[Federal Register Volume 75, Number 123 (Monday, June 28, 2010)]
[Notices]
[Pages 36689-36693]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15368]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States, et al. v. Election Systems & Software, Inc.; 
Public Comments and Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the comments 
received on the proposed Final Judgment in United States, et al. v. 
Election Systems & Software Inc., Case No. 1:10-00380-JDB, which were 
filed in the United States District Court for the District of Columbia 
on June 17, 2010, together with the response of the United States to 
the comments.
    Copies of the comments and the response are available for 
inspection at the Department of Justice Antitrust Division, 450 Fifth 
Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-
2481), on the Department of Justice's Web site at http://www.usdoj.gov/atr, and at the Office of the Clerk of the United States District Court 
for the District of Columbia, 333 Constitution Avenue, NW., Washington, 
DC 20001. Copies of any of these materials may be obtained upon request 
and payment of a copying fee.

J. Robert Kramer II,
Director of Operations and Civil Enforcement.

United States District Court for the District of Columbia

United States of America, et al., Plaintiffs, v. Election Systems and 
Software, Inc., Defendant.
Case No.: 1:10-cv-00380
Judge: Bates, John D.
Deck Type: Antitrust
Date Stamp:
Response of Plaintiff United States to Public Comments on the Proposed 
Final Judgment

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16(b)-(h) (``APPA'' or ``Tunney Act''), 
the United States hereby responds to the public comments received 
regarding the proposed Final Judgment in this case. After careful 
consideration of the comments, the United States continues to believe 
that the proposed Final Judgment will provide an effective and 
appropriate remedy for the antitrust violations alleged in the 
Complaint. The United States will move the Court for entry of the 
proposed Final Judgment after the public comments and this response 
have been published in the Federal Register, pursuant to 15 U.S.C. 
Sec.  16(d).
    The United States and the States of Arizona, Colorado, Florida, 
Maine, Maryland, New Mexico, Tennessee, and Washington, and the 
Commonwealth of Massachusetts (the ``Plaintiff States''), filed a civil 
antitrust Complaint on March 8, 2010, seeking injunctive and other 
relief to remedy the likely anticompetitive effects arising from the 
acquisition of Premier Election Solutions, Inc. and PES Holdings, Inc. 
(collectively, ``Premier''), by Defendant Election Systems and 
Software, Inc. (``ES&S''). The Complaint alleged that ES&S's 
acquisition of Premier likely would result in higher prices, a 
reduction in quality, and less innovation in the U.S. voting equipment 
systems market, in violation of Section 7 of the Clayton Act, 15 U.S.C. 
Sec.  18.
    Simultaneously with the filing of the Complaint, the United States 
filed a proposed Final Judgment and an Asset Preservation Stipulation 
and Order (``APSO'') signed by the plaintiffs and the defendant, 
consenting to the entry of the proposed Final Judgment after compliance 
with the requirements of the Tunney Act, 15 U.S.C. Sec.  16. Pursuant 
to those requirements, the United States filed its Competitive Impact 
Statement

[[Page 36690]]

(``CIS'') with the Court on March 8, 2010; published the proposed Final 
Judgment and CIS in the Federal Register on March 15, 2010, see United 
States, et al. v. Election Systems and Software, Inc., 75 Fed. Reg. 
12256; and published summaries of the terms of the proposed Final 
Judgment and CIS, together with directions for the submission of 
written comments relating to the proposed Final Judgment, in The 
Washington Post for seven days beginning on March 19, 2010 and ending 
on March 25, 2010. The sixty-day period for public comments ended on 
May 24, 2010; three comments were received as described below and 
attached hereto.
I. THE INVESTIGATION AND PROPOSED RESOLUTION
    On September 2, 2009, ES&S executed a Purchase Agreement to acquire 
Premier from Diebold, Inc. (``Diebold'') in exchange for $5 million in 
cash and 70 percent of certain receivables. ES&S consummated the 
acquisition on the same day the agreement was executed. Because the 
purchase price for this transaction fell below the reporting thresholds 
of the Hart Scott-Rodino (``HSR'') Antitrust Improvements Act of 1976, 
ES&S was not required to report the acquisition to the Department of 
Justice or the Federal Trade Commission before consummation. See 15 
U.S.C. Sec.  18a(a)(2)(B)(i) (2000); 75 Fed. Reg. 3468 (Jan. 21, 2010). 
As soon as the United States Department of Justice (``Department'') 
became aware of the acquisition, it opened an investigation into the 
likely competitive effects of the transaction that spanned nearly six 
months. As part of this investigation, the Department obtained 
substantial documents and information from ES&S and Diebold, took oral 
testimony from ES&S and Diebold executives, and issued several Civil 
Investigative Demands to third parties. In total, the Department 
received and considered more than 500,000 electronic documents. The 
Department also conducted over 100 primary interviews and multiple 
follow-up interviews with customers, competitors, regulators, industry 
groups and other individuals with knowledge of the voting equipment 
system industry. The investigative staff carefully analyzed the 
information provided and thoroughly considered all of the issues 
presented. The Department considered the potential competitive effects 
of the transaction on the development, sale and service of voting 
equipment systems in the United States, and concluded that ES&S's 
acquisition of Premier substantially lessened competition in the 
development, sale and service of voting equipment systems.
    A voting equipment system consists of the integrated collection of 
customized hardware, software, firmware and associated services used to 
electronically record, tabulate, transmit and report votes in an 
election. The number, variety, and operation of electronic components 
within a voting equipment system vary depending on the needs of the 
jurisdiction responsible for administering elections, which may be the 
state, county or local government, depending on state law. Voting 
equipment systems typically are sold to state, county and municipal 
jurisdictions pursuant to request for proposals, and a winning bid is 
selected after a public procurement process. Jurisdictions evaluate 
vendors based on a wide variety of technical and commercial criteria, 
including compliance with state law, technical standards, certification 
standards, experience in other jurisdictions and commercial standards 
such as price, delivery schedule, financial wherewithal, and other 
terms of sale. Vendors typically provide multi-year service agreements.
    As explained more fully in the Complaint and CIS, the acquisition 
of Premier by ES&S combined two firms that many customers considered 
the two closest competitors in the provision of voting equipment 
systems, as well as the two largest providers of U.S. voting equipment 
systems. As a result of ES&S's acquisition of its closest competitor, 
ES&S has a reduced incentive both to compete as aggressively for bids 
and to invest in new products, thereby likely increasing the price and 
reducing the quality of the voting equipment systems available to most 
jurisdictions. Therefore, the Complaint alleged that the acquisition of 
Premier likely would substantially lessen competition in the United 
States market for voting equipment systems, which likely would lead to 
higher prices, lower quality and less innovation, in violation of 
Section 7 of the Clayton Act. The proposed Final Judgment will restore 
competition by making available to an independent entity the Premier 
assets necessary to equip an economically viable competitor to ES&S in 
the provision of voting equipment systems in the United States.
II. SUMMARY OF PUBLIC COMMENTS AND THE UNITED STATES'S RESPONSE
    During the sixty-day comment period, the United States received 
three comments, all of which addressed only the proposed Final Judgment 
provision that released current and former Premier employees from 
noncompete agreements. The comments, all submitted anonymously, are 
attached hereto in the Appendix to this Response.\1\
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    \1\ The first comment was submitted without signature, see 
Appendix at 1; the other two comments were signed ``The Public,'' 
and are identical in every respect. See Appendix at 2 and 3.
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    The proposed Final Judgment requires that ES&S ``waive all 
nondisclosure and noncompete agreements for all of the current and 
former employees of Premier for a period of six (6) months following 
the date of the divestiture of the Divestiture Assets, for the 
exclusive purpose of allowing those employees to seek employment with 
the Acquirer.'' Section IV(D). This clause is intended to give the 
Acquirer an opportunity to recruit employees with experience serving 
current Premier customers and to obtain expertise related to the 
development, sale, repair and service of Premier voting equipment 
system products. The commenters argue that ES&S should be required to 
void or waive all Premier noncompete agreements for a much broader 
period of time and for any purpose, in order to allow Premier employees 
to avoid legal liability for violating those agreements. In response, 
the United States contends that the limited waiver of noncompete 
agreements in the proposed Final Judgment will allow the Acquirer to 
collect the expertise it needs to replace the competition lost when 
Premier was purchased by ES&S, and that the commenters' proposed 
modifications would not serve that purpose and might even undermine the 
Acquirer's ability to build a competitive work force.
    The United States has reviewed the comments submitted and has 
determined that the proposed Final Judgment remains in the public 
interest.
A. Summary of Public Comments
The commenters argue that the proposed Final Judgment's requirement 
that ES&S waive Premier noncompete agreements should be modified to 
excuse all current and former employees from noncompete agreements that 
were breached in the past, agreements that might be breached more than 
six months following the divestiture, and agreements that are breached 
by an employee's defection to a competitor other than the Acquirer. The 
comments submitted by ``The Public'' state that (1) ES&S should not be 
permitted to enforce noncompete agreements against former employees who 
already have begun working for other vendors because

[[Page 36691]]

``these former employees would be subject to legal action from ES&S''; 
(2) the six-month period is unnecessary because ``the agreements are 
already set to expire in September 2011,'' and (3) ``these former 
employees should also be able to go to work for any company in the 
election industry, not just the acquirer.'' See Appendix at 2 and 3. 
The unsigned comment likewise argues that noncompete agreements should 
be waived retroactively to the date that ES&S acquired Premier, to 
``prevent ES&S from filing suit against any former Premier employees 
prior to this judgment.'' See Appendix at 1. The comments provide no 
further explanation of the proposed modifications, nor do they identify 
any link between the proposed modifications and the competitive harm 
arising from the acquisition of Premier by ES&S.
B. The United States's Response
    The proposed Final Judgment requires that ES&S waive noncompete 
agreements for current and former employees for a period of six months 
following the divestiture, to allow the Acquirer to develop the 
expertise necessary to develop, sell, repair and service voting 
equipment systems for current Premier customers. As the Acquirer 
becomes able to offer the experience and expertise that Premier enjoyed 
before its acquisition by ES&S, that acquirer will be better able to 
restore competition in the sale of voting equipment systems. The 
requirement that ES&S waive noncompetes is limited to six months in 
order to encourage the Acquirer to solicit staff expeditiously and to 
minimize the disruption to ES&S customers preparing for upcoming 
elections, which otherwise might result from significant staff 
turnover.
    The commenters do not suggest that their proposed modification will 
have any effect on the remedial impact of the proposed Final Judgment. 
Indeed, if the provision were modified as they suggest, employees would 
have no more incentive to seek a position with the Acquirer than with 
any other vendor, which actually might undermine the competitive 
efficacy of the proposed Final Judgment by reducing the pool of 
expertise from which the Acquirer could successfully recruit. Further, 
if the six-month limitation on the noncompete waiver were removed, as 
``The Public'' suggests, the Acquirer's incentive to recruit a complete 
work force quickly, so as to be prepared to compete immediately, would 
be sharply reduced. Likewise, because significant employee attrition 
will unavoidably disrupt vendor support of the installation, service 
and repair of Premier voting equipment systems, limiting the waiver to 
six months minimizes the impact of that disruption on upcoming 
elections.\2\
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    \2\ ``The Public'' argues that all Premier noncompete agreements 
expire on September 2011, but offers no support for this contention. 
Indeed, the Department's information is that the expiration of these 
agreements varies. Even if it were true that all agreements 
terminate in September 2011, extending the waiver for nearly a year 
past the six months provided in the proposed Final Judgment could 
disrupt an additional calendar year of election services, and could 
reduce the Acquirer's readiness to compete for new procurements that 
are expected to issue in late 2010 and early 2011.
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    The commenters do not suggest that the proposed Final Judgment 
itself would cause current or former employees any injury. Instead, the 
comments appear to seek a form of amnesty for employees who already 
have left ES&S's employ, and may have violated their noncompete 
agreements long before the Complaint and proposed Final Judgment were 
filed. See Appendix at 2 and 3 (``* * * some of these former employees 
have already started working with other vendors.'') The proposed Final 
Judgment does not create new liability for Premier employees, but 
merely removes the disincentive of potential liability for employees 
who are otherwise willing to bring their expertise to the Acquirer, 
helping to ameliorate the anticompetitive impact of ES&S's acquisition 
of Premier.
    In sum, the United States continues to believe that the proposed 
Final Judgment will remedy the competitive harm arising from ES&S's 
acquisition of Premier, and that the commenters' proposed modifications 
to the noncompete waiver provision not only would fail to serve that 
goal, but also could well undermine it.
III. Standard of Judical Review
    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty-day comment 
period, after which the court shall determine whether entry of the 
proposed Final Judgment ``is in the public interest.'' 15 U.S.C. Sec.  
16(e)(l). In making that determination in accordance with the statute, 
the court is required to 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.

15 U.S.C. Sec.  16(e)(1)(A)-(B). In considering these statutory 
factors, the court's inquiry is necessarily a limited one as the 
government is entitled to ``broad discretion to settle with the 
defendant within the reaches of the public interest.'' United States v. 
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see generally 
United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d I (D.D.C. 2007) 
(assessing public interest standard under the Tunney Act); United 
States. InBev N.V./S.A., 2009-2 Trade Cas. (CCH) ]76,736, No. 08-1965 
(JR), 2009 U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting 
that the court's review of a consent judgment is limited and only 
inquires ``into whether the government's determination that the 
proposed remedies will cure the antitrust violations alleged in the 
complaint was reasonable, and whether the mechanisms to enforce the 
Final Judgment are clear and manageable'').
    As the United States Court of Appeals for the District of Columbia 
Circuit has held, under the APPA, a court considers, among other 
things, the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the public.'' 
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing 
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see 
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787, 
at *3 Courts have held that:

``[t]he balancing of competing social and political interests affected 
by a proposed antitrust consent decree must be left, in the first 
instance, to the discretion of the Attorney General. The court's role 
in protecting the public interest is one of insuring that the 
government has not

[[Page 36692]]

breached its duty to the public in consenting to the decree. The court 
is required to determine not whether a particular decree is the one 
that will best serve society, but whether the settlement is ``within 
the reaches of the public interest.'' More elaborate requirements might 
undermine the effectiveness of antitrust enforcement by consent 
decree.''

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\3\ In 
determining whether a proposed settlement is in the public interest, 
the court ``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.'' SBC Commc'ns, 489 F. Supp. 2d 
at 17; see also Microsoft, 56 F.3d at 1461 (noting the need for courts 
to be ``deferential to the government's predictions as to the effect of 
the proposed remedies''); United States v. Archer-Daniels-Midland Co., 
272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant 
due respect to the United States' prediction as to the effect of 
proposed remedies, its perception of the market structure, and its 
views of the nature of the case).
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    \3\ Cf BNS, 858 F.2d at 464 (holding that the court's ``ultimate 
authority under the [APPA] is limited to approving or disapproving 
the consent decree''); United States v. Gillette Co., 406 F. Supp. 
713, 716 (D. Mass. 1975) (noting that, in this way, the court is 
constrained to ``look at the overall picture not hypercritically, 
nor with a microscope, but with an artist's reducing glass''). See 
generally Microsoft, 56 F.3d at 1461 (discussing whether ``the 
remedies [obtained in the decree are] so inconsonant with the 
allegations charged as to fall outside of the `reaches of the public 
interest').
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    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``{A{time}  proposed decree must be 
approved even if it falls short of the remedy the court would impose on 
its own, as long as it falls within the range of acceptability or is 
``within the reaches of public interest.'' United States v. Am. Tel. & 
Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) 
(quoting United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 
1975)), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983); 
see also United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 
(W.D. Ky. 1985) (approving the consent decree even though the court 
would have imposed a greater remedy). Therefore, 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.
    In its 2004 amendments to the Tunney Act,\4\ Congress made clear 
its intent to preserve the practical benefits of utilizing consent 
decrees in antitrust enforcement, stating ``[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. Sec.  16(e)(2). The language wrote into the statute what 
Congress intended when it enacted the Tunney Act in 1974, as Senator 
Tunney explained: ``[t]he 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 decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of 
Senator Tunney). Rather, the procedure for the public-interest 
determination is left to the discretion of the court, with the 
recognition that the court's ``scope of review remains sharply 
proscribed by precedent and the nature of Tunney Act proceedings.'' SBC 
Commc'ns, 489 F. Supp. 2d at ii.\5\
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    \4\ The 2004 amendments substituted the word ``shall'' for 
``may'' when directing the courts to consider the enumerated factors 
and amended the list of factors to focus on competitive 
considerations and address potentially ambiguous judgment terms. 
Compare 15 U.S.C. Sec.  16(e) (2004), with 15 U.S.C. Sec.  16(e)(l) 
(2006); see also SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding 
that the 2004 amendments ``effected minimal changes'' to Tunney Act 
review).
    \5\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt 
failure of the government to discharge its duty, the Court, in 
making its public interest finding, should * * * carefully consider 
the explanations of the government in the competitive impact 
statement and its responses to comments in order to determine 
whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 
(1973) (``Where the public interest can be meaningfully evaluated 
simply on the basis of briefs and oral arguments, that is the 
approach that should be utilized.'')
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IV. Conclusion
    The issues raised in the public comments were among the many 
considered by the United States when it evaluated the sufficiency of 
the proposed remedy. The United States has determined that the proposed 
Final Judgment, as drafted, 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 the comments and this 
response are published in the Federal Register.
    Dated: June 17, 2010.

    Respectfully submitted, /s/

Stephanie A. Fleming, Esq.
United States Department of Justice, Antitrust Division, Litigation II 
Section, 450 5th Street, NW., Suite 8700, Washington, DC 20530. Phone: 
(202) 514-9228. Fax: (202) 514-9033. stephanie.fleming@usdoj.gov

Appendix: Public Comments

April 5, 2010.

Maribeth Petrizzi, Chief, Litigation II Section, Antitrust Division, 
United States Department of Justice, 450 Fifth Street, NW., Suite 8700, 
Washington, DC 20530.

    Dear Ms. Petrizzi: As an interested third party to the court case 
involving Election Systems & Software's purchase of Premier Election 
Solutions, I would like to request that the judgment stipulate that the 
signed employment and non-compete agreements of former Premier 
employees be waived as of the purchase date of Premier by ES&S, up to a 
period of six months following the judgment date. The reason for this 
request is to prevent ES&S from filing suit against any former Premier 
employees prior to this judgment based on those agreements.
    I am aware that ES&S is not shy in bringing legal action against 
current or former employees for any reason and without regard to the 
facts surrounding the incidents. I am writing this letter anonymously 
to prevent the possible legal entanglements with ES&S should they find 
out who wrote it. You may think this is paranoid, but I have had first-
hand experience dealing with their frivolous and destructive lawsuits.
    I thank you for your consideration of this matter and hope my 
letter is taken seriously, for that is how it is intended.

Attention: Maribeth Petrizzi, Chief, Litigation III Section, Antitrust 
Division, United States Department of Justice, 450 Fifth Street, NW.; 
Suite 8700, Washington, DC 20530.

United States of America, et al., Plaintiff, v. Election Systems & 
Software, Inc., Defendant

    As a friend of a former employee of Premier Election Solutions who 
was terminated as a result of this illegal acquisition by Election 
Systems & Software (ES&S), I would like to file a suggestion to the 
court. The former employees of Premier Elections should not be 
restricted to continue working their trade in elections or be prevented 
from earning a living for their families as a result of a 
noncompetition agreement and Separation Agreement in this illegal 
purchase. The agreements

[[Page 36693]]

should be considered null and void. Election Systems & Software (ES&S) 
should not have the right to ever pursue former Premier Associates in 
legal matters with respect to those Agreements. The Agreements should 
not be void as of the Date of the Final Judgment as some of these 
former employees have already started working with other vendors. These 
former employees would be subject to legal action from ES&S since they 
wouldn't fall within the window set forth in the Final Judgment. These 
Agreements should be considered void as of the date of the employee's 
termination date. Also the agreements are already set to expire in 
September 2011 so there is no reason to have a 6 month window for any 
acquirer to hire these former employees. These former employees should 
also be able to go to work for any company in the election industry, 
not just the acquirer, without fear or threat from ES&S. Below is my 
consideration to the wording set forth in the Final Judgment.
    All restrictive covenants contained within any employment agreement 
or separation agreement entered into between Premier Election 
Solutions, Inc., its parent corporation, subsidiaries, officers, 
directors, supervisors and/or representatives (collectively referred to 
as ``Premier'') and any individuals formerly employed by Premier who 
were terminated in 2009 are declared void. Premier may not institute or 
maintain a cause of action or any claim based on a restrictive covenant 
against any individual formerly employed by Premier who was terminated 
in 2009. Premier has consented to waive all such claims and causes of 
action throughout the United States of America.
    Thanks for your consideration.

The Public

Attention: Maribeth Petrizzi, Chief, Litigation II Section, Antitrust 
Division, United States Department of Justice, 450 Fifth Street, NW.; 
Suite 8700, Washington, DC 20530.

United States of America, et al., Plaintiff, v. Election Systems & 
Software, Inc., Defendant

    As a friend of a former employee of Premier Election Solutions who 
was terminated as a result of this illegal acquisition by Election 
Systems & Software (ES&S), I would like to file a suggestion to the 
court. The former employees of Premier Elections should not be 
restricted to continue working their trade in elections or be prevented 
from earning a living for their families as a result of a 
noncompetition agreement and Separation Agreement in this illegal 
purchase. The agreements should be considered null and void. Election 
Systems & Software (ES&S) should not have the right to ever pursue 
former Premier Associates in legal matters with respect to those 
Agreements. The Agreements should not be void as of the Date of the 
Final Judgment as some of these former employees have already started 
working with other vendors. These former employees would be subject to 
legal action from ES&S since they wouldn't fall within the window set 
forth in the Final Judgment. These Agreements should be considered void 
as of the date of the employee's termination date. Also the agreements 
are already set to expire in September 2011 so there is no reason to 
have a 6 month window for any acquirer to hire these former employees. 
These former employees should also be able to go to work for any 
company in the election industry, not just the acquirer, without fear 
or threat from ES&S. Below is my consideration to the wording set forth 
in the Final Judgment.
    All restrictive covenants contained within any employment agreement 
or separation agreement entered into between Premier Election 
Solutions, Inc., its parent corporation, subsidiaries, officers, 
directors, supervisors and/or representatives (collectively referred to 
as ``Premier'') and any individuals formerly employed by Premier who 
were terminated in 2009 are declared void. Premier may not institute or 
maintain a cause of action or any claim based on a restrictive covenant 
against any individual formerly employed by Premier who was terminated 
in 2009. Premier has consented to waive all such claims and causes of 
action throughout the United States of America.
    Thanks for your consideration.

The Public.

[FR Doc. 2010-15368 Filed 6-25-10; 8:45 am]
BILLING CODE 4410-11-M