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FILED
2008
DEC 22 P 5:04
CLERK,
US DISTRICT COURT
ALEXANDRIA, VIRGINIA
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICROSEMI CORPORATION,
Defendant.
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Civil Action No. 1:08 CV 1311
Hearing Date: January 9, 2009
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PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION TO SEAL EXHIBITS
1, 2, 4, 6, 9, 12, 13, 14, AND 15 TO PLAINTIFF'S EMERGENCY MOTION FOR
A
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiff, through its undersigned counsel, respectfully requests
that this Court enter an order sealing nine (9) exhibits that Plaintiff
has submitted in support of its Emergency Motion for a Temporary Restraining
Order and Preliminary Injunction. The documents at issue contain competitively
sensitive information submitted to Plaintiff by Defendant Microsemi
Corporation ("Microsemi"). This relief is sought on an interim basis,
pending the entry by the Court of a protective order pursuant to Rule
26(c) of the Federal Rules of Civil Procedure. In support of this motion,
Plaintiff states as follows:
- On December 18, 2008, Plaintiff filed with the Court a Complaint
alleging that Microsemi's acquisition of Semicoa, Inc. ("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. On December 22, 2008, Plaintiff
filed an Emergency Motion for a Temporary Restraining Order and Preliminary
Injunction, a memorandum in support of that motion, and supporting
declarations, documents, and other materials.
- Certain exhibits supporting Plaintiff's Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction contain information supplied
to the Department of Justice by the Defendant. Certain of this information
was provided to the Department in confidence and has been protected
from public disclosure during the Department's investigation. In keeping
with such confidentiality protections, Plaintiff seeks to initially
file certain documents under seal.
- Specifically, Plaintiff seeks to file under seal Exhibits 1, 2,
4, 6, 9, 12, 13, 14, and 15 submitted in support of its Emergency
Motion for a Temporary Restraining Order and Preliminary Injunction.
Exhibit 1 is a document titled "Operation Growth Strategy," which
discusses the Defendant's marketing strategy for the products at issue,
as well as future production plans. Exhibit 2 is a document titled
"Strategic Overview," which discusses the Defendant's competitive
strategy and contains market analyses for the products at issue. Exhibit
4 is an e-mail containing Microsemi and Semicoa shipment data for
the products at issue. Exhibit 6 is a spreadsheet recording all of
the Defendant's sales information for the products at issue from the
years 1997 to 2008. Exhibit 9 is a Semicoa document discussing the
company's readiness to produce the products at issue, including information
about its manufacturing processes and capabilities. Exhibit 12 is
a Microsemi e-mail that discusses pricing and delivery timing for
the products at issue. Exhibit 13 is a Semicoa e-mail discussing the
company's readiness to produce one of the products at issue. Exhibit
14 is a Semicoa document that includes test results for one of the
products at issue. Exhibit 15 is a Microsemi e-mail analyzing the
backlog of Semicoa orders for the products at issue.
- Public disclosure of the confidential information contained in the
aforementioned exhibits might place the Defendant, as well as any
company that may acquire assets divested as a result of this action,
at a disadvantage with respect to their existing and potential competitors,
who would gain access to sensitive business plans and product development
and marketing information.
- Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000),
sets out the legal standard that this Court must apply when determining
whether it is appropriate to order the sealing of documents. It states
that before entering an order to seal, a district court must "(1)
provide public notice of the request to seal and allow interested
parties a reasonable opportunity to object, (2) consider less drastic
alternatives to sealing the documents, and (3) provide specific reasons
and factual findings supporting its decision to seal the documents
and for rejecting the alternatives." Id.
- The first Ashcraft consideration, i.e., public
notice of the motion to seal, is satisfied by docketing the motion
"reasonably in advance of deciding the issue." In re Knight Publ'g
Co., 743 F.2d 231, 235 (4th Cir. 1984). Plaintiff's motion to
seal has been noticed for hearing on January 9, 2009, 21 calendar
days from today's date.
- The second Ashcraft consideration is satisfied because
there are no less drastic alternatives to sealing the aforementioned
exhibits. Redacting information from these exhibits is not a viable
option because the issue in this case is whether the Defendant's acquisition
of the assets of Semicoa resulted in harm to competition in specific
product markets. While redacting competitively sensitive information
from the exhibits at issue would protect the Defendant and potential
acquirers of any divested assets from future competitive disadvantage,
it would also deprive the Court of the product, pricing, and strategic
business information it needs to evaluate whether the acquisition
resulted in competitive harm.
- The third Ashcraft consideration - that the Court "provide
specific reasons and factual findings supporting its decision to seal
the documents and for rejecting the alternatives" - is satisfied by
the findings of fact in the proposed Order accompanying this Motion.
WHEREFORE, the Plaintiff respectfully requests that the Court enter
an order sealing Exhibits 1, 2, 4, 6, 9, 12, 13, 14, and 15 to Plaintiff's
Emergency Motion for a Temporary Restraining Order and Preliminary Injunction,
and that those exhibits remain under seal until a protective order has
been entered by the Court pursuant to Rule 26(c) of the Federal Rules
of Civil Procedure.
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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 mail the foregoing document by U.S. Mail to the following:
Michael Antalics
O'Melveny & Meyers LLP
1625 Eye Street, N.W.
Washington, DC 20006
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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 |
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