In the Matter of Automatic Data Processing, Inc. - D9282

UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

COMMISSIONERS:: Robert Pitofsky, Chairman; Mary L. Azcuenaga; Roscoe B. Starek, III; Sheila F. Anthony

In the Matter of

Automatic Data Processing, Inc., a corporation.

DECISION AND ORDER

Docket No. 9282

The Commission having heretofore issued its complaint charging the respondent named in the caption hereof with violation of Section 5 of the Federal Trade Commission Act, as amended, and Section 7 of the Clayton Act, as amended, and the respondent having been served with a copy of that complaint, together with a notice of contemplated relief; and

The respondent, its attorney, and counsel for the Commission having thereafter executed an agreement containing a consent order, and admission by the respondent of all of the jurisdictional facts set forth in the complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, or that the facts as alleged in such complaint, other than jurisdictional facts, are true and waivers and other provisions as required by the Commission's Rules; and

The Secretary of the Commission having thereafter withdrawn this matter from adjudication in accordance with § 3.25(b) of its Rules; and

The Commission having considered the matter and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, and having duly considered the comments filed thereafter by interested persons pursuant to § 3.25(f) of its Rules, now in further conformity with the procedure prescribed in

§ 3.25(f) of its Rules, the Commission hereby makes the following jurisdictional findings and enters the following order:

1. Respondent Automatic Data Processing, Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Delaware with its office and principal place of business located at One ADP Boulevard, Roseland, New Jersey 07068.
: 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of respondent, and the proceeding is in the public interest.

ORDER

IT IS ORDERED that, as used in this Order, the following definitions shall apply:

A. "Respondent" or "ADP" means Automatic Data Processing, Inc., its directors, officers, employees, agents and representatives, predecessors, successors and assigns; its subsidiaries, divisions, groups and affiliates controlled by ADP, and the respective directors, officers, employees, agents, and representatives, successors, and assigns of each.

B. "Parts Services" means the Parts Services Division of ADP Claims Solutions Group, Inc., a subsidiary of ADP.

C. "Commission" means the Federal Trade Commission.

D. "Acquisition" means the April 1, 1995, acquisition by ADP of assets from AutoInfo, Inc., including salvage yard management systems, communications systems and networks, automotive interchange, inventory data collection contracts and other assets.

E. The "AutoInfo Assets" means the AutoInfo Interchange, the AutoInfo YMS, the AutoInfo Communication Systems, AutoInfo Parts Locator and the ARA Database Collector, and a non-exclusive, paid-up license to all research and development, by or for Parts Services, since April 1, 1995, through the date of divestiture for any new yard management system or communication system.

F. The "Hollander Interchange" means the numeric indexing system developed, maintained and sold or licensed originally by Hollander, Inc. and subsequently by ADP and used to identify automotive parts and assemblies and their ability to be interchanged and includes all updates prepared by or for ADP up to the date of divestiture pursuant to Paragraph II or Paragraph III of this Order, including but not limited to any interchange developed or updated by ADP since the Acquisition from then-existing Hollander Interchange and AutoInfo Interchange data.

G. The "AutoInfo Interchange" means the numeric indexing system owned by ADP, but previously developed, maintained and sold by AutoInfo, used to identify automotive parts and assemblies and their ability to be interchanged and includes all updates to the AutoInfo Interchange prepared by or for AutoInfo up to the date of the Acquisition or by or for ADP up to the date of divestiture pursuant to Paragraph II or Paragraph III of this Order, and includes supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange.

H. "AutoInfo YMS" means Checkmate, Checkmate Jr., Classic, the BidPad, PartPad, accounting and management modules, and any other salvage yard management systems developed, maintained, sold or licensed by AutoInfo, Inc., and subsequently by ADP, including source codes, application program interfaces, data formats and communication protocols, customer, supplier and service contracts, goodwill, research and development, and other tangible and intangible assets relating thereto.

I. "AutoInfo Communication Systems" means the ORION, ORION/RTS, AutoMatch, AutoXchange, and ORION Exchange communication systems used for the buying and selling of used auto parts and assemblies, including source codes, application program interfaces, data formats and communication protocols, customer, supplier and service contracts, goodwill, research and development and other tangible and intangible assets relating thereto, and Respondent's rights and obligations with respect to current and former subscribers to CalQwik.

J. "ARA" means the Automotive Recyclers Association.

K. "ARA Database Agreement" means the February 27, 1996, "Amended and Restated Agreement Regarding the ARA International Database by and between Automotive Recyclers Association and ADP Claims Solutions Group, Inc." and any addenda thereto.

L. "ARA Database Collector" means the rights and obligations to act as the manager and operator of the Automotive Recyclers Association International Database pursuant to the ARA Database Agreement.

M. "Compass" means the Compass Communications Network, the group of voice communication, data, and buying networks to the automobile salvage industry formerly owned by AutoInfo, and customer, supplier and service contracts, goodwill, research and development and other tangible and intangible assets used in the development, maintenance, sale or licensing of the Compass communication systems.

N. "AutoInfo Parts Locator" means the AutoInfo Parts Locator, a computerized on-line telephone service that is offered to the automobile casualty insurance industry, which uses ORION/RTS, and software that provides access to the ORION/RTS database, customer, supplier and service contracts, customer lists, goodwill, research and development and other tangible and intangible assets used in the development, maintenance, sale or licensing of the AutoInfo Parts Locator.

O. "HYMS" means the Hollander Yard Management System, originally developed, maintained and sold or licensed by Hollander, Inc., and subsequently developed, maintained and sold or licensed by ADP.

P. "EDEN" means the Electronic Data Exchange Network, a communications and database inventory-search system used by salvage yards for the buying and selling of used automobile parts and assemblies.

Q. "Trustee Assets" means the AutoInfo Assets and Compass.

R. "Acquirer" means the acquirer or acquirers of the AutoInfo Assets pursuant to Paragraph II or the Trustee Assets pursuant to Paragraph III of this Order.

A. Respondent shall divest, absolutely and in good faith, (1) within one hundred fifty (150) days after the date the Agreement Containing Consent Order is accepted for public comment by the Commission, or (2) within sixty (60) days after the date on which this Order becomes final, whichever date is later, the AutoInfo Assets as an on-going business to the Acquirer at the time of divestiture. Respondent shall divest the AutoInfo Assets only to an acquirer or acquirers that receive the prior approval of the Commission and only in a manner that receives the prior approval of the Commission. The purpose of the divestiture of the AutoInfo Assets is to maintain the AutoInfo Assets as on-going businesses, to continue use of the AutoInfo Assets in the same businesses in which the AutoInfo Assets were engaged at the time of the Acquisition in competition with ADP, and to remedy the lessening of competition resulting from the Acquisition as alleged in the Commission's complaint.

PROVIDED, HOWEVER, Respondent may, in lieu of divesting its rights as the ARA Database Collector to an Acquirer pursuant to this Paragraph II.A. and in satisfaction of its obligations to divest its rights as the ARA Database Collector under this Paragraph II.A., terminate in accordance with all of the provisions specified in the ARA Database Agreement its role as the ARA Database Collector.

PROVIDED, HOWEVER, Respondent shall grant to any entity that becomes the ARA Database Collector, if such entity is not the Acquirer, a royalty-free license to the Hollander Interchange to use solely for purposes of collecting and transmitting data and managing and operating a database for the ARA pursuant to a data collection agreement with the ARA.

PROVIDED, HOWEVER, Respondent may retain a non-exclusive, paid-up license to the AutoInfo Interchange as of the date of the divestiture, excluding supplier and service contracts, research and development, and other tangible and intangible assets used in the development and maintenance of the AutoInfo Interchange.

B. Pending divestiture of the AutoInfo Assets, Respondent shall take such actions as are necessary to maintain the viability, competitiveness and marketability of the AutoInfo Assets and the Trustee Assets and to prevent the destruction, removal, wasting, deterioration, or impairment of any of the AutoInfo Assets and the Trustee Assets except for ordinary wear and tear.

C. Respondent shall comply with the terms of the Asset Maintenance Agreement, which is attached hereto and incorporated herein.

III

IT IS FURTHER ORDERED that:

A. If Respondent has not divested the AutoInfo Assets pursuant to and within the time required by Paragraph II.A., the Commission may appoint a trustee to divest the Trustee Assets. The trustee shall have all rights and powers necessary to permit the trustee to effect the divestiture of the Trustee Assets in order to assure the viability, competitiveness, and marketability of the Trustee Assets and to accomplish the remedial purposes of this Order. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent to comply with this Order.

PROVIDED, HOWEVER, the trustee may, at his or her option and in satisfaction of his or her obligations under this Paragraph III.A., require ADP to terminate its role as the ARA Database Collector pursuant to the ARA Database Agreement.

B. If a trustee is appointed by the Commission or a court pursuant to this Order, Respondent shall consent to the following terms and conditions regarding the trustee's powers, duties, authority, and responsibilities:

1. The Commission shall select the trustee, subject to the consent of Respondent, which consent shall not be unreasonably withheld. The trustee shall be a person with experience and expertise in acquisitions and divestitures. If Respondent has not opposed, in writing, including the reasons for opposing, the selection of any proposed trustee within ten (10) days after written notice by the staff of the Commission to Respondent of the identity of any proposed trustee, Respondent shall be deemed to have consented to the selection of the proposed trustee.

2. Subject to the prior approval of the Commission, the trustee shall have the exclusive power and authority to divest the Trustee Assets.

3. Within ten (10) days after appointment of the trustee, Respondent shall execute a trust agreement that, subject to the prior approval of the Commission and, in the case of a court-appointed trustee, of the court, transfers to the trustee all rights and powers necessary to permit the trustee to effect the divestiture required by this Order.

4. The trustee shall have twelve (12) months from the date the Commission approves the trust agreement described in Paragraph III.B.3. to accomplish the divestiture, which shall be subject to the prior approval of the Commission. If, however, at the end of the twelve-month period, the trustee has submitted a plan of divestiture or believes that divestiture can be achieved within a reasonable time, the divestiture period may be extended by the Commission, or, in the case of a court-appointed trustee, by the court; provided, however, the Commission may extend this period only two (2) times.

5. The trustee shall have full and complete access to the personnel, books, records and facilities related to the Trustee Assets and to any other relevant information, as the trustee may request. Respondent shall develop such financial or other information as such trustee may reasonably request and shall cooperate with the trustee. Respondent shall take no action to interfere with or impede the trustee's accomplishment of the divestitures. Any delays in divestiture caused by Respondent shall extend the time for divestiture under this Paragraph in an amount equal to the delay, as determined by the Commission or, for a court-appointed trustee, by the court.

6. The trustee shall use his or her best efforts to negotiate the most favorable price and terms available in each contract that is submitted to the Commission, subject to Respondent's absolute and unconditional obligation to divest at no minimum price. The divestiture shall be made in the manner and to the acquirer or acquirers as set out in Paragraph II of this Order; provided, however, if the trustee receives bona fide offers from more than one acquiring entity, and if the Commission determines to approve more than one such acquiring entity, the trustee shall divest to the acquiring entity or entities selected by Respondent from among those approved by the Commission.

7. The trustee shall serve, without bond or other security, at the cost and expense of Respondent, on such reasonable and customary terms and conditions as the Commission or a court may set. The trustee shall have the authority to employ, at the cost and expense of Respondent, such consultants, accountants, attorneys, investment bankers, business brokers, appraisers, and other representatives and assistants as are necessary to carry out the trustee's duties and responsibilities. The trustee shall account for all monies derived from the divestiture and all expenses incurred. After approval by the Commission and, in the case of a court-appointed trustee, by the court, of the account of the trustee, including fees for his or her services, all remaining monies shall be paid at the direction of the Respondent, and the trustee's power shall be terminated. The trustee's compensation shall be based at least in significant part on a commission arrangement contingent on the trustee's divesting the Trustee Assets.

8. Respondent shall indemnify the trustee and hold the trustee harmless against any losses, claims, damages, liabilities, or expenses arising out of, or in connection with, the performance of the trustee's duties, including all reasonable fees of counsel and other expenses incurred in connection with the preparation for, or defense of any claim, whether or not resulting in any liability, except to the extent that such liabilities, losses, damages, claims, or expenses result from misfeasance, gross negligence, willful or wanton acts, or bad faith by the trustee.

9. If the trustee ceases to act or fails to act diligently, a substitute trustee shall be appointed in the same manner as provided in Paragraph III.A. of this Order.

10. The Commission or, in the case of a court-appointed trustee, the court, may on its own initiative or at the request of the trustee issue such additional orders or directions as may be necessary or appropriate to accomplish the divestiture required by this Order.

11. In the event that the Trustee determines that he or she is unable to divest the Trustee Assets in a manner consistent with the Commission's purpose in Paragraph II, the trustee may divest additional ancillary assets of Respondent related to the Trustee Assets and effect such arrangements as are necessary to satisfy the requirements of the Order.

12. The trustee shall have no obligation or authority to operate or maintain the Trustee Assets.

13. The trustee shall report in writing to Respondent and the Commission every thirty (30) days concerning the trustee's efforts to accomplish divestiture.

IT IS FURTHER ORDERED that Respondent shall:

Grant to the Acquirer, at the time of the divestiture, a paid-up, perpetual, non-exclusive license, with no continuing royalties and with unlimited rights to sub-license, to the Hollander Interchange and to each update of the Hollander Interchange, including but not limited to (alpha) and (beta) releases of any updates, prepared by or for Respondent for a period of three (3) years starting at the date of divestiture, or for such longer period and on such terms as may be agreed by the Acquirer and Respondent, and the right to use the name "Hollander Interchange" in reference to the Hollander Interchange and updates prepared by or for the Respondent pursuant to this Paragraph IV.A. Respondent shall provide such updates to the Acquirer no later than when it first provides each such update to its salvage yard customers; and
Provide to the Acquirer, at the time of the divestiture, a copy of, and non-exclusive license to, all computer programs and databases, and a list of and sources for all information, used by Respondent to update the Hollander Interchange.

PROVIDED, HOWEVER, Respondent may include in the license entered pursuant to this Paragraph IV a provision preventing or limiting the Acquirer from reproducing and selling the copyright protected format of Respondent's printed, book form of the Hollander Interchange, but Respondent shall not otherwise restrict the Acquirer from producing and selling the Hollander Interchange in any form, including in printed, book form.

IT IS FURTHER ORDERED that Respondent shall, for a period of twelve (12) months from the date of the divestiture pursuant to Paragraph II or Paragraph III of this Order, allow, without penalty, any customer who entered into a contract for HYMS or EDEN between April 1, 1995 and the date of divestiture, to switch from HYMS to an AutoInfo YMS or any yard management system licensed or sold by the Acquirer and/or switch from EDEN to the AutoInfo Communication Systems or to any communications systems licensed or sold by the Acquirer.

IT IS FURTHER ORDERED that:

A. Respondent shall not prevent, prohibit or restrict or threaten to prevent, prohibit or restrict any person who was employed by Respondent in Parts Services, or formerly by AutoInfo, Inc., at any time since January 1, 1995, from working for the Acquirer and shall cooperate with the Acquirer in effecting transfer to the Acquirer of any such employee who chooses to transfer to the Acquirer. Respondent shall not offer any incentive to any such employees to decline employment with the Acquirer or to accept other employment by ADP; and shall remove any non-compete or confidentiality restrictions with respect to employment of such employees by the Acquirer. Respondent shall pay, for the benefit of such employees transferring to the Acquirer, accrued bonuses, vested pensions and other accrued benefits.

PROVIDED, HOWEVER, Respondent may match or exceed the Acquirer's terms for employment offered by the Acquirer to Respondent's employees who were not employees of AutoInfo, Inc. as of January 1, 1995.

PROVIDED, HOWEVER, nothing in this Paragraph shall restrict Respondent from protecting or asserting Respondent's attorney client or work product privileges.

B. For a period of twelve (12) months following the date of divestiture pursuant to Paragraph II or Paragraph III, upon reasonable notice from the Acquirer, Respondent shall provide, at reasonable times and levels, such personnel, information, technical assistance, advice and training to the Acquirer as are necessary to transfer the AutoInfo Assets or the Trustee Assets, as applicable, and to facilitate the Acquirer in developing, maintaining and conducting the AutoInfo Assets as viable, on-going businesses. Such assistance shall include reasonable consultation with knowledgeable employees of ADP to satisfy the Acquirer's management that its personnel are appropriately trained to the extent ADP has the ability to do so after the divestiture is complete. Respondent shall not charge the Acquirer a rate more than its own direct cost for providing such assistance.; C. No later than the date of the execution of a divestiture agreement between Respondent and the proposed Acquirer, Respondent shall provide the proposed Acquirer with a complete list of all non-clerical employees of ADP who have been involved in the development, production, distribution, or sale of the Hollander Interchange, and of the AutoInfo Assets or of the Trustee Assets at any time during the period from January 1, 1994, until the date of the divestiture agreement. Such list shall state each such individual's name, position, address and telephone number. If the person is no longer employed by Respondent, Respondent shall provide all such information as it has available.
: D. Respondent shall make available to any person, on whose behalf Respondent has filed an application to divest, for inspection, the personnel files and other documentation relating to the individuals identified in Paragraph VI.C. of this Order to the extent permissible under applicable laws and with the permission of such individuals. For a period of six (6) months following the divestiture, Respondent shall further provide the Acquirer with an opportunity to interview such individuals identified in Paragraph VI.C. of this Order and negotiate employment with any of them.; E. For a period of one (1) year commencing on the date of any individual's employment by the Acquirer pursuant to this Paragraph VI, Respondent shall not offer employment to such individual, unless such individual is no longer employed by the Acquirer.

VII

IT IS FURTHER ORDERED that, for a period of ten (10) years following the date of divestiture, Respondent shall not prohibit, prevent or restrict, or threaten to prohibit, prevent, restrict or enforce any contractual arrangements that have the effect of prohibiting, preventing, or restricting any customer or licensee of the Hollander Interchange from accessing, connecting with, or communicating data through, the products of the Acquirer or its licensees, or the ARA Data Collector, including but not limited to the AutoInfo Communication Systems or any communication system licensed or sold by the Acquirer or its licensees, the AutoInfo YMS or any yard management systems licensed or sold by the Acquirer or its licensees, or data collection systems provided by the Acquirer or its licensees. Respondent shall provide to the Acquirer, for use by Acquirer and its licensees, specifications and information reasonably necessary for the Acquirer and its licensees to create interfaces with Respondent's yard management and communications systems and a paid-up, perpetual, non-exclusive license to the Acquirer and its licensees to use the Hollander Interchange and future updates of the Hollander Interchange in connection with collecting or searching inventory data.

PROVIDED, HOWEVER, nothing in this Paragraph VII shall require Respondent to extend to the Acquirer or its licensees rights to sell or distribute updates of the Hollander Interchange other than the rights specified in Paragraphs II or IV.A. of this Order.

PROVIDED, HOWEVER, nothing in this Paragraph VII shall require Respondent to create or modify application program interfaces or to alter Respondent's existing products.

PROVIDED, HOWEVER, nothing in this Paragraph VII shall prohibit the Respondent from restricting transmission of Hollander Interchange numbers to persons other than the Acquirer or its licensees.

PROVIDED, HOWEVER, nothing in this Paragraph VII shall require Respondent to repair any customer's HYMS or EDEN product in the event such product's functionality is damaged by the use of any product of the Acquirer or its licensees.

VIII

IT IS FURTHER ORDERED that:

A. For a period of ten (10) years from the date of the divestiture of the AutoInfo Assets or the Trustee Assets, Respondent shall not, without the prior approval of the Commission, directly or indirectly, through subsidiaries, partnerships, or otherwise, acquire all or any part of the AutoInfo Assets, if divested pursuant to Paragraph II, or Trustee Assets, if divested pursuant to Paragraph III; and

B. For a period of ten (10) years from the date this Order becomes final, Respondent shall not, without prior notification to the Commission, directly or indirectly:

1. Acquire any stock, share capital, equity, or other interest in any concern, corporate or non-corporate, engaged in the development or sale of yard management systems or communications systems used by automobile salvage yards within the year preceding such acquisition; provided, however, that an acquisition of such stock, share capital, equity or other interest will be exempt from the requirements of this paragraph if it is solely for the purpose of investment and Respondent will hold no more than five (5) percent of the shares of any class of security; or

2. Acquire any assets used or previously used (and still suitable for use) in the development or sale of yard management systems or communications systems used by automobile salvage yards provided, however, that such an acquisition will be exempt from the requirements of this paragraph if the purchase price is less than $1,500,000 (one million five hundred thousand dollars).

The prior notifications required by this paragraph shall be given on the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended (hereinafter referred to as "the Notification"), and shall be prepared, transmitted and kept confidential in accordance with the requirements of that part, except that: no filing fee will be required for any such notification; notification shall be filed with the Secretary of the Commission and a copy shall be delivered to the Bureau of Competition; notification need not be made to the United States Department of Justice; and notification is required only of Respondent and not of any other party to the transaction. Respondent shall provide the Notification to the Commission at least thirty (30) days prior to the consummation of any such transaction (hereinafter referred to as the "initial waiting period"). If, within the initial waiting period, the Commission or its staff makes a written request for additional information and documentary material, Respondent shall not consummate the transaction until at least twenty (20) days after complying with such request for additional information and documentary material. Early termination of the waiting periods in this paragraph may, where appropriate, be granted by letter from the Bureau of Competition. Notwithstanding, prior notification shall not be required by this paragraph for a transaction for which notification is required to be made, and has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C. § 18a.

PROVIDED, HOWEVER, that this Paragraph VIII shall not apply to the acquisition of products or services in the ordinary course of business.

IT IS FURTHER ORDERED that:

A. Within thirty (30) days after the date this Order becomes final and every thirty (30) days thereafter until Respondent has fully complied with the provisions of Paragraphs II or III of this Order, Respondent shall submit to the Commission a verified written report setting forth in detail the manner and form in which it intends to comply, is complying, and has complied with Paragraphs II and III of this Order. Respondent shall include in its compliance reports, among other things that are required from time to time, a full description of the efforts being made to comply with Paragraphs II and III of the Order, including a description of all substantive contacts or negotiations for the divestiture and the identity of all parties contacted. Respondent shall include in its compliance reports copies of all written communications to and from such parties, all internal memoranda, and all reports and recommendations concerning divestiture.

B. One year (1) from the date of the divestiture of the AutoInfo Assets pursuant to Paragraph II or the Trustee Assets pursuant to Paragraph III, and annually thereafter until the obligations of Paragraph VIII have expired, and at other times as the Commission may require, Respondent shall file a verified written report with the Commission setting forth in detail the manner and form in which it has complied and is complying with Paragraphs IV, V, VI, VII and VIII of this Order.

IT IS FURTHER ORDERED that Respondent shall notify the Commission at least thirty (30) days prior to any proposed change in the corporate structure or status of Respondent such as dissolution, assignment, sale resulting in the emergence of a successor corporation, or the creation or dissolution of subsidiaries or any other change in the corporation that may affect compliance obligations arising out of the Order.

IT IS FURTHER ORDERED that, for the purpose of determining or securing compliance with this Order, Respondent shall permit any duly authorized representative of the Commission:

A. Access, during office hours and in the presence of counsel, to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other records and documents in the possession or under the control of Respondent relating to any matters contained in this Order; and

B. Upon five days' notice to Respondent and without restraint or interference from it, to interview officers, directors, or employees of Respondent.

XII

IT IS FURTHER ORDERED that this Order shall terminate on October 20, 2017.

By the Commission.

Donald S. Clark
Secretary

ISSUED: October 20, 1997