[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Notices]
[Pages 62964-62995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26201]
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Vol. 83
Thursday,
No. 234
December 6, 2018
Part II
Department of Justice
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Antitrust Division
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United States v. Sinclair Broadcast Group, Inc., et al.; Proposed Final
Judgments and Competitive Impact Statement; Notice
Federal Register / Vol. 83 , No. 234 / Thursday, December 6, 2018 /
Notices
[[Page 62964]]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Sinclair Broadcast Group, Inc., et al.; Proposed
Final Judgments and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that proposed Final Judgments,
Stipulations, and a Competitive Impact Statement have been filed with
the United States District Court for the District of Columbia in United
States of America v. Sinclair Broadcast Group, Inc., et al., Civil
Action No. 1:18-cv-2609. On November 13, 2018, the United States filed
a Complaint alleging that Sinclair Broadcast Group, Inc., Raycom Media,
Inc., Tribune Media Company, Meredith Corporation, Griffin
Communications, LLC, and Dreamcatcher Broadcasting, LLC (collectively,
``Defendants'') violated Section 1 of the Sherman Act, 15 U.S.C. 1, by
agreeing to unlawfully exchange station-specific, competitively
sensitive information regarding spot advertising revenues. The proposed
Final Judgments, filed at the same time as the Complaint, prohibit
sharing of competitively sensitive information, require Defendants to
implement antitrust compliance training programs, and impose
cooperation and reporting requirements on Defendants.
Copies of the Complaint, proposed Final Judgments, Stipulations and
Competitive Impact Statement are available for inspection on the
Antitrust Division's website at http://www.justice.gov/atr and at the
Office of the Clerk of the United States District Court for the
District of Columbia. Copies of these materials may be obtained from
the Antitrust Division upon request and payment of the copying fee set
by Department of Justice regulations.
Public comment is invited within 60 days of the date of this
notice. Such comments, including the name of the submitter, and
responses thereto, will be posted on the Antitrust Division's website,
filed with the Court, and, under certain circumstances, published in
the Federal Register. Comments should be directed to Owen Kendler,
Chief, Media, Entertainment, and Professional Services Section,
Antitrust Division, Department of Justice, 450 Fifth Street NW, Suite
4000, Washington, DC 20530 (telephone: 202-616-5935).
Patricia A. Brink,
Director of Civil Enforcement.
United States District Court for the District of Columbia
United States of America, 450 Fifth Street NW, Washington, DC
20530, Plaintiff, v. Sinclair Broadcast Group, Inc., 10706 Beaver
Dam Road, Hunt Valley, Maryland 21030; Raycom Media, Inc., 201
Monroe Street, Montgomery, AL 36104; Tribune Media Company, 435
North Michigan Avenue, Chicago, IL 60611; Meredith Corporation, 1716
Locust Street, Des Moines, IA 50309; Griffin Communications, LLC,
7401 N Kelley Avenue, Oklahoma City, OK 73111; and Dreamcatcher
Broadcasting, LLC, 2016 Broadway, Santa Monica, CA 90404,
Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
COMPLAINT
The United States of America, acting under the direction of the
Acting Attorney General of the United States, brings this civil
antitrust action to obtain equitable relief against Defendants
Sinclair Broadcast Group, Inc. (``Sinclair''), Raycom Media, Inc.
(``Raycom''), Tribune Media Company (``Tribune''), Meredith
Corporation (``Meredith''), Griffin Communications, LLC
(``Griffin''), and Dreamcatcher Broadcasting, LLC
(``Dreamcatcher''), alleging as follows:
I. NATURE OF THE ACTION
1. This action challenges under Section 1 of the Sherman Act
Defendants' agreements to unlawfully exchange competitively
sensitive information among broadcast television stations.
2. Sinclair, Raycom, Tribune, Meredith, Griffin, and
Dreamcatcher (``Defendants'') and certain other television broadcast
station groups (``Other Broadcasters'') compete in various
configurations in a number of designated marketing areas (``DMAs'')
in the market for broadcast television spot advertising. Certain
national sales representation firms (``Sales Rep Firms'') represent
broadcast station groups, including the Defendants, in their sales
of spot advertising to advertisers. Defendants', Other
Broadcasters', and Sales Rep Firms' concerted behavior in exchanging
competitively sensitive information has enabled the Defendants and
Other Broadcasters to reduce competition in the sale of broadcast
television spot advertising where they purport to compete head to
head.
3. Defendants' agreements are restraints of trade that are
unlawful under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The
Court should therefore enjoin Defendants from exchanging
competitively sensitive information with and among competing
broadcast television stations.
II. JURISDICTION AND VENUE
4. Each Defendant sells spot advertising to advertisers
throughout the United States, or owns and operates broadcast
television stations in multiple states or in DMAs that cross state
lines. Sales Rep Firms represent broadcast stations throughout the
United States, including each of the Defendants, in the sale of spot
advertising to advertisers throughout the United States. Such
activities, including the exchanges of competitively sensitive
information featured in this Complaint, are in the flow of and
substantially affect interstate commerce. The Court has subject
matter jurisdiction under Section 4 of the Sherman Act, 15 U.S.C.
Sec. 4, and under 28 U.S.C. Sec. Sec. 1331 and 1337, to prevent
and restrain the Defendants from violating Section 1 of the Sherman
Act, 15 U.S.C. Sec. 1.
5. Defendants have consented to venue and personal jurisdiction
in this District. Venue is proper in this judicial district under
Section 12 of the Clayton Act, 15 U.S.C. Sec. 22, and 28 U.S.C.
Sec. 1391.
III. DEFENDANTS
6. Defendant Sinclair is a Maryland corporation with its
principal place of business in Hunt Valley, Maryland. Sinclair owns
or operates 130 television stations in 87 DMAs and had over $2.7
billion in revenues in 2017.
7. Defendant Raycom is a Delaware corporation with its principal
place of business in Montgomery, Alabama. Raycom owns or operates 55
television stations in 43 DMAs and had over $670 million in revenues
in 2017.
8. Defendant Tribune is a Delaware corporation with its
principal place of business in Chicago, Illinois. Tribune owns or
operates 41 television stations in 31 DMAs and had over $1.8 billion
in revenues in 2017.
9. Defendant Meredith is an Iowa corporation with its principal
place of business in Des Moines, Iowa. Meredith owns or operates 17
television stations in 12 DMAs and had over $1.7 billion in revenues
in 2017.
10. Defendant Griffin is an Oklahoma corporation with its
principal place of business in Oklahoma City, Oklahoma. Griffin owns
or operates four television stations in two DMAs and had over $60
million in revenues in 2017.
11. Defendant Dreamcatcher is a Delaware corporation with its
principal place of business in Santa Monica, California.
Dreamcatcher owns or operates three television stations in two DMAs
and had over $50 million in revenues in 2017.
IV. INDUSTRY BACKGROUND
12. Broadcast television is important to both viewers and
advertisers. For viewers, broadcast stations, including local
affiliates of ABC, CBS, FOX, and NBC (collectively, the ``Big 4''
stations), offer not only highly rated entertainment and sports
programming, but also local reporting of the news and events in
their own communities and regions. The wide popularity of broadcast
station programming--and the concomitant opportunity to reach a
large local audience--also make broadcast television critical to
advertisers, including local businesses that seek to reach potential
customers in their own communities.
13. Broadcast stations sell advertising ``spots'' during breaks
in their programming.
[[Page 62965]]
An advertiser purchases spots from a broadcast station to
communicate its message to viewers within the DMA in which the
broadcast television station is located.
14. Broadcast stations typically divide their sale of spot
advertising into two categories: local sales and national sales.
Local sales are sales a broadcast station makes through its own
local sales staff, typically to advertisers located within the DMA.
National sales are sales a broadcast station makes through either a
Sales Rep Firm or through a centrally located broadcast group staff,
typically to regional or national advertisers.
15. Sales Rep Firms represent broadcast stations in negotiations
with advertisers' or advertisers' agents regarding the sale of
broadcast stations' spot advertising. There are two primary Sales
Rep Firms in the United States. Often a Sales Rep Firm represents
two or more competing stations in the same DMA. In those cases, the
Sales Rep Firms purportedly erect firewalls to prevent coordination
and information sharing between sales teams representing competing
stations.
V. THE UNLAWFUL AGREEMENTS
16. Defendants and Other Broadcasters have agreed in many DMAs
across the United States to reciprocally exchange revenue pacing
information. Certain Defendants also engaged in the exchange of
other forms of competitively sensitive sales information in certain
DMAs. Pacing compares a broadcast station's revenues booked for a
certain time period to the revenues booked for the same point in
time in the previous year. Pacing indicates how each station is
performing versus the rest of the market and provides insight into
each station's remaining spot advertising inventory for the period.
17. Defendants' exchange of competitively sensitive information
has taken at least two forms.
18. First, Defendants and Other Broadcasters regularly exchanged
pacing information through the Sales Rep Firms. At least once per
quarter, but frequently more often, the Sales Rep Firms representing
the Big 4 stations in a DMA exchanged real-time pacing information
regarding each station's revenues, and reported the information to
the Defendants and the other Big 4 station owners in the DMA.
Typically, the exchanges included data on individual stations'
booked sales for current and future months as well as a comparison
to past periods. To the extent a Sales Rep Firm represents more than
one Big 4 station in a DMA through sales teams separated by a
supposed firewall, the exchange of pacing and other competitively
sensitive information occurred between the sales teams and through
those firewalls. Once given to the Defendants and Other Broadcasters
in the DMA, the competitors' pacing information was then
disseminated to the stations' sales managers and other individuals
with authority over pricing and sales for the broadcast stations.
These exchanges occurred with Defendants' knowledge and frequently
at Defendants' instruction, and occurred in DMAs across the United
States.
19. Second, in some DMAs, Defendants and Other Broadcasters
exchanged competitively sensitive information, including real-time
pacing information for booked sales for current and future months,
directly between broadcast station employees. These exchanges
predominantly concerned local sales, but sometimes pertained to all
sales or national sales.
20. These exchanges of pacing information allowed stations to
better understand, in real time, the availability of inventory on
competitors' stations, which is often a key factor affecting
negotiations with buyers over spot advertising prices. The exchanges
also helped stations to anticipate whether competitors were likely
to raise, maintain, or lower spot advertising prices. Understanding
competitors' pacing can help stations gauge competitors' and
advertisers' negotiation strategies, inform their own pricing
strategies, and help them resist more effectively advertisers'
attempts to obtain lower prices by playing stations off of one
another. Defendants' information exchanges therefore distorted the
normal price-setting mechanism in the spot advertising market and
harmed the competitive process.
21. Defendants' and Other Broadcasters' regular information
exchanges, directly and through the Sales Rep Firms, reflect
concerted action between horizontal competitors in the broadcast
television spot advertising market.
VI. VIOLATION ALLEGED
(Violation of Section 1 of the Sherman Act)
22. The United States repeats and realleges paragraphs 1 through
21 as if fully set forth herein.
23. Defendants violated Section 1 of the Sherman Act, 15 U.S.C.
Sec. 1, by agreeing to exchange competitively sensitive
information, either directly or through Sales Rep Firms. Defendants'
exchange of pacing information resulted in anticompetitive effects
in the broadcast television spot advertising markets in many DMAs
throughout the United States.
24. The scheme consists of exchanges between Defendants and
Other Broadcasters, either directly or through the Sales Rep Firms,
in many DMAs, of their stations' revenue pacing information or, for
certain Defendants in certain DMAs, other competitively sensitive
information concerning spot advertising sales.
25. These unlawful information sharing agreements between
Defendants, Other Broadcasters, and Sales Rep Firms have had, and
likely will continue to have, anticompetitive effects in spot
advertising markets by disrupting the normal mechanisms for
negotiating and setting prices and harming the competitive process.
26. Defendants' agreements to exchange competitively sensitive
information are unreasonable restraints of interstate trade and
commerce. This offense is likely to continue and recur unless the
requested relief is granted.
VII. REQUESTED RELIEF
27. The United States requests that the Court:
a. adjudge that the information sharing agreements unreasonably
restrain trade and are unlawful under Section 1 of the Sherman Act,
15 U.S.C. Sec. 1;
b. permanently enjoin and restrain Defendants from sharing
pacing or other competitively sensitive information or agreeing to
share such information with any other broadcast station or broadcast
station group, directly or indirectly, and requiring Defendants to
take such internal measures as are necessary to ensure compliance
with that injunction;
c. award the United States the costs of this action; and
d. award such other relief to the United States as the Court may
deem just and proper.
Dated: November 13, 2018
Respectfully submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA,
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Makan Delrahim (D.C. Bar #457795),
Assistant Attorney General for Antitrust.
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William J. Rinner,
Acting Chief of Staff and Senior Counsel.
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Patricia A. Brink,
Director of Civil Enforcement.
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Owen M. Kendler,
Chief, Media, Entertainment & Professional Services Section.
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Yvette Tarlov (D.C. Bar #442452),
Assistant Chief, Media, Entertainment & Professional Services
Section.
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Lee F. Berger (D.C. Bar #482435),
Richard A. Hellings, Jr.,
Gregg Malawer (D.C. Bar #481685),
Bennett J. Matelson (D.C. Bar #454551),
Monsura A. Sirajee,
United States Department of Justice Antitrust Division, Media,
Entertainment & Professional Services Section, 450 Fifth Street,
N.W., Suite 4000, Washington, DC 20530, Telephone: (202) 514-0230,
Facsimile: (202) 514-7308.
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its
Complaint on November __, 2018, alleging that Defendant Sinclair
Broadcast Group, Inc., among others, violated Section 1 of the
Sherman Act, 15 U.S.C. Sec. 1, the United States and Defendant, by
their respective attorneys, have consented to the entry of this
Final Judgment without trial or adjudication of any issue of fact or
law;
AND WHEREAS, this Final Judgment does not constitute any
evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, the United States and Defendant agree to be bound
by the
[[Page 62966]]
provisions of this Final Judgment pending its approval by this
Court;
AND WHEREAS, the Defendant agrees to undertake certain actions
and to refrain from engaging in certain forms of information sharing
with its competitors;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter and each of
the parties to this action. The allegations in the Complaint arise
under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
See 28 U.S.C. Sec. 1331.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Advertiser'' means an advertiser, an advertiser's buying
agent, or an advertiser's representative.
B. ``Agreement'' means any agreement, understanding, pact,
contract, or arrangement, formal or informal, oral or written,
between two or more Persons.
C. ``Communicate,'' ``Communicating,'' and ``Communication(s)''
means to provide, send, discuss, circulate, exchange, request, or
solicit information, whether directly or indirectly, and regardless
of the means by which it is accomplished, including orally or by
written means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text
messages, audio recordings, meetings, interviews, correspondence,
exchange of written or recorded information, or face-to-face
meetings.
D. ``Competitively Sensitive Information'' means any of the
following information, less than eighteen months old, of Defendant
or any broadcast television station regarding the sale of spot
advertising on broadcast television stations: Non-Public Information
relating to pricing or pricing strategies, pacing, holding capacity,
revenues, or market shares. Reports containing only aggregated
market-level or national data are not Competitively Sensitive
Information, but reports (including by paid subscription) that are
customized or confidential to a particular Station or broadcast
television station group are Competitively Sensitive Information.
E. ``Cooperative Agreement'' means (1) joint sales agreements,
joint operating agreements, local marketing agreements, news share
agreements, or shared services agreements, or (2) any agreement
through which a Person exercises control over any broadcast
television station not owned by the Person.
F. ``Defendant'' means Sinclair Broadcast Group, Inc., a
Maryland corporation with its headquarters in Hunt Valley, Maryland,
its successors and assigns, and its subsidiaries, divisions, and
Stations, and their directors, officers, and employees.
G. ``DMA'' means Designated Market Area as defined by A.C.
Nielsen Company and used by the Investing in Television BIA Market
Report 2018.
H. ``Management'' means all directors and officers of Defendant,
or any other employee with management or supervisory
responsibilities for Defendant's business or operations related to
the sale of spot advertising on any Station.
I. ``Non-Public Information'' means information that is not
available from public sources or generally available to the public.
Measurement or quantification of a Station's future holding capacity
is Non-Public Information, but measurement or quantification of a
Station's past holding capacity is not Non-Public Information. For
the avoidance of doubt, the fact that information is available by
paid subscription does not on its own render the information public.
J. ``Person'' means any natural person, corporation, company,
partnership, joint venture, firm, association, proprietorship,
agency, board, authority, commission, office, or other business or
legal entity, whether private or governmental.
K. ``Sales Representative Firm'' means any organization,
including without limitation Katz Media Group, Inc. and Cox Reps,
Inc., and their respective subsidiaries and divisions, that
represents a Station or its owner in the sale of spot advertising.
L. ``Sales Representative Firm Manager'' means, for each of
Defendant's Sales Representative Firms, the employee of the Sales
Representative Firm with primary responsibility for the relationship
with Defendant.
M. ``Sales Staff'' means Defendant's employees with
responsibility for the sale of spot advertising on any Station.
N. ``Station'' means any broadcast television station, its
successors and assigns, and its subsidiaries, divisions, groups, and
its owner or operator and its directors, officers, managers, and
employees, unless a Station owns, is owned by, or is under common
ownership with a Sales Representative Firm, in which case that Sales
Representative Firm will not be considered a Station.
III. APPLICABILITY
This Final Judgment applies to Defendant, other Persons in
active concert or participation with Defendant who receive actual
notice of this Final Judgment by personal service or otherwise, and
any Person that signs an Acknowledgment of Applicability, attached
as Exhibit 2, to the extent set forth therein, as a condition of the
purchase of a Station owned by Defendant as of October 1, 2018. This
Final Judgment applies to Defendant's actions performed under any
Cooperative Agreement, even if those actions are taken on behalf of
a third party. This Final Judgment is fully enforceable, including
by penalty of contempt, against all of the foregoing.
IV. PROHIBITED CONDUCT
A. Defendant's Management and Sales Staff shall not, directly or
indirectly:
1. Communicate Competitively Sensitive Information to any
Station in the same DMA it does not own or operate;
2. Knowingly use Competitively Sensitive Information from or
regarding any Station in the same DMA it does not own or operate;
3. Encourage or facilitate the Communication of Competitively
Sensitive Information to or from any Station in the same DMA it does
not own or operate; or
4. Attempt to enter into, enter into, maintain, or enforce any
agreement to Communicate Competitively Sensitive Information with
any Station in the same DMA it does not own or operate.
B. The prohibitions under Paragraph IV(A) apply to Defendant's
Communicating or agreeing to Communicate through a Sales
Representative Firm or a third-party agent at Defendant's
instruction or request.
C. Defendant shall not sell any Station owned by the Defendant
as of October 1, 2018 to any Person unless that Person has first
executed the Acknowledgment of Applicability, attached as Exhibit 2.
Defendant shall submit any Acknowledgement of Applicability to the
United States within 15 days of consummating the sale of such
Station. The United States, in its sole discretion, may waive the
prohibition in this Paragraph IV(C) on a Station-by-Station basis.
Alternatively, the United States and the Person signing the
Acknowledgement of Applicability may agree to void the
Acknowledgement of Applicability at any time. The first sentence of
this paragraph shall not apply to the sale of any Station to a
Person already bound to a final judgment entered by a court
regarding the Communication of Competitively Sensitive Information.
V. CONDUCT NOT PROHIBITED
A. Nothing in Section IV shall prohibit Defendant from
Communicating, using, or encouraging or facilitating the
Communication of, Competitively Sensitive Information with an actual
or prospective Advertiser, except that, if the Advertiser is another
Station, Defendant's Communicating, using, or encouraging or
facilitating the Communication of, Competitively Sensitive
Information is excluded from the terms of Section IV only insofar as
is reasonably necessary to negotiate the sale of spot advertising on
broadcast television stations. For the avoidance of doubt, Defendant
is not prohibited from internally using Competitively Sensitive
Information received from an Advertiser that is a Station under the
preceding sentence, but Defendant is prohibited from Communicating
that Competitively Sensitive Information to a Station in the same
DMA that it does not own or operate.
B. Nothing in Section IV shall prohibit Defendant from, after
securing advice of counsel and in consultation with the Antitrust
Compliance Officer, Communicating, using, encouraging or
facilitating the Communication of, or attempting to enter into,
entering into, maintaining, or enforcing any agreement to
Communicate Competitively Sensitive Information with any Station
when such Communication or use is (a) for the purpose of evaluating
or effectuating a bona fide acquisition, disposition, or exchange of
Stations or related assets, or (b) reasonably necessary for
achieving the efficiencies of any other legitimate competitor
collaboration. With respect to any such agreement:
1. For all agreements under Part V(B)(a) with any other Station
to Communicate
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Competitively Sensitive Information that Defendant enters into,
renews, or affirmatively extends after the date of entry of this
Final Judgment, Defendant shall maintain documents sufficient to
show:
i. the specific transaction or proposed transaction to which the
sharing of Competitively Sensitive Information relates;
ii. the employees, identified with reasonable specificity, who
are involved in the sharing of Competitively Sensitive Information;
and
iii. the termination date or event of the sharing of
Competitively Sensitive Information.
2. All agreements under Part V(B)(b) with any other Station to
Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment shall be in writing, and shall:
i. identify and describe, with specificity, the collaboration to
which it is ancillary;
ii. be narrowly tailored to permit the Communication of
Competitively Sensitive Information only when reasonably necessary
and only to the employees reasonably necessary to effectuate the
collaboration;
iii. identify with reasonable specificity the Competitively
Sensitive Information Communicated pursuant to the agreement and
identify the employees to receive the Competitively Sensitive
Information;
iv. contain a specific termination date or event; and
v. be signed by all parties to the agreement, including any
modifications to the agreement.
3. For Communications under Part V(B)(a) above, Defendant shall
maintain copies of all materials required under Paragraph V(B)(1)
for five years or the duration of the Final Judgment, whichever is
shorter, following entry into any agreement to Communicate or
receive Competitively Sensitive Information, and Defendant shall
make such documents available to the United States upon request, if
such request is made during the preservation period.
4. For Communications under Part V(B)(b) above, Defendant shall
furnish a copy of all materials required under Paragraph V(B)(2) to
the United States within thirty days of the entry, renewal, or
extension of the agreement.
5. For purposes of this Section V(B) only, a Joint Sales
Agreement, Local Marketing Agreement, or similar agreement pursuant
to which the Defendant Communicates, uses, encourages or facilitates
the Communication of, or attempts to enter into, enters into,
maintains, or enforces any agreement to Communicate Competitively
Sensitive Information related solely to the sale of spot advertising
for which Defendant is responsible on a Station, shall be considered
a ``legitimate competitor collaboration'' under Part V(B)(b).
C. Nothing in Section IV shall prohibit Defendant from engaging
in conduct in accordance with the doctrine established in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657
(1965), and their progeny.
D. Nothing in Section IV prohibits Defendant from (1)
Communicating, encouraging or facilitating the Communication of, or
attempting to enter into, entering into, maintaining, or enforcing
any agreement to Communicate Competitively Sensitive Information for
the purpose of aggregation if (a) Competitively Sensitive
Information is sent to or received from, and the aggregation is
managed by, a third party not owned or operated by any Station; (b)
the information disseminated by the aggregator is limited to
historical total broadcast television station revenue or other
geographic or characteristic categorization (e.g., national, local,
or political sales revenue); and (c) any information disseminated is
sufficiently aggregated such that it would not allow a recipient to
identify, deduce, or estimate the prices or pacing of any individual
broadcast television station not owned or operated by that
recipient; or (2) using information that meets the requirements of
Parts V(D)(1)(a)-(c).
VI. REQUIRED CONDUCT
A. Within ten days of entry of this Final Judgment, Defendant
shall appoint an Antitrust Compliance Officer who is an internal
employee or Officer of the Defendant, and identify to the United
States the Antitrust Compliance Officer's name, business address,
telephone number, and email address. Within forty-five days of a
vacancy in the Antitrust Compliance Officer position, Defendant
shall appoint a replacement, and shall identify to the United States
the Antitrust Compliance Officer's name, business address, telephone
number, and email address. Defendant's initial or replacement
appointment of an Antitrust Compliance Officer is subject to the
approval of the United States, in its sole discretion.
B. The Antitrust Compliance Officer shall have, or shall retain
outside counsel who has, the following minimum qualifications:
1. be an active member in good standing of the bar in any U.S.
jurisdiction; and
2. have at least five years' experience in legal practice,
including experience with antitrust matters, unless finding an
Antitrust Compliance Officer or outside counsel meeting this
experience requirement is a hardship on or is not reasonably
available to the Defendant, under which circumstances the Defendant
may select an Antitrust Compliance Officer or shall retain outside
counsel who has at least five years' experience in legal practice,
including experience with regulatory or compliance matters.
C. The Antitrust Compliance Officer shall, directly or through
the employees or counsel working at the Antitrust Compliance
Officer's responsibility and direction:
1. within fourteen days of entry of the Final Judgment, furnish
to all of Defendant's Management and Sales Staff and Sales
Representative Firm Managers a copy of this Final Judgment, the
Competitive Impact Statement filed by the United States with the
Court, and a cover letter in a form attached as Exhibit 1;
2. within fourteen days of entry of the Final Judgment, in a
manner to be devised by Defendant and approved by the United States,
provide Defendant's Management and Sales Staff reasonable notice of
the meaning and requirements of this Final Judgment;
3. annually brief Defendant's Management and Sales Staff on the
meaning and requirements of this Final Judgment and the U.S.
antitrust laws;
4. brief any person who succeeds a person in any position
identified in Paragraph VI(C)(3), within sixty days of such
succession;
5. obtain from each person designated in Paragraph VI(C)(3) or
VI(C)(4), within thirty days of that person's receipt of the Final
Judgment, a certification that the person (i) has read and
understands and agrees to abide by the terms of this Final Judgment;
(ii) is not aware of any violation of the Final Judgment that has
not been reported to Defendant; and (iii) understands that failure
to comply with this Final Judgment may result in an enforcement
action for civil or criminal contempt of court;
6. annually communicate to Defendant's Management and Sales
Staff that they may disclose to the Antitrust Compliance Officer,
without reprisal for such disclosure, information concerning any
violation or potential violation of this Final Judgment or the U.S.
antitrust laws by Defendant;
7. within thirty days of the latest filing of the Complaint,
Proposed Final Judgment, or Competitive Impact Statement in this
action, Defendant shall provide notice, in each DMA in which
Defendant owns or operates a Station, to (i) every full power
Station in that DMA that sells broadcast television spot advertising
that Defendant does not own or operate and (ii) any Sales
Representative Firm selling advertising in that DMA on behalf of
Defendant, of the Complaint, Proposed Final Judgment, and
Competitive Impact Statement in a form and manner to be proposed by
Defendant and approved by the United States in its sole discretion.
Defendant shall provide the United States with its proposal,
including the list of recipients, within ten days of the filing of
the Complaint; and
8. maintain for five years or until expiration of the Final
Judgement, whichever is shorter, a copy of all materials required to
be issued under Paragraph VI(C), and furnish them to the United
States within ten days if requested to do so, except documents
protected under the attorney-client privilege or the attorney work-
product doctrine. For all materials required to be furnished under
Paragraph VI(C) which Defendant claims are protected under the
attorney-client privilege or the attorney work-product doctrine,
Defendant shall furnish to the United States a privilege log.
D. Defendant shall:
1. upon Management or the Antitrust Compliance Officer learning
of any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, (i) promptly take
appropriate action to investigate, and in the event of a violation,
terminate or modify the activity so as to comply with this Final
Judgment, (ii) maintain all documents related to any violation or
potential violation of this Final Judgment for a period of five
years or the duration of this Final Judgement, whichever is shorter,
and (iii) maintain, and furnish to the United States at the United
States' request, a log of (a) all such documents and
[[Page 62968]]
documents for which Defendant claims protection under the attorney-
client privilege or the attorney work product doctrine, and (b) all
potential and actual violations, even if no documentary evidence
regarding the violations exist;
2. within thirty days of Management or the Antitrust Compliance
Officer learning of any such violation or potential violation of any
of the terms and conditions contained in this Final Judgment, file
with the United States a statement describing any violation or
potential violation of any of the terms and conditions contained in
this Final Judgment, which shall include a description of any
Communications constituting the violation or potential violation,
including the date and place of the Communication, the Persons
involved, and the subject matter of the Communication;
3. establish a whistleblower protection policy, which provides
that any employee may disclose, without reprisal for such
disclosure, to the Antitrust Compliance Officer information
concerning any violation or potential violation by the Defendant of
this Final Judgment or U.S. antitrust laws;
4. have its CEO, General Counsel or Chief Legal Officer certify
in writing to the United States annually on the anniversary date of
the entry of this Final Judgment that Defendant has complied with
the provisions of this Final Judgment;
5. maintain and produce to the United States upon request: (i) a
list identifying all employees having received the annual antitrust
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii)
copies of all materials distributed as part of the annual antitrust
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all
materials requested to be produced under this Paragraph VI(D)(5) for
which Defendant claims is protected under the attorney-client
privilege or the attorney work-product doctrine, Defendant shall
furnish to the United States a privilege log; and
6. instruct each Sales Representative Firm Manager that the
Sales Representative Firm shall not Communicate any of Defendant's
Competitively Sensitive Information in a way that would violate
Sections IV and V of this Final Judgment if the Sales Representative
Firm were included in the definition of ``Defendant'' in Paragraph
II(F), in a form and manner to be proposed by Defendant and approved
by the United States in its sole discretion, maintained and produced
to the United States upon request.
E. For the avoidance of doubt, the term ``potential violation''
as used in Paragraph VI(D) does not include the discussion of future
conduct.
F. If Defendant acquires a Station after entry of this Final
Judgment, this Section VI will not apply to that acquired Station or
the employees of that acquired Station until 120 days after closing
of the acquisition of that acquired Station.
VII. DEFENDANT'S COOPERATION
A. Defendant shall cooperate fully and truthfully with the
United States in any investigation or litigation examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate, or any Sales Representative Firm Communicated
Competitively Sensitive Information with or among Defendant or any
other Station or any Sales Representative Firm in violation of
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
Defendant shall use its best efforts to ensure that all current and
former officers, directors, employees, and agents also fully and
promptly cooperate with the United States. The full, truthful, and
continuing cooperation of Defendant shall include, but not be
limited to:
1. providing sworn testimony, that is not protected by the
attorney-client privilege or the attorney work product doctrine, to
the United States regarding the Communicating of Competitively
Sensitive Information or any agreement with any other Station it
does not own or such other Station's Sales Representative Firm to
Communicate Competitively Sensitive Information while an employee of
the Defendant;
2. producing, upon request of the United States, all documents,
data, and other materials, wherever located, to the extent not
protected under the attorney-client privilege or the attorney work-
product doctrine, in the possession, custody, or control of
Defendant, that relate to the Communication of Competitively
Sensitive Information or any agreement with any other Station or
such other Station's Sales Representative Firm to Communicate
Competitively Sensitive Information, and a log of documents
protected by the attorney-client privilege or the attorney work
product doctrine;
3. making available for interview any officers, directors,
employees, and agents of Defendant if so requested on reasonable
notice by the United States; and
4. testifying at trial and other judicial proceedings fully,
truthfully, and under oath, when called upon to do so by the United
States;
5. provided however, that the obligations of Defendant to
cooperate fully with the United States as described in this Section
VII shall cease upon the conclusion of all of the United States'
investigations and the United States' litigations examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate or such other Station's Sales Representative Firm
Communicated Competitively Sensitive Information or with or among
Defendant or any other Station or any Sales Representative Firm in
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C.
Sec. 1, including exhaustion of all appeals or expiration of time
for all appeals of any Court ruling in each such matter, at which
point the United States will provide written notice to Defendant
that its obligations under this Section VII have expired.
B. Defendant is obligated to impose a litigation hold until the
United States provides written notice to the Defendant that its
obligations under this Section VII have expired. This Paragraph
VII(B) does not apply to documents created after entry of this Final
Judgment.
C. Subject to the full, truthful, and continuing cooperation of
Defendant, as defined in Paragraph VII(A), the United States will
not bring any further civil action or any criminal charges against
Defendant related to any Communication of Competitively Sensitive
Information or any agreement to Communicate Competitively Sensitive
Information with any other Station it does not own or operate or
such other Station's Sales Representative Firm when that agreement:
1. was Communicated, entered into and terminated on or before
the date of the filing of the Complaint in this action (or in the
case of a Station that is acquired by Defendant after entry of this
Final Judgment, was Communicated or entered into before the
acquisition and terminated within 120 days after the closing of the
acquisition); and
2. does not constitute or include an agreement to fix prices or
divide markets.
D. The United States' agreement set forth in Paragraph VII(C)
does not apply to any acts of perjury or subornation of perjury (18
U.S.C. Sec. Sec. 1621-22), making a false statement or declaration
(18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec.
401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.)
by the Defendant or its officers, directors, and employees. The
United States' agreement set forth in Paragraph VII(C) does not
release any claims against any Sales Representative Firm.
VIII. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with
this Final Judgment or of any related orders, or of determining
whether the Final Judgment should be modified, and subject to any
legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice,
including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative
of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to Defendant, be permitted:
1. to access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide electronic or hard copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control
of Defendant, relating to any matters that are the subject of this
Final Judgment, not protected by the attorney-client privilege or
the attorney work product doctrine; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall be
subject to the reasonable convenience of the interviewee and without
restraint or interference by Defendant; and
3. to obtain from Defendant written reports or responses to
written interrogatories, of information not protected by the
attorney-client privilege or attorney work product doctrine, under
oath if requested, relating to any matters that are the subject of
this Final Judgment as may be requested.
B. No information or documents obtained by the means provided in
this Section VIII shall be divulged by the United States to any
Person other than an authorized representative of the executive
branch of the United States, except in the course of legal
proceedings to which the United States is a
[[Page 62969]]
party (including grand jury proceedings), or for the purpose of
securing compliance with this Final Judgment, or for law enforcement
purposes, or as otherwise required by law.
C. If at the time information or documents are furnished by
Defendant to the United States, Defendant represents and identifies
in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure, and Defendant marks each
pertinent page of such material, ``Subject to claim of protection
under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,''
then the United States shall give Defendant ten calendar days'
notice prior to divulging such material in any legal proceeding
(other than a grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce
the provisions of this Final Judgment, including its right to seek
an order of contempt from this Court. Defendant agrees that in any
civil contempt action, any motion to show cause, or any similar
civil action brought by the United States regarding an alleged
violation of this Final Judgment, the United States may establish a
violation of the decree and the appropriateness of any remedy
therefor by a preponderance of the evidence, and Defendant waives
any argument that a different standard of proof should apply.
B. The Final Judgment should be interpreted to give full effect
to the procompetitive purposes of the antitrust laws and to restore
all competition the United States alleged was harmed by the
challenged conduct. Defendant agrees that it may be held in contempt
of, and that the Court may enforce, any provision of this Final
Judgment that, as interpreted by the Court in light of these
procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of this Final Judgment should not be
construed against either party as the drafter.
C. In any enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this
Final Judgment against Defendant, whether litigated or resolved
prior to litigation, Defendant agrees to reimburse the United States
for the fees and expenses of its attorneys, as well as any other
costs including experts' fees, incurred in connection with that
enforcement effort, including in the investigation of the potential
violation.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire seven years from the date of its entry, except that after
five years from the date of its entry, this Final Judgment may be
terminated upon notice by the United States to the Court and
Defendant that the continuation of the Final Judgment no longer is
necessary or in the public interest.
XII. NOTICE
For purposes of this Final Judgment, any notice or other
communication required to be provided to the United States shall be
sent to the person at the address set forth below (or such other
addresses as the United States may specify in writing to Defendant):
Chief, Media, Entertainment, and Professional Services Section, U.S.
Department of Justice, Antitrust Division, 450 Fifth Street, NW,
Suite 4000, Washington, D.C. 20530.
XIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The
parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and response to comments filed with the Court, entry of
this Final Judgment is in the public interest.
IT IS SO ORDERED by the Court, this __ day of __, 201__.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
-----------------------------------------------------------------------
United States District Judge
Exhibit 1
[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]
Re: Prohibitions Against Sharing of Competitively Sensitive
Information
Dear [XX]:
I provide you this notice regarding a judgment recently entered
by a federal judge in Washington, D.C. prohibiting the sharing of
certain information with other broadcast television station(s).
The judgment applies to our company and all of its employees,
including you, so it is important that you understand the
obligations it imposes on us. [CEO Name] has asked me to let each of
you know that [s/he] expects you to take these obligations seriously
and abide by them.
The judgment prohibits us from sharing or receiving, directly or
indirectly (including through our national sales representative
firm), competitively sensitive information with or from any
employee, agent, or representative of another broadcast television
station in the same DMA it does not own or operate. Competitively
sensitive information means any non-public information regarding the
sale of spot advertising on broadcast television stations, including
information relating to any pricing or pricing strategies, pacing,
holding capacity, revenues, or market shares. There are limited
exceptions to this restriction, which are listed in the judgment.
The company will provide briefing on the legitimate or illegitimate
exchange of information. You must consult with me if you have any
questions on whether a particular circumstance is subject to an
exception under the judgment.
A copy of the judgment is attached. Please read it carefully and
familiarize yourself with its terms. The judgment, rather than the
above description, is controlling. If you have any questions about
the judgment or how it affects your sale of spot advertising, please
contact me as soon as possible.
Please sign and return the attached Employee Certification to
[Defendant's Antitrust Compliance Officer] within thirty days of
your receipt of this letter. Thank you for your cooperation.
Sincerely,
[Defendant's Antitrust Compliance Officer]
Employee Certification
I, ___ [name], ___ [position] at ___ [station or location] do hereby
certify that I (i) have read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not aware of any violation
of the Final Judgment that has not been reported to [Defendant]; and
(iii) understand that my failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court.
-----------------------------------------------------------------------
Name:
Date:
EXHIBIT 2
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
ACKNOWLEDGEMENT OF APPLICABILITY
The undersigned acknowledges that [Full Buyer Name], including
its successors and assigns, and its subsidiaries, divisions, and
broadcast television stations, and their directors, officers, and
employees (``Acquirer''), following consummation of the Acquirer's
acquisition of [insert names of station or stations acquired] (each,
an ``Acquired Station''), is bound by the Final Judgment entered by
this Court on [date] (``Final Judgment''), as if the Acquirer were a
Defendant under the Final Judgment, as follows:
1. The Acquirer shall be bound in full by all Sections of the
Consent Decree not specifically discussed below.
2. As to Sections IV, V, and VII of the Final Judgment, the
Acquirer is bound to the Final Judgment only as to (i) each Acquired
Station, each Acquired Station's successors and assigns, and each
Acquired Station's subsidiaries and divisions, and each Acquired
Station's directors, officers, and employees, (ii) Acquirer's
officers and
[[Page 62970]]
directors only with respect to any responsibilities or actions
regarding any Acquired Stations, and (iii) employees with management
or supervisory responsibilities for Acquirer's business or
operations related to the sale of spot advertising on any Acquired
Station, only with respect to those responsibilities.
3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D),
VI(E), and VIII of the Final Judgment, the Acquirer is bound to the
Final Judgment only as to (i) each Acquired Station, each Acquired
Station's successors and assigns, and each Acquired Station's
subsidiaries and divisions, and each Acquired Station's directors,
officers, and employees, (ii) Acquirer's officers and directors, and
(iii) employees with management or supervisory responsibilities for
Acquirer's business or operations related to the sale of spot
advertising on any Acquired Station.
4. The release contained in Sections VII(C) and (D) applies to
the Acquirer, but only to civil actions or criminal charges arising
from actions taken by any Acquired Station.
5. The Acquirer shall not be bound by Sections VI(C)(1),
VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all.
6. Section VI(A) applies to the Acquirer, but is modified to
make the initial period for appointing an Antitrust Compliance
Officer in the first sentence 120 days from consummation of the
Acquirer's acquisition of the Acquired Station or Acquired Stations.
This Acknowledgement of Applicability may be voided by a joint
written agreement between the United States and the Acquirer.
Dated: [ ]
Respectfully submitted,
/s/--------------------------------------------------------------------
[Counsel for Acquirer]
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its
Complaint on November __, 2018, alleging that Defendant Raycom
Media, Inc., among others, violated Section 1 of the Sherman Act, 15
U.S.C. Sec. 1, the United States and Defendant, by their respective
attorneys, have consented to the entry of this Final Judgment
without trial or adjudication of any issue of fact or law;
AND WHEREAS, this Final Judgment does not constitute any
evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, the United States and Defendant agree to be bound
by the provisions of this Final Judgment pending its approval by
this Court;
AND WHEREAS, the Defendant agrees to undertake certain actions
and to refrain from engaging in certain forms of information sharing
with its competitors;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter and each of
the parties to this action. The allegations in the Complaint arise
under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
See 28 U.S.C. Sec. 1331.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Advertiser'' means an advertiser, an advertiser's buying
agent, or an advertiser's representative.
B. ``Agreement'' means any agreement, understanding, pact,
contract, or arrangement, formal or informal, oral or written,
between two or more Persons.
C. ``Communicate,'' ``Communicating,'' and ``Communication(s)''
means to provide, send, discuss, circulate, exchange, request, or
solicit information, whether directly or indirectly, and regardless
of the means by which it is accomplished, including orally or by
written means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text
messages, audio recordings, meetings, interviews, correspondence,
exchange of written or recorded information, or face-to-face
meetings.
D. ``Competitively Sensitive Information'' means any of the
following information, less than eighteen months old, of Defendant
or any broadcast television station regarding the sale of spot
advertising on broadcast television stations: Non-Public Information
relating to pricing or pricing strategies, pacing, holding capacity,
revenues, or market shares. Reports containing only aggregated
market-level or national data are not Competitively Sensitive
Information, but reports (including by paid subscription) that are
customized or confidential to a particular Station or broadcast
television station group are Competitively Sensitive Information.
E. ``Cooperative Agreement'' means (1) joint sales agreements,
joint operating agreements, local marketing agreements, news share
agreements, or shared services agreements, or (2) any agreement
through which a Person exercises control over any broadcast
television station not owned by the Person.
F. ``Defendant'' means Raycom Media, Inc., a Delaware
corporation with its headquarters in Birmingham, Alabama, its
successors and assigns, and its subsidiaries, divisions, and
Stations, and their directors, officers, and employees.
G. ``DMA'' means Designated Market Area as defined by A.C.
Nielsen Company and used by the Investing in Television BIA Market
Report 2018.
H. ``Management'' means all directors and officers of Defendant,
or any other employee with management or supervisory
responsibilities for Defendant's business or operations related to
the sale of spot advertising on any Station.
I. ``Non-Public Information'' means information that is not
available from public sources or generally available to the public.
Measurement or quantification of a Station's future holding capacity
is Non-Public Information, but measurement or quantification of a
Station's past holding capacity is not Non-Public Information. For
the avoidance of doubt, the fact that information is available by
paid subscription does not on its own render the information public.
J. ``Person'' means any natural person, corporation, company,
partnership, joint venture, firm, association, proprietorship,
agency, board, authority, commission, office, or other business or
legal entity, whether private or governmental.
K. ``Sales Representative Firm'' means any organization,
including without limitation Katz Media Group, Inc. and Cox Reps,
Inc., and their respective subsidiaries and divisions, that
represents a Station or its owner in the sale of spot advertising.
L. ``Sales Representative Firm Manager'' means, for each of
Defendant's Sales Representative Firms, the employee of the Sales
Representative Firm with primary responsibility for the relationship
with Defendant.
M. ``Sales Staff'' means Defendant's employees with
responsibility for the sale of spot advertising on any Station.
N. ``Station'' means any broadcast television station, its
successors and assigns, and its subsidiaries, divisions, groups, and
its owner or operator and its directors, officers, managers, and
employees, unless a Station owns, is owned by, or is under common
ownership with a Sales Representative Firm, in which case that Sales
Representative Firm will not be considered a Station.
III. APPLICABILITY
This Final Judgment applies to Defendant, other Persons in
active concert or participation with Defendant who receive actual
notice of this Final Judgment by personal service or otherwise, and
any Person that signs an Acknowledgment of Applicability, attached
as Exhibit 2, to the extent set forth therein, as a condition of the
purchase of a Station owned by Defendant as of October 1, 2018. This
Final Judgment applies to Defendant's actions performed under any
Cooperative Agreement, even if those actions are taken on behalf of
a third party. This Final Judgment is fully enforceable, including
by penalty of contempt, against all of the foregoing.
Notwithstanding any other provision contained herein, this Final
Judgment does not apply to broadcast television stations owned by
Gray Television, Inc. that were not owned by Raycom Media, Inc. as
of October 1, 2018.
IV. PROHIBITED CONDUCT
A. Defendant's Management and Sales Staff shall not, directly or
indirectly:
1. Communicate Competitively Sensitive Information to any
Station in the same DMA it does not own or operate;
2. Knowingly use Competitively Sensitive Information from or
regarding any Station in the same DMA it does not own or operate;
3. Encourage or facilitate the Communication of Competitively
Sensitive Information to or from any Station in the same DMA it does
not own or operate; or
[[Page 62971]]
4. Attempt to enter into, enter into, maintain, or enforce any
agreement to Communicate Competitively Sensitive Information with
any Station in the same DMA it does not own or operate.
B. The prohibitions under Paragraph IV(A) apply to Defendant's
Communicating or agreeing to Communicate through a Sales
Representative Firm or a third-party agent at Defendant's
instruction or request.
C. Defendant shall not sell any Station owned by the Defendant
as of October 1, 2018 to any Person unless that Person has first
executed the Acknowledgment of Applicability, attached as Exhibit 2.
Defendant shall submit any Acknowledgement of Applicability to the
United States within 15 days of consummating the sale of such
Station. The United States, in its sole discretion, may waive the
prohibition in this Paragraph IV(C) on a Station-by-Station basis.
Alternatively, the United States and the Person signing the
Acknowledgement of Applicability may agree to void the
Acknowledgement of Applicability at any time. The first sentence of
this paragraph shall not apply to the sale of any Station to a
Person already bound to a final judgment entered by a court
regarding the Communication of Competitively Sensitive Information.
V. CONDUCT NOT PROHIBITED
A. Nothing in Section IV shall prohibit Defendant from
Communicating, using, or encouraging or facilitating the
Communication of, Competitively Sensitive Information with an actual
or prospective Advertiser, except that, if the Advertiser is another
Station, Defendant's Communicating, using, or encouraging or
facilitating the Communication of, Competitively Sensitive
Information is excluded from the terms of Section IV only insofar as
is reasonably necessary to negotiate the sale of spot advertising on
broadcast television stations. For the avoidance of doubt, Defendant
is not prohibited from internally using Competitively Sensitive
Information received from an Advertiser that is a Station under the
preceding sentence, but Defendant is prohibited from Communicating
that Competitively Sensitive Information to a Station in the same
DMA that it does not own or operate.
B. Nothing in Section IV shall prohibit Defendant from, after
securing advice of counsel and in consultation with the Antitrust
Compliance Officer, Communicating, using, encouraging or
facilitating the Communication of, or attempting to enter into,
entering into, maintaining, or enforcing any agreement to
Communicate Competitively Sensitive Information with any Station
when such Communication or use is (a) for the purpose of evaluating
or effectuating a bona fide acquisition, disposition, or exchange of
Stations or related assets, or (b) reasonably necessary for
achieving the efficiencies of any other legitimate competitor
collaboration. With respect to any such agreement:
1. For all agreements under Part V(B)(a) with any other Station
to Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment, Defendant shall maintain documents
sufficient to show:
i. the specific transaction or proposed transaction to which the
sharing of Competitively Sensitive Information relates;
ii. the employees, identified with reasonable specificity, who
are involved in the sharing of Competitively Sensitive Information;
and
iii. the termination date or event of the sharing of
Competitively Sensitive Information.
2. All agreements under Part V(B)(b) with any other Station to
Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment shall be in writing, and shall:
i. identify and describe, with specificity, the collaboration to
which it is ancillary;
ii. be narrowly tailored to permit the Communication of
Competitively Sensitive Information only when reasonably necessary
and only to the employees reasonably necessary to effectuate the
collaboration;
iii. identify with reasonable specificity the Competitively
Sensitive Information Communicated pursuant to the agreement and
identify the employees to receive the Competitively Sensitive
Information;
iv. contain a specific termination date or event; and
v. be signed by all parties to the agreement, including any
modifications to the agreement.
3. For Communications under Part V(B)(a) above, Defendant shall
maintain copies of all materials required under Paragraph V(B)(1)
for five years or the duration of the Final Judgment, whichever is
shorter, following entry into any agreement to Communicate or
receive Competitively Sensitive Information, and Defendant shall
make such documents available to the United States upon request, if
such request is made during the preservation period.
4. For Communications under Part V(B)(b) above, Defendant shall
furnish a copy of all materials required under Paragraph V(B)(2) to
the United States within thirty days of the entry, renewal, or
extension of the agreement.
5. For purposes of this Section V(B) only, a Joint Sales
Agreement, Local Marketing Agreement, or similar agreement pursuant
to which the Defendant Communicates, uses, encourages or facilitates
the Communication of, or attempts to enter into, enters into,
maintains, or enforces any agreement to Communicate Competitively
Sensitive Information related solely to the sale of spot advertising
for which Defendant is responsible on a Station, shall be considered
a ``legitimate competitor collaboration'' under Part V(B)(b).
C. Nothing in Section IV shall prohibit Defendant from engaging
in conduct in accordance with the doctrine established in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657
(1965), and their progeny.
D. Nothing in Section IV prohibits Defendant from (1)
Communicating, encouraging or facilitating the Communication of, or
attempting to enter into, entering into, maintaining, or enforcing
any agreement to Communicate Competitively Sensitive Information for
the purpose of aggregation if (a) Competitively Sensitive
Information is sent to or received from, and the aggregation is
managed by, a third party not owned or operated by any Station; (b)
the information disseminated by the aggregator is limited to
historical total broadcast television station revenue or other
geographic or characteristic categorization (e.g., national, local,
or political sales revenue); and (c) any information disseminated is
sufficiently aggregated such that it would not allow a recipient to
identify, deduce, or estimate the prices or pacing of any individual
broadcast television station not owned or operated by that
recipient; or (2) using information that meets the requirements of
Parts V(D)(1)(a)-(c).
VI. REQUIRED CONDUCT
A. Within ten days of entry of this Final Judgment, Defendant
shall appoint an Antitrust Compliance Officer who is an internal
employee or Officer of the Defendant, and identify to the United
States the Antitrust Compliance Officer's name, business address,
telephone number, and email address. Within forty-five days of a
vacancy in the Antitrust Compliance Officer position, Defendant
shall appoint a replacement, and shall identify to the United States
the Antitrust Compliance Officer's name, business address, telephone
number, and email address. Defendant's initial or replacement
appointment of an Antitrust Compliance Officer is subject to the
approval of the United States, in its sole discretion.
B. The Antitrust Compliance Officer shall have, or shall retain
outside counsel who has, the following minimum qualifications:
1. be an active member in good standing of the bar in any U.S.
jurisdiction; and
2. have at least five years' experience in legal practice,
including experience with antitrust matters, unless finding an
Antitrust Compliance Officer or outside counsel meeting this
experience requirement is a hardship on or is not reasonably
available to the Defendant, under which circumstances the Defendant
may select an Antitrust Compliance Officer or shall retain outside
counsel who has at least five years' experience in legal practice,
including experience with regulatory or compliance matters.
C. The Antitrust Compliance Officer shall, directly or through
the employees or counsel working at the Antitrust Compliance
Officer's responsibility and direction:
1. within fourteen days of entry of the Final Judgment, furnish
to all of Defendant's Management and Sales Staff and Sales
Representative Firm Managers a copy of this Final Judgment, the
Competitive Impact Statement filed by the United States with the
Court, and a cover letter in a form attached as Exhibit 1;
2. within fourteen days of entry of the Final Judgment, in a
manner to be devised by Defendant and approved by the United States,
provide Defendant's Management and Sales Staff reasonable notice of
the meaning and requirements of this Final Judgment;
[[Page 62972]]
3. annually brief Defendant's Management and Sales Staff on the
meaning and requirements of this Final Judgment and the U.S.
antitrust laws;
4. brief any person who succeeds a person in any position
identified in Paragraph VI(C)(3), within sixty days of such
succession;
5. obtain from each person designated in Paragraph VI(C)(3) or
VI(C)(4), within thirty days of that person's receipt of the Final
Judgment, a certification that the person (i) has read and
understands and agrees to abide by the terms of this Final Judgment;
(ii) is not aware of any violation of the Final Judgment that has
not been reported to Defendant; and (iii) understands that failure
to comply with this Final Judgment may result in an enforcement
action for civil or criminal contempt of court;
6. annually communicate to Defendant's Management and Sales
Staff that they may disclose to the Antitrust Compliance Officer,
without reprisal for such disclosure, information concerning any
violation or potential violation of this Final Judgment or the U.S.
antitrust laws by Defendant;
7. within thirty days of the latest filing of the Complaint,
Proposed Final Judgment, or Competitive Impact Statement in this
action, Defendant shall provide notice, in each DMA in which
Defendant owns or operates a Station, to (i) every full power
Station in that DMA that sells broadcast television spot advertising
that Defendant does not own or operate and (ii) any Sales
Representative Firm selling advertising in that DMA on behalf of
Defendant, of the Complaint, Proposed Final Judgment, and
Competitive Impact Statement in a form and manner to be proposed by
Defendant and approved by the United States in its sole discretion.
Defendant shall provide the United States with its proposal,
including the list of recipients, within ten days of the filing of
the Complaint; and
8. maintain for five years or until expiration of the Final
Judgement, whichever is shorter, a copy of all materials required to
be issued under Paragraph VI(C), and furnish them to the United
States within ten days if requested to do so, except documents
protected under the attorney-client privilege or the attorney work-
product doctrine. For all materials required to be furnished under
Paragraph VI(C) which Defendant claims are protected under the
attorney-client privilege or the attorney work-product doctrine,
Defendant shall furnish to the United States a privilege log.
D. Defendant shall:
1. upon Management or the Antitrust Compliance Officer learning
of any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, (i) promptly take
appropriate action to investigate, and in the event of a violation,
terminate or modify the activity so as to comply with this Final
Judgment, (ii) maintain all documents related to any violation or
potential violation of this Final Judgment for a period of five
years or the duration of this Final Judgement, whichever is shorter,
and (iii) maintain, and furnish to the United States at the United
States' request, a log of (a) all such documents and documents for
which Defendant claims protection under the attorney-client
privilege or the attorney work product doctrine, and (b) all
potential and actual violations, even if no documentary evidence
regarding the violations exist;
2. within thirty days of Management or the Antitrust Compliance
Officer learning of any such violation or potential violation of any
of the terms and conditions contained in this Final Judgment, file
with the United States a statement describing any violation or
potential violation of any of the terms and conditions contained in
this Final Judgment, which shall include a description of any
Communications constituting the violation or potential violation,
including the date and place of the Communication, the Persons
involved, and the subject matter of the Communication;
3. establish a whistleblower protection policy, which provides
that any employee may disclose, without reprisal for such
disclosure, to the Antitrust Compliance Officer information
concerning any violation or potential violation by the Defendant of
this Final Judgment or U.S. antitrust laws;
4. have its CEO, General Counsel or Chief Legal Officer certify
in writing to the United States annually on the anniversary date of
the entry of this Final Judgment that Defendant has complied with
the provisions of this Final Judgment;
5. maintain and produce to the United States upon request: (i) a
list identifying all employees having received the annual antitrust
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii)
copies of all materials distributed as part of the annual antitrust
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all
materials requested to be produced under this Paragraph VI(D)(5) for
which Defendant claims is protected under the attorney-client
privilege or the attorney work-product doctrine, Defendant shall
furnish to the United States a privilege log; and
6. instruct each Sales Representative Firm Manager that the
Sales Representative Firm shall not Communicate any of Defendant's
Competitively Sensitive Information in a way that would violate
Sections IV and V of this Final Judgment if the Sales Representative
Firm were included in the definition of ``Defendant'' in Paragraph
II(F), in a form and manner to be proposed by Defendant and approved
by the United States in its sole discretion, maintained and produced
to the United States upon request.
E. For the avoidance of doubt, the term ``potential violation''
as used in Paragraph VI(D) does not include the discussion of future
conduct.
F. If Defendant acquires a Station after entry of this Final
Judgment, this Section VI will not apply to that acquired Station or
the employees of that acquired Station until 120 days after closing
of the acquisition of that acquired Station.
VII. DEFENDANT'S COOPERATION
A. Defendant shall cooperate fully and truthfully with the
United States in any investigation or litigation examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate, or any Sales Representative Firm Communicated
Competitively Sensitive Information with or among Defendant or any
other Station or any Sales Representative Firm in violation of
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
Defendant shall use its best efforts to ensure that all current and
former officers, directors, employees, and agents also fully and
promptly cooperate with the United States. The full, truthful, and
continuing cooperation of Defendant shall include, but not be
limited to:
1. providing sworn testimony, that is not protected by the
attorney-client privilege or the attorney work product doctrine, to
the United States regarding the Communicating of Competitively
Sensitive Information or any agreement with any other Station it
does not own or such other Station's Sales Representative Firm to
Communicate Competitively Sensitive Information while an employee of
the Defendant;
2. producing, upon request of the United States, all documents,
data, and other materials, wherever located, to the extent not
protected under the attorney-client privilege or the attorney work-
product doctrine, in the possession, custody, or control of
Defendant, that relate to the Communication of Competitively
Sensitive Information or any agreement with any other Station or
such other Station's Sales Representative Firm to Communicate
Competitively Sensitive Information, and a log of documents
protected by the attorney-client privilege or the attorney work
product doctrine;
3. making available for interview any officers, directors,
employees, and agents of Defendant if so requested on reasonable
notice by the United States; and
4. testifying at trial and other judicial proceedings fully,
truthfully, and under oath, when called upon to do so by the United
States;
5. provided however, that the obligations of Defendant to
cooperate fully with the United States as described in this Section
VII shall cease upon the conclusion of all of the United States'
investigations and the United States' litigations examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate or such other Station's Sales Representative Firm
Communicated Competitively Sensitive Information or with or among
Defendant or any other Station or any Sales Representative Firm in
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C.
Sec. 1, including exhaustion of all appeals or expiration of time
for all appeals of any Court ruling in each such matter, at which
point the United States will provide written notice to Defendant
that its obligations under this Section VII have expired.
B. Defendant is obligated to impose a litigation hold until the
United States provides written notice to the Defendant that its
obligations under this Section VII have expired. This Paragraph
VII(B) does not apply to documents created after entry of this Final
Judgment.
C. Subject to the full, truthful, and continuing cooperation of
Defendant, as defined in Paragraph VII(A), the United States will
not bring any further civil action or any criminal charges against
Defendant
[[Page 62973]]
related to any Communication of Competitively Sensitive Information
or any agreement to Communicate Competitively Sensitive Information
with any other Station it does not own or operate or such other
Station's Sales Representative Firm when that agreement:
1. was Communicated, entered into and terminated on or before
the date of the filing of the Complaint in this action (or in the
case of a Station that is acquired by Defendant after entry of this
Final Judgment, was Communicated or entered into before the
acquisition and terminated within 120 days after the closing of the
acquisition); and
2. does not constitute or include an agreement to fix prices or
divide markets.
D. The United States' agreement set forth in Paragraph VII(C)
does not apply to any acts of perjury or subornation of perjury (18
U.S.C. Sec. Sec. 1621-22), making a false statement or declaration
(18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec.
401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.)
by the Defendant or its officers, directors, and employees. The
United States' agreement set forth in Paragraph VII(C) does not
release any claims against any Sales Representative Firm.
VIII. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with
this Final Judgment or of any related orders, or of determining
whether the Final Judgment should be modified, and subject to any
legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice,
including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative
of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to Defendant, be permitted:
1. to access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide electronic or hard copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control
of Defendant, relating to any matters that are the subject of this
Final Judgment, not protected by the attorney-client privilege or
the attorney work product doctrine; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall be
subject to the reasonable convenience of the interviewee and without
restraint or interference by Defendant; and
3. to obtain from Defendant written reports or responses to
written interrogatories, of information not protected by the
attorney-client privilege or attorney work product doctrine, under
oath if requested, relating to any matters that are the subject of
this Final Judgment as may be requested.
B. No information or documents obtained by the means provided in
this Section VIII shall be divulged by the United States to any
Person other than an authorized representative of the executive
branch of the United States, except in the course of legal
proceedings to which the United States is a party (including grand
jury proceedings), or for the purpose of securing compliance with
this Final Judgment, or for law enforcement purposes, or as
otherwise required by law.
C. If at the time information or documents are furnished by
Defendant to the United States, Defendant represents and identifies
in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure, and Defendant marks each
pertinent page of such material, ``Subject to claim of protection
under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,''
then the United States shall give Defendant ten calendar days'
notice prior to divulging such material in any legal proceeding
(other than a grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce
the provisions of this Final Judgment, including its right to seek
an order of contempt from this Court. Defendant agrees that in any
civil contempt action, any motion to show cause, or any similar
civil action brought by the United States regarding an alleged
violation of this Final Judgment, the United States may establish a
violation of the decree and the appropriateness of any remedy
therefor by a preponderance of the evidence, and Defendant waives
any argument that a different standard of proof should apply.
B. The Final Judgment should be interpreted to give full effect
to the procompetitive purposes of the antitrust laws and to restore
all competition the United States alleged was harmed by the
challenged conduct. Defendant agrees that it may be held in contempt
of, and that the Court may enforce, any provision of this Final
Judgment that, as interpreted by the Court in light of these
procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of this Final Judgment should not be
construed against either party as the drafter.
C. In any enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this
Final Judgment against Defendant, whether litigated or resolved
prior to litigation, Defendant agrees to reimburse the United States
for the fees and expenses of its attorneys, as well as any other
costs including experts' fees, incurred in connection with that
enforcement effort, including in the investigation of the potential
violation.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire seven years from the date of its entry, except that after
five years from the date of its entry, this Final Judgment may be
terminated upon notice by the United States to the Court and
Defendant that the continuation of the Final Judgment no longer is
necessary or in the public interest.
XII. NOTICE
For purposes of this Final Judgment, any notice or other
communication required to be provided to the United States shall be
sent to the person at the address set forth below (or such other
addresses as the United States may specify in writing to Defendant):
Chief, Media, Entertainment, and Professional Services Section, U.S.
Department of Justice, Antitrust Division, 450 Fifth Street NW,
Suite 4000, Washington, D.C. 20530.
XIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The
parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and response to comments filed with the Court, entry of
this Final Judgment is in the public interest.
IT IS SO ORDERED by the Court, this __ day of __, 201__.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
-----------------------------------------------------------------------
United States District Judge
Exhibit 1
[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]
Re: Prohibitions Against Sharing of Competitively Sensitive
Information
Dear [XX]:
I provide you this notice regarding a judgment recently entered
by a federal judge in Washington, D.C. prohibiting the sharing of
certain information with other broadcast television station(s).
The judgment applies to our company and all of its employees,
including you, so it is important that you understand the
obligations it imposes on us. [CEO Name] has asked me to let each of
you know that [s/he] expects you to take these obligations seriously
and abide by them.
The judgment prohibits us from sharing or receiving, directly or
indirectly (including through our national sales representative
firm), competitively sensitive information with or from any
employee, agent, or representative of another broadcast television
station in the same DMA it does not own or operate. Competitively
sensitive information means any non-public information regarding
[[Page 62974]]
the sale of spot advertising on broadcast television stations,
including information relating to any pricing or pricing strategies,
pacing, holding capacity, revenues, or market shares. There are
limited exceptions to this restriction, which are listed in the
judgment. The company will provide briefing on the legitimate or
illegitimate exchange of information. You must consult with me if
you have any questions on whether a particular circumstance is
subject to an exception under the judgment.
A copy of the judgment is attached. Please read it carefully and
familiarize yourself with its terms. The judgment, rather than the
above description, is controlling. If you have any questions about
the judgment or how it affects your sale of spot advertising, please
contact me as soon as possible.
Please sign and return the attached Employee Certification to
[Defendant's Antitrust Compliance Officer] within thirty days of
your receipt of this letter. Thank you for your cooperation.
Sincerely,
[Defendant's Antitrust Compliance Officer]
Employee Certification
I, ___ [name],___ [position] at___ [station or location] do hereby
certify that I (i) have read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not aware of any violation
of the Final Judgment that has not been reported to [Defendant]; and
(iii) understand that my failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court.
-----------------------------------------------------------------------
Name:
Date:
Exhibit 2
United States District Court for the District of Columbia
United States of America; Plaintiff, v. SINCLAIR BROADCAST
GROUP, INC., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
ACKNOWLEDGEMENT OF APPLICABILITY
The undersigned acknowledges that [Full Buyer Name], including
its successors and assigns, and its subsidiaries, divisions, and
broadcast television stations, and their directors, officers, and
employees (``Acquirer''), following consummation of the Acquirer's
acquisition of [insert names of station or stations acquired] (each,
an ``Acquired Station''), is bound by the Final Judgment entered by
this Court on [date] (``Final Judgment''), as if the Acquirer were a
Defendant under the Final Judgment, as follows:
1. The Acquirer shall be bound in full by all Sections of the
Consent Decree not specifically discussed below.
2. As to Sections IV, V, and VII of the Final Judgment, the
Acquirer is bound to the Final Judgment only as to (i) each Acquired
Station, each Acquired Station's successors and assigns, and each
Acquired Station's subsidiaries and divisions, and each Acquired
Station's directors, officers, and employees, (ii) Acquirer's
officers and directors only with respect to any responsibilities or
actions regarding any Acquired Stations, and (iii) employees with
management or supervisory responsibilities for Acquirer's business
or operations related to the sale of spot advertising on any
Acquired Station, only with respect to those responsibilities.
3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D),
VI(E), and VIII of the Final Judgment, the Acquirer is bound to the
Final Judgment only as to (i) each Acquired Station, each Acquired
Station's successors and assigns, and each Acquired Station's
subsidiaries and divisions, and each Acquired Station's directors,
officers, and employees, (ii) Acquirer's officers and directors, and
(iii) employees with management or supervisory responsibilities for
Acquirer's business or operations related to the sale of spot
advertising on any Acquired Station.
4. The release contained in Sections VII(C) and (D) applies to
the Acquirer, but only to civil actions or criminal charges arising
from actions taken by any Acquired Station.
5. The Acquirer shall not be bound by Sections VI(C)(1),
VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all.
6. Section VI(A) applies to the Acquirer, but is modified to
make the initial period for appointing an Antitrust Compliance
Officer in the first sentence 120 days from consummation of the
Acquirer's acquisition of the Acquired Station or Acquired Stations.
This Acknowledgement of Applicability may be voided by a joint
written agreement between the United States and the Acquirer.
Dated: [ ]
Respectfully submitted,
/s/--------------------------------------------------------------------
[Counsel for Acquirer]
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its
Complaint on November __, 2018, alleging that Defendant Tribune
Media Company, among others, violated Section 1 of the Sherman Act,
15 U.S.C. Sec. 1, the United States and Defendant, by their
respective attorneys, have consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law;
AND WHEREAS, this Final Judgment does not constitute any
evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, the United States and Defendant agree to be bound
by the provisions of this Final Judgment pending its approval by
this Court;
AND WHEREAS, the Defendant agrees to undertake certain actions
and to refrain from engaging in certain forms of information sharing
with its competitors;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter and each of
the parties to this action. The allegations in the Complaint arise
under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
See 28 U.S.C. Sec. 1331.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Advertiser'' means an advertiser, an advertiser's buying
agent, or an advertiser's representative.
B. ``Agreement'' means any agreement, understanding, pact,
contract, or arrangement, formal or informal, oral or written,
between two or more Persons.
C. ``Communicate,'' ``Communicating,'' and ``Communication(s)''
means to provide, send, discuss, circulate, exchange, request, or
solicit information, whether directly or indirectly, and regardless
of the means by which it is accomplished, including orally or by
written means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text
messages, audio recordings, meetings, interviews, correspondence,
exchange of written or recorded information, or face-to-face
meetings.
D. ``Competitively Sensitive Information'' means any of the
following information, less than eighteen months old, of Defendant
or any broadcast television station regarding the sale of spot
advertising on broadcast television stations: Non-Public Information
relating to pricing or pricing strategies, pacing, holding capacity,
revenues, or market shares. Reports containing only aggregated
market-level or national data are not Competitively Sensitive
Information, but reports (including by paid subscription) that are
customized or confidential to a particular Station or broadcast
television station group are Competitively Sensitive Information.
E. ``Cooperative Agreement'' means (1) joint sales agreements,
joint operating agreements, local marketing agreements, news share
agreements, or shared services agreements, or (2) any agreement
through which a Person exercises control over any broadcast
television station not owned by the Person.
F. ``Defendant'' means Tribune Media Company, a Delaware
corporation with its headquarters in Chicago, Illinois, its
successors and assigns, and its subsidiaries, divisions, and
Stations, and their directors, officers, and employees.
G. ``DMA'' means Designated Market Area as defined by A.C.
Nielsen Company and used by the Investing in Television BIA Market
Report 2018.
H. ``Management'' means all directors and officers of Defendant,
or any other employee with management or supervisory
responsibilities for Defendant's business or operations related to
the sale of spot advertising on any Station.
I. ``Non-Public Information'' means information that is not
available from public
[[Page 62975]]
sources or generally available to the public. Measurement or
quantification of a Station's future holding capacity is Non-Public
Information, but measurement or quantification of a Station's past
holding capacity is not Non-Public Information. For the avoidance of
doubt, the fact that information is available by paid subscription
does not on its own render the information public.
J. ``Person'' means any natural person, corporation, company,
partnership, joint venture, firm, association, proprietorship,
agency, board, authority, commission, office, or other business or
legal entity, whether private or governmental.
K. ``Sales Representative Firm'' means any organization,
including without limitation Katz Media Group, Inc. and Cox Reps,
Inc., and their respective subsidiaries and divisions, that
represents a Station or its owner in the sale of spot advertising.
L. ``Sales Representative Firm Manager'' means, for each of
Defendant's Sales Representative Firms, the employee of the Sales
Representative Firm with primary responsibility for the relationship
with Defendant.
M. ``Sales Staff'' means Defendant's employees with
responsibility for the sale of spot advertising on any Station.
N. ``Station'' means any broadcast television station, its
successors and assigns, and its subsidiaries, divisions, groups, and
its owner or operator and its directors, officers, managers, and
employees, unless a Station owns, is owned by, or is under common
ownership with a Sales Representative Firm, in which case that Sales
Representative Firm will not be considered a Station.
III. APPLICABILITY
This Final Judgment applies to Defendant, other Persons in
active concert or participation with Defendant who receive actual
notice of this Final Judgment by personal service or otherwise, and
any Person that signs an Acknowledgment of Applicability, attached
as Exhibit 2, to the extent set forth therein, as a condition of the
purchase of a Station owned by Defendant as of October 1, 2018. This
Final Judgment applies to Defendant's actions performed under any
Cooperative Agreement, even if those actions are taken on behalf of
a third party. This Final Judgment is fully enforceable, including
by penalty of contempt, against all of the foregoing.
IV. PROHIBITED CONDUCT
A. Defendant's Management and Sales Staff shall not, directly or
indirectly:
1. Communicate Competitively Sensitive Information to any
Station in the same DMA it does not own or operate;
2. Knowingly use Competitively Sensitive Information from or
regarding any Station in the same DMA it does not own or operate;
3. Encourage or facilitate the Communication of Competitively
Sensitive Information to or from any Station in the same DMA it does
not own or operate; or
4. Attempt to enter into, enter into, maintain, or enforce any
agreement to Communicate Competitively Sensitive Information with
any Station in the same DMA it does not own or operate.
B. The prohibitions under Paragraph IV(A) apply to Defendant's
Communicating or agreeing to Communicate through a Sales
Representative Firm or a third-party agent at Defendant's
instruction or request.
C. Defendant shall not sell any Station owned by the Defendant
as of October 1, 2018 to any Person unless that Person has first
executed the Acknowledgment of Applicability, attached as Exhibit 2.
Defendant shall submit any Acknowledgement of Applicability to the
United States within 15 days of consummating the sale of such
Station. The United States, in its sole discretion, may waive the
prohibition in this Paragraph IV(C) on a Station-by-Station basis.
Alternatively, the United States and the Person signing the
Acknowledgement of Applicability may agree to void the
Acknowledgement of Applicability at any time. The first sentence of
this paragraph shall not apply to the sale of any Station to a
Person already bound to a final judgment entered by a court
regarding the Communication of Competitively Sensitive Information.
V. CONDUCT NOT PROHIBITED
A. Nothing in Section IV shall prohibit Defendant from
Communicating, using, or encouraging or facilitating the
Communication of, Competitively Sensitive Information with an actual
or prospective Advertiser, except that, if the Advertiser is another
Station, Defendant's Communicating, using, or encouraging or
facilitating the Communication of, Competitively Sensitive
Information is excluded from the terms of Section IV only insofar as
is reasonably necessary to negotiate the sale of spot advertising on
broadcast television stations. For the avoidance of doubt, Defendant
is not prohibited from internally using Competitively Sensitive
Information received from an Advertiser that is a Station under the
preceding sentence, but Defendant is prohibited from Communicating
that Competitively Sensitive Information to a Station in the same
DMA that it does not own or operate.
B. Nothing in Section IV shall prohibit Defendant from, after
securing advice of counsel and in consultation with the Antitrust
Compliance Officer, Communicating, using, encouraging or
facilitating the Communication of, or attempting to enter into,
entering into, maintaining, or enforcing any agreement to
Communicate Competitively Sensitive Information with any Station
when such Communication or use is (a) for the purpose of evaluating
or effectuating a bona fide acquisition, disposition, or exchange of
Stations or related assets, or (b) reasonably necessary for
achieving the efficiencies of any other legitimate competitor
collaboration. With respect to any such agreement:
1. For all agreements under Part V(B)(a) with any other Station
to Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment, Defendant shall maintain documents
sufficient to show:
i. the specific transaction or proposed transaction to which the
sharing of Competitively Sensitive Information relates;
ii. the employees, identified with reasonable specificity, who
are involved in the sharing of Competitively Sensitive Information;
and
iii. the termination date or event of the sharing of
Competitively Sensitive Information.
2. All agreements under Part V(B)(b) with any other Station to
Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment shall be in writing, and shall:
i. identify and describe, with specificity, the collaboration to
which it is ancillary;
ii. be narrowly tailored to permit the Communication of
Competitively Sensitive Information only when reasonably necessary
and only to the employees reasonably necessary to effectuate the
collaboration;
iii. identify with reasonable specificity the Competitively
Sensitive Information Communicated pursuant to the agreement and
identify the employees to receive the Competitively Sensitive
Information;
iv. contain a specific termination date or event; and
v. be signed by all parties to the agreement, including any
modifications to the agreement.
3. For Communications under Part V(B)(a) above, Defendant shall
maintain copies of all materials required under Paragraph V(B)(1)
for five years or the duration of the Final Judgment, whichever is
shorter, following entry into any agreement to Communicate or
receive Competitively Sensitive Information, and Defendant shall
make such documents available to the United States upon request, if
such request is made during the preservation period.
4. For Communications under Part V(B)(b) above, Defendant shall
furnish a copy of all materials required under Paragraph V(B)(2) to
the United States within thirty days of the entry, renewal, or
extension of the agreement.
5. For purposes of this Section V(B) only, a Joint Sales
Agreement, Local Marketing Agreement, or similar agreement pursuant
to which the Defendant Communicates, uses, encourages or facilitates
the Communication of, or attempts to enter into, enters into,
maintains, or enforces any agreement to Communicate Competitively
Sensitive Information related solely to the sale of spot advertising
for which Defendant is responsible on a Station, shall be considered
a ``legitimate competitor collaboration'' under Part V(B)(b).
C. Nothing in Section IV shall prohibit Defendant from engaging
in conduct in accordance with the doctrine established in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657
(1965), and their progeny.
D. Nothing in Section IV prohibits Defendant from (1)
Communicating, encouraging or facilitating the Communication of, or
attempting to enter into, entering into, maintaining, or enforcing
any agreement to Communicate
[[Page 62976]]
Competitively Sensitive Information for the purpose of aggregation
if (a) Competitively Sensitive Information is sent to or received
from, and the aggregation is managed by, a third party not owned or
operated by any Station; (b) the information disseminated by the
aggregator is limited to historical total broadcast television
station revenue or other geographic or characteristic categorization
(e.g., national, local, or political sales revenue); and (c) any
information disseminated is sufficiently aggregated such that it
would not allow a recipient to identify, deduce, or estimate the
prices or pacing of any individual broadcast television station not
owned or operated by that recipient; or (2) using information that
meets the requirements of Parts V(D)(1)(a)-(c).
VI. REQUIRED CONDUCT
A. Within ten days of entry of this Final Judgment, Defendant
shall appoint an Antitrust Compliance Officer who is an internal
employee or Officer of the Defendant, and identify to the United
States the Antitrust Compliance Officer's name, business address,
telephone number, and email address. Within forty-five days of a
vacancy in the Antitrust Compliance Officer position, Defendant
shall appoint a replacement, and shall identify to the United States
the Antitrust Compliance Officer's name, business address, telephone
number, and email address. Defendant's initial or replacement
appointment of an Antitrust Compliance Officer is subject to the
approval of the United States, in its sole discretion.
B. The Antitrust Compliance Officer shall have, or shall retain
outside counsel who has, the following minimum qualifications:
1. be an active member in good standing of the bar in any U.S.
jurisdiction; and
2. have at least five years' experience in legal practice,
including experience with antitrust matters, unless finding an
Antitrust Compliance Officer or outside counsel meeting this
experience requirement is a hardship on or is not reasonably
available to the Defendant, under which circumstances the Defendant
may select an Antitrust Compliance Officer or shall retain outside
counsel who has at least five years' experience in legal practice,
including experience with regulatory or compliance matters.
C. The Antitrust Compliance Officer shall, directly or through
the employees or counsel working at the Antitrust Compliance
Officer's responsibility and direction:
1. within fourteen days of entry of the Final Judgment, furnish
to all of Defendant's Management and Sales Staff and Sales
Representative Firm Managers a copy of this Final Judgment, the
Competitive Impact Statement filed by the United States with the
Court, and a cover letter in a form attached as Exhibit 1;
2. within fourteen days of entry of the Final Judgment, in a
manner to be devised by Defendant and approved by the United States,
provide Defendant's Management and Sales Staff reasonable notice of
the meaning and requirements of this Final Judgment;
3. annually brief Defendant's Management and Sales Staff on the
meaning and requirements of this Final Judgment and the U.S.
antitrust laws;
4. brief any person who succeeds a person in any position
identified in Paragraph VI(C)(3), within sixty days of such
succession;
5. obtain from each person designated in Paragraph VI(C)(3) or
VI(C)(4), within thirty days of that person's receipt of the Final
Judgment, a certification that the person (i) has read and
understands and agrees to abide by the terms of this Final Judgment;
(ii) is not aware of any violation of the Final Judgment that has
not been reported to Defendant; and (iii) understands that failure
to comply with this Final Judgment may result in an enforcement
action for civil or criminal contempt of court;
6. annually communicate to Defendant's Management and Sales
Staff that they may disclose to the Antitrust Compliance Officer,
without reprisal for such disclosure, information concerning any
violation or potential violation of this Final Judgment or the U.S.
antitrust laws by Defendant;
7. within thirty days of the latest filing of the Complaint,
Proposed Final Judgment, or Competitive Impact Statement in this
action, Defendant shall provide notice, in each DMA in which
Defendant owns or operates a Station, to (i) every full power
Station in that DMA that sells broadcast television spot advertising
that Defendant does not own or operate and (ii) any Sales
Representative Firm selling advertising in that DMA on behalf of
Defendant, of the Complaint, Proposed Final Judgment, and
Competitive Impact Statement in a form and manner to be proposed by
Defendant and approved by the United States in its sole discretion.
Defendant shall provide the United States with its proposal,
including the list of recipients, within ten days of the filing of
the Complaint; and
8. maintain for five years or until expiration of the Final
Judgement, whichever is shorter, a copy of all materials required to
be issued under Paragraph VI(C), and furnish them to the United
States within ten days if requested to do so, except documents
protected under the attorney-client privilege or the attorney work-
product doctrine. For all materials required to be furnished under
Paragraph VI(C) which Defendant claims are protected under the
attorney-client privilege or the attorney work-product doctrine,
Defendant shall furnish to the United States a privilege log.
D. Defendant shall:
1. upon Management or the Antitrust Compliance Officer learning
of any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, (i) promptly take
appropriate action to investigate, and in the event of a violation,
terminate or modify the activity so as to comply with this Final
Judgment, (ii) maintain all documents related to any violation or
potential violation of this Final Judgment for a period of five
years or the duration of this Final Judgement, whichever is shorter,
and (iii) maintain, and furnish to the United States at the United
States' request, a log of (a) all such documents and documents for
which Defendant claims protection under the attorney-client
privilege or the attorney work product doctrine, and (b) all
potential and actual violations, even if no documentary evidence
regarding the violations exist;
2. within thirty days of Management or the Antitrust Compliance
Officer learning of any such violation or potential violation of any
of the terms and conditions contained in this Final Judgment, file
with the United States a statement describing any violation or
potential violation of any of the terms and conditions contained in
this Final Judgment, which shall include a description of any
Communications constituting the violation or potential violation,
including the date and place of the Communication, the Persons
involved, and the subject matter of the Communication;
3. establish a whistleblower protection policy, which provides
that any employee may disclose, without reprisal for such
disclosure, to the Antitrust Compliance Officer information
concerning any violation or potential violation by the Defendant of
this Final Judgment or U.S. antitrust laws;
4. have its CEO, General Counsel or Chief Legal Officer certify
in writing to the United States annually on the anniversary date of
the entry of this Final Judgment that Defendant has complied with
the provisions of this Final Judgment;
5. maintain and produce to the United States upon request: (i) a
list identifying all employees having received the annual antitrust
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii)
copies of all materials distributed as part of the annual antitrust
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all
materials requested to be produced under this Paragraph VI(D)(5) for
which Defendant claims is protected under the attorney-client
privilege or the attorney work-product doctrine, Defendant shall
furnish to the United States a privilege log; and
6. instruct each Sales Representative Firm Manager that the
Sales Representative Firm shall not Communicate any of Defendant's
Competitively Sensitive Information in a way that would violate
Sections IV and V of this Final Judgment if the Sales Representative
Firm were included in the definition of ``Defendant'' in Paragraph
II(F), in a form and manner to be proposed by Defendant and approved
by the United States in its sole discretion, maintained and produced
to the United States upon request.
E. For the avoidance of doubt, the term ``potential violation''
as used in Paragraph VI(D) does not include the discussion of future
conduct.
F. If Defendant acquires a Station after entry of this Final
Judgment, this Section VI will not apply to that acquired Station or
the employees of that acquired Station until 120 days after closing
of the acquisition of that acquired Station.
VII. DEFENDANT'S COOPERATION
A. Defendant shall cooperate fully and truthfully with the
United States in any investigation or litigation examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate, or any Sales Representative Firm Communicated
Competitively Sensitive Information with or among Defendant or any
other Station or any Sales Representative Firm in violation of
[[Page 62977]]
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
Defendant shall use its best efforts to ensure that all current and
former officers, directors, employees, and agents also fully and
promptly cooperate with the United States. The full, truthful, and
continuing cooperation of Defendant shall include, but not be
limited to:
1. providing sworn testimony, that is not protected by the
attorney-client privilege or the attorney work product doctrine, to
the United States regarding the Communicating of Competitively
Sensitive Information or any agreement with any other Station it
does not own or such other Station's Sales Representative Firm to
Communicate Competitively Sensitive Information while an employee of
the Defendant;
2. producing, upon request of the United States, all documents,
data, and other materials, wherever located, to the extent not
protected under the attorney-client privilege or the attorney work-
product doctrine, in the possession, custody, or control of
Defendant, that relate to the Communication of Competitively
Sensitive Information or any agreement with any other Station or
such other Station's Sales Representative Firm to Communicate
Competitively Sensitive Information, and a log of documents
protected by the attorney-client privilege or the attorney work
product doctrine;
3. making available for interview any officers, directors,
employees, and agents of Defendant if so requested on reasonable
notice by the United States; and
4. testifying at trial and other judicial proceedings fully,
truthfully, and under oath, when called upon to do so by the United
States;
5. provided however, that the obligations of Defendant to
cooperate fully with the United States as described in this Section
VII shall cease upon the conclusion of all of the United States'
investigations and the United States' litigations examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate or such other Station's Sales Representative Firm
Communicated Competitively Sensitive Information or with or among
Defendant or any other Station or any Sales Representative Firm in
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C.
Sec. 1, including exhaustion of all appeals or expiration of time
for all appeals of any Court ruling in each such matter, at which
point the United States will provide written notice to Defendant
that its obligations under this Section VII have expired.
B. Defendant is obligated to impose a litigation hold until the
United States provides written notice to the Defendant that its
obligations under this Section VII have expired. This Paragraph
VII(B) does not apply to documents created after entry of this Final
Judgment.
C. Subject to the full, truthful, and continuing cooperation of
Defendant, as defined in Paragraph VII(A), the United States will
not bring any further civil action or any criminal charges against
Defendant related to any Communication of Competitively Sensitive
Information or any agreement to Communicate Competitively Sensitive
Information with any other Station it does not own or operate or
such other Station's Sales Representative Firm when that agreement:
1. was Communicated, entered into and terminated on or before
the date of the filing of the Complaint in this action (or in the
case of a Station that is acquired by Defendant after entry of this
Final Judgment, was Communicated or entered into before the
acquisition and terminated within 120 days after the closing of the
acquisition); and
2. does not constitute or include an agreement to fix prices or
divide markets.
D. The United States' agreement set forth in Paragraph VII(C)
does not apply to any acts of perjury or subornation of perjury (18
U.S.C. Sec. Sec. 1621-22), making a false statement or declaration
(18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec.
401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.)
by the Defendant or its officers, directors, and employees. The
United States' agreement set forth in Paragraph VII(C) does not
release any claims against any Sales Representative Firm.
VIII. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with
this Final Judgment or of any related orders, or of determining
whether the Final Judgment should be modified, and subject to any
legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice,
including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative
of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to Defendant, be permitted:
1. to access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide electronic or hard copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control
of Defendant, relating to any matters that are the subject of this
Final Judgment, not protected by the attorney-client privilege or
the attorney work product doctrine; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall be
subject to the reasonable convenience of the interviewee and without
restraint or interference by Defendant; and
3. to obtain from Defendant written reports or responses to
written interrogatories, of information not protected by the
attorney-client privilege or attorney work product doctrine, under
oath if requested, relating to any matters that are the subject of
this Final Judgment as may be requested.
B. No information or documents obtained by the means provided in
this Section VIII shall be divulged by the United States to any
Person other than an authorized representative of the executive
branch of the United States, except in the course of legal
proceedings to which the United States is a party (including grand
jury proceedings), or for the purpose of securing compliance with
this Final Judgment, or for law enforcement purposes, or as
otherwise required by law.
C. If at the time information or documents are furnished by
Defendant to the United States, Defendant represents and identifies
in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure, and Defendant marks each
pertinent page of such material, ``Subject to claim of protection
under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,''
then the United States shall give Defendant ten calendar days'
notice prior to divulging such material in any legal proceeding
(other than a grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce
the provisions of this Final Judgment, including its right to seek
an order of contempt from this Court. Defendant agrees that in any
civil contempt action, any motion to show cause, or any similar
civil action brought by the United States regarding an alleged
violation of this Final Judgment, the United States may establish a
violation of the decree and the appropriateness of any remedy
therefor by a preponderance of the evidence, and Defendant waives
any argument that a different standard of proof should apply.
B. The Final Judgment should be interpreted to give full effect
to the procompetitive purposes of the antitrust laws and to restore
all competition the United States alleged was harmed by the
challenged conduct. Defendant agrees that it may be held in contempt
of, and that the Court may enforce, any provision of this Final
Judgment that, as interpreted by the Court in light of these
procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of this Final Judgment should not be
construed against either party as the drafter.
C. In any enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this
Final Judgment against Defendant, whether litigated or resolved
prior to litigation, Defendant agrees to reimburse the United States
for the fees and expenses of its attorneys, as well as any other
costs including experts' fees, incurred in connection with that
enforcement effort, including in the investigation of the potential
violation.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire seven years from
[[Page 62978]]
the date of its entry, except that after five years from the date of
its entry, this Final Judgment may be terminated upon notice by the
United States to the Court and Defendant that the continuation of
the Final Judgment no longer is necessary or in the public interest.
XII. NOTICE
For purposes of this Final Judgment, any notice or other
communication required to be provided to the United States shall be
sent to the person at the address set forth below (or such other
addresses as the United States may specify in writing to Defendant):
Chief, Media, Entertainment, and Professional Services Section, U.S.
Department of Justice, Antitrust Division, 450 Fifth Street, NW,
Suite 4000, Washington, D.C. 20530.
XIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The
parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and response to comments filed with the Court, entry of
this Final Judgment is in the public interest.
IT IS SO ORDERED by the Court, this __ day of __, 201__.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
-----------------------------------------------------------------------
United States District Judge
Exhibit 1
[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]
Re: Prohibitions Against Sharing of Competitively Sensitive
Information
Dear [XX]:
I provide you this notice regarding a judgment recently entered
by a federal judge in Washington, D.C. prohibiting the sharing of
certain information with other broadcast television station(s).
The judgment applies to our company and all of its employees,
including you, so it is important that you understand the
obligations it imposes on us. [CEO Name] has asked me to let each of
you know that [s/he] expects you to take these obligations seriously
and abide by them.
The judgment prohibits us from sharing or receiving, directly or
indirectly (including through our national sales representative
firm), competitively sensitive information with or from any
employee, agent, or representative of another broadcast television
station in the same DMA it does not own or operate. Competitively
sensitive information means any non-public information regarding the
sale of spot advertising on broadcast television stations, including
information relating to any pricing or pricing strategies, pacing,
holding capacity, revenues, or market shares. There are limited
exceptions to this restriction, which are listed in the judgment.
The company will provide briefing on the legitimate or illegitimate
exchange of information. You must consult with me if you have any
questions on whether a particular circumstance is subject to an
exception under the judgment.
A copy of the judgment is attached. Please read it carefully and
familiarize yourself with its terms. The judgment, rather than the
above description, is controlling. If you have any questions about
the judgment or how it affects your sale of spot advertising, please
contact me as soon as possible.
Please sign and return the attached Employee Certification to
[Defendant's Antitrust Compliance Officer] within thirty days of
your receipt of this letter. Thank you for your cooperation.
Sincerely,
[Defendant's Antitrust Compliance Officer]
Employee Certification
I, __ [name], __ [position] at __ [station or location] do hereby
certify that I (i) have read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not aware of any violation
of the Final Judgment that has not been reported to [Defendant]; and
(iii) understand that my failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court.
-----------------------------------------------------------------------
Name:
Date:
Exhibit 2
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
ACKNOWLEDGEMENT OF APPLICABILITY
The undersigned acknowledges that [Full Buyer Name], including
its successors and assigns, and its subsidiaries, divisions, and
broadcast television stations, and their directors, officers, and
employees (``Acquirer''), following consummation of the Acquirer's
acquisition of [insert names of station or stations acquired] (each,
an ``Acquired Station''), is bound by the Final Judgment entered by
this Court on [date] (``Final Judgment''), as if the Acquirer were a
Defendant under the Final Judgment, as follows:
1. The Acquirer shall be bound in full by all Sections of the
Consent Decree not specifically discussed below.
2. As to Sections IV, V, and VII of the Final Judgment, the
Acquirer is bound to the Final Judgment only as to (i) each Acquired
Station, each Acquired Station's successors and assigns, and each
Acquired Station's subsidiaries and divisions, and each Acquired
Station's directors, officers, and employees, (ii) Acquirer's
officers and directors only with respect to any responsibilities or
actions regarding any Acquired Stations, and (iii) employees with
management or supervisory responsibilities for Acquirer's business
or operations related to the sale of spot advertising on any
Acquired Station, only with respect to those responsibilities.
3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D),
VI(E), and VIII of the Final Judgment, the Acquirer is bound to the
Final Judgment only as to (i) each Acquired Station, each Acquired
Station's successors and assigns, and each Acquired Station's
subsidiaries and divisions, and each Acquired Station's directors,
officers, and employees, (ii) Acquirer's officers and directors, and
(iii) employees with management or supervisory responsibilities for
Acquirer's business or operations related to the sale of spot
advertising on any Acquired Station.
4. The release contained in Sections VII(C) and (D) applies to
the Acquirer, but only to civil actions or criminal charges arising
from actions taken by any Acquired Station.
5. The Acquirer shall not be bound by Sections VI(C)(1),
VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all.
6. Section VI(A) applies to the Acquirer, but is modified to
make the initial period for appointing an Antitrust Compliance
Officer in the first sentence 120 days from consummation of the
Acquirer's acquisition of the Acquired Station or Acquired Stations.
This Acknowledgement of Applicability may be voided by a joint
written agreement between the United States and the Acquirer.
Dated: [ ]
Respectfully submitted,
/s/--------------------------------------------------------------------
[Counsel for Acquirer]
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its
Complaint on November __, 2018, alleging that Defendant Meredith
Corporation, among others, violated Section 1 of the Sherman Act, 15
U.S.C. Sec. 1, the United States and Defendant, by their respective
attorneys, have consented to the entry of this Final Judgment
without trial or adjudication of any issue of fact or law;
AND WHEREAS, this Final Judgment does not constitute any
evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, the United States and Defendant agree to be bound
by the provisions of this Final Judgment pending its approval by
this Court;
AND WHEREAS, the Defendant agrees to undertake certain actions
and to refrain from engaging in certain forms of information sharing
with its competitors;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
[[Page 62979]]
I. JURISDICTION
This Court has jurisdiction over the subject matter and each of
the parties to this action. The allegations in the Complaint arise
under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
See 28 U.S.C. Sec. 1331.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Advertiser'' means an advertiser, an advertiser's buying
agent, or an advertiser's representative.
B. ``Agreement'' means any agreement, understanding, pact,
contract, or arrangement, formal or informal, oral or written,
between two or more Persons.
C. ``Communicate,'' ``Communicating,'' and ``Communication(s)''
means to provide, send, discuss, circulate, exchange, request, or
solicit information, whether directly or indirectly, and regardless
of the means by which it is accomplished, including orally or by
written means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text
messages, audio recordings, meetings, interviews, correspondence,
exchange of written or recorded information, or face-to-face
meetings.
D. ``Competitively Sensitive Information'' means any of the
following information, less than eighteen months old, of Defendant
or any broadcast television station regarding the sale of spot
advertising on broadcast television stations: Non-Public Information
relating to pricing or pricing strategies, pacing, holding capacity,
revenues, or market shares. Reports containing only aggregated
market-level or national data are not Competitively Sensitive
Information, but reports (including by paid subscription) that are
customized or confidential to a particular Station or broadcast
television station group are Competitively Sensitive Information.
E. ``Cooperative Agreement'' means (1) joint sales agreements,
joint operating agreements, local marketing agreements, news share
agreements, or shared services agreements, or (2) any agreement
through which a Person exercises control over any broadcast
television station not owned by the Person.
F. ``Defendant'' means Meredith Corporation, an Iowa corporation
with its headquarters in Des Moines, Iowa, its successors and
assigns, and its subsidiaries, divisions, and Stations, and their
directors, officers, and employees.
G. ``DMA'' means Designated Market Area as defined by A.C.
Nielsen Company and used by the Investing in Television BIA Market
Report 2018.
H. ``Management'' means all directors and officers of Defendant,
or any other employee with management or supervisory
responsibilities for Defendant's business or operations related to
the sale of spot advertising on any Station.
I. ``Non-Public Information'' means information that is not
available from public sources or generally available to the public.
Measurement or quantification of a Station's future holding capacity
is Non-Public Information, but measurement or quantification of a
Station's past holding capacity is not Non-Public Information. For
the avoidance of doubt, the fact that information is available by
paid subscription does not on its own render the information public.
J. ``Person'' means any natural person, corporation, company,
partnership, joint venture, firm, association, proprietorship,
agency, board, authority, commission, office, or other business or
legal entity, whether private or governmental.
K. ``Sales Representative Firm'' means any organization,
including without limitation Katz Media Group, Inc. and Cox Reps,
Inc., and their respective subsidiaries and divisions, that
represents a Station or its owner in the sale of spot advertising.
L. ``Sales Representative Firm Manager'' means, for each of
Defendant's Sales Representative Firms, the employee of the Sales
Representative Firm with primary responsibility for the relationship
with Defendant.
M. ``Sales Staff'' means Defendant's employees with
responsibility for the sale of spot advertising on any Station.
N. ``Station'' means any broadcast television station, its
successors and assigns, and its subsidiaries, divisions, groups, and
its owner or operator and its directors, officers, managers, and
employees, unless a Station owns, is owned by, or is under common
ownership with a Sales Representative Firm, in which case that Sales
Representative Firm will not be considered a Station.
III. APPLICABILITY
This Final Judgment applies to Defendant, other Persons in
active concert or participation with Defendant who receive actual
notice of this Final Judgment by personal service or otherwise, and
any Person that signs an Acknowledgment of Applicability, attached
as Exhibit 2, to the extent set forth therein, as a condition of the
purchase of a Station owned by Defendant as of October 1, 2018. This
Final Judgment applies to Defendant's actions performed under any
Cooperative Agreement, even if those actions are taken on behalf of
a third party. This Final Judgment is fully enforceable, including
by penalty of contempt, against all of the foregoing.
IV. PROHIBITED CONDUCT
A. Defendant's Management and Sales Staff shall not, directly or
indirectly:
1. Communicate Competitively Sensitive Information to any
Station in the same DMA it does not own or operate;
2. Knowingly use Competitively Sensitive Information from or
regarding any Station in the same DMA it does not own or operate;
3. Encourage or facilitate the Communication of Competitively
Sensitive Information to or from any Station in the same DMA it does
not own or operate; or
4. Attempt to enter into, enter into, maintain, or enforce any
agreement to Communicate Competitively Sensitive Information with
any Station in the same DMA it does not own or operate.
B. The prohibitions under Paragraph IV(A) apply to Defendant's
Communicating or agreeing to Communicate through a Sales
Representative Firm or a third-party agent at Defendant's
instruction or request.
C. Defendant shall not sell any Station owned by the Defendant
as of October 1, 2018 to any Person unless that Person has first
executed the Acknowledgment of Applicability, attached as Exhibit 2.
Defendant shall submit any Acknowledgement of Applicability to the
United States within 15 days of consummating the sale of such
Station. The United States, in its sole discretion, may waive the
prohibition in this Paragraph IV(C) on a Station-by-Station basis.
Alternatively, the United States and the Person signing the
Acknowledgement of Applicability may agree to void the
Acknowledgement of Applicability at any time. The first sentence of
this paragraph shall not apply to the sale of any Station to a
Person already bound to a final judgment entered by a court
regarding the Communication of Competitively Sensitive Information.
V. CONDUCT NOT PROHIBITED
A. Nothing in Section IV shall prohibit Defendant from
Communicating, using, or encouraging or facilitating the
Communication of, Competitively Sensitive Information with an actual
or prospective Advertiser, except that, if the Advertiser is another
Station, Defendant's Communicating, using, or encouraging or
facilitating the Communication of, Competitively Sensitive
Information is excluded from the terms of Section IV only insofar as
is reasonably necessary to negotiate the sale of spot advertising on
broadcast television stations. For the avoidance of doubt, Defendant
is not prohibited from internally using Competitively Sensitive
Information received from an Advertiser that is a Station under the
preceding sentence, but Defendant is prohibited from Communicating
that Competitively Sensitive Information to a Station in the same
DMA that it does not own or operate.
B. Nothing in Section IV shall prohibit Defendant from, after
securing advice of counsel and in consultation with the Antitrust
Compliance Officer, Communicating, using, encouraging or
facilitating the Communication of, or attempting to enter into,
entering into, maintaining, or enforcing any agreement to
Communicate Competitively Sensitive Information with any Station
when such Communication or use is (a) for the purpose of evaluating
or effectuating a bona fide acquisition, disposition, or exchange of
Stations or related assets, or (b) reasonably necessary for
achieving the efficiencies of any other legitimate competitor
collaboration. With respect to any such agreement:
1. For all agreements under Part V(B)(a) with any other Station
to Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment, Defendant shall maintain documents
sufficient to show:
i. the specific transaction or proposed transaction to which the
sharing of Competitively Sensitive Information relates;
ii. the employees, identified with reasonable specificity, who
are involved in the sharing of Competitively Sensitive Information;
and
[[Page 62980]]
iii. the termination date or event of the sharing of
Competitively Sensitive Information.
2. All agreements under Part V(B)(b) with any other Station to
Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment shall be in writing, and shall:
i. identify and describe, with specificity, the collaboration to
which it is ancillary;
ii. be narrowly tailored to permit the Communication of
Competitively Sensitive Information only when reasonably necessary
and only to the employees reasonably necessary to effectuate the
collaboration;
iii. identify with reasonable specificity the Competitively
Sensitive Information Communicated pursuant to the agreement and
identify the employees to receive the Competitively Sensitive
Information;
iv. contain a specific termination date or event; and
v. be signed by all parties to the agreement, including any
modifications to the agreement.
3. For Communications under Part V(B)(a) above, Defendant shall
maintain copies of all materials required under Paragraph V(B)(1)
for five years or the duration of the Final Judgment, whichever is
shorter, following entry into any agreement to Communicate or
receive Competitively Sensitive Information, and Defendant shall
make such documents available to the United States upon request, if
such request is made during the preservation period.
4. For Communications under Part V(B)(b) above, Defendant shall
furnish a copy of all materials required under Paragraph V(B)(2) to
the United States within thirty days of the entry, renewal, or
extension of the agreement.
5. For purposes of this Section V(B) only, a Joint Sales
Agreement, Local Marketing Agreement, or similar agreement pursuant
to which the Defendant Communicates, uses, encourages or facilitates
the Communication of, or attempts to enter into, enters into,
maintains, or enforces any agreement to Communicate Competitively
Sensitive Information related solely to the sale of spot advertising
for which Defendant is responsible on a Station, shall be considered
a ``legitimate competitor collaboration'' under Part V(B)(b).
C. Nothing in Section IV shall prohibit Defendant from engaging
in conduct in accordance with the doctrine established in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657
(1965), and their progeny.
D. Nothing in Section IV prohibits Defendant from (1)
Communicating, encouraging or facilitating the Communication of, or
attempting to enter into, entering into, maintaining, or enforcing
any agreement to Communicate Competitively Sensitive Information for
the purpose of aggregation if (a) Competitively Sensitive
Information is sent to or received from, and the aggregation is
managed by, a third party not owned or operated by any Station; (b)
the information disseminated by the aggregator is limited to
historical total broadcast television station revenue or other
geographic or characteristic categorization (e.g., national, local,
or political sales revenue); and (c) any information disseminated is
sufficiently aggregated such that it would not allow a recipient to
identify, deduce, or estimate the prices or pacing of any individual
broadcast television station not owned or operated by that
recipient; or (2) using information that meets the requirements of
Parts V(D)(1)(a)-(c).
VI. REQUIRED CONDUCT
A. Within ten days of entry of this Final Judgment, Defendant
shall appoint an Antitrust Compliance Officer who is an internal
employee or Officer of the Defendant, and identify to the United
States the Antitrust Compliance Officer's name, business address,
telephone number, and email address. Within forty-five days of a
vacancy in the Antitrust Compliance Officer position, Defendant
shall appoint a replacement, and shall identify to the United States
the Antitrust Compliance Officer's name, business address, telephone
number, and email address. Defendant's initial or replacement
appointment of an Antitrust Compliance Officer is subject to the
approval of the United States, in its sole discretion.
B. The Antitrust Compliance Officer shall have, or shall retain
outside counsel who has, the following minimum qualifications:
1. be an active member in good standing of the bar in any U.S.
jurisdiction; and
2. have at least five years' experience in legal practice,
including experience with antitrust matters, unless finding an
Antitrust Compliance Officer or outside counsel meeting this
experience requirement is a hardship on or is not reasonably
available to the Defendant, under which circumstances the Defendant
may select an Antitrust Compliance Officer or shall retain outside
counsel who has at least five years' experience in legal practice,
including experience with regulatory or compliance matters.
C. The Antitrust Compliance Officer shall, directly or through
the employees or counsel working at the Antitrust Compliance
Officer's responsibility and direction:
1. within fourteen days of entry of the Final Judgment, furnish
to all of Defendant's Management and Sales Staff and Sales
Representative Firm Managers a copy of this Final Judgment, the
Competitive Impact Statement filed by the United States with the
Court, and a cover letter in a form attached as Exhibit 1;
2. within fourteen days of entry of the Final Judgment, in a
manner to be devised by Defendant and approved by the United States,
provide Defendant's Management and Sales Staff reasonable notice of
the meaning and requirements of this Final Judgment;
3. annually brief Defendant's Management and Sales Staff on the
meaning and requirements of this Final Judgment and the U.S.
antitrust laws;
4. brief any person who succeeds a person in any position
identified in Paragraph VI(C)(3), within sixty days of such
succession;
5. obtain from each person designated in Paragraph VI(C)(3) or
VI(C)(4), within thirty days of that person's receipt of the Final
Judgment, a certification that the person (i) has read and
understands and agrees to abide by the terms of this Final Judgment;
(ii) is not aware of any violation of the Final Judgment that has
not been reported to Defendant; and (iii) understands that failure
to comply with this Final Judgment may result in an enforcement
action for civil or criminal contempt of court;
6. annually communicate to Defendant's Management and Sales
Staff that they may disclose to the Antitrust Compliance Officer,
without reprisal for such disclosure, information concerning any
violation or potential violation of this Final Judgment or the U.S.
antitrust laws by Defendant;
7. within thirty days of the latest filing of the Complaint,
Proposed Final Judgment, or Competitive Impact Statement in this
action, Defendant shall provide notice, in each DMA in which
Defendant owns or operates a Station, to (i) every full power
Station in that DMA that sells broadcast television spot advertising
that Defendant does not own or operate and (ii) any Sales
Representative Firm selling advertising in that DMA on behalf of
Defendant, of the Complaint, Proposed Final Judgment, and
Competitive Impact Statement in a form and manner to be proposed by
Defendant and approved by the United States in its sole discretion.
Defendant shall provide the United States with its proposal,
including the list of recipients, within ten days of the filing of
the Complaint; and
8. maintain for five years or until expiration of the Final
Judgement, whichever is shorter, a copy of all materials required to
be issued under Paragraph VI(C), and furnish them to the United
States within ten days if requested to do so, except documents
protected under the attorney-client privilege or the attorney work-
product doctrine. For all materials required to be furnished under
Paragraph VI(C) which Defendant claims are protected under the
attorney-client privilege or the attorney work-product doctrine,
Defendant shall furnish to the United States a privilege log.
D. Defendant shall:
1. upon Management or the Antitrust Compliance Officer learning
of any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, (i) promptly take
appropriate action to investigate, and in the event of a violation,
terminate or modify the activity so as to comply with this Final
Judgment, (ii) maintain all documents related to any violation or
potential violation of this Final Judgment for a period of five
years or the duration of this Final Judgement, whichever is shorter,
and (iii) maintain, and furnish to the United States at the United
States' request, a log of (a) all such documents and documents for
which Defendant claims protection under the attorney-client
privilege or the attorney work product doctrine, and (b) all
potential and actual violations, even if no documentary evidence
regarding the violations exist;
2. within thirty days of Management or the Antitrust Compliance
Officer learning of any such violation or potential violation of any
of the terms and conditions contained in this
[[Page 62981]]
Final Judgment, file with the United States a statement describing
any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, which shall include a
description of any Communications constituting the violation or
potential violation, including the date and place of the
Communication, the Persons involved, and the subject matter of the
Communication;
3. establish a whistleblower protection policy, which provides
that any employee may disclose, without reprisal for such
disclosure, to the Antitrust Compliance Officer information
concerning any violation or potential violation by the Defendant of
this Final Judgment or U.S. antitrust laws;
4. have its CEO, General Counsel or Chief Legal Officer certify
in writing to the United States annually on the anniversary date of
the entry of this Final Judgment that Defendant has complied with
the provisions of this Final Judgment;
5. maintain and produce to the United States upon request: (i) a
list identifying all employees having received the annual antitrust
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii)
copies of all materials distributed as part of the annual antitrust
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all
materials requested to be produced under this Paragraph VI(D)(5) for
which Defendant claims is protected under the attorney-client
privilege or the attorney work-product doctrine, Defendant shall
furnish to the United States a privilege log; and
6. instruct each Sales Representative Firm Manager that the
Sales Representative Firm shall not Communicate any of Defendant's
Competitively Sensitive Information in a way that would violate
Sections IV and V of this Final Judgment if the Sales Representative
Firm were included in the definition of ``Defendant'' in Paragraph
II(F), in a form and manner to be proposed by Defendant and approved
by the United States in its sole discretion, maintained and produced
to the United States upon request.
E. For the avoidance of doubt, the term ``potential violation''
as used in Paragraph VI(D) does not include the discussion of future
conduct.
F. If Defendant acquires a Station after entry of this Final
Judgment, this Section VI will not apply to that acquired Station or
the employees of that acquired Station until 120 days after closing
of the acquisition of that acquired Station.
VII. DEFENDANT'S COOPERATION
A. Defendant shall cooperate fully and truthfully with the
United States in any investigation or litigation examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate, or any Sales Representative Firm Communicated
Competitively Sensitive Information with or among Defendant or any
other Station or any Sales Representative Firm in violation of
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
Defendant shall use its best efforts to ensure that all current and
former officers, directors, employees, and agents also fully and
promptly cooperate with the United States. The full, truthful, and
continuing cooperation of Defendant shall include, but not be
limited to:
1. providing sworn testimony, that is not protected by the
attorney-client privilege or the attorney work product doctrine, to
the United States regarding the Communicating of Competitively
Sensitive Information or any agreement with any other Station it
does not own or such other Station's Sales Representative Firm to
Communicate Competitively Sensitive Information while an employee of
the Defendant;
2. producing, upon request of the United States, all documents,
data, and other materials, wherever located, to the extent not
protected under the attorney-client privilege or the attorney work-
product doctrine, in the possession, custody, or control of
Defendant, that relate to the Communication of Competitively
Sensitive Information or any agreement with any other Station or
such other Station's Sales Representative Firm to Communicate
Competitively Sensitive Information, and a log of documents
protected by the attorney-client privilege or the attorney work
product doctrine;
3. making available for interview any officers, directors,
employees, and agents of Defendant if so requested on reasonable
notice by the United States; and
4. testifying at trial and other judicial proceedings fully,
truthfully, and under oath, when called upon to do so by the United
States;
5. provided however, that the obligations of Defendant to
cooperate fully with the United States as described in this Section
VII shall cease upon the conclusion of all of the United States'
investigations and the United States' litigations examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate or such other Station's Sales Representative Firm
Communicated Competitively Sensitive Information or with or among
Defendant or any other Station or any Sales Representative Firm in
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C.
Sec. 1, including exhaustion of all appeals or expiration of time
for all appeals of any Court ruling in each such matter, at which
point the United States will provide written notice to Defendant
that its obligations under this Section VII have expired.
B. Defendant is obligated to impose a litigation hold until the
United States provides written notice to the Defendant that its
obligations under this Section VII have expired. This Paragraph
VII(B) does not apply to documents created after entry of this Final
Judgment.
C. Subject to the full, truthful, and continuing cooperation of
Defendant, as defined in Paragraph VII(A), the United States will
not bring any further civil action or any criminal charges against
Defendant related to any Communication of Competitively Sensitive
Information or any agreement to Communicate Competitively Sensitive
Information with any other Station it does not own or operate or
such other Station's Sales Representative Firm when that agreement:
1. was Communicated, entered into and terminated on or before
the date of the filing of the Complaint in this action (or in the
case of a Station that is acquired by Defendant after entry of this
Final Judgment, was Communicated or entered into before the
acquisition and terminated within 120 days after the closing of the
acquisition); and
2. does not constitute or include an agreement to fix prices or
divide markets.
D. The United States' agreement set forth in Paragraph VII(C)
does not apply to any acts of perjury or subornation of perjury (18
U.S.C. Sec. Sec. 1621-22), making a false statement or declaration
(18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec.
401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.)
by the Defendant or its officers, directors, and employees. The
United States' agreement set forth in Paragraph VII(C) does not
release any claims against any Sales Representative Firm.
VIII. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with
this Final Judgment or of any related orders, or of determining
whether the Final Judgment should be modified, and subject to any
legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice,
including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative
of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to Defendant, be permitted:
1. to access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide electronic or hard copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control
of Defendant, relating to any matters that are the subject of this
Final Judgment, not protected by the attorney-client privilege or
the attorney work product doctrine; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall be
subject to the reasonable convenience of the interviewee and without
restraint or interference by Defendant; and
3. to obtain from Defendant written reports or responses to
written interrogatories, of information not protected by the
attorney-client privilege or attorney work product doctrine, under
oath if requested, relating to any matters that are the subject of
this Final Judgment as may be requested.
B. No information or documents obtained by the means provided in
this Section VIII shall be divulged by the United States to any
Person other than an authorized representative of the executive
branch of the United States, except in the course of legal
proceedings to which the United States is a party (including grand
jury proceedings), or for the purpose of securing compliance with
this Final Judgment, or for law enforcement purposes, or as
otherwise required by law.
C. If at the time information or documents are furnished by
Defendant to the United States, Defendant represents and identifies
in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the
[[Page 62982]]
Federal Rules of Civil Procedure, and Defendant marks each pertinent
page of such material, ``Subject to claim of protection under Rule
26(c)(1)(G) of the Federal Rules of Civil Procedure,'' then the
United States shall give Defendant ten calendar days' notice prior
to divulging such material in any legal proceeding (other than a
grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce
the provisions of this Final Judgment, including its right to seek
an order of contempt from this Court. Defendant agrees that in any
civil contempt action, any motion to show cause, or any similar
civil action brought by the United States regarding an alleged
violation of this Final Judgment, the United States may establish a
violation of the decree and the appropriateness of any remedy
therefor by a preponderance of the evidence, and Defendant waives
any argument that a different standard of proof should apply.
B. The Final Judgment should be interpreted to give full effect
to the procompetitive purposes of the antitrust laws and to restore
all competition the United States alleged was harmed by the
challenged conduct. Defendant agrees that it may be held in contempt
of, and that the Court may enforce, any provision of this Final
Judgment that, as interpreted by the Court in light of these
procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of this Final Judgment should not be
construed against either party as the drafter.
C. In any enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this
Final Judgment against Defendant, whether litigated or resolved
prior to litigation, Defendant agrees to reimburse the United States
for the fees and expenses of its attorneys, as well as any other
costs including experts' fees, incurred in connection with that
enforcement effort, including in the investigation of the potential
violation.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire seven years from the date of its entry, except that after
five years from the date of its entry, this Final Judgment may be
terminated upon notice by the United States to the Court and
Defendant that the continuation of the Final Judgment no longer is
necessary or in the public interest.
XII. NOTICE
For purposes of this Final Judgment, any notice or other
communication required to be provided to the United States shall be
sent to the person at the address set forth below (or such other
addresses as the United States may specify in writing to Defendant):
Chief, Media, Entertainment, and Professional Services Section, U.S.
Department of Justice, Antitrust Division, 450 Fifth Street NW,
Suite 4000, Washington, D.C. 20530.
XIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The
parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and response to comments filed with the Court, entry of
this Final Judgment is in the public interest.
IT IS SO ORDERED by the Court, this __ day of __, 201__.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
-----------------------------------------------------------------------
United States District Judge
Exhibit 1
[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]
Re: Prohibitions Against Sharing of Competitively Sensitive
Information
Dear [XX]:
I provide you this notice regarding a judgment recently entered
by a federal judge in Washington, D.C. prohibiting the sharing of
certain information with other broadcast television station(s).
The judgment applies to our company and all of its employees,
including you, so it is important that you understand the
obligations it imposes on us. [CEO Name] has asked me to let each of
you know that [s/he] expects you to take these obligations seriously
and abide by them.
The judgment prohibits us from sharing or receiving, directly or
indirectly (including through our national sales representative
firm), competitively sensitive information with or from any
employee, agent, or representative of another broadcast television
station in the same DMA it does not own or operate. Competitively
sensitive information means any non-public information regarding the
sale of spot advertising on broadcast television stations, including
information relating to any pricing or pricing strategies, pacing,
holding capacity, revenues, or market shares. There are limited
exceptions to this restriction, which are listed in the judgment.
The company will provide briefing on the legitimate or illegitimate
exchange of information. You must consult with me if you have any
questions on whether a particular circumstance is subject to an
exception under the judgment.
A copy of the judgment is attached. Please read it carefully and
familiarize yourself with its terms. The judgment, rather than the
above description, is controlling. If you have any questions about
the judgment or how it affects your sale of spot advertising, please
contact me as soon as possible.
Please sign and return the attached Employee Certification to
[Defendant's Antitrust Compliance Officer] within thirty days of
your receipt of this letter. Thank you for your cooperation.
Sincerely,
[Defendant's Antitrust Compliance Officer]
Employee Certification
I, __ [name], __ [position] at [station or location] do hereby
certify that I (i) have read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not aware of any violation
of the Final Judgment that has not been reported to [Defendant]; and
(iii) understand that my failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court.
-----------------------------------------------------------------------
Name:
Date:
Exhibit 2
United States District Court for the District of Columbia
United States of America; Plaintiff, v.Sinclair Broadcast Group,
Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
ACKNOWLEDGEMENT OF APPLICABILITY
The undersigned acknowledges that [Full Buyer Name], including
its successors and assigns, and its subsidiaries, divisions, and
broadcast television stations, and their directors, officers, and
employees (``Acquirer''), following consummation of the Acquirer's
acquisition of [insert names of station or stations acquired] (each,
an ``Acquired Station''), is bound by the Final Judgment entered by
this Court on [date] (``Final Judgment''), as if the Acquirer were a
Defendant under the Final Judgment, as follows:
7. The Acquirer shall be bound in full by all Sections of the
Consent Decree not specifically discussed below.
8. As to Sections IV, V, and VII of the Final Judgment, the
Acquirer is bound to the Final Judgment only as to (i) each Acquired
Station, each Acquired Station's successors and assigns, and each
Acquired Station's subsidiaries and divisions, and each Acquired
Station's directors, officers, and employees, (ii) Acquirer's
officers and directors only with respect to any responsibilities or
actions regarding any Acquired Stations, and (iii) employees with
management or supervisory responsibilities for Acquirer's business
or operations related to the sale of spot advertising on any
Acquired Station, only with respect to those responsibilities.
[[Page 62983]]
9. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D),
VI(E), and VIII of the Final Judgment, the Acquirer is bound to the
Final Judgment only as to (i) each Acquired Station, each Acquired
Station's successors and assigns, and each Acquired Station's
subsidiaries and divisions, and each Acquired Station's directors,
officers, and employees, (ii) Acquirer's officers and directors, and
(iii) employees with management or supervisory responsibilities for
Acquirer's business or operations related to the sale of spot
advertising on any Acquired Station.
10. The release contained in Sections VII(C) and (D) applies to
the Acquirer, but only to civil actions or criminal charges arising
from actions taken by any Acquired Station.
11. The Acquirer shall not be bound by Sections VI(C)(1),
VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all.
12. Section VI(A) applies to the Acquirer, but is modified to
make the initial period for appointing an Antitrust Compliance
Officer in the first sentence 120 days from consummation of the
Acquirer's acquisition of the Acquired Station or Acquired Stations.
This Acknowledgement of Applicability may be voided by a joint
written agreement between the United States and the Acquirer.
Dated: [ ]
Respectfully submitted,
/s/--------------------------------------------------------------------
[Counsel for Acquirer]
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its
Complaint on November __, 2018, alleging that Defendant Griffin
Communications, LLC, among others, violated Section 1 of the Sherman
Act, 15 U.S.C. Sec. 1, the United States and Defendant, by their
respective attorneys, have consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law;
AND WHEREAS, this Final Judgment does not constitute any
evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, the United States and Defendant agree to be bound
by the provisions of this Final Judgment pending its approval by
this Court;
AND WHEREAS, the Defendant agrees to undertake certain actions
and to refrain from engaging in certain forms of information sharing
with its competitors;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter and each of
the parties to this action. The allegations in the Complaint arise
under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
See 28 U.S.C. Sec. 1331.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Advertiser'' means an advertiser, an advertiser's buying
agent, or an advertiser's representative.
B. ``Agreement'' means any agreement, understanding, pact,
contract, or arrangement, formal or informal, oral or written,
between two or more Persons.
C. ``Communicate,'' ``Communicating,'' and ``Communication(s)''
means to provide, send, discuss, circulate, exchange, request, or
solicit information, whether directly or indirectly, and regardless
of the means by which it is accomplished, including orally or by
written means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text
messages, audio recordings, meetings, interviews, correspondence,
exchange of written or recorded information, or face-to-face
meetings.
D. ``Competitively Sensitive Information'' means any of the
following information, less than eighteen months old, of Defendant
or any broadcast television station regarding the sale of spot
advertising on broadcast television stations: Non-Public Information
relating to pricing or pricing strategies, pacing, holding capacity,
revenues, or market shares. Reports containing only aggregated
market-level or national data are not Competitively Sensitive
Information, but reports (including by paid subscription) that are
customized or confidential to a particular Station or broadcast
television station group are Competitively Sensitive Information.
E. ``Cooperative Agreement'' means (1) joint sales agreements,
joint operating agreements, local marketing agreements, news share
agreements, or shared services agreements, or (2) any agreement
through which a Person exercises control over any broadcast
television station not owned by the Person.
F. ``Defendant'' means Griffin Communications, LLC, an Oklahoma
limited liability company with its headquarters in Oklahoma City,
Oklahoma, its successors and assigns, and its subsidiaries,
divisions, and Stations, and their directors, officers, and
employees.
G. ``DMA'' means Designated Market Area as defined by A.C.
Nielsen Company and used by the Investing in Television BIA Market
Report 2018.
H. ``Management'' means all directors and officers of Defendant,
or any other employee with management or supervisory
responsibilities for Defendant's business or operations related to
the sale of spot advertising on any Station.
I. ``Non-Public Information'' means information that is not
available from public sources or generally available to the public.
Measurement or quantification of a Station's future holding capacity
is Non-Public Information, but measurement or quantification of a
Station's past holding capacity is not Non-Public Information. For
the avoidance of doubt, the fact that information is available by
paid subscription does not on its own render the information public.
J. ``Person'' means any natural person, corporation, company,
partnership, joint venture, firm, association, proprietorship,
agency, board, authority, commission, office, or other business or
legal entity, whether private or governmental.
K. ``Sales Representative Firm'' means any organization,
including without limitation Katz Media Group, Inc. and Cox Reps,
Inc., and their respective subsidiaries and divisions, that
represents a Station or its owner in the sale of spot advertising.
L. ``Sales Representative Firm Manager'' means, for each of
Defendant's Sales Representative Firms, the employee of the Sales
Representative Firm with primary responsibility for the relationship
with Defendant.
M. ``Sales Staff'' means Defendant's employees with
responsibility for the sale of spot advertising on any Station.
N. ``Station'' means any broadcast television station, its
successors and assigns, and its subsidiaries, divisions, groups, and
its owner or operator and its directors, officers, managers, and
employees, unless a Station owns, is owned by, or is under common
ownership with a Sales Representative Firm, in which case that Sales
Representative Firm will not be considered a Station.
III. APPLICABILITY
This Final Judgment applies to Defendant, other Persons in
active concert or participation with Defendant who receive actual
notice of this Final Judgment by personal service or otherwise, and
any Person that signs an Acknowledgment of Applicability, attached
as Exhibit 2, to the extent set forth therein, as a condition of the
purchase of a Station owned by Defendant as of October 1, 2018. This
Final Judgment applies to Defendant's actions performed under any
Cooperative Agreement, even if those actions are taken on behalf of
a third party. This Final Judgment is fully enforceable, including
by penalty of contempt, against all of the foregoing.
IV. PROHIBITED CONDUCT
A. Defendant's Management and Sales Staff shall not, directly or
indirectly:
1. Communicate Competitively Sensitive Information to any
Station in the same DMA it does not own or operate;
2. Knowingly use Competitively Sensitive Information from or
regarding any Station in the same DMA it does not own or operate;
3. Encourage or facilitate the Communication of Competitively
Sensitive Information to or from any Station in the same DMA it does
not own or operate; or
4. Attempt to enter into, enter into, maintain, or enforce any
agreement to Communicate Competitively Sensitive Information with
any Station in the same DMA it does not own or operate.
B. The prohibitions under Paragraph IV(A) apply to Defendant's
Communicating or agreeing to Communicate through a Sales
Representative Firm or a third-party agent at Defendant's
instruction or request.
C. Defendant shall not sell any Station owned by the Defendant
as of October 1,
[[Page 62984]]
2018 to any Person unless that Person has first executed the
Acknowledgment of Applicability, attached as Exhibit 2. Defendant
shall submit any Acknowledgement of Applicability to the United
States within 15 days of consummating the sale of such Station. The
United States, in its sole discretion, may waive the prohibition in
this Paragraph IV(C) on a Station-by-Station basis. Alternatively,
the United States and the Person signing the Acknowledgement of
Applicability may agree to void the Acknowledgement of Applicability
at any time. The first sentence of this paragraph shall not apply to
the sale of any Station to a Person already bound to a final
judgment entered by a court regarding the Communication of
Competitively Sensitive Information.
V. CONDUCT NOT PROHIBITED
A. Nothing in Section IV shall prohibit Defendant from
Communicating, using, or encouraging or facilitating the
Communication of, Competitively Sensitive Information with an actual
or prospective Advertiser, except that, if the Advertiser is another
Station, Defendant's Communicating, using, or encouraging or
facilitating the Communication of, Competitively Sensitive
Information is excluded from the terms of Section IV only insofar as
is reasonably necessary to negotiate the sale of spot advertising on
broadcast television stations. For the avoidance of doubt, Defendant
is not prohibited from internally using Competitively Sensitive
Information received from an Advertiser that is a Station under the
preceding sentence, but Defendant is prohibited from Communicating
that Competitively Sensitive Information to a Station in the same
DMA that it does not own or operate.
B. Nothing in Section IV shall prohibit Defendant from, after
securing advice of counsel and in consultation with the Antitrust
Compliance Officer, Communicating, using, encouraging or
facilitating the Communication of, or attempting to enter into,
entering into, maintaining, or enforcing any agreement to
Communicate Competitively Sensitive Information with any Station
when such Communication or use is (a) for the purpose of evaluating
or effectuating a bona fide acquisition, disposition, or exchange of
Stations or related assets, or (b) reasonably necessary for
achieving the efficiencies of any other legitimate competitor
collaboration. With respect to any such agreement:
1. For all agreements under Part V(B)(a) with any other Station
to Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment, Defendant shall maintain documents
sufficient to show:
i. the specific transaction or proposed transaction to which the
sharing of Competitively Sensitive Information relates;
ii. the employees, identified with reasonable specificity, who
are involved in the sharing of Competitively Sensitive Information;
and
iii. the termination date or event of the sharing of
Competitively Sensitive Information.
2. All agreements under Part V(B)(b) with any other Station to
Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment shall be in writing, and shall:
i. identify and describe, with specificity, the collaboration to
which it is ancillary;
ii. be narrowly tailored to permit the Communication of
Competitively Sensitive Information only when reasonably necessary
and only to the employees reasonably necessary to effectuate the
collaboration;
iii. identify with reasonable specificity the Competitively
Sensitive Information Communicated pursuant to the agreement and
identify the employees to receive the Competitively Sensitive
Information;
iv. contain a specific termination date or event; and
v. be signed by all parties to the agreement, including any
modifications to the agreement.
3. For Communications under Part V(B)(a) above, Defendant shall
maintain copies of all materials required under Paragraph V(B)(1)
for five years or the duration of the Final Judgment, whichever is
shorter, following entry into any agreement to Communicate or
receive Competitively Sensitive Information, and Defendant shall
make such documents available to the United States upon request, if
such request is made during the preservation period.
4. For Communications under Part V(B)(b) above, Defendant shall
furnish a copy of all materials required under Paragraph V(B)(2) to
the United States within thirty days of the entry, renewal, or
extension of the agreement.
5. For purposes of this Section V(B) only, a Joint Sales
Agreement, Local Marketing Agreement, or similar agreement pursuant
to which the Defendant Communicates, uses, encourages or facilitates
the Communication of, or attempts to enter into, enters into,
maintains, or enforces any agreement to Communicate Competitively
Sensitive Information related solely to the sale of spot advertising
for which Defendant is responsible on a Station, shall be considered
a ``legitimate competitor collaboration'' under Part V(B)(b).
C. Nothing in Section IV shall prohibit Defendant from engaging
in conduct in accordance with the doctrine established in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657
(1965), and their progeny.
D. Nothing in Section IV prohibits Defendant from (1)
Communicating, encouraging or facilitating the Communication of, or
attempting to enter into, entering into, maintaining, or enforcing
any agreement to Communicate Competitively Sensitive Information for
the purpose of aggregation if (a) Competitively Sensitive
Information is sent to or received from, and the aggregation is
managed by, a third party not owned or operated by any Station; (b)
the information disseminated by the aggregator is limited to
historical total broadcast television station revenue or other
geographic or characteristic categorization (e.g., national, local,
or political sales revenue); and (c) any information disseminated is
sufficiently aggregated such that it would not allow a recipient to
identify, deduce, or estimate the prices or pacing of any individual
broadcast television station not owned or operated by that
recipient; or (2) using information that meets the requirements of
Parts V(D)(1)(a)-(c).
VI. REQUIRED CONDUCT
A. Within ten days of entry of this Final Judgment, Defendant
shall appoint an Antitrust Compliance Officer who is an internal
employee or Officer of the Defendant, and identify to the United
States the Antitrust Compliance Officer's name, business address,
telephone number, and email address. Within forty-five days of a
vacancy in the Antitrust Compliance Officer position, Defendant
shall appoint a replacement, and shall identify to the United States
the Antitrust Compliance Officer's name, business address, telephone
number, and email address. Defendant's initial or replacement
appointment of an Antitrust Compliance Officer is subject to the
approval of the United States, in its sole discretion.
B. The Antitrust Compliance Officer shall have, or shall retain
outside counsel who has, the following minimum qualifications:
1. be an active member in good standing of the bar in any U.S.
jurisdiction; and
2. have at least five years' experience in legal practice,
including experience with antitrust matters, unless finding an
Antitrust Compliance Officer or outside counsel meeting this
experience requirement is a hardship on or is not reasonably
available to the Defendant, under which circumstances the Defendant
may select an Antitrust Compliance Officer or shall retain outside
counsel who has at least five years' experience in legal practice,
including experience with regulatory or compliance matters.
C. The Antitrust Compliance Officer shall, directly or through
the employees or counsel working at the Antitrust Compliance
Officer's responsibility and direction:
1. within fourteen days of entry of the Final Judgment, furnish
to all of Defendant's Management and Sales Staff and Sales
Representative Firm Managers a copy of this Final Judgment, the
Competitive Impact Statement filed by the United States with the
Court, and a cover letter in a form attached as Exhibit 1;
2. within fourteen days of entry of the Final Judgment, in a
manner to be devised by Defendant and approved by the United States,
provide Defendant's Management and Sales Staff reasonable notice of
the meaning and requirements of this Final Judgment;
3. annually brief Defendant's Management and Sales Staff on the
meaning and requirements of this Final Judgment and the U.S.
antitrust laws;
4. brief any person who succeeds a person in any position
identified in Paragraph VI(C)(3), within sixty days of such
succession;
5. obtain from each person designated in Paragraph VI(C)(3) or
VI(C)(4), within thirty
[[Page 62985]]
days of that person's receipt of the Final Judgment, a certification
that the person (i) has read and understands and agrees to abide by
the terms of this Final Judgment; (ii) is not aware of any violation
of the Final Judgment that has not been reported to Defendant; and
(iii) understands that failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court;
6. annually communicate to Defendant's Management and Sales
Staff that they may disclose to the Antitrust Compliance Officer,
without reprisal for such disclosure, information concerning any
violation or potential violation of this Final Judgment or the U.S.
antitrust laws by Defendant;
7. within thirty days of the latest filing of the Complaint,
Proposed Final Judgment, or Competitive Impact Statement in this
action, Defendant shall provide notice, in each DMA in which
Defendant owns or operates a Station, to (i) every full power
Station in that DMA that sells broadcast television spot advertising
that Defendant does not own or operate and (ii) any Sales
Representative Firm selling advertising in that DMA on behalf of
Defendant, of the Complaint, Proposed Final Judgment, and
Competitive Impact Statement in a form and manner to be proposed by
Defendant and approved by the United States in its sole discretion.
Defendant shall provide the United States with its proposal,
including the list of recipients, within ten days of the filing of
the Complaint; and
8. maintain for five years or until expiration of the Final
Judgement, whichever is shorter, a copy of all materials required to
be issued under Paragraph VI(C), and furnish them to the United
States within ten days if requested to do so, except documents
protected under the attorney-client privilege or the attorney work-
product doctrine. For all materials required to be furnished under
Paragraph VI(C) which Defendant claims are protected under the
attorney-client privilege or the attorney work-product doctrine,
Defendant shall furnish to the United States a privilege log.
D. Defendant shall:
1. upon Management or the Antitrust Compliance Officer learning
of any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, (i) promptly take
appropriate action to investigate, and in the event of a violation,
terminate or modify the activity so as to comply with this Final
Judgment, (ii) maintain all documents related to any violation or
potential violation of this Final Judgment for a period of five
years or the duration of this Final Judgement, whichever is shorter,
and (iii) maintain, and furnish to the United States at the United
States' request, a log of (a) all such documents and documents for
which Defendant claims protection under the attorney-client
privilege or the attorney work product doctrine, and (b) all
potential and actual violations, even if no documentary evidence
regarding the violations exist;
2. within thirty days of Management or the Antitrust Compliance
Officer learning of any such violation or potential violation of any
of the terms and conditions contained in this Final Judgment, file
with the United States a statement describing any violation or
potential violation of any of the terms and conditions contained in
this Final Judgment, which shall include a description of any
Communications constituting the violation or potential violation,
including the date and place of the Communication, the Persons
involved, and the subject matter of the Communication;
3. establish a whistleblower protection policy, which provides
that any employee may disclose, without reprisal for such
disclosure, to the Antitrust Compliance Officer information
concerning any violation or potential violation by the Defendant of
this Final Judgment or U.S. antitrust laws;
4. have its CEO, General Counsel or Chief Legal Officer certify
in writing to the United States annually on the anniversary date of
the entry of this Final Judgment that Defendant has complied with
the provisions of this Final Judgment;
5. maintain and produce to the United States upon request: (i) a
list identifying all employees having received the annual antitrust
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii)
copies of all materials distributed as part of the annual antitrust
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all
materials requested to be produced under this Paragraph VI(D)(5) for
which Defendant claims is protected under the attorney-client
privilege or the attorney work-product doctrine, Defendant shall
furnish to the United States a privilege log; and
6. instruct each Sales Representative Firm Manager that the
Sales Representative Firm shall not Communicate any of Defendant's
Competitively Sensitive Information in a way that would violate
Sections IV and V of this Final Judgment if the Sales Representative
Firm were included in the definition of ``Defendant'' in Paragraph
II(F), in a form and manner to be proposed by Defendant and approved
by the United States in its sole discretion, maintained and produced
to the United States upon request.
E. For the avoidance of doubt, the term ``potential violation''
as used in Paragraph VI(D) does not include the discussion of future
conduct.
F. If Defendant acquires a Station after entry of this Final
Judgment, this Section VI will not apply to that acquired Station or
the employees of that acquired Station until 120 days after closing
of the acquisition of that acquired Station.
VII. DEFENDANT'S COOPERATION
A. Defendant shall cooperate fully and truthfully with the
United States in any investigation or litigation examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate, or any Sales Representative Firm Communicated
Competitively Sensitive Information with or among Defendant or any
other Station or any Sales Representative Firm in violation of
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
Defendant shall use its best efforts to ensure that all current and
former officers, directors, employees, and agents also fully and
promptly cooperate with the United States. The full, truthful, and
continuing cooperation of Defendant shall include, but not be
limited to:
1. providing sworn testimony, that is not protected by the
attorney-client privilege or the attorney work product doctrine, to
the United States regarding the Communicating of Competitively
Sensitive Information or any agreement with any other Station it
does not own or such other Station's Sales Representative Firm to
Communicate Competitively Sensitive Information while an employee of
the Defendant;
2. producing, upon request of the United States, all documents,
data, and other materials, wherever located, to the extent not
protected under the attorney-client privilege or the attorney work-
product doctrine, in the possession, custody, or control of
Defendant, that relate to the Communication of Competitively
Sensitive Information or any agreement with any other Station or
such other Station's Sales Representative Firm to Communicate
Competitively Sensitive Information, and a log of documents
protected by the attorney-client privilege or the attorney work
product doctrine;
3. making available for interview any officers, directors,
employees, and agents of Defendant if so requested on reasonable
notice by the United States; and
4. testifying at trial and other judicial proceedings fully,
truthfully, and under oath, when called upon to do so by the United
States;
5. provided however, that the obligations of Defendant to
cooperate fully with the United States as described in this Section
VII shall cease upon the conclusion of all of the United States'
investigations and the United States' litigations examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate or such other Station's Sales Representative Firm
Communicated Competitively Sensitive Information or with or among
Defendant or any other Station or any Sales Representative Firm in
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C.
Sec. 1, including exhaustion of all appeals or expiration of time
for all appeals of any Court ruling in each such matter, at which
point the United States will provide written notice to Defendant
that its obligations under this Section VII have expired.
B. Defendant is obligated to impose a litigation hold until the
United States provides written notice to the Defendant that its
obligations under this Section VII have expired. This Paragraph
VII(B) does not apply to documents created after entry of this Final
Judgment.
C. Subject to the full, truthful, and continuing cooperation of
Defendant, as defined in Paragraph VII(A), the United States will
not bring any further civil action or any criminal charges against
Defendant related to any Communication of Competitively Sensitive
Information or any agreement to Communicate Competitively Sensitive
Information with any other Station it does not own or operate or
such other Station's Sales Representative Firm when that agreement:
1. was Communicated, entered into and terminated on or before
the date of the filing of the Complaint in this action (or in the
case
[[Page 62986]]
of a Station that is acquired by Defendant after entry of this Final
Judgment, was Communicated or entered into before the acquisition
and terminated within 120 days after the closing of the
acquisition); and
2. does not constitute or include an agreement to fix prices or
divide markets.
D. The United States' agreement set forth in Paragraph VII(C)
does not apply to any acts of perjury or subornation of perjury (18
U.S.C. Sec. Sec. 1621-22), making a false statement or declaration
(18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec.
401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.)
by the Defendant or its officers, directors, and employees. The
United States' agreement set forth in Paragraph VII(C) does not
release any claims against any Sales Representative Firm.
VIII. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with
this Final Judgment or of any related orders, or of determining
whether the Final Judgment should be modified, and subject to any
legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice,
including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative
of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to Defendant, be permitted:
1. to access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide electronic or hard copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control
of Defendant, relating to any matters that are the subject of this
Final Judgment, not protected by the attorney-client privilege or
the attorney work product doctrine; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall be
subject to the reasonable convenience of the interviewee and without
restraint or interference by Defendant; and
3. to obtain from Defendant written reports or responses to
written interrogatories, of information not protected by the
attorney-client privilege or attorney work product doctrine, under
oath if requested, relating to any matters that are the subject of
this Final Judgment as may be requested.
B. No information or documents obtained by the means provided in
this Section VIII shall be divulged by the United States to any
Person other than an authorized representative of the executive
branch of the United States, except in the course of legal
proceedings to which the United States is a party (including grand
jury proceedings), or for the purpose of securing compliance with
this Final Judgment, or for law enforcement purposes, or as
otherwise required by law.
C. If at the time information or documents are furnished by
Defendant to the United States, Defendant represents and identifies
in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure, and Defendant marks each
pertinent page of such material, ``Subject to claim of protection
under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,''
then the United States shall give Defendant ten calendar days'
notice prior to divulging such material in any legal proceeding
(other than a grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce
the provisions of this Final Judgment, including its right to seek
an order of contempt from this Court. Defendant agrees that in any
civil contempt action, any motion to show cause, or any similar
civil action brought by the United States regarding an alleged
violation of this Final Judgment, the United States may establish a
violation of the decree and the appropriateness of any remedy
therefor by a preponderance of the evidence, and Defendant waives
any argument that a different standard of proof should apply.
B. The Final Judgment should be interpreted to give full effect
to the procompetitive purposes of the antitrust laws and to restore
all competition the United States alleged was harmed by the
challenged conduct. Defendant agrees that it may be held in contempt
of, and that the Court may enforce, any provision of this Final
Judgment that, as interpreted by the Court in light of these
procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of this Final Judgment should not be
construed against either party as the drafter.
C. In any enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this
Final Judgment against Defendant, whether litigated or resolved
prior to litigation, Defendant agrees to reimburse the United States
for the fees and expenses of its attorneys, as well as any other
costs including experts' fees, incurred in connection with that
enforcement effort, including in the investigation of the potential
violation.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire seven years from the date of its entry, except that after
five years from the date of its entry, this Final Judgment may be
terminated upon notice by the United States to the Court and
Defendant that the continuation of the Final Judgment no longer is
necessary or in the public interest.
XII. NOTICE
For purposes of this Final Judgment, any notice or other
communication required to be provided to the United States shall be
sent to the person at the address set forth below (or such other
addresses as the United States may specify in writing to Defendant):
Chief, Media, Entertainment, and Professional Services Section, U.S.
Department of Justice, Antitrust Division, 450 Fifth Street NW,
Suite 4000, Washington, D.C. 20530.
XIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The
parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and response to comments filed with the Court, entry of
this Final Judgment is in the public interest.
IT IS SO ORDERED by the Court, this __ day of __, 201__.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
-----------------------------------------------------------------------
United States District Judge
Exhibit 1
[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]
Re: Prohibitions Against Sharing of Competitively Sensitive
Information
Dear [XX]:
I provide you this notice regarding a judgment recently entered
by a federal judge in Washington, D.C. prohibiting the sharing of
certain information with other broadcast television station(s).
The judgment applies to our company and all of its employees,
including you, so it is important that you understand the
obligations it imposes on us. [CEO Name] has asked me to let each of
you know that [s/he] expects you to take these obligations seriously
and abide by them.
The judgment prohibits us from sharing or receiving, directly or
indirectly (including through our national sales representative
firm), competitively sensitive information with or from any
employee, agent, or representative of another broadcast television
station in the same DMA it does not own or operate. Competitively
sensitive information means any non-public information regarding the
sale of spot advertising on broadcast television stations, including
information relating to any pricing or pricing strategies, pacing,
holding capacity, revenues, or market shares. There are limited
exceptions to this restriction, which are listed in the judgment.
The company will provide briefing on the legitimate or illegitimate
exchange of information. You must consult with me if
[[Page 62987]]
you have any questions on whether a particular circumstance is
subject to an exception under the judgment.
A copy of the judgment is attached. Please read it carefully and
familiarize yourself with its terms. The judgment, rather than the
above description, is controlling. If you have any questions about
the judgment or how it affects your sale of spot advertising, please
contact me as soon as possible.
Please sign and return the attached Employee Certification to
[Defendant's Antitrust Compliance Officer] within thirty days of
your receipt of this letter. Thank you for your cooperation.
Sincerely,
[Defendant's Antitrust Compliance Officer]
Employee Certification
I, __ [name], __ [position] at __ [station or location] do hereby
certify that I (i) have read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not aware of any violation
of the Final Judgment that has not been reported to [Defendant]; and
(iii) understand that my failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court.
-----------------------------------------------------------------------
Name:
Date:
Exhibit 2
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
ACKNOWLEDGEMENT OF APPLICABILITY
The undersigned acknowledges that [Full Buyer Name], including
its successors and assigns, and its subsidiaries, divisions, and
broadcast television stations, and their directors, officers, and
employees (``Acquirer''), following consummation of the Acquirer's
acquisition of [insert names of station or stations acquired] (each,
an ``Acquired Station''), is bound by the Final Judgment entered by
this Court on [date] (``Final Judgment''), as if the Acquirer were a
Defendant under the Final Judgment, as follows:
13. The Acquirer shall be bound in full by all Sections of the
Consent Decree not specifically discussed below.
14. As to Sections IV, V, and VII of the Final Judgment, the
Acquirer is bound to the Final Judgment only as to (i) each Acquired
Station, each Acquired Station's successors and assigns, and each
Acquired Station's subsidiaries and divisions, and each Acquired
Station's directors, officers, and employees, (ii) Acquirer's
officers and directors only with respect to any responsibilities or
actions regarding any Acquired Stations, and (iii) employees with
management or supervisory responsibilities for Acquirer's business
or operations related to the sale of spot advertising on any
Acquired Station, only with respect to those responsibilities.
15. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D),
VI(E), and VIII of the Final Judgment, the Acquirer is bound to the
Final Judgment only as to (i) each Acquired Station, each Acquired
Station's successors and assigns, and each Acquired Station's
subsidiaries and divisions, and each Acquired Station's directors,
officers, and employees, (ii) Acquirer's officers and directors, and
(iii) employees with management or supervisory responsibilities for
Acquirer's business or operations related to the sale of spot
advertising on any Acquired Station.
16. The release contained in Sections VII(C) and (D) applies to
the Acquirer, but only to civil actions or criminal charges arising
from actions taken by any Acquired Station.
17. The Acquirer shall not be bound by Sections VI(C)(1),
VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all.
18. Section VI(A) applies to the Acquirer, but is modified to
make the initial period for appointing an Antitrust Compliance
Officer in the first sentence 120 days from consummation of the
Acquirer's acquisition of the Acquired Station or Acquired Stations.
This Acknowledgement of Applicability may be voided by a joint
written agreement between the United States and the Acquirer.
Dated: [ ]
Respectfully submitted,
/s/--------------------------------------------------------------------
[Counsel for Acquirer]
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al. Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its
Complaint on November __, 2018, alleging that Defendant Dreamcatcher
Broadcasting, LLC, among others, violated Section 1 of the Sherman
Act, 15 U.S.C. Sec. 1, the United States and Defendant, by their
respective attorneys, have consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law;
AND WHEREAS, this Final Judgment does not constitute any
evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, the United States and Defendant agree to be bound
by the provisions of this Final Judgment pending its approval by
this Court;
AND WHEREAS, the Defendant agrees to undertake certain actions
and to refrain from engaging in certain forms of information sharing
with its competitors;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter and each of
the parties to this action. The allegations in the Complaint arise
under Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
See 28 U.S.C. Sec. 1331.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Advertiser'' means an advertiser, an advertiser's buying
agent, or an advertiser's representative.
B. ``Agreement'' means any agreement, understanding, pact,
contract, or arrangement, formal or informal, oral or written,
between two or more Persons.
C. ``Communicate,'' ``Communicating,'' and ``Communication(s)''
means to provide, send, discuss, circulate, exchange, request, or
solicit information, whether directly or indirectly, and regardless
of the means by which it is accomplished, including orally or by
written means of any kind, such as electronic communications, e-
mails, facsimiles, telephone communications, voicemails, text
messages, audio recordings, meetings, interviews, correspondence,
exchange of written or recorded information, or face-to-face
meetings.
D. ``Competitively Sensitive Information'' means any of the
following information, less than eighteen months old, of Defendant
or any broadcast television station regarding the sale of spot
advertising on broadcast television stations: Non-Public Information
relating to pricing or pricing strategies, pacing, holding capacity,
revenues, or market shares. Reports containing only aggregated
market-level or national data are not Competitively Sensitive
Information, but reports (including by paid subscription) that are
customized or confidential to a particular Station or broadcast
television station group are Competitively Sensitive Information.
E. ``Cooperative Agreement'' means (1) joint sales agreements,
joint operating agreements, local marketing agreements, news share
agreements, or shared services agreements, or (2) any agreement
through which a Person exercises control over any broadcast
television station not owned by the Person.
F. ``Defendant'' means Dreamcatcher Broadcasting, LLC, a
Delaware corporation with its headquarters in Santa Monica,
California, its successors and assigns, and its subsidiaries,
divisions, and Stations, and their directors, officers, and
employees.
G. ``DMA'' means Designated Market Area as defined by A.C.
Nielsen Company and used by the Investing in Television BIA Market
Report 2018.
H. ``Management'' means all directors and officers of Defendant,
or any other employee with management or supervisory
responsibilities for Defendant's business or operations related to
the sale of spot advertising on any Station.
I. ``Non-Public Information'' means information that is not
available from public sources or generally available to the public.
Measurement or quantification of a Station's future holding capacity
is Non-Public Information, but measurement or quantification of a
Station's past holding capacity is not Non-Public Information. For
the avoidance of doubt, the fact that information is available by
paid subscription does not on its own render the information public.
[[Page 62988]]
J. ``Person'' means any natural person, corporation, company,
partnership, joint venture, firm, association, proprietorship,
agency, board, authority, commission, office, or other business or
legal entity, whether private or governmental.
K. ``Sales Representative Firm'' means any organization,
including without limitation Katz Media Group, Inc. and Cox Reps,
Inc., and their respective subsidiaries and divisions, that
represents a Station or its owner in the sale of spot advertising.
L. ``Sales Representative Firm Manager'' means, for each of
Defendant's Sales Representative Firms, the employee of the Sales
Representative Firm with primary responsibility for the relationship
with Defendant.
M. ``Sales Staff'' means Defendant's employees with
responsibility for the sale of spot advertising on any Station.
N. ``Station'' means any broadcast television station, its
successors and assigns, and its subsidiaries, divisions, groups, and
its owner or operator and its directors, officers, managers, and
employees, unless a Station owns, is owned by, or is under common
ownership with a Sales Representative Firm, in which case that Sales
Representative Firm will not be considered a Station.
III. APPLICABILITY
This Final Judgment applies to Defendant, other Persons in
active concert or participation with Defendant who receive actual
notice of this Final Judgment by personal service or otherwise, and
any Person that signs an Acknowledgment of Applicability, attached
as Exhibit 2, to the extent set forth therein, as a condition of the
purchase of a Station owned by Defendant as of October 1, 2018. This
Final Judgment applies to Defendant's actions performed under any
Cooperative Agreement, even if those actions are taken on behalf of
a third party. This Final Judgment is fully enforceable, including
by penalty of contempt, against all of the foregoing.
IV. PROHIBITED CONDUCT
A. Defendant's Management and Sales Staff shall not, directly or
indirectly:
1. Communicate Competitively Sensitive Information to any
Station in the same DMA it does not own or operate;
2. Knowingly use Competitively Sensitive Information from or
regarding any Station in the same DMA it does not own or operate;
3. Encourage or facilitate the Communication of Competitively
Sensitive Information to or from any Station in the same DMA it does
not own or operate; or
4. Attempt to enter into, enter into, maintain, or enforce any
agreement to Communicate Competitively Sensitive Information with
any Station in the same DMA it does not own or operate.
B. The prohibitions under Paragraph IV(A) apply to Defendant's
Communicating or agreeing to Communicate through a Sales
Representative Firm or a third-party agent at Defendant's
instruction or request.
C. Defendant shall not sell any Station owned by the Defendant
as of October 1, 2018 to any Person unless that Person has first
executed the Acknowledgment of Applicability, attached as Exhibit 2.
Defendant shall submit any Acknowledgement of Applicability to the
United States within 15 days of consummating the sale of such
Station. The United States, in its sole discretion, may waive the
prohibition in this Paragraph IV(C) on a Station-by-Station basis.
Alternatively, the United States and the Person signing the
Acknowledgement of Applicability may agree to void the
Acknowledgement of Applicability at any time. The first sentence of
this paragraph shall not apply to the sale of any Station to a
Person already bound to a final judgment entered by a court
regarding the Communication of Competitively Sensitive Information.
V. CONDUCT NOT PROHIBITED
A. Nothing in Section IV shall prohibit Defendant from
Communicating, using, or encouraging or facilitating the
Communication of, Competitively Sensitive Information with an actual
or prospective Advertiser, except that, if the Advertiser is another
Station, Defendant's Communicating, using, or encouraging or
facilitating the Communication of, Competitively Sensitive
Information is excluded from the terms of Section IV only insofar as
is reasonably necessary to negotiate the sale of spot advertising on
broadcast television stations. For the avoidance of doubt, Defendant
is not prohibited from internally using Competitively Sensitive
Information received from an Advertiser that is a Station under the
preceding sentence, but Defendant is prohibited from Communicating
that Competitively Sensitive Information to a Station in the same
DMA that it does not own or operate.
B. Nothing in Section IV shall prohibit Defendant from, after
securing advice of counsel and in consultation with the Antitrust
Compliance Officer, Communicating, using, encouraging or
facilitating the Communication of, or attempting to enter into,
entering into, maintaining, or enforcing any agreement to
Communicate Competitively Sensitive Information with any Station
when such Communication or use is (a) for the purpose of evaluating
or effectuating a bona fide acquisition, disposition, or exchange of
Stations or related assets, or (b) reasonably necessary for
achieving the efficiencies of any other legitimate competitor
collaboration. With respect to any such agreement:
1. For all agreements under Part V(B)(a) with any other Station
to Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment, Defendant shall maintain documents
sufficient to show:
i. the specific transaction or proposed transaction to which the
sharing of Competitively Sensitive Information relates;
ii. the employees, identified with reasonable specificity, who
are involved in the sharing of Competitively Sensitive Information;
and
iii. the termination date or event of the sharing of
Competitively Sensitive Information.
2. All agreements under Part V(B)(b) with any other Station to
Communicate Competitively Sensitive Information that Defendant
enters into, renews, or affirmatively extends after the date of
entry of this Final Judgment shall be in writing, and shall:
i. identify and describe, with specificity, the collaboration to
which it is ancillary;
ii. be narrowly tailored to permit the Communication of
Competitively Sensitive Information only when reasonably necessary
and only to the employees reasonably necessary to effectuate the
collaboration;
iii. identify with reasonable specificity the Competitively
Sensitive Information Communicated pursuant to the agreement and
identify the employees to receive the Competitively Sensitive
Information;
iv. contain a specific termination date or event; and
v. be signed by all parties to the agreement, including any
modifications to the agreement.
3. For Communications under Part V(B)(a) above, Defendant shall
maintain copies of all materials required under Paragraph V(B)(1)
for five years or the duration of the Final Judgment, whichever is
shorter, following entry into any agreement to Communicate or
receive Competitively Sensitive Information, and Defendant shall
make such documents available to the United States upon request, if
such request is made during the preservation period.
4. For Communications under Part V(B)(b) above, Defendant shall
furnish a copy of all materials required under Paragraph V(B)(2) to
the United States within thirty days of the entry, renewal, or
extension of the agreement.
5. For purposes of this Section V(B) only, a Joint Sales
Agreement, Local Marketing Agreement, or similar agreement pursuant
to which the Defendant Communicates, uses, encourages or facilitates
the Communication of, or attempts to enter into, enters into,
maintains, or enforces any agreement to Communicate Competitively
Sensitive Information related solely to the sale of spot advertising
for which Defendant is responsible on a Station, shall be considered
a ``legitimate competitor collaboration'' under Part V(B)(b).
C. Nothing in Section IV shall prohibit Defendant from engaging
in conduct in accordance with the doctrine established in Eastern
Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127 (1961), United Mine Workers v. Pennington, 381 U.S. 657
(1965), and their progeny.
D. Nothing in Section IV prohibits Defendant from (1)
Communicating, encouraging or facilitating the Communication of, or
attempting to enter into, entering into, maintaining, or enforcing
any agreement to Communicate Competitively Sensitive Information for
the purpose of aggregation if (a) Competitively Sensitive
Information is sent to or received from, and the aggregation is
managed by, a third party not owned or operated by any Station; (b)
the information disseminated by the aggregator is limited to
historical total broadcast television station revenue or other
geographic or characteristic categorization (e.g., national, local,
or political sales
[[Page 62989]]
revenue); and (c) any information disseminated is sufficiently
aggregated such that it would not allow a recipient to identify,
deduce, or estimate the prices or pacing of any individual broadcast
television station not owned or operated by that recipient; or (2)
using information that meets the requirements of Parts V(D)(1)(a)-
(c).
VI. REQUIRED CONDUCT
A. Within ten days of entry of this Final Judgment, Defendant
shall appoint an Antitrust Compliance Officer who is an internal
employee or Officer of the Defendant, and identify to the United
States the Antitrust Compliance Officer's name, business address,
telephone number, and email address. Within forty-five days of a
vacancy in the Antitrust Compliance Officer position, Defendant
shall appoint a replacement, and shall identify to the United States
the Antitrust Compliance Officer's name, business address, telephone
number, and email address. Defendant's initial or replacement
appointment of an Antitrust Compliance Officer is subject to the
approval of the United States, in its sole discretion.
B. The Antitrust Compliance Officer shall have, or shall retain
outside counsel who has, the following minimum qualifications:
1. be an active member in good standing of the bar in any U.S.
jurisdiction; and
2. have at least five years' experience in legal practice,
including experience with antitrust matters, unless finding an
Antitrust Compliance Officer or outside counsel meeting this
experience requirement is a hardship on or is not reasonably
available to the Defendant, under which circumstances the Defendant
may select an Antitrust Compliance Officer or shall retain outside
counsel who has at least five years' experience in legal practice,
including experience with regulatory or compliance matters.
C. The Antitrust Compliance Officer shall, directly or through
the employees or counsel working at the Antitrust Compliance
Officer's responsibility and direction:
1. within fourteen days of entry of the Final Judgment, furnish
to all of Defendant's Management and Sales Staff and Sales
Representative Firm Managers a copy of this Final Judgment, the
Competitive Impact Statement filed by the United States with the
Court, and a cover letter in a form attached as Exhibit 1;
2. within fourteen days of entry of the Final Judgment, in a
manner to be devised by Defendant and approved by the United States,
provide Defendant's Management and Sales Staff reasonable notice of
the meaning and requirements of this Final Judgment;
3. annually brief Defendant's Management and Sales Staff on the
meaning and requirements of this Final Judgment and the U.S.
antitrust laws;
4. brief any person who succeeds a person in any position
identified in Paragraph VI(C)(3), within sixty days of such
succession;
5. obtain from each person designated in Paragraph VI(C)(3) or
VI(C)(4), within thirty days of that person's receipt of the Final
Judgment, a certification that the person (i) has read and
understands and agrees to abide by the terms of this Final Judgment;
(ii) is not aware of any violation of the Final Judgment that has
not been reported to Defendant; and (iii) understands that failure
to comply with this Final Judgment may result in an enforcement
action for civil or criminal contempt of court;
6. annually communicate to Defendant's Management and Sales
Staff that they may disclose to the Antitrust Compliance Officer,
without reprisal for such disclosure, information concerning any
violation or potential violation of this Final Judgment or the U.S.
antitrust laws by Defendant;
7. within thirty days of the latest filing of the Complaint,
Proposed Final Judgment, or Competitive Impact Statement in this
action, Defendant shall provide notice, in each DMA in which
Defendant owns or operates a Station, to (i) every full power
Station in that DMA that sells broadcast television spot advertising
that Defendant does not own or operate and (ii) any Sales
Representative Firm selling advertising in that DMA on behalf of
Defendant, of the Complaint, Proposed Final Judgment, and
Competitive Impact Statement in a form and manner to be proposed by
Defendant and approved by the United States in its sole discretion.
Defendant shall provide the United States with its proposal,
including the list of recipients, within ten days of the filing of
the Complaint; and
8. maintain for five years or until expiration of the Final
Judgement, whichever is shorter, a copy of all materials required to
be issued under Paragraph VI(C), and furnish them to the United
States within ten days if requested to do so, except documents
protected under the attorney-client privilege or the attorney work-
product doctrine. For all materials required to be furnished under
Paragraph VI(C) which Defendant claims are protected under the
attorney-client privilege or the attorney work-product doctrine,
Defendant shall furnish to the United States a privilege log.
D. Defendant shall:
1. upon Management or the Antitrust Compliance Officer learning
of any violation or potential violation of any of the terms and
conditions contained in this Final Judgment, (i) promptly take
appropriate action to investigate, and in the event of a violation,
terminate or modify the activity so as to comply with this Final
Judgment, (ii) maintain all documents related to any violation or
potential violation of this Final Judgment for a period of five
years or the duration of this Final Judgement, whichever is shorter,
and (iii) maintain, and furnish to the United States at the United
States' request, a log of (a) all such documents and documents for
which Defendant claims protection under the attorney-client
privilege or the attorney work product doctrine, and (b) all
potential and actual violations, even if no documentary evidence
regarding the violations exist;
2. within thirty days of Management or the Antitrust Compliance
Officer learning of any such violation or potential violation of any
of the terms and conditions contained in this Final Judgment, file
with the United States a statement describing any violation or
potential violation of any of the terms and conditions contained in
this Final Judgment, which shall include a description of any
Communications constituting the violation or potential violation,
including the date and place of the Communication, the Persons
involved, and the subject matter of the Communication;
3. establish a whistleblower protection policy, which provides
that any employee may disclose, without reprisal for such
disclosure, to the Antitrust Compliance Officer information
concerning any violation or potential violation by the Defendant of
this Final Judgment or U.S. antitrust laws;
4. have its CEO, General Counsel or Chief Legal Officer certify
in writing to the United States annually on the anniversary date of
the entry of this Final Judgment that Defendant has complied with
the provisions of this Final Judgment;
5. maintain and produce to the United States upon request: (i) a
list identifying all employees having received the annual antitrust
briefing required under Paragraphs VI(C)(3) and VI(C)(4); and (ii)
copies of all materials distributed as part of the annual antitrust
briefing required under Paragraphs VI(C)(3) and V(C)(4). For all
materials requested to be produced under this Paragraph VI(D)(5) for
which Defendant claims is protected under the attorney-client
privilege or the attorney work-product doctrine, Defendant shall
furnish to the United States a privilege log; and
6. instruct each Sales Representative Firm Manager that the
Sales Representative Firm shall not Communicate any of Defendant's
Competitively Sensitive Information in a way that would violate
Sections IV and V of this Final Judgment if the Sales Representative
Firm were included in the definition of ``Defendant'' in Paragraph
II(F), in a form and manner to be proposed by Defendant and approved
by the United States in its sole discretion, maintained and produced
to the United States upon request.
E. For the avoidance of doubt, the term ``potential violation''
as used in Paragraph VI(D) does not include the discussion of future
conduct.
F. If Defendant acquires a Station after entry of this Final
Judgment, this Section VI will not apply to that acquired Station or
the employees of that acquired Station until 120 days after closing
of the acquisition of that acquired Station.
VII. DEFENDANT'S COOPERATION
A. Defendant shall cooperate fully and truthfully with the
United States in any investigation or litigation examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate, or any Sales Representative Firm Communicated
Competitively Sensitive Information with or among Defendant or any
other Station or any Sales Representative Firm in violation of
Section 1 of the Sherman Act, as amended, 15 U.S.C. Sec. 1.
Defendant shall use its best efforts to ensure that all current and
former officers, directors, employees, and agents also fully and
promptly cooperate with the United States. The full, truthful, and
continuing cooperation of Defendant shall include, but not be
limited to:
1. providing sworn testimony, that is not protected by the
attorney-client privilege or
[[Page 62990]]
the attorney work product doctrine, to the United States regarding
the Communicating of Competitively Sensitive Information or any
agreement with any other Station it does not own or such other
Station's Sales Representative Firm to Communicate Competitively
Sensitive Information while an employee of the Defendant;
2. producing, upon request of the United States, all documents,
data, and other materials, wherever located, to the extent not
protected under the attorney-client privilege or the attorney work-
product doctrine, in the possession, custody, or control of
Defendant, that relate to the Communication of Competitively
Sensitive Information or any agreement with any other Station or
such other Station's Sales Representative Firm to Communicate
Competitively Sensitive Information, and a log of documents
protected by the attorney-client privilege or the attorney work
product doctrine;
3. making available for interview any officers, directors,
employees, and agents of Defendant if so requested on reasonable
notice by the United States; and
4. testifying at trial and other judicial proceedings fully,
truthfully, and under oath, when called upon to do so by the United
States;
5. provided however, that the obligations of Defendant to
cooperate fully with the United States as described in this Section
VII shall cease upon the conclusion of all of the United States'
investigations and the United States' litigations examining whether
or alleging that Defendant, any Station that Defendant does not own
or operate or such other Station's Sales Representative Firm
Communicated Competitively Sensitive Information or with or among
Defendant or any other Station or any Sales Representative Firm in
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C.
Sec. 1, including exhaustion of all appeals or expiration of time
for all appeals of any Court ruling in each such matter, at which
point the United States will provide written notice to Defendant
that its obligations under this Section VII have expired.
B. Defendant is obligated to impose a litigation hold until the
United States provides written notice to the Defendant that its
obligations under this Section VII have expired. This Paragraph
VII(B) does not apply to documents created after entry of this Final
Judgment.
C. Subject to the full, truthful, and continuing cooperation of
Defendant, as defined in Paragraph VII(A), the United States will
not bring any further civil action or any criminal charges against
Defendant related to any Communication of Competitively Sensitive
Information or any agreement to Communicate Competitively Sensitive
Information with any other Station it does not own or operate or
such other Station's Sales Representative Firm when that agreement:
1. was Communicated, entered into and terminated on or before
the date of the filing of the Complaint in this action (or in the
case of a Station that is acquired by Defendant after entry of this
Final Judgment, was Communicated or entered into before the
acquisition and terminated within 120 days after the closing of the
acquisition); and
2. does not constitute or include an agreement to fix prices or
divide markets.
D. The United States' agreement set forth in Paragraph VII(C)
does not apply to any acts of perjury or subornation of perjury (18
U.S.C. Sec. Sec. 1621-22), making a false statement or declaration
(18 U.S.C. Sec. Sec. 1001, 1623), contempt (18 U.S.C. Sec. Sec.
401-402), or obstruction of justice (18 U.S.C. Sec. 1503, et seq.)
by the Defendant or its officers, directors, and employees. The
United States' agreement set forth in Paragraph VII(C) does not
release any claims against any Sales Representative Firm.
VIII. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with
this Final Judgment or of any related orders, or of determining
whether the Final Judgment should be modified, and subject to any
legally recognized privilege, from time to time authorized
representatives of the United States Department of Justice,
including consultants and other persons retained by the United
States, shall, upon written request of an authorized representative
of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to Defendant, be permitted:
1. to access during Defendant's office hours to inspect and
copy, or at the option of the United States, to require Defendant to
provide electronic or hard copies of all books, ledgers, accounts,
records, data, and documents in the possession, custody, or control
of Defendant, relating to any matters that are the subject of this
Final Judgment, not protected by the attorney-client privilege or
the attorney work product doctrine; and
2. to interview, either informally or on the record, Defendant's
officers, employees, or agents, who may have their individual
counsel present, regarding such matters. The interviews shall be
subject to the reasonable convenience of the interviewee and without
restraint or interference by Defendant; and
3. to obtain from Defendant written reports or responses to
written interrogatories, of information not protected by the
attorney-client privilege or attorney work product doctrine, under
oath if requested, relating to any matters that are the subject of
this Final Judgment as may be requested.
B. No information or documents obtained by the means provided in
this Section VIII shall be divulged by the United States to any
Person other than an authorized representative of the executive
branch of the United States, except in the course of legal
proceedings to which the United States is a party (including grand
jury proceedings), or for the purpose of securing compliance with
this Final Judgment, or for law enforcement purposes, or as
otherwise required by law.
C. If at the time information or documents are furnished by
Defendant to the United States, Defendant represents and identifies
in writing the material in any such information or documents to
which a claim of protection may be asserted under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure, and Defendant marks each
pertinent page of such material, ``Subject to claim of protection
under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,''
then the United States shall give Defendant ten calendar days'
notice prior to divulging such material in any legal proceeding
(other than a grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
Final Judgment to apply to this Court at any time for further orders
and directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce
the provisions of this Final Judgment, including its right to seek
an order of contempt from this Court. Defendant agrees that in any
civil contempt action, any motion to show cause, or any similar
civil action brought by the United States regarding an alleged
violation of this Final Judgment, the United States may establish a
violation of the decree and the appropriateness of any remedy
therefor by a preponderance of the evidence, and Defendant waives
any argument that a different standard of proof should apply.
B. The Final Judgment should be interpreted to give full effect
to the procompetitive purposes of the antitrust laws and to restore
all competition the United States alleged was harmed by the
challenged conduct. Defendant agrees that it may be held in contempt
of, and that the Court may enforce, any provision of this Final
Judgment that, as interpreted by the Court in light of these
procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of this Final Judgment should not be
construed against either party as the drafter.
C. In any enforcement proceeding in which the Court finds that
Defendant has violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this
Final Judgment against Defendant, whether litigated or resolved
prior to litigation, Defendant agrees to reimburse the United States
for the fees and expenses of its attorneys, as well as any other
costs including experts' fees, incurred in connection with that
enforcement effort, including in the investigation of the potential
violation.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire seven years from the date of its entry, except that after
five years from the date of its entry, this Final Judgment may be
terminated upon notice by the United States to the Court and
Defendant that the continuation of the Final Judgment no longer is
necessary or in the public interest.
XII. NOTICE
For purposes of this Final Judgment, any notice or other
communication required to be
[[Page 62991]]
provided to the United States shall be sent to the person at the
address set forth below (or such other addresses as the United
States may specify in writing to Defendant): Chief, Media,
Entertainment, and Professional Services Section, U.S. Department of
Justice, Antitrust Division, 450 Fifth Street, NW, Suite 4000,
Washington, D.C. 20530.
XIII. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The
parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and response to comments filed with the Court, entry of
this Final Judgment is in the public interest.
IT IS SO ORDERED by the Court, this __ day of __, 201__.
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16
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United States District Judge
Exhibit 1
[Company Letterhead]
[Name and Address of Antitrust Compliance Officer]
Re: Prohibitions Against Sharing of Competitively Sensitive
Information
Dear [XX]:
I provide you this notice regarding a judgment recently entered
by a federal judge in Washington, D.C. prohibiting the sharing of
certain information with other broadcast television station(s).
The judgment applies to our company and all of its employees,
including you, so it is important that you understand the
obligations it imposes on us. [CEO Name] has asked me to let each of
you know that [s/he] expects you to take these obligations seriously
and abide by them.
The judgment prohibits us from sharing or receiving, directly or
indirectly (including through our national sales representative
firm), competitively sensitive information with or from any
employee, agent, or representative of another broadcast television
station in the same DMA it does not own or operate. Competitively
sensitive information means any non-public information regarding the
sale of spot advertising on broadcast television stations, including
information relating to any pricing or pricing strategies, pacing,
holding capacity, revenues, or market shares. There are limited
exceptions to this restriction, which are listed in the judgment.
The company will provide briefing on the legitimate or illegitimate
exchange of information. You must consult with me if you have any
questions on whether a particular circumstance is subject to an
exception under the judgment.
A copy of the judgment is attached. Please read it carefully and
familiarize yourself with its terms. The judgment, rather than the
above description, is controlling. If you have any questions about
the judgment or how it affects your sale of spot advertising, please
contact me as soon as possible.
Please sign and return the attached Employee Certification to
[Defendant's Antitrust Compliance Officer] within thirty days of
your receipt of this letter. Thank you for your cooperation.
Sincerely,
[Defendant's Antitrust Compliance Officer]
Employee Certification
I, __ [name], __ [position] at __ [station or location] do hereby
certify that I (i) have read and understand, and agree to abide by,
the terms of the Final Judgment; (ii) am not aware of any violation
of the Final Judgment that has not been reported to [Defendant]; and
(iii) understand that my failure to comply with this Final Judgment
may result in an enforcement action for civil or criminal contempt
of court.
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Name:
Date:
Exhibit 2
United States District Court for the District of Columbia
United States of America; Plaintiff, v. Sinclair Broadcast
Group, Inc., et al., Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
ACKNOWLEDGEMENT OF APPLICABILITY
The undersigned acknowledges that [Full Buyer Name], including
its successors and assigns, and its subsidiaries, divisions, and
broadcast television stations, and their directors, officers, and
employees (``Acquirer''), following consummation of the Acquirer's
acquisition of [insert names of station or stations acquired] (each,
an ``Acquired Station''), is bound by the Final Judgment entered by
this Court on [date] (``Final Judgment''), as if the Acquirer were a
Defendant under the Final Judgment, as follows:
1. The Acquirer shall be bound in full by all Sections of the
Consent Decree not specifically discussed below.
2. As to Sections IV, V, and VII of the Final Judgment, the
Acquirer is bound to the Final Judgment only as to (i) each Acquired
Station, each Acquired Station's successors and assigns, and each
Acquired Station's subsidiaries and divisions, and each Acquired
Station's directors, officers, and employees, (ii) Acquirer's
officers and directors only with respect to any responsibilities or
actions regarding any Acquired Stations, and (iii) employees with
management or supervisory responsibilities for Acquirer's business
or operations related to the sale of spot advertising on any
Acquired Station, only with respect to those responsibilities.
3. As to Section VI(C)(3), VI(C)(4), VI(C)(6), VI(C)(8), VI(D),
VI(E), and VIII of the Final Judgment, the Acquirer is bound to the
Final Judgment only as to (i) each Acquired Station, each Acquired
Station's successors and assigns, and each Acquired Station's
subsidiaries and divisions, and each Acquired Station's directors,
officers, and employees, (ii) Acquirer's officers and directors, and
(iii) employees with management or supervisory responsibilities for
Acquirer's business or operations related to the sale of spot
advertising on any Acquired Station.
4. The release contained in Sections VII(C) and (D) applies to
the Acquirer, but only to civil actions or criminal charges arising
from actions taken by any Acquired Station.
5. The Acquirer shall not be bound by Sections VI(C)(1),
VI(C)(2),VI(C)(5), VI(C)(7), and VI(F) of the Final Judgment at all.
6. Section VI(A) applies to the Acquirer, but is modified to
make the initial period for appointing an Antitrust Compliance
Officer in the first sentence 120 days from consummation of the
Acquirer's acquisition of the Acquired Station or Acquired Stations.
This Acknowledgement of Applicability may be voided by a joint
written agreement between the United States and the Acquirer.
Dated: [ ]
Respectfully submitted,
/s/--------------------------------------------------------------------
[Counsel for Acquirer]
United States District Court for the District of Columbia
United States of America, Plaintiff, v. Sinclair Broadcast
Group, Inc., Raycom Media, Inc., Tribune Media Company, Meredith
Corporation, Griffin Communications, LLC, and Dreamcatcher
Broadcasting, LLC, Defendants.
Case No. 1:18-cv-2609
Judge: Tanya S. Chutkan
COMPETITIVE IMPACT STATEMENT
Plaintiff United States of America (``United States''), pursuant
to Section 2(b) of the Antitrust Procedures and Penalties Act, 15
U.S.C. Sec. 16(b)-(h) (``APPA'' or ``Tunney Act''), files this
Competitive Impact Statement relating to the proposed Final
Judgments against Defendants Sinclair Broadcast Group, Inc.
(``Sinclair''), Raycom Media, Inc. (``Raycom''), Tribune Media
Company (``Tribune''), Meredith Corporation (``Meredith''), Griffin
Communications, LLC (``Griffin''), and Dreamcatcher Broadcasting,
LLC (``Dreamcatcher'') (collectively, ``Defendants''), submitted for
entry in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
On November 13, 2018, the United States filed a civil antitrust
complaint alleging that Defendants agreed among themselves and other
broadcast television stations in many local markets to reciprocally
exchange station-specific, competitively sensitive information
regarding spot advertising revenues. The Complaint alleges
Defendants' agreements are unreasonable restraints of trade that are
unlawful under Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The
Complaint seeks injunctive relief to prevent Defendants from
exchanging competitively sensitive information with and among
competing broadcast television stations.
Along with the Complaint, the United States filed proposed Final
Judgments for each of the Defendants. The proposed Final
[[Page 62992]]
Judgments are substantively the same for all Defendants. The
proposed Final Judgments prohibit sharing of competitively sensitive
information, require Defendants to implement antitrust compliance
training programs, and impose cooperation and reporting
requirements.
The United States and Defendants have stipulated that the
proposed Final Judgments may be entered after compliance with the
APPA, unless the United States withdraws its consent. Entry of the
proposed Final Judgments would terminate this action, except that
the Court would retain jurisdiction to construe, modify, or enforce
the provisions of the proposed Final Judgments and to punish
violations thereof.
II. Description of the Events Giving Rise to the Alleged Violation
A. Industry Background
Broadcast television stations sell advertising time to
businesses that want to advertise their products to television
viewers. Broadcast television ``spot'' advertising,\1\ which
typically comprises the majority of a station's revenues, is sold
directly by the station itself or through its sales representatives
to advertisers who want to target viewers in specific geographic
areas called Designated Market Areas (``DMAs'').\2\
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\1\ Spot advertising differs from other types of television
advertising, such as network and syndicated television advertising,
which are sold by television networks and producers of syndicated
programs on a nationwide basis and broadcast in every market where
the network or syndicated program is aired.
\2\ A DMA is a geographical unit designated by the A.C. Nielsen
Company, a company that surveys television viewers and furnishes
data to aid in evaluating television audiences. There are 210 DMAs
in the United States. DMAs are widely accepted by television
stations, advertisers, and advertising agencies as the standard
geographic area to use in evaluating television audience size and
demographic composition.
---------------------------------------------------------------------------
Broadcast stations typically make their spot advertising sales
through two channels: (1) local sales, which are sales made by the
station's own local sales staff to advertisers who are usually
located within the DMA; and (2) national sales, which are sales made
either by the broadcast group's national sales staff or by a
national sales representative firm (``Sales Rep Firm'') to regional
or national advertisers.
Defendants own or operate multiple broadcast television
stations, as set forth in the following table:
------------------------------------------------------------------------
Defendant Stations DMAs
------------------------------------------------------------------------
Sinclair.......................................... 130 87
Raycom............................................ 55 43
Tribune........................................... 41 31
Meredith.......................................... 17 12
Griffin........................................... 4 2
Dreamcatcher...................................... 3 2
------------------------------------------------------------------------
Defendants, along with certain other television broadcast
station groups, compete in various configurations in multiple DMAs
across the United States. Each Defendant sells spot advertising time
to advertisers that seek to target viewers in the DMAs in which
Defendants operate. Prices are individually negotiated with
advertisers, and advertisers are able to ``play off'' the stations
against each other to obtain competitive rates.
There are two primary Sales Rep Firms in the United States
today, and each represents hundreds of television stations
throughout the country in the sale of national advertising time. It
is common for one Sales Rep Firm to represent multiple competing
stations in the same DMA. In such cases, the stations and the Sales
Rep Firms purportedly create firewalls to prevent coordination and
information sharing between the sales teams representing competing
stations.
B. The Exchanges of Competitively Sensitive Information
The Complaint alleges that Defendants and other broadcasters
have agreed in many DMAs to reciprocally exchange station-specific
revenue pacing data. Revenue pacing data compares a station's
revenues booked for a certain time period to the revenues booked for
the same point in time in the previous year, indicating how each
station is performing versus the rest of the market and providing
insight into each station's remaining spot advertising inventory for
the current period or future periods. The exchanges were systematic
and typically included non-public pacing data on national revenues,
local revenues, or both, depending on the DMA. The Complaint further
alleges that certain Defendants engaged in the exchange of other
forms of competitively sensitive information relating to spot
advertising in certain DMAs.
The Complaint alleges that the Defendants exchanged pacing
information in at least two ways. First, Defendants and other
television broadcast stations exchanged information through the
Sales Rep Firms. The information was passed both within and between
Sales Rep Firms representing competing stations, and was done with
Defendants' knowledge and frequently at Defendants' instruction.
Second, in some DMAs, Defendants and other broadcasters exchanged
pacing information directly between local station employees.
The Complaint alleges that these exchanges of pacing information
allowed stations to better understand, in real time, the
availability of inventory on competitors' stations, which is often a
key factor affecting negotiations with buyers over spot advertising
prices. The exchanges also helped stations to anticipate whether
competitors were likely to raise, maintain, or lower spot
advertising prices. Understanding competitors' pacing can help
stations gauge competitors' and advertisers' negotiation strategies,
inform their own pricing strategies, and help them resist more
effectively advertisers' attempts to obtain lower prices by playing
stations off of one another. Defendants' information exchanges
therefore distorted the normal price-setting mechanism in the spot
advertising market and harmed the competitive process within the
affected DMAs.
III. Explanation of the Proposed Final Judgments
The provisions of the proposed Final Judgments closely track the
relief sought in the Complaint and are intended to provide prompt,
certain, and effective remedies that will ensure that Defendants and
their employees and sales representatives will not impede
competition by sharing competitively sensitive information, directly
or indirectly, including through Sales Rep Firms, with their rival
broadcast television stations. The requirements and prohibitions in
the proposed Final Judgments will terminate Defendants' illegal
conduct, prevent recurrence of the same or similar conduct, ensure
that Defendants establish an antitrust compliance program, and
provide the United States with cooperation in its ongoing
investigation. The proposed Final Judgments protect competition and
consumers by putting a stop to the anticompetitive information
sharing alleged in the Complaint.
A. Prohibited Conduct
The proposed Final Judgments broadly prohibit Defendants from
sharing competitively sensitive information with rival broadcast
television stations in the same DMA.\3\ Specifically, Section IV
ensures that Defendants will not, directly or indirectly,
communicate competitively sensitive information, including pricing
or pricing strategies, pacing, holding capacity, revenues, or market
shares, to broadcast television stations in the same DMA or to those
stations' sales representatives and agents.
---------------------------------------------------------------------------
\3\ As the proposed Final Judgments for each of the Defendants
are substantively identical, references to sections throughout this
Competitive Impact Statement refer to the same section in each Final
Judgment. The only exception is Section III of the proposed Final
Judgment for Defendant Raycom, which has a provision that, in light
of the proposed acquisition of Raycom by Gray Television, Inc.
(``Gray''), clarifies that the proposed Final Judgment does not
apply to stations Gray owned that were not owned by Raycom as of
October 1, 2018.
---------------------------------------------------------------------------
The proposed Final Judgment provides that its provisions will
apply to stations owned by the settling Defendants even if
Defendants sell those stations to new buyers. In particular,
Paragraph IV(C) provides that Defendants may not sell any stations
they own as of October 1, 2018, unless the buyer has executed an
Acknowledgement that each station will continue to be bound by the
terms of the proposed Final Judgment. The United States, in its
discretion, may waive this requirement on a station-by-station
basis, or alternatively the buyer and the United States may agree to
void the Acknowledgement after the sale has been consummated.
B. Conduct Not Prohibited
Section V makes clear that the proposed Final Judgments do not
prohibit Defendants from sharing or receiving competitively
sensitive information in certain specified circumstances where the
information sharing appears unlikely to cause harm to competition.
Paragraph V(A) allows Defendants to communicate competitively
sensitive information to advertising customers or prospective
customers. Paragraph V(B) allows for the communication of
competitively sensitive information with other broadcasters (i) for
purposes of evaluating or effectuating a transaction, such
[[Page 62993]]
as the purchase or sale of a station; or (ii) when reasonably
necessary for achieving the efficiencies of a legitimate
collaboration among competitors, such as a lawful joint venture.\4\
Paragraph V(C) confirms that the proposed Final Judgments do not
prohibit petitioning conduct protected by the Noerr-Pennington
doctrine. Paragraph V(D) permits the exchange of competitively
sensitive information through certain third-party aggregation
services under the conditions listed in that paragraph, including
that the aggregated data does not permit individual stations to
identify, deduce, or estimate the prices or pacing of their
competitors.
---------------------------------------------------------------------------
\4\ Paragraph V(B)(5) states that, for purposes of Paragraph
V(B) only, certain types of Joint Sales Agreements, Local Marketing
Agreements, and similar agreements qualify as a ``legitimate
competitor collaboration'' under Paragraph V(B)(b). Paragraph
V(B)(5) was included in recognition of the fact that some
broadcasters have entered into a number of these agreements in
various DMAs. The question of whether these agreements have any
effect on competition was outside the scope of the United States'
investigation in this matter. Accordingly, Paragraph V(B)(5) should
not be read as an admission that such agreements otherwise comply
with the antitrust laws, and the United States takes no position on
that question for purposes of this proceeding.
---------------------------------------------------------------------------
C. Antitrust Compliance Obligations
Under Section VI of the proposed Final Judgments, each of the
Defendants must designate an Antitrust Compliance Officer who is
responsible for implementing training and antitrust compliance
programs and ensuring compliance with the Final Judgment. Among
other duties, the Antitrust Compliance Officer will be required to
distribute copies of the Final Judgment and ensure that training on
the Final Judgment and the antitrust laws is provided to Defendants'
management and sales staff. Section VI also requires Defendants to
establish an antitrust whistleblower policy and remedy and report
violations of the Final Judgment. Under Paragraph VI(D)(4), each
Defendant, through its CEO, General Counsel, or Chief Legal Officer,
must certify annual compliance with the Final Judgment. This
compliance program is necessary in light of the extensive history of
communications among rival stations that facilitated Defendants'
agreements.
D. Defendants' Cooperation
As outlined in Section VII, Defendants must cooperate fully and
truthfully with the United States in any investigation or litigation
relating to the sharing of competitively sensitive information in
the broadcast television industry. The required cooperation may
include providing sworn testimony, employee interviews, and/or
documents and data.
Paragraph VII(C) provides that, subject to each Defendant's
truthful and continuing cooperation as defined in Paragraphs VII(A)
and (B), the United States will not bring further civil actions or
criminal charges against that Defendant for any agreement to share
competitively sensitive information with any other station or Sales
Rep Firm when the agreement: (1) was entered into and terminated
before the date of the filing of the Complaint and (2) does not
constitute or include an agreement to fix prices or divide markets.
E. Enforcement of Final Judgment
The proposed Final Judgments contain provisions designed to
promote compliance and make the enforcement of Division consent
decrees as effective as possible. Paragraph X(A) provides that the
United States retains and reserves all rights to enforce the
provisions of the proposed Final Judgment, including its rights to
seek an order of contempt from the Court. Defendants have agreed
that in any civil contempt action, any motion to show cause, or any
similar action brought by the United States regarding an alleged
violation of the Final Judgments, the United States may establish
the violation and the appropriateness of any remedy by a
preponderance of the evidence and that the Defendants have waived
any argument that a different standard of proof should apply. This
provision aligns the standard for compliance obligations with the
standard of proof that applies to the underlying offense that the
compliance commitments address.
Paragraph X(B) provides additional clarification regarding the
interpretation of the provisions of the proposed Final Judgments.
The proposed Final Judgments were drafted to restore all competition
the United States alleged was harmed by Defendants' challenged
conduct. The Defendants agree that they will abide by the proposed
Final Judgments, and that they may be held in contempt of this Court
for failing to comply with any provision of the proposed Final
Judgments that is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face, and as
interpreted in light of this procompetitive purpose.
Paragraph X(C) further provides that, should the Court find in
an enforcement proceeding that a Defendant has violated the Final
Judgment, the United States may apply to the Court for a one-time
extension of the Final Judgment, together with such other relief as
may be appropriate. In addition, in order to compensate American
taxpayers for any costs associated with the investigation and
enforcement of violations of a proposed Final Judgment, Paragraph
X(C) provides that in any successful effort by the United States to
enforce a Final Judgment against a Defendant, whether litigated or
resolved before litigation, Defendant agrees to reimburse the United
States for any attorneys' fees, experts' fees, or costs incurred in
connection with any enforcement effort, including the investigation
of the potential violation.
Finally, Section XI of the proposed Final Judgments provides
that each Final Judgment shall expire seven years from the date of
its entry, except that after five years from the date of its entry,
the Final Judgments may be terminated upon notice by the United
States to the Court and the Defendants that the continuation of the
Final Judgments is no longer necessary or in the public interest.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. Sec. 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 attorneys' fees. Entry of the proposed Final Judgments
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. Sec. 16(a), the proposed Final Judgments have no
prima facie effect in any subsequent private lawsuit that may be
brought against Defendants.
V. Procedures Available for Modification of the Proposed Final
Judgments
The United States and Defendants have stipulated that the Court
may enter the proposed Final Judgments after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgments are in the public
interest.
The APPA provides a period of at least sixty days preceding the
effective date of the proposed Final Judgments within which any
person may submit to the United States written comments regarding
the proposed Final Judgments. Any person who wishes to comment
should do so within sixty days of the date of publication of this
Competitive Impact Statement in the Federal Register, or the last
date of publication in a newspaper of the summary of this
Competitive Impact Statement, whichever is later. All comments
received during this period will be considered by the United States
Department of Justice, which remains free to withdraw its consent to
the proposed Final Judgments at any time before the Court's entry of
judgment. The comments and the response of the United States will be
filed with the Court. In addition, comments will be posted on the
U.S. Department of Justice, Antitrust Division's website and, under
certain circumstances, published in the Federal Register.
Written comments should be submitted to: Owen M. Kendler, Chief,
Media, Entertainment, & Professional Services Section, Antitrust
Division, United States Department of Justice, 450 5th Street, N.W.,
Suite 4000, Washington, DC 20530.
Under Section IX, the proposed Final Judgments provide that the
Court retains jurisdiction over this action, and the parties may
apply to the Court for any order necessary or appropriate for the
modification, interpretation, or enforcement of the Final Judgments.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgments, seeking injunctive relief against Defendants'
conduct through a full trial on the merits. The United States is
satisfied, however, that the relief sought in the proposed Final
Judgments will terminate the anticompetitive conduct alleged in the
Complaint and more quickly restore the benefits of competition to
advertisers. Thus, the proposed Final Judgments would achieve the
relief the United States might have obtained through
[[Page 62994]]
litigation, but avoids the time, expense, and uncertainty of a full
trial on the merits.
VII. Standard of Review Under the APPA for the Proposed Final Judgments
The Clayton Act, as amended by the APPA, requires that proposed
consent judgments in antitrust cases brought by the United States be
subject to a 60-day comment period, after which the court shall
determine whether entry of the proposed Final Judgment ``is in the
public interest.'' 15 U.S.C. Sec. 16(e)(1). In making that
determination, the court, in accordance with the statute as amended
in 2004, is required to consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing 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 1
(D.D.C. 2007) (assessing public interest standard under the Tunney
Act); United States v. U.S. Airways Group, Inc., 38 F. Supp. 3d 69,
75 (D.D.C. 2014) (explaining that the ``court's inquiry is limited''
in Tunney Act settlements); United States v. InBev N.V./S.A., No.
08-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11,
2009) (noting that the court's review of a consent judgment is
limited and only inquires ``into whether the government's
determination that the proposed remedies will cure the antitrust
violations alleged in the complaint was reasonable, and whether the
mechanism to enforce the final judgment are clear and manageable'').
As the United States Court of Appeals for the District of
Columbia Circuit has held, under the APPA a court considers, among
other things, the relationship between the remedy secured and the
specific allegations in the government's complaint, whether the
decree is sufficiently clear, whether its 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) (quoting United States v. Bechtel Corp., 648 F.2d
660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62;
United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001);
InBev, 2009 U.S. Dist. LEXIS 84787, at *3. Instead:
[t]he balancing of competing social and political interests
affected by a proposed antitrust consent decree must be left, in the
first instance, to the discretion of the Attorney General. The
court's role in protecting the public interest is one of insuring
that the government has not breached its duty to the public in
consenting to the decree. The court is required to determine not
whether a particular decree is the one that will best serve society,
but whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\5\
---------------------------------------------------------------------------
\5\ See also BNS, 858 F.2d at 464 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); United States v. Gillette Co.,
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the
court is constrained to ``look at the overall picture not
hypercritically, nor with a microscope, but with an artist's
reducing glass'').
In determining whether a proposed settlement is in the public
interest, a district 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 U.S.
Airways, 38 F. Supp. 3d at 74-75 (noting that a court should not
reject the proposed remedies because it believes others are
preferable and that room must be made for the government to grant
concessions in the negotiation process for settlements); 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 government's prediction as to the effect of
proposed remedies, its perception of the market structure, and its
views of the nature of the case''). The ultimate question is 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.' '' Microsoft, 56 F.3d at 1461 (quoting United States v.
Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990)). To meet this
standard, 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.
Moreover, the court's role under the APPA is limited to
reviewing the remedy in relationship to the violations that the
United States has alleged in its complaint, and does not authorize
the court to ``construct [its] own hypothetical case and then
evaluate the decree against that case.'' Microsoft, 56 F.3d at 1459;
see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that the court
must simply determine whether there is a factual foundation for the
government's decisions such that its conclusions regarding the
proposed settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS
84787, at *20 (``the `public interest' is not to be measured by
comparing the violations alleged in the complaint against those the
court believes could have, or even should have, been alleged'').
Because the ``court's authority to review the decree depends
entirely on the government's exercising its prosecutorial discretion
by bringing a case in the first place,'' it follows that ``the court
is only authorized to review the decree itself,'' and not to
``effectively redraft the complaint'' to inquire into other matters
that the United States did not pursue. Microsoft, 56 F.3d at 1459-
60. As a court in this district confirmed in SBC Communications,
courts ``cannot look beyond the complaint in making the public
interest determination unless the complaint is drafted so narrowly
as to make a mockery of judicial power.'' SBC Commc'ns, 489 F. Supp.
2d at 15.
In its 2004 amendments,\6\ Congress made clear its intent to
preserve the practical benefits of utilizing consent decrees in
antitrust enforcement, adding the unambiguous instruction that
``[n]othing in this section shall be construed to require the court
to conduct an evidentiary hearing or to require the court to permit
anyone to intervene.'' 15 U.S.C. Sec. 16(e)(2); see also U.S.
Airways, 38 F. Supp. 3d at 76 (indicating that a court is not
required to hold an evidentiary hearing or to permit intervenors as
part of its review under the Tunney Act). This language explicitly
wrote into the statute what Congress intended when it first enacted
the Tunney Act in 1974. As Senator Tunney explained: ``[t]he court
is nowhere compelled to go to trial or to engage in extended
proceedings which might have the effect of vitiating the benefits of
prompt and less costly settlement through the consent decree
process.'' 119 Cong. Rec. 24,598 (1973) (statement of Sen. Tunney).
Rather, the procedure for the public interest determination is left
to the discretion of the court, with the recognition that the
court's ``scope of review remains sharply proscribed by precedent
and the nature of Tunney Act proceedings.'' SBC Commc'ns, 489 F.
Supp. 2d at 11. A court can make its public interest determination
based on the competitive impact statement and response to public
comments alone. U.S. Airways, 38 F. Supp. 3d at 76. See also 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''); S. Rep. No. 93-298 93d
Cong., 1st Sess., at 6 (1973) (``Where the public interest
[[Page 62995]]
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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\6\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for a court to consider and amended the
list of factors to focus on competitive considerations and to
address potentially ambiguous judgment terms. Compare 15 U.S.C.
Sec. 16(e) (2004), with 15 U.S.C. Sec. 16(e)(1) (2006); see also
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004
amendments ``effected minimal changes'' to Tunney Act review).
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VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgments.
Dated: November 13, 2018
Respectfully submitted,
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Lee F. Berger * (D.C. Bar #482435)
Trial Attorney, U.S. Department of Justice, Antitrust Division,
Media, Entertainment, and Professional Services Section, 450 Fifth
Street, N.W., Suite 4000, Washington, DC 20530, Phone: 202-598-2698,
Facsimile: 202-514-7308, Email: [email protected]
*Attorney of Record
[FR Doc. 2018-26201 Filed 12-4-18; 8:45 am]
BILLING CODE 4410-11-P