IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, STATE OF
ALABAMA, STATE OF CALIFORNIA, STATE
OF IOWA, STATE OF KANSAS, STATE OF
MINNESOTA, STATE OF NORTH DAKOTA,
and STATE OF SOUTH DAKOTA,
Plaintiffs,
v.
VERIZON COMMUNICATIONS INC., and
ALLTEL CORPORATION,
Defendants.
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No.: 1:08-cv-01878 (EGS)
Filed: 03/05/2009
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[PROPOSED] FINAL JUDGMENT
WHEREAS, plaintiffs, United States of America, State of Alabama, State of California,
State of Iowa, State of Kansas, State of Minnesota, State of North Dakota, and State of South
Dakota, filed their Complaint on October 30, 2008, plaintiffs and defendants, Verizon
Communications Inc. ("Verizon") and Alltel Corporation ("Alltel"), 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 without this Final Judgment constituting any evidence against or admission by
any party regarding any issue of fact or law;
AND WHEREAS, defendants agree to be bound by the provisions of this Final Judgment
pending its approval by the Court;
AND WHEREAS, the essence of this Final Judgment is the prompt and certain
divestiture of certain rights or assets by defendants to assure that competition is not substantially
lessened;
AND WHEREAS, plaintiffs require defendants to make certain divestitures for the
purpose of remedying the loss of competition alleged in the Complaint;
AND WHEREAS, defendants have represented to plaintiffs that the divestitures required
below can and will be made and that defendants will later raise no claim of hardship or difficulty
as grounds for asking the Court to modify any of the divestiture provisions contained below;
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 of and each of the parties to this
action. The Complaint states a claim upon which relief may be granted against defendants under
Section 7 of the Clayton Act, as amended (15 U.S.C. § 18).
II. Definitions
As used in this Final Judgment:
- "Acquirer" or "Acquirers" means the entity or entities to whom defendants divest the
Divestiture Assets.
- "Alltel" means Alltel Corporation, a subsidiary of Atlantis Holdings LLC, a
corporation organized and existing under the laws of the State of Delaware, with headquarters in
Little Rock, Arkansas, its successors and assigns, and its subsidiaries, divisions, groups,
affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and
employees.
- "CMA" means cellular market area which is used by the Federal Communications
Commission ("FCC") to define cellular license areas and which consists of Metropolitan
Statistical Areas ("MSAs") and Rural Service Areas ("RSAs").
- "Divestiture Assets" means each mobile wireless telecommunications services
business to be divested under this Final Judgment, including all types of assets, tangible and
intangible, used by defendants in the operation of the mobile wireless telecommunications
services businesses to be divested. To ensure that the divested mobile wireless
telecommunications services businesses remain viable, ongoing businesses, the term "Divestiture
Assets" shall be construed broadly to accomplish the complete divestiture, as required by this
Final Judgment, of the entire business of:
- Alltel in each of the following CMA license areas:
(a) | Lima OH MSA (CMA 158);
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(b) | Hickory NC MSA (CMA 166);
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(c) | Fargo-Moorhead ND-MN MSA (CMA 221);
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(d) | Mansfield OH MSA (CMA 231);
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(e) | Dothan AL MSA (CMA 246);
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(f) | Sioux City IA-NE MSA (CMA 253);
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(g) | Albany GA MSA (CMA 261);
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(h) | Danville VA MSA (CMA 262);
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(i) | Sioux Falls SD MSA (CMA 267);
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(j) | Billings MT MSA (CMA 268);
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(k) | Grand Forks ND-MN MSA (CMA 276);
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(l) | Rapid City SD MSA (CMA 289);
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(m) | Great Falls MT MSA (CMA 297);
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(n) | Bismarck ND MSA (CMA 298);
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(o) | Casper WY MSA (CMA 299);
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(p) | AL RSA 7 (CMA 313);
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(q) | AZ RSA 5 (CMA 322);
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(r) | CA RSA 6 (CMA 341);
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(s) | CO RSA 4 (CMA 351);
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(t) | CO RSA 5 (CMA 352);
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(u) | CO RSA 6 (CMA 353);
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(v) | CO RSA 7 (CMA 354);
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(w) | CO RSA 8 (CMA 355);
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(x) | CO RSA 9 (CMA 356);
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(y) | GA RSA 6 (CMA 376);
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(z) | GA RSA 7 (CMA 377);
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(aa) | GA RSA 8 (CMA 378);
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(bb) | GA RSA 9 (CMA 379);
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(cc) | GA RSA 10 (CMA 380);
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(dd) | GA RSA 12 (CMA 382);
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(ee) | GA RSA 13 (CMA 383);
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(ff) | ID RSA 2 (CMA 389);
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(gg) | ID RSA 3 (CMA 390);
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(hh) | IL RSA 8 (CMA 401);
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(ii) | IL RSA 9 (CMA 402);
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(jj) | IA RSA 8 (CMA 419);
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(kk) | MN RSA 1 (CMA 482);
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(ll) | MN RSA 2 (CMA 483);
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(mm) | MT RSA 1 (CMA 523);
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(nn) | MT RSA 2 (CMA 524);
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(oo) | MT RSA 4 (CMA 526);
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(pp) | MT RSA 5 (CMA 527);
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(qq) | MT RSA 6 (CMA 528);
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(rr) | MT RSA 7 (CMA 529);
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(ss) | MT RSA 8 (CMA 530);
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(tt) | MT RSA 9 (CMA 531);
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(uu) | MT RSA 10 (CMA 532);
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(vv) | NV RSA 2 (CMA 544);
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(ww) | NV RSA 5 (CMA 547);
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(xx) | NM RSA 1 (CMA 553);
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(yy) | NM RSA 5 (CMA 557);
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(zz) | NM RSA 6 (CMA 558);
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(aaa) | NC RSA 2 (CMA 566);
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(bbb) | NC RSA 5 (CMA 569);
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(ccc) | ND RSA 1 (CMA 580);
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(ddd) | ND RSA 2 (CMA 581);
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(eee) | ND RSA 3 (CMA 582);
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(fff) | ND RSA 4 (CMA 583);
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(ggg) | ND RSA 5 (CMA 584);
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(hhh) | OH RSA 2 (CMA 586);
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(iii) | OH RSA 5 (CMA 589);
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(jjj) | OH RSA 6 (CMA 590);
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(kkk) | SC RSA 1 (CMA 625);
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(lll) | SC RSA 2 (CMA 626);
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(mmm) | SC RSA 3 (CMA 627);
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(nnn) | SC RSA 7 (CMA 631);
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(ooo) | SD RSA 1 (CMA 634);
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(ppp) | SD RSA 2 (CMA 635);
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(qqq) | SD RSA 3 (CMA 636);
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(rrr) | SD RSA 4 (CMA 637);
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(sss) | SD RSA 5 (CMA 638);
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(ttt) | SD RSA 6 (CMA 639);
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(uuu) | SD RSA 7 (CMA 640);
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(vvv) | SD RSA 8 (CMA 641);
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(www) | SD RSA 9 (CMA 642);
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(xxx) | UT RSA 3 (CMA 675);
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(yyy) | UT RSA 4 (CMA 676);
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(zzz) | UT RSA 5 (CMA 677);
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(aaaa) | UT RSA 6 (CMA 678);
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(bbbb) | VA RSA 1 (CMA 681);
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(cccc) | VA RSA 8 (CMA 688);
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(dddd) | WY RSA 1 (CMA 718);
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(eeee) | WY RSA 2 (CMA 719);
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(ffff) | WY RSA 4 (CMA 721);
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(gggg) | WY RSA 5 (CMA 722);
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- Verizon, that was acquired from Rural Cellular Corporation in August 2008, in
each of the following CMA license areas:
(a) | KS RSA 1 (CMA 428);
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(b) | KS RSA 2 (CMA 429);
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(c) | KS RSA 6 (CMA 433);
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(d) | KS RSA 7 (CMA 434);
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(e) | KS RSA 11 (CMA 438);
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(f) | KS RSA 12 (CMA 439);
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(g) | KS RSA 13 (CMA 440); and
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- Verizon (but not including any assets acquired from Rural Cellular
Corporation) in each of the following CMA license areas:
(a) | MN RSA 7 (CMA 488); and
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(b) | NE RSA 5 (CMA 537).
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The Divestiture Assets shall include, without limitation, all types of real and personal
property, monies and financial instruments, equipment, inventory, office furniture, fixed assets
and furnishings, supplies and materials, contracts, agreements, leases, commitments, spectrum
licenses issued by the FCC and all other licenses, permits and authorizations, operational support
systems, cell sites, network infrastructure, switches, customer support and billing systems,
interfaces with other service providers, business and customer records and information, customer
contracts, customer lists, credit records, accounts, and historic and current business plans that
relate primarily to the wireless businesses being divested, as well as any patents, licenses, sub-licenses, trade secrets, know-how, drawings, blueprints, designs, technical and quality
specifications and protocols, quality assurance and control procedures, manuals and other
technical information defendants supply to their own employees, customers, suppliers, agents, or
licensees, and trademarks, trade names and service marks or other intellectual property, including
all intellectual property rights under third-party licenses that are capable of being transferred to
the Acquirer(s) either in their entirety, for assets described in (a) below, or through a license
obtained through or from defendants, for assets described in (b) below; provided that defendants
shall only be required to divest Multi-line Business Customer contracts if the primary business
address for that customer is located within any of the license areas described herein, and further,
any subscriber who obtains mobile wireless telecommunications services through any such
contract retained by defendants and who are located within the license areas identified above,
shall be given the option to terminate their relationship with defendants, without financial cost, at
any time within one year of the closing of the Transaction. Defendants shall provide written
notice to these subscribers within 45 days after the closing of the Transaction of the option to
terminate.
The divestiture of the Divestiture Assets shall be accomplished by:
(a) | transferring to the Acquirer(s) the complete ownership and/or other rights
to the assets (other than those assets used substantially in the operations of
defendants' overall wireless telecommunications services business that
must be retained to continue the existing operations of the wireless
properties that defendants are not required to divest, and that either are not
capable of being divided between the divested wireless
telecommunications services businesses and those not divested, or are
assets that the defendants and the Acquirer(s) agree, subject to the
approval of plaintiff United States, shall not be divided); and
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(b) | granting to the Acquirer(s) an option to obtain a nonexclusive, transferable
license from defendants for a reasonable period, subject to the approval of
plaintiff United States, and at the election of the Acquirer(s), to use any of
defendants' retained assets under paragraph (a) above used in operating the
mobile wireless telecommunications services businesses being divested, so
as to enable the Acquirer(s) to continue to operate the divested mobile
wireless telecommunications services businesses without impairment.
Defendants shall identify in a schedule submitted to plaintiff United States
and filed with the Court as expeditiously as possible following the filing of
the Complaint, and in any event prior to any divestiture and before the
approval by the Court of this Final Judgment, any and all intellectual
property rights under third-party licenses that are used by the mobile
wireless telecommunications services businesses being divested that
defendants could not transfer to the Acquirer(s) entirely or by license
without third-party consent, the specific reasons why such consent is
necessary, and how such consent would be obtained for each asset.
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- "Multi-line Business Customer" means a corporate or business customer that contracts
with a divesting defendant for mobile wireless telecommunications services to provide multiple
telephones to its employees or members whose services are provided pursuant to a contract with
the corporate or business customer.
- "Transaction" means the Agreement and Plan of Merger among Cellco Partnership,
Airtouch Cellular, Abraham Merger Corporation, Alltel Corporation and Atlantis Holdings LLC,
dated June 5, 2008.
- "Verizon" means defendant Verizon Communications Inc., a Delaware corporation,
with its headquarters in New York, New York, its successors and assigns, and its subsidiaries,
divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers,
managers, agents, and employees.
III. Applicability
- This Final Judgment applies to defendants Verizon and Alltel, as defined above, and
all other persons in active concert or participation with any of them who receive actual notice of
this Final Judgment by personal service or otherwise.
- If, prior to complying with Section IV and V of this Final Judgment, defendants sell or
otherwise dispose of all or substantially all of their assets or of lesser business units that include
the Divestiture Assets, they shall require the purchaser to be bound by the provisions of this Final
Judgment. Defendants need not obtain such an agreement from the acquirer(s) of the assets
divested pursuant to this Final Judgment.
IV. Divestitures
- Defendants are ordered and directed, within 120 days after consummation of the
Transaction, or five calendar days after notice of the entry of this Final Judgment by the Court,
whichever is later, to divest the Divestiture Assets in a manner consistent with this Final
Judgment to an Acquirer or Acquirers acceptable to plaintiff United States in its sole discretion,
upon consultation with the relevant plaintiff State, or, if applicable, to a Divestiture Trustee
designated pursuant to Section V of this Final Judgment. Plaintiff United States, in its sole
discretion, upon consultation with the relevant plaintiff State, may agree to one or more
extensions of this time period not to exceed 60 calendar days in total, and shall notify the Court
in such circumstances. With respect to divestiture of the Divestiture Assets by defendants or the
Divestiture Trustee, if applications have been filed or are on file with the FCC within the period
permitted for divestiture seeking approval to assign or transfer licenses to the Acquirer(s) of the
Divestiture Assets, but an order or other dispositive action by the FCC on such applications has
not been issued before the end of the period permitted for divestiture, the period shall be
extended with respect to divestiture of those Divestiture Assets for which FCC approval has not
been issued until five days after such approval is received. Defendants agree to use their best
efforts to accomplish the divestitures set forth in this Final Judgment and to seek all necessary
regulatory approvals as expeditiously as possible. This Final Judgment does not limit the FCC's
exercise of its regulatory powers and process with respect to the Divestiture Assets.
Authorization by the FCC to conduct the divestiture of a Divestiture Asset in a particular manner
will not modify any of the requirements of this decree.
- In accomplishing the divestitures ordered by this Final Judgment, defendants shall
promptly make known, if they have not already done so, by usual and customary means, the
availability of the Divestiture Assets. Defendants shall inform any person making inquiry
regarding a possible purchase of the Divestiture Assets that they are being divested pursuant to
this Final Judgment and provide that person with a copy of this Final Judgment. Defendants
shall offer to furnish to all prospective Acquirers, subject to customary confidentiality
assurances, all information and documents relating to the Divestiture Assets customarily
provided in a due diligence process except such information or documents subject to the
attorney-client or work product privileges. Defendants shall make available such information to
plaintiffs at the same time that such information is made available to any other person.
- Defendants shall provide the Acquirer(s) and plaintiffs information relating to the
personnel involved in the operation, development, and sale or license of the Divestiture Assets to
enable the Acquirer(s) to make offers of employment. Defendants will not interfere with any
negotiations by the Acquirer(s) to employ any defendant employee whose primary responsibility
is the operation, development, or sale or license of the Divestiture Assets.
- Defendants shall permit prospective Acquirers of the Divestiture Assets to have
reasonable access to personnel and to make inspections of the Divestiture Assets; access to any
and all environmental, zoning, and other permit documents and information; and access to any
and all financial, operational, and other documents and information customarily provided as part
of a due diligence process.
- Defendants shall warrant to the Acquirer(s) that (1) the Divestiture Assets will be
operational on the date of sale, and (2) every wireless spectrum license is in full force and effect
on the date of sale.
- Defendants shall not take any action that will impede in any way the permitting,
licensing, operation, or divestiture of the Divestiture Assets.
- Defendants shall warrant to the Acquirer(s) of the Divestiture Assets that there are no
material defects in the environmental, zoning, licensing or other permits pertaining to the
operation of each asset and that following the sale of the Divestiture Assets, defendants will not
undertake, directly or indirectly, any challenges to the environmental, zoning, licensing or other
permits relating to the operation of the Divestiture Assets.
- Unless plaintiff United States, in its sole discretion upon consultation with the
relevant plaintiff State, otherwise consents in writing, the divestitures pursuant to Section IV, or
by a Divestiture Trustee appointed pursuant to Section V, of this Final Judgment, shall include
the entire Divestiture Assets, and shall be accomplished in such a way as to satisfy plaintiff
United States in its sole discretion that these assets can and will be used by the Acquirer(s) as
part of a viable, ongoing business engaged in the provision of mobile wireless
telecommunications services. The divestiture of the Divestiture Assets, whether pursuant to
Section IV or Section V of this Final Judgment:
1) | shall be made to an Acquirer or Acquirers that, in plaintiff United States's sole
judgment, upon consultation with the relevant plaintiff State, has the intent and capability
(including the necessary managerial, operational, technical, and financial capability) of
competing effectively in the provision of mobile wireless telecommunications services; and
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2) | shall be accomplished so as to satisfy plaintiff United States in its sole
discretion, upon consultation with the relevant plaintiff State, that none of the terms of any
agreement between an Acquirer(s) and defendants shall give defendants the ability unreasonably
to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere with the
ability of the Acquirer to compete effectively.
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- The Divestiture Assets listed in each numbered subsection below shall be divested
together to a single Acquirer, provided that it is demonstrated to the sole satisfaction of plaintiff
United States, upon consultation with the relevant plaintiff State, that the Divestiture Assets will
remain viable and the divestiture of such assets will remedy the competitive harm alleged in the
Complaint:
provided however: (i) the Divestiture Assets in Minnesota RSA 7 must be divested to the same
acquirer as the wireless business assets in Minnesota RSA 7 (CMA 488), Minnesota RSA 8
(CMA 489), Minnesota RSA 9 (CMA 490) and Minnesota RSA 10 (CMA 491), recently
purchased by defendant Verizon from Rural Cellular Corporation, that must be divested pursuant
to the proposed Modified Final Judgment in United States et al. v. ALLTEL Corp. et al., Civ. No.
06-3631 (RHK/AJB) (D. MN filed Sept. 7, 2006); (ii) the Divestiture Assets in New Mexico
RSAs 5 and 6 must be divested to the same acquirer as the wireless business assets in the Las
Cruces NM MSA (CMA 285), currently owned by defendant Alltel, that must be divested
pursuant to the proposed Modified Final Judgment in United States v. Bell Atlantic Corp. et al.,
Civ. No. 1:99CV01119 (EGS) (D.D.C. filed May 7, 1999); (iii) the Divestiture Assets in the
Lima and Mansfield OH MSAs and OH RSAs 2, 5 and 6 must be divested to the same acquirer
as the wireless business assets in the OH RSA 3 (CMA 587), currently owned by defendant
Alltel, that must be divested pursuant to the proposed Modified Final Judgment in United States
v. Bell Atlantic Corp. et al., Civ. No. 1:99CV01119 (EGS) (D.D.C. May 7, 1999); and (iv) the
Divestiture Assets in SC RSAs 1, 2, 3 and 7 must be divested to the same acquirer as the wireless
business assets in the Anderson SC MSA (CMA 227), currently owned by defendant Alltel, that
must be divested pursuant to the proposed Modified Final Judgment in United States v. Bell
Atlantic Corp. et al., Civ. No. 1:99CV01119 (EGS) (D.D.C. May 7, 1999). In addition to the
foregoing, nothing in this section shall be construed as limiting the ability of an Acquirer to
purchase the assets in more than one numbered subsection, and defendants shall be required to
consider bids from potential acquirers that are contingent on the acquisition of all of the assets in
more than one of the numbered subsections. The assets in each CMA license area listed in
Subsection II.D of this Final Judgment but not listed in any of the above subsections (Danville
VA MSA (CMA 262); AZ RSA 5 (CMA 322); CA RSA 6 (CMA 341); NM RSA 1 (CMA
553);VA RSA 1 (CMA 681); and VA RSA 8 (CMA 688)) can be sold to a single Acquirer or
acquired together with other Divestiture Assets. With the written approval of plaintiff United
States, in its sole discretion, upon consultation with the relevant plaintiff State, defendants or the
Divestiture Trustee may sell, to a single acquirer, fewer than all of the assets contained in the
numbered subsections above, to facilitate prompt divestiture to an acceptable Acquirer(s).
- At the option of the Acquirer(s) of the Divestiture Assets, defendants shall enter into a
contract for transition services customarily provided in connection with the sale of a business
providing mobile wireless telecommunications services or intellectual property licensing
sufficient to meet all or part of the needs of the Acquirer(s) for a period of up to one year,
provided that defendants shall only be required to license the Verizon brand to the acquirer(s) of
the Divestiture Assets in the CMAs listed in Section II.D.3 for a period of nine (9) months. The
terms and conditions of any contractual arrangement meant to satisfy this provision must be
reasonably related to market conditions.
- To the extent that the Divestiture Assets use intellectual property, as required to be
identified by Section II.D, that cannot be transferred or assigned without the consent of the
licensor or other third parties, defendants shall use their best efforts to obtain those consents.
V. Appointment of Divestiture Trustee
- If defendants have not divested the Divestiture Assets within the time period specified
in Section IV.A, defendants shall notify plaintiff United States, and the relevant plaintiff State of
that fact in writing, specifically identifying the Divestiture Assets that have not been divested.
Upon application of plaintiff United States, upon consultation with the relevant plaintiff State,
the Court shall appoint a Divestiture Trustee selected by plaintiff United States and approved by
the Court to effect the divestiture of the Divestiture Assets. The Divestiture Trustee will have all
the rights and responsibilities of the Management Trustee who may be appointed pursuant to the
Preservation of Assets Stipulation and Order, and will be responsible for:
(1) | accomplishing divestiture of all Divestiture Assets transferred to the
Divestiture Trustee from defendants, in accordance with the terms of this Final
Judgment, to an Acquirer(s) approved by plaintiff United States, in its sole
discretion upon consultation with the relevant plaintiff State, under Section
IV.A of this Final Judgment; and
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(2) | exercising the responsibilities of the licensee of any transferred Divestiture
Assets and controlling and operating any transferred Divestiture Assets, to
ensure that the businesses remain ongoing, economically viable competitors in
the provision of mobile wireless telecommunications services in the license
areas specified in Section II.D, until they are divested to an Acquirer(s), and the
Divestiture Trustee shall agree to be bound by this Final Judgment.
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- Defendants shall submit a proposed trust agreement ("Trust Agreement") to plaintiff
United States, which must be consistent with the terms of this Final Judgment and which must
receive approval by plaintiff United States in its sole discretion, upon consultation with the
relevant plaintiff State, who shall communicate to defendants within 10 business days its
approval or disapproval of the proposed Trust Agreement, and which must be executed by the
defendants and the Divestiture Trustee within five business days after approval by plaintiff
United States.
- After obtaining any necessary approvals from the FCC for the assignment of the
licenses of the Divestiture Assets to the Divestiture Trustee, defendants shall irrevocably divest
the remaining Divestiture Assets to the Divestiture Trustee, who will own such assets (or own the
stock of the entity owning such assets, if divestiture is to be effected by the creation of such an
entity for sale to Acquirer) and control such assets, subject to the terms of the approved Trust
Agreement.
- After the appointment of a Divestiture Trustee becomes effective, only the Divestiture
Trustee shall have the right to sell the Divestiture Assets. The Divestiture Trustee shall have the
power and authority to accomplish the divestiture to an Acquirer(s) acceptable to plaintiff United
States, in its sole judgment, upon consultation with the relevant plaintiff State, at such price and
on such terms as are then obtainable upon reasonable effort by the Divestiture Trustee, subject to
the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other
powers as this Court deems appropriate. Subject to Section V.G of this Final Judgment, the
Divestiture Trustee may hire at the cost and expense of defendants the Management Trustee
appointed pursuant to the Preservation of Assets Stipulation and Order and any investment
bankers, attorneys or other agents, who shall be solely accountable to the Divestiture Trustee,
reasonably necessary in the Divestiture Trustee's judgment to assist in the divestiture.
- In addition, notwithstanding any provision to the contrary, plaintiff United States, in
its sole discretion, upon consultation with the relevant plaintiff State, may 1) require defendants
to include additional assets, and 2) with the written approval of plaintiff United States, allow
defendants to substitute substantially similar assets, which substantially relate to the Divestiture
Assets to be divested by the Divestiture Trustee.
- Defendants shall not object to a sale by the Divestiture Trustee on any ground other
than the Divestiture Trustee's malfeasance. Any such objections by defendants must be
conveyed in writing to plaintiff United States and the Divestiture Trustee within 10 calendar days
after the Divestiture Trustee has provided the notice required under Section VI.
- The Divestiture Trustee shall serve at the cost and expense of defendants, on such
terms and conditions as plaintiff United States approves, and shall account for all monies derived
from the sale of the assets sold by the Divestiture Trustee and all costs and expenses so incurred.
After approval by the Court of the Divestiture Trustee's accounting, including fees for its
services and those of any professionals and agents retained by the Divestiture Trustee, all
remaining money shall be paid to defendants and the trust shall then be terminated. The
compensation of the Divestiture Trustee and any professionals and agents retained by the
Divestiture Trustee shall be reasonable in light of the value of the Divestiture Assets and based
on a fee arrangement providing the Divestiture Trustee with an incentive based on the price and
terms of the divestiture, and the speed with which it is accomplished, but timeliness is
paramount.
- Defendants shall use their best efforts to assist the Divestiture Trustee in
accomplishing the required divestitures, including their best efforts to effect all necessary
regulatory approvals. The Divestiture Trustee and any consultants, accountants, attorneys, and
other persons retained by the Divestiture Trustee shall have full and complete access to the
personnel, books, records, and facilities of the businesses to be divested, and defendants shall
develop financial and other information relevant to the assets to be divested as the Divestiture
Trustee may reasonably request, subject to reasonable protection for trade secret or other
confidential research, development, or commercial information. Defendants shall take no action
to interfere with or to impede the Divestiture Trustee's accomplishment of the divestitures.
- After its appointment, the Divestiture Trustee shall file monthly reports with plaintiff
United States, and the relevant plaintiff States, and the Court setting forth the Divestiture
Trustee's efforts to accomplish the divestitures ordered under this Final Judgment. To the extent
such reports contain information that the Divestiture Trustee deems confidential, such reports
shall not be filed in the public docket of the Court. Such reports shall include the name, address,
and telephone number of each person who, during the preceding month, made an offer to acquire,
expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made
an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each
contact with any such person. The Divestiture Trustee shall maintain full records of all efforts
made to divest the Divestiture Assets.
- If the Divestiture Trustee has not accomplished the divestitures ordered under the Final
Judgment within six months after its appointment, the Divestiture Trustee shall promptly file
with the Court a report setting forth (1) the Divestiture Trustee's efforts to accomplish the
required divestitures, (2) the reasons, in the Divestiture Trustee's judgment, why the required
divestitures have not been accomplished, and (3) the Divestiture Trustee's recommendations. To
the extent such reports contain information that the Divestiture Trustee deems confidential, such
reports shall not be filed in the public docket of the Court. The Divestiture Trustee shall at the
same time furnish such report to plaintiff United States, and the relevant plaintiff States, who
shall have the right to make additional recommendations consistent with the purpose of the trust.
The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose
of the Final Judgment, which may, if necessary, include extending the trust and the term of the
Divestiture Trustee's appointment by a period requested by plaintiff United States, upon
consultation with the relevant plaintiff States.
- After defendants transfer the Divestiture Assets to the Divestiture Trustee, and until
those Divestiture Assets have been divested to an Acquirer or Acquirers approved by plaintiff
United States pursuant to Sections IV.A and IV.H, the Divestiture Trustee shall have sole and
complete authority to manage and operate the Divestiture Assets and to exercise the
responsibilities of the licensee and shall not be subject to any control or direction by defendants.
Defendants shall not use, or retain any economic interest in, the Divestiture Assets transferred to
the Divestiture Trustee, apart from the right to receive the proceeds of the sale or other
disposition of the Divestiture Assets.
- The Divestiture Trustee shall operate the Divestiture Assets consistent with the
Preservation of Assets Stipulation and Order and this Final Judgment, with control over
operations, marketing, and sales. Defendants shall not attempt to influence the business
decisions of the Divestiture Trustee concerning the operation and management of the Divestiture
Assets, and shall not communicate with the Divestiture Trustee concerning divestiture of the
Divestiture Assets or take any action to influence, interfere with, or impede the Divestiture
Trustee's accomplishment of the divestitures required by this Final Judgment, except that
defendants may communicate with the Divestiture Trustee to the extent necessary for defendants
to comply with this Final Judgment and to provide the Divestiture Trustee, if requested to do so,
with whatever resources or cooperation may be required to complete divestiture of the
Divestiture Assets and to carry out the requirements of the Preservation of Assets Stipulation and
Order and this Final Judgment. Except as provided in this Final Judgment and the Preservation
of Assets Stipulation and Order, in no event shall defendants provide to, or receive from, the
Divestiture Trustee or the mobile wireless telecommunications services businesses any non-public or competitively sensitive marketing, sales, pricing or other information relating to their
respective mobile wireless telecommunications services businesses.
VI. Notice of Proposed Divestitures
- Within the later of two (2) business days following (i) the execution of a definitive
divestiture agreement, or (ii) the filing of the Complaint in this action, defendants or the
Divestiture Trustee, whichever is then responsible for effecting the divestitures required herein,
shall notify plaintiff United States, and the relevant plaintiff State, in writing of any proposed
divestiture required by Section IV or V of this Final Judgment. If the Divestiture Trustee is
responsible, it shall similarly notify defendants. The notice shall set forth the details of the
proposed divestiture and list the name, address, and telephone number of each person not
previously identified who offered or expressed an interest in or desire to acquire any ownership
interest in the Divestiture Assets, together with full details of the same.
- Within fifteen (15) calendar days of receipt of notice by plaintiff United States and the
relevant plaintiff State, plaintiff United States and any plaintiff State receiving such notice, may
request from defendants, the proposed Acquirer, any other third party, or the Divestiture Trustee,
if applicable, additional information concerning the proposed divestiture, the proposed Acquirer,
and any other potential Acquirer. Defendants and the Divestiture Trustee shall furnish any
additional information requested within fifteen (15) calendar days of the receipt of the request,
unless the parties shall otherwise agree.
- Within thirty (30) calendar days after receipt of the notice or within twenty (20)
calendar days after plaintiff United States and the relevant plaintiff State have been provided the
additional information requested from defendants, the proposed Acquirer, any third party, and the
Divestiture Trustee, whichever is later, plaintiff United States, upon consultation with the
relevant plaintiff State, shall provide written notice to defendants and the Divestiture Trustee, if
there is one, stating whether or not it objects to the proposed divestiture. If plaintiff United
States provides written notice that it does not object, the divestiture may be consummated,
subject only to defendants' limited right to object to the sale under Section V.F of this Final
Judgment. Absent written notice that plaintiff United States does not object to the proposed
Acquirer or upon objection by plaintiff United States, a divestiture proposed under Section IV or
Section V shall not be consummated. Upon objection by defendants under Section V.F, a
divestiture proposed under Section V shall not be consummated unless approved by the Court.
VII. Financing
Defendants shall not finance all or any part of any divestiture made pursuant to Section
IV or V of this Final Judgment.
VIII. Preservation of Assets
Until the divestitures required by this Final Judgment have been accomplished,
defendants shall take all steps necessary to comply with the Preservation of Assets Stipulation
and Order entered by this Court and cease use of the Divestiture Assets during the period that the
Divestiture Assets are managed by the Management Trustee. Defendants shall take no action
that would jeopardize the divestitures ordered by this Court.
IX. Affidavits
- Within twenty (20) calendar days of the filing of the Complaint in this matter, and
every thirty (30) calendar days thereafter until the divestitures have been completed under
Section IV or V, defendants shall deliver to plaintiffs an affidavit as to the fact and manner of its
compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the
name, address, and telephone number of each person who during the preceding thirty (30)
calendar days, made an offer to acquire, expressed an interest in acquiring, entered into
negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the
Divestiture Assets, and shall describe in detail each contact with any such person during that
period. Each such affidavit shall also include a description of the efforts defendants have taken
to solicit buyers for the Divestiture Assets, and to provide required information to prospective
Acquirers, including the limitations, if any, on such information. Assuming the information set
forth in the affidavit is true and complete, any objection by plaintiff United States upon
consultation with the relevant plaintiff State, to information provided by defendants, including
limitation on information, shall be made within fourteen (14) calendar days of receipt of such
affidavit.
- Within twenty (20) calendar days of the filing of the Complaint in this matter,
defendants shall deliver to plaintiffs an affidavit that describes in reasonable detail all actions
defendants have taken and all steps defendants have implemented on an ongoing basis to comply
with Section VIII of this Final Judgment. Defendants shall deliver to plaintiffs an affidavit
describing any changes to the efforts and actions outlined in defendants' earlier affidavits filed
pursuant to this section within fifteen (15) calendar days after the change is implemented.
- Defendants shall keep all records of all efforts made to preserve and divest the
Divestiture Assets until one year after such divestitures have been completed.
X. Compliance Inspection
- For the purposes of determining or securing compliance with this Final Judgment or
whether the Final Judgment should be modified or vacated, and subject to any legally recognized
privilege, authorized representatives of the United States Department of Justice (including
consultants and other persons retained by plaintiff 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 defendants, be permitted:
(1) | access during defendants' office hours to inspect and copy, or at plaintiff
United States's option, to require defendants to provide hard copy or electronic
copies of, all books, ledgers, accounts, records, data and documents in the
possession, custody, or control of defendants, relating to any matters contained
in this Final Judgment; and
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(2) | to interview, either informally or on the record, defendants' 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 defendants.
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- Upon the written request of an authorized representative of the Assistant Attorney
General in charge of the Antitrust Division, defendants shall submit written reports or response
to written interrogatories, under oath if requested, relating to any of the matters contained in this
Final Judgment as may be requested.
- No information or documents obtained by the means provided in this section shall be
divulged by plaintiff United States to any person other than an authorized representative of the
executive branch of plaintiff United States, any relevant plaintiff state, or, pursuant to a
customary protective order or waiver of confidentiality by defendants, the FCC, except in the
course of legal proceedings to which plaintiff United States is a party (including grand jury
proceedings), or for the purpose of securing compliance with this Final Judgment, or as
otherwise required by law.
- If at the time information or documents are furnished by defendants to plaintiff United
States, defendants represent and identify in writing the material in any such information or
documents to which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal
Rules of Civil Procedure, and defendants mark 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
plaintiff United States shall give defendants ten (10) calendar days notice prior to divulging such
material in any legal proceeding (other than a grand jury proceeding).
XI. No Reacquisition
Defendants may not reacquire or lease any part of the Divestiture Assets during the term
of this Final Judgment.
XII. 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.
XIII. Expiration of Final Judgment
Unless this Court grants an extension, this Final Judgment shall expire ten years from the
date of its entry.
XIV. Public Interest Determination
Entry of this Final Judgment is in the public interest. The parties have complied with the
requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making
copies available to the public of this Final Judgment, the Competitive Impact Statement, and any
comments thereon and plaintiff United States's 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.
Date: __________________
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Court approval subject to procedures of Antitrust
Procedures and Penalties Act, 15 U.S.C. § 16
_______________________________
United States District Judge
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