United States v. Third Point Offshore Fund, Ltd., et al.; Proposed Final Judgment and Competitive Impact Statement, 52500-52509 [2015-21534]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 80, Number 168 (Monday, August 31, 2015)]
[Notices]
[Pages 52500-52509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21534]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Third Point Offshore Fund, Ltd., 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 v. Third Point Offshore Fund, Ltd. et al., Civil Action No. 
1:15-cv-01366. On August 24, 2015, the United States filed a Complaint 
alleging that Third Point Offshore Fund, Ltd., Third Point Ultra, Ltd., 
and Third Point Partners Qualified L.P. (collectively ``the Defendant 
Funds'') violated the premerger

[[Page 52501]]

notification and reporting requirements of the Hart-Scott-Rodino 
Antitrust Improvements Act of 1976, 15 U.S.C. 18a in connection with 
the acquisition of voting securities of Yahoo! Inc. The proposed Final 
Judgment, filed at the same time as the Complaint, prohibits the 
Defendant Funds, along with Defendant Third Point LLC, from acquiring a 
reportable amount of voting securities of an issuer in reliance on the 
exemption from the HSR Act of acquisitions made solely for the purpose 
of investment if they have taken certain specified actions in the four 
months prior to the acquisition.
    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 https://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, including the name of the submitter, and 
responses thereto, will be posted on the U.S. Department of Justice, 
Antitrust Division's internet Web site, filed with the Court and, under 
certain circumstances, published in the Federal Register. Comments 
should be directed to Daniel P. Ducore, Special Attorney, c/o Federal 
Trade Commission, Washington, DC 20580, dducore@ftc.gov (telephone: 
202-326-2526).

Patricia A. Brink,
Director of Civil Enforcement.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, c/o Department of Justice, Washington, 
D.C. 20530, Plaintiff, v. Third Point Offshore Fund, Ltd., c/o Walkers, 
190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands, 
Third Point Ultra, Ltd., c/o Walkers Chambers, 171 Main Street, P.O. 
Box 92, Road Town, Tortola, British Virgin Islands, Third Point 
Partners Qualified L.P., 390 Park Ave, 19th Floor, New York, NY 10022, 
and Third Point, LLC, 390 Park Ave., 19th Floor, New York, NY 10022, 
Defendants.

Case No.: 1:15-cv-01366
Judge: Ketanji Brown Jackson
Filed: 08/24/2015

COMPLAINT FOR INJUNCTIVE RELIEF FOR FAILURE TO COMPLY WITH THE 
PREMERGER REPORTING AND WAITING REQUIREMENTS OF THE HART-SCOTT-RODINO 
ACT

    The United States of America, Plaintiff, by its attorneys, acting 
under the direction of the Attorney General of the United States and at 
the request of the Federal Trade Commission, brings this civil 
antitrust action to obtain injunctive relief against Defendants Third 
Point Offshore Fund, Ltd. (``Third Point Offshore''), Third Point 
Ultra, Ltd. (``Third Point Ultra''), Third Point Partners Qualified 
L.P. (``Third Point Partners'') (collectively, ``Defendant Funds''), 
and Third Point LLC (together with the Defendant Funds collectively, 
``Defendants''). Plaintiff alleges as follows:

NATURE OF THE ACTION

    1. Defendant Funds violated the notice and waiting period 
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 
1976, 15 U.S.C. 18a (``HSR Act'' or ``Act''), with respect to the 
acquisition of voting securities of Yahoo! Inc. (``Yahoo'') in August 
and September 2011.

JURISDICTION AND VENUE

    2. This Court has jurisdiction over the subject matter of this 
action pursuant to Section 7A(g) of the Clayton Act, 15 U.S.C. 18a(g), 
and pursuant to 28 U.S.C. 1331, 1337(a), 1345, and 1355, and over the 
Defendants by virtue of Defendants' consent, in the Stipulation 
relating hereto, to the maintenance of this action and entry of the 
Final Judgment in this District.
    3. Venue is properly based in this District by virtue of 
Defendants' consent, in the Stipulation relating hereto, to the 
maintenance of this action and entry of the Final Judgment in this 
District.

THE DEFENDANTS

    4. Defendant Third Point Offshore is an offshore fund organized 
under the laws of the Cayman Islands, with its principal office and 
place of business c/o Walkers, 190 Elgin Avenue, George Town, Grand 
Cayman KY1-9001, Cayman Islands.
    5. Defendant Third Point Ultra is an offshore fund organized under 
the laws of the British Virgin Islands, with its principal office and 
place of business c/o Walkers Chambers, 171 Main Street, Road Town, 
Tortola, British Virgin Islands.
    6. Defendant Third Point Partners is a limited partnership 
organized under the laws of the State of Delaware, with its principal 
office and place of business at 390 Park Avenue, 19th Floor, New York, 
NY 10022.
    7. Defendant Third Point LLC is a limited liability company 
organized under the laws of the State of Delaware, with its principal 
office and place of business at 390 Park Avenue, 19th Floor, New York, 
NY 10022. Third Point LLC makes all the investment decisions for each 
of the Defendant Funds, including decisions to nominate a candidate to 
the board of directors of a company in which Defendants have invested 
or to launch a proxy fight to obtain board representation on behalf of 
Defendants.
    8. Defendants are engaged in commerce, or in activities affecting 
commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 
12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 18a(a)(1). At 
all times relevant to this complaint, each Defendant Fund had total 
assets in excess of $13.2 million.

OTHER ENTITIES

    9. Yahoo is a corporation organized under the laws of Delaware with 
its principal place of business at 701 First Avenue, Sunnyvale, CA 
94089. Yahoo is engaged in commerce, or in activities affecting 
commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 
12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 18a(a)(1). At 
all times relevant to this complaint, Yahoo had annual net sales in 
excess of $131.9 million.

THE HART-SCOTT-RODINO ACT AND RULES

    10. The HSR Act requires certain acquiring persons and certain 
persons whose voting securities or assets are acquired to file 
notifications with the federal antitrust agencies and to observe a 
waiting period before consummating certain acquisitions of voting 
securities or assets. 15 U.S.C. 18a(a) and (b). The HSR Act's 
notification and waiting period are intended to give the federal 
antitrust agencies prior notice of, and information about, proposed 
transactions. The waiting period is also intended to provide the 
federal antitrust agencies with an opportunity to investigate a 
proposed transaction and to determine whether to seek an injunction to 
prevent the consummation of a transaction that may violate the 
antitrust laws.
    11. The HSR Act's notification and waiting period requirements 
apply to acquisitions that meet the HSR Act's thresholds, which are 
adjusted annually. During the period of 2011

[[Page 52502]]

pertinent to this Complaint, the HSR Act's reporting and waiting period 
requirements applied to transactions that would result in the acquiring 
person holding more than $66 million, if certain size of person tests 
were met, except for certain exempted transactions.
    12. Section (c)(9) of the HSR Act, 15 U.S.C. 18a(c)(9), exempts 
from the requirements of the HSR Act acquisitions of voting securities 
``solely for the purpose of investment'' if, as a result of the 
acquisition, the securities held do not exceed 10 percent of the 
outstanding voting securities of the issuer.
    13. Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. 18a(d)(2), 
the Federal Trade Commission promulgated rules to carry out the purpose 
of the HSR Act. 16 CFR 801-03 (``HSR Rules''). The HSR Rules, among 
other things, define terms contained in the HSR Act.
    14. Section 801.2(a) of the HSR Rules, 16 CFR 801.2(a), provides 
that ``[a]ny person which, as a result of an acquisition, will hold 
voting securities'' is deemed an ``acquiring person.''
    15. Section 801.1(a)(1) of the HSR Rules, 16 CFR 801.1(a)(1), 
provides that the term ``person'' means ``an ultimate parent entity and 
all entities which it controls directly or indirectly.''
    16. Section 801.1(a)(3) of the HSR Rules, 16 CFR 801.1(a)(3), 
provides that the term ``ultimate parent entity'' means ``an entity 
which is not controlled by any other entity.''
    17. Each of the Defendant Funds is its own ultimate parent entity 
and Defendant Third Point LLC does not control any of the Defendant 
Funds within the meaning of the HSR Rules.
    18. Pursuant to Section 801.13(a)(1) of the HSR Rules, 16 CFR 
801.13(a)(1), ``all voting securities of [an] issuer which will be held 
by the acquiring person after the consummation of an acquisition''--
including any held before the acquisition--are deemed held ``as a 
result of'' the acquisition at issue.
    19. Pursuant to Sections 801.13(a)(2) and 801.10(c)(1) of the HSR 
Rules, 16 CFR 801.13(a)(2) and 801.10(c)(1), the value of voting 
securities already held is the market price, defined to be the lowest 
closing price within 45 days prior to the subsequent acquisition.
    20. Section 801.1(i)(1) of the HSR Rules, 16 CFR 801.1(i)(1), 
defines the term ``solely for the purpose of investment'' as follows:

    Voting securities are held or acquired ``solely for the purpose 
of investment'' if the person holding or acquiring such voting 
securities has no intention of participating in the formulation, 
determination, or direction of the basic business decisions of the 
issuer.

    21. Section 7A(g)(2) of the Clayton Act, 15 U.S.C. 18a(g)(2), 
provides that if any person fails substantially to comply with the 
notification requirement under the HSR Act, the district court may 
grant such equitable relief as the court in its discretion determines 
necessary or appropriate, upon application of the Federal Trade 
Commission or the Assistant Attorney General.

VIOLATIONS ALLEGED

    22. Plaintiff alleges and incorporates paragraphs 1 through 21 as 
if set forth fully herein.
    23. On or about August 8, 2011, Third Point LLC began acquiring 
voting securities of Yahoo on behalf of the Defendant Funds. In 
general, the voting securities were allocated to each Defendant Fund, 
as well as to other investment funds managed by Third Point LLC, in 
proportion to such fund's total capital. These acquisitions were 
accomplished by open market purchases through the NASDAQ Stock Market. 
Defendant Funds continued to acquire voting securities of Yahoo after 
August 8, 2011. Other than the Defendant Funds, no fund managed by 
Third Point LLC held Yahoo voting securities in excess of the HSR 
threshold.
    24. On or about August 10, 2011, Defendant Third Point Offshore's 
aggregate value of Yahoo voting securities exceeded $66 million.
    25. On or about August 17, 2011, Defendant Third Point Ultra's 
aggregate value of Yahoo voting securities exceeded $66 million.
    26. On or about August 30, 2011, Defendant Third Point Partners' 
aggregate value of Yahoo voting securities exceeded $66 million.
    27. Third Point LLC continued to acquire voting securities of Yahoo 
on behalf of the Defendant Funds through September 8, 2011, when Third 
Point LLC filed a Schedule 13D with the Securities and Exchange 
Commission publicly disclosing the Defendant Funds' holdings in Yahoo.
    28. The transactions described in Paragraphs 24 through 27 were 
subject to the notification and waiting periods of the HSR Act and the 
HSR Rules. The HSR Act and HSR Rules in effect during the time period 
pertinent to this proceeding required that each Defendant Fund file a 
notification and report form with the Department of Justice and the 
Federal Trade Commission and observe a waiting period before acquiring 
and holding an aggregate total amount of voting securities of Yahoo in 
excess of $66 million.
    29. The Defendant Funds did not comply with the reporting and 
waiting period requirements of the HSR Act and HSR Rules in connection 
with the transactions described in Paragraphs 24 through 27.
    30. Defendants cannot demonstrate that any of the HSR Act's 
exemptions applied to the transactions described in Paragraphs 24 
through 27. In particular, Defendants' intent when making these 
acquisitions was inconsistent with the exemption for acquisitions made 
``solely for the purpose of investment.'' Defendants' intent to acquire 
voting securities of Yahoo other than solely for the purpose of 
investment is evidenced by the following acts, among others, 
contemporaneous with the acquisitions. Defendants and/or their agents: 
contacted certain individuals to gauge their interest and willingness 
to become the CEO of Yahoo or a potential board candidate of Yahoo; 
took other steps to assemble an alternate slate of board of directors 
for Yahoo; drafted correspondence to Yahoo to announce that Third Point 
LLC was prepared to join the board of Yahoo; internally deliberated the 
possible launch of a proxy battle for directors of Yahoo; and made 
public statements that they were prepared to propose a slate of 
directors at Yahoo's next annual meeting.
    31. On or about September 16, 2011, each of the Defendant Funds 
filed a notification and report form under the HSR Act with the 
Department of Justice and the Federal Trade Commission. The waiting 
period relating to these filings expired on or about October 17, 2011.
    32. Defendant Third Point Offshore was in violation of the HSR Act 
each day during the period beginning on August 10, 2011, and ending on 
or about October 17, 2011.
    33. Defendant Third Point Ultra was in violation of the HSR Act 
each day during the period beginning on August 17, 2011, and ending on 
or about October 17, 2011.
    34. Defendant Third Point Partners was in violation of the HSR Act 
each day during the period beginning on August 30, 2011, and ending on 
or about October 17, 2011.
    35. Section (g)(2) of the HSR Act, 15 U.S.C. 18a(g)(2), provides 
that if any person fails substantially to comply with the notification 
requirement under the HSR Act, the district court may grant such 
equitable relief as the court in its discretion determines necessary or 
appropriate.

REQUESTED RELIEF

    Wherefore, Plaintiff requests:
    a. That the Court adjudge and decree that Defendant Third Point 
Offshore's acquisition of Yahoo voting securities on August 10, 2011, 
without having

[[Page 52503]]

filed a notification and report form and observed a waiting period, 
violated the HSR Act; and that Defendant Third Point Offshore was in 
violation of the HSR Act each day from August 8, 2011, through October 
17, 2011;
    b. That the Court adjudge and decree that Defendant Third Point 
Ultra's acquisition of Yahoo voting securities on August 17, 2011, 
without having filed a notification and report form and observed a 
waiting period, violated the HSR Act; and that Defendant Third Point 
Ultra was in violation of the HSR Act each day from August 17, 2011, 
through October 17, 2011;
    c. That the Court adjudge and decree that Defendant Third Point 
Partners' acquisition of Yahoo voting securities on August 30, 2011, 
without having filed a notification and report form and observed a 
waiting period, violated the HSR Act; and that Defendant Third Point 
Partners was in violation of the HSR Act each day from August 30, 2011, 
through October 17, 2011;
    d. That the Court adjudge and decree that Defendant Third Point LLC 
had the power and authority to prevent the violations by the Defendant 
Funds, and that relief against Third Point LLC is necessary and 
appropriate to ensure future compliance with the HSR Act by the 
Defendant Funds.
    e. That the Court issue an appropriate injunction preventing future 
violations by the Defendants as provided by the HSR Act, 15 U.S.C. 
18a(g)(2);
    f. That the Court order such other and further relief as the Court 
may deem just and proper; and
    g. That the Court award the Plaintiff its costs of this suit.

Dated: August 24, 2015

Respectfully submitted,

FOR THE PLAINTIFF UNITED STATES OF AMERICA:

___/s/___
William J. Baer (D.C. Bar #324723)
Assistant Attorney General
Department of Justice
Antitrust Division
Washington, DC 20530

___/s/___
Daniel P. Ducore (D.C. Bar #933721)
Elizabeth A. Piotrowski (D.C. Bar #348052)
Kenneth A. Libby
Jennifer Lee
Special Attorneys
Federal Trade Commission
Washington, DC 20580

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, Plaintiff, v. THIRD POINT OFFSHORE 
FUND, LTD., THIRD POINT ULTRA, LTD., THIRD POINT PARTNERS QUALIFIED 
L.P., and THIRD POINT, LLC, Defendants.
CASE NO.: 1:15-cv-01366
JUDGE: Ketanji Brown Jackson
FILED: 08/24/2015

COMPETITIVE IMPACT STATEMENT

    The United States, pursuant to the Antitrust Procedures and 
Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), files this Competitive 
Impact Statement to set forth the information necessary to enable the 
Court and the public to evaluate the proposed Final Judgment that would 
terminate this civil antitrust proceeding.

I. NATURE AND PURPOSE OF THIS PROCEEDING

    On August 24, 2015, the United States filed a Complaint against 
Third Point Offshore Fund, Ltd. (``Offshore''), Third Point Ultra, Ltd. 
(``Ultra''), Third Point Partners Qualified L.P. (``Qualified'') 
(collectively ``the Defendant Funds''), and Third Point LLC (together 
with the Defendant Funds collectively, ``Defendants'') related to the 
Defendant Funds' acquisition of voting securities of Yahoo! Inc. 
(``Yahoo'') in 2011.
    The Complaint alleges that the Defendant Funds violated Section 7A 
of the Clayton Act, 15 U.S.C. 18a, commonly known as the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 (the ``HSR Act''). The HSR 
Act requires certain acquiring and acquired parties to file pre-
acquisition Notification and Report Forms with the Department of 
Justice and the Federal Trade Commission (collectively, the ``federal 
antitrust agencies'' or ``agencies'') and to observe a statutorily 
mandated waiting period before consummating their acquisition.\1\ The 
fundamental purpose of the notification and waiting period is to allow 
the agencies an opportunity to conduct an antitrust review of proposed 
transactions that meet the HSR Act's jurisdictional thresholds before 
they are consummated. The Complaint alleges that the Defendant Funds 
each acquired voting securities of Yahoo in excess of the statutory 
thresholds without making the required filings with the agencies and 
without observing the waiting period, and that the Defendant Funds and 
Yahoo each meet the statutory size of person threshold.
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    \1\ The HSR Act requires that ``no person shall acquire, 
directly or indirectly, any voting securities of any person'' 
exceeding certain thresholds until both have made premerger 
notification filings and the post-filing waiting period has expired. 
15 U.S.C. 18a(a). The post-filing waiting period is either 30 days 
after filing or, if the relevant federal antitrust agency requests 
additional information, 30 days after the parties comply with the 
agency's request. 15 U.S.C. 18a(b). The agencies may grant early 
termination of the waiting period, 15 U.S.C. 18a(b)(2), and often do 
so when an acquisition poses no competitive problems.
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    The Complaint further alleges that the Defendant Funds could not 
rely on the HSR Act's exemption for acquisitions made solely for the 
purpose of investment (``investment-only exemption'') because they 
could not show they had ``no intention of participating in the 
formulation, determination, or direction of the basic business 
decisions of the issuer,'' as the exemption is defined in the rules 
promulgated under the HSR Act. See 16 CFR 801.1(i)(1). The Complaint 
alleges that the Defendants and/or their agents engaged in a number of 
acts that showed an intent inconsistent with the exemption. The 
Complaint seeks an adjudication that the Defendant Funds' acquisitions 
of voting securities of Yahoo violated the HSR Act, and asks the Court 
to issue an appropriate injunction.
    At the same time the Complaint was filed, the United States also 
filed a Stipulation and Order and proposed Final Judgment, which are 
designed to prevent and restrain Defendants' HSR Act violations. Under 
the proposed Final Judgment, which is explained more fully below, 
Defendants are prohibited from acquiring voting securities without 
observing the HSR Act's notification and waiting period requirements in 
reliance on the investment-only exemption if they have engaged in 
certain specified acts during the four (4) months prior to an 
acquisition that is otherwise reportable under the Act, unless they 
have affirmatively stated that they are not pursuing board or 
management representation with respect to the issuer of those voting 
securities.
    The United States and the Defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the APPA, 
unless the United States first withdraws its consent. Entry of the 
proposed Final Judgment would terminate this case, except that the 
Court would retain jurisdiction to construe, modify, or enforce the 
provisions of the proposed Final Judgment and punish violations 
thereof. Entry of this judgment would not constitute evidence against, 
or an admission by, any party with respect to any issue of fact or law 
involved in the case and is conditioned upon the Court's finding that 
entry is in the public interest.

[[Page 52504]]

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATIONS OF 
THE ANTITRUST LAWS

A. The Defendants and the Acquisitions of Yahoo Voting Securities

    Offshore is an offshore fund organized under the laws of the Cayman 
Islands, with offices at c/o Walkers, 190 Elgin Avenue, George Town, 
Grand Cayman KY1-9001, Cayman Islands. Offshore invests in securities 
and other investments on behalf of its investors.
    Ultra is an offshore fund organized under the laws of the British 
Virgin Islands, with offices at c/o Walkers Chambers, 171 Main Street, 
Road Town, Tortola, British Virgin Islands. Ultra invests in securities 
and other investments on behalf of its investors.
    Partners is a limited partnership organized under the laws of the 
State of Delaware, with offices at 390 Park Avenue, 19th Floor, New 
York, NY 10022. Partners invests in securities and other investments on 
behalf of its partners.
    Third Point LLC is a limited liability company organized under the 
laws of the State of Delaware, with its principal place of business at 
390 Park Avenue, 19th Floor, New York, NY 10022. Third Point LLC makes 
all the investment decisions for each of the Defendant Funds, including 
decisions to nominate a candidate to the board of directors of a 
company in which Defendants have invested, or to launch a proxy fight 
to obtain board representation on behalf of Defendants.
    On August 8, 2011, Third Point LLC began acquiring voting 
securities of Yahoo on behalf of the Defendant Funds. In general, the 
voting securities were allocated to each Defendant Fund, as well as to 
other investment funds managed by Third Point LLC, in proportion to 
such fund's total capital. Other than the Defendant Funds, no fund 
managed by Third Point LLC held Yahoo voting securities in excess of 
the HSR threshold.
    On August 10, 2011, the value of Offshore's holdings of Yahoo 
voting securities exceeded the HSR Act's $66 million size-of-
transaction threshold then in effect. On August 17, 2011, the value of 
Ultra's holdings of Yahoo voting securities exceeded $66 million. On 
August 30, 2011, the value of Partners' holdings of Yahoo voting 
securities exceeded $66 million. Third Point LLC continued to acquire 
voting securities of Yahoo on behalf of the Defendant Funds through 
September 8, 2011, when Third Point LLC filed a Schedule 13D with the 
Securities and Exchange Commission publicly disclosing the Defendant 
Funds' holdings in Yahoo.
    On September 16, 2011, the Defendant Funds each filed a 
Notification and Report Form under the HSR Act with the federal 
antitrust agencies to acquire voting securities of Yahoo. The waiting 
period on the Notification and Report Forms expired on October 17, 
2011.

B. The Defendant Funds' Unlawful Conduct

    Compliance with the HSR Act is critical to the federal antitrust 
agencies' ability to investigate large acquisitions before they are 
consummated, prevent acquisitions determined to be unlawful under 
Section 7 of the Clayton Act (15 U.S.C. 18), and design effective 
divestiture relief when appropriate. Before Congress enacted the HSR 
Act, the federal antitrust agencies often were forced to investigate 
anticompetitive acquisitions that had already been consummated without 
public notice. In those situations, the agencies' only recourse was to 
sue to unwind the parties' merger. The combined entity usually had the 
incentive to delay litigation, and years often passed before the case 
was adjudicated and relief was pursued or obtained. During this 
extended time, consumers were harmed by the reduction in competition 
between the merging parties and, even after the court's adjudication, 
effective relief was often impossible to achieve. Congress enacted the 
HSR Act to address these problems and to strengthen and improve 
antitrust enforcement by giving the agencies an opportunity to 
investigate certain large acquisitions before they are consummated.
    As alleged in the Complaint, the Defendant Funds each acquired in 
excess of $66 million in voting securities of Yahoo without complying 
with the pre-merger notification and waiting period requirements of the 
HSR Act. Defendants' failure to comply undermined the statutory scheme 
and the purpose of the HSR Act by precluding the agencies' timely 
review of the Defendants' acquisitions.
    The Complaint further alleges that the Defendant Funds could not 
rely on the HSR Act's investment-only exemption because, at the time of 
the acquisitions, they were engaging in activities that evidenced an 
intent inconsistent with the exemption. Namely, the Defendants and/or 
their agents contacted certain individuals to gauge their interest and 
willingness to become the CEO of Yahoo or a potential board candidate 
of Yahoo; took other steps to assemble an alternate slate of board of 
directors for Yahoo; drafted correspondence to Yahoo to announce that 
Third Point LLC was prepared to join the board of Yahoo (i.e., propose 
Third Point people as candidates for the board of Yahoo); internally 
deliberated the possible launch of a proxy battle for directors of 
Yahoo; and made public statements that they were prepared to propose a 
slate of directors at Yahoo's next annual meeting. These actions were 
inconsistent with the exemption's requirement that an acquiring person 
have ``no intention of participating in the formulation, determination, 
or direction of the basic business decisions of the issuer.'' See 16 
CFR 801.1(i)(1).

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The proposed Final Judgment contains injunctive relief designed to 
prevent future violations of the HSR Act. The proposed Final Judgment 
sets forth specific prohibited conduct, requires that the Defendants 
maintain a compliance program, and provides access and inspection 
procedures to enable the United States to determine and ensure 
compliance with the Final Judgment. The acts that are prohibited by the 
proposed Final Judgment are not the only activities that might show an 
intention inconsistent with the investment-only exemption; they are, 
however, the actions in which the Defendants engaged in this particular 
case and are therefore appropriately prohibited by the resolution of 
this case.

A. Prohibited Conduct

    Section IV of the proposed Final Judgment is designed to prevent 
future HSR Act violations of the sort alleged in the Complaint. Under 
this provision, Defendants may not consummate acquisitions of voting 
securities that would otherwise be subject to the HSR Act's 
Notification and Reporting requirements, and not otherwise exempt, in 
reliance on the investment-only exemption if, at the time of an 
acquisition of a particular issuer, or in the four (4) months prior to 
the acquisition, Defendants have engaged in certain specified 
activities. These activities are: Nominating a candidate for the board 
of directors of the issuer; proposing corporate action requiring 
shareholder approval; soliciting proxies with respect to such issuer; 
having a representative serve as an officer or director of the issuer; 
being a competitor of the issuer; doing any of the above activities 
with regard to an entity controlled by the issuer; inquiring of a third 
party as to his or her interest in being a candidate for the board or 
chief executive officer of the issuer, and not

[[Page 52505]]

abandoning such efforts; communicating with the issuer about potential 
candidates for the board or chief executive officer of the issuer, and 
not abandoning such efforts; or assembling a list of possible 
candidates for the board or chief executive officer of the issuer, if 
done through, at the instruction of, or with the knowledge of the chief 
executive officer of Third Point LLC or a person who has the authority 
to act for Third Point LLC with respect to finding candidates for the 
board or management.

B. Compliance

    Section V of the proposed Final Judgment sets forth required 
compliance procedures. Section V sets up an affirmative compliance 
program directed toward ensuring Defendants' compliance with the 
limitations imposed by the proposed Final Judgment. The compliance 
program includes the designation of a compliance officer, who is 
required to distribute a copy of the Final Judgment to each present and 
succeeding person who has responsibility for or authority over 
acquisitions of voting securities by Defendants, and to obtain a 
certification from each such person that he or she has received a copy 
of the Final Judgment and understands his or her obligations under the 
judgment. Additionally, the compliance officer is tasked with providing 
written instructions, on an annual basis, to all of Defendants' 
employees regarding the prohibitions contained in the Final Judgment. 
Lastly, Defendants must file an annual statement with the United States 
detailing the manner of their compliance with the Final Judgment, 
including a list of all acquisitions in which they have relied on the 
investment-only exemption.
    To facilitate monitoring Defendants' compliance with the Final 
Judgment, Section VI grants duly authorized representatives of the 
United States Department of Justice (``DOJ'') access, upon reasonable 
notice, to Defendants' records and documents relating to matters 
contained in the Final Judgment. Defendants must also make its 
personnel available for interviews or depositions regarding such 
matters. In addition, Defendants must, upon written request from duly 
authorized representatives of the Assistant Attorney General in charge 
of the DOJ's Antitrust Division, submit written reports relating to 
matters contained in the Final Judgment.
    These provisions are designed to prevent recurrence of the type of 
illegal conduct alleged in the Complaint and ensure that, in future 
transactions, Defendants do not improperly rely on the HSR Act's 
investment-only exemption.

IV. 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 district court to recover 
three times the damages the person has suffered, as well as the costs 
of bringing a lawsuit and reasonable attorney's fees. Entry of the 
proposed Final Judgment will neither impair nor assist the bringing of 
any private antitrust action. Under the provisions of Section 5(a) of 
the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no 
effect as prima facie evidence in any subsequent private lawsuit that 
may be brought against Defendants.

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT

    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered by this Court after compliance with the 
provisions of the APPA, provided that the United States has not 
withdrawn its consent. The APPA conditions entry of the decree upon 
this 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 injunction contained in the 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. The United 
States will evaluate and respond to comments. 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 entry. The comments and the response of the United 
States will be filed with this Court and published in the Federal 
Register. Written comments should be submitted to: Daniel P. Ducore, 
Special Attorney, United States, c/o Federal Trade Commission, 600 
Pennsylvania Avenue NW., Washington, DC 20580, dducore@ftc.gov.
    The proposed Final Judgment provides that this Court retains 
jurisdiction over this action, and the parties may apply to this Court 
for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT

    As an alternative to the proposed Final Judgment, the United States 
considered a full trial on the merits against the Defendants, including 
an action for civil penalties. In determining not to seek civil 
penalties, the United States considered a variety of factors. Chief 
among them were the fact that the Defendants have no previous record of 
HSR violations, and that they made their HSR filings within just a few 
weeks after the date on which they should have filed under the 
appropriate interpretation of the exemption. In these circumstances, 
the United States is satisfied that the proposed injunctive relief is 
sufficient to address the violation alleged in the Complaint and has 
the added advantage that it gives guidance to similarly-situated 
entities in the future.

VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT

    The APPA requires that injunctions of anticompetitive conduct 
contained in proposed consent judgments in antitrust cases brought by 
the United States be subject to a sixty (60) 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 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

[[Page 52506]]

one as the government 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 (D.C. 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. U.S. Airways Group, Inc., 38 F. Supp. 3d 69, 75 
(D.D.C. 2014) (noting the court has broad discretion of the adequacy of 
the relief at issue); United States v. InBev N.V./S.A., No. 08-1965 
(JR), 2009-2 Trade Cas. (CCH) ] 76,736, 2009 U.S. Dist. LEXIS 84787, 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.'').\2\
---------------------------------------------------------------------------

    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for 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).
---------------------------------------------------------------------------

    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA a court considers, among other things, 
the relationship between the remedy secured and the specific 
allegations set forth in the government's 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) (quoting 
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).\3\ 
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 U.S. Airways, 38 F. Supp. 3d 
at 75 (noting that a court should not reject the proposed remedies 
because it believes others are preferable); 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).
---------------------------------------------------------------------------

    \3\ 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''').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[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 U.S. 
Airways, 38 F. Supp. 3d at 76 (noting that room must be made for the 
government to grant concessions in the negotiation process for 
settlements (citing Microsoft, 56 F.3d at 1461)); 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 U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed settlements are 
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the `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. As this Court recently confirmed in SBC 
Communications, 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); see also U.S. Airways, 38 F. Supp. 3d 
at 76 (indicating that a court is not required to hold an evidentiary 
hearing or to permit intervenors as part of its review under the Tunney 
Act). The language wrote into the statute 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 Sen. Tunney). Rather, the 
procedure for the public interest determination is left to the 
discretion of the court, with

[[Page 52507]]

the recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp. 2d at 11.\4\ A court can make its public 
interest determination based on the competitive impact statement and 
response to public comments alone. U.S. Airways, 38 F. Supp. 3d at 76.
---------------------------------------------------------------------------

    \4\ 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., No. 73-CV-681-W-1, 1977-1 
Trade Cas. (CCH) ] 61,508, at 71,980, *22 (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, 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.'').
---------------------------------------------------------------------------

VIII. DETERMINATIVE DOCUMENTS

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.
Date: August 24, 2015

Respectfully Submitted,

Kenneth A. Libby
Special Attorney

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA, Plaintiff, v. THIRD POINT OFFSHORE 
FUND, LTD., THIRD POINT ULTRA, LTD., THIRD POINT PARTNERS QUALIFIED 
L.P., and THIRD POINT LLC, Defendants.
CASE NO.: 1:15-cv-01366
JUDGE: Ketanji Brown Jackson
FILED: 08/24/2015

FINAL JUDGMENT

    WHEREAS, Plaintiff United States of America filed its Complaint on 
August 24, 2015, alleging that Defendants Third Point Offshore Fund, 
Ltd., Third Point Ultra, Ltd., and Third Point Partners Qualified L.P. 
(collectively, ``Third Point Funds'') violated Section 7A of the 
Clayton Act (15 U.S.C. 18a, commonly known as the Hart-Scott-Rodino 
Antitrust Improvements Act of 1976 (the ``HSR Act'')), and Plaintiff 
and Defendants Third Point Funds and Third Point LLC (collectively, 
``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 without this Final Judgment constituting any 
evidence against, or any admission by, any party regarding any such 
issue of fact or law;
    AND WHEREAS Defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    NOW, THEREFORE, before any testimony is taken, and without trial or 
adjudication of any issue of fact or law, and upon the consent of the 
parties, it is ORDERED, ADJUDGED AND DECREED:

I. JURISDICTION

    This Court has jurisdiction over the subject matter of this action. 
The Defendants consent solely for the purpose of this action and the 
entry of this Final Judgment that this Court has jurisdiction over each 
of the parties to this action and that the Complaint states a claim 
upon which relief can be granted.

II. DEFINITIONS

    As used in this Final Judgment:
    (A) ``Abandonment'' means a statement that Defendants are not 
pursuing Board or Management Representation.
    (B) ``Board or Management Representation'' means being a candidate 
for, or member of, the board of directors or chief executive officer of 
the relevant Issuer.
    (C) ``Board or Management Slate'' means a Person or a group of 
Persons for possible Board or Management Representation.
    (D) ``Covered Acquisition'' means an acquisition of Voting 
Securities of an Issuer that is subject to the reporting and waiting 
requirements of the HSR Act, 15 U.S.C. 18a, and that is not otherwise 
exempt from the requirements of the HSR Act, but for which Defendants 
have not reported under the HSR Act, in reliance on the exemption 
pursuant to Section (c)(9) of the HSR Act, 15 U.S.C. 18a(c)(9) 
(``Exemption'').
    (E) ``Flat Exemption'' means a modification to the Exemption or the 
regulations that implement the Exemption to exempt from the reporting 
requirements of the HSR Act the acquisition of Voting Securities of an 
Issuer by any Acquiring Person, or by an Acquiring Person who is not a 
competitor of the Issuer, on the sole basis that the acquisition 
results in the Acquiring Person's holding less than a specified 
percentage of the outstanding Voting Securities of the Issuer.
    (F) ``Issuer'' means a legal entity that issues Voting Securities.
    (G) ``Person'' means any natural person.
    (H) ``Third Parties'' means any Person, partnership, joint venture, 
firm, corporation, association, trust, unincorporated organizations, or 
other business, and any subsidiaries, divisions, groups or affiliates 
thereof, that are not Defendants or a relevant Issuer.
    (I) ``Third Point LLC'' means Defendant Third Point LLC, a limited 
liability company organized under the laws of the State of Delaware, 
with its principal place of business at 390 Park Avenue, 19th Floor, 
New York, NY 10022.
    (J) ``Third Point Management'' means the chief executive officer of 
Third Point LLC and/or a Person who has the authority to act for Third 
Point LLC with respect to Board or Management Representation.
    (K) ``Third Point Offshore Fund, Ltd.'' means Defendant Third Point 
Offshore Fund, Ltd., an offshore fund organized under the laws of the 
Cayman Islands, with its registered office at Walkers, 190 Elgin 
Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands.
    (L) ``Third Point Partners Qualified L.P.'' means Defendant Third 
Point Partners Qualified L.P., a limited partnership organized under 
the laws of the State of Delaware, with its principal place of business 
at 390 Park Avenue, 19th Floor, New York, NY 10022.
    (M) ``Third Point Ultra, Ltd.'' means Defendant Third Point Ultra, 
Ltd., an offshore fund organized under the laws of the British Virgin 
Islands, with its registered office at Walkers Chambers, 171 Main 
Street, P.O. Box 92, Road Town, Tortola, British Virgin Islands.
    (N) Other capitalized terms have the meanings as defined in the HSR 
Act and Regulations promulgated thereunder, 16 CFR 801-803.

III. APPLICABILITY

    This Final Judgment applies to all Defendants, including each of 
their directors, officers, managers, agents, employees, parents, 
subsidiaries, successors and assigns, all in their capacities as such, 
and to all other Persons and entities who are in active concert or 
participation with any of the foregoing with respect to conduct 
prohibited in Paragraph IV when the relevant Persons or entities have 
received actual notice of this Final Judgment by personal service or 
otherwise.

IV. PROHIBITED CONDUCT

    Defendants are enjoined from making, directly or indirectly, a 
Covered Acquisition, without filing and observing the waiting period as 
required by the HSR Act, 15 U.S.C. 18a, if: (1) at

[[Page 52508]]

the time Defendants make such Covered Acquisition, or (2) during the 
four (4) months preceding that time, as applicable, Defendants:
    (A) Nominated a candidate for the board of directors of such 
Issuer;
    (B) Proposed corporate action requiring shareholder approval with 
respect to such Issuer;
    (C) Solicited proxies with respect to such Issuer;
    (D) Have, or are an Associate of an entity that has, a controlling 
shareholder, director, officer, or employee who is simultaneously 
serving as an officer or director of such Issuer;
    (E) Are competitors of such Issuer;
    (F) Have done any of the activities identified in Paragraphs IV.A.-
IV.D. with respect to, or are a competitor of, any entity directly or 
indirectly controlling such Issuer;
    (G) Inquired of a Third Party as to his or her interest in Board or 
Management Representation and did not later engage in Abandonment and 
communicate such Abandonment to the Third Party, unless Defendants can 
show that such activity occurred without the knowledge of Third Point 
Management;
    (H) Sent a written communication to, or initiated an oral 
communication with, the relevant Issuer regarding Board or Management 
Representation by Persons employed by, affiliated with, or advanced by 
Defendants and did not later engage in Abandonment and communicate such 
Abandonment to the relevant Issuer, unless Defendants can show that 
such activity occurred without the knowledge of Third Point Management; 
or
    (I) Assembled in writing a Board or Management Slate if Defendants 
were acting through, instructed by, or with the knowledge of Third 
Point Management and did not later engage in Abandonment.

V. COMPLIANCE

    (A) Defendants shall maintain a compliance program that shall 
include designating, within thirty (30) days of the entry of this Final 
Judgment, a Compliance Officer with responsibility for achieving 
compliance with this Final Judgment. The Compliance Officer shall, on a 
continuing basis, supervise the review of current and proposed 
activities to ensure compliance with this Final Judgment. The 
Compliance Officer shall be responsible for accomplishing the following 
activities:
    (1) Distributing, within thirty (30) days of the entry of this 
Final Judgment, a copy of this Final Judgment to any Person who has 
responsibility for or authority over acquisitions by Defendants of 
Voting Securities;
    (2) Distributing in a timely manner a copy of this Final Judgment 
to any Person who succeeds to a position described in Paragraph V.A.1.;
    (3) Obtaining within sixty (60) days from the entry of this Final 
Judgment, and once within each calendar year after the year in which 
this Final Judgment is entered during the term of this Final Judgment, 
and retaining for the term of this Final Judgment, a written 
certification from each Person designated in Paragraphs V.A.1. and 
V.A.2. that he or she: (a) has received, read, understands, and agrees 
to abide by the terms of this Final Judgment; (b) understands that 
failure to comply with this Final Judgment may result in conviction for 
criminal contempt of court; and (c) is not aware of any violation of 
the Final Judgment; and
    (4) Providing written instruction, within sixty (60) days from the 
entry of this Final Judgment, and once within each calendar year after 
the year in which this Final Judgment is entered during the term of 
this Final Judgment, to all employees of Third Point who are not Third 
Point Management: (a) not to make an inquiry of a Third Party, as 
described in Paragraph IV.G., or a communication with an Issuer, as 
described in Paragraph IV.H., without the authorization of Third Point 
Management; and (b) that if, without such authorization, such employee 
engages in an activity that may qualify as an inquiry or communication 
described in Paragraphs IV.G. or H., respectively, such employee shall 
report the event to the Compliance Officer.
    (B) Within sixty (60) days of the entry of this Final Judgment, 
Defendants shall certify to Plaintiff that they have (1) designated a 
Compliance Officer, specifying his or her name, business address and 
telephone number; and (2) distributed the Final Judgment in accordance 
with Paragraph V.A.1.
    (C) On or before November 30, 2016, and on or before November 30th 
(or, if November 30th is not a business day, the next business day) 
each year thereafter during the term of this Final Judgment, Defendants 
shall file with Plaintiff a statement (the ``Compliance Report'') as to 
the fact and manner of their compliance with the provisions of 
Paragraphs IV and V during the year preceding September 30th of the 
year in which the Compliance Report is filed (the ``Reporting 
Period''). This Compliance Report shall also contain (1) the Issuer and 
date of each Covered Acquisition during the Reporting Period where a 
Defendant held the relevant Voting Securities for more than seven (7) 
days; and (2) a written statement containing the following information 
regarding all instances, if any, of events during the Reporting Period 
where a non-Third Point Management employee made an inquiry of a Third 
Party, as described in Paragraph IV.G., or a communication with an 
Issuer, as described in Paragraph IV.H., without the authorization of 
Third Point Management, and as reported to the Compliance Officer: (i) 
the non-Third Point Management employee involved; (ii) the Issuer; and 
(iii) the date such inquiry or communication occurred.
    (D) If any of Defendants' directors or officers or the Compliance 
Officer learns of any violation of this Final Judgment, Defendants 
shall within ten (10) business days make a corrective filing under the 
HSR Act with respect to the relevant Covered Acquisition.

VI. PLAINTIFF'S ACCESS AND INSPECTION

    (A) For the purpose of determining or securing compliance with this 
Final Judgment, and subject to any legally recognized privilege, duly 
authorized representatives of the United States Department of Justice 
shall, upon written request of a duly authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to Defendants, be permitted:
    (1) Access during Defendants' office hours to inspect and copy, or 
at Plaintiff's option, to require Defendants to provide copies of all 
records and documents in their possession or control relating to any 
matters contained in this Final Judgment; and
    (2) To interview, either informally or on the record, Defendants' 
directors, officers, employees, agents or other Persons, who may have 
their individual counsel present, relating to any matters contained in 
this Final Judgment. The interviews shall be subject to the reasonable 
convenience of the interviewee and without restraint or interference by 
Defendants.
    (B) Upon written request of a duly authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
Defendants shall submit written reports, 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 Final Judgment shall be divulged by the Plaintiff to any person 
other than an authorized representative of the executive branch of the 
United States or of the Federal Trade Commission, except in the course 
of legal proceedings

[[Page 52509]]

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 
Defendants to Plaintiff, Defendants represent and identify in writing 
the material in any such information or documents to which a claim of 
protection may be asserted under Rule 26(c)(1) of the Federal Rules of 
Civil Procedure, and Defendants mark each pertinent page of such 
material, ``Subject to claim of protection under Rule 26(c)(1) of the 
Federal Rules of Civil Procedure,'' then the United States shall give 
ten (10) calendar days' notice prior to divulging such material in any 
legal proceeding (other than a grand jury proceeding) to which 
Defendants are not a party.

VII. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any party to this Final 
Judgment to apply to this Court at any time for such further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify or terminate any of its provisions, to 
enforce compliance, and to punish any violations of its provisions.

VIII. EXPIRATION OF FINAL JUDGMENT

    This Final Judgment shall expire five (5) years from the date of 
its entry, except that, if, during the term of this Final Judgment, the 
Exemption is replaced by a Flat Exemption, then the Final Judgment 
shall expire on the date that the Flat Exemption is effective.

IX. COSTS

    Each party shall bear its own costs.

X. PUBLIC INTEREST DETERMINATION

    The entry of this Final Judgment is in the public interest.

    DATED:

Court approval subject to the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16

United States District Judge

[FR Doc. 2015-21534 Filed 8-28-15; 8:45 am]
BILLING CODE P