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FILED
DEC
4 - 2008
NANCY
MAYER WHITTINGTON, CLERK
U.S. DISTRICT COURT
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RAYCOM MEDIA, INC.,
Defendant.
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Civil Action No. 08-cv-01510
Judge: Ricardo Urbina
Filed: 12/04/2008
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FINAL JUDGMENT
WHEREAS, plaintiff, United States of America, filed its Complaint on
August 28, 2008, the United States and defendant, Raycom Media, Inc.
("Raycom"), 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, defendant agrees 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 defendant to assure
that competition is not substantially lessened;
AND WHEREAS, the United States requires defendant to make a certain
divestiture for the purpose of remedying the loss of competition alleged
in the Complaint;
AND WHEREAS, defendant has represented to the United States that the
divestiture required below can and will be made and that it 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 defendant under Section 7 of the Clayton
Act, as amended (15 U.S.C. § 18).
II. Definitions
As used in this Final Judgment:
- "Acquirer" means the entity to which defendant divests the Divestiture
Assets.
- "Raycom" means defendant Raycom Media, Inc., a Delaware limited
liability company with its headquarters in Montgomery, Alabama, its
successors and assigns, and its subsidiaries, divisions, groups, affiliates,
partnerships and joint ventures, and their directors, officers, managers,
agents, and employees.
- "DMA" means designated market area as defined by A.C. Nielsen Company
based upon viewing patterns and used by the Investing In Television
BIA Market Report 2007 (2nd edition). DMAs are ranked according
to the number of households therein and are used by broadcasters,
advertisers and advertising agencies to aid in evaluating television
audience size and composition.
- "Richmond market" means the Richmond, Virginia DMA broadcast television
market.
- "WTVR-TV" means the broadcast television station WTVR-TV located
in the Richmond market owned by defendant.
- "Divestiture Assets" means all of the assets, tangible or intangible,
used in the operation of WTVR-TV, including, but not limited to, all
real property (owned or leased), broadcast equipment, office equipment,
office furniture, fixtures, materials, supplies, and other tangible
property used in the operation of the station; all licenses, permits,
authorizations, and applications therefor issued by the Federal Communications
Commission ("FCC") and other government agencies relating to the station;
all contracts (including programming contracts and rights), agreements,
network affiliation agreements, leases, and commitments and understandings
of defendant relating to the operation of WTVR-TV; all trademarks,
service marks, trade names, copyrights, patents, slogans, programming
materials, and promotional materials relating to WTVR-TV; all customer
lists, contracts, accounts, and credit records; and all logs and other
records maintained by defendant in connection with WTVR-TV.
III. Applicability
- This Final Judgment applies to Raycom, as defined above, and all
other persons in active concert or participation with Raycom 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,
Defendant sells or otherwise disposes of all or substantially all
of its assets or of lesser business units that include the Divestiture
Assets, defendant shall require the purchaser to be bound by the provisions
of this Final Judgment. Defendant need not obtain such an agreement
from the acquirer of the assets divested pursuant to this Final Judgment.
IV. Divestiture
- Defendant is ordered and directed, within thirty (30) calendar days
after the filing of the Complaint in this matter or five (5) 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 acceptable to the United States
in its sole discretion. The United States, in its sole discretion,
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 defendant
or the trustee appointed pursuant to Section V of this Final Judgment,
if applications have been filed with the FCC within the period permitted
for divestiture seeking approval to assign or transfer licenses to
the Acquirer 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 the Divestiture Assets
for which FCC approval has not been issued until five (5) 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 divestiture ordered by this Final Judgment,
defendant promptly shall make known, by usual and customary means,
the availability of the Divestiture Assets. Defendant 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. Defendant
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
privileges or work-product doctrine. Defendant shall make available
such information to the United States at the same time that such information
is made available to any other person.
- Defendant shall provide the Acquirer and the United States information
relating to the personnel involved in the operation of the Divestiture
Assets to enable the Acquirer to make offers of employment. Defendant
will not interfere with any negotiations by the Acquirer to employ
any defendant employee whose primary responsibility is the operation
of the Divestiture Assets.
- Defendant shall permit prospective Acquirers of the Divestiture
Assets to have reasonable access to personnel and to make inspections
of the physical facilities of the business to be divested; access
to any and all environmental, zoning, and other permit documents and
information; and access to any and all financial, operational, or
other documents and information customarily provided as part of a
due diligence process.
- Defendant shall warrant to the Acquirer that each asset will be
operational on the date of sale.
- Defendant shall not take any action that will impede in any way
the permitting, operation, or divestiture of the Divestiture Assets.
- Defendant shall warrant to the Acquirer that there are no material
defects in the environmental, zoning, or other permits pertaining
to the operation of each asset, and that following the sale of the
Divestiture Assets, defendant will not undertake, directly or indirectly,
any challenges to the environmental, zoning or other permits relating
to the operation of the Divestiture Assets.
- Unless the United States otherwise consents in writing, the divestiture
pursuant to Section IV, or by 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 the United States,
in its sole discretion, that the Divestiture Assets can and will be
used by the Acquirer as part of a viable, ongoing commercial broadcast
television business. Divestiture of the Divestiture Assets must be
made to a single Acquirer that can demonstrate to the sole satisfaction
of the United States that the Divestiture Assets will remain viable
and the divestiture of such assets will remedy the competitive harm
alleged in the Complaint. The divestiture, whether pursuant to Section
IV or Section V of this Final Judgment,
- shall be made to an Acquirer that, in the United States's sole
judgment, has the intent and capability (including the necessary
managerial, technical, operational, and financial capability)
of competing effectively in the commercial broadcast television
business in the Richmond market; and
- shall be accomplished so as to satisfy the United States, in
its sole discretion, that none of the terms of any agreement(s)
between an Acquirer and defendant gives them the ability unreasonably
to raise the Acquirer's costs, to lower the Acquirer's efficiency,
or otherwise to interfere in the ability of the Acquirer to compete
effectively.
V. Appointment of Trustee
- If defendant has not divested the Divestiture Assets within the
time period specified in Section IV(A), defendant shall notify the
United States of that fact in writing. Upon application of the United
States, the Court shall appoint a trustee selected by the United States
and approved by the Court to effect the divestiture of the Divestiture
Assets.
- After the appointment of a trustee becomes effective, only the trustee
shall have the right to sell the Divestiture Assets. The trustee shall
have the power and authority to accomplish the divestiture to an Acquirer
acceptable to the United States at such price and on such terms as
are then obtainable upon reasonable effort by the 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(D) of this Final Judgment, the trustee may hire
at the cost and expense of defendant any investment bankers, attorneys,
or other agents, who shall be solely accountable to the trustee, reasonably
necessary in the trustee's judgment to assist in the divestiture.
- Defendant shall not object to a sale by the trustee on any ground
other than the trustee's malfeasance. Any such objections by defendant
must be conveyed in writing to the United States and the trustee within
ten (10) calendar days after the trustee has provided the notice required
under Section VI.
- The trustee shall serve at the cost and expense of defendant, on
such terms and conditions as the United States approves, and shall
account for all monies derived from the sale of the assets sold by
the trustee and all costs and expenses so incurred. After approval
by the Court of the trustee's accounting, including fees for its services
and those of any professionals and agents retained by the trustee,
all remaining money shall be paid to defendant and the trust shall
then be terminated. The compensation of the trustee and any professionals
and agents retained by the trustee shall be reasonable in light of
the value of the Divestiture Assets and based on a fee arrangement
providing the 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.
- Defendant shall use its best efforts to assist the trustee in accomplishing
the required divestiture. The trustee and any consultants, accountants,
attorneys, and other persons retained by the trustee shall have full
and complete access to the personnel, books, records, and facilities
related to the Divestiture Assets and defendant shall develop financial
and other information relevant to such business as the trustee may
reasonably request, subject to reasonable protection for trade secret
or other confidential research, development, or commercial information.
Defendant shall take no action to interfere with or to impede the
trustee's accomplishment of the divestiture.
- After its appointment, the trustee shall file monthly reports with
the United States and the Court, setting forth the trustee's efforts
to accomplish the divestiture ordered under this Final Judgment. To
the extent such reports contain information that the 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 trustee shall maintain full records
of all efforts made to divest the Divestiture Assets.
- If the trustee has not accomplished the divestiture ordered under
this Final Judgment within six (6) months after its appointment, the
trustee shall promptly file with the Court a report setting forth:
(1) the trustee's efforts to accomplish the required divestiture,
(2) the reasons, in the trustee's judgment, why the required divestiture
has not been accomplished, and (3) the trustee's recommendations.
To the extent such reports contain information that the trustee deems
confidential, such report shall not be filed in the public docket
of the Court. The trustee shall at the same time furnish such report
to the United States, which 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 trustee's appointment
by a period requested by the United States.
VI . Notice of Proposed Divestiture
- Within two (2) business days following execution of a definitive
divestiture agreement, defendant or the trustee, whichever is then
responsible for effecting the divestiture required herein, shall notify
the United States of any proposed divestiture required by Section
IV or V of this Final Judgment. If the trustee is responsible, it
shall similarly notify defendant. 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 by the United States
of such notice, the United States may request from defendant, the
proposed Acquirer(s), any other third party, or the trustee if applicable,
additional information concerning the proposed divestiture, the proposed
Acquirer(s) and any other potential Acquirer. Defendant and the 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 the United States has been
provided the additional information requested from defendant, the
proposed Acquirer(s), any third party and the trustee, whichever is
later, the United States shall provide written notice to defendant
and the trustee, if there is one, stating whether or not it objects
to the proposed divestiture. If the United States provides written
notice that it does not object, the divestiture may be consummated,
subject only to defendant's limited right to object to the sale under
Section V(C) of this Final Judgment. Without prior written notice
that the United States does not object to the proposed Acquirer or
upon objection by the United States, a divestiture proposed under
Section IV or Section V shall not be consummated. Upon objection by
defendant under Section V(C), a divestiture proposed under Section
V shall not be consummated unless approved by the Court.
VII. Financing
Defendant shall not finance all or any part of any purchase made pursuant
to Section IV or V of this Final Judgment.
VIII. Hold Separate
Until the divestiture required by this Final Judgment has been accomplished,
defendant shall take all steps necessary to comply with the Hold Separate
Stipulation and Order entered by this Court. Defendant shall take no
action that would jeopardize the divestiture 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 divestiture has been completed under Section IV or V, defendant
shall deliver to the United States 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 defendant has 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 the United States to information provided by defendant, 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, defendant shall deliver to the United States an affidavit
that describes in reasonable detail all actions defendant has taken
and all steps defendant has implemented on an ongoing basis to comply
with Section VIII of this Final Judgment. Defendant shall deliver
to the United States an affidavit describing any changes to the efforts
and actions outlined in its earlier affidavits filed pursuant to this
section within fifteen (15) calendar days after the change is implemented.
- Defendant shall keep all records of all efforts made to preserve
and divest the Divestiture Assets until one year after such divestiture
has been completed.
X. Compliance Inspection
- For the purposes of determining or securing compliance with this
Final Judgment, or of determining whether the Final Judgment should
be modified or vacated, 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:
- access during defendant's office hours to inspect and copy,
or at the option of the United States, to require defendant to
provide hard copy or electronic copies of, all books, ledgers,
accounts, records, data, and documents in the possession, custody,
or control of defendant, relating to any matters contained in
this Final Judgment; and
- 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.
- Upon the written request of an authorized representative of the
Assistant Attorney General in charge of the Antitrust Division, defendant
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 the United States to any person other
than an authorized representative of the executive branch of the United
States or, pursuant to a customary protective order or waiver of confidentiality
by defendant, the FCC, 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 as otherwise required by law.
- 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)(7) 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)(7) of the
Federal Rules of Civil Procedure," then the United States shall give
defendant ten (10) calendar days notice prior to divulging such material
in any legal proceeding (other than a grand jury proceeding).
XI. No Reacquisition
Defendant may not reacquire any part of the Divestiture Assets or enter
into any local marketing agreement, joint sales agreement, or any other
cooperative selling arrangement with respect to 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 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.
Date: 12-05-08
Court approval subject to procedures of the Antitrust Procedures and
Penalties Act, 15 U.S.C. § 16:
_______________/s/________________
United States District Judge
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