86948 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Notices 

Commission’s rules; the deadline for 

filing is February 26, 2021. Parties may 

also file written testimony in connection 

with their presentation at the hearing, as 

provided in § 207.24 of the 

Commission’s rules, and posthearing 

briefs, which must conform with the 

provisions of § 207.25 of the 

Commission’s rules. The deadline for 

filing posthearing briefs is March 11, 

2021. In addition, any person who has 

not entered an appearance as a party to 

the investigations may submit a written 

statement of information pertinent to 

the subject of the investigations, 

including statements of support or 

opposition to the petition, on or before 

March 11, 2021. On March 25, 2021, the 

Commission will make available to 

parties all information on which they 

have not had an opportunity to 

comment. Parties may submit final 

comments on this information on or 

before March 29, 2021, but such final 

comments must not contain new factual 

information and must otherwise comply 

with § 207.30 of the Commission’s rules. 

All written submissions must conform 

with the provisions of § 201.8 of the 

Commission’s rules; any submissions 

that contain BPI must also conform with 

the requirements of §§ 201.6, 207.3, and 

207.7 of the Commission’s rules. The 

Commission’s Handbook on Filing 

Procedures, available on the 

Commission’s website at https://

www.usitc.gov/documents/handbook_

on_filing_procedures.pdf, elaborates 

upon the Commission’s procedures with 

respect to filings. 

Additional written submissions to the 

Commission, including requests 

pursuant to § 201.12 of the 

Commission’s rules, shall not be 

accepted unless good cause is shown for 

accepting such submissions, or unless 

the submission is pursuant to a specific 

request by a Commissioner or 

Commission staff. 

In accordance with §§ 201.16(c) and 

207.3 of the Commission’s rules, each 

document filed by a party to the 

investigations must be served on all 

other parties to the investigations (as 

identified by either the public or BPI 

service list), and a certificate of service 

must be timely filed. The Secretary will 

not accept a document for filing without 

a certificate of service. 

Authority: These investigations are being 

conducted under authority of title VII of the 

Tariff Act of 1930; this notice is published 

pursuant to § 207.21 of the Commission’s 

rules. 

By order of the Commission. 

Issued: December 28, 2020. 

William Bishop, 

Supervisory Hearings and Information 

Officer. 

[FR Doc. 2020–28986 Filed 12–30–20; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives 

[Docket No. 2020R–10W] 

Objective Factors for Classifying 

Weapons With ‘‘Stabilizing Braces’’; 

Withdrawal of Guidance 

AGENCY: Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, Department of 

Justice. 

ACTION: Notice; withdrawal. 

SUMMARY: The Bureau of Alcohol, 

Tobacco, Firearms, and Explosives 

(‘‘ATF’’) is announcing the withdrawal 

of a notice and request for comments 

entitled ‘‘Objective Factors for 

Classifying Weapons with ‘Stabilizing 

Braces’,’’ that was published on 

December 18, 2020. 

DATES: The withdrawal is effective 

December 31, 2020. 

ADDRESSES: This Notice also will be 

made available on the ATF website 

(www.atf.gov). 

FOR FURTHER INFORMATION CONTACT: 

Andrew Lange, Office of Regulatory 

Affairs, Enforcement Programs and 

Services, Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, U.S. 

Department of Justice, 99 New York 

Ave. NE, Mail Stop 6N–518, 

Washington, DC 20226; telephone: (202) 

648–7070 (this is not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: Upon 

further consultation with the 

Department of Justice and the Office of 

the Deputy Attorney General, ATF is 

withdrawing, pending further 

Department of Justice review, the notice 

and request for comments entitled 

‘‘Objective Factors for Classifying 

Weapons with ‘Stabilizing Braces’,’’ that 

was published on December 18, 2020. 

85 FR 82516. As explained in the notice, 

the proposed guidance was not a 

regulation. The notice informed and 

invited comment from the industry and 

public on a proposed guidance prior to 

issuing a final guidance document. 

The withdrawal of the guidance does 

not change any law, regulation, or other 

legally binding requirement. 

Marvin G. Richardson, 

Associate Deputy Director. 

[FR Doc. 2020–28930 Filed 12–30–20; 8:45 am] 

BILLING CODE 4410–FY–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States, et al. v. Harvard Pilgrim 

Health Care, Inc., et al.; 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 District of New 

Hampshire in United States and State of 

New Hampshire vs. Harvard Pilgrim 

Health Care, Inc. and Health Plan 

Holdings, Inc., Civil Action No. 1:20– 

cv–01183. On December 14, 2020, the 

United States filed a Complaint alleging 

that the proposed merger of Harvard 

Pilgrim Health Care, Inc. and Health 

Plan Holdings, Inc. (f/k/a Tufts Health 

Plan, Inc.) would violate Section 7 of 

the Clayton Act, 15 U.S.C. 18. The 

proposed Final Judgment, filed at the 

same time as the Complaint, requires 

Health Plan Holdings to divest its New 

Hampshire subsidiary, Tufts Health 

Freedom Plans, Inc., along with certain 

tangible and intangible assets. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection 

on the Antitrust Division’s website at 

http://www.justice.gov/atr and at the 

Office of the Clerk of the United States 

District Court for the District of New 

Hampshire. 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, including the name of the 

submitter, and responses thereto, will be 

posted on the Antitrust Division’s 

website, filed with the Court, and, under 

certain circumstances, published in the 

Federal Register. Comments should be 

directed to Eric D. Welsh, Chief, 

Healthcare and Consumer Products 

Section, Antitrust Division, Department 

of Justice, 450 Fifth Street NW, Suite 


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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Notices 86949 

4100, Washington, DC 20530 

(telephone: 202–598–8681). 

Suzanne Morris, 

Chief, Premerger and Division Statistics, 

Antitrust Division. 

United States District Court for the 

District of New Hampshire 

United States of America and State of New 

Hampshire, Plaintiffs, vs. Harvard Pilgrim 

Health Care, Inc. and Health Plan Holdings, 

Inc., Defendants. 

Civil Action No.: 1:20–cv–01183–JL 

Judge Joseph N. Laplante 

Complaint 

The United States of America and the 

State of New Hampshire bring this civil 

antitrust action to block the proposed 

merger of Harvard Pilgrim Health Care 

and Health Plan Holdings (f/k/a Tufts 

Health Plan). The combination of 

Harvard Pilgrim and Health Plan 

Holdings—two of the largest suppliers 

of health insurance in New Hampshire 

for certain employers purchasing group 

coverage for their employees—into one 

firm would likely lead to higher prices, 

lower quality, and reduced choice for 

consumers of commercial group health 

insurance in New Hampshire. To 

prevent this harm to consumers, the 

United States and the State of New 

Hampshire seek an injunction to stop 

the proposed merger. Plaintiffs allege as 

follows: 

I. Introduction 

1. Health insurance is an integral part 

of the American healthcare system. 

Americans collectively spend trillions 

of dollars on healthcare each year, and 

the cost of healthcare impacts almost 

every American. Consumers depend on 

health insurance to secure affordable 

access to doctors and hospitals and to 

protect themselves from the risk of 

medical expenses that could be 

financially devastating. 

2. Half of all Americans obtain health 

insurance coverage through their 

employers. Employers purchase group 

health insurance plans for their 

employees from insurance companies 

such as Harvard Pilgrim and Health 

Plan Holdings. Competition between 

insurance companies like Harvard 

Pilgrim and Health Plan Holdings 

ensures that employers can purchase 

high-quality group health insurance 

plans for their employees at affordable 

prices. 

3. Harvard Pilgrim sells commercial 

group health insurance plans to small 

and large employer groups in New 

Hampshire. Health Plan Holdings sells 

commercial group health insurance 

plans to small and large employer 

groups in New Hampshire through Tufts 

Health Freedom Plan, Inc. (‘‘Tufts 

Freedom’’). 

4. In New Hampshire, Harvard 

Pilgrim and Tufts Freedom are two of 

the three top companies offering 

commercial group health insurance 

plans to (1) private small group 

employers with up to 50 full-time 

eligible employees (‘‘small groups’’) and 

(2) private large group employers with 

between 51 and 99 full-time eligible 

employees, a segment of commercial 

large group health insurance referred to 

as community rated by class or ‘‘CRC’’ 

by Defendants and others in the 

industry (‘‘CRC groups’’). Competition 

between Harvard Pilgrim and Tufts 

Freedom has resulted in lower 

premiums, richer (i.e., more robust and 

comprehensive) plan benefits, and 

better service for small groups and CRC 

groups in New Hampshire. 

5. Combining Harvard Pilgrim and 

Health Plan Holdings into one firm 

would eliminate this competition, likely 

raising the price and reducing the 

quality of commercial health insurance 

sold to small groups and to CRC groups 

in New Hampshire. 

6. As a result, the proposed 

transaction is likely to substantially 

lessen competition for commercial 

health insurance sold to small groups 

and to CRC groups, in violation of 

Section 7 of the Clayton Act, 15 U.S.C. 

18. The Court, therefore, should enjoin 

this transaction. 

II. Defendants and the Transaction 

7. Harvard Pilgrim sells commercial 

group health insurance to small and 

large employer groups in four states: 

New Hampshire, Massachusetts, 

Connecticut, and Maine. Harvard 

Pilgrim’s annual revenue in 2019 was 

approximately $3 billion, and it has 

over one million members. 

8. Health Plan Holdings sells 

commercial group health insurance to 

small and large employer groups in New 

Hampshire through Tufts Freedom, 

which until September 2020 was a joint 

venture with the Granite Healthcare 

consortium consisting of several large 

New Hampshire health systems and 

now is solely owned by Health Plan 

Holdings. It also sells commercial group 

health insurance in Massachusetts and 

Rhode Island. Health Plan Holdings’ 

annual revenue in 2019 was over $5.5 

billion, and it has over one million 

members. 

9. Defendants have agreed to a 

‘‘merger of equals,’’ which was 

memorialized in a Combination 

Agreement dated August 9, 2019 (the 

‘‘Transaction’’). 

III. Jurisdiction and Venue 

10. This Court has subject-matter 

jurisdiction under Section 15 of the 

Clayton Act, 15 U.S.C. 25, and 28 U.S.C. 

1331, 1337(a), and 1345. 

11. The State of New Hampshire 

brings this action in its sovereign 

capacity as parens patriae on behalf of 

and to protect the health and general 

welfare of its citizens and the general 

economy of the State under Section 16 

of the Clayton Act, 15 U.S.C. 26 and 

under N.H. Rev. Stat. Ann. 356:4–a & 4– 

b, seeking injunctive and other relief 

from Defendants’ violation of Section 7 

of the Clayton Act, 15 U.S.C. 18 and 

state antitrust law. 

12. Defendants are engaged in 

activities that substantially affect 

interstate commerce. Defendants sell 

health insurance and administrative 

services for which employers and 

consumers remit payments across state 

lines, and Defendants otherwise 

participate in interstate commerce. 

13. Venue is proper under Section 12 

of the Clayton Act, 15 U.S.C. 22, and 

under 28 U.S.C. 1391(b) and (c). 

14. This Court has personal 

jurisdiction over each Defendant. 

Harvard Pilgrim is headquartered in 

Wellesley, Massachusetts and transacts 

business in this district. Health Plan 

Holdings is headquartered in 

Watertown, Massachusetts and transacts 

business in this district. Both Harvard 

Pilgrim and Health Plan Holdings have 

consented to personal jurisdiction and 

the acceptance of service of process in 

this district for purposes of this matter. 

The Transaction would also have effects 

on employers and consumers in this 

district. 

IV. The Relevant Markets 

15. Commercial group health 

insurance is sold by health insurance 

companies to employers to provide 

health insurance coverage to their 

employees and their employees’ 

families. Employers cover at least a 

portion of the cost of the insurance for 

their employees, making it a costeffective way for employees, and their 

families, to obtain health insurance. 

16. Insurers offering commercial 

group health insurance plans to 

employers try to make them attractive 

by competing on price, product design, 

customer service, care management, 

wellness programs, and reputation. 

Insurers also compete based on the 

breadth of their network of healthcare 

providers, including doctors and 

hospitals, as employers seek an 

insurance plan that offers in-network 

access to medical providers that are 

close to where their employees live and 


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work. An insurer’s ability to compete on 

price depends largely on medical costs, 

which are impacted significantly by the 

discounts the insurer obtains from 

medical providers. 

17. In New Hampshire, Harvard 

Pilgrim and Health Plan Holdings 

compete vigorously with one another in 

the sale of commercial health insurance 

to small groups and to CRC groups. 

18. The Transaction is likely to harm 

competition in two health insurance 

markets in New Hampshire: (1) The sale 

of commercial group health insurance to 

small groups and (2) the sale of 

commercial group health insurance to 

CRC groups. For both of these markets, 

employers tend to be local, with the 

majority of their employees based in 

New Hampshire, although some 

employers offer insurance to employees 

in multiple states. Competition to win 

small groups and CRC groups in New 

Hampshire is primarily driven by which 

insurer offers the lowest rates. Small 

groups and CRC groups, as defined in 

this complaint, do not include 

governmental employers (e.g., 

municipalities, school districts) in New 

Hampshire with fewer than 100 

employees, as historically almost all 

those employers have purchased health 

insurance through a trust instead of 

directly from an insurer. 

A. Commercial Health Insurance Sold to 

Small Groups 

19. The sale of commercial health 

insurance to small groups in New 

Hampshire is a relevant antitrust 

product market in which to analyze the 

effects of the Transaction. New 

Hampshire Insurance Department 

regulations define a ‘‘small group’’ as an 

employer with 50 or fewer full-time 

eligible employees. For small groups, 

health plans are typically fully insured, 

which means that the employer pays a 

premium to the insurance company and 

in return the company covers the 

employees’ healthcare costs. Small 

groups tend to be local in nature, 

requiring a strong local provider 

network. 

20. The commercial health insurance 

plans offered to small groups are 

governed by the New Hampshire 

Insurance Department and cannot be 

substituted with plans offered to New 

Hampshire employers with 51 or more 

full-time eligible employees, defined by 

statute as ‘‘large group.’’ Harvard 

Pilgrim and Health Plan Holdings also 

differentiate small group accounts 

separately from large group accounts 

internally and offer different pricing for 

small group accounts compared to large 

group accounts. 

21. New Hampshire law does not 

require that an insurer offer a small 

group product statewide and therefore 

permits an insurer to offer small group 

plans only in certain counties. 

Accordingly, despite the fact that state 

law does not allow insurers to charge 

different prices for the same small group 

plans based on location, insurers can 

offer a more expensive set of small 

group plans in one part of the state, and 

a less expensive set of different small 

group plans in another part of the state. 

This allows insurers to charge different 

prices for different products to small 

groups based on where employees live 

and work. The Transaction is likely to 

substantially lessen competition for the 

sale of commercial health insurance to 

small groups in all seven of New 

Hampshire’s Core Based Statistical 

Areas (‘‘CBSA’’): (1) The ManchesterNashua CBSA, (2) the Concord CBSA, 

(3) the Laconia CBSA, (4) the Keene 

CBSA, (5) the Berlin CBSA, (6) the New 

Hampshire counties (Grafton and 

Sullivan) of the Lebanon NH–VT CBSA, 

and (7) the New Hampshire counties 

(Rockingham and Strafford) of the 

Boston-Cambridge-Newton MA–NH 

CBSA. 

22. Each of these seven CBSAs is a 

relevant geographic market. A 

hypothetical monopolist over the sale of 

commercial health insurance to small 

groups in each of these markets would 

impose a small but significant and nontransitory increase in price, or SSNIP. A 

small group employer, faced with a 

significant price increase, cannot defeat 

the price increase by purchasing a large 

group product for which it is ineligible. 

This price increase would not be 

defeated by substitution outside the 

relevant market or by arbitrage (meaning 

a small group trying to repurchase 

insurance through another employer 

group). 

B. Commercial Health Insurance Sold to 

CRC Groups 

23. The sale of commercial health 

insurance to CRC groups is a relevant 

antitrust product market. In New 

Hampshire, employers with between 51 

and 99 full-time eligible employees 

represent a distinct segment of large 

group and are referred to as CRC 

employers (or CRC groups). CRC groups 

have different needs and make different 

buying decisions than small groups or 

even larger employers. Harvard Pilgrim 

and Tufts Freedom employ different 

sales strategies for this segment than 

they do for other types of employers. 

24. For CRC groups, similar to small 

groups, health plans are typically fully 

insured, which means that the employer 

pays a premium to the insurance 

company and in return the company 

covers the employees’ healthcare costs. 

Insurers, including Harvard Pilgrim and 

Tufts Freedom, differentiate employers 

with 51 to 99 full-time eligible 

employees from other large group 

employers, and refer to these employers 

as the CRC segment. As with small 

groups, CRC groups also tend to be more 

local in nature than other large group 

employers, requiring a strong local 

provider network, as opposed to large 

group employers with more than 100 

full-time eligible employees, which tend 

to require strong national provider 

networks. 

25. Insurers offering commercial 

health insurance to CRC groups in New 

Hampshire can charge different prices to 

different employers. Group health plans 

for CRC groups, in contrast to larger 

group employers, are typically (although 

not exclusively) community rated by 

class, meaning that, when setting rates 

for CRC groups, the insurer first 

establishes a base rate determined by 

the medical costs of a class of similar 

groups, rather than upon the medical 

costs of the individual group seeking the 

plan. The insurer then uses this base 

rate, along with the individual 

employer’s medical costs, to negotiate 

rates with the specific CRC group. 

26. The Defendants target CRC groups 

directly through their sales efforts. For 

example, Tufts Freedom has focused its 

large group sales efforts on CRC groups 

since it began selling commercial health 

insurance in New Hampshire, and 

Harvard Pilgrim tracks CRC groups 

separately from other large group 

accounts. In addition, both Harvard 

Pilgrim and Tufts Freedom utilize 

specific pricing strategies for CRC 

groups. The Defendants have formulated 

these specific pricing strategies because 

CRC groups in New Hampshire are 

generally more price sensitive than large 

group employers with more than 100 

full-time eligible employees. 

27. As with commercial health 

insurance sold to small groups, New 

Hampshire law does not require that an 

insurer offer a CRC group product 

statewide and therefore permits an 

insurer to offer CRC plans only in 

certain counties. Accordingly, insurers 

can offer more expensive plans to CRC 

groups in one part of the state and less 

expensive plans in another part of the 

state. This allows insurers to charge 

different prices for different products to 

CRC groups based on where employees 

live and work. The Transaction is likely 

to substantially lessen competition for 

the sale of commercial health insurance 

to CRC groups in six separate CBSAs in 

New Hampshire: (1) The ManchesterNashua CBSA, (2) the Concord CBSA, 


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(3) the Laconia CBSA, (4) the Keene 

CBSA, (5) the New Hampshire counties 

(Grafton and Sullivan) of the Lebanon 

NH–VT CBSA, and (6) the New 

Hampshire counties (Rockingham and 

Strafford) of the Boston-CambridgeNewton MA–NH CBSA. 

28. Each of these six CBSAs is a 

relevant geographic market. A 

hypothetical monopolist over the sale of 

commercial health insurance to CRC 

groups in each of these markets would 

impose a small but significant and nontransitory increase in price or SSNIP. 

This price increase would not be 

defeated by substitution outside the 

relevant market or by arbitrage. 

V. The Transaction Is Presumptively 

Illegal 

29. Mergers that significantly increase 

concentration in already concentrated 

markets are presumptively 

anticompetitive and therefore 

presumptively unlawful. 

30. To measure market concentration, 

courts often use the HerfindahlHirschman Index (‘‘HHI’’). HHI is an 

accepted measure of market 

concentration. It is calculated by 

squaring the market share of each firm 

competing in the market and then 

summing the resulting numbers. For 

example, for a market consisting of four 

firms with shares of 30 percent, 30 

percent, 20 percent, and 20 percent, the 

HHI is 2,600 (302 + 302 + 202 + 202 = 

2,600). The HHI recognizes the relative 

size distribution of the firms in a 

market, ranging from 0 in markets with 

no concentration to 10,000 in markets 

where one firm has 100 percent market 

share. See Horizontal Merger Guidelines 

§ 5.3. Courts have found that mergers 

that increase the HHI by more than 200 

and result in an HHI above 2,500 in any 

relevant market or line of commerce are 

presumed to be anticompetitive. 

A. The Relevant Markets Are Highly 

Concentrated and the Transaction 

Would Significantly Increase Their 

Concentration 

31. In the small group market, based 

upon 2018 data, the combined market 

shares for Harvard Pilgrim and Tufts 

Freedom would range from over 45% to 

over 60% in each of the seven CBSAs. 

The Transaction would reduce the 

number of small group health insurers 

from four to three, with the two largest 

insurers—Anthem and the merged 

Harvard Pilgrim/Tufts Freedom— 

possessing over 95% share in each of 

the seven CBSAs. The Transaction 

would result in an HHI increase ranging 

from over 350 points to over 1,600 

points with post-transaction HHIs of 

between 4,500 points and 7,500 points 

for commercial health insurance sold to 

small groups in New Hampshire. Thus, 

the Transaction is presumptively 

unlawful. 

32. For the CRC group market, based 

upon 2018 data, the combined market 

shares for Harvard Pilgrim and Tufts 

Freedom would range from more than 

40% to over 65% in each of the six 

CBSAs. The Transaction would reduce 

the number of CRC group health 

insurers from four to three, with the two 

largest insurers—Anthem and the 

merged Harvard Pilgrim/Tufts 

Freedom—possessing over 95% share in 

each of the six CBSAs. The Transaction 

would result in an HHI increase ranging 

from over 200 to over 2,000 points in 

the CRC group market with posttransaction HHIs of just under 5,000 to 

almost 7,000 for CRC groups in New 

Hampshire. Thus, the Transaction is 

presumptively unlawful. 

B. The Transaction Likely Would Harm 

Consumers in New Hampshire 

33. Harvard Pilgrim and Tufts 

Freedom are particularly close 

competitors for commercial health 

insurance sold to small groups and CRC 

groups in New Hampshire with 

competition between the two insurers 

more robust for certain types of groups 

than the market shares would predict. 

This is in part because Harvard Pilgrim 

and Tufts Freedom—two strong local 

health insurers that have not built 

national provider networks—are more 

attractive to small groups and CRC 

groups with higher percentages of 

employees resident in New Hampshire. 

Similarly, because Harvard Pilgrim and 

Tufts Freedom have priced aggressively, 

the two appeal to small groups and CRC 

groups that have greater price 

sensitivity. 

34. Tufts Freedom’s entry into New 

Hampshire in 2016 was backed by its 

Granite Healthcare provider partners, 

which formed the core of Tufts 

Freedom’s provider network and 

extended it substantially below-market 

rates, enabling it to price aggressively. 

Using a combination of competitive 

pricing and a strong provider network, 

Tufts Freedom significantly grew its 

small group market share throughout 

New Hampshire after entering the state 

in 2016, with its share reaching almost 

20% by 2019. Tufts Freedom achieved 

much of this growth at the expense of 

Harvard Pilgrim. As a result, and as 

Harvard Pilgrim recognized, the New 

Hampshire small group market became 

a three-player market, consisting of 

Harvard Pilgrim, Tufts Freedom, and 

Anthem. 

35. Tufts Freedom’s aggressive pricing 

and growth caused Harvard Pilgrim to 

respond by significantly lowering prices 

and improving plan features to be more 

competitive with Tufts Freedom. This 

response included a strategy of targeting 

its competitors’ ‘‘sweet spots,’’ meaning 

lowering its rates on plans that 

competed with the most popular 

offerings of its competitors. Tufts 

Freedom observed this competitive 

reaction and in turn responded by 

announcing lower than expected rate 

increases. The Transaction would 

eliminate this fierce competition 

between Harvard Pilgrim and Tufts 

Freedom and its resulting benefits to 

consumers in New Hampshire. 

36. Direct competition between 

Harvard Pilgrim and Tufts Freedom in 

New Hampshire also has benefitted CRC 

groups. Again, Tufts Freedom entered 

New Hampshire pursuing a targeted 

pricing strategy that allowed it to gain 

market share. Harvard Pilgrim reacted to 

this competitive pressure resulting in 

lower health insurance prices for CRC 

groups. 

37. In addition to this price 

competition, New Hampshire 

consumers also have benefitted from 

competition between Harvard Pilgrim 

and Tufts Freedom on plan features and 

quality of service for commercial health 

insurance sold to CRC groups. For 

example, in 2019, Harvard Pilgrim 

developed four new no-coinsurance 

plans, which limited out-of-pocket 

expenses to insureds and offered 

different features, with the express 

purpose of making them more attractive 

to the insureds. Just this year, Tufts 

Freedom offered consumers a novel 

telehealth option that included zero 

copayment in fully insured plans in 

order to drive innovation around this 

new emerging platform. 

38. Harvard Pilgrim and Tufts 

Freedom have engaged in head-to-head 

competition on price, plan features, and 

quality of service in the sale of 

commercial health insurance to small 

groups and to CRC groups in New 

Hampshire. Eliminating this 

competition would likely result in 

higher prices, lower quality, and less 

customer choice in the sale of 

commercial health insurance to small 

groups and to CRC groups in New 

Hampshire. 

VI. Absence of Countervailing Factors 

39. Other firms are unlikely to enter 

or expand into the relevant markets in 

a manner that would be timely, likely, 

or sufficient to replace the competition 

that would be lost as a result of the 

Transaction. 

40. Each of the relevant markets is 

characterized by high barriers to entry, 

including state licensing and regulatory 


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requirements, the cost of developing a 

comprehensive provider network where 

employees live and work, the inability 

of insurers without significant 

membership to obtain competitive 

discounts from providers, and the 

development of sufficient business to 

permit the spreading of risk. 

41. The Transaction will not result in 

verifiable, transaction-specific 

efficiencies in the relevant markets 

sufficient to reverse the Transaction’s 

likely anticompetitive effects. 

VII. Violation Alleged 

42. Plaintiffs allege and incorporate 

paragraphs 1 through 41 as if set forth 

fully herein. 

43. Unless enjoined, the Transaction 

is likely to substantially lessen 

competition in the relevant markets, in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

44. Among other things, the 

Transaction would: 

(a) Eliminate present and future 

competition between Harvard Pilgrim 

and Health Plan Holdings in New 

Hampshire; 

(b) likely cause prices for commercial 

health insurance sold to small groups 

and to CRC groups in New Hampshire 

to be higher than they would be 

otherwise; and 

(c) likely reduce quality, service, 

choice, and innovation for commercial 

health insurance sold to small groups 

and to CRC groups in New Hampshire. 

VIII. Request for Relief 

45. Plaintiffs request that: 

(a) The Transaction be adjudged to 

violate Section 7 of the Clayton Act, 15 

U.S.C. 18; 

(b) the Court permanently enjoin and 

restrain Defendants from entering into 

the Transaction contemplated in the 

Combination Agreement; 

(c) Plaintiffs be awarded the costs of 

this action, including attorneys’ fees to 

the State of New Hampshire; and 

(d) Plaintiffs be awarded any other 

relief that the Court deems just and 

proper. 

Dated: December 14, 2020. 

Respectfully submitted, 

For Plaintiff United States of America: 

lllllllllllllllllllll

Makan Delrahim, 

Assistant Attorney General for Antitrust. 

lllllllllllllllllllll

Michael Murray, 

Principal Deputy Assistant, Attorney 

General. 

lllllllllllllllllllll

Kathleen S. O’Neill, 

Acting Deputy Assistant, Attorney General. 

lllllllllllllllllllll

Eric D. Welsh, 

Chief, Healthcare and Consumer Products 

Section. 

lllllllllllllllllllll

Jill C. Maguire, 

Assistant Chief, Healthcare and Consumer 

Products Section. 

For the Plaintiff State of New Hampshire. 

By its attorney, 

lllllllllllllllllllll

Gordon J. MacDonald, 

Attorney General of New Hampshire. 

lllllllllllllllllllll

Brandon H. Garod, NH Bar #21164, 

Senior Assistant Attorney General. 

Consumer Protection and Antitrust 

Bureau,New Hampshire Department of 

Justice, Office of Attorney General, 33 Capitol 

Street, Concord, NH 03301, Phone: (603) 

271–1217, brandon.garod@doj.nh.gov. 

lllllllllllllllllllll

Jennifer Foley, NH Bar #10519, 

Assistant Attorney General. 

Consumer Protection and Antitrust Bureau, 

New Hampshire Department of Justice, Office 

of Attorney General, 33 Capitol Street, 

Concord, NH 03301, Phone: (603) 271–7987 

Jennifer.Foley@doj.nh.gov. 

lllllllllllllllllllll

Scott W. Murray, 

United States Attorney. 

By: lllllllllllllllllll

Michael McCormack, 

Assistant U.S. Attorney, NH Bar. #16470. 

United States Attorney’s Office,53 Pleasant 

Street, Concord, NH 03301, Tel: (603) 225– 

1552, Email: michael.mccormack2@

usdoj.gov. 

lllllllllllllllllllll

Catherine R. Reilly 

Garrett Liskey 

Justin Dempsey 

Jeremy Evans 

Chris S. Hong 

Barry Joyce 

John P. Lohrer 

Natalie Melada 

David M. S 

Brandon Storm 

Attorneys for the United States. 

U.S. Department of Justice, Antitrust 

Division, 450 5th Street, NW, Suite 4100, 

Washington, D.C. 20530, Tel.: (202) 598– 

2744, Email: catherine.reilly@usdoj.gov 

United States District Court for the 

District of New Hampshire 

United States of America and State of New 

Hampshire, Plaintiffs, vs. Harvard Pilgrim 

Health Care, INC., and Health Plan Holdings, 

INC., Defendants. 

Civil Action No. 1:20-cv-01183–JL 

Judge Joseph N. Laplante 

[Proposed] Final Judgment 

Whereas, Plaintiffs, United States of 

America and the State of New 

Hampshire, filed their Complaint on 

December 14, 2020; 

And whereas, Plaintiffs and 

Defendants, Harvard Pilgrim Health 

Care, Inc. and Health Plan Holdings, 

Inc. (f/k/a Tufts Health Plan, Inc.), have 

consented to entry of this Final 

Judgment without the taking of 

testimony, 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 

make a divestiture to remedy the loss of 

competition alleged in the Complaint; 

And whereas, Defendants represent 

that the divestiture and other relief 

required by this Final Judgment can and 

will be made and that Defendants will 

not later raise a claim of hardship or 

difficulty as grounds for asking the 

Court to modify any provision of this 

Final Judgment; 

And whereas, the resolution of the 

interests of the State of New Hampshire 

through its Consumer Protection and 

Antitrust Bureau pursuant to Section 7 

of the Clayton Act and the state antitrust 

law, N.H. Rev. Stat. Ann. Ch. 356, does 

not impact the jurisdiction or authority 

of the New Hampshire Insurance 

Department to pursue any interest 

authorized by law. 

Now therefore, it is ordered, adjudged, 

and decreed: 

I. Jurisdiction 

The Court has jurisdiction over the 

subject matter of and each of the parties 

to 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. 

18). 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Harvard Pilgrim’’ means 

Defendant Harvard Pilgrim Health Care, 

Inc., a Massachusetts nonprofit 

corporation with its headquarters in 

Wellesley, Massachusetts, its successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships, and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

B. ‘‘Health Plan Holdings’’ means 

Defendant Health Plan Holdings, Inc. (f/ 

k/a Tufts Health Plan, Inc.), a 

Massachusetts nonprofit corporation 

with its headquarters in Watertown, 

Massachusetts, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘Tufts Health Freedom Plan’’ 

means Tufts Health Freedom Plans, Inc., 

its successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 


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ventures, and their directors, officers, 

managers, agents, and employees. 

D. ‘‘Acquirer’’ means UnitedHealth 

Group, Inc. or another entity approved 

by the United States of America in its 

sole discretion to whom Defendants 

divest the Divestiture Assets. 

E. ‘‘CRC’’ means community rating by 

class, which refers to the sale of 

commercial group health insurance to 

private employers with between 51 and 

99 full-time eligible employees. 

F. ‘‘Divestiture Assets’’ means: 

1. All Healthcare Provider Contracts; 

2. All of Defendants’ rights, title, and 

interests in and to all property and 

assets, tangible and intangible, wherever 

located, of Tufts Health Freedom Plan, 

including: 

a. All licenses, permits, certifications, 

approvals, consents, registrations, 

waivers, and authorizations issued or 

granted by any governmental 

organization, and all pending 

applications or renewals; 

b. All real property interests, 

including leases; and 

c. All contracts, other than Healthcare 

Provider Contracts, to which Tufts 

Health Freedom Plan is a party, 

including contractual rights, 

membership, customer contracts, and all 

other agreements, commitments, and 

understandings. 

3. All current and historical member 

records for the health plans that Tufts 

Health Freedom Plan offers or has 

offered, including contact information, 

claims information, clinical 

information, all underlying electronic 

data, and all files that contain any 

current or historical member records for 

those health plans; 

4. All provider-furnished data related 

to members of health plans that Tufts 

Health Freedom Plan offers or has 

offered and all files that contain any 

provider-furnished data related to those 

health plans; and 

5. An exclusive license to use the 

‘‘Tufts Health Freedom,’’ ‘‘Tufts Health 

Freedom Insurance Company,’’ and 

‘‘Tufts Health Freedom Plan(s)’’ brand 

names, and all associated trademarks, 

service marks, and service names, in 

New Hampshire from the date on which 

the Divestiture Assets are divested to 

Acquirer through December 31, 2021. 

G. ‘‘Granite Healthcare’’ means 

Granite Healthcare Asset Holding 

Company, LLC, its subsidiaries, 

divisions, groups, affiliates, 

partnerships, and joint ventures as of 

July 1, 2020, and their members, 

directors, officers, managers, agents, and 

employees. Its members include 

Catholic Medical Center, Concord 

Hospital, Southern New Hampshire 

Health System, Wentworth-Douglass 

Hospital, and Delta Dental Plan of New 

Hampshire, Inc. d/b/a Northeast Delta 

Dental. 

H. ‘‘Granite Healthcare Provider 

Contracts’’ means the contracts with 

Catholic Medical Center, Concord 

Hospital, Southern New Hampshire 

Health System, and WentworthDouglass Hospital, and any other 

hospitals that had an ownership interest 

in Granite Healthcare as of July 1, 2020, 

to which Tufts Health Freedom Plan is 

a signatory. 

I. ‘‘Healthcare Provider Contracts’’ 

means contracts with healthcare 

providers to which Tufts Health 

Freedom Plan is a signatory, including 

the Granite Healthcare Provider 

Contracts. 

J. ‘‘Including’’ means including but 

not limited to. 

K. ‘‘Recruitment Period’’ means the 

period of 60 calendar days from the date 

on which the Divestiture Assets are 

divested to Acquirer. 

L. ‘‘Regulatory Approvals’’ means any 

approvals or clearances pursuant to 

Health Plan Holdings’ November 16, 

2020 Form A filed with the 

Massachusetts Division of Insurance 

that are required for the proposed 

combination of Health Plan Holdings 

and Harvard Pilgrim to proceed. 

M. ‘‘Relevant Personnel’’ means every 

employee of Health Plan Holdings based 

in or assigned to New Hampshire in 

calendar year 2020 who (1) holds the 

title of President; Senior Executive 

Assistant; Public Policy Manager; Small 

and Large Group Account Executive; 

Senior Account Executive; Sales and 

Account Associate; Small Group 

Account Manager; Key Account 

Manager; Large Group Account 

Manager; Senior Manager, Strategic 

Marketing; Senior Provider Group 

Manager; or Small Group Account 

Manager; and (2) has responsibility for 

Small Group or CRC for Tufts Health 

Freedom Plan. The United States, in its 

sole discretion, will resolve any 

disagreement regarding which 

employees are Relevant Personnel. 

N. ‘‘Run-out Services’’ means services 

that are customarily provided following 

an operational transfer of health 

insurance plans and that require 

Defendants’ ongoing support, including 

claims processing, claims reporting, 

administrative support, and routine 

investigations necessary for claims 

processing. 

O. ‘‘Small Group’’ means the sale of 

commercial group health insurance to 

private employers with between 1 and 

50 full-time eligible employees. 

P. ‘‘United’’ means UnitedHealth 

Group, Inc., a Delaware corporation 

with its headquarters in Minnetonka, 

Minnesota, its successors and assigns, 

and its subsidiaries, including its 

subsidiary United Healthcare Services, 

Inc., divisions, groups, affiliates, 

partnerships, and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

III. Applicability 

A. This Final Judgment applies to 

Harvard Pilgrim and Health Plan 

Holdings, as defined above, and all 

other persons in active concert or 

participation with any Defendant who 

receive actual notice of this Final 

Judgment. 

B. If, prior to complying with Section 

IV and Section V of this Final Judgment, 

Defendants sell or otherwise dispose of 

all or substantially all of their assets or 

of business units that include the 

Divestiture Assets, Defendants must 

require any purchaser to be bound by 

the provisions of this Final Judgment. 

Defendants need not obtain such an 

agreement from Acquirer. 

IV. Divestiture 

A. Defendants are ordered and 

directed, within 30 calendar days after 

the Court’s entry of the Asset 

Preservation Stipulation and Order 

(‘‘Stipulation and Order’’) in this matter, 

to divest the Divestiture Assets in a 

manner consistent with this Final 

Judgment to United or to another 

Acquirer acceptable to the United 

States, in its sole discretion, after 

consultation with the State of New 

Hampshire. 

B. If Defendants have not received all 

Regulatory Approvals within 30 

calendar days after the Court’s entry of 

the Stipulation and Order in this matter, 

the time period under Paragraph IV.A 

will be extended until 5 calendar days 

after all Regulatory Approvals are 

received. This extension allowed for 

securing Regulatory Approvals shall be 

no longer than 60 calendar days past the 

time period provided in Paragraph IV.A, 

unless the United States, in its sole 

discretion, consents to an additional 

extension. 

C. Defendants must use their best 

efforts to divest the Divestiture Assets as 

expeditiously as possible and may not 

take any action to impede the 

permitting, operation, or divestiture of 

the Divestiture Assets. 

D. Unless the United States otherwise 

consents in writing, divestiture 

pursuant to this Final Judgment must 

include the entire Divestiture Assets, 

and must be accomplished in such a 

way as to satisfy the United States, in its 

sole discretion, that the Divestiture 

Assets can and will be used by Acquirer 

as part of a viable, ongoing business to 


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compete effectively in Small Group and 

CRC in New Hampshire and that the 

divestiture to Acquirer will remedy the 

competitive harm alleged in the 

Complaint. 

E. The divestiture must be made to an 

Acquirer that, in the United States’ sole 

judgment, after consultation with the 

State of New Hampshire, has the intent 

and capability (including the necessary 

managerial, operational, technical, and 

financial capability) to compete 

effectively in Small Group and CRC in 

New Hampshire. 

F. The divestiture must be 

accomplished so as to satisfy the United 

States, in its sole discretion, after 

consultation with the State of New 

Hampshire, that none of the terms of 

any agreement between Acquirer and 

Defendants gives Defendants the ability 

unreasonably to raise Acquirer’s costs, 

to lower Acquirer’s efficiency, or 

otherwise to interfere in the ability of 

Acquirer to compete effectively in Small 

Group and CRC in New Hampshire. 

G. Defendants must permit Acquirer 

to have reasonable access to personnel 

and access, subject to customary 

confidentiality assurances, to any and 

all financial, operational, or other 

documents and information regarding 

the Divestiture Assets customarily 

provided as part of a due diligence 

process. 

H. In the event Defendants are 

attempting to divest the Divestiture 

Assets to an Acquirer other than United, 

Defendants promptly must make 

known, by usual and customary means, 

the availability of the Divestiture Assets. 

Defendants must inform any person 

making an inquiry regarding a possible 

purchase of the Divestiture Assets that 

the Divestiture Assets are being divested 

in accordance with this Final Judgment 

and must provide that person with a 

copy of this Final Judgment. Defendants 

must offer to furnish and promptly 

provide to all prospective Acquirers, 

subject to customary confidentiality 

assurances, all information and 

documents relating to the Divestiture 

Assets that are customarily provided in 

a due-diligence process, including all 

information and documents provided to 

United; provided, however, that 

Defendants need not provide 

information or documents subject to the 

attorney-client privilege or workproduct doctrine. Defendants must 

make all information and documents 

available to the United States at the 

same time that the information and 

documents are made available to any 

other person. 

I. Defendants must cooperate with 

and assist Acquirer in identifying 

Relevant Personnel and, at the option of 

Acquirer, in hiring any Relevant 

Personnel, including: 

1. No later than five business days 

following the filing of the Complaint in 

this matter, Defendants must provide to 

Acquirer and Plaintiffs, a list of all 

Relevant Personnel. 

2. Following the filing of the 

Complaint in this matter, within seven 

business days following receipt of a 

request by Acquirer or the United 

States, Defendants must provide to 

Acquirer and Plaintiffs, additional 

information related to Relevant 

Personnel, including name, job title, 

reporting relationships, past experience, 

responsibilities, training and 

educational history, relevant 

certifications, job performance 

evaluations. Defendants must also 

provide to Acquirer current, recent, and 

accrued compensation and benefits, 

including most recent bonuses paid, 

aggregate annual compensation, current 

target or guaranteed bonus, if any, any 

retention agreement or incentives, and 

any other payments due, compensation 

or benefits accrued, or promises made to 

Relevant Personnel. If Defendants are 

barred by any applicable laws from 

providing any of this information, 

Defendants must provide, within seven 

business days following receipt of the 

request, the requested information to the 

full extent permitted by law and also 

must provide a written explanation of 

Defendants’ inability to provide the 

remaining information, including 

specifically identifying the provisions of 

the applicable laws. 

3. At the request of Acquirer, 

Defendants must promptly make 

Relevant Personnel available for private 

interviews with Acquirer during normal 

business hours at a mutually agreeable 

location. 

4. Defendants must not interfere with 

any effort by Acquirer to employ any 

Relevant Personnel. Interference 

includes offering to increase the 

compensation or benefits of Relevant 

Personnel unless the offer is part of a 

company-wide increase in 

compensation or benefits granted that 

was announced prior to May 1, 2020, or 

has been approved by the United States, 

in its sole discretion. Defendants’ 

obligations under this Paragraph I.4. 

will expire after the Recruitment Period. 

5. For Relevant Personnel who elect 

employment with Acquirer during the 

Recruitment Period, Defendants must 

waive all non-compete and nondisclosure agreements; vest and pay to 

the Relevant Personnel (or to Acquirer 

for payment to the employee) on a 

prorated basis any bonuses, incentives, 

other salary, benefits, or other 

compensation fully or partially accrued 

at the time of the transfer of the 

employee to Acquirer; vest any 

unvested pension and other equity 

rights; and provide all other benefits 

that those Relevant Personnel otherwise 

would have been provided had the 

Relevant Personnel continued 

employment with Defendants, including 

any retention bonuses or payments. 

Defendants may maintain reasonable 

restrictions on disclosure by Relevant 

Personnel of Defendants’ proprietary 

non-public information that is unrelated 

to the Divestiture Assets and not 

otherwise required to be disclosed by 

this Final Judgment. 

6. Acquirer’s right to hire Relevant 

Personnel under Paragraph IV.I. lasts 

throughout the duration of the 

Recruitment Period. 

7. For a period of one year from the 

date on which the Divestiture Assets are 

divested to Acquirer, Defendants may 

not solicit to rehire Relevant Personnel 

who were hired by Acquirer during the 

Recruitment Period, unless (a) an 

individual is terminated or laid off by 

Acquirer or (b) Acquirer agrees in 

writing that Defendants may solicit to 

rehire that individual. Nothing in this 

Paragraph prohibits Defendants from 

advertising employment openings using 

general solicitations or advertisements 

and rehiring Relevant Personnel who 

apply for an employment opening 

through a general solicitation or 

advertisement. 

J. Defendants must warrant to 

Acquirer that (1) the Divestiture Assets 

will be operational and without material 

defect on the date of their transfer to 

Acquirer; (2) there are no material 

defects in any permits pertaining to the 

operation of the Divestiture Assets; and 

(3) Defendants have disclosed all 

encumbrances on any part of the 

Divestiture Assets, including on 

intangible property. Following the sale 

of the Divestiture Assets, Defendants 

must not undertake, directly or 

indirectly, challenges to any permits 

pertaining to the operation of the 

Divestiture Assets. 

K. Defendants must make best efforts 

to assist Acquirer to obtain all necessary 

licenses, registrations, and permits to 

operate the Divestiture Assets. Until 

Acquirer obtains the necessary licenses, 

registrations, and permits, Defendants 

must provide Acquirer with the benefit 

of Defendants’ licenses, registrations, 

and permits to the full extent 

permissible by law. 

L. Defendants must make best efforts 

to transition customers from the Health 

Plan Holdings operating platform to 

Acquirer’s operating platform beginning 

July 1, 2021, and ending by December 

31, 2021. 


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M. At the option of Acquirer, and 

subject to approval by the United States, 

in its sole discretion, on or before the 

date on which the Divestiture Assets are 

divested to Acquirer, Defendants must 

enter into one or more agreements to 

provide transition services for a period 

ending no later than December 31, 2021, 

or, if Acquirer is not United, for a period 

of one year from the date of divestiture, 

on terms and conditions reasonably 

related to market conditions and must 

fully perform the duties and obligations 

of such agreements. The transition 

services to be provided by Defendants to 

Acquirer under such agreements must 

encompass all services necessary for the 

Acquirer to operate the Divestiture 

Assets, including: (1) Providing the 

operational platform and systems 

infrastructure to run the Divestiture 

Assets, including appropriate hardware 

and software; (2) preparing regulatory 

plan submissions, including filing and 

securing regulatory approval, for 

product, rate, and other required 

submissions; (3) handling member 

services and enrollment, the processing 

and administration of claims, routine 

investigations, and member appeals and 

grievances; (4) providing and preparing 

claims reports; (5) performing 

accounting and billing, finance support, 

and payment integrity maintenance; (6) 

providing care management services; (7) 

providing regulatory compliance; (8) 

processing vendor costs; (9) providing 

benefits configuration; (10) providing 

broker and employer services; (11) 

handling provider services and appeals; 

(12) processing provider demographic, 

contract, and fee schedules updates; (13) 

maintaining coordination of benefits 

programs; (14) providing underwriting 

support services; and (15) making 

personnel available to assist Acquirer 

with operational questions and issues. 

Any amendments to or modifications of 

any provision of a transition services 

agreement are subject to approval by the 

United States, in its sole discretion. 

Acquirer may terminate a transition 

services agreement, or any portion of a 

transition services agreement, without 

cost or penalty at any time upon 

commercially reasonable notice. The 

employee(s) of Defendants tasked with 

providing transition services must not 

share any competitively sensitive 

information of Acquirer with any other 

employee of Defendants, unless such 

sharing is for the sole purpose of 

providing transition services to 

Acquirer. 

N. At the option of Acquirer, and 

subject to approval by the United States 

in its sole discretion, on or before the 

date on which the Divestiture Assets are 

divested to Acquirer, Defendants must 

enter into one or more agreements to 

provide Run-out Services to Acquirer 

from the date of each customer’s 

transition to Acquirer’s operating 

platform to June 30, 2022. At Acquirer’s 

option, after written notice to the United 

States, Defendants must extend any 

contract for Run-out Services for a total 

of up to an additional 90 days. 

Defendants must provide Run-out 

Services on terms and conditions 

reasonably related to market conditions. 

Any amendments to or modifications of 

any provision of a Run-out Services 

agreement are subject to approval by the 

United States, in its sole discretion. 

Acquirer may terminate a Run-out 

Services agreement, or any portion of a 

Run-out Services agreement, without 

cost or penalty at any time upon 

commercially reasonable notice. The 

employee(s) of Defendants tasked with 

providing Run-out Services must not 

share any competitively sensitive 

information of Acquirer with any other 

employee of Defendants, unless such 

sharing is for the sole purpose of 

providing Run-out Services to Acquirer. 

O. Except for Healthcare Provider 

Contracts, Defendants must make any 

required notifications and use best 

efforts to obtain all necessary consents 

of the contracting party to the change of 

control of Tufts Health Freedom Plan to 

Acquirer. Defendants must not interfere 

with any negotiations between Acquirer 

and a contracting party. 

P. Defendants warrant that as of the 

date on which the Divestiture Assets are 

divested to Acquirer, the Granite 

Healthcare Provider Contracts have not 

expired or terminated, will run through 

at least December 31, 2021, and will be 

on the same rates and terms that were 

in effect as of October 1, 2020, except 

for any increase in rates that is (a) no 

greater than a rate increase imposed on 

Health Plan Holdings between October 

1, 2020 and April 1, 2021, and (b) 

reasonably related to market conditions. 

Q. Defendants must make best efforts 

and must cooperate with and assist 

Acquirer to ensure that Acquirer will 

retain all of the Healthcare Provider 

Contracts. Best efforts includes the 

following: 

1. For Healthcare Provider Contracts 

with Tufts Health Freedom Plan’s 

fifteen largest healthcare providers in 

New Hampshire, as measured by Tufts 

Health Freedom Plan’s 2019 claims 

volume, that do not require notification 

of a change in ownership or control of 

Tufts Health Freedom Plan, Defendants 

must ensure that as of the date on which 

the Divestiture Assets are divested to 

Acquirer, the contracts have not expired 

or terminated and include the same 

rates and terms that were in effect as of 

October 1, 2020, except for any increase 

in rates that is (a) no greater than a rate 

increase imposed on Health Plan 

Holdings between October 1, 2020 and 

April 1, 2021, and (b) reasonably related 

to market conditions. 

2. For all Healthcare Provider 

Contracts that require a provider’s 

consent to a change in ownership or 

control of Tufts Health Freedom Plan, or 

that allow a provider to terminate the 

contract upon notice of a change in 

ownership or control, Defendants must 

notify each such provider of the change 

in ownership or control within 30 

calendar days of entering into an 

agreement to divest the Divestiture 

Assets to Acquirer. Except for 

Healthcare Provider Contracts for which 

the time to exercise any termination 

rights has expired without the provider 

terminating the contract or giving 

Defendants written notice of an intent to 

terminate, Defendants must use best 

efforts to obtain any necessary consent 

to a change in ownership or control or 

written acknowledgment that a provider 

will not terminate because of a change 

in ownership or control. 

3. For any Healthcare Provider 

Contract that is terminated or for which 

a provider gives written notice of its 

intent to terminate within 90 days from 

the date on which the Divestiture Assets 

are divested to Acquirer, at Acquirer’s 

request, Defendants must assist 

Acquirer to secure a new contract with 

that provider as expeditiously as 

possible by sharing information with 

Acquirer concerning the history of the 

provider’s participation in the Tufts 

Health Freedom Plan, including the 

performance of the contract and any 

material disputes relating to the 

contract, and assisting Acquirer in 

developing strategies to retain or bring 

the provider in-network and on the 

same rates and terms that were in effect 

as of October 1, 2020, except for any 

increase in rates that is (a) no greater 

than a rate increase imposed on Health 

Plan Holdings between October 1, 2020 

and April 1, 2021, and (b) reasonably 

related to market conditions. 

4. If a provider terminates or gives 

written notice of its intent to terminate 

any Healthcare Provider Contract within 

90 days from the date on which the 

Divestiture Assets are divested to 

Acquirer and Acquirer is unable to 

secure a contract with the provider 

before the contract terminates, and 

either (1) the provider is one of Tufts 

Health Freedom Plan’s fifteen largest 

healthcare providers in New Hampshire, 

as measured by Tufts Health Freedom 

Plan’s 2019 claims volume, or (2) the 

termination would result in Tufts 


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Health Freedom Plan not meeting 

provider network adequacy standards 

required by applicable law or 

regulation, at Acquirer’s request, 

Defendants must, to the full extent 

permitted by the terms of Defendants’ 

provider contracts, immediately enter 

into a rental, lease, or similar contract 

to provide Acquirer with in-network 

access to the relevant healthcare 

provider(s) for a period of 12 months 

from the date on which the Divestiture 

Assets are divested to Acquirer. 

Defendants may charge Acquirer no 

more than Defendants’ costs paid to the 

relevant healthcare provider(s), without 

adding any mark-up, for the provision of 

such rental, lease, or similar contract. 

5. For all Healthcare Provider 

Contracts that will expire between the 

filing of the Complaint in this matter 

and 90 days after the date on which the 

Divestiture Assets are divested to 

Acquirer, Defendants must use best 

efforts to expeditiously renew each 

contract to avoid a termination and outof-network status for that provider, on 

the same rates and terms that were in 

effect as of October 1, 2020, except for 

any increase in rates that is (a) no 

greater than a rate increase imposed on 

Health Plan Holdings between October 

1, 2020 and April 1, 2021, and (b) 

reasonably related to market conditions. 

R. From the date on which the 

Divestiture Assets are divested to 

Acquirer through December 31, 2021, 

Defendants must not sell any 

commercial health insurance products 

in New Hampshire that use the ‘‘Tufts 

Health’’ or ‘‘Tufts Health Plan’’ brand(s) 

(and all associated trademarks, service 

marks, and service names). This 

Paragraph does not prohibit Defendants 

from using the ‘‘Tufts Health’’ or ‘‘Tufts 

Health Plan’’ brand(s) for group retiree 

plans, Medicaid plans, or Medicare 

plans in New Hampshire. 

S. Beginning on the date on which the 

Divestiture Assets are divested to 

Acquirer, Defendants must not use the 

terms ‘‘Health Freedom Plan(s),’’ 

‘‘Freedom,’’ and/or ‘‘Freedom Plan(s)’’ 

for any business name or to identify, 

market, or promote any products or 

services in New Hampshire. 

T. If any term of an agreement 

between Defendants and Acquirer to 

effectuate the divestiture required by 

this Final Judgment varies from a term 

of this Final Judgment, to the extent that 

Defendants cannot fully comply with 

both, this Final Judgment determines 

Defendants’ obligations. 

V. Appointment of Divestiture Trustee 

A. If Defendants have not divested the 

Divestiture Assets within the period 

specified in Paragraphs IV.A. and IV.B., 

Defendants must immediately notify 

Plaintiffs of that fact in writing. Upon 

application of the United States, the 

Court will appoint a divestiture trustee 

selected by the United States and 

approved by the Court to effect the 

divestiture of the Divestiture Assets. 

B. After the appointment of a 

divestiture trustee by the Court, only the 

divestiture trustee will have the right to 

sell the Divestiture Assets. The 

divestiture trustee will have the power 

and authority to accomplish the 

divestiture to an Acquirer acceptable to 

the United States, in its sole discretion, 

after consultation with the State of New 

Hampshire, at a price and on terms as 

are then obtainable upon reasonable 

effort by the divestiture trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and will have 

other powers as the Court deems 

appropriate. The divestiture trustee 

must sell the Divestiture Assets as 

quickly as possible. 

C. Defendants may not object to a sale 

by the divestiture trustee on any ground 

other than malfeasance by the 

divestiture trustee. Objections by 

Defendants must be conveyed in writing 

to Plaintiffs and the divestiture trustee 

within ten calendar days after the 

divestiture trustee has provided the 

notice of proposed divestiture required 

under Section VI. 

D. The divestiture trustee will serve at 

the cost and expense of Defendants 

pursuant to a written agreement, on 

terms and conditions, including 

confidentiality requirements and 

conflict of interest certifications, that are 

approved by the United States. 

E. The divestiture trustee may hire at 

the cost and expense of Defendants any 

agents or consultants, including, but not 

limited to, investment bankers, 

attorneys, and accountants, that are 

reasonably necessary in the divestiture 

trustee’s judgment to assist with the 

divestiture trustee’s duties. These agents 

or consultants will be accountable 

solely to the divestiture trustee and will 

serve on terms and conditions, 

including terms and conditions 

governing confidentiality requirements 

and conflict-of-interest certifications, 

that are approved by the United States. 

F. The compensation of the 

divestiture trustee and agents or 

consultants hired by the divestiture 

trustee must be reasonable in light of the 

value of the Divestiture Assets and 

based on a fee arrangement that 

provides the divestiture trustee with 

incentives based on the price and terms 

of the divestiture and the speed with 

which it is accomplished. If the 

divestiture trustee and Defendants are 

unable to reach agreement on the 

divestiture trustee’s compensation or 

other terms and conditions of 

engagement within 14 calendar days of 

the appointment of the divestiture 

trustee by the Court, the United States 

may, in its sole discretion, take 

appropriate action, including by making 

a recommendation to the Court. Within 

three business days of hiring an agent or 

consultant, the divestiture trustee must 

provide written notice of the hiring and 

rate of compensation to Defendants and 

the United States. 

G. The divestiture trustee must 

account for all monies derived from the 

sale of the Divestiture Assets sold by the 

divestiture trustee and all costs and 

expenses incurred. Within 30 calendar 

days of the date of the sale of the 

Divestiture Assets, the divestiture 

trustee must submit that accounting to 

the Court for approval. After approval 

by the Court of the divestiture trustee’s 

accounting, including fees for unpaid 

services and those of agents or 

consultants hired by the divestiture 

trustee, all remaining money must be 

paid to Defendants and the trust will 

then be terminated. 

H. Defendants must use their best 

efforts to assist the divestiture trustee to 

accomplish the required divestiture. 

Subject to reasonable protection for 

trade secrets, other confidential 

research, development, or commercial 

information, or any applicable 

privileges, Defendants must provide the 

divestiture trustee and agents or 

consultants retained by the divestiture 

trustee with full and complete access to 

all personnel, books, records, and 

facilities of the Divestiture Assets. 

Defendants also must provide or 

develop financial and other information 

relevant to the Divestiture Assets that 

the divestiture trustee may reasonably 

request. Defendants may not take any 

action to interfere with or to impede the 

divestiture trustee’s accomplishment of 

the divestiture. 

I. The divestiture trustee must 

maintain complete records of all efforts 

made to sell the Divestiture Assets, 

including by filing monthly reports with 

Plaintiffs setting forth the divestiture 

trustee’s efforts to accomplish the 

divestiture ordered by this Final 

Judgment. The reports must 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 the Divestiture 

Assets and must describe in detail each 

contact with any such person. 

J. If the divestiture trustee has not 

accomplished the divestiture ordered by 


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this Final Judgment within six months 

of appointment, the divestiture trustee 

must promptly provide Plaintiffs with a 

report setting forth: (1) The divestiture 

trustee’s efforts to accomplish the 

required divestiture; (2) the reasons, in 

the divestiture trustee’s judgment, why 

the required divestiture has not been 

accomplished; and (3) the divestiture 

trustee’s recommendations for 

completing the divestiture. Following 

receipt of that report, the United States 

may make additional recommendations 

consistent with the purpose of the trust 

to the Court. The Court thereafter may 

enter such orders as it deems 

appropriate to carry out the purpose of 

this Final Judgment, which may include 

extending the trust and the term of the 

divestiture trustee’s appointment by a 

period requested by the United States. 

K. The divestiture trustee will serve 

until divestiture of all Divestiture Assets 

is completed or for a term otherwise 

ordered by the Court. 

L. If the United States determines that 

the divestiture trustee is not acting 

diligently or in a reasonably costeffective manner, the United States may 

recommend that the Court appoint a 

substitute divestiture trustee. 

VI. Notice of Proposed Divestiture 

A. Within two business days 

following execution of a definitive 

divestiture agreement with a proposed 

Acquirer other than United, Defendants 

or the divestiture trustee, whichever is 

then responsible for effecting the 

divestiture, must notify Plaintiffs of a 

proposed divestiture required by this 

Final Judgment. If the divestiture trustee 

is responsible for completing the 

divestiture, the divestiture trustee also 

must notify Defendants. The notice 

must 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. 

B. Within 15 calendar days of receipt 

by the United States of this notice, the 

United States, in its sole discretion, may 

request from Defendants, the proposed 

Acquirer, other third parties, or the 

divestiture trustee additional 

information concerning the proposed 

divestiture, the proposed Acquirer, and 

other prospective Acquirers. Defendants 

and the divestiture trustee must furnish 

the additional information requested 

within 15 calendar days of the receipt 

of the request unless the United States 

provides written agreement to a 

different period. 

C. Within 45 calendar days after 

receipt of the notice required by 

Paragraph VI.A. or within 20 calendar 

days after the United States has been 

provided the additional information 

requested pursuant to Paragraph VI.B., 

whichever is later, the United States 

will provide written notice to 

Defendants and any divestiture trustee 

that states whether or not the United 

States, in its sole discretion, after 

consultation with the State of New 

Hampshire, objects to Acquirer or any 

other aspect of the proposed divestiture. 

Without written notice that the United 

States does not object, a divestiture may 

not be consummated. 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 Paragraph V.C. of this Final 

Judgment. Upon objection by 

Defendants pursuant to Paragraph V.C., 

a divestiture by the divestiture trustee 

may not be consummated unless 

approved by the Court. 

D. No information or documents 

obtained pursuant to this Section VI 

may be divulged by Plaintiffs to any 

person other than an authorized 

representative of the executive branch of 

the United States or an authorized 

representative of the State of New 

Hampshire, except in the course of legal 

proceedings to which the United States 

is a party, including grand-jury 

proceedings, for the purpose of 

evaluating a proposed Acquirer or 

securing compliance with this Final 

Judgment, or as otherwise required by 

law. 

E. In the event of a request by a third 

party for disclosure of information 

under the Freedom of Information Act, 

5 U.S.C. 552, the Antitrust Division will 

act in accordance with that statute, and 

the Department of Justice regulations at 

28 CFR part 16, including the provision 

on confidential commercial information, 

at 28 CFR 16.7. Persons submitting 

information to the Antitrust Division 

should designate the confidential 

commercial information portions of all 

applicable documents and information 

under 28 CFR 16.7. Designations of 

confidentiality expire ten years after 

submission, ‘‘unless the submitter 

requests and provides justification for a 

longer designation period.’’ See 28 CFR 

16.7(b). 

F. If at the time that a person 

furnishes information or documents to 

the United States or the State of New 

Hampshire pursuant to this Section VI, 

that person represents and identifies in 

writing information or documents for 

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,’’ the United 

States and the State of New Hampshire 

must give that person ten calendar days’ 

notice before divulging the material in 

any legal proceeding (other than a 

grand-jury proceeding). 

VII. Financing 

Defendants may not finance all or any 

part of Acquirer’s purchase of all or part 

of the Divestiture Assets made pursuant 

this Final Judgment. 

VIII. Asset Preservation Obligations 

Until the divestiture required by this 

Final Judgment has been accomplished, 

Defendants must take all steps necessary 

to comply with the Stipulation and 

Order entered by the Court. Defendants 

must take no action that would 

jeopardize the divestiture ordered by the 

Court. 

IX. Affidavits 

A. Within 20 calendar days of the 

filing of the Complaint in this matter, 

and every 30 calendar days thereafter 

until the divestiture required by this 

Final Judgment has been completed, 

Defendant Health Plan Holdings must 

deliver to Plaintiffs an affidavit, signed 

by its Chief Financial Officer and Chief 

Legal Officer, describing the fact and 

manner of Defendants’ compliance with 

this Final Judgment. The United States, 

in its sole discretion, may approve 

different signatories for the affidavits. 

B. Each affidavit must include: (1) 

The name, address, and telephone 

number of each person who, during the 

preceding 30 calendar 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, an interest in 

the Divestiture Assets and describe in 

detail each contact with such persons 

during that period; (2) a description of 

the efforts Defendants have taken to 

solicit buyers for and complete the sale 

of the Divestiture Assets and to provide 

required information to prospective 

Acquirers; and (3) a description of any 

limitations placed by Defendants on 

information provided to prospective 

Acquirers. Objection by the United 

States to information provided by 

Defendants to prospective Acquirers 

must be made within 14 calendar days 

of receipt of the affidavit. 

C. Defendants must keep all records of 

any efforts made to divest the 

Divestiture Assets until one year after 

the divestiture has been completed. 

D. Within 20 calendar days of the 

filing of the Complaint in this matter, 

Defendant Health Plan Holdings also 


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must deliver to Plaintiffs 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 

VIII of this Final Judgment. The United 

States, in its sole discretion, may 

approve different signatories for the 

affidavits. 

E. If Defendants make any changes to 

the efforts and actions outlined in any 

earlier affidavits provided pursuant to 

Paragraph IX.D., Defendants must, 

within 15 calendar days after any 

change is implemented, deliver to 

Plaintiffs an affidavit describing those 

changes. 

F. Defendants must keep all records of 

any efforts made to preserve the 

Divestiture Assets until one year after 

the divestiture has been completed. 

X. Compliance Inspection 

A. For the purposes of determining or 

securing compliance with this Final 

Judgment or of related orders such as 

the Stipulation and Order or of 

determining whether this Final 

Judgment should be modified or 

vacated, upon written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, and reasonable 

notice to Defendants, Defendants must 

permit, from time to time and subject to 

legally recognized privileges, authorized 

representatives, including agents 

retained by the United States: 

1. To have access during Defendants’ 

office hours to inspect and copy, or at 

the option of the United States, to 

require Defendants to provide electronic 

copies of all books, ledgers, accounts, 

records, data, 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’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

must be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

Defendants. 

B. Upon the written request of an 

authorized representative of the 

Assistant Attorney General for the 

Antitrust Division, Defendants must 

submit written reports or respond to 

written interrogatories, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment. 

C. No information or documents 

obtained by the United States pursuant 

to this Section X may be divulged by 

Plaintiffs to any person other than an 

authorized representative of the 

executive branch of the United States or 

an authorized representative of the State 

of New Hampshire, except in the course 

of legal proceedings to which the United 

States is a party, including grand jury 

proceedings, for the purpose of securing 

compliance with this Final Judgment, or 

as otherwise required by law. 

D. In the event of a request by a third 

party for disclosure of information 

under the Freedom of Information Act, 

5 U.S.C. 552, the Antitrust Division will 

act in accordance with that statute, and 

the Department of Justice regulations at 

28 CFR part 16, including the provision 

on confidential commercial information, 

at 28 CFR 16.7. Defendants submitting 

information to the Antitrust Division 

should designate the confidential 

commercial information portions of all 

applicable documents and information 

under 28 CFR 16.7. Designations of 

confidentiality expire ten years after 

submission, ‘‘unless the submitter 

requests and provides justification for a 

longer designation period.’’ See 28 CFR 

16.7(b). 

E. If at the time that Defendants 

furnish information or documents to the 

United States pursuant to this Section 

X, Defendants represent and identify in 

writing information or documents for 

which a claim of protection may be 

asserted under Rule 26(c)(1)(G) 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)(1)(G) of the 

Federal Rules of Civil Procedure,’’ the 

United States must give Defendants ten 

calendar days’ notice before divulging 

the material in any legal proceeding 

(other than a grand jury proceeding). 

XI. No Reacquisition 

Defendants may not reacquire any 

part of or any interest in the Divestiture 

Assets during the term of this Final 

Judgment. 

XII. Retention of Jurisdiction 

The Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to the 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. 

XIII. Enforcement of Final Judgment 

A. The United States retains and 

reserves all rights to enforce the 

provisions of this Final Judgment, 

including the right to seek an order of 

contempt from the Court. Defendants 

agree that in a civil contempt action, a 

motion to show cause, or a similar 

action brought by the United States 

regarding an alleged violation of this 

Final Judgment, the United States may 

establish a violation of this Final 

Judgment and the appropriateness of a 

remedy therefor by a preponderance of 

the evidence, and Defendants waive any 

argument that a different standard of 

proof should apply. 

B. This Final Judgment should be 

interpreted to give full effect to the 

procompetitive purposes of the antitrust 

laws and to restore the competition 

Plaintiffs alleged was harmed by the 

challenged conduct. Defendants agree 

that they may be held in contempt of, 

and that the Court may enforce, any 

provision of this Final Judgment that, as 

interpreted by the Court in light of these 

procompetitive principles and applying 

ordinary tools of interpretation, is stated 

specifically and in reasonable detail, 

whether or not it is clear and 

unambiguous on its face. In any such 

interpretation, the terms of this Final 

Judgment should not be construed 

against either party as the drafter. 

C. In an enforcement proceeding in 

which the Court finds that Defendants 

have violated this Final Judgment, the 

United States may apply to the Court for 

a one-time extension of this Final 

Judgment, together with other relief that 

may be appropriate. In connection with 

a successful effort by the United States 

to enforce this Final Judgment against a 

Defendant, whether litigated or resolved 

before litigation, that Defendant agrees 

to reimburse the United States for the 

fees and expenses of its attorneys, as 

well as all other costs including experts’ 

fees, incurred in connection with that 

enforcement effort, including in the 

investigation of the potential violation. 

D. For a period of four years following 

the expiration of this Final Judgment, if 

the United States has evidence that a 

Defendant violated this Final Judgment 

before it expired, the United States may 

file an action against that Defendant in 

this Court requesting that the Court 

order: (1) Defendant to comply with the 

terms of this Final Judgment for an 

additional term of at least four years 

following the filing of the enforcement 

action; (2) all appropriate contempt 

remedies; (3) additional relief needed to 

ensure the Defendant complies with the 

terms of this Final Judgment; and (4) 

fees or expenses as called for by this 

Section XIII. 

XIV. Expiration of Final Judgment 

Unless the Court grants an extension, 

this Final Judgment will expire ten 

years from the date of its entry, except 

that after five years from the date of its 

entry, this Final Judgment may be 

terminated upon notice by the United 


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States to the Court and Defendants the 

divestiture has been completed and that 

the continuation of this Final Judgment 

is no longer necessary or in the public 

interest. 

XV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including by making 

available to the public copies of this 

Final Judgment and the Competitive 

Impact Statement, public comments 

thereon, and the United States’ response 

to comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: llllllllllllllllll

[Court approval subject to procedures of 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16] 

lllllllllllllllllllll

United States District Judge 

United States District Court for the 

District of New Hampshire 

United States of Americaand State of New 

Hampshire, Plaintiffs, vs. Harvard Pilgrim 

Health Care, INC. and Health Plan Holdings, 

INC., Defendants. 

Civil Action No.:1:20–cv–01183–JL 

Judge Joseph N. Laplante 

Competitive Impact Statement 

The United States of America, under 

Section 2(b) of the Antitrust Procedures 

and Penalties Act, 15 U.S.C. 16(b)–(h) 

(the ‘‘APPA’’ or ‘‘Tunney Act’’), 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 August 9, 2019, Defendants 

Harvard Pilgrim and Health Plan 

Holdings (f/k/a Tufts Health Plan) 

agreed to a ‘‘merger of equals’’ (the 

‘‘Transaction’’). The United States, 

along with the State of New Hampshire, 

filed a civil antitrust complaint on 

December 14, 2020, seeking to enjoin 

the proposed Transaction. The 

Complaint alleges that the likely effect 

of the Transaction would be to 

substantially lessen competition in (1) 

the sale of commercial group health 

insurance to private employers with up 

to 50 full-time eligible employees 

(‘‘small groups’’) in all seven New 

Hampshire Core Based Statistical Areas 

(‘‘CBSAs’’), and (2) the sale of 

commercial group health insurance to 

private employers with between 51 and 

99 full-time eligible employees (‘‘CRC 

groups’’) in six New Hampshire CBSAs, 

in violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. 

At the same time the Complaint was 

filed, the United States filed an Asset 

Preservation Stipulation and Order 

(‘‘Stipulation and Order’’) and proposed 

Final Judgment, which are designed to 

remedy the loss of competition alleged 

in the Complaint. Under the proposed 

Final Judgment, which is explained 

more fully below, Defendants are 

required to divest Health Plan Holdings’ 

New Hampshire subsidiary, Tufts 

Health Freedom Plans, Inc. (‘‘Tufts 

Freedom’’). The United States has 

approved UnitedHealth Group, Inc. 

(‘‘United’’) as the acquirer of Tufts 

Freedom. Under the terms of the 

Stipulation and Order, Defendants will 

take certain steps to ensure that Tufts 

Freedom is operated as a competitively 

independent, economically viable, and 

ongoing business concern, which will 

remain independent and uninfluenced 

by Defendants, and that competition is 

maintained during the pendency of the 

required divestiture. 

The United States and Defendants 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment will terminate 

this action, except that the Court will 

retain jurisdiction to construe, modify, 

or enforce the provisions of the 

proposed Final Judgment and to punish 

violations thereof. 

II. Decription of the Events Giving Rise 

to the Alleged Violation 

A. Defendants and the Proposed 

Transaction 

Harvard Pilgrim is a nonprofit 

corporation organized and existing 

under the laws of the Commonwealth of 

Massachusetts with its headquarters in 

Wellesley, Massachusetts. Harvard 

Pilgrim sells commercial group health 

insurance plans to small and large 

employer groups in New Hampshire, 

Massachusetts, Connecticut, and Maine. 

Harvard Pilgrim’s annual revenue in 

2019 was approximately $3 billion, with 

the vast majority of this revenue coming 

from commercial insurance products, 

and it has over one million members 

across all its insurance products. 

Health Plan Holdings is a nonprofit 

corporation organized and existing 

under the laws of the Commonwealth of 

Massachusetts with its headquarters in 

Watertown, Massachusetts. Prior to 

October 7, 2020, Health Plan Holdings 

was known as Tufts Health Plan, Inc. 

Health Plan Holdings sells commercial 

group health insurance plans to small 

and large employer groups in New 

Hampshire, Massachusetts, and Rhode 

Island. In New Hampshire, Health Plan 

Holdings sells health insurance through 

Tufts Freedom. Tufts Freedom was a 

joint venture with Granite Healthcare, a 

consortium of New Hampshire 

hospitals, until September 2020, when 

Health Plan Holdings purchased the 

hospitals’ interests and became the sole 

owner. Health Plan Holdings’ annual 

revenue in 2019 was over $5.5 billion, 

with roughly one-third of this revenue 

coming from commercial insurance 

products, and it has over one million 

members across all its insurance 

products. 

On August 9, 2019, Defendants 

entered into an agreement entitled 

‘‘Combination Agreement’’ pursuant to 

which Health Plan Holdings will 

acquire Harvard Pilgrim. No money is 

exchanging hands and Defendants have 

described the transaction as a ‘‘merger 

of equals.’’ 

B. The Competitive Effects of the 

Transaction 

Health insurance companies sell 

commercial group health insurance to 

employers so employers can provide 

their employees and their employees’ 

families with health insurance coverage. 

Harvard Pilgrim and Health Plan 

Holdings are two of the largest suppliers 

of commercial health insurance in New 

Hampshire to employers with less than 

100 employees. Harvard Pilgrim and 

Health Plan Holdings compete 

vigorously with one another in the sale 

of commercial health insurance to these 

employers. As alleged in the Complaint, 

combining Harvard Pilgrim and Health 

Plan Holdings into one firm would 

likely lead to higher prices, lower 

quality, and reduced choice in New 

Hampshire. 

1. The Relevant Markets 

(a) Commercial Health Insurance Sold to 

Small Groups 

As alleged in the Complaint, the sale 

of commercial health insurance to small 

groups is a relevant antitrust product 

market in which to analyze the effects 

of the Transaction. New Hampshire 

Insurance Department regulations 

define a ‘‘small group’’ as an employer 

with 50 or fewer full-time eligible 

employees. See N.H. Rev. Stat. Ann. 

§ 420–G:2, XVI. For small groups, health 

plans are typically fully insured, which 

means that the employer pays a 

premium to the insurance company and 

in return the company covers the 

employees’ healthcare costs. Small 

groups tend to be local in nature, 

requiring a strong local provider 


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network of doctors and hospitals that 

are contracted to provide medical care 

to the group’s employees. The relevant 

market for small groups alleged in the 

Complaint does not include 

governmental employers (e.g., 

municipalities, school districts) in New 

Hampshire with 50 or fewer employees, 

as historically almost all of these 

employers have purchased health 

insurance through a multi-employer 

trust instead of directly from an insurer. 

The commercial health insurance 

plans offered to small groups are 

governed by the New Hampshire 

Insurance Department. The small group 

plans cannot be substituted with plans 

offered to New Hampshire employers 

with 51 or more full-time eligible 

employees, defined by statute in New 

Hampshire as ‘‘large group.’’ Harvard 

Pilgrim and Health Plan Holdings also 

differentiate small group accounts 

separately from large group accounts 

internally and offer different pricing for 

small group products compared to large 

group products. 

New Hampshire law does not require 

that an insurer offer a small group 

product statewide and instead permits 

an insurer to offer small group plans 

only in certain counties. Accordingly, 

despite the fact that state law does not 

allow insurers to charge different prices 

for the same small group plans based on 

location, insurers can offer a more 

expensive set of small group plans in 

one part of the state, and a less 

expensive set of different small group 

plans in another part of the state. This 

allows insurers to charge different 

prices for different products to small 

groups based on where employees live 

and work. 

There are seven Core Based Statistical 

Areas (CBSA) in New Hampshire: (1) 

The Manchester-Nashua CBSA, (2) the 

Concord CBSA, (3) the Laconia CBSA, 

(4) the Keene CBSA, (5) the Berlin 

CBSA, (6) the New Hampshire counties 

(Grafton and Sullivan) of the Lebanon 

NH–VT CBSA, and (7) the New 

Hampshire counties (Rockingham and 

Strafford) of the Boston-CambridgeNewton MA–NH CBSA. As alleged in 

the Complaint, the Transaction is likely 

to substantially lessen competition for 

the sale of commercial health insurance 

to small groups in all seven of New 

Hampshire’s CBSAs. 

Each of these seven CBSAs is a 

relevant geographic market. A 

hypothetical monopolist over the sale of 

commercial health insurance to small 

groups in each of these markets would 

impose a small but significant and nontransitory increase in price (e.g. five 

percent). A small group employer, faced 

with a significant price increase, cannot 

defeat the price increase by purchasing 

a large group product for which it is 

ineligible. This price increase also 

would not be defeated by substitution 

outside the relevant market or by a 

small group employer trying to 

repurchase insurance through another 

employer group (i.e. arbitrage). 

(b) Commercial Health Insurance Sold 

to CRC Groups 

As alleged in the Complaint, the sale 

of commercial health insurance to CRC 

groups is a relevant antitrust product 

market. In New Hampshire, employers 

with between 51 and 99 full-time 

eligible employees represent a distinct 

segment of large group and are referred 

to as CRC employers (or CRC groups). 

CRC groups have different needs and 

make different buying decisions than 

small groups or even larger employers. 

Harvard Pilgrim and Tufts Freedom 

employ different sales strategies for this 

segment than they do for other types of 

employers. 

Similar to small groups, CRC group 

health plans are typically fully insured, 

which means that the employer pays a 

premium to the insurance company and 

in return the company covers the 

employees’ healthcare costs. Insurers 

offering commercial health insurance in 

New Hampshire, including Harvard 

Pilgrim and Tufts Freedom, differentiate 

employers with 51 to 99 full-time 

eligible employees from other large 

group employers, and refer to these 

employers as the CRC segment. As with 

small groups, CRC groups also tend to 

be more local in nature than other large 

group employers, requiring a strong 

local provider network, as opposed to 

large group employers with 100 or more 

full-time eligible employees, which, due 

to a more geographically dispersed 

employee base, are more likely to 

require strong national provider 

networks. As with small groups, the 

relevant market for CRC groups alleged 

in the Complaint does not include 

governmental employers (e.g., 

municipalities, school districts) in New 

Hampshire with 51–99 employees, as 

historically almost all of these 

employers have purchased health 

insurance through a multi-employer 

trust instead of directly from an insurer. 

Group health plans for CRC groups, in 

contrast to larger group employers, are 

typically (although not exclusively) 

community rated by class, meaning that, 

when setting rates for CRC groups, the 

insurer first establishes a base rate 

determined by the medical costs of a 

class of similar groups, rather than upon 

the medical costs of the individual 

group seeking the plan. The insurer then 

uses this base rate, along with the 

individual employer’s medical costs, to 

negotiate rates with the specific CRC 

group. 

Defendants target CRC groups directly 

through their sales efforts. For example, 

Tufts Freedom has focused its large 

group sales efforts on CRC groups since 

it began selling commercial health 

insurance in New Hampshire, while 

Harvard Pilgrim tracks CRC groups 

separately from other large group 

accounts. In addition, both Harvard 

Pilgrim and Tufts Freedom utilize 

specific pricing strategies for CRC 

groups. Defendants have formulated 

these specific pricing strategies because 

CRC groups in New Hampshire are 

generally more price sensitive than large 

group employers with 100 or more fulltime eligible employees. 

Unlike commercial health insurance 

sold to small groups, insurers offering 

commercial health insurance to CRC 

groups in New Hampshire can charge 

different prices to different employers. 

Thus, insurers may charge different 

prices to CRC groups based on where 

employees live and work. The 

Transaction is likely to substantially 

lessen competition for the sale of 

commercial health insurance to CRC 

groups in six separate CBSAs in New 

Hampshire: (1) the Manchester-Nashua 

CBSA, (2) the Concord CBSA, (3) the 

Laconia CBSA, (4) the Keene CBSA, (5) 

the New Hampshire counties (Grafton 

and Sullivan) of the Lebanon NH–VT 

CBSA, and (6) the New Hampshire 

counties (Rockingham and Strafford) of 

the Boston-Cambridge-Newton MA–NH 

CBSA. 

As alleged in the Complaint, each of 

these six CBSAs is a relevant geographic 

market. A hypothetical monopolist over 

the sale of commercial health insurance 

to CRC groups in each of these markets 

would impose a small but significant 

(e.g., five percent) and non-transitory 

increase in price. This price increase 

would not be defeated by substitution 

outside the relevant market or by 

arbitrage. 

2. The Transaction Would Result in 

Large Combined Market Shares 

Harvard Pilgrim and Tufts Freedom 

are two of the largest providers of small 

group and CRC group insurance in New 

Hampshire. The Transaction would 

result in a substantial increase in 

concentration of insurers that compete 

to offer commercial health insurance to 

small groups and CRC groups in New 

Hampshire. 

The Supreme Court has held that 

mergers that significantly increase 

concentration in already concentrated 

markets are presumptively 

anticompetitive and therefore 


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presumptively unlawful. To measure 

market concentration, courts often use 

the Herfindahl-Hirschman Index 

(‘‘HHI’’) as described in the Horizontal 

Merger Guidelines. HHIs range from 0 in 

markets with no concentration to 10,000 

in markets where one firm has a 100% 

market share. According to the 

Horizontal Merger Guidelines, mergers 

that increase the HHI by more than 200 

and result in an HHI above 2,500 in any 

market are presumed to be 

anticompetitive and, therefore, 

unlawful. 

The Complaint alleges that the 

Transaction is presumptively unlawful 

in the small group market. Based upon 

2018 data, the combined market shares 

for Harvard Pilgrim and Tufts Freedom 

range from over 45% to over 60% in 

each of the seven CBSAs. As alleged in 

the Complaint, the Transaction would 

reduce the number of small group 

health insurers from four to three, with 

the two largest insurers—Anthem Blue 

Cross and Blue Shield (‘‘Anthem’’) and 

the merged Harvard Pilgrim/Tufts 

Freedom—possessing over 95% share in 

each of the seven CBSAs. The result is 

highly concentrated markets with HHIs 

of between 4,500 and 7,500 and 

increases in HHIs from over 350 to over 

1,600. 

As alleged in the Complaint, the 

Transaction is also presumptively 

unlawful in the CRC group market. 

Based upon 2018 data, the combined 

market shares for Harvard Pilgrim and 

Tufts Freedom range from more than 

40% to over 65% in each of the six 

CBSAs. Similar to the small group 

market, the Transaction would reduce 

the number of CRC group health 

insurers from four to three, with the two 

largest insurers—Anthem and the 

merged Harvard Pilgrim/Tufts 

Freedom—possessing over 95% share in 

each of the six CBSAs. The result is 

highly concentrated markets with HHIs 

of between just under 5,000 to almost 

7,000 and increases in HHIs from over 

200 to over 2,000. 

3. The Transaction Would Eliminate 

Head-to-Head Competition Between 

Two Close Competitors 

As alleged in the Complaint, Harvard 

Pilgrim and Tufts Freedom are 

particularly close competitors for 

commercial health insurance sold to 

small groups and CRC groups in New 

Hampshire. The competition between 

the two insurers is more robust for 

certain types of groups than the market 

shares would predict. This is in part 

because Harvard Pilgrim and Tufts 

Freedom—two strong local health 

insurers that have not built national 

provider networks—are more attractive 

to small groups and CRC groups with 

higher percentages of employees 

residing in New Hampshire. Similarly, 

because Harvard Pilgrim and Tufts 

Freedom have priced aggressively, the 

two appeal to small groups and CRC 

groups that have greater price 

sensitivity. 

Harvard Pilgrim and Tufts Freedom 

have engaged in head-to-head 

competition on price, plan features, and 

quality of service in the sale of 

commercial health insurance to small 

groups and to CRC groups in New 

Hampshire. For example, as the 

Complaint alleges, upon entering the 

New Hampshire market in 2016, Tufts 

Freedom priced aggressively, and 

gained significant market share, largely 

at the expense of Harvard Pilgrim. 

Additionally, in 2019, Harvard Pilgrim 

developed four new no-coinsurance 

plans, which limited out-of-pocket 

expenses to members and offered 

different features, with the express 

purpose of making them more attractive 

to members. Just this year, Tufts 

Freedom offered consumers a novel 

telehealth option that included zero 

copayment in fully insured plans in 

order to drive innovation around this 

emerging platform. Eliminating 

competition between Harvard Pilgrim 

and Tufts Freedom would likely result 

in higher prices, lower quality, less 

innovation, and less customer choice in 

the sale of commercial health insurance 

to small groups and to CRC groups in 

New Hampshire. 

4. Difficulty of Entry or Expansion 

As alleged in the Complaint, new 

entry and expansion by competitors will 

likely neither be timely nor sufficient in 

scope to prevent the likely 

anticompetitive effects of the proposed 

Transaction. Barriers to entry and 

expansion include state licensing and 

regulatory requirements, the cost of 

developing a comprehensive provider 

network where employees live and 

work, the inability of insurers without 

significant membership to obtain 

competitive discounts from providers, 

and the development of sufficient 

business to permit the spreading of risk. 

The Complaint also alleges that the 

anticompetitive effects of the proposed 

Transaction are not likely to be 

eliminated by any efficiencies the 

proposed Transaction may achieve. 

III. Explanation of the Proposed Final 

Judgment 

The relief required by the proposed 

Final Judgment will remedy the loss of 

competition alleged in the Complaint by 

establishing an independent and 

economically viable competitor in the 

markets for the sale of commercial 

group health insurance to small groups 

and CRC groups in New Hampshire. 

Paragraph IV.A of the Proposed Final 

Judgment requires Defendants, within 

30 days after entry of the Stipulation 

and Order by the Court, to divest Tufts 

Freedom, Health Plan Holdings’ New 

Hampshire subsidiary, to United, or an 

alternative acquirer, acceptable to the 

United States, in its sole discretion, after 

consultation with the State of New 

Hampshire (‘‘Acquirer’’). Paragraph IV.B 

allows for this 30-day period to be 

extended until 5 calendar days after 

Harvard Pilgrim and Health Plan 

Holdings receive the required regulatory 

approvals from the Massachusetts 

Division of Insurance. Any extension for 

securing regulatory approvals shall be 

no longer than 60 calendar days after 

the 30-day time period provided in 

Paragraph IV.A, unless the United 

States, in its sole discretion, consents to 

an additional extension. Defendants 

must take all reasonable steps necessary 

to accomplish the divestiture quickly 

and must cooperate with Acquirer. 

A. Divestiture Assets 

The proposed Final Judgment requires 

Defendants to divest all assets and rights 

that an Acquirer needs to compete 

against Defendants and other 

commercial health insurers in New 

Hampshire for the sale of commercial 

group health insurance to small groups 

and CRC groups. The Divestiture Assets, 

which are defined in Paragraph II.F of 

the proposed Final Judgment, include 

all tangible and intangible assets of 

Tufts Freedom, including insurance 

licenses and real property interests, 

such as leases, membership, and 

customer contracts; all contracts with 

healthcare providers to which Tufts 

Freedom is a signatory; all current and 

historical member records for the health 

plans that Tufts Freedom offers or has 

offered, all underlying electronic data, 

and all files that contain any current or 

historical member records for those 

health plans; and all provider-furnished 

data related to members of health plans 

that Tufts Freedom offers or has offered 

and all files that contain any providerfurnished data related to those health 

plans. 

The Divestiture Assets also include an 

exclusive license for Acquirer to use the 

‘‘Tufts Health Freedom,’’ ‘‘Tufts Health 

Freedom Insurance Company,’’ and 

‘‘Tufts Health Freedom Plan(s)’’ brand 

names, and all associated trademarks, 

service marks, and service names, in 

New Hampshire from the date on which 

the Divestiture Assets are divested to 

Acquirer through December 31, 2021. 

This license will assist Acquirer in 


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maintaining plan membership during 

the period immediately after the 

divestiture. Related to the license 

included in the Divestiture Assets, 

Paragraphs IV.R and IV.S of the 

proposed Final Judgment prohibit 

Defendants from selling commercial 

health insurance products in New 

Hampshire that use the ‘‘Tufts Health’’ 

or ‘‘Tufts Health Plan’’ brand(s) through 

December 31, 2021, and prohibit 

Defendants from using the terms 

‘‘Health Freedom Plan(s),’’ ‘‘Freedom,’’ 

or ‘‘Freedom Plan(s)’’ for any business 

name or to identify, market, or promote 

any products or services in New 

Hampshire. This prohibition will 

protect against consumer confusion 

between Defendants’ commercial health 

insurance plans and Tufts Freedom’s 

commercial health insurance plans. 

B. Hiring of Personnel 

The proposed Final Judgment 

contains provisions intended to 

facilitate Acquirer’s efforts to hire 

certain employees of Health Plan 

Holdings who have responsibilities for 

the Tufts Freedom business. These 

provisions will help ensure that 

Acquirer will be able to retain qualified 

employees to operate Tufts Freedom. 

Paragraph IV.I of the proposed Final 

Judgment requires Defendants to assist 

Acquirer in identifying and hiring 

employees based in New Hampshire or 

assigned to New Hampshire business 

and to make them available for 

interviews. It also provides that 

Defendants must not interfere with any 

negotiations by Acquirer to hire these 

employees. In addition, for employees 

who elect employment with Acquirer, 

Defendants must waive all non-compete 

and non-disclosure agreements; vest and 

pay (or provide to Acquirer for payment 

to the employee) on a prorated basis any 

bonuses, incentives, other salary, 

benefits, or other compensation fully or 

partially accrued at the time of the 

transfer of the employee to Acquirer; 

vest any unvested pension and other 

equity rights; and provide all other 

benefits that those employees otherwise 

would have been provided had they 

continued employment with 

Defendants, including any retention 

bonuses or payments. Paragraph IV.I 

further provides that Defendants may 

not solicit to rehire any employees who 

elect employment with Acquirer, unless 

an employee is terminated or laid off by 

Acquirer or Acquirer agrees in writing 

that Defendants may solicit to rehire 

that individual. The non-solicitation 

period runs for 12 months from the date 

of the divestiture. 

C. Transition and Run-Out Services 

The proposed Final Judgment also 

contains several provisions to facilitate 

the transition of the Divestiture Assets 

to Acquirer. These provisions will 

facilitate a smooth transition for Tufts 

Freedom members from Health Plan 

Holdings to Acquirer so that Acquirer 

can compete effectively in the markets 

for health insurance sold to small 

groups and CRC groups in New 

Hampshire. For example, Paragraph 

IV.L of the proposed Final Judgment 

requires Defendants to make best efforts 

to transition customers from the Health 

Plan Holdings operating platform to 

Acquirer’s operating platform beginning 

July 1, 2021, and ending by December 

31, 2021. This transition will not begin 

until July 2021 in order to give Acquirer 

enough time to prepare its own 

operating platform for the Tufts 

Freedom business. In addition, 

Paragraph IV.M requires Defendants, at 

Acquirer’s option, to enter into one or 

more agreements to provide transition 

services to Acquirer for a period 

running until December 31, 2021, or if 

Acquirer is not United, one year from 

the date of the divestiture. Transition 

services must encompass all services 

necessary for Acquirer to operate the 

Divestiture Assets. Among other things, 

the proposed Final Judgment allows 

Health Plan Holdings to provide the 

operational platform and systems 

infrastructure to run the Divestiture 

Assets, prepare regulatory filings, and 

handle member services for Acquirer for 

a time-limited period. Acquirer may 

terminate a transition services 

agreement, or any portion of it, without 

cost or penalty at any time upon 

commercially reasonable notice. 

Paragraph IV.M also provides that 

employees of Defendants tasked with 

supporting this agreement must not 

share any competitively sensitive 

information of Acquirer with any other 

employee of Defendants, unless such 

sharing is for the sole purpose of 

providing transition services to 

Acquirer. 

Paragraph IV.N of the proposed Final 

Judgment further requires Defendants, at 

Acquirer’s option, to provide Run-out 

Services to Acquirer to cover the period 

from the date of a customer’s transition 

to Acquirer’s operating platform, until 

June 30, 2022, and at Acquirer’s option, 

for up to an additional 90 days. Run-out 

Services are services that are 

customarily provided to an acquirer by 

a seller following an operational transfer 

of a health insurance plan. Run-out 

services include, among other things, 

claims processing, claims reporting, 

administrative support, and routine 

investigations necessary for claims 

processing. These services are provided 

by a seller of an insurance plan for a 

period of time after an operational 

transfer because the services relate to 

claims that were incurred prior to the 

transfer but have not been resolved. For 

example, a claim that occurred during 

the transition period might not be 

processed or investigated until after the 

transition period has ended. Requiring 

Defendants to provide these Run-out 

Services will help to smooth the transfer 

of the Divestiture Assets to Acquirer and 

ensure that Acquirer can immediately 

and successfully operate Tufts Freedom. 

The United States, in its sole discretion, 

may approve one or more extensions of 

Run-out Services. Acquirer may 

terminate a Run-out Services agreement, 

or any portion of it, without cost or 

penalty at any time upon commercially 

reasonable notice. Paragraph IV.N also 

provides that employees of Defendants 

tasked with supporting this agreement 

must not share any competitively 

sensitive information of Acquirer with 

any other employee of Defendants, 

unless such sharing is for the sole 

purpose of providing Run-out Services 

to Acquirer. 

D. Healthcare Provider Contracts 

An insurer’s ability to compete on 

price depends largely on medical costs, 

which are impacted significantly by the 

discounts the insurer obtains from 

healthcare providers through its 

contracts with those providers. The 

proposed Final Judgment contains 

several provisions to help ensure that 

Tufts Freedom will maintain contracts 

with New Hampshire healthcare 

providers at competitive rates following 

the divestiture. Keeping contracts with 

local providers at competitive rates will 

better position Tufts Freedom to be 

competitive in the small group and CRC 

group markets in New Hampshire. 

1. Contracts With Granite Healthcare 

Providers 

Paragraph IV.P of the proposed Final 

Judgment requires that Defendants 

warrant that as of the date of divestiture, 

Tufts Freedom’s contracts with Catholic 

Medical Center, Concord Hospital, 

Southern New Hampshire Health 

System, and Wentworth-Douglass 

Hospital, and any other hospitals that 

had an ownership interest in Granite 

Healthcare as of July 1, 2020, have not 

expired or terminated, will run through 

at least December 31, 2021, and will be 

on the same rates and terms that were 

in effect as of October 1, 2020, subject 

to certain permitted rate increases. 


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2. Contracts With Other Healthcare 

Providers 

Paragraph IV.Q of the proposed Final 

Judgment requires that Defendants make 

best efforts and cooperate with and 

assist Acquirer to ensure that, following 

the divestiture, Acquirer will retain 

Tufts Freedom’s current contracts with 

healthcare providers in New Hampshire. 

Defendants’ obligations under 

Paragraphs IV.Q.1–5 of the proposed 

Final Judgment vary depending upon 

whether a Healthcare Provider Contract 

includes change in control provisions, 

terminates, or expires. 

(a) Healthcare Provider Contracts 

Without Change in Control Provisions 

Some Healthcare Provider Contracts 

have no requirement that Tufts Freedom 

notify the provider of a change in 

ownership or control of Tufts Freedom 

and do not include provisions allowing 

the provider to terminate the contract in 

the event of a change in ownership or 

control. Under Paragraph IV.Q.1, 

Defendants must make best efforts to 

ensure that contracts with Tufts 

Freedom’s fifteen largest providers in 

New Hampshire (as measured by 2019 

claims volume) that do not require a 

notice of change in ownership or control 

(1) have not expired or terminated and 

(2) include the same rates and terms that 

were in effect as of October 1, 2020, 

subject to certain permitted rate 

increases. 

(b) Healthcare Provider Contracts With 

Change in Control Provisions 

Other Healthcare Provider Contracts 

require the provider’s consent to a 

change in Tufts Freedom’s ownership or 

control, or allow the provider to 

terminate the contract upon notice of a 

change in ownership or control. 

Paragraph IV.Q.2 of the proposed Final 

Judgment requires Defendants to notify 

those providers of the change in 

ownership or control within 30 calendar 

days of entering into an agreement to 

divest the Divestiture Assets to 

Acquirer. Paragraph IV.Q.2 further 

requires Defendants to use best efforts to 

obtain consent to the change in 

ownership or control from these 

providers or written acknowledgement 

that the provider will not terminate its 

contract with Tufts Freedom because of 

the change in ownership or control. The 

preceding requirement does not apply 

in the event that a provider’s deadline 

to exercise any termination rights has 

already expired without the provider 

terminating the contract or giving 

Defendants written notice of an intent to 

terminate. 

(c) Healthcare Provider Contracts That 

Terminate 

The proposed Final Judgment places 

additional obligations on Defendants if 

a healthcare provider terminates or 

gives notice of an intent to terminate 

within 90 days from the date of the 

divestiture. Paragraph IV.Q.3 requires 

Defendants to assist Acquirer, at 

Acquirer’s request, to secure new 

contracts with those terminating 

healthcare providers. The assistance 

required includes sharing information 

with Acquirer concerning the history of 

the provider’s participation in Tufts 

Freedom and aiding Acquirer in 

developing strategies to retain or bring 

the provider in-network, on the same 

rates and terms that were in effect as of 

October 1, 2020, subject to certain 

permitted increases. Paragraph IV.Q.4 

further requires that if the terminating 

provider is one of Tufts Freedom’s 

fifteen largest healthcare providers in 

New Hampshire (as measured by 2019 

claims volume), or the termination 

would result in Tufts Freedom not 

meeting provider network adequacy 

standards required by applicable law or 

regulation, at Acquirer’s request, 

Defendants must enter into a rental, 

lease, or similar contract to provide 

Acquirer with in-network access to the 

relevant healthcare provider(s) for a 

period of 12 months from the date of the 

divestiture. 

(d) Expiring Healthcare Provider 

Contracts 

Finally, Paragraph IV.Q.5 of the 

proposed Final Judgment requires 

Defendants to use best efforts to renew 

all Healthcare Provider Contracts that 

will expire between the filing of the 

Complaint in this matter and 90 days 

after the date of the divestiture, on the 

same rates and terms that were in effect 

as of October 1, 2020, subject to certain 

permitted rate increases. 

E. Divestiture Trustee 

If Defendants do not accomplish the 

divestiture within the period prescribed 

in Paragraphs IV.A and IV.B of the 

proposed Final Judgment, Section V of 

the proposed Final Judgment provides 

that the Court will appoint a divestiture 

trustee selected by the United States to 

effect the divestiture. If a divestiture 

trustee is appointed, the proposed Final 

Judgment provides that Defendants will 

pay all costs and expenses of the trustee. 

The divestiture trustee’s commission 

will be structured so as to provide an 

incentive for the trustee based on the 

price obtained and the speed with 

which the divestiture is accomplished. 

After the divestiture trustee’s 

appointment becomes effective, the 

trustee will provide monthly reports to 

the United States and the state of New 

Hampshire setting forth his or her 

efforts to accomplish the divestiture. If 

the divestiture has not been 

accomplished within six months of the 

divestiture trustee’s appointment, the 

United States may make 

recommendations to the Court, which 

will enter such orders as appropriate, in 

order to carry out the purpose of the 

Final Judgment, including by extending 

the trust or the term of the divestiture 

trustee’s appointment. 

F. Compliance 

The proposed Final Judgment also 

contains provisions designed to promote 

compliance and make enforcement of 

the Final Judgment as effective as 

possible. Paragraph XIII.A provides that 

the United States retains and reserves 

all rights to enforce the Final Judgment, 

including the right to seek an order of 

contempt from the Court. Under the 

terms of this paragraph, Defendants 

have agreed that in any civil contempt 

action, any motion to show cause, or 

any similar action brought by the United 

States regarding an alleged violation of 

the Final Judgment, the United States 

may establish the violation and the 

appropriateness of any remedy by a 

preponderance of the evidence and that 

Defendants have waived any argument 

that a different standard of proof should 

apply. This provision aligns the 

standard for compliance with the Final 

Judgment with the standard of proof 

that applies to the underlying offense 

that the Final Judgment addresses. 

Paragraph XIII.B of the proposed Final 

Judgment provides additional 

clarification regarding the interpretation 

of the provisions of the proposed Final 

Judgment. The proposed Final Judgment 

is intended to remedy the loss of 

competition the United States alleges 

would otherwise be harmed by the 

transaction. Defendants agree that they 

will abide by the proposed Final 

Judgment, and that they may be held in 

contempt of this Court for failing to 

comply with any provision of the 

proposed Final Judgment that is stated 

specifically and in reasonable detail, as 

interpreted in light of this 

procompetitive purpose. 

Paragraph XIII.C of the proposed Final 

Judgment provides that if the Court 

finds in an enforcement proceeding that 

a Defendant has violated the Final 

Judgment, the United States may apply 

to the Court for a one-time extension of 

the Final Judgment, together with such 

other relief as may be appropriate. In 

addition, to compensate American 

taxpayers for any costs associated with 


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investigating and enforcing violations of 

the Final Judgment, Paragraph XIII.C 

provides that in any successful effort by 

the United States to enforce the Final 

Judgment against a Defendant, whether 

litigated or resolved before litigation, 

that Defendant will reimburse the 

United States for attorneys’ fees, 

experts’ fees, and other costs incurred in 

connection with any effort to enforce 

the Final Judgment, including the 

investigation of the potential violation. 

Paragraph XIII.D of the proposed 

Final Judgment states that the United 

States may file an action against a 

Defendant for violating the Final 

Judgment for up to four years after the 

Final Judgment has expired or been 

terminated. This provision is meant to 

address circumstances such as when 

evidence that a violation of the Final 

Judgment occurred during the term of 

the Final Judgment is not discovered 

until after the Final Judgment has 

expired or been terminated or when 

there is not sufficient time for the 

United States to complete an 

investigation of an alleged violation 

until after the Final Judgment has 

expired or been terminated. This 

provision, therefore, makes clear that, 

for four years after the Final Judgment 

has expired or been terminated, the 

United States may still challenge a 

violation that occurred during the term 

of the Final Judgment. 

Finally, Section XIV of the proposed 

Final Judgment provides that the Final 

Judgment will expire ten years from the 

date of its entry, except that after five 

years from the date of its entry, the Final 

Judgment may be terminated upon 

notice by the United States to the Court 

and Defendants that the divestiture has 

been completed and that continuation of 

the Final Judgment is no longer 

necessary or in the public interest. 

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 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 neither impairs nor 

assists the bringing of any private 

antitrust damage action. Under the 

provisions of Section 5(a) of the Clayton 

Act, 15 U.S.C. 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 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, 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 U.S. Department of 

Justice, which remains free to withdraw 

its consent to the proposed Final 

Judgment at any time before the Court’s 

entry of the Final Judgment. The 

comments and the response of the 

United States will be filed with the 

Court. In addition, comments and the 

United States’ response will be 

published in the Federal Register unless 

the Court agrees that the United States 

instead may publish them on the U.S. 

Department of Justice, Antitrust 

Division’s internet website. 

Written comments should be 

submitted to: Eric D. Welsh, Chief, 

Healthcare and Consumer Products 

Section, Antitrust Division, U.S. 

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 

As an alternative to the proposed 

Final Judgment, the United States 

considered a full trial on the merits 

against Defendants. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against the combination of 

Harvard Pilgrim and Health Plan 

Holdings. The United States is satisfied, 

however, that the divestiture of assets 

described in the proposed Final 

Judgment will remedy the 

anticompetitive effects alleged in the 

Complaint, preserving competition for 

the sale of commercial health insurance 

to small groups and CRC groups in each 

of the geographic markets alleged in the 

Complaint. Thus, the proposed Final 

Judgment achieves all or substantially 

all of the relief the United States would 

have obtained through litigation, but 

avoids 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 60-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. 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. 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); United States v. U.S. 

Airways Grp., Inc., 38 F. Supp. 3d 69, 

75 (D.D.C. 2014) (explaining that the 

‘‘court’s inquiry is limited’’ in Tunney 

Act settlements); United States v. InBev 

N.V./S.A., No. 08–1965 (JR), 2009 U.S. 

Dist. LEXIS 84787, at *3 (D.D.C. Aug. 

11, 2009) (noting that a 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 


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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Notices 86965 

antitrust violations alleged in the 

complaint was reasonable, and whether 

the mechanism to enforce the final 

judgment are clear and manageable’’). 

As the U.S. Court of Appeals for the 

District of Columbia Circuit has held, 

under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations in the government’s 

complaint, whether the proposed Final 

Judgment is sufficiently clear, whether 

its enforcement mechanisms are 

sufficient, and whether it may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

proposed Final Judgment, a court may 

not ‘‘make de novo determination of 

facts and issues.’’ United States v. W. 

Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 

1993) (quotation marks omitted); see 

also Microsoft, 56 F.3d at 1460–62; 

United States v. Alcoa, Inc., 152 F. 

Supp. 2d 37, 40 (D.D.C. 2001); United 

States v. Enova Corp., 107 F. Supp. 2d 

10, 16 (D.D.C. 2000); InBev, 2009 U.S. 

Dist. LEXIS 84787, at *3. Instead, ‘‘[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.’’ W. Elec. Co., 993 

F.2d at 1577 (quotation marks omitted). 

‘‘The court should bear in mind the 

flexibility of the public interest inquiry: 

the court’s function is not to determine 

whether the resulting array of rights and 

liabilities is one that will best serve 

society, but only to confirm that the 

resulting settlement is within the 

reaches of the public interest.’’ 

Microsoft, 56 F.3d at 1460 (quotation 

marks omitted); see also United States v. 

Deutsche Telekom AG, No. 19–2232 

(TJK), 2020 WL 1873555, at *7 (D.D.C. 

Apr. 14, 2020). More demanding 

requirements would ‘‘have enormous 

practical consequences for the 

government’s ability to negotiate future 

settlements,’’ contrary to congressional 

intent. Id. at 1456. ‘‘The Tunney Act 

was not intended to create a 

disincentive to the use of the consent 

decree.’’ Id. 

The United States’ predictions about 

the efficacy of the remedy are to be 

afforded deference by the Court. See, 

e.g., Microsoft, 56 F.3d at 1461 

(recognizing courts should give ‘‘due 

respect to the Justice Department’s . . . 

view of the nature of its case’’); United 

States v. Iron Mountain, Inc., 217 F. 

Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In 

evaluating objections to settlement 

agreements under the Tunney Act, a 

court must be mindful that [t]he 

government need not prove that the 

settlements will perfectly remedy the 

alleged antitrust harms[;] it need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’) (internal citations omitted); 

United States v. Republic Servs., Inc., 

723 F. Supp. 2d 157, 160 (D.D.C. 2010) 

(noting ‘‘the deferential review to which 

the government’s proposed remedy is 

accorded’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 

6 (D.D.C. 2003) (‘‘A district court must 

accord due respect to the government’s 

prediction as to the effect of proposed 

remedies, its perception of the market 

structure, and its view of the nature of 

the case.’’). The ultimate question is 

whether ‘‘the remedies [obtained by the 

Final Judgment are] so inconsonant with 

the allegations charged as to fall outside 

of the ‘reaches of the public interest.’’’ 

Microsoft, 56 F.3d at 1461 (quoting W. 

Elec. Co., 900 F.2d at 309). 

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 U.S. Airways, 38 

F. Supp. 3d at 75 (noting that the court 

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he 

‘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. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of using 

consent judgments proposed by the 

United States in antitrust enforcement, 

Public Law 108–237 § 221, and added 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2); see also 

U.S. Airways, 38 F. Supp. 3d at 76 

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). This language 

explicitly wrote into the statute what 

Congress intended when it first enacted 

the Tunney Act in 1974. As Senator 

Tunney explained: ‘‘[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 Sen. Tunney). ‘‘A court 

can make its public interest 

determination based on the competitive 

impact statement and response to public 

comments alone.’’ U.S. Airways, 38 F. 

Supp. 3d at 76 (citing Enova Corp., 107 

F. Supp. 2d at 17). 

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: December 23, 2020. 

Respectfully submitted, 

Catherine R. Reilly, 

U.S. Department of Justice, Antitrust Division, 

Healthcare and Consumer Products Section, 

450 Fifth Street, NW, Suite 4100, Washington, 

DC 20530, catherine.reilly@usdoj.gov. 

[FR Doc. 2020–28905 Filed 12–30–20; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed 

Consent Decree Under the Clean Water 

Act 

On December 23, 2020, the 

Department of Justice lodged a proposed 

Consent Decree with the United States 

District Court for the Central District of 

Illinois in the lawsuit entitled United 

States and Illinois v. Peoria City of 

Illinois and the Greater Peoria Sanitary 

and Sewage Disposal District, Civil 

Action No. 20–1444. 

The United States and State of Illinois 

filed this lawsuit under the Clean Water 

Act. The complaint seeks civil penalties 

and injunctive relief for violations of the 

Act and related permits addressing the 

sewer system that serves the City of 

Peoria and is operated by the 

Defendants. Among other things, the 

consent decree requires Peoria to 

significantly reduce sewage overflows 

from the system by performing a series 

of improvement projects over 18 years 

that meet final criteria and satisfy 

interim milestones. The Greater Peoria 

Sanitary and Sewage Disposal District 

(‘‘GPSD’’) is required to perform 

additional system improvements that 


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