United States v. Legends Hospitality Parent Holdings, LLC; Proposed Final Judgment and Competitive Impact Statement, 66442-66452 [2024-18240]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Notices]
[Pages 66442-66452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18240]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Legends Hospitality Parent Holdings, 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 Southern District of New York in 
United States of America v. Legends Hospitality Parent Holdings, LLC, 
Civil Action No. 1:24-cv-05927-JPC (S.D.N.Y.). On August 5, 2024, the 
United States filed a Complaint alleging that Legends violated section 
7A of the Clayton Act, 15 U.S.C. 18a, also commonly known as the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 (``section 7A'' or 
``HSR Act'') in connection with its proposed acquisition of ASM Global, 
Inc. The Complaint alleges Legends assumed unlawful control of ASM 
Global, Inc. prior to the expiration of the mandatory waiting period 
imposed by the HSR Act, and that Legends was continually in violation 
of the HSR Act each day beginning at least on December 7, 2023, until 
the waiting period ended on May 29, 2024.
    The proposed Final Judgment, filed at the same time as the 
Complaint, requires Legends Hospitality to pay a $3.5 million civil 
penalty for violation of the HSR Act and bars recurrence of the 
challenged conduct on penalty of contempt. It additionally requires 
Legends to appoint an antitrust compliance officer at its expense, to 
conduct compliance training, to certify compliance with the Final 
Judgment, to maintain a whistleblower protection policy, and to provide 
the United States inspection and interview rights to assess compliance 
with the Final Judgment.
    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 Southern District 
of New York. Copies of these materials may be obtained from the 
Antitrust Division upon request and payment of

[[Page 66443]]

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 submitted in English and 
directed to Owen Kendler, Chief, Financial Services, FinTech, and 
Banking Section, Antitrust Division, Department of Justice, 450 Fifth 
Street NW, Suite 4000, Washington, DC 20530 (email address: 
[email protected]).

Suzanne Morris,
Deputy Director Civil Enforcement Operations, Antitrust Division.

United States District Court Southern District of New York

    United States of America, Department of Justice, Antitrust 
Division, 450 Fifth Street NW, Washington, DC 20530, Plaintiff, v. 
Legends Hospitality Parent Holdings, LLC, 61 Broadway, 24\th\ Floor, 
New York, New York 10006, Defendant.

Case No. 1:24-cv-5927-JPC

Complaint

    The United States of America brings this civil action to obtain 
equitable and monetary relief in the form of civil penalties against 
the Defendant, Legends Hospitality Parent Holdings, LLC (``Legends'') 
for violating the premerger notification and waiting period 
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 
1976 (``HSR Act''), and alleges as follows:

I. Introduction

    1. The HSR Act, 15 U.S.C. 18a, is an essential part of modern 
antitrust enforcement. It requires the buyer and seller of voting 
securities or assets in excess of a certain value to notify the 
Department of Justice and the Federal Trade Commission prior to 
consummating the acquisition, and to observe a suspensory waiting 
period after the notification is filed. A buyer could ``acquire'' 
assets without taking formal legal title, for instance by exerting 
operational control over the assets or otherwise obtaining ``beneficial 
ownership.'' The HSR Act's advance notice and waiting period 
requirements ensure that the parties to a proposed transaction continue 
to operate separately and independently during review, preventing 
anticompetitive acquisitions from harming consumers before the United 
States has had the opportunity to review them according to the 
procedures established by Congress in the Clayton Act. A buyer that 
prematurely takes beneficial ownership of assets, sometimes referred to 
as ``gun jumping,'' is subject to statutory penalties for each day it 
is in violation.

II. Jurisdiction, Venue, and Interstate Commerce

    2. This Complaint is filed and these proceedings are instituted 
under Section 7A of the Clayton Act, 15 U.S.C. 18a, added by Title II 
of the HSR Act, to recover civil penalties for violations of that 
section and other relief.
    3. This Court has jurisdiction over the subject matter of this 
action pursuant to Section 7A(g) of the Clayton Act, 15 U.S.C. 18a(g), 
and pursuant to 28 U.S.C. 1331, 1337(a), 1345 and 1355.
    4. The Defendant has consented to personal jurisdiction and venue 
in the United States District Court for the Southern District of New 
York for purposes of this action.
    5. Legends is engaged in commerce, or in activities affecting 
commerce, within the meaning of Section 7A(a)(1) of the Clayton Act, 15 
U.S.C. 18a(a)(1).

III. The Defendant

    6. Defendant Legends is a global venue services company 
headquartered in New York, New York. It is majority-owned by Sixth 
Street Partners, its minority owners include the New York Yankees and 
the Dallas Cowboys, and it has a strategic partnership with The Kroenke 
Group. Legends focuses predominantly on food and beverage services, 
feasibility studies, project development, and sales.

IV. Waiting Period Requirements of the HSR Act

    7. The HSR Act requires certain acquiring persons, and certain 
persons whose voting securities are acquired, to file notifications 
with the Department of Justice and Federal Trade Commission and to 
observe a waiting period before consummating certain acquisitions of 
voting securities or assets. 15 U.S.C. 18a (a) and (b). Of relevance 
here, the notice and waiting requirements apply if, as a result of the 
acquisition, the acquiring person will ``hold'' assets or voting 
securities above the HSR Act's size of transaction threshold.
    8. Pursuant to Section (d)(2) of the HSR Act, 15 U.S.C. 18a(d)(2), 
the Federal Trade Commission promulgated rules to carry out the purpose 
of the HSR Act. 16 CFR 801-803.
    9. Section 801. 1(c) of the HSR Rules, 16 CFR 801.1(c) defines 
``hold'' to mean ``beneficial ownership, whether direct, or indirect 
through fiduciaries, agents, controlled entities or other means.''
    10. Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1), 
states 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 the person 
is in violation. Pursuant to the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 701 (further 
amending the Federal Civil Penalties Inflation Adjustment Act of 1990), 
and Federal Trade Commission Rule 1.98, 16 CFR 1.98, 89 FR 1,445 (Jan. 
10, 2024), the maximum amount of civil penalty relevant to this 
Complaint is $51,744 per day.

V. The Acquisition and the Defendant's Unlawful Conduct

    11. Legends and ASM Global, Inc. (``ASM'') began acquisition 
discussions in January 2023. ASM is a venue services company primarily 
focused on venue management, i.e. providing services related to the 
day-to-day operations of a venue like event booking, operations, 
sanitation, and security among other services. On November 3, 2023, 
Legends agreed to purchase ASM for $2.325 billion (``Acquisition''). On 
November 6, 2023, Legends filed its HSR notice with the Department of 
Justice.
    12. The Acquisition exceeded thresholds established by the HSR Act 
and did not qualify for any of the HSR Act's exemptions. Consequently, 
the Acquisition was subject to the premerger and notification 
requirements of the HSR Act. The applicable waiting period, which was 
extended by the issuance of requests for additional information on 
January 8, 2024, expired on May 29, 2024.\1\ During this statutory 
waiting period, the HSR Act \2\ required Legends and ASM to continue to 
operate as separate and independent entities while the Antitrust 
Division of the Department of Justice conducted a pre-consummation 
antitrust review of the Acquisition. Legends, however, failed to adhere 
to its statutory obligation and assumed unlawful control of ASM prior 
to the expiration of the HSR waiting period.
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    \1\ Legends and ASM agreed to not close the Acquisition during 
the pendency of the Department of Justice's investigation.
    \2\ Other antitrust laws also can apply to pre-closing conduct 
of transaction parties.
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    13. In May 2023, Legends won the right to manage a city-owned arena 
in California upon the expiration of ASM's management lease on July 31, 
2024. ASM also competed for this opportunity. As part of its bid for 
the California arena, Legends submitted a

[[Page 66444]]

detailed transition plan that included key milestone dates for booking, 
operations, human resources, engineering, sanitation, production, 
security, event staffing and other services. Absent the Acquisition, 
Legends was planning to provide those services itself to the arena.
    14. Due to the Acquisition with ASM, however, Legends decided to 
have ASM provide those services instead. After submitting its HSR 
filing, but before the expiration of the HSR waiting period, Legends 
decided that ASM would continue to operate the California arena. For 
example, on December 7, 2023, Legends and ASM signed an initial 
agreement whereby ASM would book third-party events for the California 
arena instead of Legends. Further, on April 9, 2024, Legends decided 
that ASM would continue providing venue management services for the 
California arena instead of transitioning the arena to Legends.
    15. The purpose and intent of Legends' pre-closing conduct in 
connection with the California arena also are informed by aspects of 
Legends' course of conduct in connection with ASM, including conduct 
before and after submitting the HSR filing.
    16. For example, while Legends and ASM were in discussions around 
the Acquisition, but before the HSR filing, Legends sought to discuss 
competitive bidding strategies with ASM. In August 2023, Legends 
learned that a city in North Carolina was planning to issue an RFP for 
management of an existing entertainment complex, including an arena and 
other venues. A senior Legends executive emailed Legends' then-CEO 
noting, ``I assume we would rather have ASM chase this?'' The then-CEO 
informed another executive, ``we will find out if ASM is bidding as 
don't want to both be bidding,'' and set a calendar reminder for 
himself to speak with a senior ASM executive about the North Carolina 
RFP.
    17. In addition, in early 2023, Legends and ASM learned that a 
university was planning to develop a new arena. Both Legends and ASM 
initially took steps to form separate, independent bids for the new 
arena. However, after Legends and ASM were in discussions around the 
Acquisition, their posture changed, such that in May 2023 they decided 
that they would instead try to bid together. While constructing their 
joint bid, Legends and ASM exchanged competitively sensitive 
information surrounding the arena development project.
    18. Legends and ASM engaged in similar behavior for a different 
proposed university arena. Prior to Acquisition negotiations, Legends 
and ASM were pursuing independent actions to try to win the development 
of the new arena. This posture changed in 2024, when, during the HSR 
waiting period, Legends and ASM pursued plans to submit a joint bid and 
exchange related information.

VI. Violation of Section 7A of the Clayton Act

    19. Plaintiff alleges and incorporates paragraphs 1 through 18 as 
if set forth fully herein.
    20. Legends' acquisition of ASM was subject to Section 7A premerger 
notification and waiting-period requirements.
    21. Legends obtained beneficial ownership of ASM prior to observing 
the applicable waiting period in violation of Section 7A.
    22. Accordingly, Defendant was continuously in violation of the 
requirements of the HSR Act each day beginning at least on December 7, 
2023, until the waiting period was terminated on May 29, 2024.

VII. Request for Relief

    Wherefore, Plaintiff requests:
    (a) that the Court adjudge and decree that Defendant violated the 
HSR Act and was in violation during the period of 175 days beginning on 
December 7, 2023, and ending on May 29, 2024;
    (b) order that Defendant pay to the United States an appropriate 
civil penalty as provided by the HSR Act, 15 U.S.C. 18(a)(g)(1), the 
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015, Pub. L. 114-74, 701 (further amending the Federal Civil Penalties 
Inflation Adjustment act of 1990, 28 U.S.C. 2461 note), and 16 CFR 
1.98(a);
    (c) that the Court enjoin Defendant from any future violations of 
the HSR Act;
    (d) that the Court award the Plaintiff its costs of this suit; and,
    (e) that the Court order such other and further relief as the Court 
may deem just and proper to redress and prevent recurrence of the 
alleged violations and to dissipate their anticompetitive effects.

    Dated this 5th day of August, 2024.

    Respectfully submitted,

For Plaintiff United States of America

Jonathan S. Kanter,
Assistant Attorney General for Antitrust.

Doha G. Mekki,
Principal Deputy Assistant Attorney General for Antitrust.

Andrew J. Forman,
Deputy Assistant Attorney General.

Hetal J. Doshi,
Deputy Assistant Attorney General.

Ryan Danks,
Director of Civil Enforcement.

Catherine K. Dick,
Acting Director of Litigation.

Owen M. Kendler,
Chief, Financial Services, Fintech & Banking Section.

Meagan K. Bellshaw,
Assistant Chief, Financial Services, Fintech & Banking Section.

Sarah H. Licht,
Assistant Chief, Financial Services, Fintech & Banking Section.

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Collier T. Kelley

Aseem Chipalkatti
Alex Cohen
William H. Jones II
Brittney Dimond
Michael G. Mclellan

Trial Attorneys

United States Department of Justice, Antitrust Division, 450 Fifth 
Street NW, Suite 4000, Washington, DC 20530, Telephone: (202) 445-
9737, Facsimile: (202) 514-7308, Email: [email protected].

Attorneys for the United States

United States District Court Southern District of New York

    United States of America, Plaintiff, v. Legends Hospitality 
Parent Holdings, LLC, Defendant.

Case No. 1:24-cv-5927

[Proposed] Final Judgment

    Whereas, Plaintiff, United States of America, filed its Complaint 
on August 5, 2024, alleging that Defendant Legends Hospitality Parent 
Holdings, LLC violated Section 7A of the Clayton Act, 15 U.S.C. 18a, 
commonly known as the Hart-Scott-Rodino Antitrust Improvements Act of 
1976 (the ``Hart-Scott-Rodino Act'');
    And whereas, the United States and Defendant have consented to the 
entry of this Final Judgment without the taking of testimony, without 
trial or adjudication of any issue of fact or law, and without this 
Final Judgment constituting any evidence against or admission by any 
party relating to any issue of fact or law;
    And whereas, Defendant agrees to undertake certain actions and 
refrain from certain conduct for the purpose of resolving the claims 
alleged in the Complaint;
    And whereas, Defendant represents that the relief required by this 
Final Judgment can and will be made and that Defendant will not later 
raise a claim of hardship or difficulty as grounds for asking the Court 
to modify any provision of this Final Judgment;
    Now therefore, it is ordered, adjudged, and decreed:

[[Page 66445]]

I. Jurisdiction

    The Court has jurisdiction over the subject matter of and each of 
the parties to this action. The Complaint states a claim upon which 
relief may be granted against Defendant under Section 7A of the Clayton 
Act (15 U.S.C. 18a).

II. Definitions

    As used in this Final Judgment:
    A. ``Legends'' or ``Defendant'' means Defendant Legends Hospitality 
Parent Holdings, LLC, a Delaware corporation with its headquarters in 
New York, New York, its successors and assigns, subsidiaries, 
divisions, groups, partnerships, joint ventures, and officers, 
managers, and employees. For the avoidance of doubt: (1) ``Legends'' 
shall include ASM Global Parent, Inc., following its acquisition by 
Legends Hospitality Parent Holdings, LLC; and (2) this provision 
applies only to subsidiaries, partnerships, or joint ventures in which 
Legends has a partial (more than 50%) or total ownership or control. 
Any ownership or control interest held jointly by Legends and any 
parent or owner of Legends shall be attributed to Legends and 
aggregated with Legends' ownership or control.
    B. ``Agreement'' means any agreement, contract, or mutual 
understanding, whether formal or informal, written, or unwritten.
    C. ``Bid'' or ``Bidding'' means any offer or response to a Request 
for Proposal, Request for Submission, Request for Information, Request 
for Qualifications, or any other similar request, relating to a 
contract or other arrangement (including extensions or renewals of any 
existing contract or other arrangement) to provide services to an 
existing or potential venue.
    D. ``Collaboration Agreement'' means any Agreement by and among 
Defendant and any Competitor to collaborate or team in offering or 
providing Venue Development Services or to act as the Venue Manager. 
``Collaboration Agreement'' does not include contracting for services 
where Legends is acting as the agent of a client or acting pursuant to 
a contract with a client.
    E. ``Communicate'' or ``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, including electronic communications, 
emails, chats or other ephemeral messages, facsimiles, telephone 
communications, voicemails, text messages, audio recordings, meetings, 
interviews, correspondence, exchange of written or recorded 
information, face-to-face meetings, or social media.
    F. ``Competitively Sensitive Information'' means any non-public 
information of Defendant or any Competitor, including 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; 
and costs, revenues, profits, or margins.
    G. ``Competitor'' means any Person (other than Defendant) engaged 
in, or that Defendant's executives or senior managers know is 
considering engaging in, any of Defendant's present or future lines of 
business, including food and beverage or hospitality services, venue 
management, project management, sponsorship, and/or sales of premium 
seating.
    H. ``Covered Person'' means: (i) any employee or agent of Defendant 
whose principal job responsibilities include the sales, client 
outreach, or the negotiation of terms or development of f Bids or 
proposals for services to Venues (other than employees or agents whose 
responsibilities are entirely clerical or limited to document 
preparation); (ii) all General Managers of any Venue managed by 
Defendant (iii) Defendant's Chief Executive Officer and each of his or 
her direct reports; (iv) members of Defendant's Board of Directors; and 
(v) designated Board observers.
    I. ``Including'' means including, but not limited to.
    J. ``Negotiation and Interim Period'' means the period between the 
commencement of negotiations with respect to an offer to enter into a 
Transaction, and the date when negotiations are abandoned or when any 
resulting Transaction is consummated or abandoned.
    K. ``Person'' means any natural person, corporation, company, 
partnership, joint venture, firm, association, sole proprietorship, 
agency, board, authority, commission, office, institution, university, 
municipality, governmental entity, or other business or legal entity, 
whether private or governmental.
    L. ``Transaction'' means any Agreement to acquire any voting 
securities, assets, or non-corporate interests, form a joint venture, 
settle litigation, or license intellectual property with any Person 
where such Agreement is reportable under the Hart-Scott-Rodino 
Antitrust Improvements Act of 1976.
    M. ``Venue'' means a facility that hosts publicly ticketed live 
events, including stadiums, arenas, convention centers, amphitheaters, 
clubs, and theaters.
    N. ``Venue Development Services'' means managing, investing, or 
financing the development, construction, or renovation of venues. 
``Venue Development Services'' does not include feasibility or market 
studies.
    O. ``Venue Manager'' means the primary entity that manages a venue, 
including by providing services necessary to operate the venue, such as 
administration, operations, concert and live event booking, finance and 
accounting, marketing, human resources, housekeeping, security, 
parking, and/or production services.

III. Applicability

    This Final Judgment applies to Defendant, as defined above, and all 
other Persons in active concert or participation with Defendant who 
receive actual notice of this Final Judgment.

IV. Civil Penalty Under Section 7A of the Clayton Act

    A. Within thirty (30) days of entry of this Final Judgment, 
Defendant must pay a civil penalty in the amount of $3,500,000. Payment 
of the civil penalty must be made by wire transfer of funds or 
cashier's check. Prior to making a wire transfer, Defendant must 
contact the Budget and Fiscal Section of the Antitrust Division's 
Executive Office at [email protected] for 
instructions. A payment made by cashier's check, must be made payable 
to the United States Department of Justice--Antitrust Division and 
delivered to: Chief, Budget & Fiscal Section Executive Office, 
Antitrust Division United States Department of Justice Liberty Square 
Building, 450 5th Street NW, Room 3016, Washington, DC 20530.
    B. In the event of a default or delay in payment, interest at the 
rate of eighteen (18) percent per annum will accrue from the date of 
the default to the date of payment.

V. Prohibited Conduct

    A. Defendant may not, directly or indirectly, during any 
Negotiation and Interim Period of a Transaction or in connection with 
an actual or potential Collaboration Agreement:
    1. Share Competitively Sensitive Information with any Competitor;
    2. Communicate with any Competitor concerning any Competitively 
Sensitive Information relating to a Bid or Bidding, including whether 
to Bid or not to Bid;

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    3. Agree with any Competitor to participate in any joint Bid, 
collaborative Bid, cooperative Bid, or shared Bid for any contract, 
opportunity, or arrangement or for a part of any contract, opportunity, 
or arrangement; or
    4. Agree with any Competitor that Defendant or any Competitor will 
not Bid for any contract, opportunity, or arrangement or for a part of 
any contract, opportunity, or arrangement.
    B. The prohibitions in Paragraph V.A. apply to Defendant's 
Communicating, Agreeing, or sharing through any third-party agent or 
third-party consultant working at Defendant's instruction, direction, 
or request.
    Notwithstanding the foregoing, nothing in this Final Judgment 
prohibits Defendant from engaging in conduct in Paragraphs V.A.1-4 
above in connection with a Collaboration Agreement if Defendant first 
secures advice of antitrust counsel and consults with the Antitrust 
Compliance Officer, see infra Section VI, and obtains advanced written 
permission from Defendant's Chief Executive Officer or General Counsel. 
For avoidance of doubt, nothing in the Final Judgment, including 
compliance with this Paragraph V.C., precludes the United States from 
investigating or, if appropriate, bringing action against Defendant or 
any other person for violations of any antitrust law.

VI. Required Conduct

    A. Within ten (10) days of entry of this Final Judgment, Defendant 
must appoint or employ an Antitrust Compliance Officer, and identify to 
the United States the Antitrust Compliance Officer's name, business 
address, telephone number, and email address. Within forty-five (45) 
days of a vacancy in Defendant's Antitrust Compliance Officer position, 
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.
    Defendant's initial and replacement appointment of an Antitrust 
Compliance Officer is subject to the approval of the United States in 
its sole discretion. Defendant is responsible for all costs and 
expenses related to the Antitrust Compliance Officer.
    B. Notwithstanding the foregoing, for the first 120 days following 
entry of the Final Judgment, Defendant may retain outside counsel as an 
Antitrust Compliance Officer, subject to the approval of the United 
States in its sole discretion.
    C. Unless otherwise agreed by the United States, the Antitrust 
Compliance Officer must have 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 matters, including at 
least five years' experience with antitrust matters.
    D. Defendant may appoint or retain one or more Reserve Antitrust 
Compliance Officers meeting the qualifications set forth in VI.C to 
perform duties of the Antitrust Compliance Officer when the Antitrust 
Compliance Officer is not available. Defendant's initial and 
replacement appointment of a Reserve Antitrust Compliance Officer is 
subject to the approval of the United States in its sole discretion.
    E. The Antitrust Compliance Officer must, directly or through 
employees or counsel working at the Antitrust Compliance Officer's 
direction:
    1. within thirty (30) days of entry of this Final Judgment, furnish 
to each Covered Person a copy of this Final Judgment, the Competitive 
Impact Statement filed by the United States with the Court, and an 
explanatory cover letter prepared by Defendant providing reasonable 
notice of the meaning and requirements of this Final Judgment, with 
notice provided to the United States;
    2. brief and distribute a copy of this Final Judgment and the 
Competitive Impact Statement to any Person who succeeds to a position 
of a Covered Person, and provide reasonable notice of the meaning and 
requirements of this Final Judgment and the antitrust laws, within 
sixty (60) days of such succession;
    obtain from each Covered Person, within thirty (30) days of that 
Person's receipt of this Final Judgment, a certification that he or she 
(i) has read and, to the best of his or her ability, understands and 
agrees to abide by the terms of this Final Judgment; (ii) is not aware 
of any violation of this Final Judgment that has not been reported to 
the Antitrust Compliance Officer; and (iii) understands that any 
Person's failure to comply with this Final Judgment may result in an 
enforcement action for civil or criminal contempt of court against 
Defendant and/or any Person who violates this Final Judgment;
    3. provide an Annual Antitrust Compliance Training to all Covered 
Persons and members of Defendant's Board of Directors on the meaning 
and requirements of this Final Judgment, the antitrust laws, and 
guidelines governing:
    i. Sharing of Competitively Sensitive Information with any 
Competitor;
    ii. Communication with any Competitor concerning any Competitively 
Sensitive Information relating to a Bid or Bidding, including whether 
to Bid or not to Bid;
    iii. Agreeing with any Competitor to participate in any joint Bid, 
collaborative Bid, cooperative Bid, or shared Bid for any contract, 
opportunity, or arrangement or for a part of any contract, opportunity, 
or arrangement; or
    iv. Agreeing with any Competitor that Defendant or any Competitor 
will not Bid for any contract, opportunity, or arrangement or for a 
part of any contract, opportunity, or arrangement.
    Successors to Covered Persons must be provided an Annual Antitrust 
Compliance Training within sixty (60) days of such succession.
    4. obtain from each Covered Person or successor, within thirty (30) 
days of that person's Annual Antitrust Compliance Training, a 
certification that he or she
    (i) attended the training and reviewed the training materials, and 
(ii) is not aware of any violation of this Final Judgment that has not 
been reported to the Antitrust Compliance Officer;
    5. maintain until four years following the expiration of this Final 
Judgment and furnish to the United States within ten days if requested 
to do so:
    i. a list identifying all employees having received the notices and 
compliance training required under Paragraphs VI.E.2, VI.E.3, and 
VI.E.5, and the dates on which the employees received the notices and 
training;
    ii. copies of all Annual Antitrust Compliance Training materials; 
and
    iii. copies of all certifications and other materials required to 
be issued under Paragraph VI.E;
    iv. a record of certifications received pursuant to this Section;
    v. a copy of Defendant's whistleblower policy; and
    vi. a record of all reports received pursuant to Paragraph VI.F. 
and VI.G.
    6. annually communicate to all Covered Persons and all other 
employees that they must disclose to the Antitrust Compliance Officer, 
without reprisal, information concerning any potential violation of 
this Final Judgment or the antitrust laws; and
    7. by not later than ninety (90) calendar days after entry of this 
Final Judgment and annually thereafter, file written reports with the 
United States affirming that Defendant is in compliance with its 
obligations under this Final Judgment, including the

[[Page 66447]]

training requirements under Paragraph VI.E.5;
    F. If an officer, director, or executive of Defendant or a member 
of its Board of Directors learns of a potential violation of this Final 
Judgment or the antitrust laws by Defendant, he or she must promptly 
notify the Antitrust Compliance Officer.
    G. Immediately upon the Antitrust Compliance Officer's learning of 
any violation or potential violation of any of the terms of this Final 
Judgment or the antitrust laws, Defendant must investigate and, in the 
event of a violation, must cease or modify the activity to comply with 
this Final Judgment and the antitrust laws. Defendant must maintain all 
documents as kept in the ordinary course discussed with, provided to, 
reviewed, or requested by the Antitrust Compliance Officer in 
connection with any reported violation or potential violation of this 
Final Judgment or in connection with any violation or potential 
violation of the antitrust laws reported to the Antitrust Compliance 
Officer pursuant to Paragraph VI.F. for four years following the 
expiration of this Final Judgment.
    H. Within thirty (30) calendar days of the Antitrust Compliance 
Officer's learning of any potential violation of any of the terms of 
this Final Judgment, Defendant must file with the United States a 
statement describing the potential violation, including a description 
of all steps taken by Defendant to remedy the potential violation.
    I. Defendant must have its Chief Executive Officer and its General 
Counsel certify in writing to the United States, no later than ninety 
(90) calendar days after this Final Judgment is entered and then 
annually on the anniversary of the date of the entry of this Final 
Judgment, that Defendant has complied with the provisions of this Final 
Judgment.
    J. Defendant must maintain a whistleblower protection policy that 
provides any employee may disclose, without reprisal or adverse 
consequences for such disclosure, to the Antitrust Compliance Officer 
information concerning any violation or potential violation by 
Defendant of this Final Judgment or the antitrust laws.

VII. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment or of any related orders such as the Stipulation and 
Order, or of determining whether this Final Judgment should be modified 
or vacated, upon written request of an authorized representative of the 
Assistant Attorney General for the Antitrust Division, and reasonable 
notice to Defendant, Defendant must permit, from time to time and 
subject to legally recognized privileges, authorized representatives, 
including agents retained by the United States:
    1. to have access during Defendant's office hours to inspect and 
copy, or at the option of the United States, to require Defendant to 
provide electronic copies of all books, ledgers, accounts, records, 
data, and documents in the possession, custody, or control of Defendant 
relating to any matters contained in this Final Judgment; and
    2. to interview, either informally or on the record, or depose 
Defendant's officers, employees, or agents, who may have their 
individual counsel present, relating to any matters contained in this 
Final Judgment. The interviews must be subject to the reasonable 
convenience of the interviewee and without restraint or interference by 
Defendant.
    B. Upon the written request of an authorized representative of the 
Assistant Attorney General for the Antitrust Division, Defendant must 
submit written reports or respond to written interrogatories, under 
oath if requested, relating to any matters contained in this Final 
Judgment.

VIII. Public Disclosure

    A. No information or documents obtained pursuant to any provision 
this Final Judgment may 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, for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    B. In the event of a request by a third party, pursuant to the 
Freedom of Information Act, 5 U.S.C. 552, for disclosure of information 
obtained pursuant to any provision of this Final Judgment, the 
Antitrust Division will act in accordance with that statute, and the 
Department of Justice regulations at 28 CFR part 16, including the 
provision on confidential commercial information, at 28 CFR 16.7. 
Defendant submitting information to the Antitrust Division should 
designate the confidential commercial information portions of all 
applicable documents and information under 28 CFR 16.7. Designations of 
confidentiality expire 10 years after submission, ``unless the 
submitter requests and provides justification for a longer designation 
period.'' See 28 CFR 16.7(b).
    C. If at the time that Defendant furnishes information or documents 
to the United States pursuant to any provision of this Final Judgment, 
Defendant represents and identifies in writing information or documents 
for which a claim of protection may be asserted under Rule 26(c)(1)(G) 
of the Federal Rules of Civil Procedure, and 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,'' the United 
States must give Defendant 10 calendar days' notice before divulging 
the material in any legal proceeding (other than a grand jury 
proceeding).

IX. Retention of Jurisdiction

    The Court retains jurisdiction to enable any party to this Final 
Judgment to apply to the 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.

X. Enforcement of Final Judgement

    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 the Court. Defendant agrees that in a civil contempt 
action, a motion to show cause, or a similar action brought by the 
United States relating to an alleged violation of this Final Judgment, 
the United States may establish a violation of this Final Judgment and 
the appropriateness of a remedy therefor by a preponderance of the 
evidence, and Defendant waives any argument that a different standard 
of proof should apply.
    B. This Final Judgment should be interpreted to give full effect to 
the procompetitive purposes of the antitrust laws, including Section 7A 
of the Clayton Act, and to restore the competition the United States 
alleges was harmed by Defendant. Defendant agrees that it 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 an enforcement proceeding in which the Court finds that 
Defendant has violated this Final Judgment, the United States may apply 
to the Court for

[[Page 66448]]

an extension of this Final Judgment, together with other relief that 
may be appropriate. In connection with a successful effort by the 
United States to enforce this Final Judgment against Defendant, whether 
litigated or resolved before litigation, Defendant agrees to reimburse 
the United States for the fees and expenses of its attorneys, as well 
as all other costs including experts' fees, incurred in connection with 
that effort to enforce this Final Judgment, including in the 
investigation of the potential violation.
    D. For a period of four years following the expiration of this 
Final Judgment, if the United States has evidence that Defendant 
violated this Final Judgment before it expired, the United States may 
file an action against Defendant in this Court requesting that the 
Court order:
    (1) Defendant to comply with the terms of this Final Judgment for 
an additional term to be determined by the Court; (2) all appropriate 
contempt remedies; (3) additional relief needed to ensure the Defendant 
complies with the terms of this Final Judgment; and (4) fees or 
expenses as called for by this Section X.

XI. Expiration of Final Judgement

    Unless the Court grants an extension, this Final Judgment will 
expire seven (7) years from the date of its entry if Defendant has paid 
the civil penalty in full, except that if Defendant is found to violate 
this Final Judgment, either by the Court or by stipulation of the 
parties, the United States may move to extend the Final Judgment.

XII. Reservation of Rights

    This Final Judgment addresses only the claims stated in the 
Complaint against Defendant, which solely alleges violations of 7A of 
the Clayton Act (15 U.S.C. 18a). The United States reserves all rights 
for any other claims against the Defendant. This Final Judgment thus 
does not in any way affect or address any other charges or claims that 
may be filed by the United States.

XIII. 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. 16, including by making available to the 
public copies of this Final Judgment and the Competitive Impact 
Statement, public comments thereon, and any response to comments by the 
United States. Based upon the record before the Court, which includes 
the Competitive Impact Statement and, if applicable, any comments and 
response to comments filed with the Court, entry of this Final Judgment 
is in the public interest.

Date:
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    [Court approval subject to procedures of Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16]

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Hon. John P. Cronan,
United States District Judge.

United States District Court Southern District of New York

    United States of America, Plaintiff, v. Legends Hospitality 
Parent Holdings, LLC, Defendant.

Case No. 1:24-cv-5927-JPC

Competitive Impact Statement

Table of Contents

I. NATURE AND PURPOSE OF THE PROCEEDING
II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATION
    A. Background
    B. Legends' Alleged Unlawful Conduct
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
    A. Civil Penalty
    B. Prohibited Conduct
    C. Required Conduct
    D. Enforcement of Final Judgment
IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE PLAINTIFFS
V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL 
JUDGMENT
VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT
VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL 
JUDGMENT
VIII. DETERMINATIVE DOCUMENTS

Table of Authorities

Statutes

15 U.S.C. 15
15 U.S.C. 16
15 U.S.C. 18a

Cases

United States v. Abitibi-Consolidated Inc., 584 F. Supp. 2d 162 
(D.D.C. 2008)
United States v. Alex. Brown & Sons, Inc., 963 F. Supp. 235 
(S.D.N.Y. 1997)
United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131 (D.D.C. 1982)
United States v. Apple, Inc., 889 F. Supp. 2d 623 (S.D.N.Y. 2012)
United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1 
(D.D.C. 2003)
United States v. Bechtel Corp., 648 F.2d 660 (9th Cir. 1981)
United States v. InBev N.V./S.A., No. 08-1965, 2009 U.S. Dist. LEXIS 
84787 (D.D.C. Aug. 11, 2009)
United States v. Int'l Bus. Mach. Corp., 163 F.3d 737, 740 (2d Cir. 
1998)
United States v. Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 
(D.D.C. 2016)
United States v. Keyspan, 763 F. Supp. 2d 633, 637-38 (S.D.N.Y. 
2011)
United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995)
United States v. Morgan Stanley, 881 F. Supp. 2d 563, 567 (S.D.N.Y. 
2012)
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007)
United States v. US Airways Grp., Inc., 38 F. Supp. 3d 69 (D.D.C. 
2014)

Other Authorities

119 Cong. Rec. 24, 598 (1973) (statement of Sen. Tunney)
    In accordance with the Antitrust Procedures and Penalties Act, 15 
U.S.C. Sec.  16(b)-(h) (the ``APPA'' or ``Tunney Act''), the United 
States of America files this Competitive Impact Statement related to 
the proposed Final Judgment filed in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    On November 3, 2023, defendant Legends Hospitality Parent Holdings, 
LLC (``Legends'') announced it had agreed to acquire ASM Global, Inc. 
(``ASM'') for $2.35 billion (``Acquisition''). The transaction exceeded 
the thresholds established by Section 7A of the Clayton Act, 15 U.S.C. 
Sec.  18a, also commonly known as the Hart-Scott-Rodino Antitrust 
Improvements Act of 1976 (``Section 7A'' or ``HSR Act''), and therefore 
required Legends and ASM to notify the federal antitrust agencies of 
the Acquisition and observe a waiting period before Legends could take 
control of ASM's business. The HSR Act \3\ required Legends and ASM to 
continue operating separately and independently during the post-
notification waiting period while the Antitrust Division of the 
Department of Justice conducted a pre-consummation antitrust review of 
the Acquisition. The waiting period did not expire until May 29, 
2024.\4\
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    \3\ Other antitrust laws also can apply to pre-closing conduct 
of transaction parties.
    \4\ Legends and ASM agreed to not close the Acquisition during 
the pendency of the Department of Justice's investigation.
---------------------------------------------------------------------------

    Instead of preserving ASM as an independent business, however, the 
Complaint alleges that Legends engaged in ``gun-jumping'' by assuming 
unlawful control of ASM prior to the expiration of the HSR waiting 
period, in violation of 15 U.S.C. 18a, and that Legends was continually 
in violation of the HSR Act each day beginning at least on December 7, 
2023, until the waiting period ended on May 29, 2024.
    The United States and the defendant have reached a proposed 
settlement that eliminates the need for a trial in this case. To 
resolve the HSR Act violation, the proposed Final Judgment requires 
Legends to pay a civil penalty of $3.5 million. The proposed Final 
Judgment also enjoins Legends from engaging in certain behavior and 
requires Legends to

[[Page 66449]]

implement behavioral changes to deter future HSR Act violations.
    The United States and Legends have stipulated that the proposed 
Final Judgment may be entered after compliance with the APPA. Entry of 
the proposed Final Judgment will terminate this action, except that the 
Court will 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. Background
    Legends is headquartered in New York, New York and primarily 
focuses on providing food and beverage services, feasibility studies, 
project development, and sales services to venues. ASM, in turn, 
primarily provides venue management services (i.e. a bundle of related 
services necessary to operate a venue) \5\ to venues that outsource 
management responsibilities to a third party. While Legends and ASM's 
core offerings are different, certain lines of business overlap. Both 
Legends and ASM conduct business throughout the United States and 
globally.
---------------------------------------------------------------------------

    \5\ Core venue management services include concert and live 
event booking, finance and accounting, marketing, human resources, 
housekeeping, security, parking, event services, production 
services, and technology services.
---------------------------------------------------------------------------

    Venue owners (or owners of planned venues) often issue bid 
solicitations when seeking vendors or managers to develop, provide 
services to, or operate the venue. Vendors (including ASM and Legends) 
respond to these solicitations, creating a competitive bidding process.
    Depending on the nature of the services solicited, vendors 
submitting bids in response to an RFP or similar solicitation may 
respond either individually or as part of a team whose members offer 
complementary products necessary to fulfill the RFP. For example, 
architects, developers, venue managers and others may create a team to 
provide a comprehensive response to an RFP seeking both development and 
management services. Competition between individual firms or teams 
leads to increased revenue, lower costs, and higher quality services 
for venues.
B. Legends' Alleged Unlawful Conduct
    In May 2023, Legends won the rights to provide venue management 
services to a city-owned arena in California. Legends' work would begin 
after the July 31, 2024, expiration of incumbent ASM's management 
lease. ASM also competed for this opportunity. Legends' winning bid 
contained a detailed transition plan outlining key milestone dates for 
tasks necessary to effectuate the management shift. Absent the 
Acquisition, Legends was planning to provide those services itself to 
the arena. Due to the Acquisition of ASM, however, Legends decided to 
have ASM provide those services instead. After submitting its HSR 
filing, but before the expiration of the HSR waiting period, Legends 
decided that ASM would continue to operate the California arena. 
Accordingly, on December 7, 2023, Legends and ASM signed an initial 
agreement whereby ASM would book third-party events for the arena. 
Further, on April 9, 2024, Legends decided that ASM would continue 
providing venue management services for the California arena instead of 
transitioning the arena to Legends.
    The purpose and intent of Legends' pre-closing conduct in 
connection with the California arena also are informed by aspects of 
Legends' course of conduct in connection with ASM, including conduct 
before and after submitting the HSR filing.
    For example, while Legends and ASM were in discussions around the 
Acquisition but before the HSR filing, Legends sought to discuss 
competitive bidding strategies with ASM. In August 2023, Legends 
learned that a city in North Carolina was planning to issue an RFP for 
management of an existing entertainment complex, including an arena and 
other venues. A senior Legends executive emailed Legends' then-CEO 
noting, ``I assume we would rather have ASM chase this?'' The then-CEO 
informed another executive, ``we will find out if ASM is bidding as 
don't want to both be bidding,'' and set a calendar reminder for 
himself to speak with a senior ASM executive about the North Carolina 
RFP.
    In addition, in early 2023, Legends and ASM learned that a 
university was planning to develop a new arena. Both Legends and ASM 
initially took steps to form separate independent bids for the new 
arena. However, after Legends and ASM were in discussions around the 
Acquisition, their posture changed, such that in May 2023 they decided 
that they would instead try to bid together. While constructing their 
joint bid, Legends and ASM exchanged competitively sensitive 
information surrounding the arena development project.
    Legends and ASM engaged in similar behavior in 2024 for a different 
proposed university arena. Prior to the Acquisition negotiations, 
Legends and ASM took independent actions to win the development of the 
new arena. This posture changed in 2024, when, during the HSR waiting 
period, Legends and ASM pursued plans to submit a joint bid and 
exchange related information.

III. Explanation of the Proposed Final Judgement

    The relief required by the proposed Final Judgment will 
appropriately address the violation alleged in the Complaint, penalize 
Legends, and deter others from violating the HSR Act. The proposed 
Final Judgment imposes a civil penalty for violation of the HSR Act and 
bars recurrence of the challenged conduct on penalty of contempt. It 
additionally requires Legends to appoint an antitrust compliance 
officer at its expense, to conduct compliance training, to certify 
compliance with the Final Judgment, to maintain a whistleblower 
protection policy, and to provide the United States inspection and 
interview rights to assess compliance with the Final Judgment.
A. Civil Penalty
    Under Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1), any 
person who fails to comply with the HSR Act is liable to the United 
States for a civil penalty of not more than $51,744 for each day that 
person is in violation of the act.\6\ The Complaint alleges that 
defendant was in violation of the HSR Act beginning at least on 
December 7, 2023, until the expiration of the statutory waiting period 
on May 29, 2024. The United States accepted $3.5 million--an amount 
that is less than the maximum penalty permitted under the HSR Act--as 
an appropriate civil penalty for settlement purposes. A lower penalty 
is appropriate because of Legends' demonstrated willingness to take 
corrective internal action and because it is willing to resolve the 
matter by the proposed Final Judgment, thereby avoiding the risks and 
costs associated with a prolonged investigation and litigation.
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    \6\ Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015, Pub. L. 114-74, 701 (further amending the 
Federal Civil Penalties Inflation Adjustment Act of 1990), and 
Federal Trade Commission Rule 1.98, 16 CFR 1.98, 89 FR 1,445 (Jan. 
10, 2024) (increasing maximum penalty to $51,744 per day).
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B. Prohibited Conduct
    Paragraphs V(A) & V(B) of the Final Judgment are designed to 
prevent future violations of the antitrust laws during a pending 
transaction. Under these provisions, Legends is prohibited from, during 
any negotiation and interim

[[Page 66450]]

period \7\ of a transaction \8\ or in connection with an actual or 
potential collaboration agreement,\9\ and except as otherwise permitted 
by the Final Judgment:
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    \7\ ``Negotiation and Interim Period'' means the period between 
the commencement of negotiations with respect to an offer to enter 
into a Transaction, and the date when negotiations are abandoned or 
when any resulting Transaction is consummated or abandoned. Final 
Judgement, ] II(J).
    \8\ ``Transaction'' means any Agreement to acquire any voting 
securities, assets, or non-corporate interests, form a joint 
venture, settle litigation, or license intellectual property with 
any Person where such Agreement is reportable under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976. Final Judgement, ] II(L).
    \9\ ``Collaboration Agreement'' means any Agreement by and among 
Defendant and any Competitor to collaborate or team in offering or 
providing Venue Development Services or to act as the Venue Manager. 
``Collaboration Agreement'' does not include contracting for 
services where Legends is acting as the agent of a client or acting 
pursuant to a contract with a client. Final Judgment, ] II(D).
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     Sharing competitively sensitive information with any 
competitor;
     Communicating with any competitor concerning any 
competitively sensitive information relating to a bid or bidding, 
including whether to bid or not to bid;
     Agreeing with any competitor to participate in any joint 
bid, collaborative bid, cooperative bid, or shared bid for any 
contract, opportunity, or arrangement or for a part of any contract, 
opportunity, or arrangement; or
     Agreeing with any competitor that Legends or any 
competitor will not bid for any contract, opportunity, or arrangement 
or for a part of any contract, opportunity, or arrangement.
    Paragraphs V(A) & V(B) apply to communicating, agreeing, or sharing 
directly, indirectly, and through any third-party agent or consultant 
working at Legends' instruction, direction, or request.
    Paragraph V(C) provides a limited exception permitting Legends to 
engage in the conduct prohibited by Paragraph V(A) in connection with a 
collaboration agreement, provided that Legends first secures advice of 
antitrust counsel, consults with the antitrust compliance officer (see 
Sec.  III(C), infra), and obtains advance written permission from its 
CEO or General Counsel. Although certain communications in connection 
with a collaboration agreement may be permissible under certain 
circumstances, this internal review and approval provision ensures 
that, in light of Defendant's conduct, it will not take future actions 
that may reduce competition without first conducting a thorough 
antitrust review. Finally, Paragraph V(C) explains that nothing in the 
proposed Final Judgment precludes the United States from investigating 
or, if appropriate, bringing action against Legends or anyone else for 
violating the antitrust laws.
C. Required Conduct
    Under Paragraphs VI(A)-VI(D) of the proposed Final Judgment, 
Legends must appoint or employ, at its expense, an experienced 
antitrust lawyer to serve as Legends' antitrust compliance officer. 
Legends will identify its proposed antitrust compliance officer or any 
replacement officer to the United States, which will have sole 
discretion to approve or disapprove the designation. Paragraphs VI(E)-
VI(H) outline the antitrust compliance officer's required duties, which 
include providing all covered persons \10\ with copies of the Final 
Judgment (as entered) and of this Competitive Impact Statement; 
ensuring that all covered persons receive training on the requirements 
of the Final Judgment and certify that they have done so; filing 
written reports affirming Legends' compliance with the Final Judgment; 
and disclosing to the United States any violations of the Final 
Judgment or of the antitrust laws and the steps Legends took to remedy 
the potential violation.
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    \10\ Paragraph II(H) of the Final Judgment defines covered 
persons as ``(i) any employee or agent of Defendant whose principal 
job responsibilities include the sales, client outreach, or the 
negotiation of terms or development of Bids or proposals for 
services to Venues (other than employees or agents whose 
responsibilities are entirely clerical or limited to document 
preparation); (ii) all General Managers of any Venue managed by 
Defendant (iii) Defendant's Chief Executive Officer and each of his 
or her direct reports; (iv) members of Defendant's Board of 
Directors; and (v) designated Board observers.''
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    In addition, Paragraph VI(J) of the Final Judgment obligates 
Legends to maintain an antitrust whistleblower program through which 
employees may identify potential violations of the Final Judgment or of 
the antitrust laws without fear of reprisal.
    To ensure compliance, Paragraph VI(I) requires both Legends' CEO 
and its General Counsel to annually certify Legends' compliance with 
the Final Judgment. Paragraph VII(A) grants authorized personnel from 
the United States the right to access Legends' files and interview its 
personnel upon request.
D. Enforcement of Final Judgment
    The proposed Final Judgment also contains provisions designed to 
make enforcement of the Final Judgment as effective as possible. 
Paragraph X(A) provides that the United States retains and reserves all 
rights to enforce the Final Judgment, including the right to seek an 
order of contempt from the Court, and Section IX retains this Court's 
jurisdiction over any enforcement proceedings. Under the terms of 
Paragraph X(A), Legends has 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 Legends has waived 
any argument that a different standard of proof should apply. This 
provision aligns the standard for compliance with the Final Judgment 
with the standard of proof that applies to the underlying offense that 
the Final Judgment addresses.
    Paragraph X(D) entitles the United States to file an enforcement 
action up to four years after the expiration of the Final Judgment (if, 
for example, the United States discovers a violation after the Final 
Judgment's expiration). In addition, to compensate American taxpayers 
for any costs associated with the investigation and enforcement of 
violations of a proposed Final Judgment, Paragraph X(C) obligates 
Legends to reimburse the United States for any attorneys' fees, 
experts' fees, or costs incurred in connection with any successful 
enforcement effort, including enforcement efforts resolved before 
litigation.
    To further aid enforcement, Paragraph X(B) underscores that the 
proposed Final Judgment is intended to remedy the loss of competition 
the United States alleges was harmed by Legends' conduct. Legends 
agrees that it will abide by the proposed Final Judgment and that it 
may be held in contempt of the Court for failing to comply with any 
provision of the proposed Final Judgment that is stated specifically 
and in reasonable detail, as interpreted in light of this 
procompetitive purpose.
    Finally, Section XI of the proposed Final Judgment provides that 
the Final Judgment will expire seven years from the date of its entry 
if Legends has paid the civil penalty in full, but also authorizes the 
United States to move to extend the Final Judgment's term if Legends is 
found by the Court to have violated the Final Judgment (or stipulates 
that it has done so).

IV. Remedies Available to Potential Private Plaintiffs

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover

[[Page 66451]]

three times the damages the person has suffered, as well as costs and 
reasonable attorneys' fees. Entry of the proposed Final Judgment 
neither impairs nor assists the bringing of any private antitrust 
damage action. Under the provisions of Section 5(a) of the Clayton Act, 
15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect 
in any subsequent private lawsuit that may be brought against 
Defendant.

V. Procedures Available for Modification of the Proposed Final 
Judgement

    The United States and Legends 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. See Stipulation and Proposed Order, ] II(A). 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 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 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register, or within 60 days of the first 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 U.S. Department of Justice, which remains 
free to withdraw its consent to the proposed Final Judgment at any time 
before the Court's entry of the Final Judgment. The comments and the 
response of the United States will be filed with the Court. In 
addition, the comments and the United States' responses will be 
published in the Federal Register unless the Court agrees that the 
United States instead may publish them on the U.S. Department of 
Justice, Antitrust Division's internet website.
    Written comments should be submitted in English to: Owen M. 
Kendler, Chief, Financial Services, Fintech & Banking Section, 
Antitrust Division, United States Department of Justice, 450 Fifth St. 
NW, Suite 4000, Washington, DC 20530.
    Section IX of the proposed Final Judgment provides that the Court 
retains jurisdiction over this action, and that 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

    As an alternative to the proposed Final Judgment, the United States 
considered a full trial on the merits involving the alleged HSR Act 
violation against Defendant. The United States is satisfied, however, 
that the relief required by the proposed Final Judgment is important 
and meaningful while also avoiding the time, expense, and uncertainty 
of a full trial on the merits.

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

    Under the Clayton Act and APPA, proposed Final Judgments, or 
``consent decrees,'' in antitrust cases brought by the United States 
are 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. 16(e)(1); see also United States v. Int'l 
Bus. Mach. Corp., 163 F.3d 737, 740 (2d Cir. 1998). In making that 
determination, the Court, in accordance with the statute as amended in 
2004, is required to consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

    15 U.S.C. 16(e)(1)(A) & (B); see generally United States v. 
Keyspan, 763 F. Supp. 2d 633, 637-38 (S.D.N.Y. 2011) (discussing Tunney 
Act standards). 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); accord United States v. Alex. Brown & Sons, 
Inc., 963 F. Supp. 235, 238 (S.D.N.Y. 1997), aff'd sub nom. United 
States v. Bleznak, 153 F.3d 16 (2d Cir. 1998) (citing Microsoft, 56 
F.3d at 1460); Keyspan, 763 F. Supp. 2d at 637 (same).
    Under the APPA a court considers, among other things, the 
relationship between the remedy secured and the specific allegations 
set forth in the government's complaint, whether the decree is 
sufficiently clear, whether enforcement mechanisms are sufficient, and 
whether the decree may positively harm third parties. See Microsoft, 56 
F.3d at 1458-62. With respect to the adequacy of the relief secured by 
the decree, `` `[t]he Court's function is not to determine whether the 
proposed [d]ecree results in the balance of rights and liabilities that 
is the one that will best serve society, but only to ensure that the 
resulting settlement is `within the reaches of the public interest.' ' 
'' United States v. Morgan Stanley, 881 F. Supp. 2d 563, 567 (S.D.N.Y. 
2012) (citing Alex. Brown & Sons, 963 F. Supp. at 238) (internal 
quotations omitted) (emphasis in original). In making this 
determination, `` `[t]he [c]ourt is not permitted to reject the 
proposed remedies merely because the court believes other remedies are 
preferable. [Rather], the relevant inquiry is whether there is a 
factual foundation for the government's decisions such that its 
conclusions regarding the proposed settlement are reasonable.' '' 
Morgan Stanley, 881 F. Supp. 2d at 567 (citing United States v. 
Abitibi-Consolidated Inc., 584 F. Supp. 2d 162, 165 (D.D.C. 2008)); see 
also United States v. Apple, Inc., 889 F. Supp. 2d 623, 631 (S.D.N.Y. 
2012); Alex. Brown & Sons, 963 F. Supp. at 238.\11\ The government's 
predictions about the efficacy of its remedies are entitled to 
deference. Apple, 889 F. Supp. 2d at 631 (citation omitted); 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. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 6 
(D.D.C. 2003) (noting that the court should grant due respect to the 
United States' prediction as to the effect of proposed remedies, its 
perception of the market structure, and its views of the nature of the 
case); 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

[[Page 66452]]

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 quotations omitted).
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    \11\ See also United States v. Bechtel Corp., 648 F.2d 660, 666 
(9th Cir. 1981) (``The 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.''); see generally Microsoft, 56 F.3d at 1461 (discussing 
whether ``the remedies [obtained in the decree are] so inconsonant 
with the allegations charged as to fall outside of the `reaches of 
the public interest' '').
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    ``[A] proposed decree must be approved even if it falls short of 
the remedy the court would impose on its own, as long as it falls 
within the range of acceptability or is `within the reaches of public 
interest.' '' United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 
151 (D.D.C. 1982); Apple, 889 F. Supp. 2d at 637 n.10; see also United 
States v. U.S. Airways Grp., Inc., 38 F. Supp. 3d 69, 74 (D.D.C. 2014) 
(noting that room must be made for the government to grant concessions 
in the negotiation process for settlements) (citing Microsoft, 56 F.3d 
at 1461); Morgan Stanley, 881 F. Supp. 2d at 568 (approving the consent 
decree even though the court may have imposed a greater remedy). To 
meet this standard, ``it is necessary only that the submissions provide 
an ample `factual foundation for the government's decisions such that 
its conclusions regarding the proposed settlement are reasonable.' '' 
Apple, 889 F. Supp. 2d at 639 (citing Keyspan, 763 F. Supp. 2d at 637-
38).
    Moreover, a 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 the APPA does not authorize a court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459; see also Morgan 
Stanley, 881 F. Supp. 2d at 567 (``A court must limit its review to the 
issues in the complaint and give `due respect to the [Government's] 
perception of . . . its case.' '') (citing Microsoft, 56 F.3d at 1461); 
United States v. InBev N.V./S.A., No. 08-1965, 2009 U.S. Dist. LEXIS 
84787, at *20 (D.D.C. Aug. 11, 2009) (``[T]he `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. 
Courts cannot look beyond the complaint in making the public interest 
determination unless the complaint underlying the decree is drafted so 
narrowly such that its entry would appear `` `to make a mockery of 
judicial power.' '' Apple, 889 F. Supp. 2d at 631 (citing United States 
v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1, 14 (D.D.C. 2007)).
    In its 2004 amendments to the APPA, Congress made clear its intent 
to preserve the practical benefits of utilizing consent decrees in 
antitrust enforcement, adding the unambiguous instruction that 
``[n]othing in this section shall be construed to require the court to 
conduct an evidentiary hearing or to require the court to permit anyone 
to intervene.'' 15 U.S.C. 16(e)(2); see also Apple, 889 F. Supp. 2d at 
633 (declining to hold evidentiary hearing and finding ``[a] hearing 
would serve only to delay the proceedings unnecessarily.''); U.S. 
Airways, 38 F. Supp. 3d at 75 (indicating that a court is not required 
to hold an evidentiary hearing or to permit intervenors as part of its 
review under the Tunney Act). The language wrote into the statute what 
Congress intended when it enacted the Tunney Act in 1974, as Senator 
Tunney explained: ``[t]he court is nowhere compelled to go to trial or 
to engage in extended proceedings which might have the effect of 
vitiating the benefits of prompt and less costly settlement through the 
consent decree process.'' 119 Cong. Rec. 24, 598 (1973) (statement of 
Sen. Tunney). Rather, the procedure for the public interest 
determination is left to the discretion of the court, with 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; see also Apple, 889 F. Supp. 2d at 632 
(``[P]rosecutorial functions vested solely in the executive branch 
could be undermined by the improper use of the APPA as an antitrust 
oversight provision.'') (citation omitted). A court can make its public 
interest determination based on the competitive impact statement and 
response to public comments alone. Apple, 889 F. Supp. 2d at 633; U.S. 
Airways, 38 F. Supp. 3d at 75.

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: August 9, 2024

    Respectfully submitted,

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Collier T. Kelley
Meagan K. Bellshaw
Michael G. McLellan

U.S. Department of Justice, Antitrust Division, 450 5th St. NW, 
Suite 4000, Washington, DC 20530, Telephone: (202) 445-9737, Email: 
[email protected].

[FR Doc. 2024-18240 Filed 8-14-24; 8:45 am]
BILLING CODE 4410-11-P