Notice2025-20260
United States v. Hewlett Packard Enterprise Co. and Juniper Networks, Inc.; Response of the United States to Public Comments on the Proposed Final Judgments
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Published
November 19, 2025
Issuing agencies
Justice DepartmentAntitrust Division
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<title>Federal Register, Volume 90 Issue 221 (Wednesday, November 19, 2025)</title>
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[Federal Register Volume 90, Number 221 (Wednesday, November 19, 2025)]
[Notices]
[Pages 52097-52109]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-20260]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Hewlett Packard Enterprise Co. and Juniper
Networks, Inc.; Response of the United States to Public Comments on the
Proposed Final Judgments
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that the Response of the United
States to Public Comments on the Proposed Final Judgment in United
States of America v. Hewlett Packard Enterprise Co. and Juniper
Networks, Inc., Civil Case No. 5:25-CV-00951-PCP, has been filed in the
United States District Court for the Northern District of California,
together with copies of the public comments.
Copies of the Exhibits and the Public Comments and the United
States' Response are available for inspection on the Antitrust
Division's website at <a href="http://www.justice.gov/atr">http://www.justice.gov/atr</a>.
Suzanne Morris,
Deputy Director, Civil Enforcement Operations, Antitrust Division.
United States District Court
Northern District of California
San Jose Division
United States of America, Plaintiff, v. Hewlett Packard
Enterprise Co. and Juniper Networks, Inc., Defendants.
Case No. 5:25-cv-00951-PCP
RESPONSE OF UNITED STATES TO PUBLIC COMMENTS ON THE PROPOSED FINAL
JUDGMENT
Judge: Hon. P. Casey Pitts
Pursuant to the Antitrust Procedures and Penalties Act (the
``APPA'' or ``Tunney Act''), 15 U.S.C. 16(d), the United States submits
this response to the public comments received regarding the proposed
Final Judgment resolving this case. See Dkt. No. 217-1. The United
States does not request any action by the Court at this time. Instead,
the United States will provide notice of this response in the Federal
Register and then submit a motion requesting that the Court enter the
proposed Final Judgment, as amended. See infra section V.C.
I. Introduction
The United States respectfully submits this response to public
comments and urges the Court to approve the amended proposed Final
Judgment without an evidentiary hearing. The original proposed Final
Judgment, submitted on June 27, 2025, achieved what the Tunney Act
requires: it directly remedied competitive harms alleged in the
Complaint through a targeted divestiture and licensing requirements
that promote competition in the relevant market. Not a single consumer
or competitor submitted a comment opposing it. The amended proposed
Final Judgment, submitted today, includes several provisions added in
response to public comments that improve the original proposal. The
Court should approve it promptly and decline invitations to conduct an
inquiry into the Department of Justice's internal deliberations--an
inquiry that would undermine future merger enforcement.
On January 30, 2025, the United States brought this antitrust
enforcement action against Hewlett Packard Enterprises Co. (``HPE'')
and Juniper Networks, Inc. (``Juniper''), alleging that HPE's proposed
$14 billion acquisition of Juniper threatened to substantially lessen
competition in the market for enterprise-grade wireless
[[Page 52098]]
local area network (``WLAN'') solutions. The Complaint alleged that the
merger would eliminate head-to-head competition between two leading
innovators in a critical technology sector, potentially leading to
higher prices, reduced innovation, and diminished choices for
businesses relying on advanced wireless networking infrastructure.
After months of intensive litigation--including extensive
discovery, depositions, expert reports, and pre-trial motions--the
parties reached a settlement on the eve of trial that directly
addresses these competitive harms through two remedies: (1) HPE must
divest its ``Instant On'' enterprise-grade WLAN business, which
operates in the relevant market alleged in the Complaint and may create
or strengthen an independent competitor; and (2) HPE must license the
source code for Juniper's Mist AI Ops technology--the innovative
network management solution that the Complaint credits with enabling
Juniper's rapid growth and disruptive competitive impact in the
market--allowing other firms to access this valuable technology and
compete more effectively. This settlement seeks to protect competition
in enterprise-grade WLAN solutions while avoiding the substantial risk,
uncertainties, delays, and expenses of a trial where the outcome was
not assured.
Pursuant to the Antitrust Procedures and Penalties Act (the
``Tunney Act''), 15 U.S.C. 16(b), the United States filed the proposed
Final Judgment and Competitive Impact Statement on June 27, 2025, and
invited public comments over a 60-day period. See Dkt. Nos. 217-1 &
217-2. The United States received 12 comments, which are attached as
exhibits and will be described in the Federal Register as ordered by
this Court. See Dkt. No. 234. Not a single comment opposing the
settlement came from those with the most direct interest in its
competitive effects: consumers of enterprise-grade WLAN solutions, who
would bear the brunt of any anticompetitive harm unaddressed by the
settlement, and competitors in the relevant market, who would be best
positioned to identify shortcomings in the remedies. This absence of
concern from market participants speaks volumes about the settlement's
adequacy in protecting competition. Indeed, although the United States
disagrees, one commenter argued that ``the merger did not exhibit
sufficient signs of anticompetitive concerns to warrant antitrust
enforcement'' in the first place. Exh. A-14 at 1.
The remaining comments were submitted largely by politicians and
advocacy groups. They primarily focus not on the settlement's
competitive impact but on speculative allegations about the Department
of Justice's internal decision-making process--matters that fall
outside the Tunney Act's purview.
The United States has carefully reviewed all comments and, where
substantively warranted, negotiated amendments with HPE to strengthen
the proposed Final Judgment. In direct response to concerns raised by
former Antitrust Division professionals, the amended judgment now
expressly requires that both the divestiture buyer and source code
licensees possess ``the intent and capability, including the necessary
managerial, operational, technical, and financial capability, to
compete effectively in the market for the provision of enterprise-grade
WLAN solutions in the United States,'' and further requires them to
satisfy the United States that they will use these assets to compete in
the relevant market. Exh. A-1 at 18-19. Additional enhancements include
requiring HPE to use ``best efforts'' to complete the divestiture and
licensing ``as expeditiously as possible,'' extending potential
transition services from 12 to 18 months, strengthening trustee
oversight provisions, and providing explicit authority for the United
States to seek contempt sanctions for violations. See Exh. A-1 at 8,
11, 16-18, 22-23.
This Court should find that entry of the amended proposed Final
Judgment is in the public interest and conclude that an evidentiary
hearing is unnecessary. The reasons supporting this conclusion fall
into three categories: (1) the settlement's substantive terms readily
satisfy the Tunney Act's deferential ``public interest'' standard by
providing effective relief directed to the alleged harms; (2) the
public comments--dominated by process-oriented speculation rather than
competitive analysis--do not warrant expanded proceedings; and (3)
convening a hearing would negatively impact future antitrust
enforcement while implicating deliberative process privilege and
constitutional separation of powers principles. Moreover, the Court's
role under the Tunney Act is limited to a binary choice--approval or
disapproval of the amended proposed Final Judgment.
First, the amended judgment satisfies the Tunney Act's deferential
public interest standard. Courts must accord deference to the
government's predictions about remedy efficacy and need only determine
whether a settlement falls within the reaches of the public interest--
not whether it represents the perfect remedy or one the Court would
craft itself if the case were successfully litigated to judgment.
Settlements often reflect underlying weakness in the government's case
or compromises made to achieve a pre-trial resolution, and courts may
not demand that remedies perfectly match the alleged violations.
Here, the amended proposed Final Judgment is designed to address
the competitive harms alleged in the Complaint. The divestiture of
Instant On--a fully operational enterprise-grade WLAN business,
including hardware, software, customer relationships, and intellectual
property--may create or strengthen an independent competitor in the
market at issue. The mandatory licensing of Mist AI Ops source code
will provide access to the technology that enabled Juniper to ``spur
both price and product innovation,'' Dkt. No. 1 ]] 6-11, 44-48, and
could allow multiple firms to develop or strengthen competing
solutions. These remedies address concerns about the loss of head-to-
head competition alleged in the Complaint while preserving any
procompetitive aspects of the merger. The amendments to the proposed
Final Judgment further enhance the remedies by requiring acquirers and
licensees to demonstrate competitive capability and intent, extending
transition support, and incorporating robust enforcement tools
including trustee monitoring and contempt authority. Exh. A-1 at 8, 11,
16-18, 22-23.
Critically, the settlement embodies a prudent compromise that
accounts for litigation risk. While the United States was prepared to
present a strong case, the Defendants advanced credible defenses that
introduced meaningful uncertainty. See Dkt. Nos. 200-201; Dkt. No. 298
at 4-5. In such scenarios, settlements serve the public interest by
securing tangible protections rather than gambling on an all-or-nothing
trial that could leave consumers with no relief. Courts have repeatedly
recognized that consent judgments need not eliminate every harm but may
reflect reasonable compromises. Requiring the Department to reject
reasonable settlements and litigate every case to conclusion--even
those where success is uncertain--would waste scarce government and
private resources, delay benefits to consumers, and create perverse
incentives that discourage reasonable compromises.
Second, the public comments do not warrant further proceedings. The
Tunney Act directs courts to assess ``the competitive impact'' of
proposed judgments based on specific factors:
[[Page 52099]]
``termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment.'' 15 U.S.C. 16(e)(1)(A) (emphasis added).
The comments here fail to raise material competitive concerns that fall
within the scope of this provision. Indeed, the commenters have no
commercial stakes in the enterprise-grade WLAN market. They focus
instead on alleged irregularities in the Department's internal
processes--speculating about involvement by senior officials, alleged
internal disagreements based on press reports, signatory identities,
and supposed undisclosed ``side deals.'' These process-oriented
allegations do not bear upon whether the settlement's substantive terms
adequately protect competition, which is the only question the Tunney
Act authorizes this Court to decide. Holding a hearing on such comments
would risk turning an economic inquiry into a political circus. Courts
have wisely declined hearings even in controversial, high-profile
cases.
Third, an evidentiary hearing would cause substantial harm. The
Tunney Act explicitly provides that hearings are discretionary, and
courts routinely approve consent judgments on the papers alone. The
existing record here--the Complaint, the Competitive Impact Statement,
public comments, this response, and additional filings and declarations
from the United States and HPE--provides ample basis for review. In
contrast, a hearing probing the Department's internal deliberation
would constitute an improper intrusion into Executive Branch processes.
Compelling testimony from senior Department officials or the production
of privileged evidence from the Department would raise even graver
concerns. Indeed, courts of appeals have issued writs of mandamus to
prevent such actions absent clear necessity, recognizing it would have
serious repercussions for the relationship between two coequal branches
of government.
For all these reasons, the Court should find that the amended
proposed Final Judgment is in the public interest under the Tunney Act
and enter it without further proceedings.
II. Factual Background
A. The United States Brought This Action To Protect Competition in the
Market for Enterprise-Grade Wireless Local Area Networks in the United
States
On January 30, 2025, the United States filed a civil antitrust
Complaint seeking to enjoin the proposed acquisition of Juniper by HPE.
The Complaint alleges that the acquisition likely would substantially
lessen competition in the United States for enterprise-grade WLAN
solutions in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
Dkt. No. 1. The Complaint defines enterprise-grade WLAN solutions to
include wireless access points, the separate network-management
hardware or software systems to monitor or manage them, and related
logistical support. Id. ] 5.
HPE and Juniper were the second- and third-largest enterprise-grade
WLAN solutions providers in the United States, with both trailing
market leader Cisco. Dkt. No. 1 ] 5. The Complaint alleges that Juniper
utilized its innovative network management software platform, Mist, to
grow rapidly in the enterprise-grade WLAN market and spur both price
and product innovation competition with HPE. Id. ]] 6-11, 44-48. The
Complaint further alleges that Mist's artificial intelligence and
machine learning tools (known as ``AI Ops'') were a critical component
of Mist's appeal to customers, as these tools can proactively identify,
diagnose, and resolve technical issues before they cause network
outages, thereby increasing the productivity of network administrators.
Id. ]] 6-7. The Complaint alleges a single relevant market for
enterprise-grade WLAN solutions, without submarkets for small-, medium-
, or large-sized enterprises. See id. ]] 34-38.
B. Shortly Before Trial, the United States and Defendants Reached
Agreement To Resolve This Action in Return for Steps To Protect
Competition in the Relevant Market
On June 27, 2025, the United States and both Defendants filed a
Joint Stipulation and Order and proposed Final Judgment that helps
remedy the Section 7 of the Clayton Act violation and allows the merger
to proceed. Dkt. No. 217. The Court entered the Joint Stipulation on
June 30, 2025. Dkt. No. 220.
After considering the public comments submitted, the United States
and HPE have agreed to amend the proposed Final Judgment to include
additional provisions to further ensure that the process for the
divestiture and license protects competition in the relevant market,
and to provide enhanced enforcement provisions. Exh. A-1.
1. The Proposed Final Judgment Requires the Defendants To Divest
``Instant On,'' an Enterprise-Grade WLAN Business
The proposed Final Judgment requires that within 180 calendar days
after the filing of the proposed Final Judgment, or five days after the
entry of the Final Judgment, whichever is later, HPE must divest HPE's
worldwide Instant On campus and branch business. Exh. A-1 at 5; Dkt.
No. 217-1 at 5. The Instant On business operates in the market for
enterprise-grade WLAN solutions alleged in the Complaint. See Dkt. No.
1 ]] 34-38; Dkt 298 at 13. Its divestiture to a company that can
compete in that market should create opportunities for business growth,
product innovation, and increased competition in the market for
enterprise-grade WLAN solutions--whether for small, medium, or large
enterprises.
HPE's Instant On divestiture will include all tangible and
intangible assets related to or used in connection with this business,
including all contracts, agreements, and customer relationships
included in the business. Exh. A-1 at 5; Dkt. No. 217-1 at 5. To the
extent any contract or agreement requires the consent of another party
to assign or otherwise transfer, HPE must use best efforts to
accomplish the assignment or transfer. Exh. A-1 at 5; Dkt. 217-1 at 5
In the event that HPE does not divest Instant On within the
required time frame, the proposed Final Judgment provides that the
Court will appoint a Divestiture Trustee selected by the United States
to sell the business. Exh. A-1 at 6; Dkt. No. 217-1 at 6. HPE would be
required to pay all costs and expenses related to the Trustee, and it
cannot object to a sale consummated by the Trustee except on grounds of
malfeasance. Exh. A-1 at 6-7; Dkt. No. 217-1 at 6-7. Should the Trustee
not sell Instant On within six months of his or her appointment, the
Trustee must file with the Court a report documenting efforts to sell
the business, the reasons for not accomplishing the sale of the
business, and recommendations for future action. Exh. A-1 at 8; Dkt.
No. 217-1 at 8.
Crucially, the United States has sole discretion on whether to
accept any divestiture acquirer. Exh. A-1 at 5; Dkt. No. 217-1 at 5.
All of the terms described in this section are included in both the
original
[[Page 52100]]
and the amended proposed Final Judgment.
2. The Proposed Final Judgment Requires the Defendants To License
Relevant and Valuable Source Code
The proposed Final Judgment requires that within 180 calendar days
after the filing of the proposed Final Judgment, or five days after the
entry of the Final Judgment, whichever is later, HPE must hold an
auction to issue one or more perpetual, worldwide, non-exclusive
licenses for the AI Ops for Mist source code. Exh. A-1 at 10; Dkt. No.
217-1 at 10. As the Complaint alleges, Mist's AI Ops capabilities
competitively differentiated Juniper's enterprise-grade WLAN solutions
offerings and increased its market share. Dkt. No. 1 ]] 6-7. Indeed,
customers often associate Juniper's WLAN solutions with Mist's AI Ops
capabilities. Id. ] 7. Since 2019, Juniper has succeeded in increasing
its revenues and share in the market for enterprise-grade WLAN
solutions, causing HPE to compete more aggressively, including by
investing resources into further developing its own AI Ops offerings.
Id. ]] 8-11. Requiring HPE to license a key ingredient of Juniper's
competitive success to one or possibly two companies that can compete
in the market for enterprise-grade WLAN solutions should increase
competition and innovation in that market.
Under the terms of the auction, HPE must issue two licenses if more
than one bid exceeds $8 million. Exh. A-1 at 12-13; Dkt. No. 217-1 at
12. This requirement ensures that a robust market response to this
competitive opportunity is accommodated. Both licensees, one of whom
would be deemed the primary licensee, would have the right to utilize
and further develop the licensed source code for their networking
products, and any further improvements developed after the license date
would be owned by the licensee--a term that will encourage further
innovation in the market. Exh. A-1 at 13; Dkt. No. 217-1 at 13. The
primary licensee also has the right to contract with HPE for 12 months
of support services, including the transfer of up to 30 engineers
familiar with the source code and up to 25 sales personnel experienced
in selling Mist. Exh. A-1 at 11; Dkt. No. 217-1 at 11. HPE must also
facilitate introductions for the primary licensee to: (1) Juniper's
original design manufacturer suppliers for WLAN hardware; (2) Juniper's
distributors for WLAN in the United States; and (3) channel partners
that worked with Juniper to sell WLAN in the United States. Exh. A-1 at
12; Dkt. No. 217-1 at 11-12. These transition services will provide the
primary licensee with the expertise and support needed to fully
integrate the Mist source code into its product lines and develop new
business opportunities.
The proposed Final Judgment also provides for the appointment of a
Trustee should HPE not license the source code in a timely manner. Exh.
A-1 at 13-17; Dkt. No. 217-1 at 13-16. In addition, the United States
has sole discretion on whether to accept any proposed licensee. Exh. A-
1 at 10; Dkt. No. 217-1 at 10.
All of the terms described in this section are included in both the
original and the amended proposed Final Judgment.
3. The Proposed Final Judgment Includes Other Terms To Protect
Competition in the Relevant Market
In addition to specifying detailed terms and procedures for
carrying out the Instant On divestiture and source code licensing, the
proposed Final Judgment requires HPE to submit affidavits to the United
States every 30 days documenting the company's efforts to sell the
divestiture assets and conduct the source code auction. Exh. A-1 at 20;
Dkt. No. 217-1 at 18. HPE has been timely submitting these affidavits,
and the United States is satisfied that the company is making adequate
efforts to complete the divestiture and the licensing.
The proposed Final Judgment also provides a mechanism for the
United States to inspect HPE's records and operations to ensure
compliance with the terms of the judgment. Exh. A-1 at 20-22; Dkt. No.
217-1 at 19-20. Specifically, the United States could require HPE to:
(1) produce copies of books, records, data, and documents related to
any matters contained in the proposed Final Judgment; (2) make
officers, employees, and agents of the company available for interview
by the United States about matters contained in the proposed Final
Judgment; and (3) submit written reports about matters contained in the
proposed Final Judgment. Id.
All of the terms described in this section are included in both the
original and the amended proposed Final Judgment.
4. The Amendments to the Proposed Final Judgment Further Protect
Competition in the Relevant Market
After carefully reviewing and considering the comments to the
proposed Final Judgment, the United States has proposed amendments to
provide additional procedural protections to support the divestiture
and licensing agreed in the proposed Final Judgment, to which HPE has
agreed. The amended proposed Final Judgment is attached to this
response as Exhibit A-1.
First, the amended proposed Final Judgment requires HPE to use best
efforts to divest Instant On and license the source code as
expeditiously as possible. Exh. A-1 at 18. In addition, the Trustee(s)
must sell Instant On and/or license the source code as quickly as
possible. Exh. A-1 at 6, 14. The amended proposed Final Judgment also
specifies that the Trustee(s) will serve until Instant On is divested
and/or the source code is licensed (unless otherwise ordered by the
Court), and that the United States may seek the replacement of the
Trustee(s) if he or she is not acting diligently or in a reasonably
cost-effective manner. Exh. A-1 at 8, 16-17.
Though the proposed Final Judgement grants the United States sole
discretion on whether to accept any divesture acquiree or licensee, the
amendments make clear that the divestiture and license(s) must be
accomplished in such a way as to satisfy the United States, in its sole
judgment, that Instant On and the AI Ops for Mist source code can and
will be used by the acquirer and licensee(s) to compete in the market
for the provision of enterprise-grade WLAN solutions in the United
States. Exh. A-1 at 18-19. In addition, the amendments add a provision
by which the transition services for the source code may be extended by
an additional 6 months at the request of the primary licensee and with
the approval of the United States. Exh. A-1 at 11.
Finally, the amended proposed Final Judgment includes enhanced
enforcement provisions beyond those in the original proposed Final
Judgment. Specifically, it allows the United States to seek relief from
the Court, including contempt sanctions, should HPE not comply with the
terms of the final judgment. Exh. A-1 at 22-23.
C. The United States and Defendants Promptly Provided Notice and Took
Additional Steps as Required by the Tunney Act
At the same time as the filing of the proposed Final Judgment with
the Court, a Competitive Impact Statement was filed as required by 15
U.S.C. 16(b). Dkt. 217-2. The United States published the Complaint,
the proposed Final Judgment, and the Competitive Impact Statement,
together with directions for the submission of written comments
relating to the proposed Final Judgment, in the Federal Register on
July 10, 2025.
[[Page 52101]]
See 90 FR 30685 (July 10, 2025). The United States also caused notice
of the settlement and comment procedures to be published in the
Washington Post on July 9-15, 2025, and in the Mercury News on July 9,
10, 11, 12, 14, 15, and 16, 2025. 15 U.S.C. 16(c).
The Tunney Act provides for a 60-day period for the public to
submit comments to the United States regarding the proposed Final
Judgment. 15 U.S.C. 16(b). That 60-day comment period has ended.
III. Standard of Judicial Review Under the Tunney Act
The Tunney Act sets forth a specific form of judicial review for
entry of antitrust consent judgments between the United States and
another party. Specifically, the Tunney Act states:
(e) Public interest determination
(1) Before entering any consent judgment proposed by the United
States under this section, the court shall determine that the entry
of such judgment is in the public interest. For the purpose of such
determination, the court shall consider--
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
(2) Nothing in this section shall be construed to require the
court to conduct an evidentiary hearing or to require the court to
permit anyone to intervene.
15 U.S.C. 16(e).
As the text of the statute makes clear, Tunney Act review concerns
an assessment of whether the entry of the proposed Final Judgment is in
the ``public interest'' as that term is defined by the statute. In
applying the statutory factors set forth in Sections 16(e)(1)(A) and
(B), the court looks to the terms of the proposed judgment and
considers, among other things, the relationship between the remedy
secured and the specific allegations in the government's complaint,
whether the proposed judgment is sufficiently clear, whether its
enforcement mechanisms are sufficient, and whether it may harm third
parties. See United States v. JDS Uniphase Corp., Civil Action No. 00-
2227 (TEH), 2000 WL 33115892, at *11 (N.D. Cal. Oct. 3, 2000) (citing
United States v. Microsoft Corp., 56 F.3d 1448, 1461-62 (D.C. Cir.
1995)). With respect to the adequacy of the relief secured by the
proposed judgment, the Ninth Circuit has held that a court may not
``engage in an unrestricted evaluation of what relief would best serve
the public.'' United States v. BNS Inc., 858 F.2d 456, 462 (9th Cir.
1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 (9th
Cir. 1981)). Instead:
[t]he balancing of competing social and political interests affected
by a proposed antitrust consent [judgment] must be left, in the
first instance, to the discretion of the Attorney General. The
court's role in protecting the public interest is one of insuring
that the government has not breached its duty to the public in
consenting to the decree. The court is required to determine not
whether a particular decree is the one that will best serve society,
but whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent [judgment].
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted). Further,
the court's ``ultimate authority under the [Tunney] Act is limited to
approving or disapproving the consent [judgment].'' BNS, 858 F.2d at
464.
The current iteration of Section 16(e)(1)(A) and (B) reflects a
2004 amendment to the Tunney Act, Public Law 108-237, enacted in
response to complaints that some courts were limiting their review
solely to whether the proposed judgment would make a ``mockery of the
judicial function.'' \1\ The amended statute made consideration of
specific public interest factors mandatory rather than discretionary.
Compare 15 U.S.C. 16(e) (effective until June 21, 2004), with 15 U.S.C.
16(e)(1) (effective as of June 22, 2004). Congress also modified the
list of factors, such as by adding a new factor (whether the terms of
the judgment are ambiguous) that the D.C. Circuit had already made
clear was appropriate to consider. See 15 U.S.C. 16(e)(1)(A);
Microsoft, 56 F.3d at 1461-62. Thus, Senator Hatch, the chairman of the
Senate Judiciary Committee at the time of the 2004 amendment, observed
that the ``amendment essentially codifie[d] existing case law [ ].''
150 Cong. Rec. S3613 (daily ed. Apr. 2, 2004) (statement of Sen.
Hatch); see also United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d
1, 11 (D.D.C. 2007) (concluding that the 2004 amendment ``effected
minimal changes'' to Tunney Act review).
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\1\ See Antitrust Criminal Penalty Enhancement and Reform Act of
2004, Public Law 108-237, tit. II, Sec. 221(a)(1)(B), 118 Stat.
661, 668 (2004) (explaining that ``it would misconstrue the meaning
and Congressional intent in enacting the Tunney Act to limit the
discretion of district courts to review antitrust consent judgments
solely to determining whether entry of those consent judgments would
make a `mockery of the judicial function' '').
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Absent from the list of enumerated factors is any suggestion that
courts should inquire into the internal processes or motivations of a
co-equal branch of government. Such an inquiry is not warranted by the
Tunney Act and would be barred by longstanding judicial precedent. See
infra sections IV.B & V.D. The Court should therefore limit its review
to the enumerated statutory factors and decline any invitations to
conduct a more wide-ranging inquiry into the operation of the Executive
Branch.
IV. Summary of Public Comments and Responses
The United States received 12 comments, which are attached to this
response as Exhibits A-4 through A-14.\2\ The comments included letters
from members of Congress, 20 state or territorial Attorneys General
(``State AGs Letter''), former employees of the U.S. Department of
Justice's Antitrust Division (``Former Division Professionals
Letter''), the American Antitrust Institute, the American Economic
Liberties Project, the Protect Democracy Project, the Dekleptocracy
Project, the Mercatus Center at George Mason University, and members of
the public.
---------------------------------------------------------------------------
\2\ Two public comments submitted to and noticed by the Court,
see Dkt. No. 231, are combined in Exhibit A-6.
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Notably, the United States received no comments from consumers in
the relevant product market or competitors to the merging companies.
None of the comments expressed concerns that the remedies in the
proposed Final Judgment would harm consumers or competing businesses.
Instead, 11 of the 12 comments expressed varying concerns with the
adequacy of the remedies or the alleged process.\3\ The United States
has carefully reviewed these comments and, as explained below,
addressed many of the concerns raised with new language in the amended
proposed Final Judgment filed today. The remaining comments do not
change the fact that entry of the proposed Final Judgment, as amended,
[[Page 52102]]
satisfies the Tunney Act's public interest requirement.
---------------------------------------------------------------------------
\3\ The comment from the Mercatus Center stands alone in arguing
that the complaint should not have been filed in the first place and
that no remedies are warranted. Exh. A-14. The comment does not
discuss the specific remedies in the proposed Final Judgment.
---------------------------------------------------------------------------
A. The Substantive Terms of the Proposed Final Judgment Satisfy the
Tunney Act's Public Interest Requirement
The Court's analysis pursuant to the Tunney Act should focus on
evaluating whether the amended proposed Final Judgment satisfies the
specific ``public interest'' factors provided in Sections 16(e)(1)(A)
and (B). As this section explains in more detail, the substantive terms
of the amended proposed Final Judgment satisfy these requirements.
1. The Stipulation and Amended Proposed Final Judgment Constitute the
Entire Agreement Between the United States and Defendants
As an initial matter, the United States observes that some
commenters, parroting public news reports, ask why neither the proposed
Final Judgment nor the Competitive Impact Statement discloses or
discusses the existence of an alleged agreement between the parties for
HPE to make further investments in the United States. See, e.g., Exh.
A-11 at 8. Other commenters speculate that there are unspecified ``side
deals'' beyond the materials filed with this Court, with one commenter
asking, ``Is the written agreement the full settlement agreement or, as
is widely reported, were there side deals that the merging parties
negotiated under the table with senior DOJ officials that related to
the settlement agreement and that remain undisclosed?'' Exh. A-10 at
16.
The proposed Final Judgment (as amended) embodies the entirety of
the agreement between the parties to resolve this litigation. Indeed,
HPE's President and Chief Executive Officer, Antonio Neri, submitted a
sworn declaration as an exhibit to a recent HPE brief confirming that
the proposed Final Judgment represents the entirety of the agreement
between the parties to resolve this litigation. See Dkt. No. 298-1 ] 3.
A separate declaration by HPE's Executive Vice President and Chief
Operating & Legal Officer, John Schultz, attests to the same. See Dkt.
No. 298-2 ] 12.
2. The Proposed Final Judgment Represents a Reasonable Compromise of
Claims
Some commenters assert that the settlement is at odds with
allegations in the Complaint about the nature of the enterprise-grade
WLAN market and the inherent competitive concerns with allowing two
companies to control roughly 70% of the market. See, e.g., Exh. A-8 at
2; Exh. A-10 at 10-11. But in determining whether a proposed settlement
is in the public interest, a district ``[c]ourt must accord deference
to the government's predictions about the efficacy of its remedies, and
may not require that the remedies perfectly match the alleged
violations because this may only reflect underlying weakness in the
government's case or concessions made during negotiation.'' SBC
Commc'ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461
(noting the need for a court to be ``deferential to the government's
predictions as to the effect of the proposed remedies''); United States
v. US Airways Group, Inc., 38 F. Supp. 3d 69, 75-76 (D.D.C. 2014)
(noting that a court cannot reject the proposed remedies because it
believes others are preferable and that ``room must be made for the
government to grant concessions in the negotiation process for
settlements''); United States v. Archer-Daniels-Midland Co., 272 F.
Supp. 2d 1, 6 (D.D.C. 2003) (noting that a court must grant ``due
respect to the government's prediction as to the effect of proposed
remedies, its perception of the market structure, and its view of the
nature of the case''). The United States ``need only provide a factual
basis for concluding that the settlements are reasonably adequate
remedies for the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17;
accord United States v. Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-
53 (D.D.C. 2016) (also stating that the United States need only provide
a factual basis for concluding that a settlement is reasonably
adequate).
Here, the United States determined that the settlement is a
reasonable compromise between the parties that addresses competitive
concerns, given the risk inherent in successfully litigating the matter
to a court judgment. The divestiture of Instant On and licensing of the
Mist AI Ops source code should provide opportunities for other
companies to grow, increase market share, and innovate in the
enterprise-grade WLAN market. At the same time, the settlement avoids
the possibility of the United States losing at trial and securing no
remedies for the anticompetitive allegations outlined in the Complaint.
The compromises embodied in the amended proposed Final Judgment are
reasonable and ``within the reaches of the public interest.'' Bechtel,
648 F.2d at 666.
3. Defendants' Divestiture of ``Instant On'' Is Designed To Protect
Competition in the Enterprise-Grade WLAN Market
Numerous commenters assert that the divestiture of Instant On, an
enterprise-grade WLAN solution that has been aimed at small businesses,
will not address the competitive concerns alleged in the Complaint,
either because they mistakenly believe Instant On falls outside the
United States' alleged market for enterprise-grade WLAN solutions or
because they perceive that the Complaint focuses exclusively on
competitive concerns surrounding enterprise-grade WLAN solutions for
larger enterprises. See, e.g., Exh. A-5 at 2-3; Exh. A-8 at 9-10; Exh.
A-11 at 6-7.
Many of these criticisms are not supported by the record in this
case. For example, the Complaint alleges a market for enterprise-grade
WLAN solutions and does not distinguish customers by size of
enterprise. See Dkt. No. 1 ]] 34-38. The alleged product market only
distinguishes between enterprise- and consumer-grade WLAN solutions;
consumer-grade wireless access points are ``typically smaller, capable
of handling fewer users simultaneously, less reliable, and cover
smaller geographic areas'' than enterprise-grade WLAN solutions. Id. ]
38. Accordingly, requiring the divestiture of Instant On from HPE, the
second-largest provider of enterprise-grade WLAN solutions, to a
smaller participant or new entrant in the market should increase
competition in the market for enterprise-grade WLAN solutions.\4\
---------------------------------------------------------------------------
\4\ To the extent commenters want the Court to redefine the
market, the Tunney Act ``does not authorize a district court to base
its public interest determination on antitrust concerns in markets
other than those alleged in the government's complaint.'' BNS, 858
F.2d at 462-63.
---------------------------------------------------------------------------
The record also does not support commenters' contention that
divesting Instant On will have no positive impact on the market for
large-enterprise WLAN. First, while Instant On as marketed today lacks
features common in large-enterprise WLAN offerings, the purchaser of
Instant On will receive code for some additional features not currently
available in HPE's offering (such as location services, automatic
quality of service, and firewall capabilities). The purchaser could add
those and other features to Instant On to make it more competitive for
large enterprises, or integrate Instant On into their existing products
for larger-enterprise customers. See Dkt. No. 298-3 ]] 7-9.
Second, over the years, WLAN vendors that were more successful in
specific segments of the U.S. market for enterprise-grade WLAN
solutions have expanded their offerings to compete more effectively in
other segments. For example, Ubiquiti Inc. historically focused on
smaller or mid-market enterprises but has recently tried to
[[Page 52103]]
expand its footprint in the large-enterprise segment of the market.\5\
Indeed, had this case gone to trial, the United States expected
Defendants to present evidence about the ability of Ubiquiti and other
competitors to serve larger-enterprise WLAN customers. A similar
progression followed Cisco's acquisition in 2012 of Meraki, an
enterprise-grade WLAN product initially popular with small and medium-
sized businesses that Cisco later successfully marketed to larger
enterprises. See Zeus Kerravala, Cisco brings Meraki to the enterprise,
Network World (Jan. 27, 2015), <a href="https://www.networkworld.com/article/934892/cisco-brings-meraki-to-the-enterprise.html">https://www.networkworld.com/article/934892/cisco-brings-meraki-to-the-enterprise.html</a>.
---------------------------------------------------------------------------
\5\ Among other larger customers, Ubiquiti has WLAN contracts
with a large arena, a college, and two school districts. UniFi Case
Studies, <a href="https://casestudies.ui.com">https://casestudies.ui.com</a> (last visited Nov. 7, 2025).
---------------------------------------------------------------------------
Finally, some large, distributed enterprises purchase solutions
designed for smaller enterprises. For example, many hotels forgo
installation of sophisticated, feature-rich WLAN solutions in
individual hotel rooms and turn instead to products that support fewer
devices across a smaller geographic area. Instant On may be a useful
solution for those customers. See Dkt. No. 298-3 ] 6. Accordingly, even
if Instant On's new owner initially continues to market the product as
a small-business solution, that company's success with smaller or mid-
market enterprises could provide a foundation for later success with
large and sophisticated enterprises.
For these reasons, the commenters' critique of the Instant On
divestiture does not change the United States' conclusion that the
settlement is in the public interest.
Nonetheless, the United States has reviewed and considered the
comments carefully and has reached agreement with HPE for certain
amendments to the proposed Final Judgment to help ensure the acquirer
will use the divestiture to restore competition lost by the merger. In
response to a concern raised in the Former Division Professionals
Letter, Exh. A-11 at 6, the amended proposed Final Judgment now
includes language stating that the divestiture of Instant On must be
made to an acquiring company that has ``the intent and capability,
including the necessary managerial, operational, technical, and
financial capability, to compete effectively in the market for the
provision of enterprise-grade WLAN solutions in the United States.''
Exh. A-1 at 18-19. Further, the divestiture acquirer must satisfy the
United States that it will use the Instant On assets to compete in the
enterprise-grade WLAN market. Id. These changes help ensure that the
divestiture will restore competition lost by the merger and directly
address those commenter concerns.
4. Defendants' Forced Licensing of the Valuable Mist Source Code Is
Designed To Protect Competition in the Enterprise-Grade WLAN Market
Other comments focus on the licensing of the Mist AI Ops source
code as a remedy. Some commenters suggest that the source code may no
longer have much competitive significance because other companies' AI
offerings have caught up to Juniper's. See, e.g., Exh. A-8 at 10; Exh.
A-11 at 7. But roughly a dozen potential licensees have already
expressed interest in bidding for the source code. See Exh. A ] 21.
This robust interest shows that the source code still has significant
value.
The State AGs Letter also questions why the proposed Final Judgment
requires the licensing of the source code rather than full divestiture.
Exh. A-8 at 10. These commenters fail to recognize that this remedy
arises from a pre-trial compromise of disputed claims, not a trial
victory on the merits. The United States has determined that licensing
the source code is a reasonable remedy to increase competition in the
market and avoid the risks of further litigation.
For all these reasons, the commenters' concerns about the licensing
remedy are not well grounded, and do not change the United States'
conclusion that the settlement is in the public interest.
However, as discussed above, the United States considered the
comments carefully and made certain amendments to the proposed Final
Judgment. The amended proposed Final Judgment addresses two concerns
raised by the Former Division Professionals Letter. Exh. A-11 at 6.
First, the amended proposed Final Judgment includes more detailed
information delineating the metes and bounds of the source code. Exh.
A-1 at 3. Second, it includes language stating that the source code
must be licensed to companies that have ``the intent and capability,
including the necessary managerial, operational, technical, and
financial capability, to compete effectively in the market for the
provision of enterprise-grade WLAN solutions in the United States.''
Exh. A-1 at 18-19. Further, the licensees must satisfy the United
States that they will use the source code to compete in the enterprise-
grade WLAN market. Id. The amended proposed Final Judgment also
addresses a concern raised in the State AGs Letter, Exh. A-8 at 10-11,
by providing that the one year of transition services provided to the
primary licensee may be extended by an additional six months at the
request of the primary licensee and with the approval of the United
States. Exh. A-1 at 11.
5. The Other Purported Substantive Concerns Raised by Commenters Are
Not Well Taken
Commenters raised a handful of other substantive concerns about the
proposed Final Judgment. The American Economic Liberties Project
questions why the parties did not arrange upfront a specific
divestiture acquirer for Instant On or specific licensees for the Mist
source code. Exh. A-10 at 11-12. While the United States prefers naming
a divestiture acquirer at the time of settlement, it is not always
possible, and some recent settlements have not provided for upfront
divestiture buyers. See, e.g., United States v. Stone Canyon Indus.
Holdings LLC, No. 1:21-cv-01067-TJK, 2021 WL 4304760 (D.D.C. Aug. 10,
2021) (approving consent judgment with required divestiture but no
named purchaser); United States v. United Techs. Corp., No. 1:20-cv-
00824-DLF, 2020 WL 4810850 (D.D.C. July 22, 2020) (same). In this case,
the settlement was agreed to less than two weeks before trial, and
there was no time under the circumstances to identify and vet an
adequate divestiture acquirer or licensee. But that should not present
any cause for concern because the amended proposed Final Judgment
clearly states the United States has sole discretion on whether to
accept any divestiture acquirer or licensee. Exh. A-1 at 5.
Both the Former Division Professionals Letter and the State AGs
Letter express concerns about the timeline for the divestiture of
Instant On and the licensing of the source code. The Former Division
Professionals Letter argues that the 180-day timeline is too long,
while the State AGs Letter argues that the proposed Final Judgment
lacks any mechanism to prevent HPE from endlessly delaying the
divestiture or the licensing. Exh. A-8 at 11; Exh. A-11 at 8. With
regard to the 180-day timeline, a longer timeline is necessary for the
United States to conduct adequate due diligence on potential acquirers
or licensees. As for potential further delays, these concerns are
alleviated by Section VII, Paragraph A of the proposed Final Judgment
(as amended), which requires HPE to submit affidavits to the United
States every 30 days documenting the company's efforts to sell the
divestiture assets and conduct the source code
[[Page 52104]]
auction. Exh. A-1 at 20. HPE has been timely submitting these
affidavits, and the United States is currently satisfied with HPE's
efforts to implement the divestiture and license the source code in a
timely manner. Finally, in response to these comments, the amended
proposed Final Judgment now requires HPE to use best efforts to divest
Instant On and license the source code as expeditiously as possible.
Exh. A-1 at 18. It also includes stronger enforcement provisions that
will allow the United States to seek relief from the Court, including
contempt sanctions, should HPE violate the judgment's requirements to
expeditiously complete the divestiture and the licensing. Exh. A-1 at
22-23.
Two commenters assert that allowing the HPE-Juniper merger to
proceed will create a monopoly. Exh. A-6. The United States did not
allege that the merger would create a monopoly and does not believe it
will do so. As mentioned in the Competitive Impact Statement, HPE and
Juniper have a combined market share below 30% in the enterprise-grade
WLAN market, while market leader Cisco has an approximately 48% share.
See Dkt. 217-2 at 6. Several other companies, including Arista
Networks, Inc.; Fortinet, Inc.; Ubiquiti Inc.; Commscope Holding
Company Inc.; Extreme Networks, Inc.; Nile Global, Inc.; and Meter,
Inc., each have smaller shares of the market. See id.
Other commenters question why the Competitive Impact Statement does
not discuss reported national security justifications for the merger.
See, e.g., Exh. A-9 at 6-7. The Tunney Act requires the Court to
consider whether entry of the proposed Final Judgment is in the public
interest based on its competitive impact, not national security or
other justifications. Accordingly, the United States is asking the
Court to approve the proposed Final Judgment based on its competitive
impact under the factors set forth in Sections 16(e)(1)(A) and (B), and
not on other considerations urged by commenters.
B. Speculation About the Department of Justice's Internal Deliberative
Process Is Outside the Scope of the Tunney Act
Several commenters expressed concern about the Department of
Justice's internal deliberative process in reaching and finalizing the
settlement. For example, four United States Senators stated in a
comment that ``there have been reports regarding the abnormally close
involvement in this settlement of . . . appointees in the senior
leadership offices of the Justice Department, who signed onto the
settlement and reportedly overruled the Antitrust Division's
analysis.'' Exh. A-5 at 3 (footnotes omitted).\6\ Citing public
statements by a former Department official who reportedly opposed the
settlement, the State AGs Letter asserts that there were differing
views within the Department concerning the terms of the settlement.
Exh. A-8 at 1-2. Several other commenters make similar assertions.
---------------------------------------------------------------------------
\6\ At the time the initial proposed Final Judgment in this
matter was submitted to the Court, Chad Mizelle served as both the
Attorney General's Chief of Staff and as the Acting Associate
Attorney General. The Assistant Attorney General for Antitrust
reports to the Associate Attorney General, who in turn reports to
the Deputy Attorney General and the Attorney General of the United
States. See Agencies: Grid/Map View, U.S. Dep't of Justice, <a href="https://www.justice.gov/agencies/chart/map">https://www.justice.gov/agencies/chart/map</a> (last visited Nov. 7, 2025).
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Any such alleged internal disagreements within the Department of
Justice are beyond the scope of Tunney Act review. The Tunney Act's
public interest standard directs the Court to review the terms and the
competitive impact of the proposed Final Judgment, not the internal
decision-making process and motivations of the Department of Justice.
The text of 15 U.S.C. 16(e)(1) requires the Court to determine whether
the proposed Final Judgment is in the public interest. While the
statute does not define the term ``public interest,'' the Supreme Court
has ``long held that the words `public interest' in a regulatory
statute do not encompass the general public welfare but rather take
meaning from the purposes of the regulatory legislation.'' FCC v.
Consumers' Rsch., 606 U.S. 656, 690 (2025) (quoting NAACP v. Fed. Power
Comm'n, 425 U.S. 662, 669 (1976) (internal quotation marks omitted)).
To determine these purposes and inform its interpretation of the term,
the Supreme Court has looked to the ``broader statutory context[ ].''
See id. at 684; see also New York Cent. Sec. Corp. v. United States,
287 U.S. 12, 24 (1932) (noting ``[i]t is a mistaken assumption that''
the phrase ``public interest'' is ``a mere general reference to public
welfare without any standard to guide determinations,'' and recognizing
``[t]he purpose of the Act, the requirements it imposes, and the
context of the provision in question show the contrary''). Indeed, the
House committee report for the Tunney Act stated ``that the content of
the phrase, `public interest,' is a product of judicial construction in
the context of particular statutes . . . .'' H.R. Rep. No. 93-1463, at
11 (1974). Also relevant is the well-established principle that a word
or term ``is given more precise content by the neighboring words with
which it is associated'' in order to avoid ascribing to that word or
term ``a meaning so broad that it is inconsistent with the company it
keeps.'' Fischer v. United States, 603 U.S. 480, 487 (2024) (quoting
United States v. Williams, 553 U.S. 285, 294 (2008) and Gustafson v.
Alloyd Co., 513 U.S. 561, 575 (1995) (internal quotation marks
omitted)).
In the Tunney Act, the term ``public interest'' keeps company with
the rest of 15 U.S.C. 16(e)(1), which states that the district court
``shall consider'' a number of factors as part of its public interest
determination. See 15 U.S.C. 16(e)(1)(A) & (B); supra at 10. All of the
factors enumerated in both Sections 16(e)(1)(A) and (B) share a common
aim: they require the court to consider the impact of the proposed
consent judgment on individuals, businesses, and the economy. None of
the enumerated factors authorizes a court inquiry into the internal
decision-making processes of the Department of Justice. To read the
term ``public interest'' to allow a consideration of such issues would
effectively rewrite the statute and stretch its meaning beyond what
statutory context allows.
Legislative history also supports this reading of the Tunney Act's
public interest standard. Senator Tunney introduced the legislation in
1973 in response to concerns about the substantive adequacy of several
consent judgments negotiated by the Department of Justice over a multi-
decade period. See 119 Cong. Rec. 24,598 (1973) (questioning the
substantive adequacy of six consent judgments negotiated between 1941
and 1971, including the ITT settlement mentioned by several public
comments in this matter). While other provisions of the Tunney Act
address public comments (15 U.S.C. 16(d)) and negotiation transparency
(15 U.S.C. 16(g)), Senator Tunney specifically described the
legislation's public interest standard as ``demand[ing] that the court
consider both the narrow and the broad impacts of the decree'' on
alleged anticompetitive behavior, on private parties allegedly harmed
by that behavior, and on the general public. See 119 Cong. Rec. 3452
(1973) (emphasis added). And in the 2004 amendment, Public Law 108-237,
Congress modified the original public interest factors and added
additional factors to further emphasize that courts should focus on the
impact of the proposed consent judgment. Specifically, it added the
requirements that courts examine both whether the judgment's terms are
ambiguous as well as the impact of the judgment upon competition in the
[[Page 52105]]
relevant market or markets. See 15 U.S.C. 16(e)(1)(A)-(B). It also
modified the catchall clause allowing court examination of ``any other
considerations bearing upon the adequacy of such judgment'' by adding
the adjective ``competitive'' before ``considerations.'' Compare 15
U.S.C. 16(e)(1) (effective until June 21, 2004), with 15 U.S.C.
16(e)(1)(A) (effective as of June 22, 2004) (emphasis added).
This last modification is particularly telling. It confirms that
Congress wished to focus the Court on competitive considerations, not
considerations unrelated to the competitive impact of the proposed
judgment. As Senator Kohl, a primary sponsor of the 2004 Tunney Act
amendment, explained, the changes ``ensure that the Tunney Act review
is properly focused on the likely competitive impact of the judgment,
rather than extraneous factors irrelevant to the purposes of antitrust
enforcement.'' 150 Cong. Rec. S3618 (daily ed. Apr. 2, 2004) (statement
of Sen. Kohl). Consistent with the legislative intent, the Court should
therefore limit its Tunney Act review to the terms and competitive
impact of the proposed Final Judgment, as amended.\7\
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\7\ For the same reason, the Court should not conduct an extra-
statutory national security analysis of the merger, as suggested by
the American Economic Liberties Project in its comment letter. See
Exh. A-10 at 13-15. In addition, the American Economic Liberties
Project's suggestion that the Court ``has broad discretion under the
Tunney [Act] to take actions beyond blocking the merger or amending
the Proposed Final Judgment,'' Exh. A-10 at 9, is at odds with Ninth
Circuit precedent stating that the Court's ``ultimate authority
under the [Tunney] Act is limited to approving or disapproving the
consent [judgment].'' BNS, 858 F.2d at 464.
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The American Antitrust Institute tries to shoehorn its process
concerns into a different section of the Tunney Act, Sec. 16(b)(3),
which requires the Competitive Impact Statement to provide ``an
explanation of any unusual circumstances giving rise'' to the proposed
Final Judgment or any of its sections. Exh. A-9 at 3-9. But the
legislative history shows that the intent of this language was ensuring
the court was informed of unique substantive reasons that would justify
terms of the settlement, such as weaknesses in the government's case or
changed economic or competitive circumstances since the filing of the
complaint. See Hearings on S. 782 and S. 1088 Before the Subcomm. on
Antitrust and Monopoly of the S. Comm. on the Judiciary, 93rd Cong. 22-
23 (1973) (discussion between Senator Tunney, Harvey Goldschmid, and
Gregory Gregorich). The United States has described any such
circumstances in its filings with the Court.
The concerns raised by commenters about the Department of Justice's
internal deliberations are not germane to the inquiry under the Court's
public interest review pursuant to 15 U.S.C. 16(e)(1).
C. The Identity of the Specific Signatories on the Documents Submitted
With the Proposed Final Judgment Is Not Relevant to Whether the
Proposed Final Judgment Is in the Public Interest
A number of the commenters expressed concerns about the identity of
the specific signatories on documents submitted with the original
proposed Final Judgment. For example, certain state attorneys general
stated: ``In a highly unusual move, none of the DOJ trial staff signed
the Settlement documents submitted to the Court,'' which were instead
signed by ``other higher-level officials at the DOJ.'' Exh. A-8 at 7;
see also Exh. A-9 at 7.
There is no dispute that the Department of Justice personnel who
signed the settlement documents were authorized to approve a settlement
for the United States. Indeed, the documents cited by commenters were
signed by Abigail Slater, Assistant Attorney General of the Antitrust
Division as well as more senior Department leaders. Dkt. No. 217 at 10;
Dkt. No. 217-2 at 17.
At bottom, the identity of the specific Department of Justice
signatories on documents submitted with the original proposed Final
Judgment is not relevant to the Court's public interest review under 15
U.S.C. 16(e)(1). All that matters is that the proposed Final Judgment
reflects the considered judgment and decision of the United States, as
represented by the Department of Justice.
D. Unsubstantiated Assertions About Defendants' Disclosure Under 15
U.S.C. 16(g) Are Not Relevant to Whether the Proposed Final Judgment Is
in the Public Interest
Multiple commenters raise questions about the adequacy of HPE's
required disclosure under 15 U.S.C. 16(g). This section, which is
separate from the Tunney Act's public interest analysis in Sec.
16(e)(1), requires HPE to ``file with the district court a description
of any and all written or oral communications'' by or on behalf of HPE
by the company's officers, directors, employees, or agents ``with any
officer or employee of the United States'' regarding the proposed Final
Judgment. Specifically exempted from this disclosure requirement are
``any such communications made by counsel of record alone with the
Attorney General or the employees of the Department of Justice alone.''
The commenters suggest that HPE failed to disclose certain individuals
representing the company or did not provide adequate details of its
meetings with the government. See, e.g., Exh. A-5 at 3; Exh. A-11 at 2-
3.
As a threshold matter, 15 U.S.C. 16(g) places the responsibility on
HPE, not the United States, to file an adequate disclosure with the
Court. The United States does note, however, that some commenters are
incorrect as a matter of law about Section 16(g)'s requirements.
First, the Protect Democracy Center suggests that the Court ignore
Section 16(g) by ordering the parties to disclose communications
between party counsel of record and the Department of Justice. Exh. A-
12 at 2. That action would directly contravene the statute, and the
commenter provides no alternative statutory justification. It would
also undermine the purpose of this specific Section 16(g) carveout,
which, according to Senator Tunney, was aimed at ensuring ``the free
flow of opinion'' between counsel for the United States and defendants
about the ``various ramifications of the settlement.'' Hearings on H.R.
9203, H.R. 9947, and S. 782 Before the Subcomm. on Monopolies and
Commercial Law of the H. Comm. on the Judiciary, 93rd Cong. 40 (1973)
(statement of Sen. Tunney).
Second, one commenter argues that Section 16(g) requires defendants
to disclose contacts with the Legislative and Judicial Branches in
addition to those with the Executive Branch. Exh. A-4. This argument
misconstrues Section 16(g), as the D.C. Circuit explained at length in
Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1250 (D.C. Cir. 2004).
The relevant passage from that opinion is quoted in full below: \8\
---------------------------------------------------------------------------
\8\ Although the D.C. Circuit's analysis concerned the version
of the Tunney Act in force before the 2004 amendment, its reasoning
applies with equal force to the current version of the Tunney Act.
Reference is made to ``United States'' 18 times in the Tunney
Act. See Sec. Sec. 15 U.S.C. 16(b)-(h). In all 17 references other
than the disputed one in Sec. 16(g) the term plainly denotes only
the Executive Branch. See, e.g., id. Sec. 16(b) (``Any proposal for
a consent judgment submitted by the United States for entry in any
civil proceeding brought by or on behalf of the United States under
the antitrust laws shall be filed with the district court . . . and
published by the United States in the Federal Register''). It is a
commonplace of statutory construction that ``identical words used in
different parts of the same act are intended to have the same
meaning.'' See Comm'r of Internal Revenue v. Lundy, 516 U.S. 235,
250, 116 S.Ct. 647, 655,
[[Page 52106]]
133 L.Ed.2d 611 (1996). [Commenters] offer no reason to believe the
reference in Sec. 16(g) to communications between Microsoft and
``any officer or employee of the United States'' uniquely extends
the latter term beyond the Executive Branch. Moreover, because only
the Executive Branch can settle an antitrust case, only contacts
with the Executive Branch are relevant to the purpose of the Tunney
Act--namely, to block settlements that are not in the public
interest. We therefore conclude, as did the district court, the term
``United States'' as used in Sec. 16(g) refers only to the
---------------------------------------------------------------------------
Executive Branch.
Id.
E. The Remaining Comments Are Not Relevant to Whether the Proposed
Final Judgment Is in the Public Interest
For the same reasons, additional comments relating to the process
by which the settlement was reached are outside the scope of Tunney Act
review. For example, some commenters include allegations of unspecified
insider trading by unknown persons. See, e.g., Exh. A-10 at 6; Exh. A-
13 at 6. While these allegations are serious if true, they do not fall
within the scope of Tunney Act review pursuant to Section 16(e)(1).
V. Finalizing the Proposed Settlement
A. The Proposed Settlement Is in the Public Interest and Should Be
Approved
Under the Tunney Act's enumerated factors and the relevant case
law, entry of the amended proposed Final Judgment is in the public
interest. The forced divestiture of Instant On and the licensing of the
Mist AI source ops code are remedies intended to address the
competitive harms in the U.S. market for enterprise-grade WLAN
solutions that were alleged in the Complaint. The proposed Final
Judgment also lays out detailed procedures for carrying out the
divestiture and licensing. In response to public comments, the United
States added additional provisions in the amended proposed Final
Judgment to ensure that the divestiture and licensing are carried out
in a timely manner and to ensure that the divestiture buyer and
licensees will use the assets to compete in the enterprise-grade WLAN
market. In addition, third parties are not harmed by the proposed
judgment. Indeed, no third-party consumers or competitors filed a
comment opposing the proposed Final Judgment.
The remedies are particularly reasonable in light of the risks
associated with proceeding to trial. While the United States outlined a
strong case-in-chief in its pre-trial briefing, see Dkt. No. 202, and
believed the facts justified enjoining the merger, there was no
guarantee that the Court would agree. Defendants also outlined a
substantial defense in their filings. See Dkt. No. 200-201. In such
scenarios, settlements serve the public interest by securing tangible
protections rather than gambling on an all-or-nothing trial that could
leave consumers with no relief. Requiring the Department to reject
reasonable settlements and litigate every case to conclusion--even
those where success is uncertain--would waste scarce government and
private resources, delay benefits to consumers, and create perverse
incentives that discourage enforcement of mergers with less-than-
certain violations. See United States v. Armour & Co., 402 U.S. 673,
681 (1971) (noting the benefits of consent judgments in saving parties
from ``the time, expense, and inevitable risk of litigation,'' and how
such agreements are naturally compromises in which ``the parties each
give up something they might have won had they proceeded with the
litigation''); H.R. Rep. No. 93-1463, at 11-12 (1974) (endorsing
Armour's reasoning in the Tunney Act context). Doing so would also
contravene the Tunney Act's purpose, expressed in its legislative
history, of encouraging reasonable resolutions that promptly restore
competition. See, e.g., 119 Cong. Rec. 24,598 (daily ed. July 18, 1973)
(statement of Sen. Tunney) (``[I]t is most important that the consent
[judgment] be preserved as a viable settlement option. This is the
Government's philosophy and this remains the philosophy of our
bill.''); S. Rep. No. 93-298, at 7 (1973) (``[T]he [Senate Judiciary]
Committee wishes to retain the consent judgment as a substantial
antitrust enforcement tool.''); H.R. Rep. No. 93-1463, at 6, 8 (1974)
(expressing intent to preserve the policy of encouraging settlement of
antitrust cases by consent judgment).
Accordingly, the United States and Defendants negotiated a
reasonable compromise that is well ``within the reaches of the public
interest.'' Bechtel, 648 F.2d at 666.
B. The Court's Role Under the Tunney Act Is Limited to Approval or
Disapproval
Should the Court disagree with the United States' conclusion,
however, the Tunney Act limits the Court in what it can do based on its
review of the amended proposed Final Judgement. See Microsoft, 56 F.3d
at 1462 (cautioning that while courts ``can and should inquire . . .
into the purpose, meaning, and efficacy of the decree'' and insist
ambiguities or implementation difficulties be addressed, they ``must be
careful not to exceed [their] constitutional role''). The Court's
authority is essentially binary: it may approve a decree that falls
within the ``reaches of the public interest,'' or it may reject one
that does not. Id. at 1461-62; see also BNS, 858 F.2d at 464 (court's
authority under Tunney Act ``limited to approving or disapproving the
consent [judgment]''). ``Short of that eventuality, the Tunney Act
cannot be interpreted as an authorization for a district judge to
assume the role of Attorney General.'' Microsoft, 56 F.3d at 1462.
The United States has exercised its prosecutorial discretion to
challenge this merger, litigate it for months, and determine that this
settlement represents fair and adequate relief that better serves the
public interest. This judgment embodies the Department's considered
assessment--informed by extensive investigation, litigation, and
evaluation of trial risks--of the relief appropriate to remedy the
alleged competitive harm. The Department brought this case because it
believed the merger threatened substantial harm; having secured
meaningful remedies, it has fulfilled its enforcement obligations.
The task before the Court is approval or disapproval of the amended
proposed Final Judgment. If the Court concludes the settlement falls
within the reaches of the public interest--as the United States
respectfully submits it does--it should approve the decree. If the
Court were to reject the settlement, the United States would face a
choice about how to proceed in the exercise of its prosecutorial
discretion. The Executive Branch possesses unreviewable discretion over
whether to pursue enforcement actions, and that discretion extends to
decisions about whether continued litigation serves the public interest
when negotiated relief is unavailable. See Heckler v. Chaney, 470 U.S.
821, 831 (1985) (recognizing ``that an agency's decision not to
prosecute or enforce, whether through civil or criminal process, is a
decision generally committed to an agency's absolute discretion.'').
The Court cannot compel the United States to litigate this case, and a
voluntary dismissal of the Complaint would not be subject to Tunney Act
review. See In re IBM Corp., 687 F.2d 591, 600-04 (2d Cir. 1982)
(holding that voluntary dismissal stipulations are not subject to
Tunney Act judicial review and issuing writ of mandamus directing
dismissal of case); United States v. Mercedes-Benz of North America,
Inc., 547 F. Supp. 399, 400-01 (N.D. Cal. 1982) (holding that voluntary
dismissal stipulations are not subject to Tunney Act judicial review).
Accordingly, disapproval of the proposed settlement based on
[[Page 52107]]
speculative process concerns unrelated to competitive impact would
serve no statutory purpose and would only return the matter to the
Department's discretion about whether further proceedings advance the
public interest.
C. The United States Intends To Submit a Motion To Enter the Amended
Proposed Final Judgment
The United States does not request that this Court take any action
at this time based on this response to public comments. Instead, the
next step is for the United States to provide notice in the Federal
Register as required by statute and ordered by this Court. See 15
U.S.C. 16(d); Dkt. No. 234. Once the United States confirms that the
Federal Register notice has been completed and published, the United
States will submit a motion to enter the amended proposed Final
Judgment. Once this Court approves that motion, the proposed Final
Judgment will take effect and govern the obligations of HPE and the
United States with respect to the divestiture and licensing.
D. An Evidentiary Hearing, Live Testimony, Evidentiary Submissions, and
Amici Participation Are Neither Necessary Nor Appropriate
Multiple comment letters call for the Court to hold an evidentiary
hearing, take testimony from witnesses, request evidentiary submissions
from the United States and HPE, or allow intervention by outside
parties and amici.\9\ The Court should decline these invitations
because it can and should find that the amended proposed Final Judgment
meets the Tunney Act's requirements based on the existing submissions.
Furthermore, such a judicial inquiry into the Department of Justice's
decision-making process would be barred by longstanding judicial
precedent.
---------------------------------------------------------------------------
\9\ Several state attorneys general have already moved for
intervention, which the United States has opposed. See Dkt. Nos. 236
& 299.
---------------------------------------------------------------------------
In its 2004 amendment to the Tunney Act, Public Law 108-237, 221,
Congress added the unambiguous instruction that ``[n]othing in this
section shall be construed to require the court to conduct an
evidentiary hearing or to require the court to permit anyone to
intervene.'' 15 U.S.C. 16(e)(2); see also US Airways, 38 F. Supp. 3d at
76 (indicating that a court is not required to hold an evidentiary
hearing or to permit intervenors as part of its review under the Tunney
Act). This language explicitly wrote into the statute what Congress
intended when it first enacted the Tunney Act in 1974. As Senator
Tunney explained: ``The court is nowhere compelled to go to trial or to
engage in extended proceedings which might have the effect of vitiating
the benefits of prompt and less costly settlement through the consent
[judgment] process.'' 119 Cong. Rec. 24,598 (1973); see also JDS
Uniphase, 2000 WL 33115892, at *11 (quoting this statement). ``A
`public interest' determination can be made properly on the basis of
the Competitive Impact Statement and Response to Comments filed
pursuant to the [Tunney Act].'' JDS Uniphase, 2000 WL 33115892, at *11
n.1; see also United States v. Deutsche Telekom AG, Civil Action No.
19-2232 (TJK), 2020 WL 1873555, at *3 (D.D.C. Apr. 14, 2020)
(determining that a hearing was not necessary); US Airways, 38 F. Supp.
3d at 76 (``A court can make its public interest determination based on
the competitive impact statement and response to public comments
alone.'').
Accordingly, most proposed consent judgments are approved under the
Tunney Act solely on the papers. It is rare for courts to hold a
hearing and even rarer to hold an evidentiary hearing with live
witnesses. Indeed, courts have forgone hearings for high-profile
mergers involving much larger companies in more consumer-facing
industries than here. For example, in the Tunney Act proceeding for the
$26 billion Sprint-T-Mobile merger, the United States received 32
comment letters, including several from industry participants, and yet
the court saw no need for a hearing. See Deutsche Telekom, 2020 WL
1873555, at *3. Same for the American Airlines-US Airways merger that
created the world's largest airline. Despite skeptical public comments
from competing airlines, consumer organizations, and senior members of
Congress, the court determined that no hearing was necessary. See US
Airways, 38 F. Supp. 3d at 76.\10\
---------------------------------------------------------------------------
\10\ Some commenters point to the court's evidentiary hearing in
United States v. CVS Health Corp., Civil Case No. 18-2340 (RJL)
(D.D.C.), as a model for this Court to follow. In that matter,
unlike in this matter, the United States received many public
comments opposing the proposed settlement from participants in the
relevant market, such as the American Medical Association. See
United States v. CVS Health Corp., 407 F. Supp. 3d 45, 50-51 (D.D.C.
2019). Even with such public opposition, the CVS court's decision to
hold an evidentiary hearing with live testimony stands as an outlier
in the history of Tunney Act reviews. And despite holding such an
unusual evidentiary hearing, the court ultimately approved the
proposed final judgment with no modifications, finding that it was
``well within the reaches of the public interest.'' Id. at 59
(internal quotation marks omitted). Given the differences in
context, this Court should not take the evidentiary hearing in CVS
as a model.
---------------------------------------------------------------------------
To the extent that commenters ask the Court to conduct an intrusive
examination into the Department of Justice's internal processes,
motivations, or alleged non-competitive considerations for settling
this case, such an inquiry would be unwarranted under the Tunney Act,
as discussed in Section IV.B supra. The Supreme Court has also long
recognized ``that further judicial inquiry into `executive motivation'
represents `a substantial intrusion' into the workings of another
branch of Government and should normally be avoided.'' Dep't of
Commerce v. New York, 588 U.S. 752, 781 (2019) (quoting Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 268 n.18
(1977)).
Much of the evidence sought by commenters would be shielded by the
common law deliberative process privilege, which protects internal
governmental communications that are ``predecisional'' and
``deliberative in nature, containing opinions, recommendations, or
advice about agency policies.'' FTC v. Warner Commc'ns Inc., 742 F.2d
1156, 1161 (9th Cir. 1984). The purpose of the privilege ``is to allow
agencies freely to explore possibilities, engage in internal debates,
or play devil's advocate without fear of public scrutiny.'' Assembly of
State of Cal. v. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992).
While the privilege can be overcome ``if [the] need for the materials
and the need for accurate fact-finding override the government's
interest in non-disclosure,'' Warner Commc'ns, 742 F.2d at 1161, there
is no such need here, because information about internal Department of
Justice processes, motivations, or non-competitive considerations is
not relevant to the Court's public interest determination. See supra at
19-22.
Further, to the extent commentators suggest taking testimony from
high-ranking Department of Justice officials, courts have recognized
the serious separation of powers concerns at play when a senior
Executive Branch official is compelled to testify about their reasons
for taking official actions. See United States v. Morgan, 313 U.S. 409,
421-22 (1941) (explaining that a court's inquiry into the Secretary of
Agriculture's ``mental processes'' offended the independence of the
Executive Branch); Simplex Time Recorder Co. v. Sec'y of Labor, 766
F.2d 575, 586-87 (D.C. Cir. 1985) (citing Morgan's reasoning in
upholding administrative law judge's decision to bar testimony from
four sub-cabinet Department of Labor officials).
[[Page 52108]]
Indeed, courts of appeals have issued writs of mandamus when
district courts, absent clear necessity and legal justification, sought
to compel production of privileged evidence from Executive Branch
agencies or force testimony from senior Executive Branch officials.
See, e.g., In re United States Dep't of Educ., 25 F.4th 692, 703-06
(9th Cir. 2022) (writ of mandamus to quash deposition subpoena to
former Secretary of Education because of failure, among other factors,
to show clear necessity of testimony); Karnoski v. Trump, 926 F.3d
1180, 1203-07 (9th Cir. 2019) (writ of mandamus to vacate discovery
orders because district court did not adequately consider application
of presidential communications privilege and deliberative process
privilege); In re United States (Jackson), 624 F.3d 1368 (11th Cir.
2010) (writ of mandamus to prevent compelled testimony of EPA
Administrator); In re Cheney, 544 F.3d 311 (D.C. Cir. 2008) (writ of
mandamus to prevent compelled testimony of Vice President's chief of
staff); In re United States (Holder), 197 F.3d 310 (8th Cir. 1999)
(writ of mandamus to prevent compelled testimony of Attorney General
and Deputy Attorney General); In re FDIC, 58 F.3d 1055 (5th Cir. 1995)
(writ of mandamus to quash deposition subpoenas to three FDIC board
members); In re United States (Kessler), 985 F.2d 510 (11th Cir. 1993)
(writ of mandamus to prevent compelled 30-minute telephone testimony of
FDA Commissioner).
The principles highlighted above also counsel against the Court
utilizing its inherent powers to conduct an inquiry into the process
leading to the settlement, which some commenters have suggested. See,
e.g., Exh. A-10 at 9. Furthermore, such an inquiry is not supported by
dictum in the Supreme Court's decision in Sam Fox Publ'g Co. v. United
States, 366 U.S. 683 (1961), which is cited in the American Antitrust
Institute's comment letter. Exh. A-9 at 9. In that case, which predated
passage of the Tunney Act and concerned whether a third party could
intervene to challenge the adequacy of a consent judgment, the Court
stated that ``sound policy would strongly lead'' it to not ``assess the
wisdom of the Government's judgment in negotiating and accepting [a]
consent [judgment], at least in the absence of any claim of bad faith
or malfeasance on the part of the Government in so acting.'' Id. at
689. Applied to this case, the Sam Fox dictum is consistent with this
Court's statutory duty to review the adequacy of the proposed Final
Judgment under the enumerated factors spelled out in 15 U.S.C.
16(e)(1)(A) and (B). It does not provide support for a wide-ranging
judicial inquiry into the Department of Justice's internal processes,
motivations, or alleged considerations other than the competitive
impact of the judgment.
For these reasons, the Court should decline the invitations to hold
an evidentiary hearing, take testimony, require additional evidentiary
submissions, or allow participation by outside parties.
VI. Conclusion
After careful consideration of the public comments, the United
States continues to believe that the proposed Final Judgment, as
negotiated and amended, provides an effective and appropriate remedy
for the antitrust violations alleged in the Complaint and is therefore
in the public interest. The United States will move this Court to enter
the proposed Final Judgment after this response is published in the
Federal Register as required by 15 U.S.C. 16(d).
Dated: November, 14 2025.
ELIZABETH S. JENSEN (CA Bar #302355), Assistant Civil Chief, San
Francisco Office.
HENRY C. SU (CA Bar #211202),
Senior Litigation Counsel, U.S. Department of Justice, Antitrust
Division, 450 Fifth Street NW, Suite 4000, Washington, DC 20530,
Telephone: (202) 615-2165, Email: <a href="/cdn-cgi/l/email-protection#753d101b070c5b2600350006111a1f5b121a03"><span class="__cf_email__" data-cfemail="99d1fcf7ebe0b7caecd9eceafdf6f3b7fef6ef">[email protected]</span></a>.
JEREMY M. GOLDSTEIN (CA Bar #324422),
MICHAEL G. LEPAGE (DC Bar #1618918),
Trial Attorneys, U.S. Department of Justice, Antitrust Division, 450
Golden Gate Ave., Room 10-0101, San Francisco, CA 94102, Telephone:
(415) 229-2934, Email: <a href="/cdn-cgi/l/email-protection#ce84abbcaba3b7e089a1a2aabdbaaba7a08ebbbdaaa1a4e0a9a1b8"><span class="__cf_email__" data-cfemail="d69cb3a4b3bbaff891b9bab2a5a2b3bfb896a3a5b2b9bcf8b1b9a0">[email protected]</span></a>.
Attorneys for Plaintiff United States of America.
The United States received 12 public comments in response to this
matter. 11 of the 12 comments expressed concern with or outright
opposition to the proposed Final Judgment. The remaining comment argued
that there were insufficient grounds to bring the underlying complaint
and expressed no views on the remedies in the proposed Final Judgment.
Below are brief descriptions of each public comment received.
<bullet> Connor Lundrigan (received July 25, 2025)--This comment
opposes the proposed final judgment because it does not adequately
remedy allegations in the complaint and also has concerns about the
process.
<bullet> U.S. Senators Elizabeth Warren, Amy Klobuchar, Cory Booker
and Richard Blumenthal (received July 28, 2025)--This comment expresses
concern that proposed final judgment does not adequately remedy
allegations in the complaint while also questioning the process. It
calls on the Court to use Tunney Act procedures to scrutinize the
settlement and circumstances surrounding it.
<bullet> Sarah Ovink (received by the Court on August 1, 2025,
noticed by the Court on August 6, 2025)--This comment expresses support
for the U.S. Senators' letter and alleges that the merger will create a
monopoly. It calls on the Court to use Tunney Act procedures to
scrutinize the settlement and circumstances surrounding it.
<bullet> Rachel Kohler (received by the Court on August 1, 2025,
noticed by the Court on August 6, 2025)--This comment alleges that the
merger will create a monopoly and questions circumstances surrounding
the settlement.
<bullet> Dekleptocracy Project (received by the Court on August 4,
2025, noticed by Court on August 14, 2025)--This comment expresses
concern that the proposed final judgment does not adequately remedy
allegations in the complaint while also questioning the process. It
calls on the Court to use Tunney Act procedures to scrutinize the
settlement and circumstances surrounding it.
<bullet> Attorneys General of Colorado, Arizona, California,
Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts,
Maryland, Michigan, Nevada, New Mexico, New York, North Carolina,
Oregon, Rhode Island, Washington, Wisconsin, and the District of
Columbia (received September 5, 2025)--This comment expresses concern
that the proposed final judgment does not adequately remedy allegations
in the complaint while also questioning the process. It calls on the
Court to use Tunney Act procedures to scrutinize the settlement and
circumstances surrounding it.
<bullet> Former Professional Employees of the Antitrust Division
(received September 6, 2025)--This comment expresses concern that the
proposed final judgment does not adequately remedy allegations in the
complaint and deviates from standard DOJ consent agreements. It also
questions the process. It calls on the Court to use Tunney Act
procedures to scrutinize the settlement and circumstances surrounding
it.
<bullet> American Antitrust Institute (received September 8,
2025)--This comment expresses concern that United States did not
explain various ``unusual circumstances'' relating to the settlement.
It also questions the adequacy of the settlement in addressing
allegations in the complaint.
[[Page 52109]]
It calls on the Court to use Tunney Act procedures to scrutinize the
settlement and circumstances surrounding it.
<bullet> Protect Democracy Project (received September 8, 2025)--
This comment calls on the United States and defendants to make
additional disclosures regarding the negotiation of the settlement.
<bullet> U.S. Representatives Jamie Raskin and Jerrold Nadler
(received September 8, 2025)--This comment expresses concern that
proposed final judgment does not adequately remedy allegations in the
complaint while also questioning the process. It calls on the Court to
use Tunney Act procedures to scrutinize the settlement and
circumstances surrounding it.
<bullet> American Economic Liberties Project (received September 8,
2025)--This comment expresses concern that the proposed final judgment
does not adequately remedy allegations in the complaint while also
questioning the process. It also calls on the Court to conduct its own
national security analysis of the merger, and to use Tunney Act
procedures to scrutinize the settlement and circumstances surrounding
it
<bullet> Alden Abbott and Satya Marar of the Mercatus Center at
George Mason University (received September 12, 2025)--This comment
argues that the United States was not justified in filing the
underlying complaint and that therefore no remedies are necessary. It
takes no position on the remedies in the proposed Final Judgment.
[FR Doc. 2025-20260 Filed 11-18-25; 8:45 am]
BILLING CODE 4410-11-P
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</html>Indexed from Federal Register on November 19, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.