[Federal Register Volume 75, Number 123 (Monday, June 28, 2010)]
[Notices]
[Pages 36689-36693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15368]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States, et al. v. Election Systems & Software, Inc.;
Public Comments and Response on Proposed Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h), the United States hereby publishes below the comments
received on the proposed Final Judgment in United States, et al. v.
Election Systems & Software Inc., Case No. 1:10-00380-JDB, which were
filed in the United States District Court for the District of Columbia
on June 17, 2010, together with the response of the United States to
the comments.
Copies of the comments and the response are available for
inspection at the Department of Justice Antitrust Division, 450 Fifth
Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-
2481), on the Department of Justice's Web site at http://www.usdoj.gov/atr, and at the Office of the Clerk of the United States District Court
for the District of Columbia, 333 Constitution Avenue, NW., Washington,
DC 20001. Copies of any of these materials may be obtained upon request
and payment of a copying fee.
J. Robert Kramer II,
Director of Operations and Civil Enforcement.
United States District Court for the District of Columbia
United States of America, et al., Plaintiffs, v. Election Systems and
Software, Inc., Defendant.
Case No.: 1:10-cv-00380
Judge: Bates, John D.
Deck Type: Antitrust
Date Stamp:
Response of Plaintiff United States to Public Comments on the Proposed
Final Judgment
Pursuant to the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16(b)-(h) (``APPA'' or ``Tunney Act''),
the United States hereby responds to the public comments received
regarding the proposed Final Judgment in this case. After careful
consideration of the comments, the United States continues to believe
that the proposed Final Judgment will provide an effective and
appropriate remedy for the antitrust violations alleged in the
Complaint. The United States will move the Court for entry of the
proposed Final Judgment after the public comments and this response
have been published in the Federal Register, pursuant to 15 U.S.C.
Sec. 16(d).
The United States and the States of Arizona, Colorado, Florida,
Maine, Maryland, New Mexico, Tennessee, and Washington, and the
Commonwealth of Massachusetts (the ``Plaintiff States''), filed a civil
antitrust Complaint on March 8, 2010, seeking injunctive and other
relief to remedy the likely anticompetitive effects arising from the
acquisition of Premier Election Solutions, Inc. and PES Holdings, Inc.
(collectively, ``Premier''), by Defendant Election Systems and
Software, Inc. (``ES&S''). The Complaint alleged that ES&S's
acquisition of Premier likely would result in higher prices, a
reduction in quality, and less innovation in the U.S. voting equipment
systems market, in violation of Section 7 of the Clayton Act, 15 U.S.C.
Sec. 18.
Simultaneously with the filing of the Complaint, the United States
filed a proposed Final Judgment and an Asset Preservation Stipulation
and Order (``APSO'') signed by the plaintiffs and the defendant,
consenting to the entry of the proposed Final Judgment after compliance
with the requirements of the Tunney Act, 15 U.S.C. Sec. 16. Pursuant
to those requirements, the United States filed its Competitive Impact
Statement
[[Page 36690]]
(``CIS'') with the Court on March 8, 2010; published the proposed Final
Judgment and CIS in the Federal Register on March 15, 2010, see United
States, et al. v. Election Systems and Software, Inc., 75 Fed. Reg.
12256; and published summaries of the terms of the proposed Final
Judgment and CIS, together with directions for the submission of
written comments relating to the proposed Final Judgment, in The
Washington Post for seven days beginning on March 19, 2010 and ending
on March 25, 2010. The sixty-day period for public comments ended on
May 24, 2010; three comments were received as described below and
attached hereto.
I. THE INVESTIGATION AND PROPOSED RESOLUTION
On September 2, 2009, ES&S executed a Purchase Agreement to acquire
Premier from Diebold, Inc. (``Diebold'') in exchange for $5 million in
cash and 70 percent of certain receivables. ES&S consummated the
acquisition on the same day the agreement was executed. Because the
purchase price for this transaction fell below the reporting thresholds
of the Hart Scott-Rodino (``HSR'') Antitrust Improvements Act of 1976,
ES&S was not required to report the acquisition to the Department of
Justice or the Federal Trade Commission before consummation. See 15
U.S.C. Sec. 18a(a)(2)(B)(i) (2000); 75 Fed. Reg. 3468 (Jan. 21, 2010).
As soon as the United States Department of Justice (``Department'')
became aware of the acquisition, it opened an investigation into the
likely competitive effects of the transaction that spanned nearly six
months. As part of this investigation, the Department obtained
substantial documents and information from ES&S and Diebold, took oral
testimony from ES&S and Diebold executives, and issued several Civil
Investigative Demands to third parties. In total, the Department
received and considered more than 500,000 electronic documents. The
Department also conducted over 100 primary interviews and multiple
follow-up interviews with customers, competitors, regulators, industry
groups and other individuals with knowledge of the voting equipment
system industry. The investigative staff carefully analyzed the
information provided and thoroughly considered all of the issues
presented. The Department considered the potential competitive effects
of the transaction on the development, sale and service of voting
equipment systems in the United States, and concluded that ES&S's
acquisition of Premier substantially lessened competition in the
development, sale and service of voting equipment systems.
A voting equipment system consists of the integrated collection of
customized hardware, software, firmware and associated services used to
electronically record, tabulate, transmit and report votes in an
election. The number, variety, and operation of electronic components
within a voting equipment system vary depending on the needs of the
jurisdiction responsible for administering elections, which may be the
state, county or local government, depending on state law. Voting
equipment systems typically are sold to state, county and municipal
jurisdictions pursuant to request for proposals, and a winning bid is
selected after a public procurement process. Jurisdictions evaluate
vendors based on a wide variety of technical and commercial criteria,
including compliance with state law, technical standards, certification
standards, experience in other jurisdictions and commercial standards
such as price, delivery schedule, financial wherewithal, and other
terms of sale. Vendors typically provide multi-year service agreements.
As explained more fully in the Complaint and CIS, the acquisition
of Premier by ES&S combined two firms that many customers considered
the two closest competitors in the provision of voting equipment
systems, as well as the two largest providers of U.S. voting equipment
systems. As a result of ES&S's acquisition of its closest competitor,
ES&S has a reduced incentive both to compete as aggressively for bids
and to invest in new products, thereby likely increasing the price and
reducing the quality of the voting equipment systems available to most
jurisdictions. Therefore, the Complaint alleged that the acquisition of
Premier likely would substantially lessen competition in the United
States market for voting equipment systems, which likely would lead to
higher prices, lower quality and less innovation, in violation of
Section 7 of the Clayton Act. The proposed Final Judgment will restore
competition by making available to an independent entity the Premier
assets necessary to equip an economically viable competitor to ES&S in
the provision of voting equipment systems in the United States.
II. SUMMARY OF PUBLIC COMMENTS AND THE UNITED STATES'S RESPONSE
During the sixty-day comment period, the United States received
three comments, all of which addressed only the proposed Final Judgment
provision that released current and former Premier employees from
noncompete agreements. The comments, all submitted anonymously, are
attached hereto in the Appendix to this Response.\1\
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\1\ The first comment was submitted without signature, see
Appendix at 1; the other two comments were signed ``The Public,''
and are identical in every respect. See Appendix at 2 and 3.
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The proposed Final Judgment requires that ES&S ``waive all
nondisclosure and noncompete agreements for all of the current and
former employees of Premier for a period of six (6) months following
the date of the divestiture of the Divestiture Assets, for the
exclusive purpose of allowing those employees to seek employment with
the Acquirer.'' Section IV(D). This clause is intended to give the
Acquirer an opportunity to recruit employees with experience serving
current Premier customers and to obtain expertise related to the
development, sale, repair and service of Premier voting equipment
system products. The commenters argue that ES&S should be required to
void or waive all Premier noncompete agreements for a much broader
period of time and for any purpose, in order to allow Premier employees
to avoid legal liability for violating those agreements. In response,
the United States contends that the limited waiver of noncompete
agreements in the proposed Final Judgment will allow the Acquirer to
collect the expertise it needs to replace the competition lost when
Premier was purchased by ES&S, and that the commenters' proposed
modifications would not serve that purpose and might even undermine the
Acquirer's ability to build a competitive work force.
The United States has reviewed the comments submitted and has
determined that the proposed Final Judgment remains in the public
interest.
A. Summary of Public Comments
The commenters argue that the proposed Final Judgment's requirement
that ES&S waive Premier noncompete agreements should be modified to
excuse all current and former employees from noncompete agreements that
were breached in the past, agreements that might be breached more than
six months following the divestiture, and agreements that are breached
by an employee's defection to a competitor other than the Acquirer. The
comments submitted by ``The Public'' state that (1) ES&S should not be
permitted to enforce noncompete agreements against former employees who
already have begun working for other vendors because
[[Page 36691]]
``these former employees would be subject to legal action from ES&S'';
(2) the six-month period is unnecessary because ``the agreements are
already set to expire in September 2011,'' and (3) ``these former
employees should also be able to go to work for any company in the
election industry, not just the acquirer.'' See Appendix at 2 and 3.
The unsigned comment likewise argues that noncompete agreements should
be waived retroactively to the date that ES&S acquired Premier, to
``prevent ES&S from filing suit against any former Premier employees
prior to this judgment.'' See Appendix at 1. The comments provide no
further explanation of the proposed modifications, nor do they identify
any link between the proposed modifications and the competitive harm
arising from the acquisition of Premier by ES&S.
B. The United States's Response
The proposed Final Judgment requires that ES&S waive noncompete
agreements for current and former employees for a period of six months
following the divestiture, to allow the Acquirer to develop the
expertise necessary to develop, sell, repair and service voting
equipment systems for current Premier customers. As the Acquirer
becomes able to offer the experience and expertise that Premier enjoyed
before its acquisition by ES&S, that acquirer will be better able to
restore competition in the sale of voting equipment systems. The
requirement that ES&S waive noncompetes is limited to six months in
order to encourage the Acquirer to solicit staff expeditiously and to
minimize the disruption to ES&S customers preparing for upcoming
elections, which otherwise might result from significant staff
turnover.
The commenters do not suggest that their proposed modification will
have any effect on the remedial impact of the proposed Final Judgment.
Indeed, if the provision were modified as they suggest, employees would
have no more incentive to seek a position with the Acquirer than with
any other vendor, which actually might undermine the competitive
efficacy of the proposed Final Judgment by reducing the pool of
expertise from which the Acquirer could successfully recruit. Further,
if the six-month limitation on the noncompete waiver were removed, as
``The Public'' suggests, the Acquirer's incentive to recruit a complete
work force quickly, so as to be prepared to compete immediately, would
be sharply reduced. Likewise, because significant employee attrition
will unavoidably disrupt vendor support of the installation, service
and repair of Premier voting equipment systems, limiting the waiver to
six months minimizes the impact of that disruption on upcoming
elections.\2\
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\2\ ``The Public'' argues that all Premier noncompete agreements
expire on September 2011, but offers no support for this contention.
Indeed, the Department's information is that the expiration of these
agreements varies. Even if it were true that all agreements
terminate in September 2011, extending the waiver for nearly a year
past the six months provided in the proposed Final Judgment could
disrupt an additional calendar year of election services, and could
reduce the Acquirer's readiness to compete for new procurements that
are expected to issue in late 2010 and early 2011.
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The commenters do not suggest that the proposed Final Judgment
itself would cause current or former employees any injury. Instead, the
comments appear to seek a form of amnesty for employees who already
have left ES&S's employ, and may have violated their noncompete
agreements long before the Complaint and proposed Final Judgment were
filed. See Appendix at 2 and 3 (``* * * some of these former employees
have already started working with other vendors.'') The proposed Final
Judgment does not create new liability for Premier employees, but
merely removes the disincentive of potential liability for employees
who are otherwise willing to bring their expertise to the Acquirer,
helping to ameliorate the anticompetitive impact of ES&S's acquisition
of Premier.
In sum, the United States continues to believe that the proposed
Final Judgment will remedy the competitive harm arising from ES&S's
acquisition of Premier, and that the commenters' proposed modifications
to the noncompete waiver provision not only would fail to serve that
goal, but also could well undermine it.
III. Standard of Judical Review
The APPA requires that proposed consent 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.'' 15 U.S.C. Sec.
16(e)(l). In making that determination in accordance with the statute,
the court is required to consider:
(A) the competitive impact of such judgment, including termination
of alleged violations, provisions for enforcement and modification,
duration of relief sought, anticipated effects of alternative remedies
actually considered, whether its terms are ambiguous, and any other
competitive considerations bearing upon the adequacy of such judgment
that the court deems necessary to a determination of whether the
consent judgment is in the public interest; and
(B) The impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and individuals
alleging specific injury from the violations set forth in the complaint
including consideration of the public benefit, if any, to be derived
from a determination of the issues at trial.
15 U.S.C. Sec. 16(e)(1)(A)-(B). In considering these statutory
factors, the court's inquiry is necessarily a limited one as the
government is entitled to ``broad discretion to settle with the
defendant within the reaches of the public interest.'' United States v.
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d I (D.D.C. 2007)
(assessing public interest standard under the Tunney Act); United
States. InBev N.V./S.A., 2009-2 Trade Cas. (CCH) ]76,736, No. 08-1965
(JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting
that the court's review of a consent judgment is limited and only
inquires ``into whether the government's determination that the
proposed remedies will cure the antitrust violations alleged in the
complaint was reasonable, and whether the mechanisms to enforce the
Final Judgment are clear and manageable'').
As the United States Court of Appeals for the District of Columbia
Circuit has held, under the APPA, a court considers, among other
things, the relationship between the remedy secured and the specific
allegations set forth in the government's complaint, whether the decree
is sufficiently clear, whether enforcement mechanisms are sufficient,
and whether the decree may positively harm third parties. See
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the
relief secured by the decree, 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) (citing
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787,
at *3 Courts have held that:
``[t]he balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's role
in protecting the public interest is one of insuring that the
government has not
[[Page 36692]]
breached its duty to the public in consenting to the decree. The court
is required to determine not whether a particular decree is the one
that will best serve society, but whether the settlement is ``within
the reaches of the public interest.'' More elaborate requirements might
undermine the effectiveness of antitrust enforcement by consent
decree.''
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\3\ In
determining whether a proposed settlement is in the public interest,
the court ``must accord deference to the government's predictions about
the efficacy of its remedies, and may not require that the remedies
perfectly match the alleged violations.'' SBC Commc'ns, 489 F. Supp. 2d
at 17; see also Microsoft, 56 F.3d at 1461 (noting the need for courts
to be ``deferential to the government's predictions as to the effect of
the proposed remedies''); United States v. Archer-Daniels-Midland Co.,
272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant
due respect to the United States' prediction as to the effect of
proposed remedies, its perception of the market structure, and its
views of the nature of the case).
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\3\ Cf BNS, 858 F.2d at 464 (holding that the court's ``ultimate
authority under the [APPA] is limited to approving or disapproving
the consent decree''); United States v. Gillette Co., 406 F. Supp.
713, 716 (D. Mass. 1975) (noting that, in this way, the court is
constrained to ``look at the overall picture not hypercritically,
nor with a microscope, but with an artist's reducing glass''). See
generally Microsoft, 56 F.3d at 1461 (discussing whether ``the
remedies [obtained in the decree are] so inconsonant with the
allegations charged as to fall outside of the `reaches of the public
interest').
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Courts have greater flexibility in approving proposed consent
decrees than in crafting their own decrees following a finding of
liability in a litigated matter. ``{A{time} proposed decree must be
approved even if it falls short of the remedy the court would impose on
its own, as long as it falls within the range of acceptability or is
``within the reaches of public interest.'' United States v. Am. Tel. &
Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted)
(quoting United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass.
1975)), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983);
see also United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622
(W.D. Ky. 1985) (approving the consent decree even though the court
would have imposed a greater remedy). Therefore, the United States
``need only provide a factual basis for concluding that the settlements
are reasonably adequate remedies for the alleged harms.'' SBC Commc'ns,
489 F. Supp. 2d at 17.
In its 2004 amendments to the Tunney Act,\4\ Congress made clear
its intent to preserve the practical benefits of utilizing consent
decrees in antitrust enforcement, stating ``[nothing in this section
shall be construed to require the court to conduct an evidentiary
hearing or to require the court to permit anyone to intervene.'' 15
U.S.C. Sec. 16(e)(2). The language wrote into the statute what
Congress intended when it enacted the Tunney Act in 1974, as Senator
Tunney explained: ``[t]he court is nowhere compelled to go to trial or
to engage in extended proceedings which might have the effect of
vitiating the benefits of prompt and less costly settlement through the
consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of
Senator Tunney). Rather, the procedure for the public-interest
determination is left to the discretion of the court, with the
recognition that the court's ``scope of review remains sharply
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC
Commc'ns, 489 F. Supp. 2d at ii.\5\
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\4\ The 2004 amendments substituted the word ``shall'' for
``may'' when directing the courts to consider the enumerated factors
and amended the list of factors to focus on competitive
considerations and address potentially ambiguous judgment terms.
Compare 15 U.S.C. Sec. 16(e) (2004), with 15 U.S.C. Sec. 16(e)(l)
(2006); see also SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding
that the 2004 amendments ``effected minimal changes'' to Tunney Act
review).
\5\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the
court to make its public interest determination on the basis of the
competitive impact statement and response to comments alone'');
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ]
61,508, at 71,980 (W.D. Mo. 1977) (``Absent 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.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6
(1973) (``Where the public interest can be meaningfully evaluated
simply on the basis of briefs and oral arguments, that is the
approach that should be utilized.'')
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IV. Conclusion
The issues raised in the public comments were among the many
considered by the United States when it evaluated the sufficiency of
the proposed remedy. The United States has determined that the proposed
Final Judgment, as drafted, provides an effective and appropriate
remedy for the antitrust violations alleged in the Complaint, and is
therefore in the public interest. The United States will move this
Court to enter the proposed Final Judgment after the comments and this
response are published in the Federal Register.
Dated: June 17, 2010.
Respectfully submitted, /s/
Stephanie A. Fleming, Esq.
United States Department of Justice, Antitrust Division, Litigation II
Section, 450 5th Street, NW., Suite 8700, Washington, DC 20530. Phone:
(202) 514-9228. Fax: (202) 514-9033. [email protected]
Appendix: Public Comments
April 5, 2010.
Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division,
United States Department of Justice, 450 Fifth Street, NW., Suite 8700,
Washington, DC 20530.
Dear Ms. Petrizzi: As an interested third party to the court case
involving Election Systems & Software's purchase of Premier Election
Solutions, I would like to request that the judgment stipulate that the
signed employment and non-compete agreements of former Premier
employees be waived as of the purchase date of Premier by ES&S, up to a
period of six months following the judgment date. The reason for this
request is to prevent ES&S from filing suit against any former Premier
employees prior to this judgment based on those agreements.
I am aware that ES&S is not shy in bringing legal action against
current or former employees for any reason and without regard to the
facts surrounding the incidents. I am writing this letter anonymously
to prevent the possible legal entanglements with ES&S should they find
out who wrote it. You may think this is paranoid, but I have had first-
hand experience dealing with their frivolous and destructive lawsuits.
I thank you for your consideration of this matter and hope my
letter is taken seriously, for that is how it is intended.
Attention: Maribeth Petrizzi, Chief, Litigation III Section, Antitrust
Division, United States Department of Justice, 450 Fifth Street, NW.;
Suite 8700, Washington, DC 20530.
United States of America, et al., Plaintiff, v. Election Systems &
Software, Inc., Defendant
As a friend of a former employee of Premier Election Solutions who
was terminated as a result of this illegal acquisition by Election
Systems & Software (ES&S), I would like to file a suggestion to the
court. The former employees of Premier Elections should not be
restricted to continue working their trade in elections or be prevented
from earning a living for their families as a result of a
noncompetition agreement and Separation Agreement in this illegal
purchase. The agreements
[[Page 36693]]
should be considered null and void. Election Systems & Software (ES&S)
should not have the right to ever pursue former Premier Associates in
legal matters with respect to those Agreements. The Agreements should
not be void as of the Date of the Final Judgment as some of these
former employees have already started working with other vendors. These
former employees would be subject to legal action from ES&S since they
wouldn't fall within the window set forth in the Final Judgment. These
Agreements should be considered void as of the date of the employee's
termination date. Also the agreements are already set to expire in
September 2011 so there is no reason to have a 6 month window for any
acquirer to hire these former employees. These former employees should
also be able to go to work for any company in the election industry,
not just the acquirer, without fear or threat from ES&S. Below is my
consideration to the wording set forth in the Final Judgment.
All restrictive covenants contained within any employment agreement
or separation agreement entered into between Premier Election
Solutions, Inc., its parent corporation, subsidiaries, officers,
directors, supervisors and/or representatives (collectively referred to
as ``Premier'') and any individuals formerly employed by Premier who
were terminated in 2009 are declared void. Premier may not institute or
maintain a cause of action or any claim based on a restrictive covenant
against any individual formerly employed by Premier who was terminated
in 2009. Premier has consented to waive all such claims and causes of
action throughout the United States of America.
Thanks for your consideration.
The Public
Attention: Maribeth Petrizzi, Chief, Litigation II Section, Antitrust
Division, United States Department of Justice, 450 Fifth Street, NW.;
Suite 8700, Washington, DC 20530.
United States of America, et al., Plaintiff, v. Election Systems &
Software, Inc., Defendant
As a friend of a former employee of Premier Election Solutions who
was terminated as a result of this illegal acquisition by Election
Systems & Software (ES&S), I would like to file a suggestion to the
court. The former employees of Premier Elections should not be
restricted to continue working their trade in elections or be prevented
from earning a living for their families as a result of a
noncompetition agreement and Separation Agreement in this illegal
purchase. The agreements should be considered null and void. Election
Systems & Software (ES&S) should not have the right to ever pursue
former Premier Associates in legal matters with respect to those
Agreements. The Agreements should not be void as of the Date of the
Final Judgment as some of these former employees have already started
working with other vendors. These former employees would be subject to
legal action from ES&S since they wouldn't fall within the window set
forth in the Final Judgment. These Agreements should be considered void
as of the date of the employee's termination date. Also the agreements
are already set to expire in September 2011 so there is no reason to
have a 6 month window for any acquirer to hire these former employees.
These former employees should also be able to go to work for any
company in the election industry, not just the acquirer, without fear
or threat from ES&S. Below is my consideration to the wording set forth
in the Final Judgment.
All restrictive covenants contained within any employment agreement
or separation agreement entered into between Premier Election
Solutions, Inc., its parent corporation, subsidiaries, officers,
directors, supervisors and/or representatives (collectively referred to
as ``Premier'') and any individuals formerly employed by Premier who
were terminated in 2009 are declared void. Premier may not institute or
maintain a cause of action or any claim based on a restrictive covenant
against any individual formerly employed by Premier who was terminated
in 2009. Premier has consented to waive all such claims and causes of
action throughout the United States of America.
Thanks for your consideration.
The Public.
[FR Doc. 2010-15368 Filed 6-25-10; 8:45 am]
BILLING CODE 4410-11-M