UNITED STATES OF AMERICA v. ADOBE SYSTEMS, INC. et al

Filing 16

MOTION for Entry of Final Judgment by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Exhibit A - Proposed Final Judgment, # 2 Exhibit Exhibit B - Certificate of Compliance)(Struve, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
Plaintiff,
v.
ADOBE SYSTEMS, INC. et al.,

Case: 1:10-cv-01629
Assigned to: Walton, Reggie B.
Assign. Date: 10/7/2010
Description: Antitrust
Filed: 9/24/2010

Defendants.

UNITED STATES’ MOTION AND SUPPORTING MEMORANDUM TO ENTER
FINAL JUDGMENT
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C.
§ 16(b)-(h) (“APPA” or “Tunney Act”), the United States moves for entry of the proposed Final
Judgment filed in this civil antitrust case. The proposed Final Judgment (attached as Exhibit A)
may be entered at this time without further hearing if the Court determines that entry is in the
public interest.1 The Defendants have stipulated to entry of the proposed Final Judgment without
further notice to any party or other proceedings. No party or member of the public has requested
a hearing. The Competitive Impact Statement (“CIS”), filed by the United States on September
24, 2010, explains why entry of the proposed Final Judgment is in the public interest. The
United States is filing simultaneously with this motion a Certificate of Compliance (attached as
Exhibit B) setting forth the steps taken by the parties to comply with all applicable provisions of
the APPA and certifying that the statutory waiting periods have expired.

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The proposed Final Judgment attached to this Motion is the same as the one originally
filed on September 24, 2010.

I.

BACKGROUND
On September 24, 2010, the United States filed the Complaint in this matter, alleging that

the Defendants entered into five bilateral no cold call agreements, which were per se unlawful
under 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 is designed to eliminate the anticompetitive effects of the agreements, and a
CIS. The proposed Final Judgment is designed to preserve competition in the market for high
tech workers by mandating certain conduct remedies. First, the proposed Final Judgment
prevents the Defendants from entering into similar agreements in the future. Second, the
proposed Final Judgment supplements this restraint on the Defendants with obligations to
educate executives about the proposed Final Judgment, as well as annually report the company’s
compliance with the proposed Final Judgment to the United States.
Entry of the proposed Final Judgment would terminate this action, except that the Court
would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final
Judgment and to punish violations thereof.
II.

COMPLIANCE WITH THE APPA
The APPA requires a sixty-day period for the submission of public comments on a

proposed Final Judgment. See 15 U.S.C. § 16(b). In compliance with the APPA, the United
States filed a CIS in this Court on September 24, 2010; published the proposed Final Judgment
and CIS in the Federal Register on October 1, 2010, see 75 Fed. Reg. 60,820 (2010); and
published a summary of the terms of the proposed Final Judgment in The Washington Post for
seven days from October 2, 2010 through October 8, 2010. The 60-day period for public
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comments ended on December 7, 2010, and no comments were received. The Certificate of
Compliance filed with this Motion as Exhibit B recites that all the requirements of the APPA
have now been satisfied. It is therefore appropriate for the Court to make the public interest
determination required by 15 U.S.C. § 16(e) and to enter the Final Judgment.
III.

STANDARD OF JUDICIAL REVIEW
Before entering the proposed Final Judgment, the Court is to determine whether the

Judgment “is in the public interest.” See 15 U.S.C. § 16(e). In making that determination, the
Court shall 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).
In its CIS filed on September 24, 2010, the United States set forth the public interest
standard under the APPA and now incorporates those statements herein by reference. The
public, including affected competitors and customers, have had the opportunity to comment on
the proposed Final Judgment as required by law. As explained in the CIS, the proposed Final
Judgment is within the range of settlements consistent with the public interest and the United
States therefore requests that this Court enter the proposed Final Judgment.

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IV.

CONCLUSION
For the reasons set forth in this Motion and the CIS, the Court should find that the

proposed Final Judgment is in the public interest and should enter the proposed Final Judgment
without further hearings. The United States respectfully requests that the proposed Final
Judgment attached hereto be entered as soon as possible.

Dated: January 5, 2011

Respectfully submitted,
FOR PLAINTIFF UNITED STATES:

/s/ Ryan Struve
Ryan Struve (D.C. Bar #495406)
Trial Attorney
U.S. Department of Justice
Antitrust Division
450 Fifth Street, N.W., Suite 7100
Washington, D.C. 20530
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE
I, Ryan Struve, hereby certify that on January 5, 2011, I caused a copy of this Motion and
the accompanying exhibits to be served on Defendants Adobe Systems, Inc., Apple, Inc., Google,
Inc., Intel Corporation, Intuit, Inc., and Pixar by filing the Motion and exhibits through CM/ECF
and by mailing the documents 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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FOR DEFENDANT INTEL CORPORATION
Leon B. Greenfield, Esq.
WilmerHale
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

FOR DEFENDANT INTUIT, INC.
Joe Sims, Esq.
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

FOR DEFENDANT PIXAR
Deborah A. Garza, Esq.
Covington & Burling LLP
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
/s/ Ryan Struve
Ryan Struve, Esq.
Trial Attorney
Networks & Technology Section
U.S. Department of Justice
Antitrust Division
450 Fifth Street, N.W.
Suite 7100
Washington, D.C. 20530
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
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