60820 Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Notices 

operating conditions (using equipment 

and machinery in place and ready to 

operate), normal operating levels (hours 

per week/weeks per year), time for 

downtime, maintenance, repair, and 

cleanup, and a typical or representative 

product mix); and 

(c) the quantity and value of your 

firm’s(s’) exports to the United States of 

Subject Merchandise and, if known, an 

estimate of the percentage of total 

exports to the United States of Subject 

Merchandise from the Subject Country 

accounted for by your firm’s(s’) exports. 

(12) Identify significant changes, if 

any, in the supply and demand 

conditions or business cycle for the 

Domestic Like Product that have 

occurred in the United States or in the 

market for the Subject Merchandise in 

the Subject Country after 2004, and 

significant changes, if any, that are 

likely to occur within a reasonably 

foreseeable time. Supply conditions to 

consider include technology; 

production methods; development 

efforts; ability to increase production 

(including the shift of production 

facilities used for other products and the 

use, cost, or availability of major inputs 

into production); and factors related to 

the ability to shift supply among 

different national markets (including 

barriers to importation in foreign 

markets or changes in market demand 

abroad). Demand conditions to consider 

include end uses and applications; the 

existence and availability of substitute 

products; and the level of competition 

among the Domestic Like Product 

produced in the United States, Subject 

Merchandise produced in the Subject 

Country, and such merchandise from 

other countries. 

(13) (OPTIONAL) A statement of 

whether you agree with the above 

definitions of the Domestic Like Product 

and Domestic Industry; if you disagree 

with either or both of these definitions, 

please explain why and provide 

alternative definitions. 

Authority: This review is being conducted 

under authority of title VII of the Tariff Act 

of 1930; this notice is published pursuant to 

section 207.61 of the Commission’s rules. 

By order of the Commission. 

Issued: September 21, 2010. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. 2010–24065 Filed 9–30–10; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Adobe Systems, Inc., 

et al.; 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. 

Adobe Systems, Inc., et al., Civil Case 

No. 1:10–CV–01629. On September 24, 

2010, the United States filed a 

Complaint alleging that Adobe Systems, 

Inc., Apple Inc., Google Inc., Intel Corp., 

Intuit, Inc., and Pixar entered into 

various bilateral agreements in which 

they agreed not to actively solicit each 

other’s highly skilled technical 

employees, in violation of Section 1 of 

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

proposed Final Judgment, filed the same 

time as the Complaint, requires 

Defendants 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). 

J. Robert Kramer II, 

Director of Operations and 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. Adobe Systems, Inc., 345 Park 

Avenue, San Jose, CA 95110; Apple Inc., 1 

Infinite Loop, Cupertino, CA 95014; Google 

Inc., 1600 Amphitheater Parkway, Mountain 

View, CA 94043; Intel Corporation, 2200 

Mission College Boulevard, Santa Clara, CA 

95054; Intuit, Inc., 2632 Marine Way, 

Mountain View, CA 94043; and Pixar, 1200 

Park Avenue, Emeryville, CA 94608, 

Defendants. 

Case: 1:10–cv–01629. 

Assigned to: Kollar-Kotelly, Colleen. 

Assign. Date: 9/24/2010. 

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 Defendants Adobe 

Systems, Inc. (‘‘Adobe’’), Apple Inc. 

(‘‘Apple’’), Google Inc. (‘‘Google’’), Intel 

Corporation (‘‘Intel’’), Intuit, Inc. 

(‘‘Intuit’’), and Pixar, alleging as follows: 

Nature of the Action 

1. This action challenges under 

Section 1 of the Sherman Act five 

bilateral no cold call agreements among 

Adobe, Apple, Google, Intel, Intuit, and 

Pixar. 

2. Defendants compete for highly 

skilled technical employees (‘‘high tech 

employees’’) and solicit employees at 

other high tech companies to fill 

employment openings. Defendants’ 

concerted behavior both reduced their 

ability to compete for employees and 

disrupted the normal price-setting 

mechanisms that apply in the labor 

setting. These no cold call agreements 

are facially anticompetitive because 

they eliminated a significant form of 

competition to attract high tech 

employees, and, overall, substantially 

diminished competition to the 

detriment of the affected employees 

who were likely deprived of 

competitively important information 

and access to better job opportunities. 

3. Defendants’ agreements are 

restraints of trade that are per se 

unlawful under Section 1 of the 

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

States seeks an order prohibiting such 

agreements. 

Jurisdiction and Venue 

4. Each Defendant hires specialized 

computer engineers and scientists 

throughout the United States, and each 

sells high technology products 

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 the Defendants from violating 


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Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Notices 60821 

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

1. 

5. 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). Defendants transact or 

have transacted substantial business 

here. 

Defendants 

6. Defendant Adobe is a Delaware 

corporation with its principal place of 

business in San Jose, California. 

7. Defendant Apple is a California 

corporation with its principal place of 

business in Cupertino, California. 

8. Defendant Google is a Delaware 

corporation with its principal place of 

business in Mountain View, California. 

9. Defendant Intel is a Delaware 

corporation with its principal place of 

business in Santa Clara, California. 

10. Defendant Intuit is a Delaware 

corporation with its principal place of 

business in Mountain View, California. 

11. Defendant Pixar is a California 

corporation with its principal place of 

business in Emeryville, California. 

Trade and Commerce 

12. High tech labor is characterized by 

expertise and specialization. Defendants 

compete for high tech employees, and in 

particular specialized computer science 

and engineering talent on the basis of 

salaries, benefits, and career 

opportunities. In recent years, talented 

computer engineers and computer 

scientists have been in high demand. 

13. Although Defendants employ a 

variety of recruiting techniques, cold 

calling another firm’s employees is a 

particularly effective method of 

competing for computer engineers and 

computer scientists. 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. 

Defendants frequently recruit employees 

by cold calling because other firms’ 

employees have the specialized skills 

necessary for the vacant position and 

may be unresponsive to other methods 

of recruiting. For example, several 

Defendants at times have received an 

extraordinary number of job 

applications per year. Yet these 

companies still cold called engineers 

and scientists at other high tech 

companies to fill certain positions. 

14. In a well-functioning labor market, 

employers compete to attract the most 

valuable talent for their needs. 

Defendants’ concerted behavior both 

reduced their ability to compete for 

employees and disrupted the normal 

price-setting mechanisms that apply in 

the labor setting. These no cold call 

agreements are facially anticompetitive 

because they eliminated a significant 

form of competition to attract high tech 

employees, and, overall, substantially 

diminished competition to the 

detriment of the affected employees 

who were likely deprived of 

competitively important information 

and access to better job opportunities. 

The Unlawful Agreements 

15. The six Defendants entered into 

five substantially similar agreements not 

to cold call employees. The agreements 

were between (i) Apple and Google, (ii) 

Apple and Adobe, (iii) Apple and Pixar, 

(iv) Google and Intel, and (v) Google and 

Intuit. As detailed below, these 

agreements were created and enforced 

by senior executives of these companies. 

16. These no cold call agreements 

were not ancillary to any legitimate 

collaboration between Defendants. None 

of the agreements was limited by 

geography, job function, product group, 

or time period. Thus, they were much 

broader than reasonably necessary for 

the formation or implementation of any 

collaborative effort. The lack of 

necessity for these broad agreements is 

further demonstrated by the fact that 

Defendants engaged in substantial 

collaborations that either did not 

include no cold call agreements or 

contained narrowly tailored hiring 

restrictions. 

Apple-Google Agreement 

17. Beginning no later than 2006, 

Apple and Google agreed not to cold 

call each other’s employees. Senior 

executives at Apple and Google reached 

an express no cold call agreement 

through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. 

18. The Apple-Google agreement 

covered all Google and all Apple 

employees and was not limited by 

geography, job function, product group, 

or time period. Moreover, employees 

were not informed of and did not agree 

to this restriction. 

19. In furtherance of this agreement, 

Apple placed Google on its internal ‘‘Do 

Not Call List,’’ which instructed Apple 

employees not to cold call employees 

from the listed companies, including 

Google. Similarly, in its Hiring Policies 

and Protocols manual, Google listed 

Apple among the companies that had 

special agreements with Google and 

were part of the ‘‘Do Not Cold Call’’ list. 

The manual instructed Google 

employees not to cold call employees of 

the listed companies. 

20. The companies, through their 

senior executives, policed potential 

breaches of the agreement. In February 

2006 and March 2007, Apple 

complained to Google regarding 

recruiting efforts Google had made and, 

on both occasions, Google investigated 

the matter internally and reported its 

findings back to Apple. 

Apple-Adobe Agreement 

21. Beginning no later than May 2005, 

Apple and Adobe agreed not to cold call 

each other’s employees. Senior 

executives at Apple and Adobe reached 

an express no cold call agreement 

through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. 

22. The Apple-Adobe agreement 

covered all Adobe and all Apple 

employees and was not limited by 

geography, job function, product group, 

or time period. Moreover, employees 

were not informed of and did not agree 

to this restriction. 

23. In furtherance of this agreement, 

Apple placed Adobe on its internal ‘‘Do 

Not Call List,’’ which instructed Apple 

employees not to cold call employees 

from the listed companies, including 

Adobe. Similarly, Adobe included 

Apple in its internal list of ‘‘Companies 

that are off limits,’’ instructing recruiters 

not to cold call candidates from Apple. 

Apple-Pixar Agreement 

24. Beginning no later than April 

2007, Apple and Pixar agreed not to 

cold call each other’s employees. Senior 

executives at Apple and Pixar reached 

an express no cold call agreement 

through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. 

25. The Apple-Pixar agreement 

covered all Pixar and all Apple 

employees and was not limited by 

geography, job function, product group, 

or time period. Moreover, employees 

were not informed of and did not agree 

to this restriction. 

26. In furtherance of this agreement, 

Apple placed Pixar on its internal ‘‘Do 

Not Call List,’’ which instructed Apple 

employees not to cold call employees 

from the listed companies, including 

Pixar. Similarly, Pixar instructed Pixar 

human resources personnel to adhere to 

the agreement and maintain a paper trail 

establishing that Pixar had not actively 

recruited job applicants from Apple. 


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60822 Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Notices 

Google-Intel Agreement 

27. Beginning no later than September 

2007, Google and Intel agreed not to 

cold call each other’s employees. Senior 

executives at Google and Intel reached 

an express no cold call agreement 

through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. 

28. The agreement covered all Intel 

and all Google employees and was not 

limited by geography, job function, 

product group, or time period. 

Moreover, employees were not informed 

of and did not agree to this restriction. 

29. In furtherance of this agreement, 

Google listed Intel in its Hiring Policies 

and Protocols manual among the 

companies that have special agreements 

with Google and were part of the ‘‘Do 

Not Cold Call’’ list. The manual 

instructed Google employees not to cold 

call employees of the listed companies. 

Similarly, Intel instructed its human 

resources staff about the existence of the 

agreement. 

Google-Intuit Agreement 

30. In June 2007, Google and Intuit 

agreed that Google would not cold call 

any Intuit employee. Senior executives 

at Google and Intuit reached an express 

no cold call agreement through direct 

and explicit communications. The 

executives actively managed and 

enforced the agreement through direct 

communications. 

31. The agreement covered all Intuit 

employees and was not limited by 

geography, job function, product group, 

or time period. Moreover, Intuit 

employees were not informed of and did 

not agree to this restriction. 

32. In furtherance of this agreement, 

in its Hiring Policies and Protocols 

manual, Google listed Intuit among the 

companies that had special agreements 

with Google and were part of the ‘‘Do 

Not Cold Call’’ list. The manual 

instructed Google employees not to cold 

call employees of the listed companies. 

Violation Alleged 

Violation of Section 1 of the Sherman 

Act 

33. The United States hereby 

incorporates paragraphs 1 through 32. 

34. Defendants are direct competitors 

for employees, including specialized 

computer engineers and scientists, 

covered by the agreements at issue here. 

Defendants’ concerted behavior both 

reduced their ability to compete for 

employees and disrupted the normal 

price-setting mechanisms that apply in 

the labor setting. These no cold call 

agreements are facially anticompetitive 

because they eliminated a significant 

form of competition to attract high tech 

employees, and, overall, substantially 

diminished competition to the 

detriment of the affected employees 

who were likely deprived of 

competitively important information 

and access to better job opportunities. 

35. Defendants’ agreements constitute 

unreasonable restraints of trade that are 

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 

Defendants’ agreements not to compete 

constitute illegal restraints of interstate 

trade and commerce in violation of 

Section 1 of the Sherman Act; 

(B) Enjoin and restrain Defendants 

from enforcing or adhering to existing 

agreements that unreasonably restrict 

competition for employees between 

them; 

(C) Permanently enjoin and restrain 

each Defendant 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 

Adobe, Apple, Google, Intel, Intuit, and 

Pixar; and 

(E) The United States be awarded the 

costs of this action. 

Dated this 24th day of September 2010. 

Respectfully submitted, 

For Plaintiff United States. 

Molly S. Boast, 

Acting Assistant Attorney General. 

J. Robert Kramer II, 

Director of Operations. 

James J. Tierney, 

Chief, Networks and Technology Section. DC 

Bar #434610. 

Scott A. Scheele, 

Assistant Chief, Networks and Technology 

Section, DC Bar #429061. 

Ryan S. Struve (DC Bar #495406), 

Adam T. Severt, 

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. 

ryan.struve@usdoj.gov. 

Certificate of Service 

I, Ryan Struve, hereby certify that on 

September 24, 2010, I caused a copy of 

the Complaint to be served on 

Defendants Adobe Systems, Inc., Apple, 

Inc., Google, Inc., Intel Corporation, 

Intuit, Inc., and Pixar by mailing the 

document via e-mail to the duly 

authorized legal representatives of the 

defendants, as follows: 

For Defendant Adobe Systems, Inc., 

Craig A. Waldman, Esq., Jones Day, 

555 California Street, 26th Floor, San 

Francisco, CA 94104. Telephone: 

(415) 875–5765. Fax: (415) 963–6813. 

E-mail: cwaldman@jonesday.com. 

For Defendant Apple Inc., Richard 

Parker, Esq., O’Melveny & Myers LLP, 

1625 Eye Street, NW., Washington, 

DC 20006. Telephone: (202) 383– 

5380. Fax: (202) 383–5414. E-mail: 

rparker@omm.com. 

For Defendant Google Inc., Mark Leddy, 

Esq., Cleary Gottlieb Steen & 

Hamilton LLP, 2000 Pennsylvania 

Avenue, NW., Washington, DC 20006. 

Telephone: (202) 974–1570. Fax: (202) 

974–1999. E-mail: mleddy@cgsh.com. 

For Defendant Intel Corporation, Leon 

B. Greenfield, Esq., WilmerHale, 1875 

Pennsylvania Avenue, NW., 

Washington, DC 20006. Telephone: 

(202) 663–6972. Fax: (202) 663–6363. 

E-mail: 

Leon.Greenfield@wilmerhale.com. 

For Defendant Intuit, Inc., Joe Sims, 

Esq., Jones Day, 51 Louisiana Avenue, 

NW., Washington, DC 20001. 

Telephone: (202) 879–3863. Fax: (202) 

626–1700. E-mail: 

jsims@jonesday.com. 

For Defendant Pixar, Deborah A. Garza, 

Esq., Covington & Burling LLP, 1201 

Pennsylvania Avenue, NW., 

Washington, DC 20004. Telephone: 

(202) 662–5146. Fax: (202) 778–5146. 

E-mail: dgarza@cov.com. 

Ryan Struve, Esq., 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: 

ryan.struve@usdoj.gov. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Adobe Systems, Inc.; Apple Inc.; Google Inc.; 

Intel Corporation; Intuit, Inc.; and Pixar, 

Defendants. 

Case No. 1:10–cv–01629. 

Assigned to: Kollar-Kotelly, Colleen. 

Assign. Date: 9/24/2010. 

Competitive Impact Statement 

Plaintiff United States of America 

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


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Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Notices 60823 

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 Defendants Adobe 

Systems, Inc. (‘‘Adobe’’), Apple Inc. 

(‘‘Apple’’), Google Inc. (‘‘Google’’), Intel 

Corporation (‘‘Intel’’), Intuit, Inc. 

(‘‘Intuit’’) and Pixar, on September 24, 

2010, to remedy violations of Section 1 

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

Complaint alleges that Defendants 

entered into a series of bilateral 

agreements, pursuant to which a 

Defendant agreed not to cold call 

another Defendant’s employees for 

employment opportunities. The effect of 

these agreements was to reduce 

Defendants’ competition for highly 

skilled technical employees (‘‘high tech 

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. Defendants’ agreements are 

naked restraints of trade and violate 

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 Defendants’ cold 

calling agreements illegal, enjoin 

Defendants from enforcing any such 

agreements currently in effect, and 

prohibit Defendants from entering 

similar agreements in the future. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA, unless the 

United States withdraws its consent. 

Entry of the proposed Final Judgment 

would terminate this action, except that 

this Court would retain jurisdiction to 

construe, modify, and enforce the 

proposed Final Judgment and to punish 

violations thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation of the Antitrust 

Laws 

The six Defendants entered into five 

substantially similar agreements that 

restrained competition for employees 

and were not disclosed to the affected 

employees. These agreements banned 

cold calling of 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. The 

agreements were between (i) Apple and 

Google, (ii) Apple and Adobe, (iii) 

Apple and Pixar, (iv) Google and Intel, 

and (v) Google and Intuit. Aside from 

the Google and Intuit agreement, which 

only prohibited Google from cold 

calling any Intuit employee, each 

agreement covered all employees at both 

firms that were parties to the agreement. 

Senior executives at each firm entered 

the express agreements, and 

implemented and enforced them. 

Defendants’ agreements disrupted the 

competitive market forces for employee 

talent. The agreements are facially 

anticompetitive because they eliminated 

a significant form of competition to 

attract high tech employees, and, 

overall, substantially diminished 

competition to the detriment of the 

affected employees who were likely 

deprived of competitively important 

information and access to better job 

opportunities. 

Each of the five agreements was a 

naked restraint of trade that was per se 

unlawful under Section 1 of the 

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

Apple-Google Agreement 

Beginning no later than 2006, Apple 

and Google agreed not to cold call each 

other’s employees. Senior executives at 

Apple and Google reached this express 

agreement through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. The agreement 

covered all employees of both firms and 

was not limited by geography, job 

function, product group, or time period. 

In furtherance of this agreement, Apple 

placed Google on its internal ‘‘Do Not 

Call List,’’ which instructed employees 

not to actively solicit employees from 

the listed companies. Similarly, Google 

listed Apple among the companies that 

had special agreements with Google and 

were part of its ‘‘Do Not Cold Call’’ list. 

On occasion, Apple complained to 

Google when it believed the agreement 

had been breached. Each time, Google 

conducted an internal investigation to 

determine whether Google violated the 

agreement and reported its findings 

back to Apple. 

Apple-Adobe Agreement 

Beginning no later than May 2005, 

Apple requested an agreement from 

Adobe to refrain from cold calling each 

other’s employees. Faced with the 

likelihood that refusing would result in 

retaliation and significant competition 

for its employees, Adobe agreed. Senior 

executives at Apple and Adobe reached 

this express agreement through direct 

and explicit communications. The 

executives actively managed and 

enforced the agreement through direct 

communications. The agreement 

covered all employees of both firms and 

was not limited by geography, job 

function, product group, or time period. 

In furtherance of this agreement, Apple 

placed Adobe on its internal ‘‘Do Not 

Call List,’’ and similarly, Adobe 

included Apple in its internal list of 

‘‘Companies that are off limits.’’ 

Apple-Pixar Agreement 

Beginning no later than April 2007, 

Apple and Pixar agreed that they would 

not cold call each other’s employees. 

Executives at Apple and Pixar reached 

this express agreement through direct 

and explicit communications. The 

executives actively managed and 

enforced the agreement through direct 

communications. The agreement 

covered all employees of both firms and 

was not limited by geography, job 

function, product group, or time period. 

In furtherance of this agreement, Apple 

placed Pixar on its internal ‘‘Do Not Call 

List’’ and senior executives at Pixar 

instructed human resources personnel 

to adhere to the agreement and maintain 

a paper trail in the event Apple accused 

Pixar of violating the agreement. 

Google-Intel Agreement 

Beginning no later than September 

2007, Google and Intel agreed to refrain 

from cold calling each other’s 

employees. Senior executives at Google 

and Intel reached this express 

agreement through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. The agreement 

covered all employees of both firms and 

was not limited by geography, job 

function, product group, or time period. 

In furtherance of this agreement, Google 

listed Intel among the companies that 

have special agreements with Google 

and are part of its ‘‘Do Not Call’’ list. 

Similarly, Intel instructed its human 

resources staff about the existence of the 

agreement. 

Google-Intuit Agreement 

Beginning no later than June 2007, 

Google and Intuit agreed to prohibit 

Google from cold calling any Intuit 

employee. Senior executives at Google 

and Intel reached this express 

agreement through direct and explicit 

communications. The executives 

actively managed and enforced the 

agreement through direct 

communications. The agreement 

covered all Intuit employees and was 


emcdonald on DSK2BSOYB1PROD with NOTICES
60824 Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Notices 

1See 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). 

2See 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.’’). 

not limited by geography, job function, 

product group, or time period. In 

furtherance of this agreement, Google 

listed Intuit among the companies that 

have special agreements with Google 

and are part of its ‘‘Do Not Call’’ list. 

Google policed the agreement to ensure 

it was followed, including by 

investigating complaints from Intuit that 

Google had violated the agreement. On 

each occasion, Google determined that it 

had not violated the agreement and 

informed Intuit. 

III. The Agreements Were Naked 

Restraints 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. 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 1996, the United States 

challenged 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. Ass’n 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 agreedupon 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 is equally 

applicable to upstream monopsony 

restraints on employment opportunities. 

In 1991, the Antitrust Division brought 

an action against conspirators who 

competed to procure billboard leases 

and 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. 

There is no basis for distinguishing 

allocation agreements based on whether 

they involve input or output markets. 

Anticompetitive agreements in both 

input and output markets create 

allocative inefficiencies. 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.1 To be 

considered ‘‘ancillary’’ under established 

antitrust law, however, the restraint 

must be a necessary or intrinsic part of 

the procompetitive collaboration.2

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 Defendants at times engaged 

in legitimate collaborative projects, the 

agreements to ban cold calling were not, 

under established antitrust law, 

properly ancillary to those 


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3Section II.H. 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.’’ 

4The 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). 

5For example, a defendant might document these 

requirements terms through electronic mail or in 

memoranda that it will retain. 

collaborations. Defendants’ agreements 

were not tied to any specific 

collaboration, nor were they narrowly 

tailored to the scope of any specific 

collaboration. The agreements extended 

to all employees at the firms, including 

those who had little or nothing to do 

with the collaboration at issue. The 

agreements were not limited by 

geography, job function, product group, 

or time period. This overbreadth and 

other evidence demonstrated that the no 

cold calling agreements were not 

reasonably necessary for any 

collaboration and, hence, not ancillary. 

The lack of reasonable necessity for 

these broad agreements is demonstrated 

also by the fact that Defendants 

successfully collaborated with other 

companies without similar agreements, 

or with agreements containing more 

narrowly focused hiring restrictions. 

Some Defendants had extensive 

business relationships with one another 

and, in some cases, common board 

memberships. Such generalized 

relationships, however, cannot 

themselves justify overly broad 

restraints on competition. 

Defendants’ agreements regarding 

cold calling of employees are per se 

unlawful under Section 1 of the 

Sherman Act. Defendants’ concerted 

behavior both reduced their ability to 

compete for employees and disrupted 

the normal price-setting mechanisms 

that apply in the labor setting. These no 

cold call agreements are facially 

anticompetitive because they eliminated 

a significant form of competition to 

attract high tech employees, and, 

overall, substantially diminished 

competition to the detriment of the 

affected employees who were likely 

deprived of competitively important 

information and access to better job 

opportunities. 

IV. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment sets 

forth (1) conduct in which the parties 

may not engage; (2) conduct in which 

the parties may engage without violating 

the proposed Final Judgment; (3) certain 

actions the parties are 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 

Section IV of the proposed Final 

Judgment preserves competition for 

employees by prohibiting Defendants, 

and all other persons in active concert 

or participation with any of the 

Defendants 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 each Defendant from 

requesting or pressuring another person 

to refrain from cold calling, soliciting, 

recruiting, or otherwise competing for 

employees of the other person. 

Although the Complaint alleges only 

that the Defendants agreed to ban cold 

calling of employees, the proposed Final 

Judgment more broadly enjoins 

agreements regarding solicitation, 

recruitment and other methods of 

competing for employees to provide 

prophylactic protection against other 

activities that could interfere with 

competition for employees. 

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’’ 3 that are 

reasonably necessary for, and thus 

ancillary to, legitimate procompetitive 

collaborations.4 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 a 

Defendant’s employees. Narrowly 

tailored no direct solicitation provisions 

are often included in severance 

agreements and rarely present 

competition concerns. Sections V.A.2–4 

also makes 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. 

The investigation focused on 

anticompetitive agreements related to 

Defendants’ relationships with resellers, 

OEMs, providers of services, and 

collaborations with other companies. 

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 

Defendants 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 that the Defendants: (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 

that the Defendants 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.5


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

is to ensure that no direct solicitation 

provisions related to Defendants’ 

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 Defendants’ 

compliance with the proposed Final 

Judgment. 

At least one Defendant 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. In many 

cases, these no direct solicitation 

provisions are contained in contracts 

acquired through a merger or were 

presented to the Defendant by third 

parties in non-negotiated, pre-printed 

agreements that were not reviewed in 

the ordinary course by the Defendant’s 

legal department. 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, Defendants 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 Defendants 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 a 

Defendant 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 the Defendant 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 Defendants’ 

compliance with the proposed Final 

Judgment, including providing officers, 

directors, human resource managers, 

and senior managers who supervise 

employee recruiting with copies of the 

proposed Final Judgment and annual 

briefings about its terms. In addition, 

because the agreements were not 

disclosed to employees, Section VI.A.5 

requires each Defendant 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, each Defendant 

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, the Defendant 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 the 

Defendants’ compliance with the 

proposed Final Judgment, Section VII 

grants the United States access, upon 

reasonable notice, to Defendants’ 

records and documents relating to 

matters contained in the proposed Final 

Judgment. Defendants must also make 

their employees available for interviews 

or depositions about such matters. 

Moreover, upon request, Defendants 

must answer interrogatories and prepare 

written reports relating to matters 

contained in the proposed Final 

Judgment. 

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 Defendants. 

VI. Procedures Applicable for Approval 

or Modification of the Proposed Final 

Judgment 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered by the Court 

after compliance with the provisions of 

the APPA, provided that the United 

States has not withdrawn its consent. 

The APPA conditions entry upon the 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least 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 the Defendants. 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 by Defendant 

companies. 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 


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6The 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). 

7 Cf. BNS, 858 F.2d at 464 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the overall 

picture not hypercritically, nor with a microscope, 

but with an artist’s reducing glass’’). See generally 

Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 

remedies [obtained in the decree are] so 

inconsonant with the allegations charged as to fall 

outside of the ‘reaches of the public interest.’ ’’). 

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’’).6

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 

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).7 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. 

Am. Tel. & Tel. Co., 552 F. Supp. 131, 

151 (D.D.C. 1982) (citations omitted) 

(quoting United States v. Gillette Co., 

406 F. Supp. 713, 716 (D. Mass. 1975)), 

aff’d sub nom. Maryland v. United 

States, 460 U.S. 1001 (1983); see also 

United States v. Alcan Aluminum Ltd., 

605 F. Supp. 619, 622 (W.D. Ky. 1985) 

(approving the consent decree even 

though the court would have imposed a 

greater remedy). To meet this standard, 

the United States ‘‘need only provide a 

factual basis for concluding that the 

settlements are reasonably adequate 

remedies for the alleged harms.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17. 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459; see also InBev, 2009 U.S. 

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

interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

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

‘‘cannot look beyond the complaint in 

making the public interest 

determination unless the complaint is 

drafted so narrowly as to make a 

mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments, Congress 

made clear its intent to preserve the 

practical benefits of utilizing consent 

decrees in antitrust enforcement, adding 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2). This 

language effectuates what Congress 

intended when it enacted the Tunney 

Act in 1974, as Senator Tunney 

explained: ‘‘[t]he court is nowhere 

compelled to go to trial or to engage in 

extended proceedings which might have 

the effect of vitiating the benefits of 

prompt and less costly settlement 

through the consent decree process.’’ 

119 Cong. Rec. 24,598 (1973) (statement 

of Senator Tunney). Rather, the 

procedure for the public interest 

determination is left to the discretion of 

the Court, with the recognition that the 

court’s ‘‘scope of review remains sharply 

proscribed by precedent and the nature 


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8See 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.’’). 

of Tunney Act proceedings.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 11.8

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: September 24, 2010. 

Respectfully submitted, 

Ryan S. Struve (DC Bar #495406), 

Adam T. Severt, 

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 5th Street, NW., Suite 7100, Washington, 

DC 20530. Telephone: (202) 307–6200. 

Facsimile: (202) 616–8544. 

ryan.struve@usdoj.gov. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Adobe Systems, Inc.; Apple Inc.; Google Inc.; 

Intel Corporation; Intuit, Inc.; and Pixar, 

Defendants. 

[Proposed] Final Judgment 

Whereas, the United States of 

America filed its Complaint on 

September 24, 2010, alleging that each 

of the Defendants participated in at least 

one agreement in violation of Section 

One of the Sherman Act, and the United 

States and the Defendants, by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law; 

And whereas this Final Judgment 

does not constitute any admission by 

the Defendants 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 Defendants agree to 

be bound by the provisions of this Final 

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 Defendants, it is ordered, 

adjudged, and decreed. 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter and each of the parties to 

this action. The Complaint states a 

claim upon which relief may be granted 

against the Defendants under Section 

One of the Sherman Act, as amended, 

15 U.S.C. 1. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Adobe’’ means Adobe Systems, 

Inc., its (i) successors and assigns, (ii) 

controlled subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and (iii) their directors, 

officers, managers, agents acting within 

the scope of their agency, and 

employees. 

B. ‘‘Apple’’ means Apple Inc., its (i) 

successors and assigns, (ii) controlled 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and (iii) their directors, 

officers, managers, agents acting within 

the scope of their agency, and 

employees. 

C. ‘‘Google’’ means Google Inc., its (i) 

successors and assigns, (ii) controlled 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and (iii) their directors, 

officers, managers, agents acting within 

the scope of their agency, and 

employees. 

D. ‘‘Intel’’ means Intel Corporation, its 

(i) successors and assigns, (ii) controlled 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and (iii) their directors, 

officers, managers, agents acting within 

the scope of their agency, and 

employees. 

E. ‘‘Intuit’’ means Intuit, Inc., its (i) 

successors and assigns, (ii) controlled 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and (iii) their directors, 

officers, managers, agents acting within 

the scope of their agency, and 

employees. 

F. ‘‘Pixar’’ means Pixar, its (i) 

successors and assigns, (ii) controlled 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and (iii) their directors, 

officers, managers, agents acting within 

the scope of their agency, and 

employees. Pixar shall include 

directors, officers, managers, agents, or 

employees of any parent of or any entity 

under common control with Pixar, only 

when such individuals are acting in 

their capacity as directors, officers, 

managers, agents, or employees of Pixar. 

G. ‘‘Agreement’’ means any contract, 

arrangement, or understanding, formal 

or informal, oral or written, between 

two or more persons. 

H. ‘‘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. 

I. ‘‘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. 

J. ‘‘Senior manager’’ means any 

company officer or employee above the 

level of vice president. 

III. Applicability 

This Final Judgment applies to 

Adobe, Apple, Google, Intel, Intuit, and 

Pixar, as defined in Section II, and to all 

other persons in active concert or 

participation with any of them who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

IV. Prohibited Conduct 

Each 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 a 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; 


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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 a 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 a 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. Defendants 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 

Defendants’ consulting or services 

agreements in effect as of the date of this 

Final Judgment (or in effect as of the 

time a Defendant acquires a company 

that is a party to such an agreement). 

E. Nothing in Section IV shall prohibit 

a 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 Defendants are prohibited 

from requesting that any other person 

adopt, enforce, or maintain such a 

policy, and are prohibited from 

pressuring any other person to adopt, 

enforce, or maintain such a policy. 

VI. Required Conduct 

A. Each 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 each 

Defendant’s 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 each 

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 

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, each 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 a 

Defendant learns of any violation or 

potential violation of any of the terms 

and conditions contained in this Final 

Judgment, that 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 

each Defendant, subject to any legally 

recognized privilege, be permitted: 

1. Access during each Defendant’s 

regular office hours to inspect and copy, 

or at the option of the United States, to 

require each Defendant to provide 

electronic or hard copies of, all books, 

ledgers, accounts, records, data, and 

documents in the possession, custody, 

or control of each Defendant, relating to 

any matters contained in this Final 

Judgment; and 

2. To interview, either informally or 

on the record, each 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 any Defendant. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, each 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, 


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60830 Federal Register / Vol. 75, No. 190 / Friday, October 1, 2010 / Notices 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If at the time information or 

documents are furnished by a Defendant 

to the United States, the Defendant 

represents and identifies in writing the 

material in any such information or 

documents to which a claim of 

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 Adobe, 

Apple, Google, Intel, Intuit, and Pixar): 

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. 2010–24624 Filed 9–30–10; 8:45 am] 

BILLING CODE 4410–11–P 

NATIONAL SCIENCE FOUNDATION 

Notice of Permit Applications Received 

Under the Antarctic Conservation Act 

of 1978 (Pub. L. 95–541) 

AGENCY: National Science Foundation. 

ACTION: Notice of Permit Applications 

Received under the Antarctic 

Conservation Act of 1978, Public Law 

95–541. 

SUMMARY: The National Science 

Foundation (NSF) is required to publish 

notice of permit applications received to 

conduct activities regulated under the 

Antarctic Conservation Act of 1978. 

NSF has published regulations under 

the Antarctic Conservation Act at title 

45, part 670 of the Code of Federal 

Regulations. This is the required notice 

of permit applications received. 

DATES: Interested parties are invited to 

submit written data, comments, or 

views with respect to this permit 

application by November 1, 2010. This 

application may be inspected by 

interested parties at the Permit Office, 

address below. 

ADDRESSES: Comments should be 

addressed to Permit Office, Room 755, 

Office of Polar Programs, National 

Science Foundation, 4201 Wilson 

Boulevard, Arlington, Virginia 22230. 

FOR FURTHER INFORMATION CONTACT: 

Nadene G. Kennedy at the above 

address or (703) 292–7405. 

SUPPLEMENTARY INFORMATION: The 

National Science Foundation, as 

directed by the Antarctic Conservation 

Act of 1978 (Pub. L. 95–541), as 

amended by the Antarctic Science, 

Tourism and Conservation Act of 1996, 

has developed regulations for the 

establishment of a permit system for 

various activities in Antarctica and 

designation of certain animals and 

certain geographic areas requiring 

special protection. The regulations 

establish such a permit system to 

designate Antarctic Specially Protected 

Areas. 

The applications received are as 

follows: 

1. Applicant: Yu-Ping Chin, 

Department of Geological Sciences, 

Ohio State University, 275 Mendenhall 

Laboratory, 125 South Oval Mall, 

Columbus, OH 43210–1308. 

Permit Application No. 2011–018. 

Activity for Which Permit Is Requested 

Enter Antarctic Specially Protected 

Areas. The applicant plans to center 

Cape Royds (ASPA 121) and Backdoor 

Bay, Cape Royds (ASPA 157) to access 

Pony Lake to collect water samples. 

Samples were collected previously from 

the lake and the microbially derived 

Dissolved Organic Matter (DOM) from 

this site is now a reference fulvic acid 

distributed by the International Humic 

Substances Society (IHSS). The 

applicant plans to collect more DOM 

samples for the purpose of comparing 

their Cotton Glacier samples to Pony 

Lake DOM. 

Location 

Cape Royds (ASPA 121) and Backdoor 

Bay, Cape Royds (ASPA 157). 

Dates 

January 1, 2011 to January 31, 2011. 

Nadene G. Kennedy, 

Permit Officer, Office of Polar Programs. 

[FR Doc. 2010–24638 Filed 9–30–10; 8:45 am] 

BILLING CODE 7555–01–P 

SMALL BUSINESS ADMINISTRATION 

Surrender of License of Small 

Business Investment Company 

Pursuant to the authority granted to 

the United States Small Business 

Administration under the Small 

Business Investment Act of 1958, under 

Section 309 of the Act and Section 

107.1900 of the Small Business 

Administration Rules and Regulations 

(13 CFR 107.1900) to function as a small 

business investment company under the 

Small business Investment Company 

License No. 06/76–0316 issued to SBIC 

Partners II, L.P., on June 16, 1998 and 

said license is hereby declared null and 

void as of July 28, 2010. 

United States Small Business 

Administration. 

Sean J. Greene, 

AA/Investment. 

[FR Doc. 2010–24612 Filed 9–30–10; 8:45 am] 

BILLING CODE P 

SMALL BUSINESS ADMINISTRATION 

Surrender of License of Small 

Business Investment Company 

Pursuant to the authority granted to 

the United States Small Business 

Administration under the Small 

Business Investment Act of 1958, under 


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