Federal Register / Vol. 82, No. 176 / Wednesday, September 13, 2017 / Notices 43017 I respectfully disagree. Lenovo failed actively contravened the security how they could have opted out, most to disclose that VisualDiscovery would posture of consumers’ computers, would have decided to keep act as a man-in-the-middle. However, leaving them vulnerable both to attack VisualDiscovery inactive. Lenovo did disclose that the software from cyber-criminals and to transmitting This is an exceptionally strong case would introduce advertising into personal information across the web to and clearly articulates how the consumers’ web browsing, although its Superfish, Inc. servers. These unfair Commission uses its unfairness tools to disclosure could have been better. practices violate the Federal Trade protect the data security and privacy of Furthermore, to the extent ordinary Commission Act and are appropriately consumers. I support Count I, but consumers expect anything from challenged by the FTC in Counts II and believe the FTC should have included advertising software, they likely expect III of the complaint. additional deceptive conduct alleged in it to affect their web browsing and to be But Lenovo’s unlawful conduct went the complaint within the count. The intrusive, as the popularity of ad beyond the data security failings alleged FTC should not turn a blind eye to blocking technology shows. In addition, in the complaint. The complaint also deceptive disclosures and opt-ins, unlike the man-in-the-middle describes how the software it particularly when consumers’ privacy technique, VisualDiscovery’s ad preinstalled on computers would: (1) and security are at stake. Inject pop-up ads every time consumers placement and web browsing effects did [FR Doc. 2017–19385 Filed 9–12–17; 8:45 am] not introduce gross hazards obviously visited a shopping Web site; and (2) BILLING CODE 6750–01–P outside of consumers’ ordinary disrupt web browsing by reducing expectations for advertising software. In download speeds by almost 25 percent short, although VisualDiscovery’s ad and upload speeds by 125 percent. FEDERAL TRADE COMMISSION placement and effect on web browsing These facts were not disclosed to may have been irritating to many, those consumers and these omissions were Granting of Requests for Early features did not make VisualDiscovery deceptive. Termination of the Waiting Period unfit for its intended use. Therefore, I Moreover, the FTC alleges that the Under the Premerger Notification do not find Lenovo’s silence about those VisualDiscovery software was designed Rules features to be a deceptive omission. to be difficult to discover. Consumers Fortunately, the outcome in this case were initially made aware of the Section 7A of the Clayton Act, 15 does not depend on resolving our existence of the VisualDiscovery U.S.C. 18a, as added by Title II of the disagreement on the application of software via a pop-up window the first Hart-Scott-Rodino Antitrust deceptive omission to advertising time they visited an ecommerce site. But Improvements Act of 1976, requires software. My goal in writing separately clicking to close that window opted persons contemplating certain mergers is to maintain the clear distinction set consumers into the program. The initial or acquisitions to give the Federal Trade forth in International Harvester between pop-up window failed to disclose that Commission and the Assistant Attorney deceptive failures to disclose and unfair VisualDiscovery would follow the General advance notice and to wait omissions.13 When evaluating the consumers from shopping site to designated periods before legality of a party’s silence, we must be shopping site; slow the performance and consummation of such plans. Section careful not to circumvent unfairness’s functionality of the Web sites they 7A(b)(2) of the Act permits the agencies, higher evidentiary burden by simply visited; and compromise their security in individual cases, to terminate this restyling an unfair omission as a and privacy throughout each online waiting period prior to its expiration deceptive omission. browsing session. and requires that notice of this action be Under Section 5 of the FTC Act, the published in the Federal Register. Statement of Commissioner Terrell failure to disclose information necessary The following transactions were McSweeny in the Matter of Lenovo, Inc. to prevent the creation of a false granted early termination—on the dates I support the Commission’s complaint impression is a deceptive practice.1 A indicated—of the waiting period against Lenovo, but I am troubled by seller’s silence may make an implied provided by law and the premerger conduct in this case that the representation ‘‘based on ordinary notification rules. The listing for each Commission fails to challenge. consumer expectations as to the transaction includes the transaction According to the complaint, Lenovo, irreducible minimum performance number and the parties to the Inc. preinstalled software on computers standards of a particular class of transaction. The grants were made by that was designed to serve good.’’ 2 In this case, Lenovo deceptively the Federal Trade Commission and the advertisements to consumers while they omitted that VisualDiscovery would Assistant Attorney General for the were browsing Web sites. The software, alter the very internet experience for Antitrust Division of the Department of called VisualDiscovery, acted as a which most consumers buy a computer. Justice. Neither agency intends to take ‘‘man-in-the-middle’’ between the I believe that if consumers were fully any action with respect to these consumers and all of the Web sites with aware of what VisualDiscovery was, proposed acquisitions during the which they communicated. It allegedly how it compromised their system, and applicable waiting period. EARLY TERMINATIONS GRANTED JULY 1, 2017 THROUGH JULY 31, 2017 07/03/2017 20171409 ...... G Quest Diagnostics Incorporated; Med Fusion, LLC; Quest Diagnostics Incorporated. 20171459 ...... G Synnex Corporation; Datatec Limited; Synnex Corporation. 20171460 ...... G Datatec Limited; Synnex Corporation; Datatec Limited. 13 International Harvester, 104 FTC at 1051. 1 FTC Policy Statement on Deception, 103 F.T.C. 2 Int’l. Harvester Co., 104 F.T.C. 949, 1058 (1984). 174, 175 (1984) (appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)). VerDate Sep<11>2014 17:34 Sep 12, 2017 Jkt 241001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\13SEN1.SGM 13SEN1 sradovich on DSK3GMQ082PROD with NOTICES 43018 Federal Register / Vol. 82, No. 176 / Wednesday, September 13, 2017 / Notices EARLY TERMINATIONS GRANTED—Continued JULY 1, 2017 THROUGH JULY 31, 2017 20171483 ...... G Warburg Pincus Private Equity XII, L.P.; Odyssey Investment Partners Fund IV, L.P.; Warburg Pincus Private Equity XII, L.P. 07/05/2017 20171470 ...... G Caerus Operating, LLC; Encana Corporation; Caerus Operating, LLC. 20171480 ...... G Enerflex Ltd.; Mesa Compression, LLC; Enerflex Ltd. 07/06/2017 20171464 ...... G Donuts Inc.; Rightside Group Ltd.; Donuts Inc. 07/10/2017 20171506 ...... G Vista Foundation Fund III, L.P.; Francisco Partners III (Domestic AIV), L.P.; Vista Foundation Fund III, L.P. 20171508 ...... G Gryphon Partners IV, L.P.; ACOF IV CWC AIV Blocked Feeder, L.P.; Gryphon Partners IV, L.P. 20171516 ...... G Softbank Group Corp.; Alphabet Inc.; Softbank Group Corp. 20171524 ...... G Vista Foundation Fund III, L.P.; Upserve, Inc.; Vista Foundation Fund III, L.P. 20171533 ...... G 2297984 Ontario Limited; TEGNA Inc.; 2297984 Ontario Limited. 20171538 ...... G Marquee Brands Partners, LP; BCBG Max Azria Global Holdings, LLC; Marquee Brands Partners, LP. 07/11/2017 20171468 ...... G John C. Malone; Liberty Interactive Corporation; John C. Malone. 20171504 ...... G Sonoco Products Company; Sanfilippo Family SD Trust; Sonoco Products Company. 20171531 ...... G Tallgrass Equity, LLC; Kinder Morgan, Inc.; Tallgrass Equity, LLC. 07/12/2017 20171462 ...... G JANA Nirvana Offshore Fund, Ltd.; Zimmer Biomet Holdings, Inc.; JANA Nirvana Offshore Fund, Ltd. 20171474 ...... G William P. Foley, II; Black Knight Holdco Corp.; William P. Foley, II. 20171475 ...... G Thomas H. Lee Parallel Fund VI, L.P.; Black Knight Holdco Corp.; Thomas H. Lee Parallel Fund VI, L.P. 20171476 ...... G Thomas H. Lee Equity Fund VI, L.P.; Black Knight Holdco Corp.; Thomas H. Lee Equity Fund VI, L.P. 20171477 ...... G THL Equity Fund VI Investors (BKFS), L.P.; Black Knight Holdco Corp.; THL Equity Fund VI Investors (BKFS), L.P. 20171478 ...... G THL Equity Fund VI Investors (BKFS) II, L.P.; Black Knight Holdco Corp.; THL Equity Fund VI Investors (BKFS) II, L.P. 20171497 ...... G Desmarais Family Residuary Trust; Personal Capital Corporation; Desmarais Family Residuary Trust. 20171505 ...... G Asia-Germany Industry 4.0 Promotion Cross-Border Fund I L.P.; Olympus Growth Fund V, L.P.; Asia-Germany Industry 4.0 Promotion Cross-Border Fund I L.P. 20171518 ...... G AECOM; Shimmick Construction Company, Inc.; AECOM. 20171532 ...... G Xinghai Zhang; Ronald Perelman; Xinghai Zhang. 20171535 ...... G Legrand S.A.; PGPC-Milestone LLC; Legrand S.A. 07/13/2017 20171195 ...... G IAC/InterActiveCorp; Angie’s List, Inc.; IAC/InterActiveCorp. 20171443 ...... G Astra-LOGIX Holdings, LLC; Gores Capital Partners III, L.P.; Astra-LOGIX Holdings, LLC. 20171444 ...... G WAFRA Real Assets & Infrastructure Fund I, L.P.; Gores Capital Partners III, L.P.; WAFRA Real Assets & Infrastructure Fund I, L.P. 20171503 ...... G Occidental Petroleum Corporation;