81968 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices

‘‘sixty days’’ until February 27, 2012. readily apparent and, if lost or stolen, 450 Fifth Street NW., Suite 1010, This process is conducted in accordance ATF will be immediately notified on Washington, DC 20530 (telephone: (202) with 5 CFR 1320.10. discovery of the loss or theft. ATF 514–2481), on the Department of If you have comments especially on requires that records be kept 5 years Justice’s Web site at http:// the estimated public burden or from the date a transaction occurs or www.usdoj.gov/atr, and at the Office of associated response time, suggestions, until discontinuance of business or the Clerk of the United States District or need a copy of the proposed operations by the licensee. Court for the District of Columbia. information collection instrument with (5) An estimate of the total number of Copies of these materials may be instructions or additional information, respondents and the amount of time obtained from the Antitrust Division please contact William J. Miller, estimated for an average respondent to upon request and payment of the [email protected], Chief, respond: It is estimated that 2,008 copying fee set by Department of Justice Explosives Industry Programs Branch, respondents will take 15 minutes to regulations. 99 New York Ave. NE., Washington, DC maintain each record. Public comment is invited within 60 20226. (6) An estimate of the total public days of the date of this notice. Such Written comments and suggestions burden (in hours) associated with the comments, and responses thereto, will from the public and affected agencies collection: There are an estimated be published in the Federal Register concerning the proposed collection of 130,520 annual total burden hours and filed with the Court. Comments information are encouraged. Your associated with this collection. should be directed to James J. Tierney, comments should address one or more If additional information is required Chief, Networks & Technology of the following four points: contact: Jerri Murray, Department Enforcement Section, Antitrust —Evaluate whether the proposed Clearance Officer, Policy and Planning Division, United States Department of collection of information is necessary Staff, Justice Management Division, Justice, 450 Fifth Street, NW., Suite for the proper performance of the Department of Justice, Two Constitution 7100, Washington, DC 20530 (202) 307– functions of the agency, including Square, Room 2E–508, 145 N Street NE., 6640). whether the information will have Washington, DC 20530 Patricia A. Brink, practical utility; Jerri Murray, — Evaluate the accuracy of the agencies Director of Civil Enforcement. Department Clearance Officer, PRA, U.S. UNITED STATES DISTRICT COURT FOR estimate of the burden of the Department of Justice. proposed collection of information, THE DISTRICT OF COLUMBIA including the validity of the [FR Doc. 2011–33374 Filed 12–28–11; 8:45 am] UNITED STATES OF AMERICA, methodology and assumptions used; BILLING CODE 4410–FY–P Antitrust Division —Enhance the quality, utility, and U.S. Department of Justice clarity of the information to be 450 Fifth Street NW., Suite 7100 DEPARTMENT OF JUSTICE Washington, DC 20530 collected; and Plaintiff, —Minimize the burden of the collection Antitrust Division of information on those who are to v. ¨ respond, including through the use of United States v. Deutsche Bo¨ rse AG DEUTSCHE BORSE AG, appropriate automated, electronic, Mergenthalerallee 61 and NYSE Euronext; Proposed Final 65760 Eschborn mechanical, or other technological Judgment and Competitive Impact Germany collection techniques or other forms Statement and of information technology, e.g., NYSE EURONEXT, permitting electronic submission of Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 11 Wall Street responses. New York, NY 10005 15 U.S.C. 16(b)–(h), that a proposed Summary of Information Collection Final Judgment, Stipulation and Defendants. (1) Type of Information Collection: Competitive Impact Statement have Case: 1:11–cv–02280 been filed with the United States Assigned To: Beryl A. Howard Revision of a currently approved Date: 12/22/2011 collection. District Court for the District of Description: Antitrust (2) Title of the Form/Collection: Columbia in United States of America v. Records and Supporting Data: Daily Deutsche Bo¨ rse AG and NYSE Euronext, COMPLAINT Summaries, Records of Production, Civil Action No. 1:11–cv–02280. On The United States of America, acting under Storage and Disposition and Supporting December 22, 2011, the United States the direction of the Attorney General of the Data by Explosives Manufacturers. filed a Complaint alleging that the United States, brings this civil action (3) Agency form number, if any, and proposed merger of Deutsche Bo¨rse AG pursuant to the antitrust laws of the United the applicable component of the and NYSE Euronext would violate States to enjoin the proposed merger of Deutsche Bo¨rse AG (‘‘DB’’) and NYSE Department of Justice sponsoring the Section 7 of the Clayton Act, 15 U.S.C. Euronext (‘‘NYSE’’) and to obtain such other collection: Form Number: None. Bureau 18. The proposed Final Judgment, filed equitable relief as the Court deems of Alcohol, Tobacco, Firearms and the same time as the Complaint, appropriate. The United States alleges as Explosives. requires Deutsche Bo¨rse AG’s subsidiary follows: (4) Affected public who will be asked to divest its interest in Direct Edge NATURE OF ACTION or required to respond, as well as a brief Holdings LLC within two years and to abstract: Primary: Business or other for- take the necessary steps to remove its 1. DB is among the largest operators of profit. Other: None. These records show affiliates from governance of Direct financial exchanges in the world. While most daily activities in the manufacture, use, of its businesses are in Europe, DB, through Edge. various subsidiaries, is also the largest storage, and disposition of explosive Copies of the Complaint, proposed unitholder of Direct Edge Holdings LLC materials by manufacturers. The records Final Judgment and Competitive Impact (‘‘Direct Edge’’), the fourth-largest operator of are used to show where and to whom Statement are available for inspection at stock exchanges in the United States. Direct explosive materials are sent, thereby the Department of Justice, Antitrust Edge competes head-to-head with NYSE and ensuring that any diversion will be Division, Antitrust Documents Group, is an exchange innovator, leading in

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices 81969

technology, pricing, and in the development Frankfurt-based Eurex Group, a leading and the current NYSE CEO will remain CEO of exchange models. European derivatives exchange operator. DB of the combined entity. 2. NYSE operates some of the oldest, has announced an agreement to buy the RELEVANT MARKETS largest, and most prestigious stock exchanges remaining equity in Eurex after DB completes in the United States. It stands at the center its merger with NYSE. Eurex owns Displayed Equities Trading Services International Securities Exchange Holdings, of American financial markets, with its 12. Displayed equities trading services Inc. (‘‘ISE’’), a leading options exchange in exchanges handling roughly a third of the comprise a relevant antitrust product market New York that also owns a 31.54% equity equities traded daily in the United States, and a ‘‘line of commerce’’ within the interest in Direct Edge. In 2010, DB’s and considerably more for certain equities meaning of Section 7 of the Clayton Act. subsidiaries earned substantial revenues from and certain times of day. NYSE exchanges These services include providing sales in the United States. list the vast majority of the listed exchange- mechanisms and ancillary services to 9. NYSE is a publicly traded Delaware traded products, including the majority of facilitate the public purchase and sale of corporation with its principal place of exchange-traded funds, and they supply key exchange-traded stocks (those defined as business located in New York, New York. market data to customers making investment ‘‘NMS stock’’ under Rule 600(b)(47) of The company operates financial exchanges in decisions. Regulation NMS, 17 C.F.R. § 200 et seq.). the United States and Europe. In the United 3. On February 15, 2011, NYSE and DB These services are offered mainly by national States, NYSE operates three stock exchanges: agreed to merge in a transaction worth stock exchanges registered under Section 6 of (i) the New York Stock Exchange LLC; (ii) roughly $9 billion. NYSE and DB propose to the Securities Exchange Act of 1934, 15 NYSE Arca, Inc., an all-electronic exchange; combine under a new Dutch holding U.S.C. § 78f, and also by electronic and (iii) NYSE Amex LLC, an exchange that company (‘‘NewCo’’), which would be the communications networks (‘‘ECNs’’) lists the stock of primarily small- and largest exchange group in the world, with regulated by Regulation ATS, 17 C.F.R. dual headquarters in Frankfurt and New medium-sized companies. NYSE generates § 242.300 et seq. York. NewCo would own 100% of NYSE and revenue from, among other things, listing 13. Several key attributes separate 31.54% of Direct Edge. fees, stock trading transaction fees, market displayed from undisplayed or ‘‘dark’’ 4. The proposed transaction would violate data licensing fees, and technology licensing equities trading services, including the Section 7 of the Clayton Act, 15 U.S.C. § 18, arrangements. In 2010, NYSE earned over $3 continuous pre-trade publication of the best- because it would substantially lessen billion in total revenues from within the priced quotations for buying and selling competition and potential competition in at United States. exchange-traded stocks in a national least three lines of commerce in the United 10. Direct Edge is a Delaware limited consolidated data stream, the display of States: (a) displayed equities trading services; liability company with its principal place of certain customer limit orders (offers to buy (b) listing services for exchange-traded business in Jersey City, New Jersey. Direct and sell stock at particular prices), and the products (‘‘ETPs’’), including exchange- Edge, through its subsidiary Direct Edge provision of deep and reliable liquidity for a traded funds (‘‘ETFs’’); and (c) real-time Holdings, Inc., owns and operates two broad array of exchange-traded stocks. proprietary equity data products. leading U.S. stock exchanges, EDGA Displayed trading venues, in particular those Exchange, Inc. and EDGX Exchange, Inc. operated by NYSE, The NASDAQ OMX JURISDICTION, VENUE AND COMMERCE Direct Edge is majority-owned by a group Group, Inc., Direct Edge, and BATS Global 5. The United States brings this action including ISE, Goldman Sachs Group Inc., Markets, Inc. form the backbone of the under Section 15 of the Clayton Act, as Citadel Investment Group LLC, and Knight American national market system and over amended, 15 U.S.C. § 25, to prevent and Capital Group Inc. ISE owns 31.54% of Direct the past several years have accounted for restrain defendants from violating Section 7 Edge and holds certain key voting and roughly 65% to 75% of the overall average of the Clayton Act, as amended, 15 U.S.C. special veto rights, such as the right to veto daily trading volume in the United States. § 18. entry by Direct Edge into options trading. ISE Broker-dealers, institutional investors, and 6. The Court has subject matter jurisdiction also has the right to appoint three members other customers rely on displayed trading over this action and the defendants pursuant to the Direct Edge board of managers and one venues to provide meaningful price to Section 15 of the Clayton Act, as amended, member to each of the corporate boards of discovery for exchange-traded stocks and to 15 U.S.C. § 25, and 28 U.S.C. §§ 1331, EDGA Exchange, Inc. and EDGX Exchange, act as exchanges of last resort, especially for 1337(a), and 1345. NYSE and DB provide and Inc. Goldman Sachs, Citadel, and Knight thinly traded stocks, in times of market sell displayed equity trading services and each own 19.9% of Direct Edge. The volatility or stress. real-time proprietary equities trading data. remaining 8.76% is owned by a group of five 14. Undisplayed trading services account NYSE also provides and sells listing services brokers, including affiliates of JP Morgan for roughly 25% to 35% of total average daily for exchange traded products. Sales of these Chase & Co. (through LabMorgan Corp.), trading volume and serve a very different services in the United States represent a Bank of America (through Merrill Lynch L.P. purpose for investors: to allow for regular, continuous, and substantial flow of Holdings, Inc.), Nomura Securities anonymous matching of orders without interstate commerce, and have a substantial International, Inc., Deutsche Bank USA publicly revealing the intention to trade effect upon interstate commerce. (through DB US Financial Markets Holding before execution. Institutional investors and 7. This Court has personal jurisdiction over Corporation), and Sun Partners LLC. Direct other traders use these services to minimize each defendant and venue is proper in this Edge’s exchanges compete head-to-head with the likelihood that their trades will cause the District under Section 12 of the Clayton Act, the NYSE exchanges. In 2010, Direct Edge stock price to move against their interest. 15 U.S.C. § 22, and 28 U.S.C. §§ 1391(b)(1) earned substantial revenues in the United Most of the undisplayed trading centers offer and (c). Defendants transact business within States. less liquidity on most stocks (indeed, an the District of Columbia. DB and NYSE 11. DB and NYSE have proposed to merge alternative trading system providing acknowledge personal jurisdiction in this into a NewCo that will house all their current undisplayed trading must account for less District and consent to venue. corporate holdings. NewCo will be a Dutch than 5% trading volume in a stock or the holding company, with dual headquarters in venue automatically becomes displayed by DEFENDANTS AND THE TRANSACTION New York City and outside Frankfurt, regulations promulgated by the U.S. 8. DB is a German Aktiengesellschaft that Germany. Combined annual net revenues of Securities and Exchange Commission operates financial exchanges and related NewCo are expected to be over $5 billion, (‘‘SEC’’)) and base their prices on those businesses in the United States and Europe. with revenue sources including market data prevailing in the displayed equities trading It generates revenue from, among other and technology; equities trading and listings; centers. things, listing fees, stock trading transaction derivatives trading and listings; and 15. The relevant geographic market is the fees, market data licensing fees, and settlement and custody. NewCo will own United States. Trading equities on a foreign technology licensing arrangements. Through many of the world’s leading brands in exchange is not an adequate substitute for its subsidiaries, DB is the largest holder of finance. Its post-merger leadership will be trading on an exchange in the United States. equity in Direct Edge, a leading stock split between former executives from both Trading on an exchange outside the United exchange operator in the United States. DB NYSE and DB. The current DB Chief States exposes traders to risks like foreign owns 50% of the equity and controls Executive Officer will stay on as Chairman, exchange risk, country risk, reputational risk,

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES 81970 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices

different or potentially lax regulatory non-transitory increase in the price of ETP trading times, lower prices, and new market environments for trading, lack of analyst listings. Not enough customers would switch models. Direct Edge began in 1998 as an coverage, different accounting standards, to alternatives to render this price increase electronic communication network named time differences, and language differences, unprofitable. Attain. By 2007, it was a major trading venue among other things. Additionally, the Real-time Proprietary Equity Data owned and supported by broker-dealers majority of American companies choose to Knight Capital, Citadel and Goldman Sachs. list on domestic exchanges. Therefore, to 20. Real-time proprietary equity data is a These broker-dealers used Direct Edge as a relevant antitrust product market and a ‘‘line trade most publicly-listed American stocks, counterweight to the exchange duopoly of of commerce’’ within the meaning of Section investors must use stock exchanges located NYSE and NASDAQ. In December 2008, in the United States. 7 of the Clayton Act. Access to affordable, Direct Edge and ISE agreed that ISE would 16. The market for displayed equities reliable and timely data about the stock buy part of Direct Edge and Direct Edge trading services in the United States satisfies market is essential for informed stock the hypothetical monopolist test. A profit- trading. NYSE and Direct Edge are among would take control of the struggling ISE maximizing monopolist in the offering of only four major competitors that aggregate Stock Exchange. In March 2010, Direct Edge displayed equities trading services in the and disseminate certain market data to received approval from the SEC to convert its United States likely would impose at least a brokers, dealers, investors, and news two ECNs into national securities exchanges small but significant and non-transitory organizations. They sell (or with little lead under Section 6 of the Securities Exchange increase in the price of such services. Not time could easily sell) competing proprietary Act of 1934 (‘‘Exchange Act’’). enough customers would switch to market data products derived from trading 25. Direct Edge was first to offer two alternative means of trading equities in activities occurring both on and off their trading platforms using the same technology, undisplayed trading centers or foreign exchanges. but with different pricing schemes. EDGA exchanges to render this price increase 21. The product market for real-time historically has been operated as a lower cost unprofitable. proprietary equity data consists of what is exchange, being typically free or nearly free commonly referred to in the industry as for many traders to make offers to buy or sell Listing Services for Exchange-Traded ‘‘non-core’’ data. Market participants stock at certain posted prices (i.e., ‘‘post Products generally refer to two broad categories of liquidity’’) as well as for customers to trade critical market data: ‘‘core’’ and ‘‘non-core.’’ 17. The provision of ETP listing services against these offers and buy and sell stock Core data refers to the transaction data the constitutes a relevant antitrust product (i.e., ‘‘take liquidity’’), making EDGA market and a ‘‘line of commerce’’ within the SEC requires stock exchanges to report to securities information processors for attractive to traders sensitive to execution meaning of Section 7 of the Clayton Act. An charges. Approximately one-third of Direct ETP is typically an exchange-listed equity consolidation and public distribution, Edge volume trades over EDGA. EDGX security instrument other than a standard including the current best bid and offer for historically has offered a more traditional corporate cash equity, the performance of each stock on every exchange and which is designed to track another specific information on each stock trade, including pricing structure whereby the exchange instrument, asset or group of assets, such as the last sale. Non-core data includes trading normally pays customers to post liquidity a market index or a selected basket of volume and ‘‘depth of book’’ data that certain and charges a fee for them to take liquidity. corporate stocks. ETPs are typically exchanges collect and sell, i.e., the Although the two platforms have different sponsored by firms that monitor and manage underlying quotation data on any given pricing structures and cater to different the composition and performance of the ETP. exchange. Non-core data helps traders segments, they share technology, support, The most popular type of ETP today is an determine where liquidity for a given stock code, and data centers. exchange-traded fund, an equity fund with a exists during the day and the depth of that 26. NYSE has responded to Direct Edge’s form of exchange-listed securities (often trust liquidity. Each exchange (or other trading aggressive tactics in part by improving its units) that can be traded like a stock but that platform) owns non-core data and can own technology and changing its pricing. For is also benchmarked against another stock, distribute it voluntarily for a profit in example, NYSE in 2009 replaced its trading index or other asset. Buying an ETP offers a competition with data from other exchanges. system in an effort to regain business lost simple way for investors to diversify their Non-core data products can be made to mainly to the sophisticated electronic replicate core data and exchanges can portfolios without having to buy each platforms at Direct Edge and BATS. The new package and sell both core and non-core data individual corporate stock or other financial system was faster, reducing transaction together. instrument directly. For instance, the SPDR processing time to less than 10 milliseconds, S&P 500 exchange-traded fund tracks the S&P 22. The market for real-time proprietary equity data satisfies the hypothetical which at the time made NYSE roughly as fast 500 U.S. stock index, which comprises monopolist test. A profit-maximizing as its rivals. NYSE largely was able to widely held American stocks. ETFs and other monopolist in the offering of real-time stabilize its share of trading volume by ETPs are very popular and serve as the proprietary equity data likely would impose implementing a new market model and cornerstone of many individual investors’ at least a small but significant and non- introducing a new pricing scheme, which portfolios. transitory increase in the price of its equity gave rebate incentives to certain designated 18. The relevant geographic market is the data products. Not enough customers would market makers (i.e., those market participants United States. Listing an ETP on a foreign switch to other products or services to render that agreed to buy and sell particular stocks exchange is not an adequate substitute for this price increase unprofitable. at certain prices for certain amounts of time). listing on an exchange in the United States. 23. The relevant geographic market is the 27. Direct Edge’s investors, mainly broker- U.S. sponsors of ETPs overwhelmingly United States. Real-time proprietary equity dealers, use its exchanges to put downward choose to list domestically, because it allows data in this context relate only to domestic pressure on trading fees at NYSE and other them to build brand awareness and trading of U.S.-listed stock. Customers exchanges. When possible, Direct Edge’s reputation and stay close to U.S. capital needing real-time proprietary equity data markets and investors in the United States broker-dealer investors often send trades to a relating to U.S.-listed stocks cannot turn to considering the purchase and sale of ETFs Direct Edge exchange in order to keep their foreign alternatives. and other ETPs, as well as the analysts that overall transaction costs down. In this way, cover ETPs and ETFs and, in many cases, the ANTICOMPETITIVE EFFECTS Direct Edge helped spur a 2009 pricing war underlying or related assets, indexes, or that substantially reduced the cost of trading products. NYSE and Direct Edge Are Head-to-Head stocks in the United States. 19. The market for ETP listing services in Competitors 28. NYSE and Direct Edge also are head- the United States satisfies the hypothetical 24. NYSE and Direct Edge compete head- to-head competitors in the provision of real- monopolist test. A profit-maximizing to-head in displayed equities trading services time proprietary equity data. Both are well- monopolist that was the only present and and in the provision of real-time proprietary situated to offer new real-time equity data future firm in the offering of ETP listing equity data products. Direct Edge over the products and equity data products that services in the United States likely would years has been a force in modernizing stock replicate portions of core data offerings, but impose at least a small but significant and trading with cutting edge technology, faster with even faster feeds.

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices 81971

Direct Edge Is a Potential Competitor to significant competitors or potential b. DB and NYSE be enjoined from carrying NYSE in Listing Services for Exchange- competitors, resulting in an increase in prices out the proposed merger or carrying out any Traded Products or a reduction in innovation and quality for other agreement, understanding, or plan by 29. Direct Edge is a potential competitor to a significant number of trading, listings, and which DB and NYSE would acquire, be NYSE in listing services for ETPs. An ETP, data customers. acquired by, or merge with each other; c. The United States be awarded the costs including an ETF, must be listed on a ENTRY registered stock exchange in order to be of this action; and 35. Supply responses from competitors or widely-traded in the United States. d. The United States receives such other entry of new potential competitors in the and further relief as the case requires and the Exchanges typically compete for listings relevant markets—displayed equities trading based on market structure, market maker Court deems just and proper. services, ETP listing services, and real-time Dated: December 22, 2011 incentives, marketing, and other associated proprietary equity data—would not prevent services. Respectfully submitted, the likely anticompetitive effects of the FOR PLAINTIFF UNITED STATES: 30. NYSE dominates the business of proposed merger. The merged firm would providing listing services for ETPs. NYSE’s possess significant advantages that any new /s/Sharis Pozen lllllllllllllllllllll major competitors are NASDAQ, with a small or existing competitor would have to share, and recent entrant BATS. Direct Edge, overcome to successfully compete with the as a leading operator of registered stock merged firm. SHARIS POZEN (DC Bar #446732) exchanges, is uniquely situated for entry and 36. Barriers to entry into each of these Acting Assistant Attorney General already imposes competitive discipline on markets are formidable. In the market for /s/Leslie C. Overton NYSE: its potential entry has already affected displayed equities trading services, any lllllllllllllllllllll NYSE decisions to innovate and its pricing entrant would have to overcome hurdles of decisions in its ETP listings business. reputation, scale and network effects to LESLIE C. OVERTON (DC Bar #454493) This Merger Would Substantially Lessen successfully challenge the incumbents. In Deputy Assistant Attorney General ETP listing services, any entrant would have Competition /s/Patricia A. Brink to overcome numerous barriers to 31. NYSE and Direct Edge are currently lllllllllllllllllllll successfully challenge NYSE, including vigorous competitors and closely monitor regulation, reputation, scale, and liquidity. each other’s competitive positions in at least Direct Edge is in a strong position to enter PATRICIA A. BRINK two highly-concentrated markets. They are because it is already a registered stock Director of Civil Enforcement also close potential competitors in a third exchange with reputation, scale and /s/James J. Tierney highly-concentrated market, listing services liquidity. Finally, competition in real-time lllllllllllllllllllll for ETPs, in which NYSE is a dominant proprietary equity data is largely limited to player. Upon consummation of the proposed registered securities exchanges, and is closely transaction, NewCo would own NYSE and JAMES J. TIERNEY (DC Bar #434610) linked to and derived from an exchange’s would be able to control NYSE’s management Chief presence in trading and market data decisions. Networks and Technology Enforcement collection. Only four exchange operators 32. Upon consummation of the proposed Section today have large enough public trading transaction, NewCo also would become, /s/Scott A. Scheele volume and existing facilities for collecting, through ISE, the largest equity owner and lllllllllllllllllllll aggregating, and disseminating data to most influential member of Direct Edge. meaningfully compete. They enjoy a NewCo would be able to appoint three of the significant advantage over any possible SCOTT A. SCHEELE (DC Bar #429061) eleven Direct Edge managers, and one entrant. Assistant Chief representative to each of the EDGA and Networks and Technology Enforcement EDGX exchange’s respective corporate VIOLATIONS ALLEGED Section boards. NewCo would have important 37. The United States incorporates the /s/Alexander P. Okuliar ancillary rights at Direct Edge: veto rights allegations of paragraphs 1 through 36. lllllllllllllllllllll over certain major corporate actions, 38. The proposed transaction between DB representation on key committees, and and NYSE would substantially lessen ALEXANDER P. OKULIAR (DC Bar #481103) shareholder rights under corporate law, such competition in interstate trade and commerce as the right to file shareholder derivative Attorney in violation of Section 7 of the Clayton Act, Networks and Technology Enforcement lawsuits. NewCo also would have access to 15 U.S.C. § 18. Direct Edge’s non-public, competitively Section 39. Unless restrained, the transaction will Antitrust Division sensitive information, and to the company’s have the following anticompetitive effects, officers and employees. NewCo’s ownership U.S. Department of Justice among others: 450 Fifth Street NW., Suite 7100 interests and associated rights would give it a. Actual and potential competition influence over Direct Edge’s management Washington, DC 20530 between NYSE and Direct Edge in displayed Telephone: (202) 532–4564 decisions. equities trading services and real-time 33. NewCo’s presence on the Direct Edge Fax: (202) 616–8544 proprietary equity data products in the Email: [email protected] boards would also likely chill board-level United States will be substantially lessened; discussions of competition with NYSE. b. Potential competition between NYSE GEORGE S. BARANKO (DC Bar #288407) Direct Edge was formed, in part, as a and Direct Edge in ETP listing services in the MICHAEL D. BONANNO (DC Bar #998208) customer-owned foil to NYSE and NASDAQ. United States will be substantially lessened; TRAVIS R. CHAPMAN When NYSE or NASDAQ fails to innovate or c. Prices for displayed equities trading HELEN CHRISTODOULOU price competitively, broker-dealers can services, ETP listing services, and real-time NINA B. HALE encourage Direct Edge to innovate or can proprietary equity data products likely will RICHARD D. MOSIER shift their business to Direct Edge. If a NYSE- increase; and CHARLES V. REILLY affiliate were sitting on Direct Edge boards, d. Innovation in displayed equities trading NATALIE A. ROSENFELT the broker-dealer board members would services, ETP listing services, and real-time Attorneys for the United States likely not want to discuss or reveal Direct proprietary equity data products likely will IN THE UNITED STATES DISTRICT COURT Edge’s potential innovations or other decrease. FOR THE DISTRICT OF COLUMBIA competitive initiatives targeting NYSE. UNITED STATES OF AMERICA, 34. NewCo would have the incentive and RELIEF REQUESTED ability to use its ownership, influence, and 40. The United States requests that: Plaintiff, access to information as to both NYSE and a. the proposed merger of NYSE and DB be v. Direct Edge to reduce competition between adjudged to violate Section 7 of the Clayton DEUTSCHE BO¨ RSE AG, the companies in markets where they are Act, 15 U.S.C. § 18; and

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES 81972 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices

NYSE EURONEXT, APPA, unless the United States withdraws its Holdings, Inc.), Nomura Securities Defendants. consent. Entry of the proposed Final International, Inc., Deutsche Bank USA Judgment would terminate this action, except (through DB US Financial Markets Holding Case: 1:11–cv–02280 that this Court would retain jurisdiction to Corporation), and Sun Partners LLC. Direct Assigned To: Beryl A. Howard construe, modify, or enforce the proposed Edge’s exchanges compete head to head with Date: 12/22/2011 Final Judgment and to punish violations the NYSE exchanges. In 2010, Direct Edge Description: Antitrust thereof. earned substantial revenues from within the COMPETITIVE IMPACT STATEMENT United States. II. Description of the Events Giving Rise to Plaintiff United States of America (‘‘United the Alleged Violation B. Relevant Markets States’’), pursuant to Section 2(b) of the Antitrust law, including Section 7 of the Antitrust Procedures and Penalties Act A. The Defendants and the Proposed Clayton Act, protects consumers from (‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C. Transaction anticompetitive conduct, such as a firm’s § 16(b)–(h), files this Competitive Impact DB is a German Aktiengesellschaft that acquisition of the ability to raise prices or Statement relating to the proposed Final runs financial exchanges and ancillary reduce innovation. Market definition assists Judgment submitted for entry in this civil businesses in the United States and Europe. antitrust proceeding. antitrust analysis by focusing attention on DB generates revenue from several sources, those markets where competitive effects are including fees for securities listings and I. NATURE AND PURPOSE OF THIS likely to be felt. Well-defined markets trading, fees for market data, and charges for PROCEEDING include both sellers and buyers, whose licensing of exchange-related technology. DB, conduct most strongly influences the nature On February 15, 2011, NYSE Euronext through its subsidiaries, is the largest holder and magnitude of competitive effects. (‘‘NYSE’’) and Deutsche Bo¨rse AG (‘‘DB’’), of equity in Direct Edge, a leading stock Defining relevant markets in merger cases two of the world’s leading owners and exchange operator in the United States. DB frequently begins by identifying a collection operators of financial exchanges, agreed to owns 50% of the equity and controls of products or set of services over which a merge in a transaction valued at Frankfurt-based Eurex Group, a leading hypothetical profit maximizing monopolist approximately $9 billion. NYSE and DB are European derivatives exchange operator. DB seeking to combine their businesses and has announced an agreement to buy the likely would impose at least small but create the largest exchange group in the remaining equity in Eurex after DB completes significant and non-transitory increase in world under a new Dutch holding company its merger with NYSE. Eurex owns price. Defining markets in this way ensures (‘‘NewCo’’). NewCo would have dual International Securities Exchange Holdings, that antitrust analysis takes account of a headquarters in Frankfurt and New York. Inc. (‘‘ISE’’), a leading options exchange in broad enough set of products to evaluate Both NYSE and DB have substantial New York that also owns a 31.54% equity whether a transaction is likely to lead to a operations in the United States, including interest in Direct Edge. In 2010, DB’s ISE and substantial lessening of competition. between them interests in five major Eurex subsidiaries earned substantial Here, the investigation revealed three American stock exchanges. NYSE is one of revenues from sales in the United States. relevant markets. The first is displayed the two largest and most prestigious stock NYSE is a publicly traded Delaware equities trading services, which includes exchange operators in the United States. It corporation with its principal place of stock trading services offered by trading owns the New York Stock Exchange LLC, business in New York, New York. NYSE venues that publicly disclose certain key NYSE Arca, Inc., and NYSE Amex LLC. DB, operates financial exchanges in the United information about quotes and transactions. through a series of subsidiaries, is the largest States and across Europe. In the United Registered stock exchanges and electronic unitholder of Direct Edge Holdings LLC States, NYSE operates the New York Stock communication networks offer such (‘‘Direct Edge’’), which operates the EDGA Exchange, which is the storied hybrid displayed trading services. Displayed trading and EDGX electronic exchanges and is the exchange with both trading floor and services are accompanied by the continuous fourth largest stock exchange operator in the electronic components; NYSE Arca, which is pre-trade publication of the best-priced United States by volume of shares traded. an all-electronic exchange; and NYSE Amex, quotations for buying and selling exchange- Direct Edge is considered an innovator in the the former American Stock Exchange, which traded stocks in a national consolidated data exchange space and a competitive constraint targets mainly small- and medium-sized stream, the display of certain customer limit on NYSE. This transaction therefore poses a companies. NYSE also generates revenue orders (offers to buy and sell stock at significant risk that NewCo could use its from a wide range of exchange-related particular prices), and the provision of deep influence to dampen the competitive zeal of businesses, including securities listings, and reliable liquidity for a broad array of Direct Edge. The United States brought this trading, data licensing, and technology exchange-traded stocks. Displayed equities lawsuit on December 22, 2011, seeking to licensing. In 2010, NYSE earned more than trading services form the backbone of the enjoin the proposed transaction. After a $3 billion in total revenues from within the American national market system and thorough investigation, the United States United States. facilitate equity price discovery in the United believes that the likely effect of the merger Direct Edge is a Delaware limited liability States. Displayed services are by their nature would be to lessen substantially competition company with its principal place of business very different from undisplayed equity and potential competition in displayed in Jersey City, New Jersey. Direct Edge, trading services, like dark pools, which offer equities trading services, listing services for through its subsidiary Direct Edge Holdings, no pre-trade transparency and cater mainly to exchange-traded products, including Inc., owns and operates two leading U.S. institutional traders looking to buy or sell exchange-traded funds, and real-time stock exchanges, EDGA Exchange, Inc. and large volumes of stock while minimizing proprietary equity data products in the EDGX Exchange, Inc. Direct Edge is majority- stock price movement. United States in violation of Section 7 of the owned by ISE, Goldman Sachs Group Inc., A second relevant market consists of the Clayton Act, 15 U.S.C. § 18. Citadel Investment Group LLC, and Knight listing services for exchange-traded products Simultaneous with the filing of the Capital Group Inc. ISE owns 31.54% of Direct (‘‘ETPs’’). An ETP is typically an exchanged- complaint, the United States filed a proposed Edge and holds certain key voting and listed equity security instrument other than Final Judgment designed to remedy the special veto rights, such as the right to veto a standard corporate cash equity, the Section 7 violation. Under the proposed entry by Direct Edge into options trading. ISE performance of which is designed to track Final Judgment, which is explained more also has the right to appoint three members another specific instrument, asset or group of fully below, Defendants are subject to to the Direct Edge board of managers and one assets, such as a market index or a specific affirmative obligations to divest DB of its member to each of the corporate boards of basket of corporate stocks. ETPs typically are holdings in Direct Edge and to immediately EDGA Exchange, Inc. and EDGX Exchange, sponsored by firms that determine the eliminate DB’s ability, through its Inc. Goldman Sachs, Citadel, and Knight composition of the ETP and then manage it subsidiaries, to influence the business and each own 19.9% of Direct Edge. The for investors. The most popular type of ETP governance of Direct Edge. remaining 8.76% is owned by a group of five today is an exchange-traded fund (‘‘ETF’’), The United States and Defendants have brokers, including affiliates of JP Morgan which is a security traded like a stock that stipulated that the proposed Final Judgment Chase & Co. (through LabMorgan Corp.), is designed to replicate the returns of a stock, may be entered after compliance with the Bank of America (through Merrill Lynch L.P. index or similar asset. Exchanges compete to

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices 81973

list, or offer for trading, ETPs in exchange for to Direct Edge when NYSE or NASDAQ fails prohibited from suggesting or nominating listing fees and fees for ancillary services. to compete aggressively. any candidate for election to the board of any Exchanges compete for listings mainly on the Finally, NewCo also would gain access to Direct Edge entities or having any officer, basis of their market structure, market maker non-public, competitively sensitive director, manager, employee, or agent serve incentives, marketing, and other associated information about Direct Edge. This access as an officer, director, manager, employee services. ETP listings are a separate relevant would likely enhance NewCo’s ability to with or for any Direct Edge entities. The market because there are no reasonable coordinate the behavior of the NYSE and Defendants are also prohibited from any substitutes for listing an ETP if a sponsoring Direct Edge exchanges, or make the participation in a nonpublic meeting of any firm wants a widely-traded product with accommodating responses of NYSE faster and Direct Edge entities or in otherwise receiving access to the liquidity offered by exchanges. more targeted. And if Direct Edge gained any nonpublic information from any Direct In addition to which, only registered access to competitively sensitive NYSE Edge employee or board member, except to exchanges can offer these listing services. information, it would further elevate the risk the extent necessary to fulfill the provisions A third relevant market encompasses real- of coordinated effects. of the proposed Final Judgment or to fulfill time proprietary equity data products Finally, even if it were unable to influence financial reporting obligations. The comprised of non-core data. There are two Direct Edge, NewCo would likely have, as a Defendants are further prohibited from voting general types of equity data: ‘‘core’’ and result of the partial ownership interest in except to the extent necessary to fulfill the ‘‘non-core.’’ Core data refers to the Direct Edge, a reduced incentive to direct the provisions of the proposed Final Judgment, transaction data the U.S. Securities and NYSE exchanges to compete as aggressively in which case they must vote their shares in Exchange Commission requires stock against the Direct Edge exchanges. Since proportion to how the other owners vote. exchanges to aggregate and distribute NewCo would share Direct Edge’s losses The Defendants are also prohibited from publicly, including the current best bid and inflicted by the NYSE exchanges, this may using their ownership interest in Direct Edge offer for each stock on every exchange and lead NewCo to behave in ways that would to exert any influence over it or to prevent information on each stock trade, including reduce those losses. it from making any necessary changes to its the last sale. Non-core data includes trading Supply responses from competitors or corporate governance documents to comply volume and ‘‘depth of book’’ data that certain entry of potential competitors in any of the with the Final Judgment. The proposed Final exchanges collect and sell, i.e., the relevant markets would not prevent the likely Judgment provides that the Defendants must underlying quotation data on any given anticompetitive effects of the proposed continue to provide regulatory and backup exchange. Non-core data helps traders merger. The merged firm would possess facility services to Direct Edge pursuant to determine where liquidity for a given stock significant advantages that any new or existing contracts, and requires that the exists during the day and the depth of that existing competitor would have to overcome Defendants implement a firewall to prevent liquidity. Access to market data is critical to to successfully compete with the merged any inappropriate use of information gained many market participants and followers, who firm. Entrants face significant entry barriers by the Defendants about Direct Edge’s are willing to pay a premium for the best including hurdles of reputation, scale and business as a result of those contracts. The price, quote, volume, and other data available network effects to successfully challenge the firewall requires that only the employees of about exchange-listed equities being traded incumbents in the markets for displayed the Defendants specifically necessary to on the exchanges. Each exchange (or other equities trading services, listing services for provide the agreed upon services may receive trading venue) owns its non-core data and ETPs, and real-time proprietary equity data any information from Direct Edge under can distribute it for a profit. Proprietary data products. those agreements, and those employees are products can be made to replicate core data prohibited from using any such information III. EXPLANATION OF THE PROPOSED and exchanges can package and provide both for any purpose other than providing the FINAL JUDGMENT core and non-core data together. NYSE and agreed upon services. This provision will Direct Edge, as registered exchange operators, The proposed Final Judgment is designed allow Direct Edge to continue to receive its are among only four major competitors to preserve competition in displayed equities contracted services while reducing the supplying real-time proprietary equity data trading services, listing services for opportunities for the Defendants to misuse products derived from trading activities. exchange-traded products, and real-time any information provided by Direct Edge Antitrust analysis must also consider the proprietary equity data products by under the agreement. The anticipated effect geographic dimensions of competition. Here, restricting NewCo’s ability to influence of all these provisions is to maintain Direct the relevant geographic markets exist within Direct Edge and by eliminating NewCo’s Edge as an independent and viable the United States and are not affected by equity stake in Direct Edge. The proposed competitor. competition outside the United States. The Final Judgment has two principal The proposed Final Judgment provides a competitive dynamics for each of the three requirements: (1) the complete divestiture of two-year period, which the United States in markets is distinctly different outside the Defendants’ equity stake in Direct Edge, and its sole discretion may extend up to three United States. (2) the immediate suspension of Defendants’ additional years, for Defendants to divest all ability to participate in the governance or equity ownership in Direct Edge. The assets C. Competitive Effects business of Direct Edge. The proposed Final may be divested by open market sale, public NewCo would have the incentive and Judgment also has several sections designed offering, private sale, private placement, or ability to significantly influence the to ensure its effectiveness and adequate repurchase by Direct Edge. If the assets are competitive conduct of Direct Edge through compliance. Each of these sections is divested by private sale or private placement ISE’s voting interest, governance rights, or discussed below. the United States must, in its sole discretion, other shareholder rights under corporate law, Before closing the DB–NYSE transaction, approve the buyers of the assets. This like the right to file shareholder derivative the proposed Final Judgment requires the provision ensures that the divestiture itself suits. NewCo would likely use its influence Defendants provide a written plan explaining does not create any competitive issues. To to induce Direct Edge to compete less the steps they will take to render DB’s maintain the complete independence of aggressively, to coordinate Direct Edge’s interest in Direct Edge passive until such Direct Edge after the divestiture, the conduct with the NYSE exchanges, or to time as the divestiture occurs. Defendants proposed Final Judgment prohibits the disrupt day-to-day business activities at must also certify that the plan complies with Defendants from financing any part of any Direct Edge. all applicable laws and that all voting, purchase made pursuant to the Final NewCo’s presence on the Direct Edge director, or other rights DB held have been Judgment. boards would chill discussion of head-to- eliminated, except as otherwise been In the event that Defendants are unable to head competition with the NYSE stock provided for in the order. Within two take the steps required by the proposed Final exchanges. Direct Edge was formed, in part, calendar days of closing the transaction, any Judgment to render their Direct Edge interest by a group of broker-dealers intending to DB officer, director, manager, employee, passive or create a plan demonstrating their constrain the two large stock exchange affiliate, or agent must resign from the boards compliance with the proposed Final operators in the United States, NYSE and of all Direct Edge entities. Judgment, or do not accomplish the NASDAQ. The broker-dealer owners of Direct Further, from the date of the filing of the divestiture as prescribed in the proposed Edge, and others, can and do turn their trades Final Judgment, the Defendants are Final Judgment, Section VII of the Final

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES 81974 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices

Judgment provides that the Court will received during this period will be the Defendant within the reaches of the appoint a trustee selected by the United considered by the United States, which public interest.’’ United States v. Microsoft States to effect the divestiture upon the remains free to withdraw its consent to the Corp., 56 F.3d 1448, 1461 (DC Cir. 1995); see request of the United States. If a trustee is proposed Final Judgment at any time prior to generally United States v. SBC Commc’ns, appointed, the proposed Final Judgment the Court’s entry of judgment. The comments Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) provides that Defendants will pay all costs and the response of the United States will be (assessing public interest standard under the and expenses of the trustee. After his or her filed with the Court and published in the Tunney Act); United States v. InBev N.V./ appointment becomes effective, the trustee Federal Register. S.A., 2009–2 Trade Cas. (CCH) ¶ 76,736, 2009 will file monthly reports with the Court and Written comments should be submitted to: U.S. Dist. LEXIS 84787, No. 08–1965 (JR), at the United States setting forth his or her James J. Tierney, Chief, Networks & *3 (D.D.C. Aug. 11, 2009) (noting that the efforts to accomplish the divestiture. At the Technology Enforcement Section, Antitrust court’s review of a consent judgment is end of six months, if the divestiture has not Division, United States Department of limited and only inquires ‘‘into whether the been accomplished, the trustee and the Justice, 450 Fifth Street, NW., Suite 7100, government’s determination that the United States will make recommendations to Washington, DC 20530. proposed remedies will cure the antitrust the Court, which shall enter such orders as The proposed Final Judgment provides that violations alleged in the complaint was appropriate in order to carry out the purpose the Court retains jurisdiction over this action, reasonable, and whether the mechanism to of the trust, including extending the trust or and the parties may apply to the Court for enforce the final judgment are clear and the term of the trustee’s appointment. any order necessary or appropriate for the manageable’’).1 The proposed Final Judgment lasts for ten modification, interpretation, or enforcement Under the APPA a court considers, among years, and prohibits the Defendants from of the Final Judgment. other things, the relationship between the acquiring any additional equity interest in remedy secured and the specific allegations VI. ALTERNATIVES TO THE PROPOSED Direct Edge during that time. It also provides set forth in the United States’s complaint, FINAL JUDGMENT procedures for the United States to access the whether the decree is sufficiently clear, Defendants’ records and personnel in order The United States considered, as an whether enforcement mechanisms are to secure compliance with the terms of the alternative to the proposed Final Judgment, sufficient, and whether the decree may Final Judgment. seeking preliminary and permanent positively harm third parties. See Microsoft, The proposed Final Judgment will injunctions against Defendants’ transaction 56 F.3d at 1458–62. With respect to the eliminate the anticompetitive effects of the and proceeding to a full trial on the merits. adequacy of the relief secured by the decree, acquisition by maintaining Direct Edge as an The United States is satisfied, however, that a court may not ‘‘engage in an unrestricted independent and vibrant competitive the relief in the proposed Final Judgment evaluation of what relief would best serve the constraint in displayed equities trading will preserve competition in the markets for public.’’ United States v. BNS, Inc., 858 F.2d services, listing services for exchange-traded displayed equities trading services, listing 456, 462 (9th Cir. 1988) (citing United States products, and real-time proprietary equity services for exchange-traded products, and v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. data products in the United States. real-time proprietary equity data products. 1981)); see also Microsoft, 56 F.3d at 1460– Thus, the proposed Final Judgment would 62; United States v. Alcoa, Inc., 152 F. Supp. IV. REMEDIES APPLICABLE TO protect competition as effectively as would 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. POTENTIAL PRIVATE LITIGANTS any remedy available through litigation, but Dist. LEXIS 84787, at *3. Courts have held Section 4 of the Clayton Act, 15 U.S.C. avoids the time, expense, and uncertainty of that: § 15, provides that any person who has been a full trial on the merits. [t]he balancing of competing social and injured as a result of conduct prohibited by political interests affected by a proposed VII. STANDARD OF REVIEW UNDER THE the antitrust laws may bring suit in federal antitrust consent decree must be left, in the APPA FOR PROPOSED FINAL JUDGMENT court to recover three times the damages the first instance, to the discretion of the person has suffered, as well as costs and The Clayton Act, as amended by the APPA, Attorney General. The court’s role in reasonable attorneys’ fees. Entry of the requires that proposed consent judgments in protecting the public interest is one of proposed Final Judgment will neither impair antitrust cases brought by the United States insuring that the government has not nor assist the bringing of any private antitrust be subject to a 60-day comment period, after breached its duty to the public in consenting damage action. Under the provisions of which the Court shall determine whether to the decree. The court is required to Section 5(a) of the Clayton Act, 15 U.S.C. entry of the proposed Final Judgment ‘‘is in determine not whether a particular decree is § 16(a), the proposed Final Judgment has no the public interest.’’ 15 U.S.C. § 16(e)(1). In the one that will best serve society, but prima facie effect in any subsequent private making that determination, the Court, in whether the settlement is ‘within the reaches lawsuit that may be brought against accordance with the statute as amended in of the public interest.’ More elaborate Defendants. 2004, is required to consider: requirements might undermine the (A) the competitive impact of such effectiveness of antitrust enforcement by V. PROCEDURES APPLICABLE FOR judgment, including termination of alleged consent decree. APPROVAL OR MODIFICATION OF THE violations, provisions for enforcement and Bechtel, 648 F.2d at 666 (emphasis added) PROPOSED FINAL JUDGMENT modification, duration of relief sought, (citations omitted).2 In determining whether The United States and Defendants have anticipated effects of alternative remedies stipulated the proposed Final Judgment may actually considered, whether its terms are 1 The 2004 amendments substituted ‘‘shall’’ for be entered by the Court after compliance ambiguous, and any other competitive ‘‘may’’ in directing relevant factors for a court to with the provisions of the APPA, provided considerations bearing upon the adequacy of consider and amended the list of factors to focus on that the United States has not withdrawn its such judgment that the court deems competitive considerations and to address consent. The APPA conditions entry upon necessary to a determination of whether the potentially ambiguous judgment terms. Compare 15 the Court’s determination that the proposed consent judgment is in the public interest; U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1) (2006); see also SBC Commc’ns, 489 F. Supp. 2d at Final Judgment is in the public interest. and 11 (concluding that the 2004 amendments ‘‘effected The APPA provides a period of at least 60 (B) the impact of entry of such judgment minimal changes’’ to Tunney Act review). days preceding the effective date of the upon competition in the relevant market or 2 Cf. BNS, 858 F.2d at 464 (holding that the proposed Final Judgment within which any markets, upon the public generally and court’s ‘‘ultimate authority under the [APPA] is person may submit to the United States individuals alleging specific injury from the limited to approving or disapproving the consent written comments regarding the proposed violations set forth in the complaint decree’’); United States v. Gillette Co., 406 F. Supp. Final Judgment. Any person who wishes to including consideration of the public benefit, 713, 716 (D. Mass. 1975) (noting that, in this way, comment should do so within 60 days of the if any, to be derived from a determination of the court is constrained to ‘‘look at the overall date of publication of this Competitive the issues at trial. picture not hypercritically, nor with a microscope, but with an artist’s reducing glass’’). See generally Impact Statement in the Federal Register, or 15 U.S.C. § 16(e)(1)(A) & (B). In considering Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the the last date of publication in a newspaper these statutory factors, the Court’s inquiry is remedies [obtained in the decree are] so of the summary of this Competitive Impact necessarily a limited one as the United States inconsonant with the allegations charged as to fall Statement, whichever is later. All comments is entitled to ‘‘broad discretion to settle with outside of the ‘reaches of the public interest.’ ’’).

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices 81975

a proposed settlement is in the public nowhere compelled to go to trial or to engage fact or law, and without this Final Judgment interest, a district court ‘‘must accord in extended proceedings which might have constituting any evidence against or deference to the government’s predictions the effect of vitiating the benefits of prompt admission by any party regarding any issue about the efficacy of its remedies, and may and less costly settlement through the of fact or law; not require that the remedies perfectly match consent decree process.’’ 119 Cong. Rec. AND WHEREAS, Defendants agree to be the alleged violations.’’ SBC Commc’ns, 489 24,598 (1973) (statement of Senator Tunney). bound by the provisions of the Final F. Supp. 2d at 17; see also Microsoft, 56 F.3d Rather, the procedure for the public interest Judgment pending its approval by the Court; at 1461 (noting the need for courts to be determination is left to the discretion of the AND WHEREAS, the United States ‘‘deferential to the government’s predictions Court, with the recognition that the court’s requires that Defendants agree to undertake as to the effect of the proposed remedies’’); ‘‘scope of review remains sharply proscribed certain actions and refrain from certain United States v. Archer-Daniels-Midland Co., by precedent and the nature of Tunney Act conduct for the purpose of remedying the 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting proceedings.’’ SBC Commc’ns, 489 F. Supp. loss of competition alleged in the Complaint; that the court should grant due respect to the 2d at 11.3 AND WHEREAS, Defendants have United States’s prediction as to the effect of represented to the United States that the proposed remedies, its perception of the VIII. DETERMINATIVE DOCUMENTS actions and conduct restrictions can and will market structure, and its views of the nature There are no determinative materials or be undertaken and that Defendants will later of the case). documents within the meaning of the APPA raise no claim of hardship or difficulty as In addition, ‘‘a proposed decree must be that the United States considered in grounds for asking the Court to modify any approved even if it falls short of the remedy formulating the proposed Final Judgment. of the provisions contained below; the court would impose on its own, as long Dated: December 22, 2011 NOW THEREFORE, before any testimony as it falls within the range of acceptability or Respectfully submitted, is taken, without trial or adjudication of any is ‘within the reaches of public interest.’ ’’ FOR PLAINTIFF issue of fact or law, and upon consent of United States v. Am. Tel. & Tel. Co., 552 F. UNITED STATES OF AMERICA Defendants, it is ORDERED, ADJUDGED AND Supp. 131, 151 (D.D.C. 1982) (citations /s/Alexander P. Okuliar DECREED: omitted) (quoting United States v. Gillette lllllllllllllllllllll I. JURISDICTION Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff’d sub nom. Maryland v. United States, Alexander P. Okuliar (DC Bar No. 481103) This Court has jurisdiction over the subject 460 U.S. 1001 (1983); see also United States Attorney matter of, and each of the parties to, this v. Alcan Aluminum Ltd., 605 F. Supp. 619, U.S. Department of Justice action. The Complaint states a claim upon 622 (W.D. Ky. 1985) (approving the consent Antitrust Division which relief may be granted against decree even though the court would have 450 Fifth Street NW., Suite 7100 defendants under Section 7 of the Clayton imposed a greater remedy). To meet this Washington, DC 20530 Act, as amended, 15 U.S.C. § 18. Tel: (202) 532–4564 standard, the United States ‘‘need only II. DEFINITIONS provide a factual basis for concluding that Fax: (202) 307–9952 the settlements are reasonably adequate Email: [email protected]. As used in this Final Judgment: remedies for the alleged harms.’’ SBC UNITED STATES DISTRICT COURT FOR A. ‘‘Deutsche Bo¨rse’’ means defendant Commc’ns, 489 F. Supp. 2d at 17. THE DISTRICT OF COLUMBIA Deutsche Bo¨rse AG, an Aktiengesellschaft Moreover, the Court’s role under the APPA UNITED STATES OF AMERICA, organized under the laws of the Federal is limited to reviewing the remedy in Plaintiff, Republic of Germany with its principal place relationship to the violations that the United v. of business in Eschborn, Germany, its States has alleged in its complaint, and does successors and assigns, and its subsidiaries, DEUTSCHE BO¨ RSE AG, not authorize the court to ‘‘construct [its] divisions, groups, affiliates, partnerships, and and own hypothetical case and then evaluate the joint ventures, and their directors, officers, NYSE EURONEXT, decree against that case.’’ Microsoft, 56 F.3d managers, agents, and employees. This at 1459; see also InBev, 2009 U.S. Dist. LEXIS Defendants. definition expressly includes International 84787, at *20 (‘‘[T]he ‘public interest’ is not Case: Securities Exchange Holdings as a subsidiary to be measured by comparing the violations Assigned To: of Deutsche Bo¨rse. alleged in the complaint against those the Date: B. ‘‘NYSE’’ means defendant NYSE court believes could have, or even should Description: Antitrust Euronext, a Delaware corporation with its have, been alleged.’’). Because the ‘‘court’s principal place of business in New York, [Proposed] Final Judgment authority to review the decree depends New York, its successors and assigns, and its entirely on the government’s exercising its WHEREAS, Plaintiff United States of subsidiaries, divisions, groups, affiliates, prosecutorial discretion by bringing a case in America (‘‘United States’’) filed its Complaint partnerships, and joint ventures, and their the first place,’’ it follows that ‘‘the court is on December 22, 2011, the United States and directors, officers, managers, agents, and only authorized to review the decree itself,’’ Defendants Deutsche Bo¨rse AG and NYSE employees. and not to ‘‘effectively redraft the complaint’’ Euronext, by their respective attorneys, have C. The ‘‘Deutsche Bo¨rse/NYSE Merger’’ to inquire into other matters that the United consented to entry of this Final Judgment means the transaction to be undertaken States did not pursue. Microsoft, 56 F.3d. at without trial or adjudication of any issue of pursuant to the Business Combination 1459–60. Courts ‘‘cannot look beyond the Agreement, dated as of February 15, 2011, by complaint in making the public interest 3 See United States v. Enova Corp., 107 F. Supp. and among Deutsche Bo¨rse, NYSE, Alpha determination unless the complaint is drafted 2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney Beta Netherlands Holding N.V., and Pomme so narrowly as to make a mockery of judicial Act expressly allows the court to make its public Merger Corporation, under which Deutsche power.’’ SBC Commc’ns, 489 F. Supp. 2d at interest determination on the basis of the Bo¨rse and NYSE will combine their 15. competitive impact statement and response to businesses under a new holding company, comments alone’’); United States v. Mid-Am. In its 2004 amendments, Congress made Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, Alpha Beta Netherlands Holding N.V. clear its intent to preserve the practical at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of D. ‘‘Direct Edge’’ means Direct Edge benefits of utilizing consent decrees in corrupt failure of the government to discharge its Holdings LLC, a Delaware limited liability antitrust enforcement, adding the duty, the Court, in making its public interest company with its principal place of business unambiguous instruction that ‘‘[n]othing in finding, should * * * carefully consider the in Jersey City, New Jersey, its successors and this section shall be construed to require the explanations of the government in the competitive assigns, and its subsidiaries, divisions, court to conduct an evidentiary hearing or to impact statement and its responses to comments in groups, affiliates, partnerships, and joint require the court to permit anyone to order to determine whether those explanations are ventures, and their directors, officers, reasonable under the circumstances.’’); S. Rep. No. intervene.’’ 15 U.S.C. § 16(e)(2). This 93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where managers, agents, and employees. Direct language effectuates what Congress intended the public interest can be meaningfully evaluated Edge includes, but is not limited to, its when it enacted the Tunney Act in 1974, as simply on the basis of briefs and oral arguments, subsidiaries Direct Edge, Inc., EDGA Senator Tunney explained: ‘‘[t]he court is that is the approach that should be utilized.’’). Exchange, Inc. and EDGX Exchange, Inc.

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES 81976 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices

E. ‘‘Direct Edge Equity’’ means any equity Bo¨rse/NYSE Merger, to provide a written agreements with Direct Edge, or provide any interest, whether voting or nonvoting, of plan outlining the steps defendants will take financing to Direct Edge. Direct Edge that defendants own or control, to comply with the terms of this Final G. Defendants shall not take any action that directly or indirectly, including, but not Judgment, and written certification and will impede in any way the divestiture of the limited to, the units of interest in the supporting documentation to the United Divestiture Assets. ownership and profits and losses of Direct States demonstrating that such plan complies Edge and such rights to receive distributions with this Final Judgment and that all voting, VI. DIRECT EDGE GOVERNANCE from Direct Edge (defined as ‘‘Units’’ in the director, or other rights Deutsche Bo¨rse A. Within two (2) business days after the Operating Agreement) owned by Deutsche enjoyed under the Operating Agreement, the closing of the Deutsche Bo¨rse/NYSE Merger, Bo¨rse through International Securities Certificate of Incorporation and By-Laws of any Deutsche Bo¨rse officer, director, Exchange Holdings as of the date of the filing EDGA Exchange, Inc., the Certificate of manager, employee, affiliate, or agent shall of this Final Judgment. Incorporation and By-Laws of EDGX resign from the Board of Managers or Board F. ‘‘Divestiture Assets’’ means the Direct Exchange, Inc., or any other organizational of Directors of Direct Edge, Direct Edge, Inc., Edge Equity required to be divested under documents of Direct Edge, have been EDGA Exchange, Inc., and EDGX Exchange, this Final Judgment. eliminated (except any such rights Inc., and from any executive committees, G. ‘‘International Securities Exchange specifically reserved or provided for herein). advisory committees, or other comparable Holdings’’ means International Securities positions. V. DIVESTITURE OF DIRECT EDGE Exchange Holdings, Inc., a Delaware B. Except to the extent permitted elsewhere EQUITY corporation with its principal place of herein, from the date of the filing of this business in New York, New York, its A. Defendants are ordered and directed, in Final Judgment and until its expiration, successors and assigns, and its subsidiaries, a manner consistent with this Final defendants are enjoined and restrained, divisions, groups, affiliates, partnerships, and Judgment, on or before two (2) years from the directly or indirectly, from: joint ventures, and their directors, officers, date of closing of the Deutsche Bo¨rse/NYSE 1. Suggesting, designating or nominating, managers, agents, and employees. Merger, to divest the Direct Edge Equity individually or as part of a group, any H. ‘‘Mutual Services Agreement’’ means sufficient to cause defendants to own no candidate for election to the Board of the Mutual Services Agreement by and outstanding equity in Direct Edge. The Managers or Board of Directors of Direct between ISE and Direct Edge, dated as of United States, in its sole discretion, may Edge, Direct Edge, Inc., EDGA Exchange, Inc. November 4, 2010, including any extend the two (2) year time limit in this or EDGX Exchange, Inc., or having any modifications, amendments, restatements, or Section V.A for up to three (3) additional officer, director, manager, employee, or agent extensions of one (1) year each upon written other versions of the Mutual Services serve as an officer, director, manager, application of the Defendants. Agreement existing at the time of this Final employee, or in a comparable position with B. Defendants are enjoined and restrained Judgment or in the future. or for Direct Edge, Direct Edge, Inc., EDGA from the date of entry by the Court of the I. ‘‘Operating Agreement’’ means the Fifth Exchange, Inc. or EDGX Exchange, Inc.; Stipulation and Order until the completion of Amended and Restated Limited Liability 2. participating in, being present at, or the divestiture required by Section V.A from Company Operating Agreement of Direct receiving any notes, minutes, or agendas of, acquiring, directly or indirectly, any Edge Holdings LLC, dated as of June 12, information from, or any documents additional Direct Edge equity (including 2010, including any modifications, distributed in connection with, any amendments, restatements, or other versions Units, options or any other forms of equity rights or warrants) or ownership interest or nonpublic meeting of the Board of Managers of the Operating Agreement existing at the or Board of Directors of Direct Edge, Direct time of this Final Judgment or in the future. rights, except pursuant to a transaction that does not increase defendants’ proportion of Edge, Inc., EDGA Exchange, Inc., EDGX J. ‘‘Own’’ means to have or retain any right, Exchange, Inc., or any committee thereof, any title, or interest in any asset, including any the outstanding equity of Direct Edge, such as a stock split, stock dividend, rights other governing body of Direct Edge, or any ability to control or direct actions with nonpublic meeting of members, shareholders, respect to such asset, either directly or offering, recapitalization, reclassification, merger, consolidation, or corporate Unitholders, or any other type of equity indirectly, individually or through any other owners of Direct Edge in which the business, party. reorganization. Any additional Direct Edge equity acquired by defendants as specifically operations, or ownership of Direct Edge are K. ‘‘Regulatory Services Agreements’’ discussed, except to the extent it is necessary means the Regulatory Services Agreement by permitted in this Section V.B shall be part of to disclose such information to the and between ISE and EDGX Exchange, Inc., the Direct Edge Equity and be subject (1) to defendants in order to implement the dated as of January 21, 2010, and the the divestiture obligations of Section V.A of provisions of this Final Judgment (the term Regulatory Services Agreement by and this Final Judgment; and (2) to the rights and ‘‘meeting’’ here includes any action taken by between ISE and EDGA Exchange, Inc., dated restrictions set forth herein. consent in lieu of a meeting); as of January 21, 2010, including any C. The divestiture required by Section V.A 3. voting, causing to be voted or permitting modifications, amendments, restatements, or may be made by open market sale, public to be voted any Direct Edge shares, Units, or other versions of the Regulatory Services offering, private sale, private placement, other equity that defendants own in any Agreements existing at the time of this Final repurchase by Direct Edge, or a combination Direct Edge entity, except to the extent that Judgment or in the future. thereof, subject to the restrictions outlined herein. Such divestiture shall not be made by Direct Edge determines that Deutsche Bo¨rse III. APPLICABILITY private sale or private placement to any must vote its Units in Direct Edge, in which This Final Judgment applies to Deutsche person unless the United States, in its sole case Deutsche Bo¨rse shall vote in an amount Bo¨rse and NYSE and all other persons in discretion, shall otherwise agree in writing and manner proportional to the vote of all active concert or participation with any of pursuant to the procedures set out in Section other votes cast by other Direct Edge owners; them who receive actual notice of this Final VIII. 4. using or attempting to use any Judgment by personal service or otherwise. D. Defendants shall notify the United ownership interest in Direct Edge to exert States no less than sixty (60) calendar days any influence over Direct Edge in the IV. CERTIFICATION OF PASSIVE prior to the expiration of the time period for conduct of Direct Edge’s business; INTEREST divestiture required by Section V.A of this 5. using or attempting to use any rights or A. Defendants are hereby ordered and Final Judgment as to the arrangements made duties under any agreement or relationship directed to take all necessary steps to render to complete the required divestiture in a between Deutsche Bo¨rse and Direct Edge, the Direct Edge Equity passive and to divest timely fashion. including but not limited to the Regulatory the Direct Edge Equity, consistent with the E. Upon completion of the divestiture Services Agreements and Mutual Services time limits, rights and restrictions specified required by Section V.A, defendants may not Agreement, to influence Direct Edge in the elsewhere herein and in conformance with acquire, directly or indirectly, any additional conduct of Direct Edge’s business; all applicable statutes, rules, regulations, and equity (in any form) or ownership interest or 6. communicating to or receiving from any policies of relevant federal authorities. rights in Direct Edge. officer, director, manager, member, owner, B. Defendants are hereby ordered and F. Defendants may not acquire debt employee, or agent of Direct Edge any directed, before closing of the Deutsche obligations of Direct Edge, enter into any loan nonpublic information regarding any aspect

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices 81977

of defendants’ or Direct Edge’s business, compliance plan. In the event that consultants, accountants, attorneys, and including any plans or proposals with defendant’s compliance plan is rejected, the other persons retained by the trustee shall respect thereto; provided, however, that reasons for the rejection shall be provided to have full and complete access to all defendants shall be allowed to receive from defendants and defendants shall be given the information held by defendants relating to Direct Edge quarterly financial information, opportunity to submit, within two (2) the Divestiture Assets. Defendants shall take including profit and loss information, of business days of receiving the notice of no action to interfere with or to impede the Direct Edge, to the extent necessary for rejection, a revised compliance plan. If the trustee’s accomplishment of the divestiture. defendants to comply with their financial parties cannot agree on a compliance plan E. After its appointment, the trustee shall reporting obligations; and within an additional three (3) business days, file monthly reports with the United States 7. preventing, or attempting to prevent, a plan will be devised by the Department of and the Court setting forth the trustee’s Direct Edge from making any changes in any Justice and implemented by defendants. efforts to accomplish the divestiture ordered corporate governance documents necessary under this Final Judgment. To the extent that to implement the prohibitions contained in VII. APPOINTMENT OF TRUSTEE such reports contain information that the Sections IV.A, IV.B, or in this Section VI. B. A. In the event that the United States, in trustee deems confidential, such reports shall C. Except as set out elsewhere herein, its sole discretion, determines (a) that, upon not be filed in the public docket of the Court. nothing in this Final Judgment is intended to receipt of the notice called for in Section V.D, Such reports shall include the name, address, prevent Deutsche Bo¨rse from continuing to defendants have not made arrangements that and telephone number of each person who, provide services for Direct Edge under the will result in completion of any divestiture during the preceding month, made an offer Regulatory Services Agreements and Mutual within the time limits specified in Section to acquire, expressed an interest in acquiring, Services Agreement or from agreeing with V.A, (b) that defendants have not completed entered into negotiations to acquire, or was Direct Edge to amend or terminate such the divestiture required in Section V.A contacted or made an inquiry about agreements. within the specified time limits, or (c) the acquiring, any interest in the Divestiture a. During the period of any Regulatory defendants have not complied with the Assets by means of private sale or placement, Services Agreement and Mutual Services requirements of Section IV herein, the Court and shall describe in detail each contact with Agreement between defendants and Direct shall, upon application of the United States, any such person. The trustee shall maintain Edge, defendants shall construct and appoint a trustee selected by the United full records of all efforts made to divest the maintain in place a firewall that prevents any States to effect such divestiture. Plaintiff may Divestiture Assets. information obtained pursuant to those request a trustee before any of the time F. If the trustee has not accomplished such agreements from flowing to any employee of periods for divestiture specified in Section divestiture within six (6) months after his or the defendants except those necessary to V.A expire. After the appointment of a her appointment, the trustee shall promptly provide the services under the Regulatory trustee becomes effective, only that trustee file with the Court a report setting forth: (1) Services Agreements and Mutual Services shall have the right to sell the Divestiture the trustee’s efforts to accomplish the Agreement. Defendants shall not use Assets. The trustee shall have the power and required divestiture, (2) the reasons, in the information obtained pursuant to the authority to accomplish the divestiture to an trustee’s judgment, why the required Regulatory Services Agreements and Mutual acquirer(s) acceptable to the United States at divestiture has not been accomplished, and Services Agreement for any purpose other such price and on such terms as are then (3) the trustee’s recommendations. To the than in connection with providing the agreed obtainable upon the best reasonable effort by extent such reports contain information that upon services under the Regulatory Services the trustee, and shall have such other powers the trustee deems confidential, such reports Agreements and Mutual Services Agreement. as the Court shall deem appropriate. The shall not be filed in the public docket of the To implement this provision, defendants are trustee may hire at the cost and expense of Court. The trustee at the same time shall required to identify those employees defendants any investment bankers, furnish such reports to the United States, necessary to provide the services under the attorneys, or other agents, who shall be solely which shall have the right to make additional Regulatory Services Agreements and Mutual accountable to the trustee, reasonably recommendations consistent with the Services Agreement. All identified necessary in the trustee’s judgment to assist purpose of the trust. The Court thereafter employees shall be prohibited from passing in the divestiture. shall enter such orders as it deems on information obtained pursuant to the B. Defendants shall not object to a sale by appropriate to carry out the purpose of this Regulatory Services Agreements and Mutual the trustee on any ground other than the Final Judgment, which may, if necessary, Services Agreement to non-identified trustee’s malfeasance. Any such objections by include extending the trust and the term of employees, and all non-identified employees defendants must be conveyed in writing to the trustee’s appointment by a period shall be prohibited from receiving any the United States and the trustee within ten requested by the United States. information obtained pursuant to the (10) calendar days after the trustee has Regulatory Services Agreements and Mutual provided the notice required under Sections VIII. Notice of Proposed Divestiture Services Agreement. For the avoidance of VII.E and F. A. Within two (2) business days following doubt, identified employees of the C. The trustee shall serve at the cost and execution of a definitive divestiture defendants may become employees of a self- expense of defendants, on such terms and agreement for private sale or private regulatory organization (as that term is conditions as the United States approves, and placement, defendants or the trustee, defined in Section 3(a)(26) of the Securities shall account for all monies derived from the whichever is then responsible for effecting Exchange Act of 1934) other than a self- sale of the assets sold by the trustee and all the divestiture required herein, shall notify regulatory organization owned or operated by costs and expenses so incurred. After the United States of any proposed divestiture the defendants and such employees may approval by the Court of the trustee’s required by this Final Judgment. If the trustee continue to receive information obtained accounting, including fees for its services and is responsible, it shall similarly notify pursuant to the Regulatory Services those of any professionals and agents defendants. The notice shall set forth the Agreements and Mutual Services Agreement retained by the trustee, all remaining money details of the proposed divestiture and list as necessary to provide the services under shall be paid to defendants and the trust shall the name, address, and telephone number of the Regulatory Services Agreements and then be terminated. The compensation of the each person not previously identified who Mutual Services Agreement. trustee and any professionals and agents offered or expressed an interest in or desire b. Defendants shall, within ten (10) retained by the trustee shall be reasonable in to acquire any ownership interest in the business days of the entry of the Stipulation light of the value of the Divestiture Assets Divestiture Assets, together with full details and Order, submit to the Department of and based on a fee arrangement providing the of the same. Justice a document setting forth in detail its trustee with incentives based on the price B. Within fifteen (15) calendar days of procedure to effect compliance with and terms of the divestiture and the speed receipt by the United States of such notice, provision VI.C.a. The Department of Justice with which they are accomplished, but the United States may request from shall have the sole discretion to approve timeliness is paramount. defendants, the proposed Acquirer(s), any defendant’s compliance plan and shall notify D. Defendants shall use their best efforts to other third party, or the trustee, if applicable, defendants within three (3) business days assist the trustee in accomplishing the additional information concerning the whether it approves of or rejects the required divestiture. The trustee and any proposed divestiture, the proposed

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES 81978 Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Notices

Acquirer(s), and any other potential person other than an authorized DEPARTMENT OF JUSTICE Acquirer. Defendants and the trustee shall representative of the executive branch of the furnish any additional information requested United States, except in the course of legal Drug Enforcement Administration within fifteen (15) calendar days of the proceedings to which the United States is a receipt of the request, unless the parties shall party (including grand jury proceedings), or Importer of Controlled Substances; otherwise agree. for the purpose of securing compliance with Notice of Application C. Within thirty (30) calendar days after this Final Judgment, or as otherwise required receipt of the notice or within twenty (20) Pursuant to 21 U.S.C. 958(i), the calendar days after the United States has by law. Attorney General shall, prior to issuing D. If, at the time information or documents been provided the additional information a registration under this Section to a are furnished by defendants to the United requested from defendants, the proposed bulk manufacturer of a controlled States, defendants represent and identify in Acquirer(s), any third party, and the trustee, substance in schedule I or II, and prior whichever is later, the United States shall writing the material in any such information to issuing a regulation under 21 U.S.C. provide written notice to defendants and the or documents to which a claim of protection trustee, if there is one, stating whether or not may be asserted under Rule 26(c)(1)(G) of the 952(a)(2) authorizing the importation of it objects to the proposed divestiture. If the Federal Rules of Civil Procedure, and such a substance, provide United States provides written notice that it defendants mark each pertinent page of such manufacturers holding registrations for does not object, the divestiture may be material, ‘‘Subject to claim of protection the bulk manufacture of the substance consummated, subject only to defendants’ under Rule 26(c)(1)(G) of the Federal Rules an opportunity for a hearing. limited right to object to the sale under of Civil Procedure,’’ then the United States Therefore, in accordance with 21 CFR Section VII.B of this Final Judgment. Absent 1301.34(a), this is notice that on October written notice that the United States does not shall give defendants ten (10) calendar days notice prior to divulging such material in any 5, 2011, Mylan Pharmaceuticals, Inc., object to the proposed Acquirer(s) or upon 781 Chestnut Ridge Road, Morgantown, objection by the United States, a divestiture legal proceeding (other than a grand jury proposed under Section V or Section VII proceeding). West Virginia 26505, made application shall not be consummated. Upon objection by renewal to the Drug Enforcement by defendants under Section VII.B, a XI. No Reacquisition Administration (DEA) to be registered as divestiture proposed under Section VII shall Defendants may not reacquire any part of an importer of the following basic not be consummated unless approved by the the Divestiture Assets or any other equity classes of controlled substances: Court. interest in Direct Edge during the term of this IX. Financing Final Judgment. Drug Schedule Defendants shall not finance all or any part XII. Retention of Jurisdiction Methylphenidate (1724) ...... II of any purchase made pursuant to this Final This Court retains jurisdiction to enable Oxycodone (9143) ...... II Judgment. any party to this Final Judgment to apply to Hydromorphone (9150) ...... II Fentanyl (9801) ...... II X. Compliance Inspection this Court at any time for such further orders and directions as may be necessary or A. For the purpose of determining or The company plans to import the appropriate to carry out or construe this Final securing compliance with this Final listed controlled substances in finished Judgment, or determining whether the Final Judgment, to modify or terminate any of its dosage form (FDF) from foreign sources Judgment should be modified or vacated, and provisions, to enforce compliance, and to subject to any legally recognized privilege, punish any violations of its provisions. for analytical testing and clinical trials duly authorized representatives of the United in which the foreign FDF will be States Department of Justice, including XIII. Expiration of Final Judgment compared to the company’s own consultants and other persons retained by the Unless extended by this Court, this Final domestically-manufactured FDF. This United States, shall, upon written request of Judgment shall expire ten (10) years from the analysis is required to allow the a duly authorized representative of the date of its entry. company to export domestically- Assistant Attorney General in charge of the manufactured FDF to foreign markets. Antitrust Division, and on reasonable notice XIV. Public Interest Determination Any bulk manufacturer who is to defendants, be permitted: Entry of this Final Judgment is in the 1. access during defendants’ office hours to presently, or is applying to be, inspect and copy, or at the option of the public interest. The parties have complied registered with DEA to manufacture United States, to require defendants to with the requirements of the Antitrust such basic classes of controlled provide hard copies or electronic copies of, Procedures and Penalties Act, 15 U.S.C. § 16, substances may file comments or all books, ledgers, accounts, records, data, including making copies available to the objections to the issuance of the and documents in the possession, custody, or public of this Final Judgment, the proposed registration and may, at the control of defendants, relating to any matters Competitive Impact Statement, and any same time, file a written request for a contained in this Final Judgment; and comments thereon and the United States’s hearing on such application pursuant to 2. to interview, either informally or on the responses to comments. Based upon the 21 CFR 1301.43, and in such form as record, defendants’ officers, employees, or record before the Court, which includes the prescribed by 21 CFR 1316.47. agents, who may have their individual Competitive Impact Statement and any counsel present, regarding such matters. The Any such written comments or comments and response to comments filed interviews shall be subject to the reasonable objections should be addressed, in convenience of the interviewee and without with the Court, entry of this Final Judgment quintuplicate, to the Drug Enforcement restraint or interference by defendants. is in the public interest. Administration, Office of Diversion B. Upon written request of a duly DATED: llllllllllllllll Control, Federal Register Representative authorized representative of the Assistant Court approval subject to the Antitrust (ODL), 8701 Morrissette Drive, Attorney General in charge of the Antitrust Procedures and Penalties Act, 15 U.S.C. Springfield, Virginia 22152; and must be Division, defendants shall submit written § 16. filed no later than January 30, 2012. reports or responses to written lllllllllllllllllllll This procedure is to be conducted interrogatories, under oath if requested, United States District Judge simultaneously with, and independent relating to any of the matters contained in [FR Doc. 2011–33413 Filed 12–28–11; 8:45 am] this Final Judgment as may be requested. of, the procedures described in 21 CFR C. No information or documents obtained BILLING CODE 4410–11–P 1301.34(b), (c), (d), (e), and (f). As noted by the means provided in this section shall in a previous notice published in the be divulged by the United States to any Federal Register on September 23, 1975,

VerDate Mar<15>2010 15:12 Dec 28, 2011 Jkt 226001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\29DEN1.SGM 29DEN1 wreier-aviles on DSK3TPTVN1PROD with NOTICES