[Federal Register Volume 78, Number 14 (Tuesday, January 22, 2013)]
[Notices]
[Pages 4439-4445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01084]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
United States v. Oklahoma State Chiropractic Independent
Physicians Association and Larry M. Bridges; 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,
Stipulation, and Competitive Impact Statement have been filed with the
United States District Court for the Northern District of Oklahoma in
United States of America v. Oklahoma State Chiropractic Independent
Physicians Association and Larry M. Bridges, Civil Case No. 13-CV-21-
TCK-TLW. On January 10, 2013, the United States filed a Complaint
alleging that the Defendants and other competing chiropractors in
Oklahoma formed a conspiracy to gain more favorable fees and other
contractual terms by agreeing to coordinate their actions, in violation
of Section 1 of the Sherman Act, 15 U.S.C. 1. The proposed Final
Judgment, filed at the same time as the Complaint, enjoins the
Defendants from establishing prices or terms for chiropractic services.
Copies of the Complaint, proposed Final Judgment, and Competitive
Impact Statement are available for inspection at the Department of
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth
Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481),
on the Department of Justice's Web site at http://www.justice.gov/atr,
and at the Office of the Clerk of the United States District Court for
the Northern District of Oklahoma. Copies of these materials may be
obtained from the Antitrust Division upon request and payment of the
copying fee set by Department of Justice regulations.
Public comment is invited within 60 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 Peter J. Mucchetti, Chief, Litigation I Section, Antitrust Division,
U.S. Department of Justice, 450 Fifth Street NW., Suite 4100,
Washington, DC 20530 (telephone: 202-307-0001).
Patricia A. Brink,
Director of Civil Enforcement.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA
(1) UNITED STATES OF AMERICA,
Plaintiff,
v.
(1) OKLAHOMA STATE CHIROPRACTIC INDEPENDENT PHYSICIANS ASSOCIATION and
(2) LARRY M. BRIDGES,
Defendants.
Case No 13-CV-21-TCK-TLW
COMPLAINT
The United States of America, acting under the direction of the
Attorney General of the United States, brings this civil antitrust
action against Defendants Oklahoma State Chiropractic Independent
Physicians Association (``OSCIPA'') and Larry M. Bridges to obtain
equitable and other relief to prevent and remedy violations of
Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. Plaintiff alleges:
I. NATURE OF THE ACTION
1. Defendant OSCIPA is an association of approximately 350
chiropractors who compete with each other in the sale of
chiropractic services. OSCIPA's members comprise approximately 45
percent of all chiropractors practicing in Oklahoma. Defendant
Bridges is OSCIPA's executive director and manages all of OSCIPA's
activities, including OSCIPA's contracting with health insurers,
health-care provider rental networks, and other payers (collectively
``payers''), and handles many of OSCIPA's communications with its
members.
2. Since at least 1997, all of OSCIPA's members have entered
into membership agreements with OSCIPA that give OSCIPA the right to
collectively negotiate rates on its members' behalf with payers.
Since at least 2004, OSCIPA's membership agreements require its
members to suspend all of their pre-existing contracts with those
payers with which OSCIPA negotiates contracts.
3. From 2004 to 2011, on behalf of all OSCIPA's members,
Defendants negotiated contracts with at least seven payers that set
the prices and price-related terms between OSCIPA's members and
those payers. Defendants' conduct has raised the prices of
chiropractic services and decreased the availability of chiropractic
services in Oklahoma.
4. The United States, through this suit, asks this Court to
declare Defendants' conduct illegal and to enter injunctive relief
to prevent further injury to consumers of chiropractic services.
II. DEFENDANTS
5. OSCIPA is a corporation organized and doing business under
the laws of the State of Oklahoma, with its principal place of
business in Tulsa.
6. Larry M. Bridges has been employed by OSCIPA as its executive
director since at least 1999. As alleged below, Bridges negotiated
on behalf of OSCIPA's members at least seven contracts with payers,
and Bridges signed several of those contracts on OSCIPA's behalf.
III. JURISDICTION, VENUE, AND INTERSTATE COMMERCE
7. Plaintiff brings this action pursuant to Section 4 of the
Sherman Act, 15 U.S.C. Sec. 4, to obtain equitable and other relief
to prevent and restrain Defendants' violations of Section 1 of the
Sherman Act, 15 U.S.C. Sec. 1.
8. The Court has subject-matter jurisdiction over this action
under Section 4 of the Sherman Act, 15 U.S.C. Sec. 4, and 28 U.S.C.
Sec. Sec. 1331, 1337(a), and 1345.
9. Defendants have consented to personal jurisdiction and venue
in this District. The Court also has personal jurisdiction over each
Defendant, and venue is proper in the Northern District of Oklahoma
under Section 12 of the Clayton Act, 15 U.S.C. Sec. 22, and 28
U.S.C. Sec. 1391(b), because Defendants are found, have transacted
business, and committed acts in furtherance of the alleged
violations in this District. A substantial part of the events giving
rise to Plaintiff's claims occurred in this District.
10. Defendants engage in interstate commerce, and their
activities--including the conduct alleged in this Complaint--
substantially affect interstate commerce. Defendants' conduct
increased prices for chiropractic services that some non-Oklahoma
residents traveled to Oklahoma to purchase and consume, and which a
number of payers paid for across state lines.
IV. OTHER CONSPIRATORS
11. Various persons not named as defendants in this action have
participated as conspirators with Defendants in the offenses alleged
and have performed acts and made statements in furtherance of the
alleged conspiracies.
[[Page 4440]]
V. DEFENDANTS' ILLEGAL CONDUCT
12. Since at least 2004, OSCIPA has required that chiropractors
joining the association enter into a membership agreement (called a
``Participating Provider Agreement'') that (a) designates OSCIPA as
the party who will ``[c]ontract with [the] Third-Party Payor or
Network;'' (b) ``suspends any existing agreement to which the
[chiropractor] is a party with any Third-Party Payor or Network;''
(c) specifies a reimbursement floor that the chiropractor must
accept; and (d) prohibits member chiropractors from offering payers
incentives or rebates, such as waiving deductibles or co-pays.
13. For years, OSCIPA's stated goal has been to leverage its
contracts with a large share of Oklahoma chiropractors in contract
negotiations with payers to increase payments to its member
chiropractors. Until shortly after the Department of Justice started
to investigate the Defendants' conduct, OSCIPA's Web site stated
that ``OSCIPA concentrates the power of [its] state chiropractic
physicians into one group. Through OSCIPA, a chiropractor can
maintain an individual practice while associating with other
chiropractors to increase contract-negotiating power.''
14. From 2004 to 2011, Defendants OSCIPA and Bridges negotiated
at least seven contracts with payers that fix the prices and other
price-related terms for all OSCIPA members dealing with those
payers. The payers are: Aetna, Ancillary Care Services, Community
Care, Coventry, FirstHealth, Global Health, and Preferred Community
Choice. In these negotiations, Defendants, acting on behalf of
OSCIPA's members, made proposals and counterproposals on price and
price-related terms, accepted and rejected offers, and entered into
payer contracts that contractually bound all of OSCIPA members.
15. Defendants' practice of negotiating contracts on behalf of
OSCIPA's members has increased prices for chiropractic services in
Oklahoma.
VI. NO INTEGRATION
16. Defendants' negotiation of contracts on behalf of OSCIPA's
members is not ancillary to any procompetitive purpose of OSCIPA or
reasonably necessary to achieve any efficiencies. Other than OSCIPA
members who are part of the same practice groups, OSCIPA members do
not share any financial risk in providing chiropractic services, do
not significantly collaborate in a program to monitor and modify
their clinical practice patterns to control costs or ensure quality,
do not integrate their delivery of care to patients, and do not
otherwise integrate their activities to produce significant
efficiencies.
VII. VIOLATION ALLEGED
17. Plaintiff reiterates the allegations contained in paragraphs
1 to 16. Each of the contracts that Defendants negotiated with
payers from 2004 to 2011 on behalf of competing chiropractors
violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1.
Defendants' actions raised prices for the sale of chiropractic
services and decreased the availability of chiropractic services.
VIII. REQUEST FOR RELIEF
18. To remedy these illegal acts, the United States of America
asks that the Court:
(a) adjudge and decree that Defendants entered into unlawful
contracts, combinations, or conspiracies in unreasonable restraint
of interstate trade and commerce in violation of Section 1 of the
Sherman Act, 15 U.S.C. Sec. 1;
(b) enjoin Defendants; their successors, assigns, subsidiaries,
divisions, groups, partnerships, joint ventures, and each entity
over which they have control; their directors, officers, managers,
agents, representatives, and employees; and all other persons acting
or claiming to act in active concert or participation with one or
more of them, from
i. continuing, maintaining, or renewing in any manner, directly
or indirectly, the conduct alleged herein or from engaging in any
other conduct, combination, conspiracy, agreement, or other
arrangement having the same effect as the alleged violations or that
otherwise violates Section 1 of the Sherman Act, 15 U.S.C. Sec. 1,
through price fixing of chiropractic services, or collective
negotiation on behalf of competing independent chiropractors or
chiropractor groups; and
ii. directly or indirectly communicating with any chiropractor
or payer about any actual or proposed payer contract;
(c) award the United States its costs in this action; and
(d) award such other and further relief, including equitable
monetary relief, as may be appropriate and the Court deems just and
proper.
DATE: January 10, 2013
For Plaintiff United States of America:
------/s/
-----------------------------------------------------------------------
Willaim J. Baer
Assistant Attorney General Antitrust Division
------/s/
-----------------------------------------------------------------------
Leslie C. Overton
Deputy Assistant Attorney General Antitrust Division
------/s/
-----------------------------------------------------------------------
Patricia A. Brink
Director of Civil Enforcement Antitrust Division
------/s/
-----------------------------------------------------------------------
Peter J. Mucchetti
Chief, Litigation I Section Antitrust Division
------/s/
-----------------------------------------------------------------------
Ryan M. Kantor
Assistant Chief, Litigation I Section Antitrust Division
------/s/
-----------------------------------------------------------------------
Cathryn D. McClanahan,
OBA No. 14853, Assistant United States Attorney, 110 West 7th
Street, Suite 300, Tulsa, Oklahoma 74119-1013, Telephone (918) 382-
2700, Facsimile (918) 560-7939, [email protected]
------/s/
-----------------------------------------------------------------------
Richard Mosier, Julie Tenney, Kevin Yeh,
Attorneys for the United States, Antitrust Division, Litigation I
Section, United States Department of Justice, 450 Fifth Street NW.,
Suite 4100, Washington, DC 20530, Telephone: (202) 307-0585,
Facsimile: (202) 307-5802, [email protected]
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
OKLAHOMA STATE CHIROPRACTIC INDEPENDENT PHYSICIANS ASSOCIATION and
LARRY BRIDGES,
Defendants.
CASE NO. 13-CV-21-TCK-TLW
COMPETITIVE IMPACT STATEMENT
Plaintiff United States of America, pursuant to Section 2(b) of
the Antitrust Procedures and Penalties Act (``APPA'' or ``Tunney
Act''), 15 U.S.C. Sec. 16(b)-(h), 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
The United States has filed a civil antitrust Complaint,
alleging that the Oklahoma State Chiropractic Independent Physicians
Association (``OSCIPA'') and its executive director, Larry Bridges,
violated Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. OSCIPA and
Bridges negotiated at least seven contracts with payers \1\ that set
prices for chiropractic services on behalf of OSCIPA's members. This
conduct caused consumers to pay higher fees for chiropractic
services.
---------------------------------------------------------------------------
\1\ A ``payer'' is a person or entity that purchases or pays for
all or part of a physician's services for itself or any other person
and includes, but is not limited to, individuals, health insurance
companies, health maintenance organizations, preferred provider
organizations, and employers.
---------------------------------------------------------------------------
At the same time the United States filed the Complaint, the
United States filed a Stipulation and proposed Final Judgment, which
are designed to eliminate the anticompetitive effects of the
Defendants' conduct. Under the proposed Final Judgment, which is
explained more fully below, Defendants are enjoined from contracting
with payers on behalf of chiropractors and from facilitating joint
contracting among chiropractors.
The United States and the Defendants have stipulated that the
proposed Final Judgment may be entered after compliance with the
APPA, unless the United States withdraws its consent. Entry of the
proposed Final Judgment would terminate this action, except that the
Court would retain jurisdiction to construe, modify, or enforce the
provisions of the Final Judgment and to punish violations thereof.
II. DESCRIPTION OF EVENTS GIVING RISE TO THE ALLEGED VIOLATION OF
ANTITRUST LAWS
A. The Defendants
OSCIPA is an association of approximately 350 chiropractors many
of whom compete
[[Page 4441]]
with each other in the sale of chiropractic services. OSCIPA's
members comprise approximately 45 percent of all chiropractors
practicing in Oklahoma. Defendant Larry Bridges is the Executive
Director of OSCIPA.
B. The Alleged Violations
OSCIPA and Bridges negotiated contracts with payers on behalf of
competing chiropractors that raised prices to consumers. Indeed,
OSCIPA stated that one of its purposes was to ``concentrate[] the
power of [its] state chiropractic physicians into one group. Through
OSCIPA, a chiropractor can maintain an individual practice while
associating with other chiropractors to increase contract-
negotiating power.''
From 2004 to 2011, OSCIPA and Bridges negotiated at least seven
contracts with payers that set the prices and other terms for all of
OSCIPA's members dealing with those payers. As executive director,
Bridges negotiated these contracts with payers on behalf of OSCIPA's
members, and Bridges signed several of those contracts on OSCIPA's
behalf. Those payers are: Aetna, Ancillary Care Services, Community
Care, Coventry, FirstHealth, Global Health, and Preferred Community
Choice. In these negotiations, Defendants made proposals and
counterproposals to payers, and accepted and rejected offers,
without consulting OSCIPA's physician members regarding the prices
that they would accept. Additionally, OSCIPA entered into contracts
with payers on behalf of all members.
Since at least 2004, OSCIPA has required that each chiropractor
joining the association enter into a membership agreement that
specifies a reimbursement floor that the chiropractor must accept;
prohibits the chiropractor from offering payers incentives or
rebates such as waiving deductibles or co-pays; designates OSCIPA as
the party who will contract with payers; and suspends any existing
agreement with a payer to which the chiropractor is a party. Upon
joining OSCIPA, therefore, a chiropractor explicitly gives
contracting authority to OSCIPA and immediately charges the price
set by the association for its several contracts, even if the
chiropractor already had an individually negotiated contract with
that payer. Defendants' practice of negotiating contracts on behalf
of OSCIPA's members increased prices for chiropractic services in
Oklahoma.
Antitrust law treats naked agreements among competitors that set
prices as per se illegal.\2\ Where competitors economically
integrate in a joint venture, however, such agreements, if
reasonably necessary to accomplish the procompetitive benefits of
the integration, are analyzed under the rule of reason.\3\
Defendants' negotiation of contracts on behalf of OSCIPA's members
was not ancillary to any procompetitive purpose of OSCIPA or
reasonably necessary to achieve any efficiencies. Other than OSCIPA
members who are part of the same practice groups, OSCIPA members do
not share any financial risk in providing chiropractic services, do
not significantly collaborate in a program to monitor and modify
their clinical practice patterns to control costs or ensure quality,
do not integrate their delivery of care to patients, and do not
otherwise integrate their activities to produce significant
efficiencies.
---------------------------------------------------------------------------
\2\ See Statement 8(B)(1) of the 1996 Statements of Antitrust
Enforcement Policy in Health Care available at http://www.justice.gov/atr/public/guidelines/1791.htm.
\3\ Id. (further explaining that ``In accord with general
antitrust principles, physician network joint ventures will be
analyzed under the rule of reason, and will not be viewed as per se
illegal, if the physicians' integration through the network is
likely to produce significant efficiencies that benefit consumers,
and any price agreements (or other agreements that would otherwise
be per se illegal) by the network physicians are reasonably
necessary to realize those efficiencies.''
---------------------------------------------------------------------------
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
The proposed Final Judgment will prevent the recurrence of the
violations alleged in the Complaint and restore competition in the
sale of chiropractic services in Oklahoma. Section IV of the
proposed Final Judgment would enjoin Defendants from:
(A) providing, or attempting to provide, any services to any
physician regarding such physician's actual, possible, or
contemplated negotiation or contracting with any payer, or other
dealings with any payer, except that Defendants may provide
credentialing services \4\ and utilization review services \5\;
---------------------------------------------------------------------------
\4\ The proposed Final Judgment defines ``credentialing
services'' to means a service that recognizes and attests that a
physician is both qualified and competent, and that verifies that a
physician meets standards as determined by an organization by
reviewing such items as the individual's license, experience,
certification, education, training, malpractice and adverse clinical
occurrences, clinical judgment, and character by investigation and
observation.
\5\ The proposed Final Judgment defines ``Utilization Review
Services'' to mean a service that a Defendant provides to a Payer
that establishes mechanisms to monitor and control utilization of
health care services and that is designed to control costs and
assure quality of care by monitoring over-utilization of health care
services, provided that such mechanisms are not used or designed to
increase costs or utilization of health care services.
---------------------------------------------------------------------------
(B) acting, or attempting to act, in a representative capacity,
including as a messenger or in dispute resolution (such as
arbitration), for any physician with any payer, except that
Defendants may provide credentialing services and utilization review
services;
(C) communicating, reviewing, or analyzing, or attempting to
communicate, review, or analyze with or for any physician, except as
otherwise allowed, about (1) that physician's, or any other
physician's, negotiating, contracting, or participating status with
any payer; (2) that physician's, or any other physician's, fees or
reimbursement rates; or (3) any proposed or actual contract or
contract term between any physician and any payer;
(D) facilitating communication or attempting to facilitate
communication, among or between physicians, regarding any proposed,
contemplated, or actual contract or contractual term with any payer,
including the acceptability of any proposed, contemplated, or actual
contractual term, between such physicians and any payer;
(E) entering into or enforcing any agreement, arrangement,
understanding, plan, program, combination, or conspiracy with any
payers or physicians to raise, stabilize, fix, set, or coordinate
prices for physician services, or fixing, setting, or coordinating
any term or condition relating to the provision of physician
services;
(F) requiring that OSCIPA physician members negotiate with any
payer through OSCIPA or otherwise restricting, influencing, or
attempting to influence in any way how OSCIPA physician members
negotiate with payers;
(G) coordinating or communicating, or attempting to coordinate
or communicate, with any physician, about any refusal to contract,
threatened refusal to contract, recommendation not to participate or
contract with any payer, or recommendation to boycott, on any
proposed or actual contract or contract term between such physician
and any payer;
(H) responding, or attempting to respond, to any question or
request initiated by any payer or physician relating to (1) a
physician's negotiating, contracting, or participating status with
any payer, except that Defendants may provide credentialing services
and utilization review services; (2) a physician's fees or
reimbursement rates; or (3) any proposed or actual contract or
contract term between any physician and any payer, except to refer a
payer to a third-party messenger \6\ and otherwise to state that the
Final Judgment prohibits any additional response; and
---------------------------------------------------------------------------
\6\ A messenger is a person or entity that operates a messenger
model, which is an arrangement designed to minimize the costs
associated with the contracting process between payers and health-
care providers. Messenger models can operate in a variety of ways.
For example, network providers may use an agent or third party to
convey to purchasers information obtained individually from
providers about the prices or price-related terms that the providers
are willing to accept. In some cases, the agent may convey to the
providers all contract offers made by purchasers, and each provider
then makes an independent, unilateral decision to accept or reject
the contract offers. See Statement 9(C) of the 1996 Statements of
Antitrust Enforcement Policy in Health Care available at http://www.justice.gov/atr/public/guidelines/1791.htm.
---------------------------------------------------------------------------
(I) training or educating, or attempting to train or educate,
any physician in any aspect of contracting or negotiating with any
payer, including, but not limited to, contractual language and
interpretation thereof, methodologies of payment or reimbursement by
any payer for such physician's services, and dispute resolution such
as arbitration, except that the Defendants may, provided they do not
violate other prohibitions of the Final Judgment, (1) speak on
general topics (including contracting), but only when invited to do
so as part of a regularly scheduled medical educational seminar
offering continuing medical education credit; (2) publish articles
on general topics (including contracting) in a regularly
disseminated newsletter; and (3) provide education to physicians
regarding the regulatory structure (including legislative
developments) of workers' compensation, Medicaid, and Medicare,
except Medicare Advantage.
[[Page 4442]]
As noted above, Section IV of the Final Judgment would permit
Defendants to provide credentialing services and utilization review
services. Credentialing services can provide an efficient and cost-
effective way to credential physicians. Utilization review services
can provide a mechanism to monitor and control utilization of health
care services, control costs, and assure quality of care.
Consequently, the provision of these services could potentially
benefit consumers.
With limited exceptions, Section V of the proposed Final
Judgment requires Defendants terminate all payer contracts at the
earlier of (1) OSCIPA's receipt of a payer's written request to
terminate its contract, (2) the earliest termination date, renewal
date (including automatic renewal date), or the anniversary date of
such payer contract, or (3) three months from the date the Final
Judgment is entered. Furthermore, the Final Judgment immediately
makes void any clause in a provider agreement that disallows a
physician from contracting individually with a Payer.
Section VI of the proposed Final Judgment permits Defendants to
engage in activities that fall within the safety zone set forth in
Statement 6 of the 1996 Statements of Antitrust Enforcement Policy
in Health Care, 4 Trade Reg. Rep. (CC) ] 13,153. Moreover, nothing
in the proposed Final Judgment prohibits the Defendants or OSCIPA's
members from advocating or discussing, in accordance with the
doctrine established in Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and its progeny,
legislative, judicial, or regulatory actions, or other governmental
policies or actions.
To promote compliance with the decree, Section VII of the
proposed Final Judgment requires that Defendants provide to their
members, directors, officers, managers, agents, employees, and
representatives, who provide or have provided, or supervise or have
supervised the provision of services to physicians, copies of the
Final Judgment and this Competitive Impact Statement and to
institute mechanisms to facilitate compliance. For a period of ten
years following the date of entry of the Final Judgment, the
Defendants separately must certify annually to the United States
whether they have complied with the provisions of the Final
Judgment.
IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15 U.S.C. Sec. 15, provides that
any person who has been injured as a result of conduct prohibited by
the antitrust laws may bring suit in federal court to recover three
times the damages the person has suffered, as well as costs and
reasonable attorneys' fees. Entry of the proposed Final Judgment
will neither impair nor assist the bringing of any private antitrust
damage action. Under the 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 private lawsuit that may be brought
against Defendants.
V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT
The United States and Defendants have stipulated that the
proposed Final Judgment may be entered by the Court after compliance
with the provisions of the APPA, provided that the United States has
not withdrawn its consent. The APPA conditions entry upon the
Court's determination that the proposed Final Judgment is in the
public interest.
The APPA provides a period of at least sixty 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 sixty days of the date of publication of this
Competitive Impact Statement in the Federal Register, or the last
date of publication in a newspaper of the summary of this
Competitive Impact Statement, whichever is later. All comments
received during this period will be considered by the United States
Department of Justice, which remains free to withdraw its consent to
the proposed Final Judgment at any time before the Court's entry of
judgment. The comments and the response of the United States will be
filed with the Court. In addition, comments will be posted on the
U.S. Department of Justice, Antitrust Division's Internet website,
and, under certain circumstances, published in the Federal Register.
Written comments should be submitted to: Peter J. Mucchetti, Chief,
Litigation I Section, Antitrust Division, United States Department
of Justice, 450 Fifth Street, NW., Suite 4100, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the
Court for 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 Defendants. The
United States is satisfied, however, that the relief in the proposed
Final Judgment will prevent the recurrence of violations alleged in
the Complaint and preserve competition for payers and consumers of
chiropractic services in Oklahoma. Thus, the proposed Final Judgment
would achieve all or substantially all of the relief that the United
States would have obtained through litigation, while avoiding the
time, expense, and uncertainty of a full trial on the merits of the
Complaint.
VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT
The Clayton Act, as amended by the APPA, requires that proposed
consent judgments in antitrust cases brought by the United States be
subject to a sixty-day comment period, after which the court shall
determine whether entry of the proposed Final Judgment ``is in the
public interest.'' 15 U.S.C. Sec. 16(e)(1). In making that
determination, the court, in accordance with the statute as amended
in 2004, is required to consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. Sec. 16(e)(1)(A) & (B). In considering these statutory
factors, the court's inquiry is necessarily a limited one as the
government is entitled to ``broad discretion to settle with the
defendant within the reaches of the public interest.'' United States
v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see
generally United States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1
(D.D.C. 2007) (assessing public-interest standard under the Tunney
Act); United States v. InBev N.V./S.A., 2009-2 Trade Cas. (CCH) ]
76,736, 2009 U.S. Dist. LEXIS 84787, No. 08-1965 (JR), at *3 (D.D.C.
Aug. 11, 2009) (noting that the court's review of a consent judgment
is limited and only inquires ``into whether the government's
determination that the proposed remedies will cure the antitrust
violations alleged in the complaint was reasonable, and whether the
mechanisms to enforce the final judgment are clear and
manageable.'').\7\
---------------------------------------------------------------------------
\7\ The 2004 amendments substituted ``shall'' for ``may'' in
directing relevant factors for courts to consider and amended the
list of factors to focus on competitive considerations and to
address potentially ambiguous judgment terms. Compare 15 U.S.C.
Sec. 16(e) (2004), with 15 U.S.C. Sec. 16(e)(1) (2006); see also
SBC Commc'ns, 489 F. Supp. 2d at 11 (concluding that the 2004
amendments ``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------
As the United States Court of Appeals for the District of
Columbia Circuit has held, a court considers under the APPA, among
other things, the relationship between the remedy secured and the
specific allegations set forth in the United States' complaint,
whether the decree is sufficiently clear, whether enforcement
mechanisms are sufficient, and whether the decree may positively
harm third parties. See Microsoft, 56 F.3d at 1458-62. With respect
to the adequacy of the relief secured by the decree, a court may not
``engage in an unrestricted evaluation of what relief would best
serve the public.'' United States v. BNS Inc., 858 F.2d 456, 462
(9th Cir. 1988) (citing United States v. Bechtel Corp., 648 F.2d
660, 666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62;
InBev, 2009 U.S. Dist. LEXIS 84787, at *3; United States v. Alcoa,
Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001). Courts have held that:
[[Page 4443]]
[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).\8\ In
determining whether a proposed settlement is in the public interest,
a district court ``must accord deference to the government's
predictions about the efficacy of its remedies, and may not require
that the remedies perfectly match the alleged violations.'' SBC
Commc'ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461
(noting the need for courts to be ``deferential to the government's
predictions as to the effect of the proposed remedies''); United
States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C.
2003) (noting that the court should grant due respect to the United
States' ``prediction as to the effect of proposed remedies, its
perception of the market structure, and its views of the nature of
the case'').
---------------------------------------------------------------------------
\8\ Cf. BNS, 858 F.2d at 464 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); United States v. Gillette Co.,
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the
court is constrained to ``look at the overall picture not
hypercritically, nor with a microscope, but with an artist's
reducing glass''); see generally Microsoft, 56 F.3d at 1461
(discussing whether ``the remedies [obtained in the decree are] so
inconsonant with the allegations charged as to fall outside of the
`reaches of the public interest' '').
---------------------------------------------------------------------------
Courts have greater flexibility in approving proposed consent
decrees than in crafting their own decrees following a finding of
liability in a litigated matter. ``[A] proposed decree must be
approved even if it falls short of the remedy the court would impose
on its own, as long as it falls within the range of acceptability or
is `within the reaches of public interest.' '' United States v. Am.
Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations
omitted) (quoting United States v. Gillette Co., 406 F. Supp. 713,
716 (D. Mass. 1975)), aff'd sub nom. Maryland v. United States, 460
U.S. 1001 (1983); see also United States v. Alcan Aluminum Ltd., 605
F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent decree even
though the court would have imposed a greater remedy). To meet this
standard, the United States ``need only provide a factual basis for
concluding that the settlements are reasonably adequate remedies for
the alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
Moreover, the court's role under the APPA 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;
see also InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``the `public
interest' is not to be measured by comparing the violations alleged
in the complaint against those the court believes could have, or
even should have, been alleged''). 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 ``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 did
not pursue. Microsoft, 56 F.3d at 1459-60. As the United States
District Court for the District of Columbia confirmed in SBC
Communications, courts ``cannot look beyond the complaint in making
the public interest determination unless the complaint is drafted so
narrowly as to make a mockery of judicial power.'' SBC Commc'ns, 489
F. Supp. 2d at 15.
In its 2004 amendments, Congress made clear its intent to
preserve the practical benefits of using consent decrees in
antitrust enforcement, adding the unambiguous instruction that
``[n]othing in this section shall be construed to require the court
to conduct an evidentiary hearing or to require the court to permit
anyone to intervene.'' 15 U.S.C. Sec. 16(e)(2). This language
effectuates what Congress intended when it enacted the Tunney Act in
1974. As Senator Tunney explained: ``[t]he court is nowhere
compelled to go to trial or to engage in extended proceedings which
might have the effect of vitiating the benefits of prompt and less
costly settlement through the consent decree process.'' 119 Cong.
Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the
procedure for the public-interest determination is left to the
discretion of the court, with the recognition that the court's
``scope of review remains sharply proscribed by precedent and the
nature of Tunney Act proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at
11.\9\
---------------------------------------------------------------------------
\9\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the
court to make its public interest determination on the basis of the
competitive impact statement and response to comments alone'');
United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ]
61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt
failure of the government to discharge its duty, the Court, in
making its public interest finding, should * * * carefully consider
the explanations of the government in the competitive impact
statement and its responses to comments in order to determine
whether those explanations are reasonable under the
circumstances.''); S. Rep. No. 93-298 at 6 (1973) (``Where the
public interest can be meaningfully evaluated simply on the basis of
briefs and oral arguments, that is the approach that should be
utilized.'').
---------------------------------------------------------------------------
VIII. DETERMINATIVE DOCUMENTS
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: January 10, 2013
Respectfully submitted,
RICHARD MOSIER,
(D.C. Bar No. 492489), Antitrust Division, United States Department
of Justice, 450 Fifth Street NW., Suite 4100, Washington, DC 20530,
Telephone: (202) 307-0585, Facsimile: (202) 307-5802, Email:
[email protected].
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
OKLAHOMA STATE CHIROPRACTIC INDEPENDENT PHYSICIANS ASSOCIATION and
LARRY M. BRIDGES,
Defendants.
CASE NO. 13-CV-21-TCK-TLW
FINAL JUDGMENT
WHEREAS, Plaintiff, the United States of America, filed its
Complaint on January 10, 2013, alleging that Defendants Oklahoma
State Chiropractors Independent Physician's Association (``Defendant
OSCIPA'' or ``OSCIPA'') and Larry M. Bridges (``Defendant Bridges'')
(collectively ``Defendants'' and each individually a ``Defendant'')
participated in conduct in violation of Section 1 of the Sherman
Act, as amended, 15 U.S.C. Sec. 1, and Plaintiff and Defendants
have consented to the entry of this Final Judgment without trial or
adjudication of any issue of fact or law;
AND WHEREAS, this Final Judgment does not constitute any
admission by the Defendants that the law has been violated or of any
issue of fact or law, other than the jurisdictional facts alleged in
the Complaint are true;
AND WHEREAS, the essence of this Final Judgment is to restore
competition, as alleged in the Complaint, and to restrain the
Defendants from participating in any unlawful conspiracy to increase
fees for Physician services or boycott Payers;
AND WHEREAS, the United States requires the Defendants to be
enjoined from rendering services to, or representing, any Physician
pertaining to such Physician's dealing with any Payer, for the
purpose of preventing future violations of Section 1 of the Sherman
Act;
AND WHEREAS, Defendants agree to be bound by the provisions of
this Final Judgment pending its approval by the Court;
AND WHEREAS, Plaintiff requires Defendants to agree to undertake
certain actions and refrain from certain conduct for the purpose of
remedying the loss of competition alleged in the Complaint;
AND WHEREAS, Defendants have represented to the United States
that the actions and conduct restrictions can and will be undertaken
and that they will later raise no claim of hardship or difficulty as
grounds for asking the Court to modify any of the provisions
contained below;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of law or fact, and upon consent of
Plaintiff and the Defendants, it is ORDERED, ADJUDGED AND DECREED:
I. JURISDICTION
This Court has jurisdiction over the subject matter of, and each
of the parties to, this
[[Page 4444]]
action. The Complaint states a claim upon which relief may be
granted against the Defendants under Section 1 of the Sherman Act,
as amended, 15 U.S.C. Sec. 1.
II. DEFINITIONS
As used in this Final Judgment:
(A) ``Communicate'' means to discuss, disclose, transfer,
disseminate, or exchange information or opinion, formally or
informally, directly or indirectly, in any manner;
(B) ``Credentialing Services'' means a service that recognizes
and attests that a physician is both qualified and competent, and
that verifies that a physician meets standards as determined by an
organization by reviewing such items as the individual's license,
experience, certification, education, training, malpractice and
adverse clinical occurrences, clinical judgment, and character by
investigation and observation;
(C) ``Defendant OSCIPA'' or ``OSCIPA'' means the Oklahoma State
Chiropractors Independent Physicians Association, a corporation
under the laws of Oklahoma; its successors, assigns, subsidiaries,
divisions, groups, partnerships, joint ventures, and each entity
over which it has control; and their directors, officers, managers,
agents, representatives, and employees;
(D) ``Defendant Bridges'' means Larry M. Bridges, Defendant
OSCIPA's executive director;
(E) ``Defendants'' mean Defendant OSCIPA and Defendant Bridges;
(F) ``Messenger'' means, in relation to the Defendants,
Communicating to a Payer any information the Defendants have
received from a Physician, or Communicating to any Physician any
information the Defendants receive from any Payer;
(G) ``Participating Provider Agreement'' means a contract
entered into by a Physician with OSCIPA allowing the Physician to
participate in OSCIPA's Independent Physicians Association;
(H) ``Payer'' means any Person that purchases or pays for all or
part of a Physician's services for itself or any other Person and
includes, but is not limited to, individuals, health insurance
companies, health maintenance organizations, preferred provider
organizations, and employers;
(I) ``Payer Contract'' means a contract entered into by a Payer
with OSCIPA that sets the prices and price-related terms between
OSCIPA's Physician members and the Payer;
(J) ``Person'' means any natural person, corporation, firm,
company, sole proprietorship, partnership, joint venture,
association, institute, governmental unit, or other legal entity;
(K) ``Physician'' means a doctor of chiropractic medicine
(D.C.), a doctor of allopathic medicine (M.D.), or any other
practitioner of chiropractic, allopathic, or other medicine;
(L) ``Third-Party Messenger'' means a Person other than
Defendants that uses a ``messenger model'' as set forth in Statement
9(C) of the 1996 Statements of Antitrust Enforcement Policy in
Health Care, 4 Trade Reg. Rep (CC) ] 13,153, provided that the
messenger model does not create or facilitate an agreement among
competitors on prices or price-related terms;
(M) ``Utilization Review Services'' means a service that a
Defendant provides to a Payer that establishes mechanisms to monitor
and control utilization of health care services and that is designed
to control costs and assure quality of care by monitoring over-
utilization of health care services, provided that such mechanisms
are not used or designed to increase costs or utilization of health
care services.
III. APPLICABILITY
This Final Judgment applies to the Defendants and to any Person,
including any Physician, in active concert or participation with the
Defendants, who receives actual notice of this Final Judgment by
personal service or otherwise.
IV. PROHIBITED CONDUCT
The Defendants are enjoined from, in any manner, directly or
indirectly:
(A) providing, or attempting to provide, any services to any
Physician regarding such Physician's actual, possible, or
contemplated negotiation or contracting with any Payer, or other
dealings with any Payer, except that Defendants may provide
Credentialing Services and Utilization Review Services;
(B) acting, or attempting to act, in a representative capacity,
including as a Messenger or in dispute resolution (such as
arbitration), for any Physician with any Payer, except that
Defendants may provide Credentialing Services and Utilization Review
Services;
(C) Communicating, reviewing, or analyzing, or attempting to
Communicate, review, or analyze with or for any Physician, except as
consistent with Section VI(A), about (1) that Physician's, or any
other Physician's, negotiating, contracting, or participating status
with any Payer; (2) that Physician's, or any other Physician's, fees
or reimbursement rates; or (3) any proposed or actual contract or
contract term between any Physician and any Payer;
(D) facilitating Communication or attempting to facilitate
Communication, among or between Physicians, regarding any proposed,
contemplated, or actual contract or contractual term with any Payer,
including the acceptability of any proposed, contemplated, or actual
contractual term, between such Physicians and any Payer;
(E) entering into or enforcing any agreement, arrangement,
understanding, plan, program, combination, or conspiracy with any
Payers or Physicians to raise, stabilize, fix, set, or coordinate
prices for Physician services, or fixing, setting, or coordinating
any term or condition relating to the provision of Physician
services;
(F) requiring that OSCIPA Physician members negotiate with any
Payer through OSCIPA or otherwise restricting, influencing, or
attempting to influence in any way how OSCIPA Physician members
negotiate with Payers;
(G) coordinating or Communicating, or attempting to coordinate
or Communicate, with any Physician, about any refusal to contract,
threatened refusal to contract, recommendation not to participate or
contract with any Payer, or recommendation to boycott, on any
proposed or actual contract or contract term between such Physician
and any Payer;
(H) responding, or attempting to respond, to any question or
request initiated by any Payer or Physician relating to (1) a
Physician's negotiating, contracting, or participating status with
any Payer, except that Defendants may provide Credentialing Services
and Utilization Review Services; (2) a Physician's fees or
reimbursement rates; or (3) any proposed or actual contract or
contract term between any Physician and any Payer, except to refer a
Payer to a Third-Party Messenger and otherwise to state that this
Final Judgment prohibits any additional response; and
(I) training or educating, or attempting to train or educate,
any Physician in any aspect of contracting or negotiating with any
Payer, including, but not limited to, contractual language and
interpretation thereof, methodologies of payment or reimbursement by
any Payer for such Physician's services, and dispute resolution such
as arbitration, except that the Defendants may, provided they do not
violate Sections IV(A) through IV(H) of this Final Judgment, (1)
speak on general topics (including contracting), but only when
invited to do so as part of a regularly scheduled medical
educational seminar offering continuing medical education credit;
(2) publish articles on general topics (including contracting) in a
regularly disseminated newsletter; and (3) provide education to
physicians regarding the regulatory structure (including legislative
developments) of workers' compensation, Medicaid, and Medicare,
except Medicare Advantage.
V. REQUIRED CONDUCT
(A) Defendants must terminate, without penalty or charge, and in
compliance with any applicable laws, any Payer Contracts at the
earlier of (1) receipt by Defendant OSCIPA of a Payer's written
request to terminate such Payer Contract, (2) the earliest
termination date, renewal date (including automatic renewal date),
or the anniversary date of such Payer Contract, or (3) three months
from the date the Final Judgment is entered.
PROVIDED HOWEVER, a Payer Contract to be terminated pursuant to
Section V(A)(2) of this Final Judgment may extend beyond any such
termination, renewal, or anniversary date, by up to three months
from the date the Final Judgment is entered, if:
(a) the Payer submits to Defendant OSCIPA a written request to
extend such Payer Contract to a specific date no later than three
months from the date that this Final Judgment is entered; and
(b) Defendant OSCIPA had determined not to exercise any right to
terminate.
PROVIDED FURTHER, that any Payer making such request to extend a
Payer Contract retains the right, pursuant to Section V(A) of this
Final Judgment, to terminate the Payer Contract at any time.
(B) Defendant OSCIPA may distribute a revised membership
agreement to its Physician members that omits any reference to
collectively contracting with Payers or
[[Page 4445]]
other services prohibited by Section IV, and that otherwise does not
violate this Final Judgment. Defendants must terminate, without
penalty or charge, and in compliance with any applicable laws, any
Participating Provider Agreement and all other contracts relating to
Payers with any OSCIPA members at the earlier of (1) receipt by
Defendant OSCIPA of any Physician member's executed revised member
agreement referenced in the preceding sentence, (2) receipt by
Defendant OSCIPA of any Physician member's written request to
terminate such Participating Provider Agreement, (3) the date all
Payer Contracts applicable to a Physician member are terminated
pursuant to Section V(A), or (4) three months from the date the
Final Judgment is entered.
PROVIDED HOWEVER, that any clause in a Participating Provider
Agreement disallowing the Physician member from contracting
individually with a Payer is immediately void.
VI. PERMITTED CONDUCT
(A) The Defendants may engage in activities that fall within the
safety zone set forth in Statement 6 of the 1996 Statements of
Antitrust Enforcement Policy in Health Care, 4 Trade Reg. Rep. (CC)
] 13,153.
(B) Nothing in this Final Judgment shall prohibit the
Defendants, or any one or more of Defendant OSCIPA's members, from
advocating or discussing, in accordance with the doctrine
established in Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), United Mine Workers v.
Pennington, 381 U.S. 657 (1965), and their progeny, legislative,
judicial, or regulatory actions, or other governmental policies or
actions.
VII. COMPLIANCE
To facilitate compliance with this Final Judgment, Defendant
OSCIPA shall:
(A) distribute by first-class mail within 30 days from the entry
of this Final Judgment a copy of the Final Judgment; the Competitive
Impact Statement; and a cover letter that is identical in content to
Exhibit A to:
(1) all of Defendant OSCIPA's directors, officers, managers,
agents, employees, and representatives, who provide or have
provided, or supervise or have supervised the provision of, services
to Physicians; and
(2) all of Defendant OSCIPA's Physician members;
(B) distribute by first-class mail within 30 days from the entry
of this Final Judgment a copy of the Final Judgment; the Competitive
Impact Statement; and a cover letter that is identical in content to
Exhibit B to the chief executive officer of each Payer with whom
Defendants have contracted since January 1, 2002, regarding
contracts for the provision of Physician services;
(C) distribute a copy of this Final Judgment and the Competitive
Impact Statement to:
(1) any Person who succeeds to a position with Defendant OSCIPA
described in Section VII(A)(1), in no event shall such distribution
occur more than 15 days later than such a Person assumes such a
position; and
(2) any Physician who becomes a member of Defendant OSCIPA, in
no event shall such distribution occur more than 15 days later than
such Physician becomes a member;
(D) conduct an annual seminar explaining to all of Defendant
OSCIPA's directors, officers, managers, agents, employees, and
representatives, the restrictions contained in this Final Judgment
and the implications of violating the Final Judgment;
(E) maintain an internal mechanism by which questions about the
application of the antitrust laws and this Final Judgment from any
of Defendant OSCIPA's directors, officers, managers, agents,
employees, and representatives can be answered by counsel as the
need arises;
(F) within ten days of receiving a Payer's written request to
terminate a Payer Contract pursuant to Section V(A) of this Final
Judgment, distribute, by first-class mail, return receipt requested,
a copy of that request to each Physician in such Payer Contract as
of the date that Defendant OSCIPA receives such request to
terminate; and
(G) maintain for inspection by Plaintiff a record of recipients
to whom this Final Judgment and Competitive Impact Statement have
been distributed.
VIII. CERTIFICATION
(A) Within 30 days after entry of this Final Judgment, Defendant
OSCIPA shall certify to the Chief of Litigation I, Antitrust
Division, that it has provided a copy of this Final Judgment to all
Persons described in Sections VII(A) and VII(B) of this Final
Judgment.
(B) For a period of ten years following the date of entry of
this Final Judgment, the Defendants shall separately certify to the
Chief of Litigation I, Antitrust Division, annually on the
anniversary date of the entry of this Final Judgment that each,
respectively, and all of Defendant OSCIPA's directors, officers,
managers, agents, employees, and representatives, if applicable,
have complied with the provisions of this Final Judgment.
IX. COMPLIANCE INSPECTION
(A) For the purposes of determining or securing compliance with
this Final Judgment or determining whether the Final Judgment should
be modified or vacated, and subject to any legally recognized
privilege, authorized representatives of the United States
Department of Justice, including consultants and other Persons
retained by the United States, shall, upon written request of an
authorized representative of the Assistant Attorney General in
charge of the Antitrust Division and upon five days notice to the
Defendants, be permitted:
(1) access during the Defendants' regular business hours to
inspect and copy, or, at the United States' option, to require that
the Defendants provide copies of all books, ledgers, accounts,
records and documents in their possession, custody, or control,
relating to any matters contained in this Final Judgment;
(2) to interview, either informally or on the record, Defendant
Bridges or any of Defendant OSCIPA's officers, directors, employees,
agents, managers, and representatives, 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 the Defendants; and
(3) to obtain from the Defendants written reports or responses
to written interrogatories, under oath if requested, relating to any
matters contained in this Final Judgment.
(B) No information or documents obtained by the means provided
in this Section shall be divulged by Plaintiff to any Person other
than authorized representatives 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.
(C) If at any time a Defendant furnishes information or
documents to the United States, the Defendant represents and
identifies in writing the material in any such information or
documents to which a claim of protection may be asserted under Rule
26(c)(1)(G) of the Federal Rules of Civil Procedure, and marks each
pertinent page of such material, ``Subject to claim of protection
under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,''
then the United States shall give the Defendant ten calendar days'
notice prior to divulging such material in any legal proceeding
(other than a grand jury proceeding) to which such Defendant is not
a party.
X. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this
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.
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall
expire ten years from the date of its entry.
XII. PUBLIC INTEREST DETERMINATION
The parties have complied with the requirements of the Antitrust
Procedures and Penalties Act, 15 U.S.C. Sec. 16, including making
copies available to the public of this Final Judgment, the
Competitive Impact Statement, and any comments thereon and the
United States' responses to comments. Based upon the record before
the Court, which includes the Competitive Impact Statement and any
comments and responses to comments filed with the Court, entry of
this Final Judgment is in the public interest.
Dated:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
UNITED STATES DISTRICT JUDGE
[FR Doc. 2013-01084 Filed 1-18-13; 8:45 am]
BILLING CODE P