[Federal Register: November 12, 2003 (Volume 68, Number 218)]
[Notices]               
[Page 64114-64124]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no03-66]                         

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DEPARTMENT OF JUSTICE

Antitrust Division

 
United States v. General Electric Company & Instrumentarium OYJ

Proposed Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment, 
Hold Separate Stipulation and Order, and Competitive Impact Statement 
have been filed with the United States District Court for that District 
of Columbia in United States v. General Electric Co., Civil Action No. 
03CV01923. On September 16, 2003, the United States filed a Complaint 
alleging that the proposed acquisition of Instrumentarium OYJ 
(``Instrumentarium'') by General Electric Company (``GE'') is in 
violation of Section 7 of the Clayton Act, 15 U.S.C. 18. The proposed 
Final Judgment, filed at the same time as the Complaint, requires the 
defendants to fully divest Instrumentarium's Spacelabs business, which 
is its primary manufacturing, distribution, research and development 
and sales operation for critical care monitors; and Instrumentarium's 
Ziehm business, which comprises Instrumentarium's C-arm business. 
Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection at the Department of 
Justice in Washington, DC, Room 200, 325 Seventh Street, NW., on the 
Internet at http://www.usdoj.gov/atr, and at the Office of the Clerk of 
the Untied States District Court for the District of Columbia, 333 
Constitution Avenue, NW., Washington, DC 20001.
    Public comment is invited within 6o days of the date of this 
notice. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to James R. Wade, Chief, Litigation III Section, Antitrust Division, 
Department of Justice, 325 Seventh Street, NW., Suite 300, Washington, 
DC 20530 (telephone: (202) 616-5935).

J. Robert Kramer II,
Director of Operations, Antitrust Division.

Final Judgment

    Whereas, plaintiff, United States of America, filed its Complaint 
on September 16, 2003, plaintiff and defendants, General Electric 
Company (``GE'') and Instrumentarium OYJ (``Instrumentarium''), by 
their respective attorneys, have consented to the entry of this Final 
Judgment without trial or adjudication of any issue of fact or law, and 
without this Final Judgment constituting any evidence against or 
admission by any party regarding any issue of fact or law;
    And whereas, defendants agree to be bound by the provisions of this 
Final Judgment pending its approval by the Court;
    And whereas, the essence of this Final Judgment is the prompt and 
certain divestiture of certain rights or assets by the defendants to 
assure that competition is not substantially lessened;
    And whereas, plaintiff requires defendants to make certain 
divestitures for the purpose of remedying the loss of competition 
alleged in the Complaint;
    And whereas, defendants have represented to the United States that 
the divestitures required below can and will be made and that 
defendants will later raise no claim of hardship or difficulty as 
grounds for asking the Court to modify any of the divestiture 
provisions contained below;
    Now therefore, before any testimony is taken, without trial or 
adjudication of any issue of fact or law, and upon consent of the 
parties, it is ordered, adjudged, and decreed:

I. Jurisdiction

    This Court has jurisdiction over the subject matter of and each of 
the parties of this action. The Complaint states a claim upon which 
relief may be granted against defendants under Section 7 of the Clayton 
Act, as amended, 15 U.S.C. Sec.  18.

II. Definitions

    As used in this Final Judgment:
    A. ``GE'' means defendant General Electric Company, a New York 
corporation with its headquarters in Fairfield, Connecticut, its 
successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    B. ``Instrumentarium'' means defendant Instrumentarium OYJ, a 
public limited-liability company existing under the laws of Finland, 
its successors and assigns, and its subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, and their directors, 
officers, managers, agents, and employees.
    C. ``Patient monitors'' means multiparameter medical devices that 
provide continuous, real-time evaluations of patient vital signs.
    D. ``C-arms'' means full-size, mobile fluorscopic x-ray machines 
that are used to provide continuous, real-time viewing of patients 
during various medical procedures.
    E. ``Spacelabs'' means the Spacelabs business as described in 
schedule 1, including Annexes 1-4, of the Commitments that GE has 
entered into with the European Commission regarding divestiture of 
Spacelabs, approved on September 2, 2003, and attached as Exhibit 1 
(motion pending to file under seal). A non-confidential version of 
Schedule 1 is attached as Exhibit 2. Provided, however, that the 
Acquirer of Spacelabs shall grant GE a license to technology embodied 
in the Instrumentarium Medical Connector, the terms and duration of 
such license to be negotiated between GE and the Acquirer, limited to 
the field of use of nine-pin connectors for patient monitoring 
equipment, including, but not limited to, any patent issuing on the 
patent application currently entitled ``Latching Medical Patient 
Parameter Safety Connector and Method'' submitted in the name of Datex-
Ohmeda, Inc., to the U.S. Patent and Trademark Office on August 19, 
2003, and any continuations, continuations in part, or reissue 
applications based on such application.
    F. ``Ziehm'' means Instrumentarium's C-arm business and its line of 
C-arm products, currently conducted through Instrumentarium Imaging 
Ziehm, Inc. and Instrumentarium Imaging Ziehm GmbH, and including, but 
not limited to, the facility located at 4181 Latham Street, Riverside, 
California 92501 and the facility located at Isarstrasse 40, d-90451 
Nuremberg, Germany, and also including:
    1. All tangible assets that comprise Instrumentarium's C-arm 
business, including research and development activities; all 
manufacturing equipment, tooling and fixed assets, personal property, 
inventory, office furniture, materials, supplies and other tangible 
property, and all assets used in connection with the Ziehm business; 
all licenses permits, and authorizations issued by any governmental 
organization relating to the Ziehm business; all contracts, teaming

[[Page 64115]]

arrangements, agreements, leases, commitments, certifications, and 
undertakings relating to the Ziehm business, including supply and 
distribution agreements; all customer lists, contracts, accounts, and 
credit records; all repair and performance records and all other 
records relating to the Ziehm business. Provided, however, that the 
Ziehm C-arm assets to be divested shall not include Instrumentarium 
facilities that are primarily used in connection with the 
Instrumentarium activities other than the C-arm business, which consist 
of Instrumentarium facilities where: (1) Administrative functions are 
performed; (2) Instrumentarium's 3D-imaging research and development 
project (``Instrumentarium's 3D Project'') is conducted; and (3) sales 
and distribution activities are managed.
    2. All intangible assets used in the development, production, 
servicing, and sale of Intrumentarium's C-arm products, including, but 
not limited to, all patents, licenses and sublicenses, intellectual 
property, copyrights, trademarks, trade names, service marks, service 
names (except to the extent such trademarks, trade names, service 
marks, or service names contain the trademark or names of 
Instrumentarium, Instrumentarium Imaging, or any variation thereof), 
technical information, computer software and related documentation, 
know-how, trade secrets, drawings, blueprints, designs, design 
protocols, specifications for materials, specifications for parts and 
devices, safety procedures for the handling of materials and 
substances, all research data concerning historic and current research 
and development related to the Ziehm business, quality assurance and 
control procedures, design tools and simulation capability, all manuals 
and technical information defendants provide to their own employees, 
customers, suppliers, agents, or licensees, and all research data 
concerning historic and current research and development efforts 
relating to the Ziehm business, including but not limited to designs of 
experiments, and the results of successful and unsuccessful designs and 
experiments. Provided, however, that Instrumentarium's 3D Project shall 
not be included within the definition of the Ziehm C-arm business to be 
divested, but defendants shall: (1) Maintain and continue this project 
at 2002 or previously approved 2003 levels, whichever are higher; (2) 
enter into a joint research and development agreement with the Acquirer 
of Ziehm, at no cost to the Acquirer of Ziehm and for a period of time 
not to exceed one year, in connection with and to continue 
Instrumentarium's 3D Project (``the 3D Development Agreement''); and 
grant the Acquirer of Ziehm a perpetual, assignable, royalty-free 
nonexclusive license, limited to the field of use of C-arms, to all 
Instrumentarium rights to know how, technology, and patents relating to 
3D imaging developed in the 3D Project that exist at the end of the 
term of the 3D Development Agreement (``Licensed Technology''). GE will 
further covenant not to sue the Acquirer of Ziehm with respect to 
claims based on such patent rights relating to the Licensed Technology.
    G. ``Acquirer'' means the entity to which defendants divest 
Spacelabs or the entity to which defendants divest Ziehm; except that, 
in Sections IV and V, Acquirer shall only mean the entity to which 
defendants divest Spacelabs, and in Sections VI and VII, Acquirer shall 
only mean the entity to which defendants divest Ziehm.
    H. ``Divestiture Assets'' means Spacelabs and/or Ziehm.

III. Applicability

    A. This Final Judgment applies to GE and Instrumentarium, as 
defined above, and all other persons in active concert or participation 
with any of them who receive actual notice of this Final Judgment by 
personal service or otherwise.
    B. Should the defendants, not in connection with making either of 
the divestitures required by this Final Judgment, sell or dispose of 
all or substantially all of their assets used in the C-arm of patient 
monitor business, they shall require, as a condition of such sale of 
disposition, that the purchaser agrees to be bound by the provisions of 
this Final Judgment; provided, however, that defendants need not obtain 
such an agreement from the Acquirer.

IV. Divestiture of Spacelabs

    A. Defendants are ordered and directed, within one hundred twenty 
(120) calendar days after the filing of the Complaint in this matter, 
or five (5) days after notice of the entry of this Final Judgment by 
the Court, whichever is later, to divest Spacelabs in a manner 
consistent with this Final Judgment to an Acquirer acceptable to the 
United States in its sole discretion. The United States, in its sole 
discretion, may agree to an extension of this time period of up to two, 
thirty (30) day periods, not to exceed sixty (60) calendar days in 
total, and shall notify the Court in such circumstances. Defendants 
agree to use their best efforts to divest Spacelabs as expeditiously as 
possible.
    B. In accomplishing the divestiture ordered by this Final Judgment, 
defendants promptly shall make known, by usual and customary means, the 
availability of Spacelabs. Defendants shall inform any person making 
inquiry regarding a possible purchase of Spacelabs that it is being 
divested pursuant to this Final Judgment and provide that person with a 
copy of this Final Judgment. Defendants shall offer to furnish to all 
prospective Acquirers, subject to customary confidentiality assurances, 
all information and documents relating to Spacelabs customarily 
provided in a due-diligence process, except such information or 
documents subject to the attorney-client or work-product privileges. 
Defendants shall make available such information to the United States 
at the same time that such information is made available to any other 
person.
    C. Defendants shall provide each prospective Acquirer and the 
United States information relating to the personnel involved in the 
production, operation, development, and sale of Spacelabs's patient 
monitoring products to enable the Acquirer to make offers of 
employment. Defendants will not interfere with any negotiations by the 
Acquirer to employ any defendant employee whose primary responsibility 
is the production, operation, development, or sale of Spacelabs's 
patient monitors. For a period of eighteen (18) months from the date of 
the divestiture of the Spacelabs business, defendants shall not solicit 
to hire, or hire, any such defendant employee that receives a 
substantially equivalent offer of employment from the approved Acquirer 
of the Spacelabs business, unless such employee is terminated or laid 
off by the Acquirer, or the Acquirer agrees that defendants may solicit 
and hire that employee.
    D. Defendants shall permit prospective Acquirers of Spacelabs to 
have reasonable access to personnel and to make inspections of the 
physical facilities of the business to be divested; access to any and 
all environmental, zoning, and other permit documents and information; 
and access to any and all financial, operational, or other documents 
and information customarily provided as part of a due-diligence 
process.
    E. Defendants shall warrant to the Acquirer of Spacelabs that each 
asset will be operational on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of Spacelabs.

[[Page 64116]]

    G. Defendants shall warrant to the Acquirer of Spacelabs that there 
are no material defects in the environmental, zoning, or other permits 
pertaining to the operation of each asset, and that following the sale 
of Spacelabs, defendants will not undertake, directly or indirectly, 
any challenges to the environmental, zoning, or other permits relating 
to the operation of Spacelabs.
    H. Unless the United States otherwise consents in writing, the 
divestiture pursuant to section IV, or by trustee appointed pursuant to 
section V, of this Final Judgment, shall include the entire Spacelabs 
business as defined in section II.E, and shall be accomplished in such 
a way as to satisfy the United States, in its sole discretion, that 
Spacelabs can and will be used by the Acquirer as part of a viable, 
ongoing business in the manufacture and sale of patient monitors in the 
United States. The divestiture, whether pursuant to section V of this 
Final Judgment,
    1. Shall be made to the Acquirer that, in the sole discretion of 
the United States, has the intent and capability (including the 
necessary managerial, operational, technical and financial capability) 
of competing effectively in the manufacture and sale of patient 
monitors in the United States; and
    2. Shall be accomplished so as to satisfy the United States, in its 
sole discretion, that none of the terms of any agreement between the 
Acquirer and defendants gives defendants the ability unreasonably to 
raise the Acquirer's costs to lower the Acquirer's efficiency or 
otherwise to interfere in the ability of the Acquirer to compete 
effectively.

V. Appointment of Trustee To Divest Spacelabs

    A. If defendants have not divested Spacelabs with the time period 
specified in Section IV.A., defendants shall notify the United States 
of that fact in writing. Upon application of the United States, the 
Court shall appoint a trustee selected by the United States in good-
faith consultation with the European Commission to ensure selection of 
a trustee acceptable to both the United States and the European 
Commission and approved by the Court to effect the divestiture of 
Spacelabs.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell Spacelabs. The trustee shall have 
the power and authority to accomplish the divestiture to an Acquirer 
acceptable to the United States at such price and on such terms as are 
then obtainable upon reasonable effect by the trustee, subject to the 
provisions of sections IV, V, and VIII of this Final Judgment, and 
shall have such other powers as this Court deems appropriate. Subject 
to section V.D. of this Final Judgment, the trustee may hire at the 
cost and expense of defendants any investment bankers, attorneys, or 
other agents, who shall be solely accountable to the trustee, 
reasonably necessary in the trustee's judgment to assist in the 
divestiture.
    C. Defendants shall not object to a sale by the trustee to any 
ground other than the trustee's malfeasance or that the Acquirer has 
not been approved by the European Commission. Any objection by 
defendants on the ground of trustee malfeasance must be conveyed in 
writing to the United States and the trustee within ten (10) calendar 
days after the trustee has provided the notice required under section 
VIII.A; any objection by defendant based on lack of approval from the 
European Commission must be conveyed in writing to the United States 
and the trustee within two (2) days after the United States provides 
defendants with written notice, pursuant to Section VIII.C, stating 
that it does not object to the proposed divestiture of Spacelabs.
    D. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the United States approves, and shall 
account for all monies derived from the sale of the assets of the 
trustee's accounting, including fees for its services and those of any 
professionals and agents retained by the trustee, all remaining money 
shall be paid to defendants, and the trust shall then be terminated. 
The compensation of the trustee and any professionals and agents 
retained by the trustee shall be reasonable in light of the value of 
Spacelabs and based on a fee arrangement providing the trustee with an 
incentive based on the price and terms of the divestiture and the speed 
with which it is accomplished, but timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accounts, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and defendants 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secret or other confidential research, development, or 
commercial information. Defendants shall take no action to interfere 
with or to impede the trustee's accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in Spacelabs, and shall describe 
in detail each contact with any such person. The trustee shall maintain 
full records of all efforts made to divest Spacelabs.
    G. If the trustee has not accomplished such divestiture within six 
(6) months after its appointment, the trustee shall promptly file with 
the Court a report setting forth (1) the trustee's efforts to 
accomplish the required divestiture, (2) the reasons, in the trustee's 
judgment, why the required divestiture has not been accomplished, and 
(3) the trustee's recommendations. To the extent such reports contain 
information that the trustee deems confidential, such reports shall not 
be filed in the public docket of the Court. The trustee shall at the 
same time furnish such report to the plaintiff who shall have the right 
to make additional recommendations consistent with the purpose of the 
trust. The Court thereafter shall enter such orders as it shall deem 
appropriate to carry out the purpose of the Final Judgment, which may, 
if necessary, include extending the trust and the term of the trustee's 
appointment by a period requested by the United States.

IV. Divestiture of Ziehm

    A. Defendants are ordered and directed, within one hundred twenty 
(120) calendar days after the filing of the Complaint in this matter, 
or five (5) days after notice of the entry of this Final Judgment by 
the Court, whichever is later, to divest Ziehm in a manner consistent 
with this Final Judgment to an Acquirer acceptable to the United States 
in its sole discretion. The United States, in its sole discretion, may 
agree to an extension of this time period of up to two, thirty (30) day 
periods, not to exceed sixty (60) calendar days in total, and shall 
notify the Court in such circumstances. Defendants agree to use their 
best efforts to divest Ziehm as expeditiously as possible.
    B. In accomplishing the divestiture ordered by this Final Judgment, 
defendants promptly shall make known,

[[Page 64117]]

by usual and customary means, the availability of Ziehm. Defendants 
shall inform any person making inquiry regarding a possible purchase of 
Ziehm that it is being divested pursuant to this Final Judgment and 
provide that person with a copy of this Final Judgment. Defendants 
shall offer to furnish to all prospective Acquirers, subject to 
customary confidentiality assurances, all information and documents 
relating to Ziehm customarily provided in a due-diligence process 
except such information or documents subject to the attorney-client or 
work-product privileges. Defendants shall make available such 
information to the United States at the same time that such information 
is made available to any other person.
    C. Defendants shall provide each prospective Acquirer and the 
United States information relating to the personnel involved in the 
production, operation, development, and sale of Ziehm's C-arm products 
to enable the Acquirer to make offers of employment. Defendants will 
not interfere with any negotiations by the Acquirer to employ any 
defendant employee whose primary responsibility is the production, 
operation, development, or sale of Ziehm's C-arms. For a period of 
eighteen (18) months from the date of the divestiture of the Ziehm 
business, defendants shall not solicit to hire, or hire, any such 
defendant employee that receives a substantially equivalent offer of 
employment from the approved Acquirer of the Ziehm business, unless 
such employee is terminated or laid off by the Acquirer, or the 
Acquirer agrees that defendants may solicit and hire that employee.
    D. Defendants shall permit prospective Acquirers of Ziehm to have 
reasonable access to personnel and to make inspections of the physical 
facilities of the business to be divested; access to any and all 
environmental, zoning, and other permit documents and information; and 
access to any and all financial, operational, or other documents and 
information customarily provided as part of a due-diligence process.
    E. Defendants shall warrant to the Acquirer of Ziehm that each 
asset will be operational on the date of sale.
    F. Defendants shall not take any action that will impede in any way 
the permitting, operation, or divestiture of Ziehm.
    G. Defendants shall warrant to the Acquirer of Ziehm that there are 
no material defects in the environmental, zoning, or other permits 
pertaining to the operation of each asset, and that following the sale 
of Ziehm, defendants will not undertake, directly or indirectly, any 
challenges to the environmental, zoning, or other permits relating to 
the operation of Ziehm.
    H. Unless the United States otherwise consents in writing, the 
divestiture pursuant to Section VI, or by trustee appointed pursuant to 
Section VII, of this Final Judgment, shall include the entire Ziehm 
business as defined in Section II.F, and shall be accomplished in such 
a way as to satisfy the United States, in its sole discretion, that 
Ziehm can and will be used by the Acquirer as part of a viable, ongoing 
business in the manufacture and sale of C-arms in the United States. 
The divestiture, whether pursuant to section VI or section VII of this 
Final Judgment,
    1. Shall be made to the Acquirer that, in the sole discretion of 
the United States, has the intent and capability (including the 
necessary managerial, operational, technical and financial capability) 
of competing effectively in the manufacture and sale of C-arms in the 
United States; and
    2. Shall be accomplished so as to satisfy the United States, in its 
sole discretion, that none of the terms of any agreement between the 
Acquirer and defendants give defendants the ability unreasonably to 
raise the Acquirer's costs, to lower the Acquirer's efficiency, or 
otherwise to interfere in the ability of the Acquirer to compete 
effectively.

VII. Appointment of Trustee To Divest Ziehm

    A. If defendants have not divested Ziehm within the time period 
specified in Section VI.A, defendants shall notify the United States of 
that fact in writing. Upon application of the United States, the Court 
shall appoint a trustee selected by the United States and approved by 
the Court to effect the divestiture of Ziehm.
    B. After the appointment of a trustee becomes effective, only the 
trustee shall have the right to sell Ziehm. The trustee shall have the 
power and authority to accomplish the divestiture to an Acquirer 
acceptable to the United States at such price and on such terms as are 
then obtainable upon reasonable efforts by the trustee, subject to the 
provisioins of sections VI, VII, and VIII of this Final Judgment, and 
shall have such other powers as this Court deems appropriate. Subject 
to section VII.D of this Final Judgment, the trustee may hire at the 
cost and expense of defendants any investment bankers, attorneys, or 
other agents, who shall be solely accountable to the trustee, 
reasonably necessary in the trustee's judgment to assist in the 
divestiture.
    C. Defendants shall not object to a sale by the trustee on any 
ground other than the trustee's malfeasance. Any such objections by 
defendants must be conveyed in writing to the United States and the 
trustee within ten (10) calendar days after the trustee has provided 
the notice required under section VIII.
    D. The trustee shall serve at the cost and expense of defendants, 
on such terms and conditions as the United States approves, and shall 
account for all monies derived from the sale of the assets sold by the 
trustee and all costs and expenses so incurred. After approval by the 
Court of the trustee's accounting, including fees for its services and 
those of any professionals and agents retained by the trustee, all 
remaining money shall be paid to defendants, and the trust shall then 
be terminated. The compensation of the trustee and any professionals 
and agents retained by the trustee shall be reasonable in light of the 
value of Ziehm and based on a fee arrangement providing the trustee 
with an incentive based on the price and terms of the divestiture and 
the speed with which it is accomplished, but timeliness is paramount.
    E. Defendants shall use their best efforts to assist the trustee in 
accomplishing the required divestiture. The trustee and any 
consultants, accountants, attorneys, and other persons retained by the 
trustee shall have full and complete access to the personnel, books, 
records, and facilities of the business to be divested, and defendants 
shall develop financial and other information relevant to such business 
as the trustee may reasonably request, subject to reasonable protection 
for trade secret or other confidential research, development, or 
commercial information or any applicable privileges. Defendants shall 
take no action to interfere with or to impede the trustee's 
accomplishment of the divestiture.
    F. After its appointment, the trustee shall file monthly reports 
with the United States and the Court setting forth the trustee's 
efforts to accomplish the divestiture ordered under this Final 
Judgment. To the extent such reports contain information that the 
trustee deems confidential, such reports shall not be filed in the 
public docket of the Court. Such reports shall include the name, 
address, and telephone number of each person who, during the preceding 
month, made an offer to acquire, expressed an interest in acquiring, 
entered into negotiations to acquire, or was contacted or made an 
inquiry about acquiring, any interest in Ziehm, and shall describe in 
detail each contact

[[Page 64118]]

with any such person. The trustee shall maintain full records of all 
efforts made to divest Ziehm.
    G. If the trustee has not accomplished such divestiture within six 
(6) months after its appointment, the trustee shall promptly file with 
the Court a report setting forth (1) the trustee's efforts to 
accomplish the required divestiture, (2) the reasons, in the trustee's 
judgment, why the required divestiture has not been accomplished, and 
(3) the trustee's recommendations. To the extent such reports contain 
information that the trustee deems confidential, such reports shall not 
be filed in the public docket of the Court. The trustee shall at the 
same time furnish such report to the plaintiff who shall have the right 
to make additional recommendations consistent with the purpose of the 
trust. The Court thereafter shall enter such orders as it shall deem 
appropriate to carry out the purpose of the Final Judgment, which may, 
if necessary, include extending the trust and the term of the trustee's 
appointment by a period requested by the United States.

VIII. Notice of Proposed Divestitures

    A. Within two (2) business days following execution of a definitive 
divestiture agreement, defendants or the trustee, whichever is then 
responsible for effecting any divestiture required herein, shall notify 
the United States of any proposed divestiture required by sections IV, 
V, VI, or VII of this Final Judgment. If the trustee is responsible, it 
shall similarly notify defendants. The notice shall set forth the 
details of the proposed divestiture and list the name, address, and 
telephone number of each person not previously identified who offered 
or expressed an interest in or desire to acquire any ownership interest 
in the Divestiture Assets, together with full details of the same.
    B. Within fifteen (15) calendar days of receipt by the United 
States of such notice, the United States may request from defendants, 
the proposed Acquirer(s), any other third party, or the trustee, if 
applicable, additional information concerning the proposed divestiture, 
the proposed Acquirer(s), and any other potential Acquirer. Defendants 
and the trustee shall furnish any additional information requested 
within fifteen (15) calendar days of the receipt of the request unless 
the parties shall otherwise agree.
    C. Within thirty (30) calendar days receipt of the notice or within 
twenty (20) calendar days after the United States has been provided the 
additional information requested from defendants, the proposed 
Acquirer(s), any third party, and the trustee, whichever is later, the 
United States shall provide written notice to defendants and the 
trustee, if there is one, stating whether it objects to the proposed 
divestiture. If the United States provides written notice that it does 
not object, the divestiture may be consummated, subject only to 
defendants' limited right to object to the sale under Sections V.C or 
VII.C of this Final Judgment. Absent written notice that the United 
States does not object to the proposed Acquirer(s) or upon objection by 
the United States, a divestiture proposed under Sections IV, V, VI, or 
VII shall not be consummated. Upon objection by defendants under 
section V.C or VII.C, a divestiture proposed under section V or VII 
shall not be consummated unless approved by the Court.

IX. Financing

    Defendants shall not finance all or any part of any purchase made 
pursuant to section IV, V, VI, or VII of this Final Judgment.

X. Hold Separate

    Until all of the divestitures required by this Final Judgment have 
been accomplished, defendants shall take all steps necessary to comply 
with the Hold Separate Stipulation and Order entered by this Court. 
Defendants shall take no action that would jeopardize any divestiture 
order by this Court.

XI. Affidavits

    A. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, and every thirty (30) calendar days thereafter until 
each divestiture has been completed under section IV, V, VI, or VII, 
defendants shall deliver to the United States an affidavit as to the 
fact and manner of its compliance with section IV, V, VI, or VII of 
this Final Judgment. Each such affidavit shall include the name, 
address, and telephone number of each person who, during the preceding 
thirty (30) days, made an offer to acquire, expressed an interest in 
acquiring, entered into negotiations to acquire, or was contacted or 
made an inquiry about acquiring any interest in the Divestiture Assets, 
and shall describe in detail each contact with any such person during 
that period. Each such affidavit shall also include a description of 
the efforts defendants have taken to solicit buyers for the Divestiture 
Assets and to provide required information to prospective Acquirers, 
including the limitations, if any, on such information. Assuming the 
information set forth in the affidavit is true and complete, any 
objection by the United States to information provided by defendants, 
including limitation on information, shall be made within fourteen (14) 
days of receipt of such affidavit.
    B. Within twenty (20) calendar days of the filing of the Complaint 
in this matter, defendants shall deliver to the United States an 
affidavit that describes in reasonable detail all actions defendants 
have taken and all steps defendants have implemented on an ongoing 
basis to comply with section X of this Final Judgment. Defendants shall 
deliver to the United States an affidavit describing any changes to the 
efforts and actions outlined in defendants' earlier affidavits filed 
pursuant to this section within fifteen (15) calendar days after the 
change is implemented.
    C. Defendants shall individually keep all records of each of their 
individual efforts made to preserve and divest the Divestiture Assets 
until one year after all such divestitures have been completed.

XII. Compliance Inspection

    A. For the purposes of determining or securing compliance with this 
Final Judgment, or of determining whether the Final Judgment should be 
modified or vacated, and subject to any legally recognized privilege, 
from time to time duly authorized representatives of the United States 
Department of Justice, including consultants and other persons retained 
by the United States, shall, upon written request of a duly authorized 
representative of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to defendants, be 
permitted:
    1. Access during defendants' office hours to inspect and copy, or 
at plaintiff's option, to require defendants to provide copies of, all 
books, ledgers, accounts, records and documents in the possession, 
custody, or control of defendants, relating to any matters contained in 
this Final Judgment; and
    2. To interview, either informally or on the record, defendants' 
officer, employees, or agents, who may have their individual counsel 
present, regarding such matters. The interviews shall be subject to the 
reasonable convenience of the interviewee and without restraint or 
interference by defendants.
    B. Upon the written request of a duly authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division, 
defendants shall submit written reports, under oath if requested, 
relating to any of the matters contained in this Final Judgment as may 
be requested.
    C. No information or documents obtained by the means provided in 
this

[[Page 64119]]

section shall be divulged by the United States to any person other than 
an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (including grand jury proceedings), or for the 
purpose of securing compliance with this Final Judgment, or as 
otherwise required by law.
    D. If at the time information or documents are furnished by 
defendants to the United States, defendants represent and identify in 
writing the material in any such information or documents to which a 
claim of protection may be asserted under Rule 26(c)(7) of the Federal 
Rules of Civil Procedure, and defendants mark each pertinent page of 
such material, ``Subject to claim of protection under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure,'' then the United States shall 
give defendants ten (10) calendar days' prior to divulging such 
material in any legal proceeding (other than a grand jury proceeding).

XIII. No Reacquisition

    Defendants may not reacquire any part of the Divestiture Assets 
during the term of this Final Judgment.

XIV. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to their Final 
Judgment to apply to this Court at any time for further orders and 
directions as may be necessary or appropriate to carry out or construe 
this Final Judgment, to modify any of its provisions, to enforce 
compliance, and to punish violations of its provisions.

XV. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten (10) years from the date of this entry.

XVI. Public Interest Determination

    Entry of this Final Judgment is in the public interest.

    Dated: ------------.

    Court approval subject to procedures of the Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16.

United States District Judge

Competitive Impact Statement

    Pursuant to Section 5(b) of the Clayton Act, as amended by Section 
2 of the Antitrust Procedures and Penalties Act (``Tunney Act''), 15 
U.S.C. 16(b)-(h), the United States files this Competitive Impact 
Statement relating to the proposed Final Judgment submitted for entry 
in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    On September 16, 2003, the United States of America filed a civil 
antitrust Compliant alleging that the proposed acquisition by General 
Electric Company (``GE'') of Instrumentarium OYJ (``Instrumentarium'') 
would violate section 7 of the Clayton Act, 15 U.S.C. 18. The Compliant 
alleges that GE and Instrumentarium are two of the nation's three 
leading suppliers of patient monitors used to take the vital 
physiologic measurements of patients requiring critical care 
(``critical care monitors''). The Complaint further alleges that GE 
dominates the sale of full-size, mobile C-arms used for surgical, 
orthopedic, pain management, and basic vascular procedures 
(``orthopedic-vascular C-arms''), with Instrumentarium as one of three 
smaller players in that market. GE and Instrumentarium complete head-
to-head in the development, manufacture, as sale of critical care 
monitors and orthopedic-vascular C-arms.
    The Complaint alleges that the proposed acquisition would eliminate 
head-to-head competition between GE and Instrumentarium and would 
substantially increase the likelihood that GE will unilaterally 
increase the prices or reduce the product quality of critical care 
monitors and orthopedic-vascular C-arms to the detriment of consumers. 
The request for relief in the Complaint seeks: (1) A judgment that the 
proposed acquisition would violate Section 7 of the Clayton Act; (2) a 
permanent injunction preventing consummation of the proposed 
acquisition or preventing the defendants from entering into or carrying 
out any agreement, understanding, or plan, the effect of which would be 
to exchange those assets between the defendants; (3) an award of costs 
to the plaintiff; and (4) such other relief as the Court may deem just 
and proper.
    When the Complaint was filed, the United States also filed a Hold 
Separate Stipulation and Order and a proposed Final Judgment, which 
permit GE to complete its acquisition of Instrumentarium, yet preserve 
competition in the markets in which the proposed transaction raises 
significant competitive concerns. The proposed Final Judgment orders 
the defendants to divest two businesses to acquires that are acceptable 
to the United States: (1) Instrumentarium's Spacelabs business, which 
is Instrumentarium's primary manufacturing, distribution, research and 
development, and sales operations for critical care monitors; and (2) 
instrumentarium's Ziehm subsidiaries, which house Instrumentarium's C-
arm business and its line of C-arm products, currently conducted 
through Instrumentarium Imaging Ziehm, Inc. and Instrumentarium Imaging 
Ziehm GmbH. The defendants must complete the required divestitures 
within one hundred twenty (120) calendar days after the filing of the 
compliant in this matter, or five (5) days after notice of the entry of 
this Final Judgment by the Court, whichever is later. The United 
States, in its sole discretion, may agree to an extension of this time 
period of up to two, thirty (30) day periods, not to exceed sixty (60) 
calendar days in total. Under the terms of the Hold Separate 
Stipulation and Order, GE is required to take certain steps to ensure 
that the assets to be divested are preserved and held separate from its 
other assets and businesses.
    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the Tunney 
Act. Entry of the proposed Final Judgment would terminate this action, 
except that the Court would retain jurisdiction to construe, modify or 
enforce provisions of the proposed Final Judgment and to punish 
violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation

A. the Defendants and the Proposed Transaction

    GE is a global technology and services company that his its 
principal office in Fairfield, Connecticut. Ge Medical Systems, a 
subsidiary of GE, is a major worldwide provider of medical equipment 
products and services, including patient monitors and C-arms, and has 
its principal offices in Waukesha, Wisconsin. In 2002, Ge had total 
revenues of approximately $131.7 billion, and GE Medical Systems had 
revenues of approximately $9 billion.
    Instrumentarium is a major worldwide provider of medical equipment 
products and service,s including patient monitor and C-arms, and has 
its principal offices in Helsinki, Finland. Instrumentarium 
manufactures and sells patient monitors through its Dates-Ohmeda and 
Spacelabs subsidiaries, and manufactures and sells C-amrs through its 
Ziehm operation. Instrumentariumm's revenues were approximately $1 
billion in 2002.
    GE and Instrumentarium reached an agreement on December 18, 2002 
that provides for GE to purchase Instrumentarium through a cash tender 
offer valued at approximately $2 billion. This transaction, which would 
increase concentration in the already concentrated critical care 
monitor and

[[Page 64120]]

orthopedic-vascular C-arm markets, precipitated the government's suite.

B. Product Markets

1. Critical Care Monitors
    a. Description of the Market. The Complaint alleges that patient 
monitors used to take the vital physiologic measurements of patients 
requiring critical care are a relevant product market within the 
meaning of Section 7 of the Clayton Act, 15 U.S.C. 18. Patient monitors 
are routinely used throughout hospitals and other healthcare facilities 
to measure and display information about various patient physiologic 
parameters. THe parameters range from basic measurements, such as 
temperature, noninvasive blood pressure, and electrocardiography, to 
sophisticated invasive blood pressures (measurements of the blood 
pressure in various internal organs through the use of catheters). The 
information allows heathcare providers to monitor the health and 
stability of patients and is vital to the provision of healthcare.
    Patients requiring critical care need more and different parameters 
monitored than do patients who are in less serious condition. To treat 
the patients requiring critical care, hospitals and other healthcare 
facilities must have monitors with the functionality to measure and 
simultaneously display information about a large number of parameters. 
Critical care monitors are sophisticated machines that can measure and 
display information regarding six or more patient parameters. In 
addition to basic parameters, critical care monitors typically measure 
cardiac output (the volume of blood pumped by the heart in a specific 
time period) and multiple invasive blood pressures. Critical care 
monitors also require significant networking capabilities so that 
information can be sent to and displayed at a central station.
    Critical care monitors are distinct from other products, including 
monitors used to monitor patients in less serious condition (``low-
acuity monitors'') and monitors used in the operating room (``OR 
monitors''). Low-acuity monitors are less complex and significantly 
less expensive machines that measure fewer parameters. OR monitors used 
specialized software and technologies not required elsewhere in the 
hospital. They may be configured for anesthesia machine compatibility, 
monitor different parameters, such as the level of anesthetic gas in a 
patient's airway, and tent to be significantly more expensive.
    A hospital or other healthcare facility seeking to purchase a 
critical care monitor would not consider any other products--including 
monitor or an OR monitor--to be a realistic substitute. A small but 
significant increase in the price of a critical care monitor would not 
cause a sufficient number of hospitals or other healthcare facilities 
seeking to purchase a critical care monitor to switch to an OR monitor, 
a low-acuity monitor, or any other type of medical device so as to make 
such a price increase unprofitable and unsustainable.
    The Complaint alleges that the relevant geographic market for the 
sale of critical care monitors in the United States. Any company 
seeking a sell a critical care monitor in the United States must 
register with the Food and Drug Administration (``FDA'') and receive 
approval for its products. To be competitive, a critical care monitor 
supplier must also establish local distribution, service, and support 
networks. Thus, in the face of a small but significant increase in the 
price of critical care monitors, purchasers in the United States cannot 
turn to any producer of critical care monitors that has not received 
FDA approval for its products, and are unlikely to turn in substantial 
numbers to providers that have not established a sales and service 
presence in the Untied States.
    b. Harm to Competition as a Consequence of the Acquisition. 
Critical care monitors are highly differentiated products, which are 
distinguished from each other by price, product features, vendor 
reputation, and customer service. The market for critical care monitors 
is already highly concentrated. GE, Instrumentarium, and one other firm 
are the leading suppliers. Based on shares of unit sales, GE has a 
share of approximately 33 percent of the market, and Instrumentarium 
has a share of approximately 16 percent. While there are other firms 
that manufacture critical care monitors, product limitations and other 
factors, such as their degree of customer acceptance, lessen the 
ability of these firms to complete for many customers.
    GE and Instrumentarium have competed vigorously in the development, 
manufacture, and sale of critical care monitors. A significant number 
of customers view GE's and Instrumentarium's monitors as particularly 
close substitutes and do not view the products of the other vendors as 
equally close. In individualized negotiations, these customers have 
benefitted from the rivalry between GE and Instrumentarium, and 
received lower prices, better quality, or improved service as a result. 
Hospitals and other healthcare facilities that purchase critical care 
monitors have also benefitted generally from competition between GE and 
Instrumentarium on price, innovation, product features, and service. 
The proposed transaction would eliminate the competition between GE and 
Instrumentarium, reduce the number of significant suppliers of critical 
care monitors from three to two, and substantially increase the 
likelihood that GE will unilaterally increase the price of critical 
care monitors to a significant number of customers.
    Successful entry or expansion in the development, manufacture, and 
sale of critical care monitors is difficult, time-consuming, and 
costly, and is unlikely to defeat an anticompetitive price increase or 
reduction in product quality in the event that GE acquired 
Instrumentarium. First, suppliers require FDA approval to begin 
marketing a critical care monitor or to introduce a new model. The 
product development and approval process is costly and time-consuming. 
Second, vendor reputation is an important factor in effectively selling 
critical care monitors. Hospitals and other healthcare facilities rely 
on critical care monitors when treating patients that are in serious 
condition and are reluctant to purchase from suppliers, such as new 
entrants or fringe firms, whose products are not well known. Third, it 
takes substantial time and resources to develop the expertise necessary 
to successfully produce and market critical care monitors. Vendors must 
also maintain significant ongoing research and development efforts to 
continue innovations that meet customer demand as well as stringent 
safety standards. Finally, suppliers of critical care monitors must go 
through the costly and time-consuming process of establishing extensive 
sales and service networks. Customers rely on sales representatives to 
inform them about new products and technologies. Many hospitals and 
other healthcare facilities also rely on critical care monitor 
providers for service and are reluctant to purchase from vendors 
without an established presence and service network in their area.
2. Orthopedic-Vascular C-Arms
    a. Description of the Market. The Complaint alleges that 
orthopedic-vascular C-arms are a separate and distinct product market 
for purposes of Section 7 of the Clayton Act, 15 U.S.C. 18. C-arms are 
fluoroscopic x-ray devices that offer real-time, continuous images 
during certain medical and surgical procedures. C-arms may be mobile 
(``mobile C-arms''), stationary (``fixed C-arms''), or small (``mini C-

[[Page 64121]]

arms''). Mobile C-arms typically consist of two wheeled units, one to 
support the C-arm unit and the other to support the display monitors 
and imaging processor. The C-arm unit consists of a curved arm with an 
x-ray tube mounted on one end and an image intensifier, which converts 
the x-rays into a viewable image, on the other end. Orthopedic-vascular 
C-arms are mobile C-arms designed for general surgery, orthopedic, pain 
management, or basic vascular procedures. These procedures include, but 
are not limited to, placing splints, localized needle biopsy, 
endoscopy, colonoscopy, and basic vascular procedures, such as balloon 
angiography and endovascular stent graphs.
    A hospital or other healthcare facility seeking to purchase an 
orthopedic-vascular C-arm would not consider any other imaging 
equipment, such as a fixed C-arm, mini C-arm, CT scanner, or other x-
ray equipment, to be a realistic substitute. Fixed C-arms are dedicated 
to a specific room, are generally used for cardiac procedures, and cost 
significantly more than any mobile C-arm. Mini C-arms cannot image an 
entire torso and are limited in the medical procedures in which they 
can be used. CT scanners and other x-ray equipment do not have the 
functionality to provide real-time, continuous viewing during medical 
procedures.
    Another type of mobile C-arm is designed for advanced vascular and 
cardiac procedures. These mobile C-arms are designed to image a beating 
heart or the brain. To produce a good image, these mobile C-arms are 
equipped with greater hardware and functionality and are therefore 
priced at much higher levels than orthopedic-vascular C-arms. A 
hospital or other healthcare facility seeking to purchase an 
orthopedic-vascular C-arm would not consider a mobile C-arm designed 
for advanced vascular and cardiac procedures to be a realistic 
substitute. A small but significant increase in the price of an 
orthopedic-vascular C-arm would not cause a sufficient number of 
hospitals or other healthcare facilities seeking to purchase 
orthopedic-vascular C-arms to switch to any alternative products so as 
to make such a price increase unprofitable and unsustainable.
    The Complaint alleges that the relevant geographic market for the 
sale or orthopedic-vascular C-arms is the United States. Any company 
seeking to sell an orthopedic-vascular C-arm in the United States must 
register with the FDA and receive approval for its products. To be 
competitive, an orthopedic-vascular C-arm supplier must also establish 
local distribution, service, and support networks. Thus, in the face of 
a small but significant increase in the price of orthopedic-vascular C-
arms, purchasers in the United States cannot turn to any producer of 
orthopedic-vascular C-arms that has not received FDA approval for its 
products, and are unlikely to turn in substantial numbers to providers 
that have not established a sales and service presence in the United 
States.
    b. Harm to Competition as a Consequence of the Acquisition. The 
market for orthopedic-vascular C-arms is highly concentrated. GE 
dominates the sale of orthopedic-vascular C-arms, with approximately 68 
percent of unit sales. Instrumentarium and two other firms have smaller 
market shares. The market for orthopedic-vascular C-arms would become 
even more concentrated if GE acquired Instrumentarium.
    Orthopedic-vascular C-arms are differentiated on the basis of image 
quality, ease of use, weight and size, firm reputation, and service. 
Customers negotiate transactions individually with one or more vendors 
and have distinct and ranging preferences for certain products and 
vendors. The Complaint alleges that Instrumentarium provides GE with 
significant competition in the development, manufacture, and sale of 
orthopedic-vascular C-arms. This has included competition on price, 
service, innovation, and product features, such as image quality. A 
significant number of customers view the GE and Instrumentarium 
orthopedic-vascular C-arm products as close substitutes, and do not 
view the products of other vendors to be equally close. During 
individual negotiations, these customers have benefited from the 
competition between GE and Instrumentarium to obtain loser prices, 
improved product quality and services, and better contract terms. The 
proposed transaction would eliminate the competition between GE and 
Instrumentarium, remove one of the few vendors providing competition to 
GE in orthopedic-vascular C-arm sales, and substantially increase the 
likelihood that GE will unilaterally increase the price of orthopedic-
vascular C-arms to a significant number of customers.
    If GE acquires Instrumentarium, there is unlikely to be timely 
entry by any firm that would be sufficient to defeat an anticompetitive 
price increase or reduction in product quality. Successful entry and 
expansion is difficult, time-consuming, and costly for several reasons. 
First, to sell an orthopedic-vascular C-arm to a customer in the United 
States, a firm must gain FDA approval. The product development and 
approval process is costly and time-consuming. Second, a vendor's 
reputation and name recognition are extremely important factors in 
effectively selling orthopedic-vascular C-arms; hospitals and 
healthcare facilities seek to purchase products with proven records of 
reliability, in no small part because mobile C-arms are used during 
important medical procedures, ad a mobile C-arm's poor performance is 
costly and can endanger a patient's life or physical condition.
    Third, because hospitals and other healthcare facilities rely on 
visits from sales representatives to learn about new products and 
technologies, and often rely on vendors for product service, a 
prospective supplier of orthopedic-vascular C-arms would have to 
establish sales, distribution, and service networks. Fourth, it takes 
substantial time and resources to develop the expertise necessary to 
successfully produce and market orthopedic-vascular C-arms. Suppliers 
must also maintain significant ongoing research and develop efforts to 
continue innovations that meet customer demand as well as stringent 
safety standards to ensure future sales.

II. Explanation of the Proposed Final Judgment

    The provisions of the proposed Final Judgment are designed to 
eliminate the anticompetitive effects of GE's proposed acquisition of 
Instrumentarium in the critical care monitor and orthopedic-vascular C-
arm markets by establishing a new, independent, economically viable 
competitor in each of those markets.
    The proposed Final Judgment orders the defendants to divest the 
Spacelabs and Ziehm businesses to acquirers acceptable to the United 
States, in it sole discretion. The defendants must complete the 
required divestitures within one hundred twenty (120) calendar days 
after the filing of the Complaint in this matter, or five (5) days 
after notice of the entry of this Final Judgment by the Court, 
whichever is later. The United States, in its sole discretion, may 
agree to an extension of this time period of up to two, thirty (30) 
days periods, not to exceed sixty (60) calendar days in total.
    Because GE and Instrumentarium have significant operations in 
Europe as well as the United States, the European Commission also 
reviewed GE's proposed acquisition of Instrumentarium. To obtain 
regulatory approval in Europe, GE entered into Commitments that, among 
other things, required it to sell its Spacelabs patient monitor 
business. These Commitments, approved by the European Commission on 
September 2, 2003 (``the EC

[[Page 64122]]

Commitments''), included a detailed description of the Spacelab 
business.
    The proposed Final Judgment adopts this detailed description as the 
definition of the Spacelabs business to be divested and attaches the 
description as Exhibit 1 to the proposed Final Judgment. Because this 
detailed description includes highly confidential information, such as 
customer lists and supply agreements, it was filed under seal. A 
nonconfidential version of the description was filed as Exhibit 2 to 
the proposed Final Judgment. There is, however, one addition to the 
description of the Spacelabs business to be divested. The proposed 
Final Judgment also provides that the acquirer of the Spacelabs 
business shall grant GE a limited license to certain technology to be 
divested, so that Instrumentarium can continue to use this technology 
in its connectors for patient monitoring equipment. The terms and 
duration of such license are to be negotiated between GE and the 
acquirer of the Spacelabs business. The proposed Final Judgment does 
not require GE to divest Datex-Ohmeda, another Instrumentarium business 
unit that manufactures and sells patient monitors, because that unit 
predominately sells patient monitors other than critical care monitors.
    If the defendants have not divested the Spacelabs business within 
the required time period, the Court, upon application of the United 
States, is to appoint a trustee to complete the divestiture. Because 
the Commitments entered into in Europe also require selection of a 
trustee if GE does not complete the divestitures within a certain time, 
the proposed Final Judgment provides that the United States shall 
select a trustee, to be approved by the Court, after good-faith 
consultation with the European Commission to ensure selection of a 
trustee acceptable to both the United States and the European 
Commission. The proposed Final Judgment provides that the defendants 
will pay all costs and expenses of the trustee. After the trustee's 
appointment becomes effective, the trustee will file monthly reports 
with the United States and the Court, setting forth the trustee's 
efforts to accomplish the divestiture. At the end of six months, if the 
divestiture has not been accomplished, the trustee and the plaintiff 
will have the opportunity to make recommendations to the Court, which 
shall enter such orders as appropriate in order to carry out the 
purpose of the trust, including extending the trust and the term of the 
trustee's appointment by a period requested by the United States.
    The proposed Final Judgment defines the Ziehm business to be 
divested as Instrumentarium's C-arm business and its line of C-arm 
products, currently conducted through two subsidiaries: Instrumentarium 
Imaging Ziehm, Inc. and Instrumentarium Imaging Ziehm GmbH. The 
business to be divested includes, with a few limited exceptions, all 
tangible and intangible assets used in Instrumentarium's C-arm 
business. These assets include two physical facilities (located in 
Riverside, California and Nuremberg, Germany), all contracts and 
agreements, and all intellectual property, except the use of the name 
``Instrumentarium.'' The proposed Final Judgment has a separate 
provision with regard to an Instrumentarium 3D-imaging research and 
development project that was conducted for Instrumentarium's other 
imaging businesses, as well as for its C-arm business. This ongoing 3D 
project is not part of the divestiture package, but the proposed Final 
Judgment requires the defendants to (1) maintain the project; (2) 
continue it for up to one year on a joint basis with the acquirer of 
Ziehm; and (3) grant the acquirer of Ziehm a perpetual, assignable, 
royalty-free nonexclusive license, limited to the field of use of C-
arms, to the intellectual property relating to 3D-imaging developed in 
the project during that period.
    If the defendants have not divested the Ziehm business within the 
required time period, the Court, upon application of the United States, 
is to appoint a trustee selected by the United States and approved by 
the Court to complete the divestiture. The proposed Final Judgment 
provides that the defendants will pay all costs and expenses of the 
trustee. After the trustee's appointment becomes effective, the trustee 
will file monthly reports with the United States and the Court, setting 
forth the trustee's efforts to accomplish the divestiture. At the end 
of six months, if the divestiture has not been accomplished, the 
trustee and the plaintiff will have the opportunity to make 
recommendations to the Court, which shall enter such orders as 
appropriate to carry out the purpose of the trust, including extending 
the trust and the term of the trustee's appointment by a period 
requested by the United States.
    The proposed Final Judgment takes steps to ensure that the 
acquirers of both the SpaceLabs and Ziehm businesses can and will be 
able to use these operations as viable, ongoing businesses in the 
manufacture and sale of critical care monitors and orthopedic-vascular 
C-arms, respectively, in the United States. The United States, in its 
sole discretion, must be satisfied that both the Spacelabs and Ziehm 
acquirers have the intent and capability (including the necessary 
managerial, operational, technical, and financial capability) of 
competing effectively in the manufacture and sale of critical care 
monitors and orthopedic-vascular C-arms, respectively, in the United 
States.
    The proposed Final Judgment is thus designed to maintain the 
present level of competition in both the critical care monitor and 
orthopedic-vascular C-arm markets by replacing the competitor 
eliminated in each of these markets as a result of the acquisition with 
equally viable and effective competitors. It accomplishes this goal by, 
among other things: (1) Requiring prompt divestitures so that the 
viability of the Spacelabs and Ziehm businesses is not harmed by an 
unreasonable delay in accomplishing those divestitures; (2) requiring 
divestitures of the tangible and intangible assets that make up each of 
the divested businesses so that the acquirers have the assets needed to 
make Spacelabs and Ziehm viable, competitive businesses; and (3) 
ensuring that the acquirers of Spacelabs and Ziehm have the intent and 
capability of competing effectively in the manufacture and sale of 
critical care monitors and orthopedic-vascular C-arms, respectively, in 
the United States.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in a federal court to recover three times 
the damages the person has suffered, as well as costs and reasonable 
attorney's fees. Entry of the proposed Final Judgment will neither 
impair nor assist the bringing of any private antitrust damage action. 
Under provisions of Section 5(a) of the Clayton Act, 15 U.S.C. Sec.  
16(a), the proposed Final Judgment has no prima facie effect in any 
subsequent lawsuit that any private party may bring against the 
defendants.

V. Procedures Available for Modification of the Proposed Final Judgment

    The United States and the defendants have stipulated that the 
proposed Final Judgment may be entered by the Court after compliance 
with the provisions of the Tunney Act, provided that the United States 
has not withdrawn its consent. The Tunney Act conditions entry upon the 
Court's determination that the proposed Final Judgement is in the 
public interest.

[[Page 64123]]

    The Tunney Act provides a period of at least 60 days preceding the 
effective date of the proposed Final Judgment within which any person 
may submit to the United States written comments regarding the proposed 
Final Judgment. Any person who wishes to comment should do so within 60 
days of the date of publication of this Competitive Impact Statement in 
the Federal Register. The United States will evaluate and respond to 
the comments. All comments will be given due consideration by the 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final Judgment at any time prior to entry. The comments 
and the response of the United States will be filed with the Court and 
published in the Federal Register. Written comments should be submitted 
to: James R. Wade, Chief, Litigation III Section, Antitrust Division, 
United States Department of Justice, 325 Seventh Street, NW., Suite 
300, Washington, DC 20530.
    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the Court 
of any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to The Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against the defendants. The 
United States could have continued the litigation and sought 
preliminary and permanent injunctions against GE's acquisition of 
Instrumentarium. However, the United States is satisfied that the 
divestiture of the assets specified in the proposed Final Judgment will 
preserve competition in the production and sale of critical care 
monitors and orthopedic-vascular C-arms. The divestitures will preserve 
the structure of the markets that existed prior to the acquisition and 
will preserve the existence of independent competitors.

VII. Standard of Review Under the Tunney Act for the Proposed Final 
Judgment

    The Tunney Act requires that proposed consent judgments in 
antitrust cases brought by the United States be subject to a 60-day 
comment period, after which the Court shall determine whether entry of 
the proposed Final Judgment ``is in the public interest.'' In making 
that determination, the Court may consider:

    (1) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) The impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C. 16(e). As the United States Court of Appeals for the D.C. 
Circuit held, this statute permits a court to consider, among other 
things, the relationship between the remedy secured and the specific 
allegations set forth in the government's complaint, whether the decree 
is sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See United 
States v. Microsoft, 56 F.3d 1448, 1461-62 (D.C. Cir. 1995).
    In conducting this inquiry, ``[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),\1\ Rather,
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    \1\ See also United States v. Gillette Co., 406 F. Supp. 713, 
716 (D. Mass. 1975) (recognizing it was not the court's duty to 
settle; rather, the court must only answer ``whether the settlement 
achieved (was] within the reaches of the public interest''). 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. Although the Act authorizes the use of 
additional procedures, 15 U.S.C. 16(f), those procedures are 
discretionary. A court need not invoke any of them unless it 
believes that the comments have raised significant issues and that 
further proceedings would aid the court in resolving those issues. 
See H.R. Rep. No. 93-1463, 93rd Cong., 2d Sess. 8-9 (1974), 
reprinted in 1974 U.S.C.C.A.N. 6535, 6538.

[a]bsent a showing of corrupt failure of the government to discharge 
its duty, the Court, in making its public interest finding, should * 
* * carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
---------------------------------------------------------------------------
circumstances.

United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ] 
61,508, at 71,980 (W.D. Mo. May 17, 1977).
    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462 (9th Cir. 1988) (citing United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d 
at 1460-62. Case law requires 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 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).\2\
---------------------------------------------------------------------------

    \2\ CF. BNS, 858 F.2d at 463 (holding that the court's 
``ultimate authority under the [Tunney] Act is limited to approving 
or disapproving the consent decree''); Gillette, 406 F. Supp. at 716 
(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' ''
---------------------------------------------------------------------------

    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetitive effect of a particular practice or whether it mandates 
certainty of free competition in the future. Court approval of a final 
judgment requires a standard more flexible and less strict than the 
standard required for a finding of liability. ``[A] proposed decree 
must be approved even if it falls short of the remedy the court would 
impose on its own, as long as it falls within the range of 
acceptability or is `within the reaches of public interest.''' United 
States v. Am. Tel. & Tel. Co., 552F. Supp. 131, 151 (D.D.C. 1982) 
(citations omitted) (quoting Gillette, 406 F. Supp. at 716), 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).
    Moreover, the Court's role under the Tunney Act is limited to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its Complaint, and does not authorize the Court 
to ``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459. Because the ``court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the first 
place,'' it follows that

[[Page 64124]]

``the court is only authorized to review the decree itself,'' and not 
to ``effectively redraft the complaint'' to inquire into other matters 
that the United States might have but did not pursue. Id. at 1459-60.

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the Tunney Act that were considered by the United States in 
formulating the proposed Final Judgment.

    Dated: October 30, 2003.

    Respectfully submitted,

Joan Hogan, DC Bar No. 451240,
Trial Attorney, Department of Justice, Antitrust Division, 
Litigation III Section, 325 Seventh Street, NW., Suite 300, 
Washington, DC 20530, (202) 616-5937.

Certificate of Service

    The undersigned certifies that a copy of the Competitive Impact 
Statement was served on the following counsel by electronic mail in PDF 
format or hand delivery, this 30th day of October 2003:

Deborah L. Feinstein, Arnold & Porter, 555 Twelfth Street, NW., 
Washington, DC 20004-1206
Wayne Dale Collins, Shearman & Sterling, 599 Lexington Avenue, New 
York, NY 10022

Joan Hogan, D.C. Bar No. 451240,
Department of Justice, Antitrust Division, 325 Seventh Street, NW., 
Suite 300, Washington, DC 20530.

[FR Doc. 03-28282 Filed 11-10-03; 8:45 am]

BILLING CODE 4410-11-M