In re: High-Tech Employee Antitrust Litigation

Filing 93

DECLARATION of Dean M. Harvey in Opposition to #79 MOTION to Dismiss Consolidated Amended Complaint filed byMichael Devine, Mark Fichtner, Siddharth Hariharan, Brandon Marshall, Daniel Stover. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F)(Related document(s) #79 ) (Harvey, Dean) (Filed on 11/4/2011)

Exhibit C

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
U.S. Department of Justice
Antitrust Division
450 Fifth Street, N.W., 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.

STIPULATION

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It is stipulated by and between the undersigned parties, through their respective attorneys,
that:
1.

For the specific and limited purpose of this Final Judgment, Defendants waive

any objections to venue or jurisdiction and waive service of summons on the Complaint.
2.

By stipulating to this Final Judgment, the parties agree that Defendants are not

waiving their ability to raise any and all challenges to venue and jurisdiction in the District of
Columbia in any future litigation. Except for an action to enforce the Stipulation and Final
Judgment, the parties agree that the United States will not use the Stipulation and Final Judgment
in this matter as a basis to establish personal jurisdiction over Defendants in any future action or
proceeding of any type in the District of Columbia.
3.

The parties stipulate that the Court may file and enter a Final Judgment in the

form attached hereto as Exhibit A, upon the motion of any party or upon the Court’s own
motion, at any time after compliance with the requirements of the Antitrust Procedures and
Penalties Act (“APPA”), 15 U.S.C. § 16, and without further notice to any party or other
proceedings, provided that the United States has not withdrawn its consent, which it may do at
any time before the entry of the proposed Final Judgment by serving notice thereof on
Defendants and by filing that notice with the Court.
4.

In the event: (1) the United States withdraws its consent or (2) the proposed Final

Judgment is not entered pursuant to this Stipulation, the time has expired for all appeals of any
Court ruling declining entry of the proposed Final Judgment, and the Court has not otherwise
ordered continued compliance with the terms and provisions of the proposed Final Judgment,

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CERTIFICATE OF SERVICE
I, Ryan Struve, hereby certify that on September 24th, 2010, I caused a copy of the
Stipulation to be served on Defendants Adobe Systems, Inc., Apple, Inc., Google, Inc., Intel
Corporation, Intuit, Inc., and Pixar by mailing the document via email 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: [phone]
Fax: [phone]
Email: [e-mail]

FOR DEFENDANT APPLE, INC.
Richard Parker, Esq.
O’Melveny & Myers LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

FOR DEFENDANT GOOGLE, INC.
Mark Leddy, Esq.
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

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EXHIBIT A

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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;

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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.

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E.

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“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.

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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.

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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

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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.
D.

the provision’s specific termination date or event.

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

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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.

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B.

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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:

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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, 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)

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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

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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.

Date:__________________
Court approval subject to procedures
of Antitrust Procedures and Penalties
Act, 15 U.S.C. § 16

_____________________________
United States District Judge

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