United States v. Learfield Communications, LLC, IMG College, LLC, and A-L Tier I LLC; Proposed Final Judgment and Competitive Impact Statement, 6824-6833 [2019-03478]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 84, Number 40 (Thursday, February 28, 2019)]
[Notices]
[Pages 6824-6833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03478]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Learfield Communications, LLC, IMG College, LLC, 
and A-L Tier I LLC; 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. Learfield Communications, LLC, IMG College, LLC, 
and A-L Tier I LLC, Civil Action No. 1:19-cv-00389. On February 14, 
2019, the United States filed a

[[Page 6825]]

Complaint alleging that that Learfield Communications, LLC's 
(``Learfield'') and IMG College, LLC's (``IMG'') agreements not to 
compete for multimedia rights contracts for universities' athletic 
programs violate Section 1 of the Sherman Act, 15 U.S.C. 1. The 
proposed Final Judgment, filed at the same time as the Complaint, 
prohibits sharing of competitively sensitive information, agreeing not 
to bid or agreeing to jointly bid, and entering into or extending 
multimedia rights joint ventures (absent approval from the United 
States), and it requires Defendants to implement an antitrust 
compliance training program.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's website 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 website, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Owen M. Kendler, 
Chief, Media, Entertainment and Professional Services Section, 
Antitrust Division, Department of Justice, 450 Fifth Street NW, Suite 
4000, Washington, DC 20530 (telephone: 202-305-8376).

Patricia A. Brink,
Director of Civil Enforcement.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Learfield 
Communications, LLC, IMG College, LLC, and A-L TIER I LLC, 
Defendants.

Civil Action No.: 1:19-cv-00389
Judge: Emmet G. Sullivan

COMPLAINT

    The United States of America brings this civil action to enjoin 
anticompetitive conduct by IMG College (``IMG''), Learfield 
Communications, LLC (``Learfield''), and A-L Tier I LLC, and to obtain 
other equitable relief. The United States alleges as follows:

I. NATURE OF THE ACTION

    1. Athletic programs of the nation's universities have limited 
opportunities to generate revenue, and thus sponsorship revenue from 
multimedia rights (``MMR'') plays an important role in many of their 
budgets. Defendants IMG and Learfield, along with several smaller 
companies, manage MMR for university athletic programs across the 
country.
    2. Agreements by and among Defendants not to compete, however, have 
restrained competition in the MMR market, harming the universities that 
rely on these firms for an important revenue source. These agreements 
constitute contracts, combinations, or conspiracies in restraint of 
trade or commerce in the United States in violation of Section 1 of the 
Sherman Act, 15 U.S.C. Sec.  1, and should be enjoined.

II. JURISDICTION, VENUE, AND COMMERCE

    3. The United States brings this action under Section 4 of the 
Sherman Act, 15 U.S.C. Sec.  4, to obtain equitable relief and other 
relief to prevent and restrain Defendants' violations of Section 1 of 
the Sherman Act, 15 U.S.C. Sec.  1. This Court has subject matter 
jurisdiction over this action under Section 4 of the Sherman Act, 15 
U.S.C. Sec.  4.
    4. This Court has personal jurisdiction over each Defendant. Both 
IMG and Learfield transact business within the District of Columbia.
    5. Defendants are engaged in interstate commerce and in activities 
substantially affecting interstate commerce. IMG and Learfield manage 
MMR for universities throughout the United States. They are engaged in 
a regular, continuous, and substantial flow of interstate commerce, and 
their MMR management and other services have had a substantial effect 
on interstate commerce.
    6. Venue is proper in this district under Section 12 of the Clayton 
Act, 15 U.S.C. Sec.  22 and 28 U.S.C. Sec.  1391(c).

III. THE DEFENDANTS

    7. Defendant IMG, until its 2018 merger with Learfield, was a 
division of global entertainment firm WME Entertainment Parent LLC 
(``WME''). IMG provided a variety of services to universities, 
including trademark licensing, ticketing, and MMR management. In 2017, 
IMG's U.S. revenue for MMR management was approximately $402 million.
    8. Defendant Learfield, until its 2018 merger with IMG, was owned 
by Philadelphia, Pennsylvania-based private equity firm Atairos Group 
Inc. (``Atairos''), which is substantially owned by Comcast 
Corporation. Learfield provided a similar set of services to 
universities as IMG, including MMR management. In 2017, Learfield's 
U.S. revenue for MMR management was approximately $406 million.
    9. On December 31, 2018, Defendants announced that they completed a 
merger under which Learfield and IMG had merged into a new company--A-L 
Tier I LLC (d/b/a Learfield IMG College)--owned, in part, by WME and 
Atairos.

IV. INDUSTRY BACKGROUND

    10. Across the country, over a thousand colleges and universities 
field men's and women's sports teams to compete in intercollegiate 
athletics. The majority of these athletic programs are small, with only 
a few sports and funded primarily by student fees. Many, however, 
include over a dozen men's and women's teams each, requiring extensive 
facilities, staffing, and funding.
    11. Because of their size, major university athletic programs 
require substantial budgets, with funding drawn primarily from a 
handful of key sources, including television rights, ticket revenue, 
donations, and MMR.
    12. Multimedia rights consist of advertising and promotional rights 
associated with school property and athletic activities. Although the 
package of rights may vary slightly from deal to deal, MMR management 
firms typically manage the school's print and digital athletic 
advertising, signage in stadiums and arenas, game and event 
sponsorships, promotions, and radio shows. While smaller schools may 
choose to maintain MMR management in-house, nearly all major university 
athletic programs use an MMR management firm to manage their MMR.
    13. MMR management firms serve several important functions. First, 
they oversee the general commercialization of a university's athletic 
rights, including identifying advertising and promotional 
opportunities, working with different constituencies to secure the most 
advertising revenue without undermining the interests and values of the 
university, and performing a variety of back office functions. Second, 
they assist the university in bringing MMR opportunities to market, 
such as providing facilities and infrastructure to produce radio shows 
and funding the construction of new stadium videoboards. Finally, MMR 
management firms develop and maintain relationships with advertisers.

V. COORDINATION IN THE MMR INDUSTRY

    14. Defendants IMG and Learfield have agreed or otherwise 
coordinated to limit competition between one another

[[Page 6826]]

and between themselves and smaller competitors.
    15. At times, the coordination between IMG and Learfield has taken 
the form of joint ventures at specific universities. Under the guise of 
legitimate business arrangements, these joint ventures further 
Defendants' interests over schools', denying colleges the benefits of 
competition with little, if anything, in return.
    16. In one such episode, IMG and Learfield provided MMR services 
through a joint venture that had been created years before. When the 
university's multimedia rights came up for bid, both IMG and Learfield 
initially prepared to submit independent bids in competition with each 
other. Before submissions were made to the school, however, executives 
of IMG and Learfield agreed not to submit competing bids and instead 
submitted a joint bid. Absent the competing independent offers 
anticipated from both IMG and Learfield, the school accepted a joint 
bid that offered less revenue to the school than at least one of 
Defendants' planned independent bids.
    17. With varying degrees of success, Defendants have also attempted 
to wield the joint venture structure as a way to co-opt smaller 
competitors. In one example, as part of a joint venture agreement 
between IMG and a smaller MMR provider, IMG secured a commitment under 
which the smaller provider would not bid on any of IMG's schools for 
over a year. IMG recognized the joint venture's value in removing the 
smaller provider as a competitor and projected millions in savings from 
not having to compete. In another example, IMG proposed to another 
bidder that they each withdraw their bids and submit a joint bid that 
would be less favorable to the school. In this instance, however, IMG's 
invitation did not succeed and the other firm ultimately won the bid.
    18. Additionally, when IMG and Learfield have unwound established 
joint ventures at certain universities, the two firms have crafted non-
compete agreements that continue to limit competition. As with the 
joint ventures themselves, these non[dash]competes unreasonably denied 
schools the benefits of competition. And when one of the two firms 
wanted to compete, the other quickly moved to suppress the threatening 
bid, enforcing the agreement. In one example, a then-IMG executive 
asked Learfield for permission to bid on a Learfield school that was 
coming up for bid on which Learfield had a non-compete commitment from 
IMG. Learfield, however, did not consent and the school stayed with 
Learfield.
    19. Even in the absence of a so-called joint venture or non-compete 
agreement, IMG and Learfield have sought ways to undermine competition. 
In some cases, an understanding not to compete is employed with an 
informal policing mechanism. In one such episode, Learfield bid for an 
IMG school without first receiving permission from IMG. As a result, a 
then-IMG executive reached out to a Learfield executive requesting that 
Learfield withdraw its bid. Learfield agreed and withdrew its bid as 
IMG had requested. The university, without Learfield's offer, signed an 
agreement with IMG.
    20. These efforts to suppress competition also extended to others 
in the market. For example, Defendants have attempted to craft legal 
settlements with smaller competitors in ways that limit competition. In 
an employee dispute with one such competitor, Learfield secured a 
settlement that precluded the company from bidding on a certain 
university. And in another employee dispute, Learfield made a failed 
attempt to agree not to compete with a competitor for one another's MMR 
staff.
    21. Defendants' agreements and attempted agreements not to compete, 
and to co-opt smaller competitors, reflect a culture of disregard for 
the antitrust laws and the competitive process. Accordingly, such 
conduct should be enjoined.

VI. VIOLATIONS ALLEGED

    22. The agreements by Defendants not to compete constitute 
agreements that unreasonably restrain competition in the market for MMR 
management in the United States in violation of Section 1 of the 
Sherman Act, 15 U.S.C. Sec.  1.
    23. Among other things, Defendants' conduct has and will continue 
to:
    (a) harm the competitive process by suppressing or eliminating 
competition in MMR management;
    (b) reduce the revenue received by universities; and
    (c) cause the quality of MMR management to decrease.
    24. These agreements are not reasonably necessary to accomplish any 
allegedly procompetitive goals. Any procompetitive benefits are 
outweighed by anticompetitive harm, and there are less restrictive 
alternatives by which Defendants would be able reasonably to achieve 
any procompetitive goals.

VII. REQUEST FOR RELIEF

    25. The United States requests:
    (a) that the aforesaid agreements not to compete against each other 
be adjudged to unreasonably restrain trade and to be illegal under 
Section 1 of the Sherman Act, 15 U.S.C. Sec. 1;
    (b) that Defendants be permanently enjoined from engaging in, 
enforcing, carrying out, or attempting to engage in, enforce, carry 
out, or renew the agreements in which Defendants are alleged to have 
engaged, or any other agreement having a similar purpose or effect, in 
violation of Section 1 of the Sherman Act, 15. U.S.C. Sec.  1;
    (c) that Defendants eliminate and cease enforcing all agreements 
not to compete and be prohibited from otherwise acting to restrain 
trade unreasonably;
    (d) that Defendants be required to institute an antitrust 
compliance program;
    (e) that the United States be awarded costs of this action; and
    (f) that the United States be awarded such other relief as the 
Court may deem just and proper.

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA:

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Makan Delrahim (D.C. Bar 457795),
Assistant Attorney General for Antitrust.

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Bernard A. Nigro Jr. (D.C. Bar 412357),
Deputy Assistant Attorney General for Antitrust.

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Patricia A. Bank,
Director of Civil Enforcement.

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Owen M. Kendler,
Chief, Media, Entertainment & Professional Services Section.
Lisa A. Scanlon,
Assistant Chief, Media, Entertainment & Professional Services 
Section.

Dated: February 14, 2019
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Adam C. Speegle,
Jeffrey G. Vernon (D.C. Bar 1009690),
Trial Attorneys, United States Department of Justice, 450 Fifth 
Street NW, Suite 4000, Washington, DC 20530, Telephone: (202) 616-
5932, Facsimile: (202) 514-7308, E-mail: Adam.Speegle@usdoj.gov

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Learfield 
Communications, LLC, IMG College, LLC and A-L Tier I LLC, 
Defendants.

 Civil Action No.: 1:19-cv-00389
Judge: Emmet G. Sullivan

[PROPOSED] FINAL JUDGMENT

    Whereas, Plaintiff, United States of America, filed its Complaint 
on January ------, 2019, alleging that Defendants violated Section 1 of 
the Sherman Act, 15 U.S.C. Sec.  1, the United States and Defendant, by 
their respective attorneys,

[[Page 6827]]

have consented to the entry of this Final Judgment without trial or 
adjudication of any issue of fact or law;
    AND WHEREAS, this Final Judgment does not constitute any evidence 
against or admission by any party regarding any issue of fact or law;
    And Whereas, the United States and Defendants agree to be bound by 
the provisions of this Final Judgment pending its approval by this 
Court;
    And Whereas, the Defendants agree to undertake certain actions and 
to refrain from engaging in certain forms of communications and joint 
activities with their competitors;
    Now Therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is ordered, adjudged, and decreed:

I. JURISDICTION

    This Court has jurisdiction over the subject matter and each of the 
parties to this action. The allegations in the Complaint arise under 
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec.  1. See 28 
U.S.C. Sec.  1331.

II. DEFINITIONS

    As used in this Final Judgment:
    A. ``Advertiser'' means an advertiser, sponsor, or corporate 
hospitality client or an agent or representative acting on behalf of an 
advertiser, sponsor, or corporate hospitality client.
    B. ``Agreement'' means any agreement, understanding, pact, 
contract, or arrangement, formal or informal, oral or written, between 
two or more Persons.
    C. ``Bid'' or ``Bidding'' means any offer or response to a Request 
for Proposal, Request for Submission, Request for Information, or any 
other request, either formal or informal, by a college, university, or 
athletic conference (including facilities owned or affiliated with such 
institutions) relating to a contract or other arrangement (including 
extensions or renewals of any existing contract or other arrangement) 
for the management, sale, commercialization, or other utilization of 
Multimedia Rights owned by the college, university, or athletic 
conference, or their owned or affiliated facilities.
    D. ``Communicate,'' ``Communicating,'' and ``Communication(s)'' 
means to provide, send, discuss, circulate, exchange, request, or 
solicit information, whether directly or indirectly, and regardless of 
the means by which it is accomplished, including orally or by written 
or recorded means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text messages, 
audio recordings, meetings, interviews, correspondence, exchange of 
written or recorded information, face-to-face meetings, or social 
media.
    E. ``Competitively Sensitive Information'' means any non-public 
information of Defendants or any Competitor regarding the purchase or 
sale of Multimedia Rights, including without limitation non-public 
information relating to negotiating positions, tactics, or strategy, 
pricing or pricing strategies, Bids or Bidding Strategies, intentions 
to Bid or not to Bid, decisions to Bid, whether a Bid was or was not 
submitted, costs, revenues, profits, or margins.
    F. ``Competitor'' means any Person (other than any Defendant) 
engaged in , or considering engaging in, the business of servicing, 
marketing, or commercializing Multimedia Rights or any Multimedia 
Rights contract, agreement, or opportunity. For the avoidance of doubt, 
colleges and universities are not ``Competitors.''
    G. ``Defendants'' mean Learfield, IMG College, and A-L Tier I LLC.
    H. ``IMG College'' means IMG College LLC headquartered in Winston-
Salem, North Carolina, its successors and assigns (including but not 
limited to A-L Tier I LLC), and its subsidiaries, partnerships, joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    I. ``Joint Venture'' means any collaboration, formed by written or 
oral agreement, created by and among any Defendant and Competitor 
relating to the management, sale, commercialization, or other 
utilization of Multimedia Rights or the Bidding for Multimedia Rights.
    J. ``Learfield'' means Learfield Communications, LLC, a Delaware 
limited liability company headquartered in Plano, Texas, its successors 
and assigns (including but not limited to A-L Tier I LLC), and its 
subsidiaries, partnerships, joint ventures, and their directors, 
officers, managers, agents and employees.
    K. ``Management'' means all directors, executives, and officers of 
a Defendant, or any other employee with management or supervisory 
responsibilities for a Defendant's Multimedia Rights business at or 
above the level of general manager at a college or university.
    L. ``Multimedia Rights'' means the sponsorship and advertising 
rights of a college or university intercollegiate athletic program, 
including but not limited to in-venue signage, television advertising, 
radio advertising, print advertising, digital advertising, and social 
media advertising.
    M. ``Multi-Property Sales'' means the promotion, marketing, or 
sales of Multimedia Rights in a package that includes more than one 
college, university, athletic conference, or venue.
    N. ``Person'' means any natural person, university, athletic 
conference, corporation, company, partnership, joint venture, firm, 
association, proprietorship, agency, board, authority, commission, 
office, or other business or legal entity, whether private or 
governmental.

III. APPLICABILITY

    This Final Judgment applies to IMG College, Learfield, and A-L Tier 
I LLC and other Persons in active concert or participation with them 
who receive actual notice of this Final Judgment by personal service or 
otherwise. This Final Judgment is fully enforceable, including by 
penalty of contempt, against all of the foregoing.

IV. PROHIBITED CONDUCT

    A. Defendants shall not, directly or indirectly:
    1. Communicate with any Competitor concerning any Competitively 
Sensitive Information relating to a Bid or Bidding;
    2. Agree, combine, conspire, or collude with any Competitor to 
participate in any joint Bid, collaborative Bid, cooperative Bid, or 
shared Bid;
    3. Agree with any Competitor that any Defendant or any Competitor 
will not Bid for any Multimedia Rights contract, opportunity, or 
arrangement; or
    4. Communicate, offer, invite, propose, encourage, facilitate, or 
suggest any joint Bid, collaborative Bid, cooperative Bid, or shared 
Bid with any Competitor.
    B. The prohibitions under Paragraph IV.A apply to Defendant's 
Communicating or agreeing to Communicate through any third-party agent 
or third-party consultant at Defendants' instruction, direction, or 
request.
    C. Without the prior written consent of the United States in its 
sole discretion, the Defendants shall not enter into, renew, or extend 
the term of any Joint Venture or conduct other business negotiations in 
conjunction with or on behalf of any Competitor relating to the 
management, sale, commercialization, or other utilization of Multimedia 
Rights. The Defendants may apply for prior written consent of the 
United States in its sole discretion for permission to conduct 
specified categories of collaborations or

[[Page 6828]]

sublicensing arrangements that would not reduce the number of 
Competitors Bidding.

V. CONDUCT NOT PROHIBITED

    A. Nothing in Section IV shall prohibit Defendants from 
Communicating with a college, university, athletic conference, venue, 
or any other Person (other than a Competitor) seeking to contract for 
the management, sale, commercialization, or other utilization of such 
Person's own Multimedia Rights.
    B. Nothing in Section IV shall prohibit Defendants from 
Communicating with an actual or prospective Advertiser.
    C. Nothing in Section IV shall prohibit Defendants from 
Communicating or transacting with their employees, officers, directors, 
or owners, including for the avoidance of doubt, WME Entertainment 
Parent and its subsidiaries and Atairos.
    D. Nothing in Section IV shall prohibit Defendants, after securing 
advice of counsel and in consultation with the Antitrust Compliance 
Officer appointed pursuant to Section VI infra, from Communicating with 
a Competitor concerning the formation of a Joint Venture that would be 
subject to the approval of the United States under Section IV(C) or a 
merger or acquisition, including transactions subject to the Hart-
Scott-Rodino Antitrust Improvements Act of 1976.
    E. Nothing in Section IV shall prohibit Defendants from 
Communicating with a Competitor concerning Multi-Property Sales.
    F. Nothing in Section IV shall prohibit Defendants from 
Communicating with a Competitor if (i) the Competitor was engaged in a 
Joint Venture with any Defendant as of July 1, 2018 and the 
Communications relate solely to the operation of the Joint Venture in 
which Competitor and the Defendant are engaged; or (ii) the Competitor 
and Defendant are engaged in a Joint Venture approved by the United 
States pursuant to Paragraph IV(C) including, in either case (i) or 
(ii), waiving or terminating any provisions of the applicable Joint 
Venture agreement. Defendants shall maintain copies of all written or 
recorded Communications of the type referenced in this Paragraph V(F) 
for five years or the duration of the Final Judgment, whichever is 
shorter, following the date of the creation of such Communication, and 
Defendants shall make such documents available to the United States 
upon request.
    G. Nothing in Section IV shall prohibit Defendant from engaging in 
conduct in accordance with the doctrine established in Eastern Railroad 
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 
(1961), United Mine Workers v. Pennington, 381 U.S. 657 (1965), and 
their progeny.
    H. The preceding Paragraphs V(A) through (G) are for the avoidance 
of doubt and do not create any implications as to the scope or 
interpretation of Section IV.

VI. REQUIRED CONDUCT

    A. Within ten days of entry of this Final Judgment, each Defendant 
shall appoint an Antitrust Compliance Officer who is an internal 
employee or Officer of the Defendant, and identify to the United States 
the Antitrust Compliance Officer's name, business address, telephone 
number, and email address. Within forty-five days of a vacancy in a 
Defendant's Antitrust Compliance Officer position, such Defendant shall 
appoint a replacement, and shall identify to the United States the 
Antitrust Compliance Officer's name, business address, telephone 
number, and email address. The Defendant's initial or replacement 
appointment of an Antitrust Compliance Officer is subject to the 
approval of the United States in its sole discretion. For the avoidance 
of doubt, a single Person employed by one Defendant may serve as the 
Antitrust Compliance Officer for all Defendants.
    B. The Antitrust Compliance Officer shall have, or shall retain 
outside counsel who has, the following minimum qualifications:
    1. be an active member in good standing of the bar in any U.S. 
jurisdiction; and
    2. at least five years' experience in legal practice, including 
experience with antitrust matters.
    C. The Antitrust Compliance Officer shall, directly or through the 
employees or counsel working at the Antitrust Compliance Officer's 
direction:
    1. within fourteen days of entry of the Final Judgment, furnish to 
each Defendant's Management a copy of this Final Judgment, the 
Competitive Impact Statement filed by the United States with the Court, 
and a cover letter in a form attached as Exhibit 1;
    2. within fourteen days of entry of the Final Judgment, in a manner 
to be devised by each Defendant and approved by the United States, 
provide each Defendant's Management reasonable notice of the meaning 
and requirements of this Final Judgment;
    3. annually brief each Defendant's Management on the meaning and 
requirements of this Final Judgment and the U.S. antitrust laws;
    4. brief any Person who succeeds a Person in any position 
identified in Paragraph VI(C)(3), within sixty days of such succession;
    5. obtain from each Person designated in Paragraph VI(C)(3) or 
VI(C)(4), within thirty days of that Person's receipt of the Final 
Judgment, a certification that the Person (i) has read and understands 
and agrees to abide by the terms of this Final Judgment; (ii) is not 
aware of any violation of the Final Judgment that has not been reported 
to the Antitrust Compliance Officer; and (iii) understands that failure 
to comply with this Final Judgment may result in an enforcement action 
for civil or criminal contempt of court;
    6. annually communicate to each Defendant's Management that they 
may disclose to the Antitrust Compliance Officer, without reprisal for 
such disclosure, information concerning any violation or potential 
violation of this Final Judgment or the U.S. antitrust laws by the 
Defendant; and
    7. maintain for five years or until expiration of the Final 
Judgment, whichever is shorter, a copy of all materials required to be 
issued under Paragraph VI(C), and furnish them to the United States 
within ten days if requested to do so, except documents protected under 
the attorney-client privilege or the attorney work-product doctrine. 
For all materials required to be furnished under Paragraph VI(C) which 
a Defendant claims are protected under the attorney-client privilege or 
the attorney work-product doctrine, Defendant shall furnish to the 
United States a privilege log.
    D. Each Defendant shall:
    1. upon Management or the Antitrust Compliance Officer learning of 
any violation or potential violation of any of the terms and conditions 
contained in this Final Judgment, (i) promptly take appropriate action 
to investigate, and in the event of a violation, terminate or modify 
the activity so as to comply with this Final Judgment, (ii) maintain 
all documents related to any violation or potential violation of this 
Final Judgment for a period of five years or the duration of this Final 
Judgment, whichever is shorter, and (iii) maintain, and furnish to the 
United States at the United States' request, a log of (a) all such 
documents and documents for which Defendant claims protection under the 
attorney-client privilege or the attorney work product doctrine, and 
(b) all potential and actual violations, even if no documentary 
evidence regarding the violations exist;
    2. within thirty days of Management or the Antitrust Compliance 
Officer learning of any such violation or potential violation of any of 
the terms and conditions contained in this Final

[[Page 6829]]

Judgment, file with the United States a statement describing in detail 
any violation or potential violation of any of the terms and conditions 
contained in this Final Judgment, which shall include a description of 
any Communications constituting the violation or potential violation, 
including the date and place of the Communication, the Persons 
involved, and the subject matter of the Communication;
    3. establish a whistleblower protection policy, which provides that 
any employee may disclose, without reprisal for such disclosure, to the 
Antitrust Compliance Officer information concerning any violation or 
potential violation by the Defendant of this Final Judgment or U.S. 
antitrust laws;
    4. have its CEO, General Counsel or Chief Legal Officer certify in 
writing to the United States annually on the anniversary date of the 
entry of this Final Judgment that Defendant has complied with the 
provisions of this Final Judgment; and
    5. maintain and produce to the United States upon request: (i) a 
list identifying all employees having received the annual antitrust 
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii) 
copies of all materials distributed as part of the annual antitrust 
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all 
materials requested to be produced under this Paragraph VI(D)(5) for 
which a Defendant claims is protected under the attorney-client 
privilege or the attorney work-product doctrine, Defendant shall 
furnish to the United States a privilege log.
    6. file with the United States six months, twelve months, and 
twenty-four months after entry of this Final Judgment a report 
describing in detail the steps it has taken to (a) comply with the 
terms of this Final Judgement and (b) implement the provisions of 
Section VI.
    E. For the avoidance of doubt, the term ``potential violation'' as 
used in Paragraph VI(D) does not include the discussion of future 
conduct.
    F. If a Defendant acquires a Person in the business of the 
management, sale, commercialization, or other utilization of Multimedia 
Rights after entry of this Final Judgment, this Section VI will not 
apply to that acquired Person and the Management of that acquired 
Person until 120 days after closing of the acquisition of that acquired 
Person.

VII. COMPLIANCE INSPECTION

    A. For the purposes of determining or securing compliance with this 
Final Judgment or of any related orders, or of determining whether the 
Final Judgment should be modified, and subject to any legally 
recognized privilege, from time to time authorized representatives of 
the United States Department of Justice, including consultants and 
other Persons retained by the United States, shall, upon written 
request of an authorized representative of the Assistant Attorney 
General in charge of the Antitrust Division, and on reasonable notice 
to Defendants, be permitted:
    1. to access during Defendants' office hours to inspect and copy, 
or at the option of the United States, to require Defendants to provide 
electronic or hard copies of all books, ledgers, accounts, records, 
data, and documents in the possession, custody, or control of 
Defendants, relating to any matters that are the subject of this Final 
Judgment, not protected by the attorney-client privilege or the 
attorney work product doctrine; and
    2. to interview, either informally or on the record, Defendants 
officers, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by Defendants; and
    3. to obtain from Defendants written reports or responses to 
written interrogatories, of information not protected by the attorney-
client privilege or attorney work product doctrine, under oath if 
requested, relating to any matters that are the subject of this Final 
Judgment as may be requested.
    B. No information or documents obtained by the means provided in 
this Section VII shall be divulged by the United States to any Person 
other than an authorized representative of the executive branch of the 
United States, except in the course of legal proceedings to which the 
United States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or for law 
enforcement purposes, or as otherwise required by law.
    C. If at the time information or documents are furnished by 
Defendants to the United States, a Defendant represents and identifies 
in writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(1)(G) of the 
Federal Rules of Civil Procedure, and that Defendant marks each 
pertinent page of such material, ``Subject to claim of protection under 
Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,'' then the 
United States shall give that Defendant ten calendar days' notice prior 
to divulging such material in any legal proceeding (other than a grand 
jury proceeding).

VIII. RETENTION OF JURISDICTION

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

IX. ENFORCEMENT OF FINAL JUDGMENT

    A. The United States retains and reserves all rights to enforce the 
provisions of this Final Judgment, including its right to seek an order 
of contempt from this Court. Defendants agree that in any civil 
contempt action, any motion to show cause, or any similar civil action 
brought by the United States regarding an alleged violation of this 
Final Judgment, the United States may establish a violation of the 
decree and the appropriateness of any remedy therefor by a 
preponderance of the evidence, and Defendants waive any argument that a 
different standard of proof should apply.
    B. The Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws and to restore all 
competition the United States alleged was harmed by the challenged 
conduct. Defendants agree that they may be held in contempt of, and 
that the Court may enforce, any provision of this Final Judgment that, 
as interpreted by the Court in light of these procompetitive principles 
and applying ordinary tools of interpretation, is stated specifically 
and in reasonable detail, whether or not it is clear and unambiguous on 
its face. In any such interpretation, the terms of this Final Judgment 
should not be construed against either party as the drafter.
    C. In any enforcement proceeding in which the Court finds that 
Defendants have violated this Final Judgment, the United States may 
apply to the Court for a one-time extension of this Final Judgment, 
together with such other relief as may be appropriate. In connection 
with any successful effort by the United States to enforce this Final 
Judgment against Defendants, whether litigated or resolved prior to 
litigation, Defendants agree to reimburse the United States for the 
fees and expenses of its attorneys, as well as any other costs 
including experts' fees, incurred in connection with that enforcement 
effort,

[[Page 6830]]

including in the investigation of the potential violation.

X. EXPIRATION OF FINAL JUDGMENT

    Unless this Court grants an extension, this Final Judgment shall 
expire ten years from the date of its entry, except that after seven 
years from the date of its entry, this Final Judgment may be terminated 
upon notice by the United States to the Court and Defendants that the 
continuation of the Final Judgment no longer is necessary or in the 
public interest.

XI. NOTICE

    For purposes of this Final Judgment, any notice or other 
communication required to be provided to the United States shall be 
sent to the person at the address set forth below (or such other 
addresses as the United States may specify in writing to Defendants):

Chief
Media, Entertainment, and Professional Services Section
U.S. Department of Justice
Antitrust Division
450 Fifth Street, NW, Suite 4000
Washington, D.C. 20530

XII. PUBLIC INTEREST DETERMINATION

    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. Sec.  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.

IT IS SO ORDERED by the Court, this _ day of ___, 201_.

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

-----------------------------------------------------------------------
United States District Judge

EXHIBIT 1

[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]

    Re: Prohibitions against Working with Competitors on MMR Bids

Dear [XX]:

    I provide you this notice regarding a judgment recently entered by 
a federal judge in Washington, DC prohibiting communicating and 
otherwise working with competitors when bidding on colleges and 
universities' multimedia rights contracts.
    The judgment applies to our company and all of its employees, 
including you, so it is important that you understand the obligations 
it imposes on us. [CEO Name] has asked me to let each of you know that 
[s/he] expects you to take these obligations seriously and abide by 
them.
    The judgment prohibits us from communicating with other multimedia 
rights firms about bidding on RFPs or other responses to colleges and 
universities seeking multimedia rights management services. The 
judgment also prevents us from jointly bidding, or seeking to bid 
jointly, for any multimedia rights contracts with other companies or 
from forming multimedia rights joint ventures. There are limited 
exceptions to these restrictions, which are listed in the judgment. The 
company will provide briefing on legitimate and illegitimate actions. 
You must consult with me if you have any questions on whether a 
particular circumstance is subject to an exception under the judgment.
    A copy of the judgment is attached. Please read it carefully and 
familiarize yourself with its terms. The judgment, rather than the 
above description, is controlling. If you have any questions about the 
judgment or how it affects your work activities, please contact me as 
soon as possible.
    Please sign and return the attached Employee Certification to 
[Defendant's Antitrust Compliance Officer] within thirty days of your 
receipt of this letter. Thank you for your cooperation.

Sincerely,

[Defendant's Antitrust Compliance Officer]

Employee Certification

    I, ____ [name], ___ [position] at ___ [station or location] do 
hereby certify that I (i) have read and understand, and agree to abide 
by, the terms of the Final Judgment; (ii) am not aware of any violation 
of the Final Judgment that has not been reported to [Defendant]; and 
(iii) understand that my failure to comply with this Final Judgment may 
result in an enforcement action for civil or criminal contempt of 
court.

-----------------------------------------------------------------------
Name:
Date:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Learfield 
Communications, LLC, IMG College, LLC, and A-L Tier I LLC, 
Defendants.
Civil Action No.: 1:19-cv-00389
Judge: Emmet G. Sullivan

COMPETITIVE IMPACT STATEMENT

    Plaintiff United States of America (``United States''), pursuant to 
Section 2(b) of the Antitrust Procedures and Penalties Act, 15 U.S.C. 
Sec.  16(b)-(h) (``APPA'' or ``Tunney Act''), files this Competitive 
Impact Statement relating to the proposed Final Judgment against 
Defendants IMG College (``IMG''), Learfield Communications, LLC 
(``Learfield''), and A-L Tier I LLC (collectively ``Defendants''), 
submitted for entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    On February 14, 2019, the United States filed a civil antitrust 
complaint alleging that Defendants agreed or otherwise coordinated to 
limit competition between themselves and between themselves and smaller 
competitors. The Complaint alleges those agreements and that 
coordination unlawfully restrain trade in the multimedia rights 
(``MMR'') management market under Section 1 of the Sherman Act, 15 
U.S.C. Sec.  1. The Complaint seeks injunctive relief to enjoin the 
Defendants from engaging in similar conduct in the future.
    Along with the Complaint, the United States filed a proposed Final 
Judgment. The proposed Final Judgment prohibits sharing of 
competitively sensitive information, agreeing not to bid or agreeing to 
jointly bid, and, absent approval from the United States, entering into 
or extending MMR joint ventures. It also requires Defendants to 
implement an antitrust compliance training program.
    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA, unless 
the United States withdraws its consent. Entry of the proposed Final 
Judgment would terminate this action, except that the Court would 
retain jurisdiction to construe, modify, or enforce the provisions of 
the proposed Final Judgment and to punish violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. Industry Background

    Millions of Americans enjoy college sports each year. Advertisers 
often try to reach college sports fans by advertising during games, 
promoting their products at college sports events, and sponsoring 
various aspects of college sports events and venues. Multimedia rights 
management companies transform

[[Page 6831]]

universities' multimedia rights into revenue. Multimedia rights firms 
do this by selling advertising, promotional, and sponsorship 
opportunities associated with the universities' sports programs to 
companies and other groups trying to reach the universities' sports 
fans. The multimedia rights can include space on videoboards and 
scoreboards in football stadiums and basketball arenas, space on 
printed game programs, commercial time during radio broadcasts of 
games, commercial time during radio and television broadcasts of 
coaches' shows, promotional contests during games, and various other 
methods of reaching fans.

B. Coordination in the MMR Industry

    The Complaint alleges that IMG and Learfield have agreed or 
otherwise coordinated to limit competition between one another and 
between themselves and smaller competitors. At times, the coordination 
between IMG and Learfield has taken the form of joint ventures at 
specific universities. Under the guise of legitimate business 
arrangements, these joint ventures further Defendants' interests over 
schools', denying colleges the benefits of competition with little, if 
anything, in return. With varying degrees of success, IMG and Learfield 
have also attempted to wield the joint venture structure as a way to 
co-opt smaller competitors. Additionally, when IMG and Learfield have 
unwound established joint ventures at certain universities, the two 
firms have crafted non-compete agreements that continue to limit 
competition.
    The Complaint also alleges that, even in the absence of a so-called 
joint venture or non[dash]compete agreement, IMG and Learfield have 
sought ways to undermine competition, including employing an informal 
policing mechanism to enforce an understanding not to compete. Efforts 
to suppress competition have also extended to employee disputes and 
legal settlements.

III. Explanation of the Proposed Final Judgment

    The provisions of the proposed Final Judgment closely track the 
relief sought in the Complaint and are intended to provide prompt, 
certain, and effective remedies that will ensure that Defendants and 
their employees and agents will not impede competition by agreeing not 
to compete, entering into unapproved joint ventures, or sharing 
competitively sensitive information with their competitors. The 
requirements and prohibitions in the proposed Final Judgment will 
terminate Defendants' illegal conduct, prevent recurrence of the same 
or similar conduct, and ensure that Defendants establish an antitrust 
compliance program. The proposed Final Judgment protects competition 
and consumers by putting a stop to the anticompetitive conduct alleged 
in the Complaint.

A. Prohibited Conduct

    Section IV of the proposed Final Judgement prohibits Defendants 
from, directly or indirectly, communicating competitively sensitive 
information related to bidding with any MMR competitor.
    Section IV also prohibits Defendants from agreeing with an MMR 
competitor not to bid, or to bid jointly, on an MMR contract, including 
invitations or suggestions to bid jointly Paragraph IV(C) outlines a 
process under which Defendants may seek approval from the United States 
to form an MMR joint venture, but otherwise prohibits entering into, 
renewing, or extending the term of any current or future MMR joint 
venture.

B. Conduct Not Prohibited

    The proposed Final Judgment does not prohibit Defendants from 
undertaking activities necessary to win MMR contracts on their own, 
selling multimedia rights to advertisers, or creating packages for 
advertisers to advertise across MMR properties. Paragraph V(A) makes 
clear that the proposed Final Judgment does not prohibit Defendants 
from communicating with colleges, universities, athletic conferences, 
or venues seeking to enter into an MMR contract. Paragraph V(B) 
confirms Defendants are permitted to communicate with actual or 
prospective advertisers, and Paragraph V(E) allows Defendants to 
communicate with a competitor for the purpose of putting together 
multi-property advertiser packages. Paragraph V(G) confirms that the 
proposed Final Judgment does not prohibit petitioning conduct protected 
by the Noerr-Pennington doctrine.
    Paragraphs V(D) and V(F) permit certain conduct related to joint 
ventures. Specifically, Paragraph V(D) allows Defendants to have 
initial discussions with a competitor about the formation of a joint 
venture that would then be subject to approval by the United States. 
Paragraph V(F) makes clear that Defendants may communicate with 
competitors about the operation of a joint venture established on or 
before July 1, 2018.

C. Antitrust Compliance Obligations

    Under Section VI of the proposed Final Judgment, Defendants must 
designate an Antitrust Compliance Officer who will be responsible for 
implementing training and antitrust compliance programs and ensuring 
compliance with the Final Judgment. Among other duties, the Antitrust 
Compliance Officer will be required to distribute copies of the Final 
Judgment and ensure that training on the Final Judgment and the 
antitrust laws is provided to Defendants' management. Section VI also 
requires Defendants to establish an antitrust whistleblower policy and 
remedy and report violations of the Final Judgment. Under Paragraph 
VI(D)(4), Defendants, through their CEO, General Counsel, or Chief 
Legal Officer, must certify annual compliance with the Final Judgment. 
This compliance program is necessary in light of Defendants' 
anticompetitive conduct.

D. Enforcement and Expiration of the Final Judgment

    The proposed Final Judgment contains provisions designed to promote 
compliance and make the enforcement of Division consent decrees as 
effective as possible. Paragraph IX(A) provides that the United States 
retains and reserves all rights to enforce the provisions of the 
proposed Final Judgment, including its rights to seek an order of 
contempt from the Court. Defendants have agreed that in any civil 
contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of the 
Final Judgment, the United States may establish the violation and the 
appropriateness of any remedy by a preponderance of the evidence and 
that Defendants have waived any argument that a different standard of 
proof should apply. This provision aligns the standard for compliance 
obligations with the standard of proof that applies to the underlying 
offense that the compliance commitments address.
    Paragraph IX(B) provides additional clarification regarding the 
interpretation of the provisions of the proposed Final Judgment. The 
proposed Final Judgment was drafted to restore competition the United 
States alleged was harmed by Defendants' challenged conduct. Defendants 
agree that they will abide by the proposed Final Judgment, and that 
they may be held in contempt of this Court for failing to comply with 
any provision of the proposed Final Judgment that is stated 
specifically and in reasonable detail, whether or not it is clear and 
unambiguous on its face, and as interpreted in light of this 
procompetitive purpose.
    Paragraph IX(C) further provides that, should the Court find in an 
enforcement

[[Page 6832]]

proceeding that Defendants have violated the Final Judgment, the United 
States may apply to the Court for a one-time extension of the Final 
Judgment, together with such other relief as may be appropriate. In 
addition, in order to compensate American taxpayers for any costs 
associated with the investigation and enforcement of violations of a 
proposed Final Judgment, Paragraph IX(C) provides that in any 
successful effort by the United States to enforce a Final Judgment 
against Defendants, whether litigated or resolved before litigation, 
Defendants agree to reimburse the United States for any attorneys' 
fees, experts' fees, or costs incurred in connection with any 
enforcement effort, including the investigation of the potential 
violation.
    Finally, Section X of the proposed Final Judgment provides that the 
Final Judgment shall expire ten years from the date of its entry, 
except that after seven years from the date of its entry, the Final 
Judgment may be terminated upon notice by the United States to the 
Court and Defendants that the continuation of the Final Judgment is no 
longer necessary or in the public interest.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. Sec.  15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorneys' fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 
Sec.  16(a), the proposed Final Judgment has no prima facie effect in 
any subsequent private lawsuit that may be brought against Defendants.

V. Procedures Available for Modification of the Proposed Final 
Judgments

    The United States and Defendants have stipulated that the Court may 
enter the proposed Final Judgment after compliance with the provisions 
of the APPA, provided that the United States has not withdrawn its 
consent. The APPA conditions entry upon the Court's determination that 
the proposed Final Judgment is in the public interest.
    The APPA provides a period of at least sixty 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 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 Department of Justice, which remains 
free to withdraw its consent to the proposed Final Judgment at any time 
before the Court's entry of judgment. The comments and the response of 
the United States will be filed with the Court. In addition, comments 
will be posted on the U.S. Department of Justice, Antitrust Division's 
website and, under certain circumstances, published in the Federal 
Register.
    Written comments should be submitted to:

Owen M. Kendler
Chief, Media, Entertainment & Professional Services Section
Antitrust Division
United States Department of Justice
450 5th Street, N.W., Suite 4000
Washington, DC 20530

    Under Section VIII, the proposed Final Judgment provides that the 
Court retains jurisdiction over this action, and the parties may apply 
to the Court for any order necessary or appropriate for the 
modification, interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, seeking injunctive relief against Defendants' conduct 
through a full trial on the merits. The United States is satisfied, 
however, that the relief sought in the proposed Final Judgment will 
terminate the anticompetitive conduct alleged in the Complaint and more 
quickly restore the benefits of competition. Thus, the proposed Final 
Judgment would achieve the relief the United States might have obtained 
through litigation, but avoids the time, expense, and uncertainty of a 
full trial on the merits.

VII. Standard of Review Under the APPA for the Proposed Final Judgments

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a 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. Sec.  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. 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) 
(explaining that the ``court's inquiry is limited'' in Tunney Act 
settlements); United States v. InBev N.V./S.A., No. 08-1965 (JR), 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'').
    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 in the government's complaint, whether the decree is 
sufficiently clear, whether its 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.,

[[Page 6833]]

152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 
84787, at *3. Instead:

[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).\1\

    \1\ See also 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'').
---------------------------------------------------------------------------

    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 74-75 (noting that a court should not reject the proposed remedies 
because it believes others are preferable and that room must be made 
for the government to grant concessions in the negotiation process for 
settlements); 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''). The ultimate question is 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.' '' Microsoft, 56 F.3d at 1461 (quoting United States v. 
Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990)). 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.
    In its 2004 amendments,\2\ 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. Sec.  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 explicitly wrote into the statute 
what Congress intended when it first 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 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. 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. 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''); S. Rep. No. 93-298 93d 
Cong., 1st Sess., at 6 (1973) (``Where the public interest can be 
meaningfully evaluated simply on the basis of briefs and oral 
arguments, that is the approach that should be utilized.'').
---------------------------------------------------------------------------

    \2\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for a court to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
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).
---------------------------------------------------------------------------

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.

Dated: February 14, 2019

Respectfully submitted,
-----------------------------------------------------------------------
Adam C. Speegle
Trial Attorney
U.S. Department of Justice
Antitrust Division
Media, Entertainment, and Professional Services Section
450 Fifth Street, N.W., Suite 4000
Washington, DC 20530
Phone: (202) 616-5932
Facsimile: (202) 514-7308
Email: Adam.Speegle@usdoj.gov.

[FR Doc. 2019-03478 Filed 2-27-19; 8:45 am]
 BILLING CODE 4410-11-P