United States v. Third Point Offshore Fund, Ltd., et al.: Proposed Final Judgment and Competitive Impact Statement, 48639-48647 [2019-19919]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 84, Number 179 (Monday, September 16, 2019)]
[Notices]
[Pages 48639-48647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19919]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Third Point Offshore Fund, Ltd., et al.: 
Proposed Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Stipulation, and Competitive Impact Statement have been filed with the 
United States District Court for the District of Columbia in United 
States of America v. Third Point Offshore Fund, Ltd., et al., Civil 
Action No. 1:19-cv-02593. On August 28, 2019, the United States filed a 
Complaint alleging that Third Point Offshore Fund, Ltd., Third Point 
Ultra Ltd., Third Point Partners Qualified L.P., and Third Point LLC 
violated the notice and waiting period requirements of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, 15 U.S.C. 18a (``HSR Act''), 
with respect to their acquisition of voting securities of DowDuPont 
Inc. The proposed Final Judgment, filed at the same time as the 
Complaint, requires the defendants to pay a civil penalty of $609,810 
and be subject to an injunction prohibiting the defendants from 
undertaking similar acquisitions without complying with notification 
and waiting period requirements of the HSR Act.
    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 Kenneth A. Libby, 
Special Attorney, United States, c/o Federal Trade Commission, 600 
Pennsylvania Avenue NW, Washington, DC 20580 (telephone: (202)326-2694; 
email: [email protected]).

Patricia A. Brink,
Director of Civil Enforcement.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, 450 Fifth Street NW, Washington, DC 
20530, Plaintiff, v. Third Point Offshore Fund, LTD., c/o Cayman 
Corporate Center, 27 Hospital Road, George Town, Grand Cayman KY1-9008, 
Cayman Islands, Third Point Ultra LTD., c/o Maples Corporate Services 
(BVI) Ltd., Kingston Chambers, P.O. Box 173, Road Town, Tortola, 
British Virgin Islands, Third Point Partners Qualified L.P., 
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 
19801, and, Third Point LLC, 390 Park Avenue, 19\th\ Floor, New York, 
NY 10022, Defendants.

Civil Action No. 1:19-cv-02593-CJN

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

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

INTRODUCTION

    1. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 
U.S.C. Sec.  18a (``HSR Act'' or ``Act'') is an essential part of 
modern antitrust enforcement. It requires the buyer and the seller of 
voting securities or assets in excess of a certain value to notify the 
Department of Justice and the Federal Trade Commission and to observe a 
waiting period prior to consummating the acquisition. This waiting 
period provides the federal antitrust agencies with an opportunity to 
investigate and to seek an injunction to prevent the consummation of 
acquisitions that are likely to be anticompetitive.

[[Page 48640]]

    2. Each Defendant Fund violated the HSR Act's notice and waiting 
requirements when it acquired voting securities of DowDuPont Inc. 
(``DowDuPont'') on August 31, 2017, as a result of the consolidation of 
Dow Chemical Company (``Dow'') and E.I du Pont de Nemours and Company 
(``DuPont'').
    3. The Court should assess an appropriate civil penalty and 
injunctive relief for these violations of the HSR Act's requirements.

JURISDICTION AND VENUE

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

THE DEFENDANTS

    6. Defendant Third Point Offshore is an offshore fund organized 
under the laws of the Cayman Islands with its registered office at 
Walkers Corporate Limited, Corporate Centre, 27 Hospital Road, George 
Town, Grand Cayman KY1-9008, Cayman Islands.
    7. Defendant Third Point Ultra is an offshore fund organized under 
the laws of the British Virgin Islands with its registered office at 
Maples Corporate Services (BVI) Ltd., Kingston Chambers, P.O. Box 173, 
Road Town, Tortola, British Virgin Islands. The Investment Manager of 
Defendant Third Point Ultra has its office at 390 Park Avenue, 19th 
Floor, New York, NY 10022.
    8. Defendant Third Point Partners is a limited partnership 
organized under the laws of the State of Delaware, with its principal 
place of business at Corporation Trust Center, 1209 Orange Street, 
Wilmington, DE 19801.
    9. Defendant Third Point LLC is a limited liability company 
organized under the laws of the State of Delaware, with its principal 
place of business at 390 Park Avenue, 19th Floor, New York, NY 10022. 
Defendant Third Point LLC makes all the investment decisions on behalf 
of the Defendant Funds, including deciding whether to file 
notifications pursuant to the HSR Act and preparing the notification 
forms on behalf of each of the Defendant Funds.
    10. Defendants are engaged in commence, or in activities affecting 
commerce, within the meaning of Section 1 of the Clayton Act, 15 U.S.C. 
Sec.  12, and Section 7A(a)(1) of the Clayton Act, 15 U.S.C. 
Sec. 18a(a)(1). At all times relevant to this Complaint, each Defendant 
had total assets in excess of $16.2 million.

OTHER ENTITIES

    11. DowDupont is a corporation organized under the laws of the 
State of Delaware with its principal place of business at 2030 Dow 
Center, Midland, MI 48674. DowDuPont is engaged in commerce, or in 
activities affecting commerce, within the meaning of Section 1 of the 
Clayton Act, 15 U.S.C. Sec.  12, and Section 7A(a)(1) of the Clayton 
Act, 15 U.S.C. Sec. 18a(a)(1). At all times relevant to this Complaint, 
DowDuPont had annual net sales in excess of $161.5 million.

THE HART-SCOTT-RODINO ACT AND RULES

    12. 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. Sec.  18a(a) and (b). 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 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.
    13. The HSR Act's notification and waiting period requirements 
apply to acquisitions that meet the HSR Act's thresholds, which are 
adjusted annually. During the period of 2017 relevant to this 
Complaint, the HSR Act's reporting and waiting period requirements 
applied to transactions that would result in the acquiring person 
holding more than $80.8 million of voting securities, non-corporate 
interests, or assets, if certain size of person tests were met, except 
for certain exempted transactions.
    14. Pursuant to Section 7A(d)(2) of the HSR Act, 15 U.S.C. Sec.  
18a(d)(2), the Federal Trade Commission promulgated rules to carry out 
the purpose of the HSR Act. 16 C.F.R. Sec. Sec.  801-03 (``HSR 
Rules''). The HSR Rules, among other things, define terms contained in 
the HSR Act.
    15. Section 801.2(a) of the HSR Rules, 16 C.F.R. Sec.  801.2(a), 
provides that ``[a]ny person which, as a result of an acquisition, will 
hold voting securities'' is deemed an ``acquiring person.''
    16. Section 801.1(a)(1) of the HSR Rules, 16 C.F.R. Sec.  
801.1(a)(1), provides that the term ``person'' means ``an ultimate 
parent entity and all entities which it controls directly or 
indirectly.''
    17. Section 801.1(a)(3) of the HSR Rules, 16 C.F.R. Sec.  
801.1(a)(3), provides that the term ``ultimate parent entity'' means 
``an entity which is not controlled by any other entity.''
    18. Section 801.2(d)(1)(i) of the HSR Rules, 16 C.F.R. Sec.  
801.2(d)(1)(i), provides that ``mergers and consolidations are 
transactions subject to the act and shall be treated as acquisitions of 
voting securities.''
    19. Section 801.13(a) of the HSR Rules, 16 C.F.R. Sec.  801.13(a), 
provides that ``all voting securities of the issuer which will be held 
by the acquiring person after the consummation of an acquisition shall 
be deemed voting securities held as a result of the acquisition.''
    20. Section 802.21 of the HSR Rules, 16 C.F.R. Sec.  802.21, 
provides that, when a person files under the HSR Act to acquire voting 
securities from an issuer and observes the waiting period, that person 
may acquire additional voting securities of the same issuer for five 
years after the end of the waiting period so long as it does not exceed 
any higher threshold as a result of the combined purchases.
    21. Section 7A(g)(1) of the Clayton Act, 15 U.S.C. Sec.  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. For violations occurring on or after November 2, 2015, 
and assessed after August 1, 2016, the maximum amount of civil penalty 
is $40,000 per day, pursuant to the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015, Pub. L. 114-74, Sec.  701 
(further amending the Federal Civil Penalty Inflation Adjustment Act of 
1990, 28 U.S.C. Sec.  2461 note), and Federal Trade Commission Rule 
1.98, 16 C.F.R. Sec.  1.98, 81 Fed. Reg. 42,476 (June 30, 2016). As of 
January 22, 2018, the maximum penalty amount was further increased to 
$41,484 per day for civil penalties assessed after that date. 83 Fed. 
Reg. 2903 (Jan. 22, 2018).
    22. Section 7A(g)(2) of the Clayton Act, 15 U.S.C. Sec.  18a(g)(2), 
provides that if any person fails substantially to comply with the 
notification requirement under the HSR Act, a

[[Page 48641]]

district court may grant such equitable relief as the court in its 
discretion determines necessary or appropriate, upon application of the 
Federal Trade Commission or the Assistant Attorney General.

VIOLATIONS ALLEGED

    23. Plaintiff alleges and incorporates paragraphs 1 through 22 as 
if set forth fully herein.
    24. On December 11, 2015, Dow and DuPont entered into a Merger 
Agreement pursuant to which Dow and DuPont would consolidate into a 
single company, to be called DowDuPont.
    25. On June 10, 2106, Dow and DuPont issued their Final Proxy 
Statement/Prospectus for the consolidation. That document disclosed 
that, upon completion of the transaction, Dow and DuPont would cease to 
have their common stock publicly traded and that shareholders would own 
shares in DowDuPont and would not directly own any shares of Dow or 
DuPont.
    26. On June 15, 2017, Dow and DuPont issued a joint press release 
stating that they had received antitrust clearance from the U.S. 
Department of Justice and that the transaction was on track to close in 
August 2017.
    27. On August 4, 2017, Dow and DuPont issued a joint press release 
setting a closing date of August 31, 2017 for the transaction. The 
press release also stated that shares of Dow and DuPont would cease 
trading at the close of the New York Stock Exchange on August 31 and 
shares of DowDuPont will begin trading on September 1, 2017.
    28. As of August 31, 2017, Defendant Third Point Offshore held 
6,446,300 voting securities of Dow, Defendant Third Point Ultra held 
4,376,813 voting securities of Dow, and Defendant Third Point Partners 
held 2,540,700 voting securities of Dow.
    29. On August 31, 2017, Dow and DuPont completed the consolidation 
pursuant to the Merger Agreement of December 11, 2015, as amended on 
March 31, 2017. As a result of the consolidation, all holders of Dow 
and DuPont voting securities received voting securities of DowDuPont.
    30. On August 31, 2017, each Defendant Fund received voting 
securities of DowDuPont valued in excess of $80.8 million. Defendant 
Third Point Offshore acquired 6,446,300 voting securities of DowDuPont 
valued at approximately $429.6 million. Defendant Third Point Ultra 
acquired 4,376,813 voting securities of DowDuPont valued at 
approximately $291.7 million. Defendant Third Point Partners acquired 
2,540,700 voting securities of DowDuPont valued at approximately $169.3 
million.
    31. Each Defendant Fund is its own ultimate parent entity within 
the meaning of the HSR Rules and had its own obligation to comply with 
the notification and waiting period requirements of the HSR Act and the 
HSR Rules.
    32. The transactions described in Paragraph 30 were subject to the 
notification and waiting periods of the HSR Act and the HSR Rules. The 
HSR Act and HSR Rules in effect during the time period relevant to this 
proceeding required that each Defendant Fund file a notification and 
report form with the Department of Justice and the Federal Trade 
Commission and observe a waiting period before acquiring and holding an 
aggregate total amount of voting securities of DowDuPont in excess of 
$80.8 million.
    33. Previously, on April 7, 2014, each Defendant Fund had filed 
under the HSR Act to acquire voting securities of Dow and had observed 
the waiting period. Section 802.21 of the HSR Rules does not exempt the 
Defendant Funds' acquisitions of DowDuPont voting securities because 
DowDuPont is not the same issuer as Dow within the meaning of the HSR 
Rules. Among other things, for example, DowDuPont competes in 
additional lines of business from those in which Dow competed.
    34. Although required to do so, each Defendant Fund failed to file 
and observe the waiting period prior to acquiring DowDuPont voting 
securities.
    35. Defendant Third Point LLC had the power and authority to file a 
notification under the HSR Act on behalf of each of the Defendant 
Funds.
    36. On November 8, 2017, each Defendant Fund filed a notification 
and report form under the HSR Act with the Department of Justice and 
the Federal Trade Commission reflecting their acquisitions of DowDuPont 
voting securities. The waiting period relating to these filings expired 
on December 8, 2017.
    37. Each Defendant Fund was in violation of the HSR Act each day 
during the period beginning on August 31, 2017, and ending on December 
8, 2017.
    38. Defendants are currently under a court decree, also in the 
District Court of the District of Columbia, resulting from allegations 
that they previously violated the HSR Act in connection with 
acquisitions of voting securities of Yahoo! Inc. (``Yahoo''). 
Specifically, on August 24, 2015, the United States filed a complaint 
for equitable relief alleging that Defendants' acquisitions of Yahoo 
voting securities in August and September of 2011 violated the HSR Act. 
At the same time, the United States filed a Stipulation signed by 
Defendants and a proposed Final Judgment that included provisions 
imposing certain injunctive relief against Defendants, including the 
requirement that Defendants maintain a compliance program. That Final 
Judgment was entered by that court on December 18, 2015. U.S. v. Third 
Point Offshore Fund, Ltd., et al., Case 1:15-CV-01366.

REQUEST FOR RELIEF

    Wherefore, the Plaintiff requests:
    1. That the Court adjudge and decree that each Defendant Fund 
violated the HSR Act, 15 U.S.C. Sec.  18a, as alleged in this Complaint 
and that each Defendant Fund was in violation of the Act on each day of 
the period from August 31, 2017, through December 8, 2017;
    2. That the Court order each Defendant Fund to pay to the United 
States an appropriate civil penalty as provided by the HSR Act, 15 
U.S.C. Sec.  18a(g)(1), 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, 28 U.S.C. Sec.  2461 note), and Federal Trade Commission Rule 
1.98, 16 C.F.R. Sec.  1.98, 84 FR 3980 (Feb. 14, 2019);
    3. That the Court adjudge and decree that Defendant Third Point LLC 
had the power and authority to prevent the violations by the Defendant 
Funds and that relief against Third Point LLC is necessary and 
appropriate in order to ensure future compliance with the HSR Act by 
the Defendant Funds;
    4. That the Court issue an appropriate injunction preventing future 
violations by Defendants as provided by the HSR Act, 15 U.S.C. Sec.  
18a(g)(2);
    5. That the Court order such other and further relief as the Court 
may deem just and proper; and
    6. That the Court award the Plaintiff its costs of this suit.

Dated: 8/28/19

FOR THE PLAINTIFF UNITED STATES OF AMERICA:

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Makan Delrahim
Assistant Attorney General, Department of Justice, Antitrust 
Division, Washington, DC 20530.

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Kenneth A. Libby,
Jennifer Lee,
Kelly Horne,
Special Attorneys.

[[Page 48642]]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America, Plaintiff, v. Third Point Offshore Fund, 
LTD., Third Point Ultra LTD., Third Point Partners Qualified L.P., and 
Third Point LLC, Defendants.

Civil Action No. 1:19-cv-02593-CJN

[PROPOSED] FINAL JUDGMENT

    WHEREAS, the United States of America filed its Complaint on August 
28, 2019, alleging that Defendants Third Point Offshore Fund, Ltd., 
Third Point Ultra Ltd., and Third Point Partners Qualified L.P. 
(collectively, ``Third Point Funds'' or ``Defendant Funds'') violated 
Section 7A of the Clayton Act (15 U.S.C. Sec.  18a, commonly known as 
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the ``HSR 
Act'')), and the United States and Defendants Third Point Funds and 
Third Point LLC (collectively, ``Defendants''), by their respective 
attorneys, have consented to the entry of this Final Judgment without 
trial or adjudication of any issue of fact or law, and without this 
Final Judgment constituting any evidence against, or any admission by, 
any party regarding any such issue of fact or law;
    AND WHEREAS Defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    NOW, THEREFORE, before any testimony is taken, and without trial or 
adjudication of any issue of fact or law, and upon the consent of the 
parties, it is ORDERED, ADJUDGED AND DECREED;

I. JURISDICTION

    This Court has jurisdiction over the subject matter of this action. 
The Defendants consent solely for the purpose of this action and the 
entry of this Final Judgment that this Court has jurisdiction over each 
of the parties to this action and that the Complaint states a claim 
upon which relief may be granted against Defendants under Section 7A of 
the Clayton Act, as amended (15 U.S.C. Sec.  18a).

II. DEFINITIONS

As used in this Final Judgment:

    (A) ``Consolidation'' shall have the meaning of ``consolidation'' 
as used in 16 C.F.R. Sec.  801.2.
    (B) ``Consolidated Issuer'' means an Issuer that is formed by a 
Consolidation.
    (C) ``De Minimis Exemption'' means a modification to the HSR Act or 
any Regulation thereunder that exempts from the reporting and waiting 
requirements of the HSR Act the acquisition of Voting Securities of an 
Issuer by any Acquiring Person, or by an Acquiring Person that is not a 
competitor of the Issuer or that otherwise meets specified criteria, on 
the basis that the acquisition results in the Acquiring Person's 
holding not more than, or less than, a specified percentage of the 
outstanding Voting Securities of the Issuer.
    (D) ``Issuer'' means a legal entity that issues Voting Securities.
    (E) ``Person'' means any natural person.
    (F) ``Regulation'' shall mean any rule, regulation, statement, or 
interpretation under the HSR Act that has legal effect with respect to 
the implementation or application of the HSR Act or any section within 
16 C.F.R. Sec. Sec.  801-803.
    (G) ``Third Point LLC'' means Defendant Third Point LLC, a limited 
liability company organized under the laws of the State of Delaware, 
with its principal place of business at 390 Park Avenue, 19th Floor, 
New York, NY 10022; its successors and assigns; and its subsidiaries, 
divisions, groups, affiliates, partnerships, and joint ventures, and 
their directors, officers, managers, agents, and employees.
    (H) ``Third Point Offshore Fund, Ltd.'' means Defendant Third Point 
Offshore Fund, Ltd., an exempted company organized under the laws of 
the Cayman Islands, with its registered office at Walkers Corporate 
Limited, Corporate Centre, 27 Hospital Road, George Town, Grand Cayman 
KY1-9008, Cayman Islands; its successors and assigns; and its 
subsidiaries, divisions, groups, affiliates, partnerships, and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    (I) ``Third Point Partners Qualified L.P.'' means Defendant Third 
Point Partners Qualified L.P., a limited partnership organized under 
the laws of the State of Delaware, with its registered address at 
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 
19801; its successors and assigns; and its subsidiaries, divisions, 
groups, affiliates, partnerships, and joint ventures, and their 
directors, officers, managers, agents, and employees.
    (J) ``Third Point Ultra Ltd.'' means Defendant Third Point Ultra 
Ltd., an international business company organized under the laws of the 
British Virgin Islands, with its registered office at Maples Corporate 
Services (BVI) Ltd., Kingston Chambers, P.O. Box 173, Road Town, 
Tortola, British Virgin Islands; its successors and assigns; and its 
subsidiaries, divisions, groups, affiliates, partnerships, and joint 
ventures, and their directors, officers, managers, agents, and 
employees.
    (K) Other capitalized terms have the meanings as defined in the HSR 
Act and Regulations promulgated thereunder, 16 C.F.R. Sec. Sec.  801-
803.

III. APPLICABILITY

    (A) This Final Judgment applies to all Defendants, as defined 
above, and to all other Persons and entities who are in active concert 
or participation with any of the foregoing with respect to conduct 
prohibited in Paragraph IV when the relevant Persons or entities have 
received actual notice of this Final Judgment by personal service or 
otherwise.
    (B) Pursuant to Rule 506(d)(2)(iii), 17 C.F.R. Sec.  
230.506(d)(2)(iii), as promulgated under the Securities Act of 1933, 15 
U.S.C. Sec.  77a, et seq., disqualification under paragraph (d)(1) of 
Rule 506, 17 C.F.R. Sec.  230.506(d)(1), shall not arise as a 
consequence of the entry of this Final Judgment or of the entry of any 
other order or judgment in this action.

IV. PROHIBITED CONDUCT

    Each Defendant is enjoined from acquiring Voting Securities of a 
Consolidated Issuer in exchange for Voting Securities of any Issuer 
that was a party to the Consolidation when:
    (A) The acquisition of the Voting Securities of the Consolidated 
Issuer would meet the notification requirements of the HSR Act;
    (B) Defendant's acquisition of such Voting Securities would not be 
exempt from the reporting and waiting requirements of the HSR Act; and
    (C) Defendant has not fulfilled the reporting and waiting 
requirements of the HSR Act with respect to the acquisition of such 
Voting Securities.

V. CIVIL PENALTY

    (A) Judgment is hereby entered in this matter in favor of Plaintiff 
and against the Defendants and, pursuant to Section 7A(g)(1) of the 
Clayton Act, 15 U.S.C. Sec.  18a(g)(1), and the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74 Sec.  
701, codified at 28 U.S.C. Sec.  1 (amending the Federal Civil 
Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410 (codified 
at 28 U.S.C. Sec.  2461 note)), and Federal Trade Commission Rule 1.98, 
16 C.F.R. Sec.  1.98, 81 Fed. Reg. 42, 476 (June 30, 2016), Defendant 
Funds are hereby ordered, jointly and severally, to pay a single civil 
penalty in the amount of six hundred nine thousand, eight hundred ten 
dollars and no cents ($609,810.00). Payment of the civil penalty 
ordered hereby shall be made by wire transfer of

[[Page 48643]]

funds or cashier's check. If the payment is made by wire transfer, 
Defendant Funds 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

    (B) Defendant Funds 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 18 percent 
per annum shall accrue thereon from the date of the default or delay to 
the date of payment.

VI. COMPLIANCE INSPECTION

    (A) For the purpose of determining or securing compliance with this 
Final Judgment, and subject to any legally recognized privilege, duly 
authorized representatives of the United States, including agents and 
consultants retained by the United States, shall, upon written request 
of a duly authorized representative of the Assistant Attorney General 
in charge of the Antitrust Division, and on reasonable notice to 
Defendants, be permitted:
    (1) access during Defendants' office hours to inspect and copy, or 
at the option of the United States, to require Defendants to provide 
electronic copies of all books, ledgers, accounts, records, data, and 
documents in the possession, custody, or control of Defendants, 
relating to any matters contained in this Final Judgment; and
    (2) to interview, either informally or on the record, Defendants' 
directors, officers, employees, agents, or other Persons, who may have 
their individual counsel present, regarding such matters. The 
interviews shall be subject to the reasonable convenience of the 
interviewee and without restraint or interference by Defendants.
    (B) Upon written request of a duly authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
Defendants shall submit written reports or responses to written 
interrogatories, under oath if requested, relating to any of the 
matters contained in this Final Judgment as may be requested.
    (C) No information or documents obtained by the means provided in 
this Final Judgment shall be divulged by the United States to any 
person other than an authorized representative of the executive branch 
of the United States or of the Federal Trade Commission, except in the 
course of legal proceedings to which the United States is a party 
(including grand jury proceedings), or for the purpose of securing 
compliance with this Final Judgment, or as otherwise required by law.
    (D) If, at the time information or documents are furnished by 
Defendants to the United States, Defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(1) of the Federal 
Rules of Civil Procedure, and Defendants mark each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(1) of 
the Federal Rules of Civil Procedure,'' then the United States shall 
give Defendants ten (10) calendar days' notice prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

VII. RETENTION OF JURISDICTION

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

VIII. ENFORCEMENT OF FINAL JUDGMENT

    (A) The United States retains and reserves all rights to enforce 
the provisions of this Final Judgment, including the 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 action 
brought by the United States regarding an alleged civil violation of 
this Final Judgment, the United States may establish a civil 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, including the HSR 
Act and Regulations promulgated thereunder. 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 the 
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 a Defendant, whether litigated or resolved prior to 
litigation, that Defendant agrees 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, including in the investigation of the potential violation.

IX. EXPIRATION OF FINAL JUDGMENT

    Unless the Court grants an extension, this Final Judgment shall 
expire five (5) years from the date of its entry, except that:
    (A) after three (3) 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 civil penalty has been paid and that the 
continuation of the Final Judgment no longer is necessary or in the 
public interest; or
    (B) if, during any part of the term of this Final Judgment, a De 
Minimis Exemption becomes legally effective, then this Final Judgment 
may be terminated only upon notice by the United States to the Court 
that the continuation of the Final Judgment no longer is necessary or 
in the public interest. It shall be in the sole discretion of the 
United States whether to seek such termination after receiving a 
request to do so from Defendants.

X. COSTS

    Each party shall bear its own costs.

XI. 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 available to the 
public copies of this Final Judgment, the Competitive Impact Statement, 
any comments thereon, and

[[Page 48644]]

the United States' responses to comments. Based upon the record before 
the Court, which includes the Competitive Impact Statement and any 
comments and responses to comments filed with the Court, entry of this 
Final Judgment is in the public interest.

DATED:-----------------------------------------------------------------

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

-----------------------------------------------------------------------

United States District Judge

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America c/o Department of Justice, Plaintiff, 
v. Third Point Offshore Fund, Ltd. c/o Cayman Corporate Center, 
Third Point Ultra Ltd. c/o Maples Corporate Services (BVI) Ltd., 
Third Point Partners Qualified L.P. Corporation Trust Center, and 
Third Point LLC, Defendants.

Civil Action No. 1:19-cv-02593-CJN

COMPETITIVE IMPACT STATEMENT

    Plaintiff United States of America (``United States''), pursuant to 
Section 2(b) of the Antitrust Procedures and Penalties Act (``APPA''), 
15 U.S.C. Sec.  16(b)-(h), files this Competitive Impact Statement 
relating to the proposed Final Judgment submitted for entry in this 
civil antitrust proceeding.

I. NATURE AND PURPOSE OF THE PROCEEDING

    On August 28, 2019, the United States filed a Complaint against 
Defendants Third Point Offshore Fund, Ltd. (``Third Point Offshore''), 
Third Point Ultra, Ltd. (``Third Point Ultra''), Third Point Partners 
Qualified L.P. (``Third Point Partners'') (collectively, ``Defendant 
Funds'') and Third Point LLC (collectively with Defendant Funds, 
``Defendants''), related to Defendant Funds' acquisitions of voting 
securities of DowDuPont Inc. (``DowDuPont'') on August 31, 2017. The 
Complaint alleges that Defendants violated Section 7A of the Clayton 
Act, 15 U.S.C. Sec.  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 or assets 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. 
Sec.  18a(a). A key purpose of the notification and waiting period 
requirements 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 each Defendant Fund acquired voting 
securities of DowDuPont in excess of the then-applicable statutory 
threshold ($80.8 million at the time of acquisition) without making the 
required pre-acquisition HSR Act filings with the agencies and without 
observing the waiting period, and that each Defendant Fund and 
DowDuPont 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 address the violation alleged in the Complaint 
and deter Defendants' HSR Act violations and deter violations by 
similarly situated entities in the future. Under the proposed Final 
Judgment, Defendants must pay a civil penalty to the United States in 
the amount of $609,810 and are subject to an injunction against future 
violations.
    The United States and Defendants have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA, unless 
the United States first withdraws its consent. Entry of the proposed 
Final Judgment would terminate this case, except that the Court would 
retain jurisdiction to construe, modify, or enforce the provisions of 
the proposed Final Judgment and punish violations thereof.

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION

    Third Point LLC is a New York-based financial investment firm 
managed by Daniel S. Loeb.\1\ Started in 1995 with approximately $3.3 
million, Third Point LLC has grown quickly over the years and, in 2014, 
managed approximately $16 billion through a variety of funds, including 
Third Point Offshore, Third Point Ultra, and Third Point Partners, all 
of which are managed centrally by Mr. Loeb. At all times relevant to 
the Complaint, each Defendant Fund had assets in excess of $16.2 
million. At all times relevant to the Complaint, DowDuPont had sales in 
excess of $161.5 million.
---------------------------------------------------------------------------

    \1\ Mr. Loeb closely controls Third Point LLC and its funds. He 
is not, however, the ultimate parent entity (``UPE'') within the 
meaning of the HSR Rules of any of the Third Point funds that made 
the relevant acquisitions of DowDuPont.
---------------------------------------------------------------------------

    On December 11, 2015, the Dow Chemical Company (``Dow'') and E.I. 
du Pont de Nemours and Company (``DuPont'') entered into a Merger 
Agreement pursuant to which Dow and DuPont would consolidate into a 
single company, to be called DowDuPont Inc. On June 10, 2106, Dow and 
DuPont issued their Final Proxy Statement/Prospectus for the 
consolidation. That document disclosed that, upon completion of the 
transaction, Dow and DuPont would cease to have their common stock 
publicly traded and that shareholders would own shares in DowDuPont and 
would not directly own any shares of Dow and/or DuPont. On June 15, 
2017, Dow and DuPont issued a joint press release stating that they had 
received antitrust clearance from the U.S. Department of Justice and 
that the transaction was on track to close in August 2017. On August 4, 
2017, Dow and DuPont issued a joint press release setting the closing 
date of August 31, 2017 for the transaction. The press release also 
stated that shares of Dow and DuPont would cease trading at the close 
of the New York Stock Exchange on August 31, and shares of DowDuPont 
will begin trading on September 1, 2017.
    As of August 31, 2017, Defendant Third Point Offshore held 
6,446,300 voting securities of Dow; Defendant Third Point Ultra held 
4,376,813 voting securities of Dow; and Defendant Third Point Partners 
held 2,540,700 voting securities of Dow. On August 31, 2017, Dow and 
DuPont completed the consolidation pursuant to a Merger Agreement dated 
December 11, 2015, as amended on March 31, 2017. As a result of the 
consolidation, all holders of Dow and DuPont voting securities received 
voting securities of DowDuPont.
    On August 31, 2017, each Defendant Fund received voting securities 
of DowDuPont valued in excess of $80.8 million. Defendant Third Point 
Offshore acquired 6,446,300 voting securities of DowDuPont valued at 
approximately $429.6 million. Defendant Third Point Ultra acquired 
4,376,813 voting securities of DowDuPont valued at approximately $291.7 
million. Defendant Third Point Partners acquired 2,540,700 voting 
securities of DowDuPont valued at approximately $169.3 million. Each 
Defendant Fund is its own UPE within the meaning of the HSR Rules and 
had its own obligation to comply with the notification and waiting 
period requirements of the HSR Act and the HSR Rules.
    The transactions described above were subject to the notification 
and waiting periods of the HSR Act. The

[[Page 48645]]

HSR Act and the thresholds in effect during the time period relevant to 
this proceeding required that each Defendant Fund file a notification 
and report form with the Department of Justice and the Federal Trade 
Commission and observe a waiting period before acquiring and holding an 
aggregate total amount of voting securities of DowDuPont in excess of 
$80.8 million.
    Previously, on April 7, 2014, each Defendant Fund had filed under 
the HSR Act to acquire voting securities of Dow and had observed the 
waiting period. Under Section 802.21 of the HSR Rules, Defendants were 
permitted for the subsequent five years to acquire additional voting 
securities of Dow without making another HSR Act filing so long as they 
did not exceed the next-higher threshold. However, Section 802.21 does 
not exempt Defendant Funds' acquisitions of DowDuPont voting securities 
because DowDuPont is not the same issuer as Dow within the meaning of 
the HSR Rules. Among other things, DowDuPont competes in additional 
lines of business from those in which Dow competed.
    Although required to do so, each Defendant Fund failed to file and 
observe the waiting period prior to acquiring DowDuPont voting 
securities. Defendant Third Point LLC had the power and authority to 
file a notification under the HSR Act on behalf of each of Defendant 
Funds.
    On November 8, 2017, each Defendant Fund filed a notification and 
report form under the HSR Act with the Department of Justice and the 
Federal Trade Commission to cover their acquisitions of DowDuPont 
voting securities. The waiting period relating to these filings expired 
on December 8, 2017. Each Defendant Fund was in violation of the HSR 
Act each day during the period beginning on August 31, 2017, and ending 
on December 8, 2017.
    The Complaint further alleges that Defendants' August 31, 2017, HSR 
Act violation was not the first time Defendants had failed to observe 
the HSR Act's notification and waiting period requirements. Defendants 
are currently under a court decree resulting from allegations that they 
previously violated the HSR Act in connection with acquisitions of 
voting securities of Yahoo! Inc. (``Yahoo''). Specifically, on August 
24, 2015, the United States filed a complaint for equitable relief 
alleging that Defendants' acquisitions of Yahoo voting securities in 
August and September 2011 violated the HSR Act. At the same time, the 
United States filed a Stipulation signed by Defendants and a proposed 
Final Judgment that would impose certain injunctive relief against 
Defendants, including the requirement that Defendants maintain a 
compliance program. The Final Judgment was entered by the court on 
December 18, 2015.

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The proposed Final Judgment imposes a $609,810 civil penalty and an 
injunction against future violations designed to address the violation 
alleged in the Complaint and deter Defendants 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, Defendants promptly self-reported the violation after 
discovery, and Defendants are 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, neither the penalty nor the injunctive relief 
will 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 Defendants have stipulated that the proposed 
Final Judgment may be entered by the Court 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 (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 Department of Justice, which 
remains free to withdraw its consent to the proposed Final Judgment at 
any time prior to 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 internet website and, under certain circumstances, 
published in the Federal Register. Written comments should be submitted 
to:

Kenneth A. Libby
Special Attorney, United States
c/o Federal Trade Commission
600 Pennsylvania Avenue, NW
CC-8404
Washington, DC 20580
Email: [email protected]

    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, a full trial on the merits against Defendants. The 
United States is satisfied, however, that the proposed relief is an 
appropriate remedy in this matter. Given the facts of this case, 
including Defendants' self-reporting of the violation and willingness 
to settle this matter, the United States is satisfied that the proposed 
civil penalty and injunction are 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 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

[[Page 48646]]

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); United States v. 
U.S. Airways Grp, 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 Final Judgment 
is sufficiently clear, whether its enforcement mechanisms are 
sufficient, and whether the Final Judgment may positively harm third 
parties. See Microsoft, 56 F.3d at 1458-62. With respect to the 
adequacy of the relief secured by the Final Judgment, 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. 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).\2\


    \2\ 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'').

    The United States' predictions with respect to the efficacy of the 
remedy are to be afforded deference by the Court. See, e.g., Microsoft, 
56 F.3d at 1461 (recognizing courts should give ``due respect to the 
Justice Department's . . . view of the nature of its case'''); United 
States v. Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 
2016) (``In evaluating objections to settlement agreements under the 
Tunney Act, a court must be mindful that [t]he government need not 
prove that the settlements will perfectly remedy the alleged antitrust 
harms[;] it need only provide a factual basis for concluding that the 
settlements are reasonably adequate remedies for the alleged harms.'' 
(internal citations omitted)); United States v. Republic Servs., Inc., 
723 F. Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review 
to which the government's proposed remedy is accorded''); United States 
v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A 
district court must accord due respect to the government's prediction 
as to the effect of proposed remedies, its perception of the market 
structure, and its view of the nature of the case.''). The ultimate 
question is whether ``the remedies [obtained in the Final Judgment 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)).
    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 to the APPA,\3\ Congress made clear its 
intent to preserve the practical benefits of utilizing consent Final 
Judgments 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). ``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 
(citing United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 
2000)).
---------------------------------------------------------------------------

    \3\ Pub. L. 108-237, Sec.  221.
---------------------------------------------------------------------------

VIII. DETERMINATIVE DOCUMENTS

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

Date: August 28, 2019
Respectfully submitted,

-----------------------------------------------------------------------
Kenneth A. Libby,
Special Attorney,
U.S. Department of Justice,
Antitrust Division,
c/o Federal Trade Commission

[[Page 48647]]

600 Pennsylvania Avenue NW,
Washington, DC 20580,
Phone: (202) 326-2694,
Email: [email protected].

[FR Doc. 2019-19919 Filed 9-13-19; 8:45 am]
 BILLING CODE 67500-01-P