be patentable; (iii) all registered and 

unregistered copyrights in both published works and unpublished works; (iv) all knowhow, trade secrets, confidential or proprietary information, protocols, quality control 

information, customer lists, software, technical information, data, process technology, 

plans, drawings and blue prints; and (v) all rights in websites and internet domain names 

presently used by Respondent. 

W. “Person” means any individual, partnership, firm, corporation, association, trust, 

unincorporated organization or other business entity. 

X. “Tangible Personal Property” means all machinery, equipment, tools, furniture, office 

equipment, computer hardware, supplies, materials, vehicles, and other items of tangible 

personal property (other than inventories) of every kind owned or leased by Respondent, 

together with any express or implied warranty by the manufacturers or sellers or lessors 

of any item or component part thereof and all maintenance records and other documents 

relating thereto. 

Y. “Third Party” means any Person other than Respondent, Palm, or Acquirer. 

Z. “Transitional Services” means assistance with respect to providing Funeral Services or 

Cemetery Services, including assistance relating to administrative and support services. 
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II.

IT IS FURTHER ORDERED that: 

A. Respondent shall divest the Divestiture Assets and convey the Divestiture Business 

License at no minimum price, absolutely and in good faith, as on-going businesses, no 

later than ninety (90) days from the Acquisition Date, to an Acquirer and in a manner that 

receives the prior approval of the Commission. 

B. Any Divestiture Agreement between Respondent and the Acquirer shall be deemed 

incorporated into this Order, and any failure by Respondent to comply with any term of 

such Divestiture Agreement shall constitute a failure to comply with this Order. 

C. Prior to the Divestiture Closing Date, Respondent shall secure all consents and waivers 

from all Third Parties that are necessary to allow Respondent to divest the Divestiture 

Assets, convey the Divestiture Business License, and allow the Acquirer to operate the 

Divestiture Business; 

 provided, however, Respondent may satisfy this requirement as to a particular 

Third Party by certifying that the Acquirer has executed the necessary agreements 

directly with such Third Party. 

D. Prior to the Divestiture Closing Date, Respondent shall take all actions necessary to 

ensure that Divestiture Assets meet federal, state, local and municipal requirements 

necessary to allow the transfer of the Divestiture Assets to the Acquirer. 

E. Respondent shall not enforce any agreement against a Third Party or the Acquirer to the 

extent that such agreement may limit or otherwise impair the ability of the Acquirer to 

acquire or use the Divestiture Assets and/or operate the Divestiture Business. 

F. Respondent shall not, after the Acquisition Effective Date, use, directly or indirectly, any 

Confidential Business Information or disclose or convey any Confidential Business 

Information, directly or indirectly, to any Person except as follows: 

1. Respondent may disclose Confidential Business Information to the Acquirer or 

proposed Acquirer (as the case may be) or other Persons specifically authorized 

by such Acquirer or proposed Acquirer to receive such information; and 

2. So long as Respondent does not disclose Confidential Business Information to 

any Persons who have operational responsibility for the Palm Business, 

Respondent may use Confidential Business Information as needed: 
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a) to comply the requirements of this Order or the Order to Maintain Assets; 

b) to comply with Respondent’s obligations to the Acquirer under the 

Divestiture Agreement(s); 

c) to comply with applicable law; or 

d) to enforce the terms of any Divestiture Agreement or defend against any 

dispute or legal proceeding, 

provided, that Confidential Business Information may be disclosed to Third 

Parties only as necessary for the purposes authorized by this Paragraph pursuant to an 

appropriate confidentiality order, agreement or arrangement with the Acquirer (but 

Respondent shall not be deemed to have violated this requirement if the Acquirer 

withholds such agreement unreasonably); and Respondent shall use its best efforts to 

obtain a protective order to protect the confidentiality of such Confidential Business 

Information during any adjudication; 

provided, further, that Respondent may continue to use Confidential Business 

Information included in the Divestiture Business License(s) to the extent such 

information was previously used by Respondent in connection with assets other than 

those being transferred to Acquirer pursuant to this Order and/or the Divestiture 

Agreement. 

G. On or before the Divestiture Closing Date, Respondent shall provide written notification 

of the restrictions on the use of the Confidential Business Information contained in the 

Order to all employees who were involved in the Divestiture Business. 

H. Within ten (10) days of a request by the Commission or by an Acquirer or proposed 

Acquirer (as applicable), Respondent shall provide the Acquirer or proposed Acquirer (as 

applicable) with the following information for each Divestiture Business Employee, and 

to the extent permitted by law: 

1. name, job title or position, date of hire and effective service date; 

2. a specific description of the employee’s responsibilities; 

3. the base salary or current wages; 

4. the most recent bonus paid, aggregate annual compensation for the relevant 

Respondent’s last fiscal year and current target or guaranteed bonus, if any; 

5. employment status (i.e., active or on leave or disability; full-time or part-time); 
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6. any other material terms and conditions of employment in regard to such 

employee that are not otherwise generally available to similarly situated 

employees; and 

7. at the option of the proposed Acquirer or Acquirer (as applicable), copies of all 

employee benefit plans and summary plan descriptions (if any) applicable to the 

relevant employees. 

I. Respondent shall not interfere with the employment by the Acquirer of any Divestiture 

Business Employee; shall not offer any incentive to such employees to decline 

employment with the Acquirer or to accept other employment with the Respondent; and 

shall eliminate any contractual impediments that may deter such employee from 

accepting employment with the Acquirer including, but not limited to, removing any noncompete or confidentiality provisions of employment or other contracts that would affect 

the ability of such employee to be employed by the Acquirer, and paying, or transferring 

to the account of the employee, all current and accrued bonuses, pensions and other 

current and accrued benefits. 

J. For a period of two (2) years after the Divestiture Date, Respondent shall not, directly or 

indirectly, solicit, induce or attempt to solicit or induce any Divestiture Business 

Employee(s) who have accepted offers of employment with the Acquirer, or who are 

employed by the Acquirer, to terminate their employment relationship with the Acquirer; 

provided, however, a violation of this provision will not occur if: (1) the person’s 

employment has been terminated by the Acquirer, (2) Respondent advertises for 

employees in newspapers, trade publications, or other media not targeted specifically at 

the employees, or (3) Respondent hires employees who apply for employment with 

Respondent, so long as such employees were not solicited by Respondent in violation of 

this paragraph. 

K. At the request of the Acquirer, Respondent shall use its best efforts to assist the Acquirer 

in the fulfillment of any Pre-need Contract relating to the sale of a Dignity Memorial 

Funeral Plan entered into by Respondent prior to the date of divestiture of the applicable 

funeral home or cemetery; provided, however, that this Paragraph requires Respondent to 

assist only with such goods and services that the Acquirer cannot reasonably provide on 

its own. 

L. For a period ending six (6) months after the date all Divestiture Assets and Divestiture 

Licenses have been fully and finally transferred and conveyed to the Acquirer, 

Respondent shall provide Transitional Services to the Acquirer, at no more than 

Respondent’s Direct Cost, as needed to assist the Acquirer in using the Divestiture Assets 

to operate the Divestiture Business as a viable and ongoing business providing Funeral 

Services and Cemetery Services at least equivalent to those provided by Respondent prior 
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to the Divestiture Date. Respondent shall not (i) require the Acquirer to pay 

compensation for Transitional Services that exceeds the Direct Cost of providing such 

goods and services, or (ii) terminate its obligation to provide Transitional Services 

because of a material breach by the Acquirer of any agreement to provide such 

assistance, in the absence of a final order of a court of competent jurisdiction. 

M. The purpose of this Order is to ensure that the Divestiture Business remains a competitive 

and viable provider of Funeral Services and Cemetery Services independent of 

Respondent and to remedy in a timely manner the lessening of competition resulting from 

the Acquisition as alleged in the Commission’s Complaint. 

III.

IT IS FURTHER ORDERED that: 

A. For a period of ten (10) years from the date this Order becomes final, Respondent shall 

not, without providing advance written notification to the Commission, (i) acquire, 

directly or indirectly, through subsidiaries or otherwise, any leasehold, ownership 

interest, or any other interest, in whole or in part, in any concern, corporate or noncorporate, or in any assets engaged in the provision of Cemetery Services in Clark 

County, Nevada. 

B. The prior notification required by this Paragraph III shall be given on the Notification and 

Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal 

Regulations as amended (hereinafter referred to as “the Notification”), and shall be 

prepared and transmitted in accordance with the requirements of that part, except that no 

filing fee will be required for any such notification, notification shall be filed with the 

Secretary of the Commission, notification need not be made to the United States 

Department of Justice, and notification is required only of the Respondent and not of any 

other party to the transaction. Respondent shall provide the Notification to the 

Commission at least thirty (30) days prior to consummating the transaction (hereinafter 

referred to as the “first waiting period”). If, within the first waiting period, 

representatives of the Commission make a written request for additional information or 

documentary material (within the meaning of 16 C.F.R. § 803.20), the Respondent shall 

not consummate the transaction until thirty (30) days after submitting such additional 

information or documentary material. Early termination of the waiting periods in this 

Paragraph V may be requested and, where appropriate, granted by letter from the Bureau 

of Competition. Provided, however, that prior notification shall not be required by this 

Paragraph for a transaction for which notification is required to be made, and has been 

made, pursuant to Section 7A of the Clayton Act, 15 U.S.C.§ 18a. 
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IV.

IT IS FURTHER ORDERED that: 

A. At any time after Respondent signs the Consent Agreement in this matter, the 

Commission may appoint a monitor (“Interim Monitor”) to assure that Respondent 

expeditiously complies with all of its obligations and performs all of its responsibilities as 

required by this Order. 

B. The Commission shall select the Interim Monitor, subject to the consent of Respondent, 

which consent shall not be unreasonably withheld. If Respondent has not opposed, in 

writing, including the reasons for opposing, the selection of a proposed Interim Monitor 

within ten (10) days after notice by the staff of the Commission to Respondent of the 

identity of the proposed Interim Monitor, Respondent shall be deemed to have consented 

to the selection of the Interim Monitor. 

C. Not later than ten (10) days after the appointment of an Interim Monitor, Respondent 

shall execute an agreement that, subject to the prior approval of the Commission, confers 

on the Interim Monitor all the rights and powers necessary to permit the Interim Monitor 

to monitor Respondent’s compliance with the relevant requirements of this Order in a 

manner consistent with the purposes of the Order. 

D. Respondent shall facilitate the ability of the Interim Monitor(s) to comply with the duties 

and obligations set forth in this Order, and shall take no action that interferes with or 

hinders the Interim Monitor’s authority, rights, or responsibilities as set forth herein or in 

any agreement between the Interim Monitor(s) and Respondent. 

E. The Interim Monitor’s duties and responsibilities shall include the following: 

1. the Interim Monitor shall act in a fiduciary capacity for the benefit of the 

Commission; 

2. the Interim Monitor shall have the power and authority to monitor Respondent=s 

compliance with this Order and shall exercise such power and authority and carry 

out his or her duties and responsibilities in a manner consistent with the purposes 

of this Order and in consultation with the Commission; 

3. the Interim Monitor may, in his or her sole discretion, consult with third parties in 

the exercise of his or her duties under this Order, or under any agreement between 

the Interim Monitor and Respondent; and 
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4. the Interim Monitor shall evaluate the reports submitted by Respondent pursuant 

to this Order, and within thirty (30) days from the date the Interim Monitor 

receives these reports, report in writing to the Commission concerning 

performance by Respondent of its obligations under the Order. 

F. The Commission may, among other things, require the Interim Monitor and each of the 

Interim Monitor’s consultants, accountants, attorneys and other representatives and 

assistants to sign an appropriate confidentiality agreement related to Commission 

materials and information received in connection with the performance of the Interim 

Monitor’s duties. 

G. The Interim Monitor shall serve until six (6) months after Respondent has fully and 

finally transferred to the Acquirer all Divestiture Assets and all Divestiture Business 

Records, 

 provided, however, that the Interim Monitor’s service shall not exceed two (2) 

years from the date the Order becomes final; 

provided, further, that the Commission may extend or modify this period as may 

be necessary or appropriate to accomplish the purposes of this Order. 

. 

H. If the Commission determines that an Interim Monitor has ceased to act or failed to act 

diligently, the Commission may appoint a substitute Interim Monitor pursuant to the 

procedures contained in this Paragraph. 

I. The Commission may on its own initiative, or at the request of the Interim Monitor, issue 

such additional orders or directions as may be necessary or appropriate to assure 

compliance with the requirements of this Order. 

J. The Interim Monitor appointed pursuant to this Order may be the same person appointed 

as an Interim Monitor under the Order to Maintain Assets or the Divestiture Trustee(s) 

pursuant to this Order. 
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V.

IT IS FURTHER ORDERED that: 

A. If Respondent has not fully complied with the obligations to assign, grant, license, divest, 

transfer, deliver or otherwise convey the Divestiture Assets and Divestiture Licenses as 

required by this Order, the Commission may appoint a trustee (“Divestiture Trustee”) to 

assign, grant, license, divest, transfer, deliver or otherwise convey these assets in a 

manner that satisfies the requirements of this Order. In the event that the Commission or 

the Attorney General of the United States brings an action pursuant to §5(l) of the Federal 

Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the 

Commission, Respondent shall consent to the appointment of a Divestiture Trustee in 

such action to assign, grant, license, divest, transfer, deliver or otherwise convey such 

assets. Neither the appointment of a Divestiture Trustee nor a decision not to appoint a 

Divestiture Trustee under this Paragraph shall preclude the Commission or the Attorney 

General of the United States from seeking civil penalties or any other available relief, 

including a court-appointed Divestiture Trustee, pursuant to § 5(l) of the Federal Trade 

Commission Act, or any other statute enforced by the Commission, for any failure by 

Respondent to comply with this Order. 

B. The Commission shall select the Divestiture Trustee, subject to the consent of 

Respondent, which consent shall not be unreasonably withheld. The Divestiture Trustee 

shall be a Person with experience and expertise in acquisitions and divestitures. If 

Respondent has not opposed, in writing, including the reasons for opposing, the selection 

of any proposed Divestiture Trustee within ten (10) days after notice by the staff of the 

Commission to Respondent of the identity of any proposed Divestiture Trustee, 

Respondent shall be deemed to have consented to the selection of the proposed 

Divestiture Trustee. 

C. Not later than ten (10) days after the appointment of a Divestiture Trustee, Respondent 

shall execute a trust agreement that, subject to the prior approval of the Commission, 

transfers to the Divestiture Trustee all rights and powers necessary to permit the 

Divestiture Trustee to effect the divestiture required by this Order. 

D. If a Divestiture Trustee is appointed by the Commission or a court pursuant to this 

Paragraph, Respondent shall consent to the following terms and conditions regarding the 

Divestiture Trustee’s powers, duties, authority, and responsibilities: 

1. Subject to the prior approval of the Commission, the Divestiture Trustee shall 

have the exclusive power and authority to assign, grant, license, divest, transfer, 

deliver or otherwise convey the assets that are required by this Order to be 
15

assigned, granted, licensed, divested, transferred, delivered or otherwise 

conveyed. 

2. The Divestiture Trustee shall have twelve (12) months after the date the 

Commission approves the trust agreement described herein to accomplish the 

divestiture, which shall be subject to the prior approval of the Commission. If, 

however, at the end of the twelve (12) month period, the Divestiture Trustee has 

submitted a plan of divestiture or believes that the divestiture can be achieved 

within a reasonable time, the divestiture period may be extended by the 

Commission; provided, however, that the Commission may extend the divestiture 

period only two (2) times. 

3. Subject to any demonstrated legally recognized privilege, the Divestiture Trustee 

shall have full and complete access to the personnel, books, records and facilities 

related to the relevant assets that are required to be assigned, granted, licensed, 

divested, delivered or otherwise conveyed by this Order and to any other relevant 

information, as the Divestiture Trustee may request. Respondent shall develop 

such financial or other information as the Divestiture Trustee may request and 

shall cooperate with the Divestiture Trustee. Respondent shall take no action to 

interfere with or impede the Divestiture Trustee’s accomplishment of the 

divestiture. Any delays in divestiture caused by Respondent shall extend the time 

for divestiture under this Paragraph in an amount equal to the delay, as 

determined by the Commission or, for a court-appointed Divestiture Trustee, by 

the court. 

4. The Divestiture Trustee shall use commercially reasonable efforts to negotiate the 

most favorable price and terms available in each contract that is submitted to the 

Commission, subject to Respondent’s absolute and unconditional obligation to 

divest expeditiously and at no minimum price. The divestiture shall be made in 

the manner and to an Acquirer as required by this Order; provided, however, that 

if the Divestiture Trustee receives bona fide offers from more than one acquiring 

Person, and if the Commission determines to approve more than one such 

acquiring Person, the Divestiture Trustee shall divest to the acquiring Person 

selected by Respondent from among those approved by the Commission; 

provided further, however, that Respondent shall select such Person within five 

(5) days after receiving notification of the Commission’s approval. 

5. The Divestiture Trustee shall serve, without bond or other security, at the cost and 

expense of Respondent, on such reasonable and customary terms and conditions 

as the Commission or a court may set. The Divestiture Trustee shall have the 

authority to employ, at the cost and expense of Respondent, such consultants, 
16

accountants, attorneys, investment bankers, business brokers, appraisers, and 

other representatives and assistants as are necessary to carry out the Divestiture 

Trustee’s duties and responsibilities. The Divestiture Trustee shall account for all 

monies derived from the divestiture and all expenses incurred. After approval by 

the Commission of the account of the Divestiture Trustee, including fees for the 

Divestiture Trustee’s services, all remaining monies shall be paid at the direction 

of Respondent, and the Divestiture Trustee’s power shall be terminated. The 

compensation of the Divestiture Trustee shall be based at least in significant part 

on a commission arrangement contingent on the divestiture of all of the relevant 

assets required to be divested by this Order. 

6. Respondent shall indemnify the Divestiture Trustee and hold the Divestiture 

Trustee harmless against any losses, claims, damages, liabilities, or expenses 

arising out of, or in connection with, the performance of the Divestiture Trustee’s 

duties, including all reasonable fees of counsel and other expenses incurred in 

connection with the preparation for, or defense of, any claim, whether or not 

resulting in any liability, except to the extent that such losses, claims, damages, 

liabilities, or expenses result from gross negligence, willful or wanton acts, or bad 

faith by the Divestiture Trustee. 

7. The Divestiture Trustee shall have no obligation or authority to operate or 

maintain the relevant assets required to be divested by this Order; provided, 

however, that the Divestiture Trustee appointed pursuant to this Paragraph may be 

the same Person appointed as Interim Monitor pursuant to the relevant provisions 

of this Order and the Order to Maintain Assets in this matter. 

8. The Divestiture Trustee shall report in writing to Respondent and to the 

Commission every thirty (30) days concerning the Divestiture Trustee’s efforts to 

accomplish the divestiture. 

9. Respondent may require the Divestiture Trustee and each of the Divestiture 

Trustee’s consultants, accountants, attorneys and other representatives and 

assistants to sign a customary confidentiality agreement; provided, however, that 

such agreement shall not restrict the Divestiture Trustee from providing any 

information to the Commission. 

E. If the Commission determines that a Divestiture Trustee has ceased to act or failed to act 

diligently, the Commission may appoint a substitute Divestiture Trustee in the same 

manner as provided in this Paragraph. 

F. The Commission or, in the case of a court-appointed Divestiture Trustee, the court, may 

on its own initiative or at the request of the Divestiture Trustee issue such additional 
17

orders or directions as may be necessary or appropriate to accomplish the divestiture 

required by this Order. 

VI.

IT IS FURTHER ORDERED that: 

A. Within five (5) days of the Acquisition, Respondent shall submit to the Commission a 

letter certifying the date on which the Acquisition occurred. 

B. Respondent shall submit to the Commission a verified written report setting forth in 

detail the manner and form in which it intends to comply, is complying, and has complied 

with this Order: 

1. Within thirty (30) days after this Order becomes final, and every thirty (30) days 

thereafter until Respondent has fully transferred the Divested Assets and 

Divestiture Licenses as required by this Order and 

2. Every sixty (60) days thereafter until the termination of the period during which 

Respondent is required to provide Transitional Services under the Order and, if 

applicable, the Divestiture Agreement. 

C. Respondent shall submit a copy of its report concerning compliance with this Order to the 

Interim Monitor (if one has been appointed). Respondent shall include in its report, 

among other things that are required from time to time, a full description of its efforts to 

comply with the Order, including the status of the divestiture and transfer of the 

Divestiture Assets and Divestiture Licenses; a description of all Transitional Services 

provided to Acquirer; a description of all substantive contacts with Acquirer, the Interim 

Monitor (if one has been appointed) and any other Persons related to compliance with the 

terms of this Order and/or the Divestiture Agreement(s), and any correspondence with 

proposed Acquirer, Acquirer, Interim Monitor or other Third Party related to such 

contacts that is dated after the Divestiture Closing Date; and any other actions taken by 

Respondent relating to compliance with the terms of this Order and/or the Divestiture 

Agreements. The final compliance report required by this Paragraph V shall include a 

statement that the divestiture has been accomplished in the manner approved by the 

Commission and shall include the date the divestiture was accomplished. 

D. One (1) year after this Order becomes final, annually for the next nine (9) years, on the 

anniversary of the date the Order becomes final, and at other times as the Commission 
18

may require, Respondent shall file a verified written report with the Commission setting 

forth in detail the manner and form in which it has complied and is complying with the 

Order. 

VII.

 IT IS FURTHER ORDERED that Respondent shall notify the Commission at least 

thirty (30) days prior: 

A. any proposed dissolution of Respondent; 

B. any proposed acquisition, merger or consolidation of Respondent; or 

C. any other change in Respondent, including without limitation, assignment and the 

creation or dissolution of subsidiaries, if such change may affect compliance obligations 

arising out of this Order. 

VIII.

 IT IS FURTHER ORDERED that, for purposes of determining or securing compliance 

with this Order, and subject to any legally recognized privilege, and upon written request and 

upon five (5) days notice to Respondent, made to its principal office, Respondent shall, without 

restraint or interference, permit any duly authorized representative of the Commission: 

A. Access, during business office hours of Respondent and in the presence of counsel, to all 

facilities and access to inspect and copy all books, ledgers, accounts, correspondence, 

memoranda and all other records and documents in the possession or under the control of 

Respondent related to compliance with this Order, which copying services shall be 

provided by Respondent at the request of the authorized representative(s) of the 

Commission and at the expense of Respondent; and 

B. To interview officers, directors, or employees of Respondent, who may have counsel 

present, regarding such matters. 
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IX.

 IT IS FURTHER ORDERED that this Order shall terminate on January 6, 2020. 

 By the Commission. 

 Donald S. Clark 

 Secretary 

SEAL 

ISSUED: January 6, 2010