[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Notices]
[Pages 32538-32551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15419]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Computer Associates International, Inc.; 
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 Amended Final 
Judgment, Hold Separate Stipulation and Order and Competitive Impact 
Statement have been filed with the United States District Court for the 
District of Columbia in United States of America v. Computer 
Associates, International, Inc. and PLATINUM Technology International, 
Inc., Civil Action No. 1:99CV01318. On May 25, 1999, the United States 
filed a Complaint and on June 8, 1999, the United States filed 
amendments to the Complaint. The Complaint, as amended, alleges that 
the proposed acquisition by Computer Associates International, Inc. 
(CA) of PLATINUM Technology International, Inc. (Platinum) would 
violate Section 7 of the Clayton Act, 15 U.S.C. 18, in the markets for 
the following systems management software products used on IBM and IBM-
compatible mainframe computers with the MVS (now renamed OS/390) or VSE 
operating systems: (1) MVS (OS/390) job scheduling and rerun software; 
(2) VSE job scheduling and rerun software; (3) MVS (OS/390) tape 
management software; (4) VSE automated operations software; (5) MVS 
(OS/390) change management software; (6) MVS (OS/390) job accounting 
and chargeback software and (7) VSE job accounting and chargeback 
software. The proposed Amended Final Judgment, filed at the same time 
as the amendments to the Complaint, requires the appointment of a 
trustee to divest to a purchaser approved by the United States the 
software products that Platinum sells in each of these markets, along 
with certain related tangible and intangible assets. Copies of the 
Complaint, amendments to the Complaint, proposed Amended Final Judgment 
and Competitive Impact Statement are available for inspection at the 
Department of Justice in Washington, DC, in Room 200, 325 Seventh 
Street, NW., and at the Office of the Clerk of the United States 
District Court for the District of Columbia, Washington, DC.
    Public comment is invited within 60 days of the date of this 
notice. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to Nancy M. Goodman, Chief, Computers & Finance Section, Antitrust 
Division, U.S. Department of Justice, 600 E Street, NW., Suite 9500, 
Washington, DC 20530 (telephone: (202) 307-6200).
Constance Robinson,
Director of Operations and Merger Enforcement.
    United States of America, Plaintiff, v. Computer Associates 
International, Inc. and Platinum Technology International, Inc., 
Defendants.

[Civil Action No. ________________; Filed: May 25, 1999]

Hold Separate Stipulation and Order

    It is hereby stipulated and agreed by and between the undersigned 
parties, subject to approval and entry by the Court, that:

I. Definitions

    As used in this Hold Separate Stipulation and Order:
    A. ``Computer Associates'' means defendant Computer Associates 
International, Inc., a Delaware corporation with its headquarters in 
Islandia, New York, and includes its successors and assigns, 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and directors, officers, managers, agents, and employees.
    B. ``Platinum'' means defendant PLATINUM technology International, 
inc., a Delaware corporation with its headquarters in Oakbrook Terrace, 
Illinois, and includes its successors and assigns, subsidiaries, 
divisions, groups, affiliates, partnerships and joint ventures, and 
directors, officers, managers, agents, and employees.
    C. ``Defendants'' means, collectively or individually as the 
context requires, Computer Associates and/or Platinum.
    D. ``Acquirer'' means acquirer or acquirers of any of the Platinum 
Assets ordered to be divested by Section IV.A of the proposed Final 
Judgment attached hereto.
    E. ``Divested Product'' means each of the following software 
products supplied by Platinum for use with the OS/390 or MVS mainframe 
operating system: (a) AutoSys/Zeke (formerly Altai's Zeke), (b) 
AutoRerun (formerly Altai's Zebb), (c) AutoMedia (formerly Altai's 
Zara), (d) CCC/Life Cycle Manager; and each of the following software 
products supplied by Platinum for use with the VSE mainframe operating 
system, (e) AutoSys/Zeke (formerly Altai's Zeke), and (f) AutoAction 
(formerly Altai's Zack). With respect to each of the foregoing, a 
Divested Product includes each predecessor version of the product and 
each version that has been or is currently under development or that 
has been developed but has not been sold or distributed.
    F. ``Platinum Assets'' means all tangible and intangible property 
or property rights owned or licensed by Platinum and reasonably 
required in developed, testing, producing, marketing, licensing, 
selling, or distributing any Divested Product, or in supplying any 
support or maintenance services for any Divested Product. The Platinum 
Assets include all of Platinum's rights, titles and interests in any 
asset which Platinum has the right to convey, license, sublicense or 
assign. If Platinum's rights in any Platinum Asset are licensed under 
terms that would prevent it from conveying, licensing, sublicensing or 
assigning

[[Page 32539]]

such rights to an Acquirer, defendants shall take no action (such as 
asserting or enforcing any exclusive rights included in Platinum's 
license of its rights to the asset) to bar the licensor of such asset 
from licensing rights in the asset to an Acquirer for use with any 
Divested Product, and defendants shall take all reasonable steps 
(including, but not limited to, promptly executing necessary documents 
or agreements with such licensor) to cooperate with and assist an 
Acqurier in obtaining such a license, provided, however, that nothing 
contained herein shall prevent defendants from asserting or enforcing 
any exclusive rights possessed by Platinum to prevent an Acquirer from 
using such licensed assets other than with a Divested Product. The 
Platinum Assets include, but are not limited to:
    (1) Each Divested Product;
    (2) All source code and object code for the version or versions of 
a Divested Product currently being sold or distributed anywhere in the 
world (including patches), all existing source code and object code for 
all prior versions previously sold or distributed anywhere in the world 
(including patches), and all other source code and object code for all 
versions of a Divested Product under development or developed but not 
yet being sold or distributed (including patches). Defendants shall not 
retain copies of any of the foregoing code, provided however, that to 
the extent at the time Computer Associates announced its proposed 
acquisition of Platinum any such code was also contained in Platinum 
products other than Divested Products (``retained code'') defendants 
shall retain a perpetual, irrevocable, fully paid-up worldwide license 
to retain and use such retained code in any products that are not 
Divested Products, except that defendants shall not use such retained 
code to develop a product that is substantially identical to a Divested 
Product or that competes in any market described in the Complaint. The 
proposed Final Judgment attached hereto imposes no restrictions on 
defendants with respect to products, or source and object code for such 
products, owned or controlled by Computer Associates at the time 
Computer Associates announced its proposed acquisition of Platinum;
    (3) All software customizations, optional modules and add-ons for a 
Divested Product;
    (4) All development tools, development environments, proprietary 
programming languages, know-how, designs, drawings, specifications, 
research data, trade secrets, copyrights, rights under patents, and all 
other intellectual property which Platinum has used to develop, 
upgrade, or maintain a Divested Product;
    (5) All software programs, instructions, manuals, know-how, trade 
secrets, or documentation that Platinum has used or supplied to a user 
of a Divested Product to facilitate installation or operation of any 
Divested Product, or to facilitate migration or conversion to the use 
of any Divested Product from the use of any other product;
    (6) All technical or development documentation, and all marketing 
information, sales training material, sales collateral, customer lists 
and credit reports and maintenance documentation used for a Divested 
Product;
    (7) Assignment of license or maintenance agreements including a 
Divested Product. In the event any such license or maintenance 
agreement includes any products or services other than a Divested 
Product, defendants or such other persons holding ownership rights to 
such other products or services shall retain all contractual rights 
relating to such other products or services;
    (8) With respect to all assigned licenses and maintenance 
agreements identified in Subsection I.F.(7) above, a sum of money equal 
to the pro rata amount of all maintenance fees for a Divested Product 
already paid to defendants pursuant to such maintenance agreements to 
the extent such fees paid relate to service periods after the date of 
such assignment. With respect to all such assigned licenses and 
maintenance agreements that include any products or services other than 
a Divested Product, the maintenance fees to be attributed to a Divested 
Product shall be calculated on a pro rata basis by apportioning the 
maintenance fees among the products and services subject to such 
agreements in a ratio derived from the list price of each product or 
service as of the date upon which such license and maintenance 
agreement became effective to the total of such list prices for all the 
products and services subject to such agreements. For any multi-year 
agreement assigned, the allocation described herein applies only to 
that portion of revenues attributable to maintenance fees. Defendants 
shall not allocate nor shall any Acquirer be entitled to receive any 
portion of revenues attributable to licensing of a Divested Product. 
This method of allocation of maintenance fees applies to both the 
allocation of maintenance fees already paid to defendants and payable 
in the future relating to service periods after the date of such 
assignment;
    (9) All files and records maintained by Platinum for any customer 
licensee of any Divested Product, including customer licenses, 
maintenance agreements, and other agreements, all customer call reports 
(or portions thereof relating to any Divested Product), pricing 
information for the Divested Products, support and maintenance logs for 
the Divested Products; all customer leads, customer pipeline reports, 
customer proposals or other information maintained by defendants to 
license and support any Divested Product. Where any such information 
relates to both a Divested Product and other products and services, 
defendants shall use their best efforts to segregate the information 
that relates to the Divested Products and shall provide, and shall not 
retain, such segregated information to the Acquirer; and
    (10) The trademarks ``Zeke'', ``Zebb'', ``Zara'', ``Zack'', 
``AutoRerun'', and ``AutoMedia'', and for a period of eighteen (18) 
months from the time the Acquirer purchases the Divested Product, the 
Acquirer of AutoSys/Zeke may use the phrase ``formerly known as 
AutoSys/Zeke'' in connection with the marketing, sale, or distribution 
of that Divested Product; the Acquirer of AutoAction for VSE may use 
the phrase ``formerly known as AutoAction for VSE'' in connection with 
the marketing, sale, or distribution of that Divested Product; the 
Acquirer of CCC/Life Cycle Manager may use the phrases ``formerly known 
as CCC/Life Cycle Manager'' and ``formerly known as CCC/LCM'' in 
connection with the marketing, sale, or distribution of that Divested 
Product, and thereafter, defendants will not object to that Acquirer's 
use of ``Life Cycle Manager'' or ``LCM''.

II. Objectives

    The Final Judgment filed in this case is meant to ensure 
defendants' prompt divestiture of the Platinum Assets for the purpose 
of preserving and maintaining competition that currently exists between 
Computer Associates and Platinum in the markets for the development, 
sale and maintenance of the mainframe software products described in 
the Complaint and thereby to remedy the anticompetitive effects that 
plaintiff alleges would otherwise result from Computer Associates' 
proposed acquisition of Platinum. This Hold Separate Stipulation and 
Order ensures, prior to such divestiture, that the Platinum Assets to 
be divested be maintained as an independent, economically viable, 
ongoing business concern during the pendency of the divestiture.

[[Page 32540]]

III. Jurisdiction and Venue

    The Court has jurisdiction over the subject matter of this action 
and over each of the parties hereto, and venue of this action is proper 
in the United States District Court for the District of Columbia.

IV. Compliance With and Entry of Final Judgment

    A. The parties stipulate that a Final Judgment in the form attached 
hereto as Exhibit A may be filed with and entered by the Court, upon 
the motion of any party or upon the Court's own motion, at any time 
after compliance with the requirements of the Antitrust Procedures and 
Penalties Act (15 U.S.C. 16), and without further notice to any party 
or other proceedings, provided that the United States has not withdrawn 
its consent, which it may do at any time before the entry of the 
proposed Final Judgment by serving notice thereof on defendants and by 
filing that notice with the Court.
    B. Defendants shall abide by and comply with the provisions of the 
proposed Final Judgment, pending the Judgment's entry by the Court, or 
until expiration of time for all appeals of any Court ruling declining 
entry of the proposed Final Judgment, and shall, from the date of the 
signing of this Stipulation by the parties, comply with all the terms 
and provisions of the proposed Final Judgment as though the same were 
in full force and effect as an order of the Court.
    C. Defendants shall abide by and comply with all provisions of this 
Hold Separate Stipulation and Order, pending the Order's entry by the 
Court, or until expiration of time for all appeals of any Court ruling 
declining entry of the Order, and shall, from the date of the signing 
of this Stipulation by the parties, comply with all the terms and 
provisions of the proposed Hold Separate Stipulation and Order as 
though the same were in full force and effect as an order of the Court.
    D. This Stipulation shall apply with equal force and effect to any 
amended proposed Final Judgment agreed upon in writing by the parties 
and submitted to the Court.
    E. In the event: (1) The United States has withdrawn its consent, 
as provided in Section IV.A. above, or (2) the proposed Final Judgment 
is not entered pursuant to this Stipulation, the time has expired for 
all appeals of any Court ruling declining entry of the proposed Final 
Judgment, and the Court has not otherwise ordered continued compliance 
with the terms and provisions of the proposed Final Judgment, then the 
parties are released from all further obligations under this 
Stipulation, and the making of this Stipulation shall be without 
prejudice to any party in this or any other proceeding.

V. Consent to Amendment

    A. Contemporaneously with the acceptance for payment of the 
tendered shares of Platinum by Computer Associates, Computer Associates 
shall convey to CIMS Lab, Inc. all of its rights, titles and interests 
in the CIMS product line, which includes CIMS MVS Resource Accounting 
Systems; CIMS UNIX/NT; CIMS MVS Capacity Planner; CIMS VSE; CIMS VMS; 
CIMS Desktop; CIMS Report Writer (Spectrum Writer); and all products 
related to any of the foregoing (collectively, the ``CIMS product 
line''). Such conveyance shall be pursuant to contracts and licenses 
executed prior to the filing of the Complaint in this matter and 
approved by plaintiff, in its sole discretion.
    B. If defendants do not effectuate the conveyance of the CIMS 
product line at the time and in the manner specified in Section V.A. 
above, defendants consent:
    (1) To the filing of an Amended Complaint by the United States in 
this matter adding allegations relating to the product markets in which 
the CIMS product line is developed, marketed and sold, and such other 
allegations relating to the CIMS product line as plaintiff in its sole 
discretion deems necessary to effectuate full relief as regards the 
CIMS product line;
    (2) To the filing of a proposed Amended Final Judgment in this 
matter adding the CIMS product line to the definition of ``Divested 
Product'' contained in Section II.E., and such other amendments to the 
proposed Amended Final Judgment as plaintiff in its sole discretion 
deems necessary to effectuate full relief as regards the CIMS product 
line;
    (3) That the CIMS product line shall be incorporated within the 
definition of ``Divested Product'' contained in Section I.E. of this 
Hold Separate Stipulation and Order; and
    (4) To be bound as fully in regards to the CIMS product line as 
defendants are regarding any other Divested Product presently 
incorporated in this Hold Separate Stipulation and Order and the 
proposed Final Judgment attached hereto.

VI. Hold Separate Provisions

    Until the divestiture required by the Final Judgment has been 
accomplished:
    A. Defendants shall use all reasonable efforts to preserve, 
maintain, and to the maximum extent feasible operate the Platinum 
Assets as an independent competitor with management, research, 
development, and operations of such assets held entirely separate, 
distinct and apart from those of defendants' other operations. 
Defendants shall not coordinate the development, production, marketing 
or sale of Divested Products with defendants' other operations. Within 
ten (10) calendar days of the filing of the Complaint in this matter, 
defendants will inform plaintiff of the steps taken to comply with this 
Hold Separate Stipulation and Order.
    B. Within ten (10) days of the filing of the Complaint, defendants 
shall take all reasonable steps necessary to ensure: (1) That the 
Platinum Assets will be maintained and operated as an independent, 
ongoing and economically viable competitor in the development, 
production, marketing and sale of the Divested Products; (2) that 
management will be provided for the Platinum Assets that is separate 
from the management of defendants' other operations; (3) that the 
management of the Platinum Assets will not be influenced by defendants; 
and (4) that the books, records, competitively sensitive sales, 
marketing and pricing information, and decisionmaking associated with 
the Platinum Assets will to the maximum extent feasible be kept 
separate and apart from the defendants' other operations. The 
defendants' influence over the Platinum Assets shall be limited to that 
necessary to carry out defendants' obligations under this Stipulation 
and Order and the Final Judgment. Defendants shall receive all 
historical, aggregate financial information relating to the Platinum 
Assets only to the extent necessary to allow defendants to prepare 
financial reports, tax returns, personnel reports, and other necessary 
or legally required reports. Nothing herein shall preclude defendants 
from examining any and all agreements acquired from Platinum and 
administering all such agreements.
    C. Except as is provided in this Hold Separate Stipulation and 
Order or is otherwise reasonably necessary to conduct the business of 
Platinum as it relates to products and services other than the Divested 
Products, defendants shall not collect or solicit competitively 
sensitive or other confidential information relating to the operations 
of the Platinum Assets from: (1) Information that currently is within 
the possession, custody or control of Platinum, (2) any current 
Platinum director, officer, manger, employee or other agent or (3) any 
former Platinum director, officer, manager, employee, or other agent 
who currently is subject to a nondisclosure agreement with

[[Page 32541]]

Platinum. All nondisclosure agreements to which Platinum is a party 
will continue in effect as to any information that relates to the 
Platinum Assets as if Computer Associates' proposed acquisition of 
Platinum did not occur, and the defendants will notify all of 
Platinum's employees as to their continuing obligations under such 
agreements. Information pertaining to the Platinum Assets that Computer 
Associates has obtained pursuant to its due diligence of Platinum of 
the extent feasible shall be segregated from the defendants' other 
information, kept confidential and not used by the defendants. Any 
nondisclosure agreements pursuant to which any information was 
collected during any due diligence review inspection will remain in 
effect as to any information that relates to the Platinum Assets as if 
Computer Associates' proposed acquisition of Platinum did not occur, 
and the defendants will notify all persons who received any due 
diligence information as to their continuing obligations under such 
agreements.
    D. Defendants shall use all reasonable efforts to: (1) Maintain or 
increase the current sales of the Divested Products, and (2) maintain 
at current or previously approved levels, whichever are higher, 
internal research and development funding (including, but not limited 
to, any funding or approved funding for obtaining or assuring Year 2000 
compliance), promotional, advertising, sales, technical assistance, 
marketing and merchandising support for the Divested Products.
    E. Defendants shall provide and maintain sufficient working capital 
or other financial resources to maintain the Platinum Assets as an 
economically viable, ongoing business.
    F. Defendants shall maintain in operable condition the development 
facilities for any of the Divested Products at no lower than the 
current level of equipment.
    G. Defendants shall not, except as part of a divestiture approved 
by plaintiff, remove, sell, lease, assign, transfer, pledge or 
otherwise dispose of or pledge as collateral for loans, any of the 
Platinum Assets.
    H. Until such time as the Platinum Assets are divested, except in 
the ordinary course of business or as is otherwise consistent with this 
Hold Separate Stipulation and Order, defendants shall not hire, 
transfer or terminate, or alter, to the detriment of any employee, any 
current employment or salary agreements for any employee who: (1) As of 
the date Computer Associates announced its proposed acquisition of 
Platinum, worked primarily on the Divested Products, or (2) is a member 
of management to be provided pursuant to Subparagraph VI.B. of this 
Hold Separate Stipulation and Order.
    I. The management for the Platinum Assets to be provided pursuant 
to Subparagraph VI.B. of this Hold Separate Stipulation and Order shall 
be appointed by defendants, subject to plaintiff's approval, within two 
(2) business days following the filing of the Complaint. Until such 
time as the Platinum Assets are divested, the management for the 
Platinum Assets to be provided pursuant to Subparagraph VI.B. of this 
Hold Separate Stipulation and Order shall have complete managerial 
responsibility for the Platinum Assets, subject to the provisions of 
this Order and the Final Judgment. In the event that any member of the 
management is unable to perform his or her duties, defendants shall 
appoint, subject to plaintiff's approval, a replacement acceptable to 
plaintiff within ten (10) working days. Should defendants fail to 
appoint a replacement acceptable to plaintiff within ten (10) working 
days, plaintiff shall appoint a replacement. Within ten (10) days 
following the filing of the Complaint, and for thirty (30) consecutive 
days thereafter, for each of the Divested Products, management of the 
Platinum Assets shall post on the Platinum web site a notice that 
includes on the first page of the web site a summary heading with a 
link to the full notice. The notice must include text to which the 
plaintiff has agreed and shall explain that the Platinum Assets will be 
divested to a purchaser approved by the United States, explain how the 
Platinum Assets will be managed and operated pending consummation of 
the required divestiture, and assure customers that they will receive 
continuing maintenance and product support for the Divested Products 
pending consummation of the required divestiture.
    J. Defendants shall take no action that would interfere with the 
ability of any trustee appointed pursuant to the Final Judgment to 
complete the divestiture pursuant to the Final Judgment to a purchaser 
acceptable to plaintiff.
    K. This Hold Separate Stipulation and Order shall remain in effect 
until the divestiture required by the Final Judgment is complete, or 
until further Order of the Court.

    Respectfully submitted, For Plaintiff United States of America:
N. Scott Sacks,
DC Bar #913087.
Kent Brown,
VA Bar #18300, Attorneys, Antitrust Division, Computers & Finance 
Section, U.S. Department of Justice, 600 E. Street, NW, Suite 9500, 
Washington, DC 20530, (202) 307-6200.
    For Defendants, Computer Associates International, Inc.:
Richard L. Rosen,
DC Bar #307231, Arnold & Porter, 555 Twelfth Street, NW, Washington, DC 
20004-1202, (202) 942-5000.
    For Defendant, PLATINUM Technology International, Inc.:
Larry S. Freedman,
IL Bar #6198768, Senior Vice President and General Counsel, 1815 South 
Meyers Road, Oakbrook Terrace, Illinois 60181-5241, (630) 620-5000.

    Dated: May 25, 1999.

Order

    It is so ordered, this ____ day of ________, 1999.
----------------------------------------------------------------------
United States District Court Judge.

Exhibit A

United States of America, Plaintiff, v. Computer Associates 
International, Inc. and PLATINUM Technology International, Inc., 
Defendants.

[Civil Action No. 1:99CV01318; Judge: Gladys Kessler, Deck Type: 
Antitrust, Date Stamp: ______ ]

Amended Final Judgment

    WHEREAS, plaintiff, the United States of America, having filed its 
Complaint in this action on May 25, 1999, and having filed amendments 
to the Complaint on June 8, 1999 (hereinafter the Complaint and the 
amendments to the Complaint are referred to collectively as 
``Complaint''), and plaintiff and defendants, by their respective 
attorneys, having consented to the entry of this Amended Final Judgment 
without trial or adjudication of any issue of fact or law herein, and 
with this Amended Final Judgment constituting any evidence against or 
an admission by any party with respect to any issue of law or fact 
herein, and that this Amended Final Judgment shall settle all claims 
made by the plaintiff in its Complaint;
    AND WHEREAS, defendants have agreed to be bound by the provisions 
of this Amended Final Judgment pending its approval by the Court;
    AND WHEREAS, the essence of this Amended Final Judgment is the 
prompt and certain divestiture of the identified software and 
associated assets to assure

[[Page 32542]]

that competition is not substantially lessened;
    AND WHEREAS, defendants have represented to plaintiff that the 
divestitures ordered herein can and will be made and that defendants 
will later raise no claims of hardship or difficulty as grounds for 
asking the Court to modify any of the divestiture provisions contained 
below;
    AND WHEREAS, plaintiff currently believes that entry of this 
Amended Final Judgment is in the public interest;
    NOW, THEREFORE, before the taking of any testimony, and without 
trial or adjudication of any issue of fact or law herein, and upon 
consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND 
DECREED as follows:

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and 
over the subject matter of this action. Venue is proper in this Court. 
The Complain states a claim upon which relief may be granted against 
defendants, as hereinafter defined, under Section 7 of the Clayton Act, 
as amended (15 U.S.C. 18).

II. Definitions

    As used in this Amended Final Judgment:
    A. ``Computer Associates'' means defendant Computer Associates 
International, Inc., a Delaware corporation with its headquarters in 
Islandia, New York, and includes its successors and assigns, 
subsidiaries, divisions, groups, affiliates, partnerships and joint 
ventures, and directors, officers, managers, agents, and employees.
    B. ``Platinum'' means defendant PLATINUM technology International, 
inc., a Delaware corporation with its headquarters in Oakbrook Terrace, 
Illinois, and includes its successors and assigns, subsidiaries, 
divisions, groups, affiliates, partnerships and joint ventures, and 
directors, officers, managers, agents, and employees.
    C. ``Defendants'' means, collectively or individually as the 
context requires, Computer Associates and/or Platinum.
    D. ``Acquirer'' means acquirer of any of the Platinum Assets 
ordered to be divested by Section IV.A of this Amended Final Judgment.
    E. ``Divested Product'' means each of the following software 
products supplied by Platinum for use with OS/390 or MVS mainframe 
operating system: (a) AutoSys/Zeke (formerly Altai's Zeke), (b) 
AutoRerun (formerly Altai's Zebb), (c) AutoMedia (formerly Altai's 
Zara), (d) CCC/Life Cycle Manager; each of the following software 
products supplied by Platinum for use with the VSE mainframe operating 
system, (e) AutoSys/Zeke (formerly Altai's Zeke), and (f) AutoAction 
(formerly Altai's Zack); and (g) the ``CIMS product line,'' which 
includes CIMS MVS Resource Accounting System; CIMS UNIX/NT; CIMS MVS 
Capacity Planner; CIMS VSE; CIMS VMS; CIMS Desktop; CIMS Report Writer 
(spectrum Writer); and all products related to any of the foregoing 
products in the CIMS product line. With respect to each of the 
foregoing, a Divested Product includes each predecessor version of the 
product and each version that has been or is currently under 
development or that has been developed but has not been sold or 
distributed. Any divestiture of Platinum's rights, titles and interests 
in the CIMS product line, pursuant to Section IV of this Amended Final 
Judgment, shall be subject to any rights held by CIMS Inc. as a result 
of the CIMS Distribution and Licensing Agreement, dated as of February 
21, 1999, between PLATINUM technology IP, inc. and CIMS Inc.
    F. ``Platinum Assets'' means all tangible and intangible property 
or property rights owned or licensed by Platinum and reasonable 
required in developing, testing, producing, marketing, licensing, 
selling, or distributing any Divested Product, or in supplying any 
support or maintenance services for any Divested Product. The Platinum 
Assets include all of Platinum's rights, titles and interests in any 
asset which Platinum has the right to convey, license, sublicense or 
assign. If Platinum's rights in any Platinum Asset are licensed under 
terms that would prevent it from conveying, licensing, sublicensing or 
assigning such rights to an Acquirer, defendants shall take no action 
(such as asserting or enforcing any exclusive rights included in 
Platinum's license of its rights to the asset) to bar the licensor of 
such asset from licensing rights in the asset to an Acquirer for use 
with any Divested Product, and defendants shall take all reasonable 
steps (including, but not limited to, promptly executing necessary 
documents or agreements with such licensor) to cooperate with and 
assist an Acquirer in obtaining such a license, provided, however, that 
nothing contained herein shall prevent defendants from asserting or 
enforcing any exclusive rights possessed by Platinum to prevent an 
Acquirer from using such licensed assets other than with a Divested 
Product. The Platinum Assets include, but are not limited to:
    (1) Each Divested Product;
    (2) All source code and object code for the version or versions or 
a Divested Product currently being sold or distributed anywhere in the 
world (including patches), all existing source code and object code for 
all prior versions previously sold or distributed anywhere in the world 
(including patches), and all other source code and object code for all 
versions of a Divested Product under development or developed but not 
yet being sold or distributed (including patches). Defendants shall not 
retain copies of any of the foregoing code, provided however, that to 
the extent at the time Computer Associates announced its proposed 
acquisition of Platinum any such code was also contained in Platinum 
products other than Divested Products (``retained code'') defendants 
shall retain a perpetual, irrevocable, fully paid-up worldwide license 
to retain and use such retained code in any products that are not 
Divested Products, except that defendants shall not use such retained 
code to develop a product that is substantially identical to a Divested 
Product or that competes in any market described in the Complaint. This 
Amended Final Judgment imposes no restrictions on defendants with 
respect to products, or source and object code for such products, owned 
or controlled by Computer Associates at the time Computer Associates 
announced its proposed acquisition of Platinum;
    (3) All software customizations, optional modules and add-ons for a 
Divested Product;
    (4) All development tools, development environments, proprietary 
programming languages, know-how, designs, drawings, specifications, 
research data, trade secrets, copyrights, rights under patents, and all 
other intellectual property which Platinum has used to develop, 
upgrade, or maintain a Divested Product;
    (5) All software program, instructions, manuals, know-how, trade 
secrets, or documentation that Platinum has used or supplied to a user 
of Divested Product to facilitate installation or operation of any 
Divested Product, or to facilitate migration or conversion to the use 
of any Divested Product from the use of any other product;
    (6) All technical or development documentation, and all marketing 
information, sales training materials, sales collateral, customer lists 
and credit reports and maintenance documentation used for a Divested 
Product;
    (7) Assignment of license or maintenance agreements including a 
Divested Product. In the event any such license or maintenance 
agreement includes any products or services other than a Divested 
Product, defendants or

[[Page 32543]]

such other persons holding ownership rights to such other products or 
services shall retain all contractual rights relating to such other 
products or services;
    (8) With respect to all assigned licenses and maintenance 
agreements identified in Subsection II.F.(7) above, a sum of money 
equal to the pro rata amount of all maintenance fees for a Divested 
Product (except the CIMS product line) already paid to defendants 
pursuant to such maintenance agreements to the extent such fees paid 
relate to service periods after their date of such assignment. With 
respect to all such assigned licenses and maintenance agreements that 
include any products or services other than a Divested Product, the 
maintenance fees to be attributed to a Divested Product shall be 
calculated on a pro rata basis by apportioning the maintenance fees 
among the products and services subjects to such agreements in a ratio 
derived from the list price of each product or service as of the date 
upon which such license and maintenance agreement became effective to 
the total of such list prices for all the products and services subject 
to such agreements. For any multi-year agreement assigned, the 
allocation described herein applies only to that portion of revenues 
attributable to maintenance fees. Defendants shall not allocate nor 
shall any Acquire be entitled to receive any portion of revenues 
attributable to licensing of a Divested Product. This method of 
allocation of maintenance fees applies to both the allocation of 
maintenances fees already paid to defendants and payable in the future 
relating to service periods after the date of such assignment;
    (9) All files and records maintained by Platinum for any customer 
licensee of any Divested Product, including customer licenses, 
maintenance agreements, and other agreements, all customer call reports 
(or portions thereof relating to any Divested Product), pricing 
information for the Divested Products, support and maintenance logs for 
the Divested Products; all customer leads, customer pipeline reports, 
customer proposals or other formation maintained by defendants to 
license and support any Divested Product. Where any such information 
relates to both a Divested Product and other products and services, 
defendants shall use their best efforts to segregate the information 
that relates to the Divested Products and shall provide, and shall not 
retain, such segregated information to the Acquire; and
    (10) The trademarks or pending trademarks ``Zeke'', ``Zebb'', 
``Zara'', ``Zack'', ``AutoRerun'', ``AutoMedia'', ``CIMS Capacity 
Panner'', ``CIMS Chargeback'', and ``CIMS+'', and for a period of 
eighteen (18) months from the time the Acquire purchases the Divested 
Product, the Acquire of AutoSys/Zeke may use the phrase ``formerly 
known as AutoSys/Zeke'' in connection with the marketing, sale, or 
distribution of the Divested Product; the Acquire of AutoAction for VSE 
may use the phrase ``formerly known as AutoAction for VSE'' in 
connection with the marketing, sale, or distribution of that Divested 
Product; the Acquire of CCC/Life Cycle Manager may use the phrases 
``formerly known as CCC/Life Cycle Manager'' and ``formerly known as 
CCC/LCM'' in connection with the marketing, sale or distribution of 
that divested Product, and thereafter, defendants will not object to 
the Acquirer's use of ``Life Cycle Manager'' or ``LCM''.

III. Applicability

    A. The provisions of this Amended Final Judgment apply to 
defendants, their successors and assigns, subsidiaries, affiliates, 
directors, officers, managers, agents, and employees, and all other 
persons in active concert or participation with any of them who shall 
have received actual notice of this Amended Final Judgment by personal 
service or otherwise. Defendants and each person bound by this Amended 
Final Judgment shall cooperate in ensuring that the provisions of this 
Amended Final Judgment are carried out.
    B. The Trustee appointed pursuant to Section IV of this Amended 
Final Judgment shall require, as a condition of the divestiture of the 
Platinum Assets required herein, that each Acquirer agree to be bound 
by the provisions of this Amended Final Judgment.

IV. Divestiture by Trustee

    A. Defendants are hereby ordered to divest the Platinum Assets to 
an Acquirer approved by the plaintiff in accordance with the terms of 
this Amended Final Judgment. Divestiture shall be accomplished by a 
trustee to be selected by plaintiff at its sole discretion. Defendants 
shall not object to the selection of the trustee on any grounds other 
than irremediable conflict of interest. Defendants must make any such 
objection within five (5) business days after plaintiff notifies 
defendants of the trustee's selection.
    B. Only the trustee shall have the right to divest the Platinum 
Assets. The trustee shall have the power and authority to accomplish 
any and all divestitures at the best price then obtainable upon all 
reasonable efforts of the trustee, subject to the provisions of this 
Amended Final Judgment, and shall have such other powers as the Court 
shall deem appropriate. The trustee shall the Platinum Assets in the 
manner that is most conducive to preserving and maintaining competition 
that currently exists between Computer Associates and Platinum in the 
markets for the development, sale and maintenance of the mainframe 
software products described in the Complaint. Subject to Section IV.C. 
of this Amended Final Judgment, the Trustee shall have the power and 
authority to hire at the cost and expense of Computer Associates any 
investment bankers, attorneys, or other agents reasonably necessary in 
the judgment of the trustee to assist in the divestitures, and such 
professional and agents shall be accountable solely to the trustee. The 
trustee shall have the power and authority to accomplish the 
divestitures at the earliest possible time to a purchaser or purchasers 
acceptable to the United States, and shall have such other powers as 
this Court shall deem appropriate.
    C. The trustee shall serve at the cost and expense of Computer 
Associates, on such terms and conditions as the plaintiff approves, and 
shall account for all monies derived from the sale of each asset sold 
by the trustee and all costs and expenses so incurred. After approval 
by the Court of the trustee's accounting, including fees for its 
services and those of any professionals and agents retained by the 
trustee, all remaining money shall be paid to Computer Associates and 
the trust shall then be terminated. The compensation of such trustee 
and of any professionals and agents retained by the trustee shall be 
reasonable in light of the value of the divested business and based on 
a fee arrangement providing the trustee with an incentive based on the 
price obtained and the speed with which divestiture is accomplished.
    D. Defendants shall take no action to interfere with or impede the 
trustee's accomplishment of the divestiture of the Platinum Assets, and 
shall assist the trustee in accomplishing the required divestitures. 
The trustee and any consultants, accountants, attorneys, and other 
persons retained by the trustee shall have full and complete access to 
the personnel, books, records, and facilities for the Platinum Assets, 
and to Platinum's overall businesses as is reasonably necessary to 
effectuate the divestiture. Defendants shall provide financial or other 
information relevant to the Platinum Assets customarily provided in a 
due diligence process as

[[Page 32544]]

the trust may reasonably request, subject to customary confidentiality 
assurances. Subject to customary confidentiality assurances, defendants 
shall permit prospective acquirers of any Platinum Assets to have 
reasonable access to the information provided to the trustee and to 
management personnel for the Platinum Assets, and to make inspection of 
any physical facilities for the Platinum Assets.
    E. After the trustee's appointment, the trustee shall confer 
regularly with designated representatives of the parties and shall file 
biweekly reports with the parties and the Court setting forth the 
trustee's efforts to accomplish the divestitures ordered under this 
Amended Final Judgment; provided, however, that to the extent such 
reports contain information that the trustee deems confidential, such 
reports shall not be filed in the public docket of the Court. Such 
reports shall include the name, address and telephone number of each 
person who, during the preceding period, made an offer to acquire, 
expressed an interest in acquiring, entered into negotiations to 
acquire, or was contacted or made an inquiry about acquiring, any 
interest in the business to be divested, and shall describe in detail 
each contact with any such person during that period. The trustee shall 
maintain full records of all efforts made to sell the businesses to be 
divested.
    F. Any proposed divestiture of any of the Platinum Assets shall be 
accomplished in such a way as to satisfy plaintiff, in its sole 
discretion, that the Platinum Assets can and will be used by the 
Acquirer as part of a viable, ongoing business involving the sale or 
license of the Divested Products to customers, including a 
demonstration to plaintiff's satisfaction that: (1) The divestiture is 
for the purpose of competing effectively in the selling of the Divested 
Products to customers; (2) the Acquirer has the managerial, 
operational, technical and financial capability and intent to compete 
effectively in the selling of the Divested Products to customers; and 
(3) none of the terms of any divestiture agreement gives defendants the 
ability artificially to raise the Acquirer's costs, impairs the 
Acquirer's ability to maintain or innovate with respect to any of the 
Divested Products, impairs the Acquirer's ability to support customers, 
or otherwise interferes with the ability of the Acquirer to compete 
effectively. Plaintiff may object to a proposed divestiture in the 
manner prescribed in Section VI of this Amended Final Judgment. 
Defendants shall not object to a divestiture by the trustee on any 
grounds other than the trustee's malfeasance. Any such objections by 
defendants shall be made in the manner prescribed in Section VI of this 
Amended Final Judgment.
    G. If the trustee has not accomplished such divestitures within one 
hundred and twenty (120) days after its appointment, the trustee 
thereupon shall file promptly with the Court a report setting forth: 
(1) The trustee's efforts to accomplish the required divestitures; (2) 
the reasons, in the trustee's judgment, why the required divestitures 
have not been accomplished; and (3) the trustee's recommendations for 
completing the required divestiture; provided, however, that to the 
extent such report contain information that the trustee deems 
confidential, such reports shall not be filed in the public docket of 
the Court. No less than three (3) days prior to filing such report with 
the Court, the trustee shall furnish a copy of such report to the 
parties. Upon the filing of such report with the Court, each party 
shall have the right to be heard and to make additional recommendations 
consistent with the purpose of the trust. The Court shall thereafter 
enter such orders as it shall deem appropriate in order to carry out 
the purpose of the trust which may, if necessary, include extending the 
trust and the term of the trustee's appointment by a period requested 
by plaintiff, or entering an order divesting any or all of the Platinum 
Assets to such Acquirer and upon such terms as the Court deems 
appropriate.

V. Divestiture Agreement

    Any agreement for divestiture of the Platinum Assets shall, at 
minimum, convey the following:
    A. All of Platinum's rights, titles and interests in all the 
Platinum Assets (subject to Subsection V.E. below and subject to any 
limitations on defendants' ability to convey, license, sublicense or 
assign any such rights, as described in Subsection II.F. above).
    B. The full and complete assignment of rights under all customer 
licenses and maintenance agreements for the Divested Products, subject 
to pro-rated allocation of maintenance revenue as specified in 
Subsection II.F.(8) above; provided however, that in the event any such 
licenses or maintenance agreements also encompass other products or 
services, Acquirer shall not be entitled to receive any rights with 
respect to such other products or services.
    C. The right to obtain the interface information relating to the 
integration of AutoSys/Zeke and AutoSys as it exists as of the date of 
the filing of the Complaint; and in the event interface information 
relating to any existing or future version of AutoSys under any name is 
made available to any software developer or vendor, the right to obtain 
such information by the same means and on the same terms and to the 
same extent as it is made available to such other software developer or 
vendor. No non-competition clause in or ancillary to any provision of 
such interface information that may impair the Acquirer's ability 
effectively to compete with defendants shall be enforceable in any 
court, except defendants may restrict the use of such interface 
information to establishing an interface between current and future 
versions of AutoSys/Zeke and current and future versions of AutoSys.
    D. The right to negotiate, without interference by defendants, for 
the employment services of any of Platinum's employees who, prior to 
the announcement of the subject acquisition, had employment 
responsibilities relating to the Divested Products. If the Acquirer 
employs any such person, any employment-related non-competition clause, 
as it relates to the Divested Products, that runs in favor of 
defendants shall be unenforceable by defendants in any court, except 
for the persons identified on Exhibit 1 to the Amended Final Judgment, 
which is filed under seal.
    E. At Acquirer's option, any tangible assets that are used in 
conjunction with the development, support or maintenance of the 
Divested Products, excluding defendants' interests in real property, 
fixtures and leases and shared equipment.
    F. Such usual and customary warranties as are necessary to effect 
the purposes of the trust.

VI. Notification

    Two (2) days before proposing any divestiture, the trustee shall 
notify plaintiff and defendants of the proposed divestiture and 
proposed terms and conditions thereof. Defendants shall, within two (2) 
days after receiving such notice, have an opportunity to confer with 
the trustee and Acquirer, to state their opposition to terms and 
conditions that they consider to be inconsistent with this Amended 
Final Judgment, and to make such recommendations as to different or 
additional terms and conditions that they believe are consistent with 
this Amended Final Judgment. Within two (2) business days following 
execution of a definitive agreement, contingent upon compliance with 
the terms of this Amended Final Judgment, to effect, in whole or in 
part, any proposed divestiture pursuant to this Amended Final Judgment, 
the trustee shall notify plaintiff and

[[Page 32545]]

defendants of the proposed divestiture. The notice shall set forth the 
details of the proposed transaction and list the name, address, and 
telephone number of each person not previously identified who offered 
to, or expressed an interest in or a desire to, acquire any ownership 
interest in the business to be divested that is the subject of the 
definitive agreement, together with full details of same. Within 
fifteen (15) calendar days of receipt by plaintiff of such notice, 
plaintiff in its sole discretion may request from defendants, the 
proposed Acquirer, or any other third party additional information 
concerning the proposed divestiture and the proposed Acquirer. 
Defendants and the trustee shall furnish any additional information 
requested from them within ten (10) calendar days of the receipt of the 
request, unless the parties shall otherwise agree. Within thirty (30) 
calendar days after receipt of the notice or within twenty (20) 
calendar days after plaintiff has been provided the additional 
information requested from defendants, the proposed Acquirer, and any 
third party, whichever is later, plaintiff shall provide written notice 
to defendants and the trustee stating whether or not it objects to the 
proposed divestiture. Any such notice objecting to a proposed 
divestiture shall state the reasons therefore. If plaintiff provides 
written notice to defendants and the trustee that it does not object, 
then the divestiture may be consummated, subject only to defendants' 
limited right to object to the sale under Section IV.F. of this Amended 
Final Judgment. Upon objection by plaintiff, the divestiture proposed 
under Section IV shall not be consummated. Any objection by defendants 
under Section IV.F. of this Amended Final Judgment must be conveyed in 
writing to plaintiff and the trustee within ten (10) calendar days 
after the trustee has provided the notice of execution of a definitive 
agreement required under this Section VI of this Amended Final 
Judgment. Upon such objection by defendants, the proposed divestiture 
shall not be consummated unless approved by the Court.

VII. Affidavits

    A. Within ten (10) calendar days of the filing of the Hold Separate 
Stipulation and Order in this matter, defendants shall deliver to 
plaintiff an affidavit which describes in detail all actions defendants 
have taken and all steps implemented on an on-going basis to preserve 
the Platinum Assets pursuant to Section VIII of this Amended Final 
Judgment and the Hold Separate Stipulation and Order entered by the 
Court. The affidavit also shall describe, but not be limited to, 
defendants' efforts to maintain the Platinum Assets as an active 
competitor; to maintain at current levels the management, staffing, 
sales, marketing and pricing of the Platinum Assets; and to commit 
resources, development and support to the Platinum Assets at a level 
not materially less than that committed prior to the announcement of 
Computer Associates' proposed acquisition of Platinum. Defendants shall 
deliver to plaintiff an affidavit describing any changes to the efforts 
and actions outlined in defendants' earlier affidavit(s) filed pursuant 
to this Section within ten (10) calendar days after such change is 
implemented.
    B. Until one year after such divestiture has been completed, 
defendants shall preserve all records of all efforts made to preserve 
the Platinum Assets and to effect the ordered divestitures.

VIII. Hold Separate Order

    Until the divestitures required by the Amended Final Judgment have 
been accomplished, defendants shall take all steps necessary to comply 
with the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize the divestiture 
of the Platinum Assets.

IX. Financing

    Computer Associates is ordered and directed not to finance all or 
any part of any divestiture to any person made pursuant to this Amended 
Final Judgment, or to enter into any agreement requiring or permitting 
the reporting to defendants of sales units or revenues of the products 
included in the Platinum Assets by the Acquirer or the payment of 
continuing royalties to defendants by the Acquirer.

X. Compliance Inspection

    For purposes of determining or securing compliance with the Amended 
Final Judgment and subject to any legally recognized privilege, from 
time to time:
    A. Duly authorized representatives of the United States Department 
of Justice, upon written request of the Attorney General of the 
Assistant Attorney General in charge of the Antitrust Division, and on 
reasonable notice to defendants made to their principal offices, shall 
be permitted
    (1) Access during office hours of defendants to inspect and copy 
all books, ledgers, accounts, correspondence, memoranda, and other 
records and documents in the possession or under the control of 
defendants, who may have counsel present, relating to the matters 
contained in this Amended Final Judgment and the Hold Separate 
Stipulation and Order; and
    (2) Subject to the reasonable convenience of defendants and without 
restraint or interference from them, to interview informally or to 
dispose under oath and on the record, their officers, employees, and 
agents, who may have counsel present, regarding any such matters.
    B. Upon the written request of the Attorney General or of the 
Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit such written reports, under oath if requested, 
with respect to any matter contained in the Amended Final Judgment and 
the Hold Separate Stipulation and Order.
    C. No information or documents obtained by the means provided in 
this Section shall be divulged by a representative of plaintiff to any 
person other than a duly 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 grant jury 
proceedings), or for the purpose of securing compliance with this 
Amended Final Judgment, or as otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to plaintiff, defendants represent and identify in writing 
the material in any such information or documents to which a claim of 
protection may be asserted under Rule 26(c)(7) of the Federal Rules to 
Civil Procedure, and defendants mark each pertinent page of such 
material, ``Subject to claim of protection under Rule 26(c)(7) of the 
Federal Rules of Civil Procedure,'' then ten (10) calendar days notice 
shall be given by plaintiff to defendants prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding) 
to which defendants are not a party.

XI. Retention of Jurisdiction

    Jurisdiction is retained by this Court for the purpose of enabling 
any of the parties of this Amended Final Judgment to apply to this 
Court at any time for such further orders and directions as may be 
necessary or appropriate for the construction or carrying out of this 
Amended Final Judgment, for the modification of any of the provisions 
hereof, for the enforcement of compliance herewith, and for the 
punishment of any violations hereof.

[[Page 32546]]

XII. Termination

    Unless this Court grants an extension, this Amended Final Judgment 
will expire upon the tenth anniversary of the date of its entry.

XIII. Public Interest

    Entry of this Amended Final Judgment is in the public interest.

    Dated: ________.
----------------------------------------------------------------------
United States District Judge.

Documents Under Seal

United States of America, Plaintiff, v. Computer Associates 
International, Inc. and Platinum Technology International, Inc., 
Defendants.

[Civil Action No. 1:99CV01318; Judge: Gladys Kessler, Deck Type: 
Antitrust, Date Stamp: ______ ]

Exhibit One to Proposed Amended Final Judgment, Pursuant to Order 
To Place Exhibit One to Final Judgment Under Seal

Order Entered May 27, 1999

Order To Substitute Amended Final Judgment

    The Court ORDERS as follows:
    The proposed Amended Final Judgment filed by the United States as 
Exhibit A to the Uncontested Motion to Substitute Amended Final 
Judgment shall replace and supersede for all purposes the proposed 
Final Judgment attached as Exhibit A to the Hold Separate Stipulation 
and Order filed by the parties on May 25, 1999, and entered by the 
Court on May 26, 1999;
    PROVIDED, HOWEVER, THAT the document filed as Exhibit 1 to the 
aforementioned proposed Final Judgment that was placed under seal by 
the Clerk of the Court pursuant to the Court's Order to Place Exhibit 
One to Final Judgment Under Seal, entered on May 27, 1999, shall remain 
under seal and in effect as Exhibit 1 to the proposed Amended Final 
Judgment.

    Dated: ________.
----------------------------------------------------------------------
United States District Judge.

United States of America, Plaintiff, v. Computer Associates 
International, Inc. and PLATINUM Technology International, Inc., 
Defendants.

[Civil Action No. 1:99CV01318; Judge Gladys Kessler, Deck Type: 
Antitrust, Date Stamp: ______ ]

Competitive Impact Statement

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

I. Nature and Purpose of the Proceeding

    On May 25, 1999 the United States filed a civil antitrust 
Complaint, and on June 8, 1999, the United States filed amendments to 
the Complaint (hereinafter the Complaint and the amendments to the 
Complaint will be referred to collectively as ``Complaint, as 
amended''). The Complaint, as amended, alleges that the proposed 
acquisition by Computer Associates International, Inc. (``CA'') of 
PLATINUM Technology International, Inc. (``Platinum'') would violate 
Section 7 of the Clayton Act, 15 U.S.C. 18. CA is the document 
competitor with market shares of 70% or more in a number of mainframe 
systems management software products for the MVS (now named OS/390) and 
VSE operating systems that run on IBM and IBM-compatible mainframe 
computers. Platinum is either the only substantial competitor or is 
among the most significant of a very few competitors attempting to 
challenge CA's dominance in the sale of these mainframe systems 
management software products. Platinum has aggressively marketed its 
products to CA's customers by offering better pricing and more 
responsive customer service.
    The Complaint, as amended, alleges that the acquisition would 
eliminate substantial competition, and result in higher prices, lower 
quality product support, and less innovation, in seven product markets 
for systems management software used with mainframe computers: MVS (OS/
390) job scheduling and rerun software; MVS (OS/390) tape management 
software; MVS (OS/390) change management software, MVS (OS390) job 
accounting and chargeback software, VSE job scheduling and rerun 
software; VSE automated operations software, and VSE job accounting and 
chargeback software. The Complaint, as amended, seeks adjudication that 
CA's acquisition of Platinum would violate Section 7 of the Clayton 
Act, 15 U.S.C. 18, and requests that the Court grant preliminary and 
permanent injunctive relief, and such other relief as the Court deems 
appropriate.
    Simultaneously with the filing of the amendments to the Complaint, 
the United States filed the proposed Amended Final Judgment. At the 
time the original Complaint was filed on May 25, 1999, the United 
States also filed a proposed Final Judgment and a Hold Separate 
Stipulation and Order (``Hold Separate''); the Court entered the Hold 
Separate on May 26, 1999. The proposed Amended Final Judgment that is 
the subject of this Competitive Impact Statement supercedes the initial 
proposed Final Judgment and provides for relief in all of the markets 
that are the subject of allegations in the Complaint, as amended.
    Prior to the announcement of CA's proposed acquisition of Platinum, 
Platinum granted to another firm, CIMS Inc., an exclusive license, 
together with an option to purchase, certain products, collectively 
known as the ``CIMS product line,'' that Platinum had developed, 
marketed and sold in the markets for MVS (OS/390) job accounting and 
chargeback software and VSE job accounting and chargeback software. The 
defendants proposed to complete the divestiture of the CIMS product 
line by conveying to CIMS Inc. all of Platinum's remaining rights, 
titles, and interests in the CIMS product line in a ``fix-it-first'' 
transaction to be approved by the United States and to be consummated 
contemporaneously with CA's acceptance for payment of the tendered 
shares of Platinum. Because such a conveyance would have resolved any 
competitive problems that would otherwise arise if CA were to acquire 
the CIMS product line, the original Complaint did not contain 
allegations pertaining to the effect of the proposed acquisition in the 
markets for MVS (OS/390) job accounting and chargeback software and VSE 
job accounting and chargeback software. However, the United States 
insisted and defendants agreed in the Hold Separate that the United 
States could amend the Complaint and file a proposed Amended Final 
Judgment if the defendants were unable to convey the CIMS product line 
in the manner described above. The parties agreed that an amended 
Complaint would add allegations in the product markets in which the 
CIMS product line is developed, marketed and sold and an Amended Final 
Judgment would add the CIMS product line to the group of products to be 
divested and such additional provisions as the United States deems 
necessary to obtain relief from the additional violations alleged in 
the amended Complaint.
    On May 28, 1999, subsequent to the filing of the original 
Complaint, CA announced the expiration of its tender offer for Platinum 
shares and acceptance for payment of all validly tendered shares, but 
the defendants failed to make the requisite conveyance of the CIMS 
product line. The United States therefore filed its amendments to the 
Complaint on June 8, 1999, adding allegations pertaining to the markets 
for MVS (OS/390) job accounting and

[[Page 32547]]

chargeback software and VSE job accounting and chargeback software.
    The proposed Amended Final Judgment is designed to eliminate the 
anticompetitive effects of CA's acquisition of Platinum, and requires 
the defendants to divest, through a trustee to be appointed by the 
United States, Platinum's products in the seven mainframe systems 
management software product markets named in the Complaint, as amended 
(``Divested Products''), together with certain related assets 
(collectively, the ``Platinum Assets''). The defendants are required to 
assist the trustee in accomplishing the required divestitures and may 
not impede or interfere with the trustee's work. If the trustee is 
unable to complete the required divestitures within 120 days after 
appointment, the Court is authorized to enter such orders as it shall 
deem appropriate to carry out the purpose of the trust, which may, if 
necessary, include extending the trustee's appointment by a period 
requested by the United States, or directly ordering the divestiture of 
the Platinum Assets on such terms as the Court deems appropriate.
    The Hold Separate includes a stipulation by the United States and 
the defendants that the proposed Amended Final Judgment may be entered 
after compliance with the APPA. The Hold Separate also obligates the 
defendants to comply with the terms of the proposed Amended Final 
Judgment until it is entered by the Court, or until all appeals have 
been completed stemming from any court ruling declining entry of the 
proposed Amended Final Judgment. Until all divestitures have been 
completed, the Hold Separate specifies that the defendants will take 
certain steps to ensure that the Platinum Assets will be held and 
operated separate and part from the defendants' and assets and 
businesses. The defendants must appoint an interim, separate and 
independent management acceptable to the United States to manage the 
business operations relating the Platinum Assets until the divestitures 
have been completed. Confidential business information relating to the 
Platinum Assets will, to the maximum extent feasible, be screened from 
the defendants. The defendants must maintain promotional and sales 
efforts, development funding, and technical support for the Divested 
Products. In particular, the defendants are required to maintain at 
current or previously approved levels, whichever are higher, research 
and development funding for the Divested Products and to continue to 
serve the needs of existing customers. The purpose of these interim 
steps is to ensure that the Platinum Assets will continue to be 
maintained and operated, until the divestitures are completed, as an 
independent, ongoing and economically viable concern, free from 
defendants' control and influence.
    Entry of the proposed Amended Final Judgment would terminate this 
action, except that the Court would retain jurisdiction to construe, 
modify, or enforce the provisions of the proposed Amended Final 
Judgment and to punish violations thereof.

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

A. The Defendants and the Proposed Transaction

    CA is a Delaware corporation with its principal place of business 
in Islandia, New York. In its 1998 fiscal year, CA had revenues in 
excess of $4.7 billion and net profits of $1.17 billion. CA produces 
and markets software for a variety of computers and operating systems, 
including systems management software for mainframe computers running 
the two most popular operating systems, IBM's MVS (now renamed ``OS/
390'' by IBM), and VSE operating systems. Aside from IBM, which writes 
the operating system software that runs almost all mainframe computers, 
CA is the largest vendor of software for IBM and IBM-compatible 
mainframe computers. CA is also a significant vendor of systems 
management software and other software for computers and computer 
networks running UNIX or Windows NT (recently renamed Windows 2000) 
operating systems.
    Platinum is a Delaware corporation with its principal place of 
business in Oakbrook Terrace, Illinois. Platinum's fiscal year 1998 
revenues exceeded $968 million. Platinum sells a variety of computer 
software and related services for mainframe, UNIX, and Windows NT 
computer systems and is also a leading vendor of systems management 
software for IMB and IMB-compatible mainframe computers.
    On March 31, 1999, CA filed with the United States a premerger 
notification stating that it had entered into a definitive agreement 
with Platinum to purchase all issued and outstanding shares of 
Platinum's common stock through a $3.5 billion cash tender offer. CA 
announced on May 28, 1999, that it had accepted for payment all validly 
tendered shares, which comprise about 98% of Platinum's outstanding 
common stock. This acquisition forms the basis of the government's 
suit.

B. Mainframe Systems Management Software

    Mainframe computers are the large and powerful computers used by 
industrial, commercial, educational, and governmental enterprises for 
large scale data processing applications. Mainframe computers provide 
unique storage, throughput, and security features and functions that 
make them superior data processing devices for large corporate and 
institutional computer users throughout the world.
    An operating system is software that controls the operational 
resources of the computer (including the central processor unit, 
memory, data storage devices, and other hardware components) and allows 
``applications'' software (programs that perform user-directed tasks 
requested of the computer, such as programs that perform transactions 
or maintain payroll, inventory, sales, and other business accounts of a 
company) to run on the computer. The vast majority of the world's 
mainframe computers run with operating systems developed by IBM, of 
which the two most widely used are the MVS (OS/390) and VSE operating 
systems. MVS (OS/390) is generally used by users of larger mainframes 
and those needing the highest levels of performance and functionality. 
VSE is a significantly less costly operating system that has less 
capability and fewer features. VSE is a significantly less costly 
operating system that has less capability and fewer features. VSE is 
generally used with smaller mainframes, with fewer users and smaller 
data sets.
    Systems management software is used to help manage, control, or 
enhance the performance of mainframe computers. While IBM's mainframe 
operating systems contain some limited systems management capabilities, 
separate systems management software programs such as the products 
offered by CA and Platinum provide additional functionality that is 
demanded by most mainframe users. Mainframe systems management software 
generally is designed to function only with a specific operating 
system. Therefore, users of MVS (OS/390) must purchase systems 
management software designed specifically for that operating system, 
while VSE users are limited to buying systems management software 
designed for the VSE operating system. Users generally cannot switch 
between the MVS (OS/390) and VSE operating systems without facing very 
substantial costs. Therefore, customers using one mainframe operating 
system are unlikely to switch to another to escape

[[Page 32548]]

even a very substantial increase in price of the systems management 
software on their present mainframe operating system platform.
    In recent years, some mainframe computer systems users have 
transferred applications from their mainframes to distributed client/
server computing environments. However, most users continue to remain 
highly dependent on their mainframe computers for other ``mission-
critical'' business applications which cannot be switched at all or in 
an economically viable manner. Moreover, conversion of applications 
from mainframe to distributed client/server computing environments 
entails substantial costs and time, is generally disruptive of business 
operations and is fraught with risks. The cost of the mainframe systems 
management software that is the subject of the violation alleged in the 
Complaint, as amended, constitutes only a small portion of the overall 
operating costs of a mainframe computer system. Therefore, users would 
not switch from mainframe computer systems to distributed client/server 
computing systems to escape even a very substantial increase in the 
price of these mainframe systems management software products.
    CA and Platinum both develop and sell a variety of mainframe 
computer systems management software products and are direct 
competitors in the development and sale to mainframe users of each of 
the products that is the subject of the violation alleged in the 
Complaint, as amended, and described below. Each specific product or 
product combination solves particular problems or meets specific needs 
of mainframe users, and users cannot economically switch to different 
products to obtain the same functionality.
    (1) Job scheduling and rerun software for the MVS (OS/390) 
operating system. Job scheduling and rerun software directs a mainframe 
to prioritize and run particular ``batch'' processing operations 
(called ``jobs'') based on user requirements as to time, date, and 
other parameters, to link jobs together so that they are performed in 
the correct sequence, and to organize the results of these jobs. Rerun 
software interfaces with the job scheduler and automatically collects 
the data on jobs that were not operated successfully and performs the 
necessary remedial operations and reruns the job or alerts the operator 
that intervention is necessary. Rerun software is almost always sold to 
those users who need it for use together with the specific job 
scheduling software product for which it was designed to inter operate.
    (2) Job scheduling and rerun software for VSE operating system. 
These VSE products perform essentially the same functions as MVS (OS/
390) job scheduling software.
    (3) Tape management software for the MVS (OS/390) operating system. 
Tape management software is used to control the cataloguing, loading, 
formatting, and reading of the magnetic tapes used for archival storage 
of data processed by mainframes. Many mainframe computer system users 
store information on hundreds or thousands of tapes, and tape 
management software specifies which tapes, and which information on the 
tapes, need to be loaded for particular operations. Tape management 
software also protects the information on the tape by ensuring that 
active information is not overwritten or erased.
    (4) Change management software for the MVS (OS/390) operating 
system. Change software tracks, manages, and archives versions of 
computer programs while those programs are being developed, modified, 
and tested. It also helps to control the versions of the programs as 
they are used in normal business activities by the customer, when there 
may be a need to modify, repair, or update the programs, or to 
uninstall the programs and reinstall a prior version that is known to 
work.
    (5) Automated operations software for the VSE operating system. 
Automated operations software is used to automate computer management 
to reduce human interaction with the system and thereby improve 
efficiency and minimize errors. Among the functions of automated 
operations software is automating computer console operations, message 
and error handling, and enabling systems management from remote 
locations or computers.
    (6) MVS and OS/390 job accounting and chargeback software. Job 
accounting and chargeback software monitors the use of computer 
resources so that computer resource costs may be allocated and charged 
among internal corporate divisions and/or third party client users. The 
software collects data that shows which computer resources were being 
by whom, when, and for how long. This data is then used to measure, 
allocate and charge shared costs to internal corporate divisions and/or 
third party client users. Job accounting and chargeback software, 
including such software sold by CA and Platinum, is often combined with 
a capacity planning software feature, which uses the data compiled by 
the job accounting and chargeback software to report on measures such 
as system response performance, system availability, resource 
utilization, and future utilization projections.
    (7) VSE job accounting and chargeback software. These VSE products 
perform essentially the same functions as MVS and OS/390 job accounting 
and chargeback software.
    Even substantial price increases for the software products 
described above would not cause users to switch to any other types of 
mainframe software products or software products for different 
operating systems. Each of the systems management products for each 
operating system, therefore, constitutes a separate relevant product 
market in which to assess the competitive effects of CA's acquisition 
of Platinum. Vendors sell these products to customers located 
throughout the United States, and for each of the product markets, the 
United States constitutes a relevant geographic market in which to 
assess the competitive effects of the proposed acquisition.

D. Competition Between CA and Platinum

    CA and Platinum compete against each other for sales of the above-
described MVS (OS/390) and VSE systems management software products 
throughout the United States. They compete with respect to license 
royalties they charge users of systems management products and the 
flexibility of the license terms they offer. Both firms market their 
products under license that require royalty payments for the right to 
use the product and payments for maintenance of and upgrades to the 
products.
    Moreover, CA and Platinum compete in providing product support and 
service to their customers. Due to the ``mission-critical'' nature of 
the work done with mainframe computers, users highly value the speed 
and effectiveness of a vendor's installation, maintenance, and 
technical support of systems management products. CA and Platinum also 
compete to improve, upgrade, and enhance their systems management 
products, both in terms of developing products of greater performance 
or functionality and in terms of improving operability so that the 
products become easier to install, use, and maintain.
    In addition to competition for new users, substantial competition 
in the markets for these mainframe systems management software products 
primarily occurs when current users, and particularly current users of 
CA's products, consider whether they should convert to a different 
product. Platinum has aggressively marketed its products in competition 
with CA by offering better pricing, more responsive

[[Page 32549]]

customer services, and improved product features. Because conversion 
from one product to another product is costly, difficult, time-
consuming, and potentially disruptive to a firm's ongoing mainframe 
computer operations and overall business, most users are relevant to 
incur the costs and risks of switching. In particular, Platinum has 
invested significant resources in demonstrating that, notwithstanding 
the costs and risks of conversion, Platinum's products are superior 
alternatives for current users of CA's products. This competition from 
Platinum has caused CA to respond with lower prices, better service, 
and improved product features for its own products.

E. Anticompetitive Consequences of the Acquisition

    The Complaint, as amended, alleges that CA's acquisition of 
Platinum would substantially lessen competition in each of the markets 
of the systems management software products described above. The 
combined annual U.S. sales of all competitors in the relevant product 
markets exceed $590 million. Each of the relevant markets already is 
highly concentrated, and the acquisition would substantially increase 
concentration. In each market, CA already has a dominant share of 70% 
to 90%. Platinum is the only substantial competitor or among the most 
significant of only a few competitors in these markets.
    The Complaint, as amended, alleges that in the markets for each of 
the products described above, the reduction or elimination of 
competition from CA's acquisition of Platinum would likely lead to 
higher prices, lower levels of product service and support, and a 
lessening of product innovations and development. The Complaint, as 
amended, further alleges that the competitive harm resulting from the 
acquisition is not likely to be mitigated by the possibility of new 
entry. Entry into any of the markets would entail expenditures of 
substantial costs and time for the development of a competitive product 
that would be acceptable to mainframe customers. A new entrant would 
also be required to invest significant time and resources to develop a 
reputation as a reliable vendor of these products to attract 
significant sales in what are substantially product replacement 
markets. Such entry would not be timely, likely, or sufficient in scale 
to counteract or deter a price increase or a reduction in service or 
product quality in any of the relevant markets.

III. Explanation of the Proposed Amended Final Judgment

    The proposed Amended Final Judgment is designed to preserve 
competition in each of the mainframe systems management software 
markets in which CA's acquisition of Platinum would be anticompetitive. 
The proposed Amended Final Judgment will remain in effect for ten years 
and requires CA to divest all of the Platinum Assets through a trustee 
selected by the United States, and imposes obligations on CA to 
cooperate in the trustee's sale efforts.
    The propose Amended Final Judgment provides that the assets must be 
divested in such a way as to satisfy the United States that the 
Platinum Assets can and will be operated by the purchaser or purchasers 
as part of a viable, ongoing business or businesses that can compete 
effectively in the selling of the Divested Products. The CIMS product 
line will be sold subject to any rights in those Divested Products held 
by CIMS Inc. as a result of the licensing agreement and option to 
purchase that it obtained from Platinum prior to CA's announcement of 
its proposed acquisition of Platinum. The proposed Amended Final 
Judgment provides that CA will pay all costs and expenses of the 
trustee. The trustee's commission will be structured so as to provide 
an incentive for the trustee based on the price obtained and the speed 
with which divestiture is accomplished. After the trustee's appointment 
becomes effective, the trustee will confer regularly with the parties 
and file biweekly reports with the parties and the Court setting forth 
the trustee's efforts to accomplish divestiture. At the end of 120 
days, if the divestiture has not been accomplished, the trustee and the 
parties will make recommendations to the Court, which shall enter such 
orders as appropriate in order to carry out the purpose of the trust, 
including extending the trust or the term of the trustee's appointment 
or ordering the divestiture of any or all of the Platinum Assets to 
such purchasers and on such terms as the Court deems appropriate.
    The proposed Amended Final Judgment sets forth the minimum assets 
and rights that must be conveyed in a divestiture. These include 
requiring the transfer to the purchaser or purchasers of: all of 
Platinum's transferrable ownership rights in the Divested Products, as 
well as Platinum's rights in other assets included in the Platinum 
Assets that are used in conjunction with the development, support or 
maintenance of the Divested Products; all customer licenses and 
maintenance agreements for the Divested Products; broad rights to the 
information necessary to service customers, to interface Platinum's job 
scheduling products with the Platinum UNIX/NT job scheduling product to 
be acquired by CA, and generally to compete with CA and other vendors 
of software products in the markets described above; and the right to 
negotiate, without interference from CA, for the employment services of 
the Platinum employees who have job responsibilities relating to the 
Divested Products.
    The proposed Amended Final Judgment also prohibits CA from 
financing the purchase of the Platinum Assets or entering into 
continuing royalty payment arrangements with any purchaser of the 
Divested Products. This provision prevents CA from having a 
relationship with its new competitor that might impair competition 
between the new competitor and CA.

IV. Remedies Available to Potential Private Litigants

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

V. Procedures Available for Modification of the Proposed Amended 
Final Judgment

A. APPA Procedures

    The United States and defendants have stipulated that the proposed 
Amended Final Judgment may be entered by the Court after compliance 
with the provisions of the APPA, provided that the United States has 
not withdrawn its consent. The APPA conditions entry upon the Court's 
determination that the proposed Amended Final Judgment is in the public 
interest.
    The APPA provides a period of at least 60 days preceding the 
effective date of the proposed Amended Final Judgment within which any 
person may submit to the United States written comments regarding the 
proposed Amended Final Judgment. Any person who wishes to comment 
should do so

[[Page 32550]]

within (60) days of the date of publication of this Competitive Impact 
Statement in the Federal Register. The United States will evaluate and 
respond to the comments. All comments will be given due consideration 
by the Department of Justice, which remains free to withdraw its 
consent to the proposed Amended Final Judgment at any time prior to 
entry. The comments and the response of the United States will be filed 
with the Court and published in the Federal Register.
    Written comments should be submitted to: Nancy M. Goodman, Chief, 
Computers and Finance Section, Antitrust Division, United States 
Department of Justice, 600 E Street, N.W., Suite 9500, Washington, DC 
20530.

B. The Court's Continuing Jurisdiction

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

VI. Alternatives to the Proposed Amended Final Judgment

    The United States considered, as an alternative to the proposed 
Amended Final Judgment, litigation against defendants CA and Platinum. 
The United States could have brought suit and sought preliminary and 
permanent injunctions against CA's acquisition of Platinum. The United 
States is satisfied, however, that the complete, and irrevocable 
divestiture of the Platinum Assets to a suitable purchaser and the 
other relief outlined in the proposed Amended Final Judgment will 
preserve competition in the relevant mainframe systems management 
product markets alleged in the Complaint, as amended, that would 
otherwise have been impaired by the acquisition. The relief specified 
in the proposed Amended Final Judgment will achieve all of the 
competitive benefits that the United States could have obtained through 
protracted litigation, but avoids the time, expense, and uncertainty of 
a full trial on the merits of the government's Complaint, as amended.

VII. Standard of Review Under the APPA for the Proposed Amended 
Final Judgment

    The APPA requires that proposed final judgments in antitrust cases 
brought by the United States be subject to a sixty-day comment period, 
after which the Court shall determine whether entry of the proposed 
final judgment ``is in the public interest.'' In making that 
determination:

    [T]he court may consider--
    (1) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) The impact of entry of such judgment 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) (emphasis added). As the Court of Appeals for the 
District of Columbia Circuit held, the APPA permits a court to 
consider, among other things, the relationship between the remedy 
secured and the specific allegations set forth in the government's 
complaint, whether the decree is sufficiently clear, whether 
enforcement mechanisms are sufficient, and whether the decree may 
positively harm third parties. United States v. Microsoft, 56 F.3d 
1448, 1458-62 (D.C. Cir. 1995). The courts have recognized that the 
term `` `public interest' take[s] meaning from the purposes of the 
regulatory legislation.'' NAACP v. Federal Power Comm'n, 425 U.S. 662, 
669 (1976). Since the purpose of the antitrust laws is to preserve 
``free and unfettered competition as the rule of trade,'' Northern 
Pacific Railway Co. v. United States, 356 U.S. 1, 4 (1958), the focus 
of the ``public interest'' inquiry under the APPA is whether the 
proposed Amended Final Judgment would serve the public interest in free 
and unfettered competition. United States v. American Cyanamid Co. 719 
F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984); 
United States v. Waste Management, Inc., 1985-2 Trade Cas. para. 
66,651, at 63,046 (D.D.C. 1985). In conducting this inquiry, ``the 
Court is no where 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.'' 
\1\ Rather,
---------------------------------------------------------------------------

    \1\ 119 Cong. Rec. 24598 (1973), See United States v. Gillette 
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
15 U.S.C. 16(f), those procedures are discretionary. A court need 
not invoke any of them unless it believes that the comments have 
raised significant issues and that further proceedings would aid the 
court in resolving those issues. See H.R. 93-1463, 93rd Cong. 2d 
Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535, 
6538.

[a]bsent a showing of corrupt failure of the government to discharge 
its duty, the Court, in making its public interest finding, should * 
* * carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
---------------------------------------------------------------------------
circumstances.

United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas. 
para.61.508, at 71,980 (W.D. Mo. 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988) quoting United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083 
(1981). See also Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent 
requires that:

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. The court's 
role in protecting the public interest is one of insuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\2\
---------------------------------------------------------------------------

    \2\ United States v. Bechtel, 648 F.2d at 666 (citations 
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d 
at 463; United States v. National Broadcasting Co., 449 F. Supp. 
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F. 
Supp. at 716. See also United States v. American Cyanamid Co., 719 
F.2d at 565.

    A proposed final judgment is an agreement between the parties which 
is reached after exhaustive negotiations and discussions. Parties do 
not hastily and thoughtlessly stipulate to a decree because, in doing 
---------------------------------------------------------------------------
so, they

waive their right to litigate the issues involved in the case and 
thus save themselves the time, expense, and inevitable risk of 
litigation. Naturally, the agreement reached normally embodies a 
compromise; in exchange for the saving of cost and the elimination 
of risk, the parties each give up something they might have won had 
they proceeded with the litigation.

United States v. Armour & Co., 402 U.S. 673, 681 (1971).
    the proposed Amended Final Judgment therefore, should not be 
reviewed under a standard of whether it is certain to eliminate every 
anticompetitive effect of a particular practice or whether it mandates

[[Page 32551]]

certainty of free competition in the future. Court approval of a final 
judgment requires a standard more flexible and less strict than the 
standard required for a finding of liability. ``[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.' (citations 
omitted).''\3\
---------------------------------------------------------------------------

    \3\ United States v. American Tel. and Tel Co., 552 F. Supp. 
131, 150 (D.D.C. 1983), aff'd sub nom. Maryland v. United States, 
460 U.S. 1001 (1983) quoting United States v. Gillette Co., supra, 
406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F. 
Supp. 619, 622 (W.D. Ky. 1985).
---------------------------------------------------------------------------

VIII. Determinative Documents

    In deciding to consent to the proposed Amended Final Judgment, the 
United States considered no documents that were determinative within 
the meaning of the APPA. Consequently, no such documents have been 
filed with this Competitive Impact Statement.

    Dated: June 8, 1999.

    Respectfully submitted,
Kent Brown, VA Bar #18300; Kenneth W. Gaul, D.C. Bar #415456; Weeun 
Wang; Sanford M. Adler; Jeremy W. Eisenberg; Richard Koffman; Melinda 
Foster; Jeremy Feinstein,
Attorneys, Antitrust Division, U.S. Department of Justice, Computers & 
Finance Section, Suite 9500, 600 E Street, NW., Washington, DC 20530, 
(202) 307-6200.

Certificate of Service

    The undersigned certifies that she is a paralegal employed by the 
United States Department of Justice, and is a person of such age and 
discretion to be competent to serve papers. The undersigned further 
certifies that on June 8, 1999, she caused true copies of the

1. Amendments to Complaint (together with attached Exhibit)
2. Uncontested Motion to Substitute Amended Final Judgment (together 
with the attached Exhibit)
3. Competitive Impact Statement

to be served upon the person in the manner stated below:

Counsel for Computer Associates International, Inc. and PLATINUM 
technology International, Inc.--Richard L. Rosen, Esq., Arnold & 
Porter, 555 12th Street, NW., Washington, DC 20004.

(by hand delivery)

    Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury 
that the foregoing is true and correct.

    Executed in Washington, DC, this 8th day of June 1999.
Joann Maguire.
[FR Doc. 99-15419 Filed 6-16-99; 8:45 am]
BILLING CODE 4410-11-M