IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
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FILED
2008 DEC 22 P 5:00
CLERK U.S. DISTRICT COURT
ALEXANDRIA, VA
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UNITED STATES OF AMERICA,
Plaintiff,
v.
MICROSEMI CORPORATION,
Defendant.
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Civil Action No. 1:08 CV 1311 |
PLAINTIFF'S EMERGENCY MOTION FOR A TEMPORARY
RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
The United States of America, pursuant to Section 15 of the Clayton
Act, 15 U.S.C. § 25, Section 4 of the Sherman Act, 15 U.S.C. §
4, and Rule 65 of the Federal Rules of Civil Procedure, moves the Court
for entry of a Temporary Restraining Order and Preliminary Injunction
enjoining defendant Microsemi Corporation ("Microsemi"), and all persons
acting on its behalf, from destroying, disposing of, or ceasing operation
of any asset defendant Microsemi acquired from Semicoa, Inc. ("Semicoa"),
pending entry by the Court of a final judgment in this action.
This motion is based on the following grounds:
- On December 18, 2008, the United States filed a Verified Complaint
("complaint") alleging that Microsemi's acquisition of substantially
all of the assets of Semicoa violated Section 7 of the Clayton Act,
15 U.S.C. § 18, and Section 2 of the Sherman Act, 15 U.S.C. §
2.
- Unless enjoined by this Court, Defendant may destroy, dispose of,
or cease operations of the assets of Semicoa before this Court can
enter a final judgment. The Defendant's Chief Executive Officer has
stated publically that part of the Defendant's business strategy is
to destroy the specialized manufacturing equipment it acquires from
its competitors.
- Pursuant to Rule 65(a)(1) of the Federal Rules of Civil Procedure,
undersigned counsel for the Plaintiff respectfully certifies to the
Court that on December 18, 2008, Plaintiff filed a complaint in this
matter. On Friday, December 19, 2008, Plaintiff's counsel and Defendant's
counsel negotiated the terms of a draft Agreed Order To Preserve Assets,
which incorporated Defendant's comments. Plaintiff's counsel sent
the draft Agreed Order to Defendant's counsel on Friday afternoon.
On Monday, December 22, 2008, Plaintiff's counsel and Defendant's
counsel again discussed the terms of Agreed Order but failed to reach
agreement. Defendant still has failed to sign the draft Agreed Order.
Moreover, Defendant previously reneged on a promise to divest the
Semicoa assets to resolve the Plaintiff's competitive concern about
the acquisition. Plaintiff cannot accept the risk that the Defendant
will renege on its unilateral representation to preserve the assets.
Concurrently with filing, Plaintiff is providing defendant's counsel
copies of this motion, the proposed TRO, with has the same terms as
the draft Agreed Order To Preserve Assets, the memorandum in support
of this motion, and declarations and exhibits in support thereof.
- There is a substantial likelihood that Plaintiff will establish
at trial that the acquisition of Semicoa by Microsemi has violated
Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 2 of
the Sherman Act, 15 U.S.C. § 2.
- A Temporary Restraining Order is necessary to preserve the status
quo, to prevent the irreparable injury to the public that would result
from the destruction, disposal, or cessation of operations of the
Semicoa assets, and to allow the Court to render effective relief
if the Plaintiff prevails at trial. Plaintiff would have no adequate
remedy at law, and this Court's ability to fashion effective relief
would be significantly impaired, if Microsemi proceeds to destroy,
dispose of, or cease operation of Semicoa assets pursuant to an acquisition
that is found, after trial, to be unlawful.
- Any harm to Defendant from enjoining the destruction, disposal
of, or cessation of operations of the Semicoa assets would be outweighed
by the actual and potential anticompetitive effects resulting from
the already-consummated acquisition, including increased prices and
lengthened delivery times for certain specialized transistors and
diodes used in military applications critical to the national security
of the United States.
- Granting the requested preliminary relief will serve the public
interest.
- This Court has authority under Section 15 of the Clayton Act, 15
U.S.C. § 25, and Section 4 of the Sherman Act, 15 U.S.C. §
4, to issue the requested preliminary relief.
- Pursuant to Federal Rule of Civil Procedure 65(c), neither the United
States nor any officer or agency of the United States is required
to post a bond as a prerequisite to the issuance of an injunction.
This Emergency Motion is supported by a concurrently filed Memorandum
of United States in Support of Emergency Motion for a Temporary Restraining
Order and Preliminary Injunction, the United States' proposed Temporary
Restraining Order, and supporting declarations.
WHEREFORE, the United States prays that the Defendant and all persons
acting on its behalf be enjoined from destroying, disposing of, or ceasing
operation of the assets of Semicoa, pending entry by the Court of a
final judgment in this action.
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_______________/s/________________
LOWELL STERN (VA Bar #33460)
Counsel for the United States
Trial Attorney
Antitrust Division, Litigation II Section
United States Department of Justice
1401 H Street, N.W., Suite 3000
Washington, D.C. 20530
(202) 514-3676
(202) 307-6283 (fax)
Lowell.Stern@usdoj.gov |
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 22nd day of December, 2008, I will hand
deliver the foregoing document to the following :
Michael E. Antalics
O'Melveny & Myers LLP
1625 Eye St. N.W.
Washington, D.C. 20006-4001
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_______________/s/________________
LOWELL STERN
Counsel for the United States
Trial Attorney
Antitrust Division, Litigation II Section
United States Department of Justice
1401 H Street, N.W., Suite 3000
Washington, D.C. 20530
(202) 514-3676
(202) 307-6283 (fax)
Lowell.Stern@usdoj.gov |
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