United States v. Ahmet H. Okumus; Proposed Final Judgment and Competitive Impact Statement, 8858-8863 [2017-02024]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 82, Number 19 (Tuesday, January 31, 2017)]
[Notices]
[Pages 8858-8863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02024]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Ahmet H. Okumus; 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. Ahmet H. Okumus, Civil Action No. 1:17-cv-00104. 
On January 17, 2017, the United States filed a Complaint alleging that 
Ahmet H. Okumus violated the notice and waiting period requirements of 
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 
18a, with respect to his acquisition of voting securities of Web.com 
Group, Inc. The proposed Final Judgment, filed at the same time as the 
Complaint, requires Ahmet H. Okumus to pay a civil penalty of $180,000.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division'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 Antitrust Division's 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, United States, c/o Federal Trade Commission, 600 
Pennsylvania Avenue NW., CC-8416, Washington DC 20580 (telephone: 202-
326-2526; email: dducore@ftc.gov).

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. Ahmet H. Okumus, 767 Third Avenue, 35th 
Floor, New York, NY 10017, Defendant.
Case No.: 1:17-cv-00104
Judge: Rosemary M. Collyer
Filed: 01/17/2017

COMPLAINT FOR CIVIL PENALTIES 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 monetary relief in the form of civil 
penalties against Defendant Ahmet H. Okumus (``Okumus''). Plaintiff 
alleges as follows:

NATURE OF THE ACTION

    1. Okumus 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 Web.com Group, Inc. (``Web.com'').

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 
Defendant by virtue of Defendant's 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 
Defendant's consent, in the Stipulation relating hereto, to the 
maintenance of this action and entry of the Final Judgment in this 
District.

THE DEFENDANT

    4. Defendant Okumus is a natural person with his principal office 
and place of business at 767 Third Avenue, 35th Floor, New York, NY 
10017. Okumus 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, Okumus had sales or assets in 
excess of $156.3 million.

OTHER ENTITIES

    5. Web.com is a corporation organized under the laws of Delaware 
with its principal place of business at 12808 Gran Bay Parkway West, 
Jacksonville, FL 32258. Web.com 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, Web.com had 
sales or assets in excess of $15.6 million.

THE HART-SCOTT-RODINO ACT AND RULES

    6. 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). These notification and 
waiting period requirements apply to acquisitions that meet the HSR 
Act's thresholds. As of February 1, 2001, the size of transaction 
threshold was $50 million. In addition, there is a separate filing 
requirement for transactions in which the acquirer will hold voting 
securities in excess of $100 million, and for transactions in which the 
acquirer will hold voting securities in excess of $500 million. With 
respect to the size of person thresholds, the HSR Act requires one 
person involved in the transaction to have sales or assets in excess of 
$10 million, and the other person to have sales or assets in excess of 
$100 million. Since 2004, the size of transaction and size of person 
thresholds have been adjusted annually.
    7. The HSR Act's notification and waiting period requirements are 
intended to give the federal antitrust agencies prior notice of, and 
information about, proposed transactions. The waiting period is also

[[Page 8859]]

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.
    8. 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 made 
solely for the purpose of investment if, as a result of the 
acquisition, the securities acquired or held do not exceed ten percent 
of the outstanding voting securities of the issuer.
    9. Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. 18a(d)(2), 
rules were promulgated to carry out the purposes of the HSR Act. 16 CFR 
801-03 (``HSR Rules''). The HSR Rules, among other things, define terms 
contained in the HSR Act.
    10. 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.
    11. 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.
    12. Section 802.21 of the HSR Rules, 16 CFR 802.21, provides that 
once a person has filed under the HSR Act and the waiting period has 
expired, the person can acquire additional voting securities of the 
issuer without making a new filing for five years from the expiration 
of the waiting period, so long as the holdings do not exceed a higher 
threshold than was indicated in the filing.
    13. Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1), 
provides that any person, or any officer, director, or partner thereof, 
who fails to comply with any provision of the HSR Act is liable to the 
United States for a civil penalty for each day during which such person 
is in violation. Pursuant to the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 701 (further 
amending the Federal Civil Penalties Inflation Adjustment Act of 1990), 
and Federal Trade Commission Rule 1.98, 16 CFR 1.98, 81 FR 42,476 (June 
30, 2016), the maximum amount of civil penalty is $40,000 per day.

DEFENDANT'S PRIOR VIOLATION OF THE HSR ACT

    14. On September 11, 2014, Okumus acquired voting securities of 
Web.com. As a result of this acquisition, Okumus held approximately 
13.5% of the voting securities of Web.com. Okumus did not file under 
the HSR Act because he was relying on the exemption for acquisitions 
solely for the purpose of investment. However, that exemption is 
limited to acquisitions which result in holding 10% or less of the 
voting securities of the issuer. Accordingly, Okumus was required to 
file under the HSR Act prior to acquiring Web.com voting securities on 
September 11, 2014. Okumus continued to acquire voting securities of 
Web.com through November 6, 2014.
    15. On November 21, 2014, Okumus made a corrective filing under the 
HSR Act for the acquisitions of Web.com voting securities. In a letter 
accompanying the corrective filing, Okumus acknowledged that the 
transaction was reportable under the HSR Act, but asserted that the 
failure to file and observe the waiting period was inadvertent.
    16. On December 31, 2014, the Premerger Notification Office of the 
Federal Trade Commission sent a letter to Okumus indicating that it 
would not recommend a civil penalty action regarding the September 11, 
2014, Web.com acquisition. The letter advised, however, that Okumus 
``still must bear responsibility for compliance with the Act'' and was 
``accountable for instituting an effective program to ensure full 
compliance with the Act's requirements.''

DEFENDANT'S VIOLATION OF THE HSR ACT

    17. In his corrective HSR Act filing for the 2014 Web.com 
acquisitions, Okumus filed at the $50 million threshold. After the 
expiration of the waiting period, Okumus was permitted under the HSR 
Act to acquire additional voting securities of Web.com without making 
another HSR Act filing so long as he did not exceed the $100 million 
threshold, as adjusted. As of February 25, 2016, the adjusted $100 
million threshold was $156.3 million.
    18. On June 2, 2016, Okumus began acquiring additional voting 
securities of Web.com. Okumus continued to acquire additional voting 
securities of Web.com through June 27, 2016.
    19. On June 27, 2016, Okumus acquired 236,589 voting securities of 
Web.com. As a result of this acquisition, Okumus held voting securities 
of Web.com valued in excess of the $156.3 million threshold then in 
effect.
    20. Although required to do so, Okumus did not file under the HSR 
Act or observe the HSR Act's waiting period prior to completing the 
June 27, 2016, transaction.
    21. On July 14, 2016, Okumus sold 33,200 voting securities of 
Web.com. As a result of this sale, Okumus no longer held voting 
securities of Web.com valued in excess of the $156.3 million HSR Act 
threshold.
    22. Okumus was in continuous violation of the HSR Act from June 27, 
2016, when he acquired the Web.com voting securities valued in excess 
of the HSR Act's then applicable $156.3 filing threshold, through July 
14, 2016, when he no longer held voting securities of Web.com valued in 
excess of $156.3 million.

REQUESTED RELIEF

WHEREFORE, Plaintiff requests:
    a. That the Court adjudge and decree that Defendant's acquisition 
of Web.com voting securities on June 27, 2016, was a violation of the 
HSR Act, 15 U.S.C. 18a; and that Defendant was in violation of the HSR 
Act each day from June 27, 2016, through July 14, 2016;
    b. That the Court order Defendant to pay to the United States an 
appropriate civil penalty as provided by the HSR Act, 15 U.S.C. 
18a(g)(1), and the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015, Pub. L. 114-74, Sec.  701 (further amending 
the Federal Civil Penalties Inflation Adjustment Act of 1990), and 
Federal Trade Commission Rule 1.98, 16 CFR 1.98, 81 FR 42,476 (June 30, 
2016);
    c. That the Court order such other and further relief as the Court 
may deem just and proper; and
    d. That the Court award Plaintiff its costs of this suit.

Dated: 01/17/2017------------------------------------------------------

FOR THE PLAINTIFF UNITED STATES OF AMERICA:

/s/--------------------------------------------------------------------
Renata B. Hesse, D.C. Bar No. 466107

Acting Assistant Attorney General, Department of Justice, Antitrust 
Division, Washington, DC 20530, D.C. Bar No. 269266.

/s/--------------------------------------------------------------------
Daniel P. Ducore, D.C. Bar No. 933721

Special Attorney.

/s/--------------------------------------------------------------------
Roberta S. Baruch
Special Attorney.

/s/--------------------------------------------------------------------
Kenneth A. Libby
Special Attorney.

/s/--------------------------------------------------------------------
Jennifer Lee,
Special Attorney, Federal Trade Commission, Washington, DC 20580, 
(202) 326-2694.

[[Page 8860]]

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Ahmet H. Okumus, 
Defendant.
Case No.: 1:17-cv-00104
Judge: Rosemary M. Collyer
Filed: 01/17/2017

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 January 17, 2017, the United States filed a Complaint against 
Defendant Ahmet H. Okumus (``Okumus''), related to Okumus's acquisition 
of voting securities of Web.com Group, Inc. (``Web.com'') in June 2016. 
The Complaint alleges that Okumus 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 provides that 
``no person shall acquire, directly or indirectly, any voting 
securities of any person'' exceeding certain thresholds until that 
person has filed pre-acquisition notification and report forms with the 
Department of Justice and the Federal Trade Commission (collectively, 
the ``federal antitrust agencies'' or ``agencies'') and the post-filing 
waiting period has expired. 15 U.S.C. 18a(a). A key purpose of the 
notification and waiting period is to protect consumers and competition 
from potentially anticompetitive transactions by providing the agencies 
an opportunity to conduct an antitrust review of proposed transactions 
before they are consummated.
    The Complaint alleges that Okumus acquired voting securities of 
Web.com in excess of then-applicable statutory thresholds without 
making the required pre-acquisition HSR filings with the agencies and 
without observing the waiting period, and that Okumus and Web.com met 
the applicable statutory size of person thresholds.
    At the same time the Complaint was filed in the present action, the 
United States also filed a Stipulation and proposed Final Judgment that 
eliminates the need for a trial in this case. The proposed Final 
Judgment is designed to deter Okumus' HSR Act violations. Under the 
proposed Final Judgment, Okumus must pay a civil penalty to the United 
States in the amount of $180,000.
    The United States and the Defendant 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.

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

    Okumus is an investor with his principal office and place of 
business in New York City. At all times relevant to the Complaint, 
Okumus had sales or assets in excess of $156.3 million. At all times 
relevant to the Complaint, Web.com, a Delaware corporation 
headquartered in Jacksonville, Florida, had sales or assets in excess 
of $15.6 million.
    On November 21, 2014, Okumus filed under the HSR Act to acquire 
voting securities of Web.com. Okumus filed at the $50 million 
threshold, as adjusted. After the waiting period expired, Okumus was 
permitted under the HSR Act to acquire additional voting securities of 
Web.com for five years without making a new HSR filing so long as his 
holdings did not exceed the $100 million threshold, as adjusted. On 
June 27, 2016, Okumus acquired additional voting securities of Web.com. 
As a result of this acquisition, Okumus held voting securities of 
Web.com valued at approximately $156.6 million, which was in excess of 
$156.3 million, the as adjusted $100 million threshold in effect at the 
time. Although he was required to do so under the HSR Act, Okumus 
failed to make an HSR filing and observe the statutory waiting period 
before consummating the June 27, 2016 acquisition.
    On July 14, 2016, Okumus sold voting securities of Web.com. As a 
result of this sale, he no longer held voting securities valued in 
excess of $156.3 million, and was no longer in violation of the HSR 
Act.
    The Complaint further alleges that Okumus's June 2016 HSR Act 
violation was not the first time Okumus had failed to observe the HSR 
Act's notification and waiting period requirements. On September 11, 
2014, Okumus acquired voting securities of Web.com. As a result of this 
acquisition, Okumus held approximately 13.5 percent of the voting 
securities of Web.com. Okumus did not file under the HSR Act prior to 
making this acquisition, relying on the exemption for acquisitions made 
solely for the purpose of investment. See 15 U.S.C. 18a(c)(9). However, 
the exemption is limited to acquisitions that result in holdings that 
do not exceed ten percent of the voting securities of the issuer; 
acquisitions that result in holding in excess of ten percent require an 
HSR filing regardless of the purpose of the acquisition. On November 
21, 2014, Okumus made a corrective HSR filing for the September 11, 
2014 acquisition, and explained in a letter accompanying the corrective 
filing that his failure to file was inadvertent. On December 31, 2014, 
the Premerger Notification Office of the Federal Trade Commission 
notified Okumus by letter that it would not recommend a civil penalty 
for the violation, but advised Okumus that he was ``accountable for 
instituting an effective program to ensure full compliance with the 
Act's requirements.''

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The proposed Final Judgment imposes a $180,000 civil penalty 
designed to deter the Defendant and others from violating the HSR Act. 
The United States adjusted the penalty downward from the maximum 
permitted under the HSR Act because the violation was inadvertent, the 
Defendant promptly corrected the violation after discovery by selling 
voting securities, and the Defendant is willing to resolve the matter 
by consent decree and avoid prolonged investigation and litigation. The 
relief will have a beneficial effect on competition because the 
agencies will be properly notified of future acquisitions, in 
accordance with the law. At the same time, the penalty will not have 
any adverse effect on competition.

IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS

    There is no private antitrust action for HSR Act violations; 
therefore, entry of the proposed Final Judgment will neither impair nor 
assist the bringing of any private antitrust action.

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT

    The United States and the Defendant 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.

[[Page 8861]]

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 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 entry. 
The comments and the response of the United States will be filed with 
this Court. In addition, comments will be posted on the U.S. Department 
of Justice, Antitrust Division's internet Web site and, under certain 
circumstances, 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.
CC-8416
Washington, DC 20580
Email: 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 pursuing a full trial on the merits against the Defendant. 
The United States is satisfied, however, that the proposed relief is an 
appropriate remedy in this matter. Given the facts of this case, 
including the Defendant's self-reporting of the violation and 
willingness to promptly settle this matter, the United States is 
satisfied that the proposed civil penalty is sufficient to address the 
violation alleged in the Complaint and to deter violations by similarly 
situated entities in the future, without the time, expense, and 
uncertainty of a full trial on the merits.

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

    The APPA requires 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.

Id. Sec.  16(e)(1)(A) & (B). In considering these statutory factors, 
the court's inquiry is necessarily a limited 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 that the 
court's ``inquiry is limited'' because the government has ``broad 
discretion'' to determine the adequacy of the relief secured through a 
settlement); 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.'').\1\
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    \1\ 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. 
Sec.  16(e) (2004), with 15 U.S.C. Sec.  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).
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    As the United States Court of Appeals for the District of Columbia 
Circuit has held, a court conducting an inquiry under the APPA may 
consider, 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).\2\ In 
determining whether a proposed settlement is in the public interest, a 
district court ``must accord deference to the government's predictions 
about the

[[Page 8862]]

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 government's prediction as to the effect of proposed 
remedies, its perception of the market structure, and its views of the 
nature of the case).
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    \2\ 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' '').
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    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 (concluding 
that ``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 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.'' 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). This language codified what Congress intended when it enacted the 
Tunney Act in 1974, as the author of this legislation, Senator Tunney, 
explained: ``The 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 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.\3\ 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.
---------------------------------------------------------------------------

    \3\ See also 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.'').
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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: January 17, 2017
Respectfully submitted,
/s/--------------------------------------------------------------------
Kenneth A. Libby,
Special Attorney U.S. Department of Justice, Antitrust Division, c/o 
Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 
20580, Phone: (202) 326-2694, Email: klibby@ftc.gov.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Ahmet H. Okumus, 
Defendant.
Case No.: 1:17-cv-00104
Judge: Rosemary M. Collyer
Filed: 01/17/2017

FINAL JUDGMENT

    Plaintiff, the United States of America, having commenced this 
action by filing its Complaint herein for violation of Section 7A of 
the Clayton Act, 15 U.S.C. 18a, commonly known as the Hart-Scott-Rodino 
Antitrust Improvements Act of 1976, and Plaintiff and Defendant Ahmet 
H. Okumus, by their respective attorneys, having consented to the entry 
of this Final Judgment without trial or adjudication of any issue of 
fact or law herein, and without this Final Judgment constituting any 
evidence against or an admission by the Defendant with respect to any 
such issue:
    NOW, THEREFORE, before the taking of any testimony and without 
trial or adjudication of any issue of fact or law herein, and upon the 
consent of the parties hereto, it is hereby
    ORDERED, ADJUDGED, AND DECREED:

I.

    The Court has jurisdiction of the subject matter of this action and 
of the Plaintiff and the Defendant. The Complaint states a claim upon 
which relief can be granted against the Defendant under Section 7A of 
the Clayton Act, 15 U.S.C. 18a.

II.

    Judgment is hereby entered in this matter in favor of Plaintiff and 
against Defendant, and, pursuant to Section 7A(g)(1) of the Clayton 
Act, 15 U.S.C.

[[Page 8863]]

18a(g)(1), and the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015, Pub. L. 114-74 Sec. 701 (amending the Federal 
Civil Penalties Inflation Adjustment Act of 1990), and Federal Trade 
Commission Rule 1.98, 16 CFR 1.98, 81 FR 42,476 (June 30, 2016), 
Defendant is hereby ordered to pay a civil penalty in the amount of one 
hundred eighty thousand dollars ($180,000). Payment of the civil 
penalty ordered hereby shall be made by wire transfer of funds or 
cashier's check. If the payment is made by wire transfer, Defendant 
shall contact Janie Ingalls of the Antitrust Division's Antitrust 
Documents Group at (202) 514-2481 for instructions before making the 
transfer. If the payment is made by cashier's check, the check shall be 
made payable to the United States Department of Justice and delivered 
to:

Janie Ingalls
United States Department of Justice
Antitrust Division, Antitrust Documents Group
450 5th Street, NW
Suite 1024
Washington, D.C. 20530

    Defendant shall pay the full amount of the civil penalty within 
thirty (30) days of entry of this Final Judgment. In the event of a 
default or delay in payment, interest at the rate of eighteen (18) 
percent per annum shall accrue thereon from the date of the default or 
delay to the date of payment.

III.

    Each party shall bear its own costs of this action.

IV.

    Entry of this Final Judgment is in the public interest. The parties 
have complied with the requirements 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.

Dated:-----------------------------------------------------------------

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United States District Judge

[FR Doc. 2017-02024 Filed 1-30-17; 8:45 am]
 BILLING CODE 4410-11-P