[Federal Register Volume 64, Number 86 (Wednesday, May 5, 1999)]
[Notices]
[Pages 24173-24178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11269]


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DEPARTMENT OF JUSTICE

Antitrust Division
[Civil No. 1:98CV02836]


Public Comments and Response on Proposed Final Judgment, United 
States v. Pearson plc, Pearson Inc. and Viacom International Inc.

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States of America hereby publishes below the 
comments received on the proposed Final Judgment in United States v. 
Pearson, plc, Pearson Inc. and Viacom International Inc., Civil Action 
No. 1:98CV02836, filed in the United States District Court for the 
District of Columbia, together with the United States' response to the 
comments.
    Copies of the comments and response are available for inspection in 
Room 215 of the U.S. Department of Justice, Antitrust Division, 325 7th 
Street, NW, Washington, DC 20530, telephone: (202) 514-2481, and at the 
Office of the Clerk of the United States District Court for the 
District of Columbia, United States Courthouse, Third Street and 
Constitution Avenue, NW, Washington, DC 20001. Copies of any of these 
materials may be obtained upon request and payment of a copying fee.
Constance K. Robinson,
Director of Operations, Antitrust Division.

Civil Action No. 1:98CV02836
Judge: James Robertson
Filed: April 22, 1999

PLAINTIFF'S RESPONSE TO PUBLIC COMMENTS

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h) (1997) (``Tunney Act'') the United 
States hereby responds to the four public comments received regarding 
the proposed Final judgment in this case.

I. Background

    On November 23, 1998, the United States filed the Complaint in this 
matter alleging that the acquisition by Pearson plc and its wholly 
owned subsidiary, Pearson Inc. (collectively ``Pearson'') of certain 
publishing businesses of Viacom International Inc. (``Viacom'') would 
violate Section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint 
alleges that Pearson and Viacom, two of the nation's largest publishers 
of textbooks and other educational materials, compete head-to-head in 
the development, marketing and sale of comprehensive elementary school 
science programs and in the development, marketing and sale of 
textbooks used in thirty-two college

[[Page 24174]]

courses. The Complaint also alleges that the defendants are two of only 
a few firms that compete in these markets and that they account for a 
significant share of all sales. Pearson's acquisition of Viacom's 
publishing businesses was therefore likely to reduce competition and to 
result in higher prices for these comprehensive science programs and 
for college textbooks and other educational materials in these courses.
    Simultaneous with the filing of the Complaint, the United States 
filed a Final Judgment and Stipulation signed by all the parties 
allowing for entry of the Final Judgment following compliance with the 
Tunney Act. A Competitive Impact Statement (``CIS'') was also filed 
with the Court and published in the Federal Register, along with the 
proposed Final Judgment, on December 21, 1998 (see 63 FR 70,422).
    The proposed Final Judgment permits Pearson to acquire the 
publishing businesses from Viacom, which it did on November 27, 1998, 
but requires Pearson to divest itself of one of its two elementary 
school science textbook programs and fifty-five college textbooks 
serving thirty-two college course markets. On December 23, 1998, 
Pearson sold Viacom's elementary science program to Houghton Mifflin 
Company.
    The sixty-day period for public comments expired on February 19, 
1999. The United States has received four comments, copies of which are 
attached, from the following individuals: (1) Professor Gary Musser; 
(2) Professor Frederic Martini; (3) Mr. Clayton Jones; and (4) 
Professors Vogeli, Ginsburg and Greene. The United States has carefully 
considered the views expressed in these comments, but nothing in these 
comments has altered the United States' conclusion that the proposed 
Final Judgment is in the public interest. Once those comments and this 
Response are published in the Federal Register, the United States will 
have fully complied with the Tunney Act and will then file a motion for 
entry of the proposed Final Judgment.

II. Response to Public Comments

    Two of the comments received by the United States were from college 
textbook authors who raised concerns about the divestitures required by 
the decree. Dr. Gary L. Musser, the co-author of a Prentice Hall 
textbook to be divested, wrote that he is concerned that the 
divestiture will have a disruptive and harmful effect on the sales of 
that book as well as on another of his textbooks that is not to be 
divested. Both books are in the process of revision and Dr. Musser 
believes that they benefit from being marketed together. He believes 
that current plans for revisions, plans to supplement his to-be-
divested book with a CD/Web package, and the schedules for 
republication will be jeopardized if his book is sold to another 
publisher at this time. He urges the United States and the Court to 
consider revising the decree so as not to require divestiture of his 
book.
    Dr. Frederic Martini, the author of five textbooks published by 
Prentice Hall, none of which is required to be divested under the 
Proposed Judgment, also raised concerns about the proposed 
divestitures. Dr. Martini believes that the acquisition is likely to 
have anticompetitive effects in numerous publishing markets, and 
believes that the divestitures will not go far enough to preserve 
competition and innovation and will negatively impact authors and the 
marketing, sale, and development of their textbooks. Specifically, Dr. 
Martini contends that competition among publishers--and, in particular 
between Pearson and Viacom--has resulted in product innovation and the 
development of ``hi-tech'' electronic educational materials that 
supplement college textbooks. He is concerned that the acquisition will 
lessen this product innovation and development because the competition 
between the Pearson and Viacom titles will be lost; he is also 
concerned that the acquisition will raise barriers to entry by small 
publishers and reduce opportunities for new textbook authors and new 
texts.\1\
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    \1\ Dr. Martini states that, for anatomy and physiology--one of 
the college textbook courses for which divestiture of texts is 
required--Pearson will account for fifty to sixty percent of all 
textbook sales after acquisition. Based on our investigation, which 
included review of sales data collected by an industry reporting 
service, we believe that, after the proposed divestiture Pearson 
makes, its share of this market will be no more than it was prior to 
its acquisition of Viacom's titles--somewhat less than fifty 
percent.
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    Dr. Martini recommends revising the decree so that Pearson may 
retain all of the Viacom titles but must hold them separate from the 
rest of their operations., He would specifically prohibit the ``merging 
of lists and the coalescing of related divisions, such as acquisitions, 
editorial, marketing, sales, and technology support for the imprint 
titles.'' He hopes that that would allow the two companies to 
``maintain their distinctive character'' and continue to develop 
competitive technologies. He concedes, however, that this might limit 
Pearson's ability to maximize economies of scale.
    The United States believes that the divestiture of all the 
designated titles is essential to preserve competition in the markets 
alleged in the Complaint. The goal of the Final Judgment is to replace 
the competition eliminated as a result of the acquisition with one or 
more new viable competitors that will be capable of being in the market 
over the long term. To accomplish that, the proposed Final Judgment 
contains numerous requirements to ensure that the acquirer or acquirers 
of these programs and textbook titles continue as viable and effective 
competitors. These include provisions requiring that the acquirer have 
the opportunity to employ certain personnel, and provisions requiring 
divestiture of all tangible and intangible assets that make up each of 
the products. The United States must also be satisfied that the 
acquiring parties have the ability and intention to publish and market 
the divested products as viable, ongoing businesses.
    Although the United States recognizes that divestiture of these 
college textbooks may have some short-term effect on their development 
and marketing, the proposed decree includes provisions designed to 
minimize any disruption. First, the proposed Judgment requires prompt 
divestitures (within the later of five months after filing of the 
Judgment with the Court or ten days after the expiration of the 60-day 
comment period) to minimize the period of uncertainty and discontinuity 
of ownership of the divested titles. In addition,until divestiture is 
completed, the proposed Judgment requires the defendants to take steps 
to preserve the viability and competitiveness of those title; these 
include requirements to maintain funding, development, promotional 
advertising, marketing, editorial and merchandising support, and to 
maintain and increase sales. Moreover, the United States believes that, 
absent divestiture of the titles to a new publisher, the authors of 
these textbooks would face a far greater risk in the longer term that 
their texts and ancillary materials will not be developed, promoted and 
revised as effectively as they otherwise would have been because their 
new owner now also markets a good number of their most important 
competitors.
    Dr. Martini's proposal that Pearson be allowed to retain all of the 
Viacom titles but more or less permanently be required to operate 
various divisions separately and be prevented from merging titles and 
imprints will not best preserve competition in the affected college 
textbook markets. Divisions owned, managed by and answerable to a 
single owner will not maximize competition with each other. A hold-
separate agreement will not alter Pearson's financial incentive and 
ability to allocate funding and other resources

[[Page 24175]]

among the various textbooks (or textbook divisions) that it will own in 
a way to maximize company profits. It also likely would not alter 
Pearson's incentive and ability to raise prices on titles, or reduce 
provision of supplemental products and services, in those markets where 
it accounted for a large share of sales. Such a permanent hold-separate 
order would also be difficult to administer and likely impossible to 
enforce. The Court would be hard-pressed to determine whether Pearson 
was promoting certain titles as fully and effectively as it would 
absent ownership of the other competing titles. Finally, as Dr. Martini 
concedes, such an arrangement might limit Pearson's opportunities to 
maximize economies of scale and thus raise its costs, which could 
result in higher prices to consumers. For these reasons, courts have 
long and consistently recognized that maintenance of completely 
independent, separately owned competing entities is the effective 
remedy for mergers or acquisitions that violate the antitrust laws.
    In another comment received by the United States, Clayton E. Jones, 
Chief Executive Officer of Jones and Bartlett, an educational 
publisher, raised concerns that the decree will not achieve its 
intended results because another large competitor is likely to purchase 
the divested products. He states that it is necessary to ``take [the] 
decree one step further and allow some of the smaller players in the 
industry an opportunity to purchase these products'' so that the decree 
will achieve its objective of enhancing competition in the industry.
    The proposed Final Judgment is designed to ensure that the 
purchaser or purchasers of the divested products will be viable and 
effective competitors and does not exclude--or give preference to--any 
kind of publisher from consideration as a purchaser. A small publisher 
is certainly eligible to purchase the divested products so long as the 
United States is satisfied that it has the ability and intention to 
publish and market the divested products as viable, ongoing businesses. 
Moreover, the United States will not approve a proposed divestiture to 
a publisher that is already a substantial competitor of the program or 
title that it seeks to acquire. Thus, Mr. Jones need not be concerned 
that there will be a divestiture to a large competitor that will not 
preserve competition in the affected markets.
    Finally, the United States received a comment from three college 
professors, Drs. Bruce R. Vogeli, Herbert Ginsburg of Columbia 
University and Carole Greenes of Boston University, who stated that, 
although they concurred with the proposed divestitures relating to 
elementary school science programs, the United States should have also 
concluded that the acquisition lessened competition in elementary 
school mathematics programs and sought a divestiture of one of these 
programs as well. They place particular emphasis on the value that they 
believe competition has had in the development of innovative 
mathematics textbooks and point to increased concentration among 
publishers in this area. They urge the Court to ``require the plaintiff 
to revisit the proposed final settlement to show cause why relief 
similar to that provided for elementary school science not be required 
for elementary school mathematics as well.''
    The United States conducted a thorough investigation of the likely 
impact of Pearson's proposed acquisition of the Viacom publishing 
businesses on numerous possible markets, including the market for the 
development, marketing and sale of elementary school mathematics 
textbooks. The investigation included the review of thousands of 
documents, and information from numerous industry sources, including 
teachers, school administrators, authors, professors and publishers. 
Based on that investigation, the United States concluded that the 
acquisition would lessen competition in violation of Section 7 of the 
Clayton Act with respect to elementary school science programs, and the 
thirty-two college textbook markets alleged in the Complaint.
    In essence, the authors of this comment ask the Court to require 
the United States to amend its Complaint to allege an additional 
violation of Section 7 of the Clayton Act and to seek additional 
relief, or, at least, to inquire into the government's investigation 
and require it to explain and justify its analysis and conclusions. 
Such judicial review of the government's determination of which conduct 
to challenge or which violations to allege in the Complaint is not 
contemplated by the Tunney Act. The government's decision not to 
challenge particular conduct based on the facts and law before it at a 
particular time, like any other decision not to prosecute, ``involves a 
complicated balancing of a number of factors which are peculiarly 
within [the government's] expertise.'' Heckler v. Chaney, 470 U.S. 821, 
831 (1985). As the United States Court of Appeals for the District of 
Columbia recently held, it is not the role of the Court in a Tunney Act 
proceeding to go beyond the Complaint ``to evaluate claims that the 
government did not make and to inquire as to why they were not made.'' 
United States v. Microsoft Corp., 56 F.3d 1448, 1459 (D.C. Cir. 1995). 
Last year, the United States Court of Appeals for the District of 
Columbia stated that courts, in making their public interest 
determination:

must examine the decree in light of the violations charged in the 
complaint and should withhold approval only if any of the terms 
appear ambiguous, if the enforcement mechanism is inadequate, if 
third parties will be positively injured, or if the decree otherwise 
makes ``a mockery of judicial power.''

Massachusetts Sch. of Law at Andover, Inc. v. United States, 118 F.3d 
776, 783 (D.C. Cir. 1997), quoting United States v. Microsoft Corp., 56 
F.3d 1448, 1462 (D.C. Cir. 1995).

III. Conclusion

    After careful consideration of these public comments, the United 
States has concluded that entry of the proposed Final Judgment will 
provide an effective and appropriate remedy for the antitrust 
violations alleged in the Complaint, and is therefore in the public 
interest. When those comments and this response are published in the 
Federal Register, the United States will move the Court to enter the 
proposed Final Judgment.

    Dated: April 22, 1999.

      Respectfully submitted,
John W. Poole (DC Bar #56944)
Joyce L. Bartoo (DC Bar #359264)
David C. Kully (DC Bar #448763)
Ahmed E. Taha,
Attorneys for the United States, Antitrust Division, U.S. Department of 
Justice, 325 Seventh Street, NW., Suite 300, Washington, DC 20530, 
(202) 616-5943.

Attachment 1

To: Ms. M. J. Moltenbrey,
Chief Civil Taskforce, Anti-Trust Division, United States Department 
of Justice
Re: Forced sale of my book from Prentice-Hall

    I am a co-author of two books currently published by Prentice-
Hall--Mathematics for Elementary Teachers and Mathematics in Life, 
Society, and the World. A couple of months ago, I was notified by 
Prentice-Hall that the first book had to be sold to allow the 
purchase of Simon-Schuster by Pearson. I asked if I had any rights 
and was told that this was a ruling of the Department of Justice--
that was it! I just found out that I do, in fact, have a chance to 
comment--perhaps to object and obtain a reversal in the ruling.
    I understanding that there are anti-trust considerations in this 
case. However, there are also human and artistic considerations that 
you can consider. Let me share these with you.
    1. We are currently in the revision process for both of my 
books. Prentice-Hall is

[[Page 24176]]

committed to publishing BOTH books and the books are scheduled for 
July/August publication dates so our adopters can have the most up-
to-date books for their students this fall. Forcing the sale of 
either of these books will jeopardize this schedule. Forcing the 
sale of these books as a package may work to our disadvantage since 
there is no guarantee that both books will be published by another 
publisher.
    2. Although my books have separate markets, there is overlap in 
the material and instructors who use one of my books are likely to 
want to use the other. When marketing, Prentice-Hall is motivated to 
make this connection. If my books are split, I and my co-authors 
will suffer because this connection will be less obvious.
    3. Prentice-Hall is planning to add a CD/Web package to my 
Mathematics for Elementary Teachers book. This will be a creative 
addition to the marketplace. However, there is no guarantee another 
publisher will pick up these extras. In this case, instructors and 
their students are the ones who will be disadvantaged.
    4. Prentice-Hall and Addison-Wesley both have other competing 
books for elementary teachers that they can sell without causing a 
disruption as described in items 1 through 3 above.
    By allowing my two books to stay with Prentice-Hall, authors, 
instructors, and students benefit. I hope that you, the Department 
of Justice, and the court can review the uniqueness of this 
situation and will work to provide some justice for individuals in 
this case.

      Sincerely,
Gary L. Musser

Attachment 2

February 6, 1999.
To: M.J. Moltenbrey,
Chief, Civil Task Force, 325 Seventh Street, Suite 300, Washington, 
D.C. 20530.
Cc: John Poole
Joel J. Klein
Sen. Daniel Akaka
Rep. Patsy Mink

    I am a textbook author whose texts are published by Prentice 
Hall. My first book contract was signed in 1981, and I have been 
writing either part time or full-time since then. I am a member of 
the Authors Guild, the National Writers Union, and the Text and 
Academic Authors Association. As college faculty, I am also a member 
of the National Association of Biology Teachers, the Society for 
College Science Teachers, the American Physiological Society, and 
the Human Anatomy and Physiology Society. I am therefore well 
acquainted with both the process of textbook authoring and 
publishing and the dynamics of our educational system from a faculty 
member's perspective. I am writing to express my concerns about the 
Final Judgement issued by the Department of Justice permitting the 
merger of Pearson Inc. and the educational publishing units of 
Viacom. During the evaluation period I provided information to Mr. 
Poole and his associates at the DoJ, and I feel that the Judgement 
does not adequately address several of the problematic aspects of 
this merger.
    The Final Judgement as stipulated will not in fact preserve 
competition and innovation in the market. Innovation in the textbook 
today is occurring most rapidly in the hi-tech electronic areas. 
Examples include companion web-sites, course management software, 
distance learning systems, computer-based testing programs, 
interactive tutorials and simulations, and presentational systems 
and software. With very few exceptions, all of these products are 
given away free when the corresponding textbook is adopted. The 
development, upgrading, and maintenance of these products, which is 
very expensive, thus represents a continual drain on corporate 
profits. These expenditures can only be justified on the grounds 
that they will increase the market share of the associated textbook. 
In a market with many competitors, the associated costs are high 
enough that each publisher tends to have specialties. Thus with 6 
competing publishers, each with viable texts, each would have a full 
range of supplements, but each would spend extra money on developing 
one particularly innovative product or approach different from (or 
better than) what was offered by the competition. These innovations 
would of course be focal points for sales and marketing 
presentations. Meanwhile, each company would be continually looking 
for cost-effectives ways to match or better the strengths of the 
competition.
    When competitors A and B merge, the new company pools resources 
within their disciplines. Let me give you a specific example from 
the discipline where I publish (anatomy and physiology). Prentice 
Hall had what was generally recognized as the best web-site 
technology and the most innovative lecture presentation software 
available with their texts. Addison-Wesley/Longman had great 
physiology simulations available with their A&P texts. PH was 
actively working on physiology simulations that would be competitive 
(and out-do) the AWL offerings, while AWL was trying to improve 
their web-sites and their presentational software. But now under 
Pearson the web-site, presentational software, and simulation 
programs will be shared. This has three noteworthy effects on 
competitiveness:
    1. Prentice Hall can abandon its efforts to develop unique 
simulations, and AWL can stop worrying about building a better web-
site or developing new presentational software.
    2. The combined companies are able to offer a great web-site, 
good presentational software, and great simulations with any of 
their texts. It therefore becomes even more difficult for other 
publishers to compete in this market. The stakes have now been 
raised--a publisher must face the combined threat of both the web-
site, presentational software, and simulations, whereas before it 
need only compete with individual offerings. The costs are so high 
that small publishers are priced out of the market, and over time 
many large publishers have been forced to cut lists to devote money 
and personnel to supporting an ever-smaller number of texts. The 
Department of Justice could of course say that this sort of thing is 
a benefit to consumers, since an instructor can order a good text 
and get a great web-site, good presentational software, and terrific 
simulations. But that is precisely the argument that Microsoft is 
using to oppose the DoJ's antitrust suit. If the DoJ feels that it 
is wrong to give that kind of market power to a software company, 
why permit it in the textbook market?
    3. The authors of the individual texts published by either 
company lose their distinctiveness and their marketing momentum. 
This drastically reduces competition between PH and AWL titles. It 
doesn't matter to Pearson whether a particular sale is credited to 
PH or AWL, as long as the sale stays ``in the family.'' But it 
matters a great deal to the individual authors involved. I find it 
infuriating that projects that I have worked on for years--including 
the related software and web-sites--should be turned over to my 
competition. My texts were often the ``test cases'' for developing 
these products. Once the bugs were ironed out, the product was used 
as a template that could benefit other PH texts. All of the time and 
effort that I expended in evaluating and enhancing these products is 
essentially lost when they are handed to AWL. Furthermore, I worked 
with the programmers for over a year developing a CD-ROM interactive 
version of my text. Now that shell will also be handed over to my 
competition. In essence, my ability to continue to be innovative and 
to increase the market share of my texts has been severely 
compromised. Further, my interest in ``pushing the envelope'' of 
technology is greatly diminished since whatever I do will be 
immediately gifted to a major competitor.
    Even after the divestiture (see comments below) PH and AWL will 
control 50-60% of the A&P market; my text accounts for about 25%. 
Prior to the merger I was competing aggressively for 75% of the 
market, and gaining market share rapidly against AWL. Now Pearson 
will compete for 40-50% of the market, with minimal (or managed) 
competition between my text and AWL titles. This is certainly not a 
demonstration of ``increased competitiveness.''
    Concerning the divestiture of titles. I do not believe that 
eliminating the books specified will materially affect the scoper or 
competitive force of the combined companies. The DoJ has identified 
55 titles with annual gross revenues of roughly $35 million from a 
combined list of approximately 3500 titles and annual gross revenues 
of $2.4 billion. The titles per se are much less important than the 
leverage that the combined corporation can bring to bear, and this 
applies even to markets that they do not dominate at present. 
However, the divestiture will have a serious negative impact on the 
authors involved. The books will be in turmoil for the next edition 
cycle at least--handing a textbook to another publisher is not like 
giving another retailer a toaster. The books are transferred without 
many of the factors that made them successful. Obvious examples of 
important factors are the editorial teams, marketing specialists, 
and sales representatives familiar with the product, but less 
obvious and equally important factors include the programming teams 
that developed the

[[Page 24177]]

supplements packages, web-sites. CD-ROMs, and so forth. Without 
exception the titles transferred to another publisher will lose 
market share; this is not due to any fault of Pearson's, it is just 
a fact of life. A publisher entering these new markets will have no 
track record with the faculty, and relationship sales are important 
in this industry. Further, their sales reps will be uncertain as to 
key features and competitive issues. Of course, by default most of 
the market share lost by these titles will be captured by Pearson, 
and this circumvents the stated goal of the divestiture.
    As faculty members, textbook authors are the only people with 
direct experience in all areas affected by this merger--textbook 
writing production, marketing, and sales, as well as market 
dynamics, faculty concerns, and the educational system in general. 
It is therefore disconcerting that the issues raised by the Authors 
Guild, the Text and Academic Authors Association, and the National 
Writers Union--all of whom strongly opposed this merger--have been 
largely ignored. The combination of these companies will further 
reduce the opportunities for new authors, new texts, and new 
publishers. Small publishers are already unable to compete in 
markets where the cost of entry is so very high. Ten years ago an 
aspiring author in the biological sciences could approach 8 major 
publishers with a manuscript idea. Now that author could approach 2 
or 3 (depending on the topic), and the odds are that each already 
has one or more titles in that market. Along with the decrease in 
opportunity comes a reduction in leverage and bargaining power. It 
has become increasingly difficult to negotiate favorable contract 
terms--after all, where else are you going to go?
    For all of the above reasons I would like to see the Department 
of Justice review and revise its Judgement regarding this merger. It 
is probably logistically impossible to reverse the decision, as the 
companies are well into their integration phase. However, I would 
suggest that you consider adding provisions that would permit the 
amalgamation of ``backroom'' operations, such as inventory, 
accounting, purchasing, etc., but require the continued maintenance 
of separate imprints and competition in the market. This would 
involve specifically prohibiting the merging of lists and the 
coalescing of related divisions, such as acquisitions, editorial, 
marketing, sales, and technology support for the imprint titles.
    This would not be particularly popular with Pearson, as it would 
limit their ability to maximize economies of scale, but it would be 
in keeping with Pearson's assurances to the FTC prior to merger 
approval, which indicated that the companies would remain separate 
and competing. It is worth noting that the consolidation process is 
already well underway. Technology transfers have begun as noted 
above, and reorganization of the sales staff and extensive merging 
of book lists have been scheduled for the first half of 1999.
    If the DoJ's goals are the maintenance of competition and 
innovation, PH and AWL texts must compete with one another as well 
as with texts published by other companies. The two companies must 
therefore maintain their distinctive character, and they should 
continue to develop competitive technologies for web-sites, 
presentations, and simulations. If that were stipulated, I am not at 
all convinced that a divestiture list is needed, and the authors 
involved could be spared a lot of personal and financial distress.
    If you have any questions, please feel free to contact me. With 
best wishes, I remain.

      Sincerely,
Frederic Martini,
[email protected]

Attachment 3

December 28, 1998.
Ms. M.J. Moltenbrey,
Chief, Civil Task Force, U.S. Department of Justice, 325 Seventh 
Street, suite 300, Washington, DC 20530.
Via Fax #202-514-7300
Re: Pearson's purchase of Viacom Publishing Businesses

    Dear Ms. Moltenbrey: I am writing to voice strong opposition to 
the proposed settlement decree dated 11/23/98.
    As one of the few remaining small players in the educational 
publishing world, we applaud the intent of the decree, but we have 
serious concerns that the decree will not achieve the intended 
results. It is likely that the divested products will ultimately 
land in the hands of one of the other giants in our industry and 
thus the impact of your decree will be negligible.
    Your press release quotes Joel I. Klein, Assistant Attorney 
General of the Department of Justice Antitrust Division, ``Education 
is an important national priority, and competition is essential to 
ensure that our students have the best available educational 
materials.'' If you truly believe this statement, then you must take 
your decree one step further and allow some of the smaller players 
in the industry an opportunity to purchase these products. Simply 
allowing Pearson to sell these textbooks for an estimated $40 
million to one of their next largest competitors is a serious waste 
of everyone's time and will not fulfill your stated objective of 
enhancing competition in the industry.
    I would welcome an opportunity to discuss this matter with you 
in greater detail. Thank you for your consideration.

      Sincerely,
Clayton E. Jones,
Chief Executive Officer.

Attachment 4

January 19, 1999.
Mary Jean Moltenbrey,
Chief, Civil Task Force, Antitrust Division, United States 
Department of Justice, 325 Seventh Street, N.W., Suite 300, 
Washington, DC 20530.

    Dear Ms. Moltenbrey, Pursuant to the matter now before the 
United States District Court for the District of Columbia No. 1: 98-
CV-02836 (Antitrust), we are writing to comment upon the proposed 
``Final Judgment'' as indicated in Section V, PROCEDURES AVAILABLE 
FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT of the COMPETITIVE 
IMPACT STATEMENT filed in the District Court by the plaintiff's 
attorney, John W. Poole (Senior Trial Attorney, U.S. Department of 
Justice). While we concur with the consent decree's resolution of 
the deleterious effects upon the elementary school science textbook 
market of the proposed acquisition of certain Viacom International, 
Inc. publishing businesses by Pearson, Inc., the decree does not 
address similar and potentially more damaging effects upon 
elementary school mathematics in the United States.
    As the court document states ``absent a showing of corrupt 
failure of government to discharge its duty'' the court can at most 
determine'' ``whether the settlement is within the reaches of the 
public interest''. It is our contention that, insofar as the 
mathematical education of American children is in the public 
interest, the absence of a competitive impact statement regarding 
the elementary school mathematics textbook market renders the 
proposed settlement not ``within the reaches of public interest''. 
The importance of this oversight is especially critical due to the 
fact that the national mathematics market is three times as large as 
that of science.
    A competitive impact statement for the elementary school 
mathematics textbook market would be remarkably symmetric to that 
provided to the Court for elementary school science (Section B-1-a, 
b). The following is an example of what the Justice Department 
should have stipulated:

Basal Elementary School Mathematics Program Market

A. Description of the Market

    Most elementary schools throughout the United States teach 
mathematics through comprehensive mathematics programs known as 
``basal elementary school mathematics programs'', which provide 
organization and structure as well as guidance and support in how to 
teach the subject. Student textbooks and teacher's editions of the 
textbooks are the core of most basal programs, but most also include 
other important educational materials and services called 
``ancillary'' materials consisting of student workbooks and 
notebooks, audio-visual aids such as charts and videotapes, and 
materials for mathematics exercises and activities. Basal elementary 
mathematics programs also often include services such as teacher 
training sessions.
    School districts or individual schools desiring to purchase 
basal elementary school mathematics programs would not turn to any 
alternative product in sufficient numbers to defeat a small but 
significant increase in the price of these programs or a reduction 
in the value of ancillary materials and services provided with them. 
For example, schools would not substitute any of the few 
nontraditional, alternative mathematics programs in sufficient 
numbers to defeat a small but significant price increase in basal 
elementary school mathematics programs.

B. Harm to Competition as a Consequence of the Merger

    Pearson and Viacom are two of only five large publishers of 
basis elementary mathematics programs. They consistently have led 
the market, capturing a combined

[[Page 24178]]

share of over fifty percent of new sales over the last six years. 
Pearson's program is a close copy of Viacom's program but, at 
present, has a significantly smaller market share. Pearson and 
Viacom also compete to maintain and improve programs that were 
intended to be offered to sale throughout the United States 
beginning in 1999.
    Pearson and Viacom's aggressive competition has led to lower 
prices, more and better ancillary materials and services, and 
improvement of product quality. The proposed acquisition would 
eliminate this competition and would further concentrate an already 
highly concentrated market.
    Successful entry into the basal elementary school mathematics 
program market is difficult, time consuming, and costly. A publisher 
would need to assemble editorial, sales and training staffs to 
develop, test, market and provide ongoing support for the new 
program and would need to overcome schools' reluctance to purchase 
an elementary school mathematics program from firms lacking an 
established reputation as a experienced and reliable mathematics 
publisher. This complaint alleges that the transaction would likely 
have the following effects:
    a. actual and future competition between Pearson and Viacom in 
the elementary school mathematics textbook market would be 
eliminated;
    b. competition generally in the market for basal elementary 
school mathematics programs would be substantially lessened since it 
is likely that Pearson would not continue the development of new 
products already in progress at Silver Burdett Ginn;
    c. prices for basal elementary school mathematics programs would 
likely increase or the ancillary materials and services would likely 
decline; and
    d. competition in the development and improvement of basal 
elementary school programs would likely be substantially lessened as 
a result of the consolidation of Addison Wesley, Scott Foresman and 
Silver Burdett Ginn--all acquired or to be acquired by Pearson.
    Item (d) above addresses the ``development and improvement of 
basic elementary school mathematics programs'' and is of special 
significance. Prior to Pearson's acquisition and merger of Scott 
Foresman and Addison Wesley Longmans, both of these distinguished 
publishing houses competed actively and independently with Silver 
Burdett Ginn and three other large firms in developing innovative 
mathematics textbooks for American elementary schools. As a result 
of Pearson's merger of Scott Foresman and Addison Wesley Longmans, 
six major innovators were reduced immediately to five. If the 
Pearson acquisition of Viacom Inc's Silver Burdett Ginn division is 
permitted to proceed without restriction, the original six 
innovators will have been reduced to four in less than four years--a 
33% market contraction! Together the three independent houses that 
will have been merged under the Pearson, Inc. label have held 
elementary school children and teachers--to permit Pearson, Inc. to 
eliminate the most viable competition in the elementary school 
textbook market through acquisition and suppression?
    We respectfully urge that the District Court require the 
plaintiff to revisit the proposed final settlement to show cause why 
relief similar to that provided for elementary school science not be 
required for elementary school mathematics as well.

    Respectfully submitted:
Bruce R. Vogeli,
Clifford Brewster Upton Professor, Program in Mathematics.
Herbert Ginsburg,
Jacob Schiff Professor, Program in Psychology.
Carole Greenes,
Professor of Mathematics and Associate Dean, Boston University.

Certificate of Service

    This certifies that on April 22, 1999, I caused copies of the 
foregoing Response to Public Comments to be served as indicated upon 
the parties to this action and courtesy copies to be served as 
indicated upon each commenter:
    By hand:

Robert S. Schlossberg, Esquire, Morgan, Lewis & Bockius, 1800 M Street, 
NW, Washington, DC 20036-5689, Counsel for Pearson plc and Pearson, 
Inc.

    By first class certified mail:

Wayne D. Collins, Equire, Shearman & Sterling, 599 Lexington Avenue, 
New York, NY 10022, Counsel for Viacom International Inc.
Mr. Clayton E. Jones, Jones and Bartlett, 40 Tall Pine Drive, Sudbury, 
MA 01776
Professor Gary L. Musser, 2236 Airlands Street, Las Vegas, NV 89134
Professors Vogeli Ginsburg and Greenes, c/o Professor Bruce R. Vogeli, 
Teachers College, Columbia University, Box 210, West 120th Street, New 
York, NY 10027-6696
Professor Federic Martini, 5071 Hana Highway, Haiku, HI 96708
John W. Poole.

[FR Doc. 99-11269 Filed 5-4-99; 8:45 am]
BILLING CODE 4410-11-M