[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Notices]
[Pages 60820-60830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24624]


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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

[[Page 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.

[[Page 60822]]

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 <greek-i>495406),
Adam T. Severt,
Jessica N. Butler-Arkow (DC Bar <greek-i>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. 
<a href="/cdn-cgi/l/email-protection#06747f67682875727473706346737562696c28616970"><span class="__cf_email__" data-cfemail="f2808b939cdc818680878497b28781969d98dc959d84">[email protected]</span></a>.

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: <a href="/cdn-cgi/l/email-protection#e28195838e868f838ca2888d8c879186839bcc818d8f"><span class="__cf_email__" data-cfemail="422135232e262f232c02282d2c273126233b6c212d2f">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#50222031223b3522103f3d3d7e333f3d"><span class="__cf_email__" data-cfemail="5321233221383621133c3e3e7d303c3e">[email protected]</span></a>.
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: 
<a href="/cdn-cgi/l/email-protection#2e43424b4a4a576e4d495d46004d4143"><span class="__cf_email__" data-cfemail="1b76777e7f7f625b787c687335787476">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#cf83aaa0a1e188bdaaaaa1a9a6aaa3ab8fb8a6a3a2aabda7aea3aae1aca0a2"><span class="__cf_email__" data-cfemail="2e624b414000695c4b4b4048474b424a6e594742434b5c464f424b004d4143">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#6a00190307192a0005040f190e0b1344090507"><span class="__cf_email__" data-cfemail="dab0a9b3b7a99ab0b5b4bfa9bebba3f4b9b5b7">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#a1c5c6c0d3dbc0e1c2ced78fc2cecc"><span class="__cf_email__" data-cfemail="0266656370786342616d742c616d6f">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#75070c141b5b060107000310350006111a1f5b121a03"><span class="__cf_email__" data-cfemail="cfbdb6aea1e1bcbbbdbab9aa8fbabcaba0a5e1a8a0b9">[email protected]</span></a>.

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

[[Page 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

[[Page 60824]]

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 agreed-upon Final 
Judgment, enjoining the association from restraining competition among 
residency programs for residents, including enjoining all prohibitions 
on direct and indirect solicitation of residents from other programs. 
1996-2 Trade Cases ] 71,533, 28894 (W.D.Mo. Aug. 15, 1996).
    In analogous circumstances, the Sixth Circuit has held that an 
agreement among competitors not to solicit one another's customers was 
a per se violation of the antitrust laws. U.S. v. Cooperative Theaters 
of Ohio, Inc., 845 F.2d 1367 (6th Cir. 1988). In that case, two movie 
theater booking agents agreed to refrain from actively soliciting each 
other's customers. Despite the defendants' arguments that they 
``remained free to accept unsolicited business from their competitors' 
customers,'' id. (emphasis in original), the Sixth Circuit found their 
``no-solicitation 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.
---------------------------------------------------------------------------

    \1\ See generally Department of Justice, Antitrust Division, and 
Federal Trade Commission, Antitrust Guidelines for Collaborations 
Among Competitors Sec.  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).
    \2\ See 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 Sec.  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.'').
---------------------------------------------------------------------------

    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

[[Page 60825]]

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.
---------------------------------------------------------------------------

    \3\ Section 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.''
    \4\ The 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 Sec.  16600 
(prohibiting firms from restraining employee movement).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \5\ For example, a defendant might document these requirements 
terms through electronic mail or in memoranda that it will retain.

---------------------------------------------------------------------------

[[Page 60826]]

    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 sixty-day comment period, after which the Court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. 16(e)(1). In

[[Page 60827]]

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\
---------------------------------------------------------------------------

    \6\ The 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).
---------------------------------------------------------------------------

    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-Daniels-Midland 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).
---------------------------------------------------------------------------

    \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.' '').
---------------------------------------------------------------------------

    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

[[Page 60828]]

of Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11.\8\
---------------------------------------------------------------------------

    \8\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt 
failure of the government to discharge its duty, the Court, in 
making its public interest finding, should * * * carefully consider 
the explanations of the government in the competitive impact 
statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 
(1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'').
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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 <greek-i>495406),
Adam T. Severt,
Jessica N. Butler-Arkow (DC Bar <greek-i>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. 
<a href="/cdn-cgi/l/email-protection#8af8f3ebe4a4f9fef8fffcefcafff9eee5e0a4ede5fc"><span class="__cf_email__" data-cfemail="d7a5aeb6b9f9a4a3a5a2a1b297a2a4b3b8bdf9b0b8a1">[email protected]</span></a>.

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;

[[Page 60829]]

    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,

[[Page 60830]]

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


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