[Federal Register Volume 64, Number 116 (Thursday, June 17, 1999)]
[Notices]
[Pages 32538-32551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15419]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Computer Associates International, Inc.;
Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Amended Final
Judgment, Hold Separate Stipulation and Order and Competitive Impact
Statement have been filed with the United States District Court for the
District of Columbia in United States of America v. Computer
Associates, International, Inc. and PLATINUM Technology International,
Inc., Civil Action No. 1:99CV01318. On May 25, 1999, the United States
filed a Complaint and on June 8, 1999, the United States filed
amendments to the Complaint. The Complaint, as amended, alleges that
the proposed acquisition by Computer Associates International, Inc.
(CA) of PLATINUM Technology International, Inc. (Platinum) would
violate Section 7 of the Clayton Act, 15 U.S.C. 18, in the markets for
the following systems management software products used on IBM and IBM-
compatible mainframe computers with the MVS (now renamed OS/390) or VSE
operating systems: (1) MVS (OS/390) job scheduling and rerun software;
(2) VSE job scheduling and rerun software; (3) MVS (OS/390) tape
management software; (4) VSE automated operations software; (5) MVS
(OS/390) change management software; (6) MVS (OS/390) job accounting
and chargeback software and (7) VSE job accounting and chargeback
software. The proposed Amended Final Judgment, filed at the same time
as the amendments to the Complaint, requires the appointment of a
trustee to divest to a purchaser approved by the United States the
software products that Platinum sells in each of these markets, along
with certain related tangible and intangible assets. Copies of the
Complaint, amendments to the Complaint, proposed Amended Final Judgment
and Competitive Impact Statement are available for inspection at the
Department of Justice in Washington, DC, in Room 200, 325 Seventh
Street, NW., and at the Office of the Clerk of the United States
District Court for the District of Columbia, Washington, DC.
Public comment is invited within 60 days of the date of this
notice. Such comments, and responses thereto, will be published in the
Federal Register and filed with the Court. Comments should be directed
to Nancy M. Goodman, Chief, Computers & Finance Section, Antitrust
Division, U.S. Department of Justice, 600 E Street, NW., Suite 9500,
Washington, DC 20530 (telephone: (202) 307-6200).
Constance Robinson,
Director of Operations and Merger Enforcement.
United States of America, Plaintiff, v. Computer Associates
International, Inc. and Platinum Technology International, Inc.,
Defendants.
[Civil Action No. ________________; Filed: May 25, 1999]
Hold Separate Stipulation and Order
It is hereby stipulated and agreed by and between the undersigned
parties, subject to approval and entry by the Court, that:
I. Definitions
As used in this Hold Separate Stipulation and Order:
A. ``Computer Associates'' means defendant Computer Associates
International, Inc., a Delaware corporation with its headquarters in
Islandia, New York, and includes its successors and assigns,
subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures, and directors, officers, managers, agents, and employees.
B. ``Platinum'' means defendant PLATINUM technology International,
inc., a Delaware corporation with its headquarters in Oakbrook Terrace,
Illinois, and includes its successors and assigns, subsidiaries,
divisions, groups, affiliates, partnerships and joint ventures, and
directors, officers, managers, agents, and employees.
C. ``Defendants'' means, collectively or individually as the
context requires, Computer Associates and/or Platinum.
D. ``Acquirer'' means acquirer or acquirers of any of the Platinum
Assets ordered to be divested by Section IV.A of the proposed Final
Judgment attached hereto.
E. ``Divested Product'' means each of the following software
products supplied by Platinum for use with the OS/390 or MVS mainframe
operating system: (a) AutoSys/Zeke (formerly Altai's Zeke), (b)
AutoRerun (formerly Altai's Zebb), (c) AutoMedia (formerly Altai's
Zara), (d) CCC/Life Cycle Manager; and each of the following software
products supplied by Platinum for use with the VSE mainframe operating
system, (e) AutoSys/Zeke (formerly Altai's Zeke), and (f) AutoAction
(formerly Altai's Zack). With respect to each of the foregoing, a
Divested Product includes each predecessor version of the product and
each version that has been or is currently under development or that
has been developed but has not been sold or distributed.
F. ``Platinum Assets'' means all tangible and intangible property
or property rights owned or licensed by Platinum and reasonably
required in developed, testing, producing, marketing, licensing,
selling, or distributing any Divested Product, or in supplying any
support or maintenance services for any Divested Product. The Platinum
Assets include all of Platinum's rights, titles and interests in any
asset which Platinum has the right to convey, license, sublicense or
assign. If Platinum's rights in any Platinum Asset are licensed under
terms that would prevent it from conveying, licensing, sublicensing or
assigning
[[Page 32539]]
such rights to an Acquirer, defendants shall take no action (such as
asserting or enforcing any exclusive rights included in Platinum's
license of its rights to the asset) to bar the licensor of such asset
from licensing rights in the asset to an Acquirer for use with any
Divested Product, and defendants shall take all reasonable steps
(including, but not limited to, promptly executing necessary documents
or agreements with such licensor) to cooperate with and assist an
Acqurier in obtaining such a license, provided, however, that nothing
contained herein shall prevent defendants from asserting or enforcing
any exclusive rights possessed by Platinum to prevent an Acquirer from
using such licensed assets other than with a Divested Product. The
Platinum Assets include, but are not limited to:
(1) Each Divested Product;
(2) All source code and object code for the version or versions of
a Divested Product currently being sold or distributed anywhere in the
world (including patches), all existing source code and object code for
all prior versions previously sold or distributed anywhere in the world
(including patches), and all other source code and object code for all
versions of a Divested Product under development or developed but not
yet being sold or distributed (including patches). Defendants shall not
retain copies of any of the foregoing code, provided however, that to
the extent at the time Computer Associates announced its proposed
acquisition of Platinum any such code was also contained in Platinum
products other than Divested Products (``retained code'') defendants
shall retain a perpetual, irrevocable, fully paid-up worldwide license
to retain and use such retained code in any products that are not
Divested Products, except that defendants shall not use such retained
code to develop a product that is substantially identical to a Divested
Product or that competes in any market described in the Complaint. The
proposed Final Judgment attached hereto imposes no restrictions on
defendants with respect to products, or source and object code for such
products, owned or controlled by Computer Associates at the time
Computer Associates announced its proposed acquisition of Platinum;
(3) All software customizations, optional modules and add-ons for a
Divested Product;
(4) All development tools, development environments, proprietary
programming languages, know-how, designs, drawings, specifications,
research data, trade secrets, copyrights, rights under patents, and all
other intellectual property which Platinum has used to develop,
upgrade, or maintain a Divested Product;
(5) All software programs, instructions, manuals, know-how, trade
secrets, or documentation that Platinum has used or supplied to a user
of a Divested Product to facilitate installation or operation of any
Divested Product, or to facilitate migration or conversion to the use
of any Divested Product from the use of any other product;
(6) All technical or development documentation, and all marketing
information, sales training material, sales collateral, customer lists
and credit reports and maintenance documentation used for a Divested
Product;
(7) Assignment of license or maintenance agreements including a
Divested Product. In the event any such license or maintenance
agreement includes any products or services other than a Divested
Product, defendants or such other persons holding ownership rights to
such other products or services shall retain all contractual rights
relating to such other products or services;
(8) With respect to all assigned licenses and maintenance
agreements identified in Subsection I.F.(7) above, a sum of money equal
to the pro rata amount of all maintenance fees for a Divested Product
already paid to defendants pursuant to such maintenance agreements to
the extent such fees paid relate to service periods after the date of
such assignment. With respect to all such assigned licenses and
maintenance agreements that include any products or services other than
a Divested Product, the maintenance fees to be attributed to a Divested
Product shall be calculated on a pro rata basis by apportioning the
maintenance fees among the products and services subject to such
agreements in a ratio derived from the list price of each product or
service as of the date upon which such license and maintenance
agreement became effective to the total of such list prices for all the
products and services subject to such agreements. For any multi-year
agreement assigned, the allocation described herein applies only to
that portion of revenues attributable to maintenance fees. Defendants
shall not allocate nor shall any Acquirer be entitled to receive any
portion of revenues attributable to licensing of a Divested Product.
This method of allocation of maintenance fees applies to both the
allocation of maintenance fees already paid to defendants and payable
in the future relating to service periods after the date of such
assignment;
(9) All files and records maintained by Platinum for any customer
licensee of any Divested Product, including customer licenses,
maintenance agreements, and other agreements, all customer call reports
(or portions thereof relating to any Divested Product), pricing
information for the Divested Products, support and maintenance logs for
the Divested Products; all customer leads, customer pipeline reports,
customer proposals or other information maintained by defendants to
license and support any Divested Product. Where any such information
relates to both a Divested Product and other products and services,
defendants shall use their best efforts to segregate the information
that relates to the Divested Products and shall provide, and shall not
retain, such segregated information to the Acquirer; and
(10) The trademarks ``Zeke'', ``Zebb'', ``Zara'', ``Zack'',
``AutoRerun'', and ``AutoMedia'', and for a period of eighteen (18)
months from the time the Acquirer purchases the Divested Product, the
Acquirer of AutoSys/Zeke may use the phrase ``formerly known as
AutoSys/Zeke'' in connection with the marketing, sale, or distribution
of that Divested Product; the Acquirer of AutoAction for VSE may use
the phrase ``formerly known as AutoAction for VSE'' in connection with
the marketing, sale, or distribution of that Divested Product; the
Acquirer of CCC/Life Cycle Manager may use the phrases ``formerly known
as CCC/Life Cycle Manager'' and ``formerly known as CCC/LCM'' in
connection with the marketing, sale, or distribution of that Divested
Product, and thereafter, defendants will not object to that Acquirer's
use of ``Life Cycle Manager'' or ``LCM''.
II. Objectives
The Final Judgment filed in this case is meant to ensure
defendants' prompt divestiture of the Platinum Assets for the purpose
of preserving and maintaining competition that currently exists between
Computer Associates and Platinum in the markets for the development,
sale and maintenance of the mainframe software products described in
the Complaint and thereby to remedy the anticompetitive effects that
plaintiff alleges would otherwise result from Computer Associates'
proposed acquisition of Platinum. This Hold Separate Stipulation and
Order ensures, prior to such divestiture, that the Platinum Assets to
be divested be maintained as an independent, economically viable,
ongoing business concern during the pendency of the divestiture.
[[Page 32540]]
III. Jurisdiction and Venue
The Court has jurisdiction over the subject matter of this action
and over each of the parties hereto, and venue of this action is proper
in the United States District Court for the District of Columbia.
IV. Compliance With and Entry of Final Judgment
A. The parties stipulate that a Final Judgment in the form attached
hereto as Exhibit A may be filed with and entered by the Court, upon
the motion of any party or upon the Court's own motion, at any time
after compliance with the requirements of the Antitrust Procedures and
Penalties Act (15 U.S.C. 16), and without further notice to any party
or other proceedings, provided that the United States has not withdrawn
its consent, which it may do at any time before the entry of the
proposed Final Judgment by serving notice thereof on defendants and by
filing that notice with the Court.
B. Defendants shall abide by and comply with the provisions of the
proposed Final Judgment, pending the Judgment's entry by the Court, or
until expiration of time for all appeals of any Court ruling declining
entry of the proposed Final Judgment, and shall, from the date of the
signing of this Stipulation by the parties, comply with all the terms
and provisions of the proposed Final Judgment as though the same were
in full force and effect as an order of the Court.
C. Defendants shall abide by and comply with all provisions of this
Hold Separate Stipulation and Order, pending the Order's entry by the
Court, or until expiration of time for all appeals of any Court ruling
declining entry of the Order, and shall, from the date of the signing
of this Stipulation by the parties, comply with all the terms and
provisions of the proposed Hold Separate Stipulation and Order as
though the same were in full force and effect as an order of the Court.
D. This Stipulation shall apply with equal force and effect to any
amended proposed Final Judgment agreed upon in writing by the parties
and submitted to the Court.
E. In the event: (1) The United States has withdrawn its consent,
as provided in Section IV.A. above, or (2) the proposed Final Judgment
is not entered pursuant to this Stipulation, the time has expired for
all appeals of any Court ruling declining entry of the proposed Final
Judgment, and the Court has not otherwise ordered continued compliance
with the terms and provisions of the proposed Final Judgment, then the
parties are released from all further obligations under this
Stipulation, and the making of this Stipulation shall be without
prejudice to any party in this or any other proceeding.
V. Consent to Amendment
A. Contemporaneously with the acceptance for payment of the
tendered shares of Platinum by Computer Associates, Computer Associates
shall convey to CIMS Lab, Inc. all of its rights, titles and interests
in the CIMS product line, which includes CIMS MVS Resource Accounting
Systems; CIMS UNIX/NT; CIMS MVS Capacity Planner; CIMS VSE; CIMS VMS;
CIMS Desktop; CIMS Report Writer (Spectrum Writer); and all products
related to any of the foregoing (collectively, the ``CIMS product
line''). Such conveyance shall be pursuant to contracts and licenses
executed prior to the filing of the Complaint in this matter and
approved by plaintiff, in its sole discretion.
B. If defendants do not effectuate the conveyance of the CIMS
product line at the time and in the manner specified in Section V.A.
above, defendants consent:
(1) To the filing of an Amended Complaint by the United States in
this matter adding allegations relating to the product markets in which
the CIMS product line is developed, marketed and sold, and such other
allegations relating to the CIMS product line as plaintiff in its sole
discretion deems necessary to effectuate full relief as regards the
CIMS product line;
(2) To the filing of a proposed Amended Final Judgment in this
matter adding the CIMS product line to the definition of ``Divested
Product'' contained in Section II.E., and such other amendments to the
proposed Amended Final Judgment as plaintiff in its sole discretion
deems necessary to effectuate full relief as regards the CIMS product
line;
(3) That the CIMS product line shall be incorporated within the
definition of ``Divested Product'' contained in Section I.E. of this
Hold Separate Stipulation and Order; and
(4) To be bound as fully in regards to the CIMS product line as
defendants are regarding any other Divested Product presently
incorporated in this Hold Separate Stipulation and Order and the
proposed Final Judgment attached hereto.
VI. Hold Separate Provisions
Until the divestiture required by the Final Judgment has been
accomplished:
A. Defendants shall use all reasonable efforts to preserve,
maintain, and to the maximum extent feasible operate the Platinum
Assets as an independent competitor with management, research,
development, and operations of such assets held entirely separate,
distinct and apart from those of defendants' other operations.
Defendants shall not coordinate the development, production, marketing
or sale of Divested Products with defendants' other operations. Within
ten (10) calendar days of the filing of the Complaint in this matter,
defendants will inform plaintiff of the steps taken to comply with this
Hold Separate Stipulation and Order.
B. Within ten (10) days of the filing of the Complaint, defendants
shall take all reasonable steps necessary to ensure: (1) That the
Platinum Assets will be maintained and operated as an independent,
ongoing and economically viable competitor in the development,
production, marketing and sale of the Divested Products; (2) that
management will be provided for the Platinum Assets that is separate
from the management of defendants' other operations; (3) that the
management of the Platinum Assets will not be influenced by defendants;
and (4) that the books, records, competitively sensitive sales,
marketing and pricing information, and decisionmaking associated with
the Platinum Assets will to the maximum extent feasible be kept
separate and apart from the defendants' other operations. The
defendants' influence over the Platinum Assets shall be limited to that
necessary to carry out defendants' obligations under this Stipulation
and Order and the Final Judgment. Defendants shall receive all
historical, aggregate financial information relating to the Platinum
Assets only to the extent necessary to allow defendants to prepare
financial reports, tax returns, personnel reports, and other necessary
or legally required reports. Nothing herein shall preclude defendants
from examining any and all agreements acquired from Platinum and
administering all such agreements.
C. Except as is provided in this Hold Separate Stipulation and
Order or is otherwise reasonably necessary to conduct the business of
Platinum as it relates to products and services other than the Divested
Products, defendants shall not collect or solicit competitively
sensitive or other confidential information relating to the operations
of the Platinum Assets from: (1) Information that currently is within
the possession, custody or control of Platinum, (2) any current
Platinum director, officer, manger, employee or other agent or (3) any
former Platinum director, officer, manager, employee, or other agent
who currently is subject to a nondisclosure agreement with
[[Page 32541]]
Platinum. All nondisclosure agreements to which Platinum is a party
will continue in effect as to any information that relates to the
Platinum Assets as if Computer Associates' proposed acquisition of
Platinum did not occur, and the defendants will notify all of
Platinum's employees as to their continuing obligations under such
agreements. Information pertaining to the Platinum Assets that Computer
Associates has obtained pursuant to its due diligence of Platinum of
the extent feasible shall be segregated from the defendants' other
information, kept confidential and not used by the defendants. Any
nondisclosure agreements pursuant to which any information was
collected during any due diligence review inspection will remain in
effect as to any information that relates to the Platinum Assets as if
Computer Associates' proposed acquisition of Platinum did not occur,
and the defendants will notify all persons who received any due
diligence information as to their continuing obligations under such
agreements.
D. Defendants shall use all reasonable efforts to: (1) Maintain or
increase the current sales of the Divested Products, and (2) maintain
at current or previously approved levels, whichever are higher,
internal research and development funding (including, but not limited
to, any funding or approved funding for obtaining or assuring Year 2000
compliance), promotional, advertising, sales, technical assistance,
marketing and merchandising support for the Divested Products.
E. Defendants shall provide and maintain sufficient working capital
or other financial resources to maintain the Platinum Assets as an
economically viable, ongoing business.
F. Defendants shall maintain in operable condition the development
facilities for any of the Divested Products at no lower than the
current level of equipment.
G. Defendants shall not, except as part of a divestiture approved
by plaintiff, remove, sell, lease, assign, transfer, pledge or
otherwise dispose of or pledge as collateral for loans, any of the
Platinum Assets.
H. Until such time as the Platinum Assets are divested, except in
the ordinary course of business or as is otherwise consistent with this
Hold Separate Stipulation and Order, defendants shall not hire,
transfer or terminate, or alter, to the detriment of any employee, any
current employment or salary agreements for any employee who: (1) As of
the date Computer Associates announced its proposed acquisition of
Platinum, worked primarily on the Divested Products, or (2) is a member
of management to be provided pursuant to Subparagraph VI.B. of this
Hold Separate Stipulation and Order.
I. The management for the Platinum Assets to be provided pursuant
to Subparagraph VI.B. of this Hold Separate Stipulation and Order shall
be appointed by defendants, subject to plaintiff's approval, within two
(2) business days following the filing of the Complaint. Until such
time as the Platinum Assets are divested, the management for the
Platinum Assets to be provided pursuant to Subparagraph VI.B. of this
Hold Separate Stipulation and Order shall have complete managerial
responsibility for the Platinum Assets, subject to the provisions of
this Order and the Final Judgment. In the event that any member of the
management is unable to perform his or her duties, defendants shall
appoint, subject to plaintiff's approval, a replacement acceptable to
plaintiff within ten (10) working days. Should defendants fail to
appoint a replacement acceptable to plaintiff within ten (10) working
days, plaintiff shall appoint a replacement. Within ten (10) days
following the filing of the Complaint, and for thirty (30) consecutive
days thereafter, for each of the Divested Products, management of the
Platinum Assets shall post on the Platinum web site a notice that
includes on the first page of the web site a summary heading with a
link to the full notice. The notice must include text to which the
plaintiff has agreed and shall explain that the Platinum Assets will be
divested to a purchaser approved by the United States, explain how the
Platinum Assets will be managed and operated pending consummation of
the required divestiture, and assure customers that they will receive
continuing maintenance and product support for the Divested Products
pending consummation of the required divestiture.
J. Defendants shall take no action that would interfere with the
ability of any trustee appointed pursuant to the Final Judgment to
complete the divestiture pursuant to the Final Judgment to a purchaser
acceptable to plaintiff.
K. This Hold Separate Stipulation and Order shall remain in effect
until the divestiture required by the Final Judgment is complete, or
until further Order of the Court.
Respectfully submitted, For Plaintiff United States of America:
N. Scott Sacks,
DC Bar #913087.
Kent Brown,
VA Bar #18300, Attorneys, Antitrust Division, Computers & Finance
Section, U.S. Department of Justice, 600 E. Street, NW, Suite 9500,
Washington, DC 20530, (202) 307-6200.
For Defendants, Computer Associates International, Inc.:
Richard L. Rosen,
DC Bar #307231, Arnold & Porter, 555 Twelfth Street, NW, Washington, DC
20004-1202, (202) 942-5000.
For Defendant, PLATINUM Technology International, Inc.:
Larry S. Freedman,
IL Bar #6198768, Senior Vice President and General Counsel, 1815 South
Meyers Road, Oakbrook Terrace, Illinois 60181-5241, (630) 620-5000.
Dated: May 25, 1999.
Order
It is so ordered, this ____ day of ________, 1999.
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United States District Court Judge.
Exhibit A
United States of America, Plaintiff, v. Computer Associates
International, Inc. and PLATINUM Technology International, Inc.,
Defendants.
[Civil Action No. 1:99CV01318; Judge: Gladys Kessler, Deck Type:
Antitrust, Date Stamp: ______ ]
Amended Final Judgment
WHEREAS, plaintiff, the United States of America, having filed its
Complaint in this action on May 25, 1999, and having filed amendments
to the Complaint on June 8, 1999 (hereinafter the Complaint and the
amendments to the Complaint are referred to collectively as
``Complaint''), and plaintiff and defendants, by their respective
attorneys, having consented to the entry of this Amended Final Judgment
without trial or adjudication of any issue of fact or law herein, and
with this Amended Final Judgment constituting any evidence against or
an admission by any party with respect to any issue of law or fact
herein, and that this Amended Final Judgment shall settle all claims
made by the plaintiff in its Complaint;
AND WHEREAS, defendants have agreed to be bound by the provisions
of this Amended Final Judgment pending its approval by the Court;
AND WHEREAS, the essence of this Amended Final Judgment is the
prompt and certain divestiture of the identified software and
associated assets to assure
[[Page 32542]]
that competition is not substantially lessened;
AND WHEREAS, defendants have represented to plaintiff that the
divestitures ordered herein can and will be made and that defendants
will later raise no claims of hardship or difficulty as grounds for
asking the Court to modify any of the divestiture provisions contained
below;
AND WHEREAS, plaintiff currently believes that entry of this
Amended Final Judgment is in the public interest;
NOW, THEREFORE, before the taking of any testimony, and without
trial or adjudication of any issue of fact or law herein, and upon
consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND
DECREED as follows:
I. Jurisdiction
This Court has jurisdiction over each of the parties hereto and
over the subject matter of this action. Venue is proper in this Court.
The Complain states a claim upon which relief may be granted against
defendants, as hereinafter defined, under Section 7 of the Clayton Act,
as amended (15 U.S.C. 18).
II. Definitions
As used in this Amended Final Judgment:
A. ``Computer Associates'' means defendant Computer Associates
International, Inc., a Delaware corporation with its headquarters in
Islandia, New York, and includes its successors and assigns,
subsidiaries, divisions, groups, affiliates, partnerships and joint
ventures, and directors, officers, managers, agents, and employees.
B. ``Platinum'' means defendant PLATINUM technology International,
inc., a Delaware corporation with its headquarters in Oakbrook Terrace,
Illinois, and includes its successors and assigns, subsidiaries,
divisions, groups, affiliates, partnerships and joint ventures, and
directors, officers, managers, agents, and employees.
C. ``Defendants'' means, collectively or individually as the
context requires, Computer Associates and/or Platinum.
D. ``Acquirer'' means acquirer of any of the Platinum Assets
ordered to be divested by Section IV.A of this Amended Final Judgment.
E. ``Divested Product'' means each of the following software
products supplied by Platinum for use with OS/390 or MVS mainframe
operating system: (a) AutoSys/Zeke (formerly Altai's Zeke), (b)
AutoRerun (formerly Altai's Zebb), (c) AutoMedia (formerly Altai's
Zara), (d) CCC/Life Cycle Manager; each of the following software
products supplied by Platinum for use with the VSE mainframe operating
system, (e) AutoSys/Zeke (formerly Altai's Zeke), and (f) AutoAction
(formerly Altai's Zack); and (g) the ``CIMS product line,'' which
includes CIMS MVS Resource Accounting System; CIMS UNIX/NT; CIMS MVS
Capacity Planner; CIMS VSE; CIMS VMS; CIMS Desktop; CIMS Report Writer
(spectrum Writer); and all products related to any of the foregoing
products in the CIMS product line. With respect to each of the
foregoing, a Divested Product includes each predecessor version of the
product and each version that has been or is currently under
development or that has been developed but has not been sold or
distributed. Any divestiture of Platinum's rights, titles and interests
in the CIMS product line, pursuant to Section IV of this Amended Final
Judgment, shall be subject to any rights held by CIMS Inc. as a result
of the CIMS Distribution and Licensing Agreement, dated as of February
21, 1999, between PLATINUM technology IP, inc. and CIMS Inc.
F. ``Platinum Assets'' means all tangible and intangible property
or property rights owned or licensed by Platinum and reasonable
required in developing, testing, producing, marketing, licensing,
selling, or distributing any Divested Product, or in supplying any
support or maintenance services for any Divested Product. The Platinum
Assets include all of Platinum's rights, titles and interests in any
asset which Platinum has the right to convey, license, sublicense or
assign. If Platinum's rights in any Platinum Asset are licensed under
terms that would prevent it from conveying, licensing, sublicensing or
assigning such rights to an Acquirer, defendants shall take no action
(such as asserting or enforcing any exclusive rights included in
Platinum's license of its rights to the asset) to bar the licensor of
such asset from licensing rights in the asset to an Acquirer for use
with any Divested Product, and defendants shall take all reasonable
steps (including, but not limited to, promptly executing necessary
documents or agreements with such licensor) to cooperate with and
assist an Acquirer in obtaining such a license, provided, however, that
nothing contained herein shall prevent defendants from asserting or
enforcing any exclusive rights possessed by Platinum to prevent an
Acquirer from using such licensed assets other than with a Divested
Product. The Platinum Assets include, but are not limited to:
(1) Each Divested Product;
(2) All source code and object code for the version or versions or
a Divested Product currently being sold or distributed anywhere in the
world (including patches), all existing source code and object code for
all prior versions previously sold or distributed anywhere in the world
(including patches), and all other source code and object code for all
versions of a Divested Product under development or developed but not
yet being sold or distributed (including patches). Defendants shall not
retain copies of any of the foregoing code, provided however, that to
the extent at the time Computer Associates announced its proposed
acquisition of Platinum any such code was also contained in Platinum
products other than Divested Products (``retained code'') defendants
shall retain a perpetual, irrevocable, fully paid-up worldwide license
to retain and use such retained code in any products that are not
Divested Products, except that defendants shall not use such retained
code to develop a product that is substantially identical to a Divested
Product or that competes in any market described in the Complaint. This
Amended Final Judgment imposes no restrictions on defendants with
respect to products, or source and object code for such products, owned
or controlled by Computer Associates at the time Computer Associates
announced its proposed acquisition of Platinum;
(3) All software customizations, optional modules and add-ons for a
Divested Product;
(4) All development tools, development environments, proprietary
programming languages, know-how, designs, drawings, specifications,
research data, trade secrets, copyrights, rights under patents, and all
other intellectual property which Platinum has used to develop,
upgrade, or maintain a Divested Product;
(5) All software program, instructions, manuals, know-how, trade
secrets, or documentation that Platinum has used or supplied to a user
of Divested Product to facilitate installation or operation of any
Divested Product, or to facilitate migration or conversion to the use
of any Divested Product from the use of any other product;
(6) All technical or development documentation, and all marketing
information, sales training materials, sales collateral, customer lists
and credit reports and maintenance documentation used for a Divested
Product;
(7) Assignment of license or maintenance agreements including a
Divested Product. In the event any such license or maintenance
agreement includes any products or services other than a Divested
Product, defendants or
[[Page 32543]]
such other persons holding ownership rights to such other products or
services shall retain all contractual rights relating to such other
products or services;
(8) With respect to all assigned licenses and maintenance
agreements identified in Subsection II.F.(7) above, a sum of money
equal to the pro rata amount of all maintenance fees for a Divested
Product (except the CIMS product line) already paid to defendants
pursuant to such maintenance agreements to the extent such fees paid
relate to service periods after their date of such assignment. With
respect to all such assigned licenses and maintenance agreements that
include any products or services other than a Divested Product, the
maintenance fees to be attributed to a Divested Product shall be
calculated on a pro rata basis by apportioning the maintenance fees
among the products and services subjects to such agreements in a ratio
derived from the list price of each product or service as of the date
upon which such license and maintenance agreement became effective to
the total of such list prices for all the products and services subject
to such agreements. For any multi-year agreement assigned, the
allocation described herein applies only to that portion of revenues
attributable to maintenance fees. Defendants shall not allocate nor
shall any Acquire be entitled to receive any portion of revenues
attributable to licensing of a Divested Product. This method of
allocation of maintenance fees applies to both the allocation of
maintenances fees already paid to defendants and payable in the future
relating to service periods after the date of such assignment;
(9) All files and records maintained by Platinum for any customer
licensee of any Divested Product, including customer licenses,
maintenance agreements, and other agreements, all customer call reports
(or portions thereof relating to any Divested Product), pricing
information for the Divested Products, support and maintenance logs for
the Divested Products; all customer leads, customer pipeline reports,
customer proposals or other formation maintained by defendants to
license and support any Divested Product. Where any such information
relates to both a Divested Product and other products and services,
defendants shall use their best efforts to segregate the information
that relates to the Divested Products and shall provide, and shall not
retain, such segregated information to the Acquire; and
(10) The trademarks or pending trademarks ``Zeke'', ``Zebb'',
``Zara'', ``Zack'', ``AutoRerun'', ``AutoMedia'', ``CIMS Capacity
Panner'', ``CIMS Chargeback'', and ``CIMS+'', and for a period of
eighteen (18) months from the time the Acquire purchases the Divested
Product, the Acquire of AutoSys/Zeke may use the phrase ``formerly
known as AutoSys/Zeke'' in connection with the marketing, sale, or
distribution of the Divested Product; the Acquire of AutoAction for VSE
may use the phrase ``formerly known as AutoAction for VSE'' in
connection with the marketing, sale, or distribution of that Divested
Product; the Acquire of CCC/Life Cycle Manager may use the phrases
``formerly known as CCC/Life Cycle Manager'' and ``formerly known as
CCC/LCM'' in connection with the marketing, sale or distribution of
that divested Product, and thereafter, defendants will not object to
the Acquirer's use of ``Life Cycle Manager'' or ``LCM''.
III. Applicability
A. The provisions of this Amended Final Judgment apply to
defendants, their successors and assigns, subsidiaries, affiliates,
directors, officers, managers, agents, and employees, and all other
persons in active concert or participation with any of them who shall
have received actual notice of this Amended Final Judgment by personal
service or otherwise. Defendants and each person bound by this Amended
Final Judgment shall cooperate in ensuring that the provisions of this
Amended Final Judgment are carried out.
B. The Trustee appointed pursuant to Section IV of this Amended
Final Judgment shall require, as a condition of the divestiture of the
Platinum Assets required herein, that each Acquirer agree to be bound
by the provisions of this Amended Final Judgment.
IV. Divestiture by Trustee
A. Defendants are hereby ordered to divest the Platinum Assets to
an Acquirer approved by the plaintiff in accordance with the terms of
this Amended Final Judgment. Divestiture shall be accomplished by a
trustee to be selected by plaintiff at its sole discretion. Defendants
shall not object to the selection of the trustee on any grounds other
than irremediable conflict of interest. Defendants must make any such
objection within five (5) business days after plaintiff notifies
defendants of the trustee's selection.
B. Only the trustee shall have the right to divest the Platinum
Assets. The trustee shall have the power and authority to accomplish
any and all divestitures at the best price then obtainable upon all
reasonable efforts of the trustee, subject to the provisions of this
Amended Final Judgment, and shall have such other powers as the Court
shall deem appropriate. The trustee shall the Platinum Assets in the
manner that is most conducive to preserving and maintaining competition
that currently exists between Computer Associates and Platinum in the
markets for the development, sale and maintenance of the mainframe
software products described in the Complaint. Subject to Section IV.C.
of this Amended Final Judgment, the Trustee shall have the power and
authority to hire at the cost and expense of Computer Associates any
investment bankers, attorneys, or other agents reasonably necessary in
the judgment of the trustee to assist in the divestitures, and such
professional and agents shall be accountable solely to the trustee. The
trustee shall have the power and authority to accomplish the
divestitures at the earliest possible time to a purchaser or purchasers
acceptable to the United States, and shall have such other powers as
this Court shall deem appropriate.
C. The trustee shall serve at the cost and expense of Computer
Associates, on such terms and conditions as the plaintiff approves, and
shall account for all monies derived from the sale of each asset 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 Computer Associates and
the trust shall then be terminated. The compensation of such trustee
and of any professionals and agents retained by the trustee shall be
reasonable in light of the value of the divested business and based on
a fee arrangement providing the trustee with an incentive based on the
price obtained and the speed with which divestiture is accomplished.
D. Defendants shall take no action to interfere with or impede the
trustee's accomplishment of the divestiture of the Platinum Assets, and
shall assist the trustee in accomplishing the required divestitures.
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 for the Platinum Assets,
and to Platinum's overall businesses as is reasonably necessary to
effectuate the divestiture. Defendants shall provide financial or other
information relevant to the Platinum Assets customarily provided in a
due diligence process as
[[Page 32544]]
the trust may reasonably request, subject to customary confidentiality
assurances. Subject to customary confidentiality assurances, defendants
shall permit prospective acquirers of any Platinum Assets to have
reasonable access to the information provided to the trustee and to
management personnel for the Platinum Assets, and to make inspection of
any physical facilities for the Platinum Assets.
E. After the trustee's appointment, the trustee shall confer
regularly with designated representatives of the parties and shall file
biweekly reports with the parties and the Court setting forth the
trustee's efforts to accomplish the divestitures ordered under this
Amended Final Judgment; provided, however, that 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 period, 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 business to be divested, and shall describe in detail
each contact with any such person during that period. The trustee shall
maintain full records of all efforts made to sell the businesses to be
divested.
F. Any proposed divestiture of any of the Platinum Assets shall be
accomplished in such a way as to satisfy plaintiff, in its sole
discretion, that the Platinum Assets can and will be used by the
Acquirer as part of a viable, ongoing business involving the sale or
license of the Divested Products to customers, including a
demonstration to plaintiff's satisfaction that: (1) The divestiture is
for the purpose of competing effectively in the selling of the Divested
Products to customers; (2) the Acquirer has the managerial,
operational, technical and financial capability and intent to compete
effectively in the selling of the Divested Products to customers; and
(3) none of the terms of any divestiture agreement gives defendants the
ability artificially to raise the Acquirer's costs, impairs the
Acquirer's ability to maintain or innovate with respect to any of the
Divested Products, impairs the Acquirer's ability to support customers,
or otherwise interferes with the ability of the Acquirer to compete
effectively. Plaintiff may object to a proposed divestiture in the
manner prescribed in Section VI of this Amended Final Judgment.
Defendants shall not object to a divestiture by the trustee on any
grounds other than the trustee's malfeasance. Any such objections by
defendants shall be made in the manner prescribed in Section VI of this
Amended Final Judgment.
G. If the trustee has not accomplished such divestitures within one
hundred and twenty (120) days after its appointment, the trustee
thereupon shall file promptly with the Court a report setting forth:
(1) The trustee's efforts to accomplish the required divestitures; (2)
the reasons, in the trustee's judgment, why the required divestitures
have not been accomplished; and (3) the trustee's recommendations for
completing the required divestiture; provided, however, that to the
extent such report contain information that the trustee deems
confidential, such reports shall not be filed in the public docket of
the Court. No less than three (3) days prior to filing such report with
the Court, the trustee shall furnish a copy of such report to the
parties. Upon the filing of such report with the Court, each party
shall have the right to be heard and to make additional recommendations
consistent with the purpose of the trust. The Court shall thereafter
enter such orders as it shall deem appropriate in order to carry out
the purpose of the trust which may, if necessary, include extending the
trust and the term of the trustee's appointment by a period requested
by plaintiff, or entering an order divesting any or all of the Platinum
Assets to such Acquirer and upon such terms as the Court deems
appropriate.
V. Divestiture Agreement
Any agreement for divestiture of the Platinum Assets shall, at
minimum, convey the following:
A. All of Platinum's rights, titles and interests in all the
Platinum Assets (subject to Subsection V.E. below and subject to any
limitations on defendants' ability to convey, license, sublicense or
assign any such rights, as described in Subsection II.F. above).
B. The full and complete assignment of rights under all customer
licenses and maintenance agreements for the Divested Products, subject
to pro-rated allocation of maintenance revenue as specified in
Subsection II.F.(8) above; provided however, that in the event any such
licenses or maintenance agreements also encompass other products or
services, Acquirer shall not be entitled to receive any rights with
respect to such other products or services.
C. The right to obtain the interface information relating to the
integration of AutoSys/Zeke and AutoSys as it exists as of the date of
the filing of the Complaint; and in the event interface information
relating to any existing or future version of AutoSys under any name is
made available to any software developer or vendor, the right to obtain
such information by the same means and on the same terms and to the
same extent as it is made available to such other software developer or
vendor. No non-competition clause in or ancillary to any provision of
such interface information that may impair the Acquirer's ability
effectively to compete with defendants shall be enforceable in any
court, except defendants may restrict the use of such interface
information to establishing an interface between current and future
versions of AutoSys/Zeke and current and future versions of AutoSys.
D. The right to negotiate, without interference by defendants, for
the employment services of any of Platinum's employees who, prior to
the announcement of the subject acquisition, had employment
responsibilities relating to the Divested Products. If the Acquirer
employs any such person, any employment-related non-competition clause,
as it relates to the Divested Products, that runs in favor of
defendants shall be unenforceable by defendants in any court, except
for the persons identified on Exhibit 1 to the Amended Final Judgment,
which is filed under seal.
E. At Acquirer's option, any tangible assets that are used in
conjunction with the development, support or maintenance of the
Divested Products, excluding defendants' interests in real property,
fixtures and leases and shared equipment.
F. Such usual and customary warranties as are necessary to effect
the purposes of the trust.
VI. Notification
Two (2) days before proposing any divestiture, the trustee shall
notify plaintiff and defendants of the proposed divestiture and
proposed terms and conditions thereof. Defendants shall, within two (2)
days after receiving such notice, have an opportunity to confer with
the trustee and Acquirer, to state their opposition to terms and
conditions that they consider to be inconsistent with this Amended
Final Judgment, and to make such recommendations as to different or
additional terms and conditions that they believe are consistent with
this Amended Final Judgment. Within two (2) business days following
execution of a definitive agreement, contingent upon compliance with
the terms of this Amended Final Judgment, to effect, in whole or in
part, any proposed divestiture pursuant to this Amended Final Judgment,
the trustee shall notify plaintiff and
[[Page 32545]]
defendants of the proposed divestiture. The notice shall set forth the
details of the proposed transaction and list the name, address, and
telephone number of each person not previously identified who offered
to, or expressed an interest in or a desire to, acquire any ownership
interest in the business to be divested that is the subject of the
definitive agreement, together with full details of same. Within
fifteen (15) calendar days of receipt by plaintiff of such notice,
plaintiff in its sole discretion may request from defendants, the
proposed Acquirer, or any other third party additional information
concerning the proposed divestiture and the proposed Acquirer.
Defendants and the trustee shall furnish any additional information
requested from them within ten (10) 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 has been provided the additional
information requested from defendants, the proposed Acquirer, and any
third party, whichever is later, plaintiff shall provide written notice
to defendants and the trustee stating whether or not it objects to the
proposed divestiture. Any such notice objecting to a proposed
divestiture shall state the reasons therefore. If plaintiff provides
written notice to defendants and the trustee that it does not object,
then the divestiture may be consummated, subject only to defendants'
limited right to object to the sale under Section IV.F. of this Amended
Final Judgment. Upon objection by plaintiff, the divestiture proposed
under Section IV shall not be consummated. Any objection by defendants
under Section IV.F. of this Amended Final Judgment must be conveyed in
writing to plaintiff and the trustee within ten (10) calendar days
after the trustee has provided the notice of execution of a definitive
agreement required under this Section VI of this Amended Final
Judgment. Upon such objection by defendants, the proposed divestiture
shall not be consummated unless approved by the Court.
VII. Affidavits
A. Within ten (10) calendar days of the filing of the Hold Separate
Stipulation and Order in this matter, defendants shall deliver to
plaintiff an affidavit which describes in detail all actions defendants
have taken and all steps implemented on an on-going basis to preserve
the Platinum Assets pursuant to Section VIII of this Amended Final
Judgment and the Hold Separate Stipulation and Order entered by the
Court. The affidavit also shall describe, but not be limited to,
defendants' efforts to maintain the Platinum Assets as an active
competitor; to maintain at current levels the management, staffing,
sales, marketing and pricing of the Platinum Assets; and to commit
resources, development and support to the Platinum Assets at a level
not materially less than that committed prior to the announcement of
Computer Associates' proposed acquisition of Platinum. Defendants shall
deliver to plaintiff an affidavit describing any changes to the efforts
and actions outlined in defendants' earlier affidavit(s) filed pursuant
to this Section within ten (10) calendar days after such change is
implemented.
B. Until one year after such divestiture has been completed,
defendants shall preserve all records of all efforts made to preserve
the Platinum Assets and to effect the ordered divestitures.
VIII. Hold Separate Order
Until the divestitures required by the Amended Final Judgment have
been accomplished, defendants shall take all steps necessary to comply
with the Hold Separate Stipulation and Order entered by this Court.
Defendants shall take no action that would jeopardize the divestiture
of the Platinum Assets.
IX. Financing
Computer Associates is ordered and directed not to finance all or
any part of any divestiture to any person made pursuant to this Amended
Final Judgment, or to enter into any agreement requiring or permitting
the reporting to defendants of sales units or revenues of the products
included in the Platinum Assets by the Acquirer or the payment of
continuing royalties to defendants by the Acquirer.
X. Compliance Inspection
For purposes of determining or securing compliance with the Amended
Final Judgment and subject to any legally recognized privilege, from
time to time:
A. Duly authorized representatives of the United States Department
of Justice, upon written request of the Attorney General of the
Assistant Attorney General in charge of the Antitrust Division, and on
reasonable notice to defendants made to their principal offices, shall
be permitted
(1) Access during office hours of defendants to inspect and copy
all books, ledgers, accounts, correspondence, memoranda, and other
records and documents in the possession or under the control of
defendants, who may have counsel present, relating to the matters
contained in this Amended Final Judgment and the Hold Separate
Stipulation and Order; and
(2) Subject to the reasonable convenience of defendants and without
restraint or interference from them, to interview informally or to
dispose under oath and on the record, their officers, employees, and
agents, who may have counsel present, regarding any such matters.
B. Upon the written request of the Attorney General or of the
Assistant Attorney General in charge of the Antitrust Division,
defendants shall submit such written reports, under oath if requested,
with respect to any matter contained in the Amended Final Judgment and
the Hold Separate Stipulation and Order.
C. No information or documents obtained by the means provided in
this Section shall be divulged by a representative of plaintiff to any
person other than a duly 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 grant jury
proceedings), or for the purpose of securing compliance with this
Amended Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by
defendants to plaintiff, 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)(7) of the Federal Rules to
Civil Procedure, and defendants mark each pertinent page of such
material, ``Subject to claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure,'' then ten (10) calendar days notice
shall be given by plaintiff to defendants prior to divulging such
material in any legal proceeding (other than a grand jury proceeding)
to which defendants are not a party.
XI. Retention of Jurisdiction
Jurisdiction is retained by this Court for the purpose of enabling
any of the parties of this Amended Final Judgment to apply to this
Court at any time for such further orders and directions as may be
necessary or appropriate for the construction or carrying out of this
Amended Final Judgment, for the modification of any of the provisions
hereof, for the enforcement of compliance herewith, and for the
punishment of any violations hereof.
[[Page 32546]]
XII. Termination
Unless this Court grants an extension, this Amended Final Judgment
will expire upon the tenth anniversary of the date of its entry.
XIII. Public Interest
Entry of this Amended Final Judgment is in the public interest.
Dated: ________.
----------------------------------------------------------------------
United States District Judge.
Documents Under Seal
United States of America, Plaintiff, v. Computer Associates
International, Inc. and Platinum Technology International, Inc.,
Defendants.
[Civil Action No. 1:99CV01318; Judge: Gladys Kessler, Deck Type:
Antitrust, Date Stamp: ______ ]
Exhibit One to Proposed Amended Final Judgment, Pursuant to Order
To Place Exhibit One to Final Judgment Under Seal
Order Entered May 27, 1999
Order To Substitute Amended Final Judgment
The Court ORDERS as follows:
The proposed Amended Final Judgment filed by the United States as
Exhibit A to the Uncontested Motion to Substitute Amended Final
Judgment shall replace and supersede for all purposes the proposed
Final Judgment attached as Exhibit A to the Hold Separate Stipulation
and Order filed by the parties on May 25, 1999, and entered by the
Court on May 26, 1999;
PROVIDED, HOWEVER, THAT the document filed as Exhibit 1 to the
aforementioned proposed Final Judgment that was placed under seal by
the Clerk of the Court pursuant to the Court's Order to Place Exhibit
One to Final Judgment Under Seal, entered on May 27, 1999, shall remain
under seal and in effect as Exhibit 1 to the proposed Amended Final
Judgment.
Dated: ________.
----------------------------------------------------------------------
United States District Judge.
United States of America, Plaintiff, v. Computer Associates
International, Inc. and PLATINUM Technology International, Inc.,
Defendants.
[Civil Action No. 1:99CV01318; Judge Gladys Kessler, Deck Type:
Antitrust, Date Stamp: ______ ]
Competitive Impact Statement
The United States, pursuant to Section 2(b) of the Antitrust
Procedures and Penalties Act (``APPA''), 15 U.S.C. 16 (b)-(h), files
this Competitive Impact Statement relating to the proposed Amended
Final Judgment submitted for entry in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
On May 25, 1999 the United States filed a civil antitrust
Complaint, and on June 8, 1999, the United States filed amendments to
the Complaint (hereinafter the Complaint and the amendments to the
Complaint will be referred to collectively as ``Complaint, as
amended''). The Complaint, as amended, alleges that the proposed
acquisition by Computer Associates International, Inc. (``CA'') of
PLATINUM Technology International, Inc. (``Platinum'') would violate
Section 7 of the Clayton Act, 15 U.S.C. 18. CA is the document
competitor with market shares of 70% or more in a number of mainframe
systems management software products for the MVS (now named OS/390) and
VSE operating systems that run on IBM and IBM-compatible mainframe
computers. Platinum is either the only substantial competitor or is
among the most significant of a very few competitors attempting to
challenge CA's dominance in the sale of these mainframe systems
management software products. Platinum has aggressively marketed its
products to CA's customers by offering better pricing and more
responsive customer service.
The Complaint, as amended, alleges that the acquisition would
eliminate substantial competition, and result in higher prices, lower
quality product support, and less innovation, in seven product markets
for systems management software used with mainframe computers: MVS (OS/
390) job scheduling and rerun software; MVS (OS/390) tape management
software; MVS (OS/390) change management software, MVS (OS390) job
accounting and chargeback software, VSE job scheduling and rerun
software; VSE automated operations software, and VSE job accounting and
chargeback software. The Complaint, as amended, seeks adjudication that
CA's acquisition of Platinum would violate Section 7 of the Clayton
Act, 15 U.S.C. 18, and requests that the Court grant preliminary and
permanent injunctive relief, and such other relief as the Court deems
appropriate.
Simultaneously with the filing of the amendments to the Complaint,
the United States filed the proposed Amended Final Judgment. At the
time the original Complaint was filed on May 25, 1999, the United
States also filed a proposed Final Judgment and a Hold Separate
Stipulation and Order (``Hold Separate''); the Court entered the Hold
Separate on May 26, 1999. The proposed Amended Final Judgment that is
the subject of this Competitive Impact Statement supercedes the initial
proposed Final Judgment and provides for relief in all of the markets
that are the subject of allegations in the Complaint, as amended.
Prior to the announcement of CA's proposed acquisition of Platinum,
Platinum granted to another firm, CIMS Inc., an exclusive license,
together with an option to purchase, certain products, collectively
known as the ``CIMS product line,'' that Platinum had developed,
marketed and sold in the markets for MVS (OS/390) job accounting and
chargeback software and VSE job accounting and chargeback software. The
defendants proposed to complete the divestiture of the CIMS product
line by conveying to CIMS Inc. all of Platinum's remaining rights,
titles, and interests in the CIMS product line in a ``fix-it-first''
transaction to be approved by the United States and to be consummated
contemporaneously with CA's acceptance for payment of the tendered
shares of Platinum. Because such a conveyance would have resolved any
competitive problems that would otherwise arise if CA were to acquire
the CIMS product line, the original Complaint did not contain
allegations pertaining to the effect of the proposed acquisition in the
markets for MVS (OS/390) job accounting and chargeback software and VSE
job accounting and chargeback software. However, the United States
insisted and defendants agreed in the Hold Separate that the United
States could amend the Complaint and file a proposed Amended Final
Judgment if the defendants were unable to convey the CIMS product line
in the manner described above. The parties agreed that an amended
Complaint would add allegations in the product markets in which the
CIMS product line is developed, marketed and sold and an Amended Final
Judgment would add the CIMS product line to the group of products to be
divested and such additional provisions as the United States deems
necessary to obtain relief from the additional violations alleged in
the amended Complaint.
On May 28, 1999, subsequent to the filing of the original
Complaint, CA announced the expiration of its tender offer for Platinum
shares and acceptance for payment of all validly tendered shares, but
the defendants failed to make the requisite conveyance of the CIMS
product line. The United States therefore filed its amendments to the
Complaint on June 8, 1999, adding allegations pertaining to the markets
for MVS (OS/390) job accounting and
[[Page 32547]]
chargeback software and VSE job accounting and chargeback software.
The proposed Amended Final Judgment is designed to eliminate the
anticompetitive effects of CA's acquisition of Platinum, and requires
the defendants to divest, through a trustee to be appointed by the
United States, Platinum's products in the seven mainframe systems
management software product markets named in the Complaint, as amended
(``Divested Products''), together with certain related assets
(collectively, the ``Platinum Assets''). The defendants are required to
assist the trustee in accomplishing the required divestitures and may
not impede or interfere with the trustee's work. If the trustee is
unable to complete the required divestitures within 120 days after
appointment, the Court is authorized to enter such orders as it shall
deem appropriate to carry out the purpose of the trust, which may, if
necessary, include extending the trustee's appointment by a period
requested by the United States, or directly ordering the divestiture of
the Platinum Assets on such terms as the Court deems appropriate.
The Hold Separate includes a stipulation by the United States and
the defendants that the proposed Amended Final Judgment may be entered
after compliance with the APPA. The Hold Separate also obligates the
defendants to comply with the terms of the proposed Amended Final
Judgment until it is entered by the Court, or until all appeals have
been completed stemming from any court ruling declining entry of the
proposed Amended Final Judgment. Until all divestitures have been
completed, the Hold Separate specifies that the defendants will take
certain steps to ensure that the Platinum Assets will be held and
operated separate and part from the defendants' and assets and
businesses. The defendants must appoint an interim, separate and
independent management acceptable to the United States to manage the
business operations relating the Platinum Assets until the divestitures
have been completed. Confidential business information relating to the
Platinum Assets will, to the maximum extent feasible, be screened from
the defendants. The defendants must maintain promotional and sales
efforts, development funding, and technical support for the Divested
Products. In particular, the defendants are required to maintain at
current or previously approved levels, whichever are higher, research
and development funding for the Divested Products and to continue to
serve the needs of existing customers. The purpose of these interim
steps is to ensure that the Platinum Assets will continue to be
maintained and operated, until the divestitures are completed, as an
independent, ongoing and economically viable concern, free from
defendants' control and influence.
Entry of the proposed Amended Final Judgment would terminate this
action, except that the Court would retain jurisdiction to construe,
modify, or enforce the provisions of the proposed Amended Final
Judgment and to punish violations thereof.
II. Description of the Events Giving Rise to the Alleged Violation
A. The Defendants and the Proposed Transaction
CA is a Delaware corporation with its principal place of business
in Islandia, New York. In its 1998 fiscal year, CA had revenues in
excess of $4.7 billion and net profits of $1.17 billion. CA produces
and markets software for a variety of computers and operating systems,
including systems management software for mainframe computers running
the two most popular operating systems, IBM's MVS (now renamed ``OS/
390'' by IBM), and VSE operating systems. Aside from IBM, which writes
the operating system software that runs almost all mainframe computers,
CA is the largest vendor of software for IBM and IBM-compatible
mainframe computers. CA is also a significant vendor of systems
management software and other software for computers and computer
networks running UNIX or Windows NT (recently renamed Windows 2000)
operating systems.
Platinum is a Delaware corporation with its principal place of
business in Oakbrook Terrace, Illinois. Platinum's fiscal year 1998
revenues exceeded $968 million. Platinum sells a variety of computer
software and related services for mainframe, UNIX, and Windows NT
computer systems and is also a leading vendor of systems management
software for IMB and IMB-compatible mainframe computers.
On March 31, 1999, CA filed with the United States a premerger
notification stating that it had entered into a definitive agreement
with Platinum to purchase all issued and outstanding shares of
Platinum's common stock through a $3.5 billion cash tender offer. CA
announced on May 28, 1999, that it had accepted for payment all validly
tendered shares, which comprise about 98% of Platinum's outstanding
common stock. This acquisition forms the basis of the government's
suit.
B. Mainframe Systems Management Software
Mainframe computers are the large and powerful computers used by
industrial, commercial, educational, and governmental enterprises for
large scale data processing applications. Mainframe computers provide
unique storage, throughput, and security features and functions that
make them superior data processing devices for large corporate and
institutional computer users throughout the world.
An operating system is software that controls the operational
resources of the computer (including the central processor unit,
memory, data storage devices, and other hardware components) and allows
``applications'' software (programs that perform user-directed tasks
requested of the computer, such as programs that perform transactions
or maintain payroll, inventory, sales, and other business accounts of a
company) to run on the computer. The vast majority of the world's
mainframe computers run with operating systems developed by IBM, of
which the two most widely used are the MVS (OS/390) and VSE operating
systems. MVS (OS/390) is generally used by users of larger mainframes
and those needing the highest levels of performance and functionality.
VSE is a significantly less costly operating system that has less
capability and fewer features. VSE is a significantly less costly
operating system that has less capability and fewer features. VSE is
generally used with smaller mainframes, with fewer users and smaller
data sets.
Systems management software is used to help manage, control, or
enhance the performance of mainframe computers. While IBM's mainframe
operating systems contain some limited systems management capabilities,
separate systems management software programs such as the products
offered by CA and Platinum provide additional functionality that is
demanded by most mainframe users. Mainframe systems management software
generally is designed to function only with a specific operating
system. Therefore, users of MVS (OS/390) must purchase systems
management software designed specifically for that operating system,
while VSE users are limited to buying systems management software
designed for the VSE operating system. Users generally cannot switch
between the MVS (OS/390) and VSE operating systems without facing very
substantial costs. Therefore, customers using one mainframe operating
system are unlikely to switch to another to escape
[[Page 32548]]
even a very substantial increase in price of the systems management
software on their present mainframe operating system platform.
In recent years, some mainframe computer systems users have
transferred applications from their mainframes to distributed client/
server computing environments. However, most users continue to remain
highly dependent on their mainframe computers for other ``mission-
critical'' business applications which cannot be switched at all or in
an economically viable manner. Moreover, conversion of applications
from mainframe to distributed client/server computing environments
entails substantial costs and time, is generally disruptive of business
operations and is fraught with risks. The cost of the mainframe systems
management software that is the subject of the violation alleged in the
Complaint, as amended, constitutes only a small portion of the overall
operating costs of a mainframe computer system. Therefore, users would
not switch from mainframe computer systems to distributed client/server
computing systems to escape even a very substantial increase in the
price of these mainframe systems management software products.
CA and Platinum both develop and sell a variety of mainframe
computer systems management software products and are direct
competitors in the development and sale to mainframe users of each of
the products that is the subject of the violation alleged in the
Complaint, as amended, and described below. Each specific product or
product combination solves particular problems or meets specific needs
of mainframe users, and users cannot economically switch to different
products to obtain the same functionality.
(1) Job scheduling and rerun software for the MVS (OS/390)
operating system. Job scheduling and rerun software directs a mainframe
to prioritize and run particular ``batch'' processing operations
(called ``jobs'') based on user requirements as to time, date, and
other parameters, to link jobs together so that they are performed in
the correct sequence, and to organize the results of these jobs. Rerun
software interfaces with the job scheduler and automatically collects
the data on jobs that were not operated successfully and performs the
necessary remedial operations and reruns the job or alerts the operator
that intervention is necessary. Rerun software is almost always sold to
those users who need it for use together with the specific job
scheduling software product for which it was designed to inter operate.
(2) Job scheduling and rerun software for VSE operating system.
These VSE products perform essentially the same functions as MVS (OS/
390) job scheduling software.
(3) Tape management software for the MVS (OS/390) operating system.
Tape management software is used to control the cataloguing, loading,
formatting, and reading of the magnetic tapes used for archival storage
of data processed by mainframes. Many mainframe computer system users
store information on hundreds or thousands of tapes, and tape
management software specifies which tapes, and which information on the
tapes, need to be loaded for particular operations. Tape management
software also protects the information on the tape by ensuring that
active information is not overwritten or erased.
(4) Change management software for the MVS (OS/390) operating
system. Change software tracks, manages, and archives versions of
computer programs while those programs are being developed, modified,
and tested. It also helps to control the versions of the programs as
they are used in normal business activities by the customer, when there
may be a need to modify, repair, or update the programs, or to
uninstall the programs and reinstall a prior version that is known to
work.
(5) Automated operations software for the VSE operating system.
Automated operations software is used to automate computer management
to reduce human interaction with the system and thereby improve
efficiency and minimize errors. Among the functions of automated
operations software is automating computer console operations, message
and error handling, and enabling systems management from remote
locations or computers.
(6) MVS and OS/390 job accounting and chargeback software. Job
accounting and chargeback software monitors the use of computer
resources so that computer resource costs may be allocated and charged
among internal corporate divisions and/or third party client users. The
software collects data that shows which computer resources were being
by whom, when, and for how long. This data is then used to measure,
allocate and charge shared costs to internal corporate divisions and/or
third party client users. Job accounting and chargeback software,
including such software sold by CA and Platinum, is often combined with
a capacity planning software feature, which uses the data compiled by
the job accounting and chargeback software to report on measures such
as system response performance, system availability, resource
utilization, and future utilization projections.
(7) VSE job accounting and chargeback software. These VSE products
perform essentially the same functions as MVS and OS/390 job accounting
and chargeback software.
Even substantial price increases for the software products
described above would not cause users to switch to any other types of
mainframe software products or software products for different
operating systems. Each of the systems management products for each
operating system, therefore, constitutes a separate relevant product
market in which to assess the competitive effects of CA's acquisition
of Platinum. Vendors sell these products to customers located
throughout the United States, and for each of the product markets, the
United States constitutes a relevant geographic market in which to
assess the competitive effects of the proposed acquisition.
D. Competition Between CA and Platinum
CA and Platinum compete against each other for sales of the above-
described MVS (OS/390) and VSE systems management software products
throughout the United States. They compete with respect to license
royalties they charge users of systems management products and the
flexibility of the license terms they offer. Both firms market their
products under license that require royalty payments for the right to
use the product and payments for maintenance of and upgrades to the
products.
Moreover, CA and Platinum compete in providing product support and
service to their customers. Due to the ``mission-critical'' nature of
the work done with mainframe computers, users highly value the speed
and effectiveness of a vendor's installation, maintenance, and
technical support of systems management products. CA and Platinum also
compete to improve, upgrade, and enhance their systems management
products, both in terms of developing products of greater performance
or functionality and in terms of improving operability so that the
products become easier to install, use, and maintain.
In addition to competition for new users, substantial competition
in the markets for these mainframe systems management software products
primarily occurs when current users, and particularly current users of
CA's products, consider whether they should convert to a different
product. Platinum has aggressively marketed its products in competition
with CA by offering better pricing, more responsive
[[Page 32549]]
customer services, and improved product features. Because conversion
from one product to another product is costly, difficult, time-
consuming, and potentially disruptive to a firm's ongoing mainframe
computer operations and overall business, most users are relevant to
incur the costs and risks of switching. In particular, Platinum has
invested significant resources in demonstrating that, notwithstanding
the costs and risks of conversion, Platinum's products are superior
alternatives for current users of CA's products. This competition from
Platinum has caused CA to respond with lower prices, better service,
and improved product features for its own products.
E. Anticompetitive Consequences of the Acquisition
The Complaint, as amended, alleges that CA's acquisition of
Platinum would substantially lessen competition in each of the markets
of the systems management software products described above. The
combined annual U.S. sales of all competitors in the relevant product
markets exceed $590 million. Each of the relevant markets already is
highly concentrated, and the acquisition would substantially increase
concentration. In each market, CA already has a dominant share of 70%
to 90%. Platinum is the only substantial competitor or among the most
significant of only a few competitors in these markets.
The Complaint, as amended, alleges that in the markets for each of
the products described above, the reduction or elimination of
competition from CA's acquisition of Platinum would likely lead to
higher prices, lower levels of product service and support, and a
lessening of product innovations and development. The Complaint, as
amended, further alleges that the competitive harm resulting from the
acquisition is not likely to be mitigated by the possibility of new
entry. Entry into any of the markets would entail expenditures of
substantial costs and time for the development of a competitive product
that would be acceptable to mainframe customers. A new entrant would
also be required to invest significant time and resources to develop a
reputation as a reliable vendor of these products to attract
significant sales in what are substantially product replacement
markets. Such entry would not be timely, likely, or sufficient in scale
to counteract or deter a price increase or a reduction in service or
product quality in any of the relevant markets.
III. Explanation of the Proposed Amended Final Judgment
The proposed Amended Final Judgment is designed to preserve
competition in each of the mainframe systems management software
markets in which CA's acquisition of Platinum would be anticompetitive.
The proposed Amended Final Judgment will remain in effect for ten years
and requires CA to divest all of the Platinum Assets through a trustee
selected by the United States, and imposes obligations on CA to
cooperate in the trustee's sale efforts.
The propose Amended Final Judgment provides that the assets must be
divested in such a way as to satisfy the United States that the
Platinum Assets can and will be operated by the purchaser or purchasers
as part of a viable, ongoing business or businesses that can compete
effectively in the selling of the Divested Products. The CIMS product
line will be sold subject to any rights in those Divested Products held
by CIMS Inc. as a result of the licensing agreement and option to
purchase that it obtained from Platinum prior to CA's announcement of
its proposed acquisition of Platinum. The proposed Amended Final
Judgment provides that CA will pay all costs and expenses of the
trustee. The trustee's commission will be structured so as to provide
an incentive for the trustee based on the price obtained and the speed
with which divestiture is accomplished. After the trustee's appointment
becomes effective, the trustee will confer regularly with the parties
and file biweekly reports with the parties and the Court setting forth
the trustee's efforts to accomplish divestiture. At the end of 120
days, if the divestiture has not been accomplished, the trustee and the
parties will make recommendations to the Court, which shall enter such
orders as appropriate in order to carry out the purpose of the trust,
including extending the trust or the term of the trustee's appointment
or ordering the divestiture of any or all of the Platinum Assets to
such purchasers and on such terms as the Court deems appropriate.
The proposed Amended Final Judgment sets forth the minimum assets
and rights that must be conveyed in a divestiture. These include
requiring the transfer to the purchaser or purchasers of: all of
Platinum's transferrable ownership rights in the Divested Products, as
well as Platinum's rights in other assets included in the Platinum
Assets that are used in conjunction with the development, support or
maintenance of the Divested Products; all customer licenses and
maintenance agreements for the Divested Products; broad rights to the
information necessary to service customers, to interface Platinum's job
scheduling products with the Platinum UNIX/NT job scheduling product to
be acquired by CA, and generally to compete with CA and other vendors
of software products in the markets described above; and the right to
negotiate, without interference from CA, for the employment services of
the Platinum employees who have job responsibilities relating to the
Divested Products.
The proposed Amended Final Judgment also prohibits CA from
financing the purchase of the Platinum Assets or entering into
continuing royalty payment arrangements with any purchaser of the
Divested Products. This provision prevents CA from having a
relationship with its new competitor that might impair competition
between the new competitor and CA.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act (15 U.S.C. 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
attorney's fees. Entry of the proposed Amended Final Judgment 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. 16(a)), the proposed Amended Final Judgment has no prima facie
effect in any subsequent private lawsuit that may be brought against
the defendants.
V. Procedures Available for Modification of the Proposed Amended
Final Judgment
A. APPA Procedures
The United States and defendants have stipulated that the proposed
Amended Final Judgment may be entered by the Court 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 Amended Final Judgment is in the public
interest.
The APPA provides a period of at least 60 days preceding the
effective date of the proposed Amended Final Judgment within which any
person may submit to the United States written comments regarding the
proposed Amended Final Judgment. Any person who wishes to comment
should do so
[[Page 32550]]
within (60) days of the date of publication of this Competitive Impact
Statement in the Federal Register. The United States will evaluate and
respond to the comments. All comments will be given due consideration
by the Department of Justice, which remains free to withdraw its
consent to the proposed Amended Final Judgment at any time prior to
entry. The comments and the response of the United States will be filed
with the Court and published in the Federal Register.
Written comments should be submitted to: Nancy M. Goodman, Chief,
Computers and Finance Section, Antitrust Division, United States
Department of Justice, 600 E Street, N.W., Suite 9500, Washington, DC
20530.
B. The Court's Continuing Jurisdiction
The proposed Amended Final Judgment provides 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 Amended Final Judgment.
VI. Alternatives to the Proposed Amended Final Judgment
The United States considered, as an alternative to the proposed
Amended Final Judgment, litigation against defendants CA and Platinum.
The United States could have brought suit and sought preliminary and
permanent injunctions against CA's acquisition of Platinum. The United
States is satisfied, however, that the complete, and irrevocable
divestiture of the Platinum Assets to a suitable purchaser and the
other relief outlined in the proposed Amended Final Judgment will
preserve competition in the relevant mainframe systems management
product markets alleged in the Complaint, as amended, that would
otherwise have been impaired by the acquisition. The relief specified
in the proposed Amended Final Judgment will achieve all of the
competitive benefits that the United States could have obtained through
protracted litigation, but avoids the time, expense, and uncertainty of
a full trial on the merits of the government's Complaint, as amended.
VII. Standard of Review Under the APPA for the Proposed Amended
Final Judgment
The APPA requires that proposed final judgments in antitrust cases
brought by the United States be subject to a sixty-day comment period,
after which the Court shall determine whether entry of the proposed
final judgment ``is in the public interest.'' In making that
determination:
[T]he court may consider--
(1) The competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration or relief sought, anticipated effects of
alternative remedies actually considered, and any other
considerations bearing upon the adequacy of such judgment;
(2) The impact of entry of such judgment 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. 16(e) (emphasis added). As the Court of Appeals for the
District of Columbia Circuit held, the APPA permits a court to
consider, among other things, the relationship between the remedy
secured and the specific allegations set forth in the government's
complaint, whether the decree is sufficiently clear, whether
enforcement mechanisms are sufficient, and whether the decree may
positively harm third parties. United States v. Microsoft, 56 F.3d
1448, 1458-62 (D.C. Cir. 1995). The courts have recognized that the
term `` `public interest' take[s] meaning from the purposes of the
regulatory legislation.'' NAACP v. Federal Power Comm'n, 425 U.S. 662,
669 (1976). Since the purpose of the antitrust laws is to preserve
``free and unfettered competition as the rule of trade,'' Northern
Pacific Railway Co. v. United States, 356 U.S. 1, 4 (1958), the focus
of the ``public interest'' inquiry under the APPA is whether the
proposed Amended Final Judgment would serve the public interest in free
and unfettered competition. United States v. American Cyanamid Co. 719
F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984);
United States v. Waste Management, Inc., 1985-2 Trade Cas. para.
66,651, at 63,046 (D.D.C. 1985). In conducting this inquiry, ``the
Court is no where 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.''
\1\ Rather,
---------------------------------------------------------------------------
\1\ 119 Cong. Rec. 24598 (1973), See United States v. Gillette
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest''
determination can be made properly on the basis of the Competitive
Impact Statement and Response to Comments filed pursuant to the
APPA. Although the APPA authorizes the use of additional procedures,
15 U.S.C. 16(f), those procedures are discretionary. A court need
not invoke any of them unless it believes that the comments have
raised significant issues and that further proceedings would aid the
court in resolving those issues. See H.R. 93-1463, 93rd Cong. 2d
Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News 6535,
6538.
[a]bsent a showing of corrupt failure of the government to discharge
its duty, the Court, in making its public interest finding, should *
* * carefully consider the explanations of the government in the
competitive impact statement and its responses to comments in order
to determine whether those explanations are reasonable under the
---------------------------------------------------------------------------
circumstances.
United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas.
para.61.508, at 71,980 (W.D. Mo. 1977).
Accordingly, 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.), cert. denied, 454 U.S. 1083
(1981). See also Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent
requires that:
the 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.\2\
---------------------------------------------------------------------------
\2\ United States v. Bechtel, 648 F.2d at 666 (citations
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d
at 463; United States v. National Broadcasting Co., 449 F. Supp.
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F.
Supp. at 716. See also United States v. American Cyanamid Co., 719
F.2d at 565.
A proposed final judgment is an agreement between the parties which
is reached after exhaustive negotiations and discussions. Parties do
not hastily and thoughtlessly stipulate to a decree because, in doing
---------------------------------------------------------------------------
so, they
waive their right to litigate the issues involved in the case and
thus save themselves the time, expense, and inevitable risk of
litigation. Naturally, the agreement reached normally embodies a
compromise; in exchange for the saving of cost and the elimination
of risk, the parties each give up something they might have won had
they proceeded with the litigation.
United States v. Armour & Co., 402 U.S. 673, 681 (1971).
the proposed Amended Final Judgment therefore, should not be
reviewed under a standard of whether it is certain to eliminate every
anticompetitive effect of a particular practice or whether it mandates
[[Page 32551]]
certainty of free competition in the future. Court approval of a final
judgment requires a standard more flexible and less strict than the
standard required for a finding of liability. ``[A] proposed decree
must be approved even if it falls short of the remedy the court would
impose on its own, as long as it falls within the range of
acceptability or is `within the reaches of public interest.' (citations
omitted).''\3\
---------------------------------------------------------------------------
\3\ United States v. American Tel. and Tel Co., 552 F. Supp.
131, 150 (D.D.C. 1983), aff'd sub nom. Maryland v. United States,
460 U.S. 1001 (1983) quoting United States v. Gillette Co., supra,
406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F.
Supp. 619, 622 (W.D. Ky. 1985).
---------------------------------------------------------------------------
VIII. Determinative Documents
In deciding to consent to the proposed Amended Final Judgment, the
United States considered no documents that were determinative within
the meaning of the APPA. Consequently, no such documents have been
filed with this Competitive Impact Statement.
Dated: June 8, 1999.
Respectfully submitted,
Kent Brown, VA Bar #18300; Kenneth W. Gaul, D.C. Bar #415456; Weeun
Wang; Sanford M. Adler; Jeremy W. Eisenberg; Richard Koffman; Melinda
Foster; Jeremy Feinstein,
Attorneys, Antitrust Division, U.S. Department of Justice, Computers &
Finance Section, Suite 9500, 600 E Street, NW., Washington, DC 20530,
(202) 307-6200.
Certificate of Service
The undersigned certifies that she is a paralegal employed by the
United States Department of Justice, and is a person of such age and
discretion to be competent to serve papers. The undersigned further
certifies that on June 8, 1999, she caused true copies of the
1. Amendments to Complaint (together with attached Exhibit)
2. Uncontested Motion to Substitute Amended Final Judgment (together
with the attached Exhibit)
3. Competitive Impact Statement
to be served upon the person in the manner stated below:
Counsel for Computer Associates International, Inc. and PLATINUM
technology International, Inc.--Richard L. Rosen, Esq., Arnold &
Porter, 555 12th Street, NW., Washington, DC 20004.
(by hand delivery)
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury
that the foregoing is true and correct.
Executed in Washington, DC, this 8th day of June 1999.
Joann Maguire.
[FR Doc. 99-15419 Filed 6-16-99; 8:45 am]
BILLING CODE 4410-11-M
