39450 Federal Register / Vol. 72, No. 137 / Wednesday, July 18, 2007 / Notices 

comments should address one or more 

of the following four points: 

—Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

—Evaluate the accuracy of the agencies 

estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

—Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

—Minimize the burden of the collection 

of information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms 

of information technology, e.g., 

permitting electronic submission of 

responses. 

Overview of this information 

collection: 

(1) Type of Information Collection: 

New Collection. 

(2) Title of the Form/Collection: 

SENTRY/Emerging Drug Tracking 

System, a drug early warning and 

response system. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Justice sponsoring the 

collection: Not Applicable. 

(4) The 2004 National Synthetic Drugs 

Action Plan designated NDIC the lead 

agency for developing an early warning 

and response system. This instrument is 

critical for NDIC to detect emerging drug 

abuse and production trends and 

thereafter notify law enforcement 

demand authorities and prepared 

associated reports. Respondents will be 

authorized state and local law 

enforcement officers, and treatment/ 

education/medical service providers. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: It is estimated that during the 

first year 300 respondents will submit a 

tip requiring approximately 15 minutes. 

Use of the system is expected to 

increase significantly. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: There are an estimated 75 

total annual burden hours associated 

with this collection. 

If additional information is required 

contact: Ms. Lynn Bryant, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Patrick Henry Building, 

Suite 1600, 601 D Street, NW., 

Washington, DC 20530. 

Dated: July 13, 2007. 

Lynn Bryant, 

Department Clearance Officer, PRA, 

Department of Justice. 

[FR Doc. E7–13907 Filed 7–17–07; 8:45 am] 

BILLING CODE 4410–DC–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States of America v. Federation 

of Physicians and Dentists, 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) through (h), that a 

proposed Final Judgment and 

Competitive Impact Statement have 

been filed in a civil antitrust case, 

United States of America v. Federation 

of Physicians and Dentists, et al., Case 

No. 1:05–cv–431, in the United States 

District Court for the Southern District 

of Ohio. 

On June 24, 2005, the United States 

filed a Complaint alleging that the 

Federation of Physicians and Dentists 

(‘‘Federation’’), Federation employee 

Lynda Odenkirk, and three physician 

co-defendants coordinated a conspiracy 

among Federation Cincinnati-area OB–

GYN members to increase fees paid by 

health care insurers to them, in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. The three physician codefendants agreed to a settlement 

entered by the Court on November 14, 

2005. The proposed Final Judgment, 

filed on June 19, 2007, enjoins the 

Federation and Ms. Odenkirk from 

taking future actions in Cincinnati or 

anywhere else that could facilitate 

private-practice physicians’

coordination of their dealings with 

health care payers, such as insurers, by 

prohibiting the Federation’s 

involvement in physicians’ contracting 

with such payers. 

A Competitive Impact Statement, filed 

by the United States, describes the 

Complaint, the proposed Final 

Judgment, the industry, and the 

remedies available to private litigants. 

Copies of the Complaint, proposed Final 

Judgment, and the Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

Room 215 North, 325 Seventh Street, 

NW., Washington, DC 20530 (telephone 

202–514–2481), on the Department of 

Justice’s Web site at: http:// 

www.usdoj.gov/atr/cases/indx26_b.htm, 

and at the Office of the Clerk of the 

United States District Court for the 

Southern District of Ohio. Copies of 

these materials may be obtained from 

the Antitrust Division upon request and 

payment of the copying fee set by 

Department of Justice regulations. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register 

and filed with the Court. Comments 

should be directed to Joseph Miller, 

Acting Chief, Litigation I, Antitrust 

Division, United States Department of 

Justice, 1401 H Street, NW., Suite 4000, 

Washington, DC 20530 (telephone: (202) 

307–0001). 

J. Robert Kramer II, 

Director of Operations, Antitrust Division. 

United States District Court for the 

Southern District of Ohio Western 

Division 

United States of America, Plaintiff, vs. 

Federation of Physicians and Dentists, Lynda 

Odenkirk, Warren Metherd, Michael Karram, 

and James Wendel, Defendants. 

[Civil Action No. 1:05–cv–431; Filed Jun 

24, 2005] 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

action for equitable and other relief 

against Defendants: Federation of 

Physicians and Dentists (‘‘Federation’’), 

Federation employee Lynda Odenkirk, 

and Federation members Warren 

Metherd, M.D., Michael Karram, M.D., 

and James Wendel, M.D., to restrain 

Defendants’ violations of Section 1 of 

the Sherman Act in concert with the 

Federation’s other Cincinnati-area 

obstetrician and gynecologist (‘‘OB–

GYN’’) members. 

I. Introduction 

1. In concert with approximately 120 

OB–GYN Federation members located 

in the Cincinnati area (‘‘Federation 

members’’), Defendants participated in a 

conspiracy to increase fees paid by 

health care insurers to Federation 

members. The Defendant physicians 

and other competing Federation 

members joined the Federation to use its 

services to coordinate the renegotiation 

of their contracts with Cincinnati-area 

healthcare insurers. The Federation, 

with substantial assistance from the 

Defendant physicians, coordinated and 

helped implement its members’

concerted demands to insurers for 

higher fees and related terms, 

accompanied by threats of contract 

terminations. 


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2. Defendants’ and their conspirators’

collusion caused Cincinnati-area health 

care insurers to raise fees paid to 

Federation members above the levels 

that would likely have resulted if 

Federation members had negotiated 

competitively with those insurers. As a 

result of Defendants’ and other 

Federation members’ conduct, the three 

largest Cincinnati-area health care 

insurers were each forced to increase 

fees paid to most Federation members 

by approximately 15–20% starting July 

1, 2003, followed by cumulative 

increases of 20–25%, starting January 1, 

2004, and 25–30%, effective January 1, 

2005. Defendants’ concerted conduct 

also caused other insurers to raise the 

fees they paid to Federation members. 

3. The United States, through this 

suit, asks this Court to declare 

Defendants’ conduct illegal and to enter 

injunctive relief to prevent further 

injury to consumers in the Greater 

Cincinnati area and elsewhere. 

II. Defendants 

4. The Federation is a membership 

organization comprising mostly 

physicians and dentists, and is 

headquartered in Tallahassee, Florida. 

The Federation’s physician membership 

includes economically independent, 

competing physicians in private 

practice in localities in many states, 

including Cincinnati, Ohio. The 

Federation offers these independent 

physicians assistance in negotiating fees 

and other terms in their contracts with 

health care insurers. 

5. Lynda Odenkirk has been 

employed in Wallingford, Connecticut, 

by the Federation since 1997 as a 

Regional Director and Contract Analyst. 

Ms. Odenkirk worked with Cincinnatiarea Federation members from May, 

2002, through at least 2004. 

6. Warren Metherd, M.D., is an OB–

GYN presently in a solo practice in 

Cincinnati. 

7. Michael Karram, M.D., is an OB–

GYN practicing in Cincinnati and is the 

Chief Executive Officer of Seven Hills 

Women’s Health Centers, a practice 

comprising several groups totaling 22 

OB–GYNs in Cincinnati. 

8. James Wendel, M.D., is an OB–GYN 

practicing in Cincinnati and is the Chief 

Executive Officer of Mount Auburn 

Obstetrics and Gynecologic Associates, 

Inc., a group practice of nine OB–GYNs 

in Cincinnati. 

III. Jurisdiction and Venue 

9. The United States brings this action 

to prevent and restrain Defendants’

recurring violations of Section 1 of the 

Sherman Act. The Court has subject 

matter jurisdiction over this action 

pursuant to 15 U.S.C. 4 and 28 U.S.C. 

1331 and 1337. 

10. During 2002 and 2003, the 

Federation’s Cincinnati OB–GYN 

Chapter enrolled as paid members over 

120 OB–GYN physicians, most 

practicing in the Southern District of 

Ohio and some in nearby northern 

Kentucky communities. The Federation 

and Ms. Odenkirk have transacted 

business and committed acts in 

furtherance of the conspiracy in the 

Southern District of Ohio. Drs. Metherd, 

Karram, and Wendel each provide OB–

GYN services in the Southern District of 

Ohio. Consequently, this Court has 

personal jurisdiction over Defendants, 

and venue is proper in this District 

pursuant to 28 U.S.C. 1391(b)(2). 

IV. Conspirators 

11. Various persons, not named as 

defendants in this action, have 

participated as conspirators with 

Defendants in the offense alleged and 

have performed acts and made 

statements in furtherance of the alleged 

conspiracy. 

V. Effects on Interstate Commerce 

12. The activities of the Defendants 

that are the subject of this Complaint are 

within the flow of, and have 

substantially affected, interstate trade 

and commerce. 

13. Federation representatives have 

traveled across state lines to meet with 

Federation members and also have 

communicated with them by mail, 

e-mail, and telephone across state lines. 

Federation members have 

communicated with Federation 

representatives and have remitted their 

Federation membership dues across 

state lines. Some Federation members 

have also traveled from Kentucky to 

Ohio to attend Federation meetings and 

have communicated with other 

Federation members across the OhioKentucky state line. 

14. Federation members have treated 

patients who live across state lines, and 

Federation members have also 

purchased equipment and supplies that 

were shipped across state lines. 

15. Health care insurers operating in 

the Cincinnati area remit substantial 

payments across state lines to 

Federation members. Health care 

insurers’ payments to Federation 

members affect the reimbursements paid 

to insurers by self-insured employers, 

whose plans they administer, and also 

affect the premiums for health care 

insurance those insurers charge other 

employers. Many of the affected 

employers sell products and services in 

interstate commerce. The 

reimbursements and premiums those 

health care insurers receive from 

employers for administration or 

coverage of the expenses of their 

employees’ health care needs, including 

OB–GYN services, represent a cost of 

production for those employers that 

affects the prices at which those firms’

products are sold in interstate 

commerce. 

VI. Cincinnati Area Health Care 

Insurers and OB–GYNs 

16. At least six major health care 

insurers provide coverage in the 

Cincinnati area: WellPoint Health 

Networks, which during the events at 

issue here was named Anthem, Inc. 

(‘‘Anthem’’), Humana Inc. (‘‘Humana’’

or ‘‘ChoiceCare’’), United HealthCare 

Insurance Company (‘‘United’’), Cigna 

Corp. (‘‘Cigna’’), Aetna U.S. Healthcare 

Inc. (‘‘Aetna’’), and Medical Mutual of 

Ohio (‘‘Medical Mutual’’ or ‘‘MMO’’). 

17. Anthem, Humana and United, 

through administration and insurance of 

health care benefits, are the three largest 

private health insurers operating in the 

Greater Cincinnati area. On the basis of 

market share, Medical Mutual, Aetna, 

and Cigna each insures and administers 

a smaller, but still significant, share of 

privately financed health coverage in 

the Greater Cincinnati area. The 

remainder of the privately financed 

health insurance coverage market in the 

Greater Cincinnati area consists of a 

large number of insurers, each with a 

small share. 

18. All of the major health care 

insurers operating in the Cincinnati area 

offer a variety of insurance plans to 

employers and their employees, 

including ‘‘managed care’’ plans such as 

health-maintenance organizations and 

preferred provider organizations. To 

offer such plans, an insurer typically 

contracts with participating providers, 

including physicians and hospitals, to 

form a provider network (or panel). 

Among other things, such contracts 

establish the fees that the providers will 

accept as payment in full for providing 

covered medical care to the insurer’s 

subscribers. All of the major Cincinnatiarea health care insurers consider it 

necessary to include in their provider 

panels a substantial percentage of OB–

GYN physicians who practice in the 

Cincinnati area to make their health care 

plans marketable to area employers and 

their employees. Before the formation of 

the alleged conspiracy, Federation 

member groups competed with each 

other, in their willingness to accept an 

insurer’s proposed fee levels and other 

contractual terms, to be included in 

these insurers’ provider panels. 


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VII. Defendants’ Unlawful Activities 

19. In the spring of 2002, Cincinnati 

OB–GYNs became interested in joining 

the Federation primarily to band 

together to negotiate higher fees from 

health care insurers. Through a series of 

meetings with and communications to 

Cincinnati-area OB–GYNs during the 

spring, the Federation—assisted by 

some local OB–GYNs, including 

Defendants Metherd, Karram, and 

Wendel—recruited Cincinnati-area OB–

GYNs as Federation members and laid 

the foundation for their coordinated 

negotiating positions seeking higher fees 

from major Cincinnati health care 

insurers. At an initial membership 

recruitment meeting on April 17, 2002, 

a featured presentation by Jack Seddon, 

the Federation’s Executive Director, 

focused on the need for a majority of 

area OB–GYN practices to use the 

Federation’s contract negotiation 

services to obtain increased fees from 

insurers. 

20. Ms. Odenkirk, the Federation 

employee with primary responsibility 

for dealing with Federation members in 

Cincinnati, attended a second 

recruitment meeting on May 7, 2002. At 

this meeting, the OB–GYNs in 

attendance decided they needed a 60–

70% participation rate in the Federation 

by OB–GYN physicians in the 

Cincinnati area for their activities as 

Federation members to have an impact 

on area insurance companies. By the 

end of May 2002, about 75–80% of 

actively practicing, Cincinnati-area OB–

GYNs had opted to join the Federation. 

21. On June 10, 2002, the Cincinnatiarea OB–GYN Federation chapter held 

its organizational meeting, which was 

attended by representatives from many 

area OB–GYN practices. At the meeting, 

Jack Seddon, the Federation’s Executive 

Director, told the Federation members 

that, although the Federation could 

legally represent only individual 

physicians, all physicians must 

remember that they are part of the 

Federation when making any business 

decisions regarding a contract. He also 

explained that, although the Federation 

could not directly recommend, through 

its Negotiation Assistance Program, 

whether Federation members should 

accept or reject a given provider 

contract, physicians would be given 

enough information to allow them to 

decide whether or not to sign a contract. 

At the June 10 meeting, Mr. Seddon also 

explained that Federation members 

could encourage other member 

physicians to use the Federation’s 

Negotiation Assistance Program rather 

than negotiate on their own without 

Federation involvement. 

22. In June and July 2002, Ms. 

Odenkirk, in consultation with some 

Federation members, established the 

order, or the ‘‘game plan,’’ by which she 

would review and coordinate their 

dealings with the first five health care 

insurers contracts: Anthem, ChoiceCare, 

United, Aetna, and Medical Mutual. 

23. The Federation mailed a 

newsletter dated September 4, 2002, to 

all Federation member practices, 

notifying them that the Federation had 

reviewed their current Anthem contract. 

Accompanying the newsletter was the 

Federation’s contract analysis and a set 

of proposed changes. An accompanying 

memorandum addressed to Cincinnati 

OB–GYN members from Ms. Odenkirk 

advised members that her contract 

analysis and proposed alternative 

language could be used to open 

negotiations with Anthem. 

24. The September 4, 2002, newsletter 

also encouraged Federation members to 

use the Federation’s ‘‘extremely 

valuable service’’ of acting as their 

third-party messenger and as a 

consultant, touted as providing the 

‘‘advantage of a nationally experienced 

consultant who can certainly look out 

for their best interests when negotiating 

with insurance plan executives.’’ The 

newsletter suggested that those 

members dissatisfied with their Anthem 

contracts, as outlined in the 

accompanying contract analysis, should 

copy an enclosed sample ‘‘third party 

messenger’’ letter onto their practice’s 

letterhead to open a dialogue with 

Anthem. The sample letter advised 

Anthem that the submitting practice had 

‘‘several items of concern’’ regarding its 

current Anthem contract including 

‘‘contract language for various clauses 

and reimbursements rates’’ and apprised 

Anthem that ‘‘the purpose of this letter 

is to open negotiations with Anthem 

regarding the provider agreement.’’ The 

sample letter further informed Anthem 

that the practice had decided to use the 

Federation as a ‘‘third party messenger’’

to facilitate negotiations and that the 

Federation would be contacting Anthem 

to open a dialogue. The sample letter 

also contained a thinly veiled warning 

that the practice might resort to contract 

termination if its concerns were not 

addressed and was understood as such 

by Anthem. 

25. Following Ms. Odenkirk’s 

September 4, 2002, communications 

regarding the Anthem contract, most 

Federation member physician practice 

groups copied the sample letter onto 

their own letterhead, signed it, and sent 

it to Anthem. 

26. The Federation mailed a 

newsletter dated September 30, 2002, to 

all Federation member practices, 

informing them that there had been a 

significant response to the September 4, 

2002, Anthem contract analysis and that 

many members had opted to use the 

‘‘full services’’ of the Federation. 

27. Starting on October 11, 2002, Ms. 

Odenkirk followed up on the Federation 

members’ letters to Anthem. She 

notified Anthem that the Federation 

would be facilitating Federation 

members’ discussion of their Anthem 

contract. For each such practice, Ms. 

Odenkirk sent Anthem a substantively 

identical letter enclosing a proposed 

amendment to the contracts ‘‘that 

addresses some of their concerns.’’ The 

set of proposed amendments was 

essentially the same set that Ms. 

Odenkirk had forwarded on September 

4, 2002, to all Federation members in 

connection with her review of the 

Anthem contract. 

28. Besides reporting to Federation 

members’ on their response to Anthem, 

the September 30, 2002, Federation 

newsletter also focused on another 

insurer. The newsletter explained to 

Federation members that the Federation 

had reviewed their current ChoiceCare 

contract. The newsletter also included a 

sample letter to inform ChoiceCare that 

the Federation would be representing 

the medical practice as a third-party 

messenger. The process of negotiating 

with ChoiceCare then began and tracked 

the pattem of Federation coordination of 

negotiations with Anthem. 

29. The Federation mailed a 

newsletter dated October 31,2002, to all 

Federation member practices, 

explaining that the Federation had 

reviewed the contract of yet another 

insurer: United. The newsletter also 

included a sample letter to inform 

United that the Federation would be 

representing the medical practice as a 

third-party messenger. The process of 

negotiations with United then began 

and tracked the pattem of Federation 

coordination that occurred in 

negotiations with Anthem and 

ChoiceCare. 

30. The October 31, 2002, newsletter 

also noted that 39 OB–GYN practices 

had joined the local Federation chapter. 

The newsletter recapped members’

status with Anthem, noting that the 

Federation had initiated contact with 

Anthem, on behalf of those practices 

that had submitted third-party 

messenger letters to Anthem, and that 

the Federation had received a very 

significant response from the local 

chapter practices that had sent Anthem 

a third-party messenger letter. The 

newsletter also reported to Federation 

members that a significant proportion of 

them had provided e-mail addresses to 

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mailing system developed by the 

Federation ‘‘to avoid any situation 

where a member might miss critical 

information from the Federation.’’

31. On November 1, 2002, the day 

after the October 31, 2002, newsletter, 

Ms. Odenkirk e-mailed a ‘‘Critical 

Federation Alert’’ to member practices. 

After updating all member practices on 

the status of matters involving United, 

Humana and Anthem, she wrote: 

ALL MEMBERS ARE AGAIN REMINDED 

OF THEIR REASON FOR JOINING THE 

LOCAL CHAPTER OF THE FEDERATION. 

THE OVERALL PURPOSE OF THE 

FEDERATION IS TO ALLOW MEMBER 

PHYSICIANS TO DEAL WITH THE 

INSURANCE INDUSTRY ON AN EQUAL 

BASIS. WHILE THE FEDERATION CANNOT 

RECOMMEND THAT PHYSICIANS SIGN OR 

NOT SIGN A GIVEN PROVIDER 

AGREEMENT, THE FEDERATION CAN 

ADVISE A MEMBER WHEN THEY ARE 

BEING PRESENTED WITH A BAD 

CONTRACT. 

32. By letters dated November 14, 

2002, sent to each practice, Anthem 

responded to the prior correspondence 

it had received from the practice and the 

Federation. The letters expressed 

Anthem’s willingness to meet with the 

practices individually to discuss the 

concerns raised. Around the same 

period, Humana communicated to 

Federation members its preference to 

deal directly with each practice, rather 

than with the Federation representing 

the practices. 

33. On November 15, 2002, Ms. 

Odenkirk spoke by telephone with 

Anthem representatives. Ms. Odenkirk 

told the Anthem employees that she 

represented a large number of OB–GYN 

practices in the Cincinnati area. Anthem 

told Ms. Odenkirk they would meet and 

correspond directly with individual 

practices. Though noting during the 

conversation that each practice would 

need to speak for itself, Ms. Odenkirk 

stated generally that the physicians 

would be seeking higher fees at 160% of 

Medicare levels. 

34. Following her telephone 

conversation with Anthem, Ms. 

Odenkirk proceeded to coordinate 

Federation practices’ ‘‘individual’’

dealings with Anthem, Humana, and 

United. She e-mailed a ‘‘Critical 

Federation Alert’’ on November 19, 

2002, to each practice, addressed to the 

attention of ‘‘Office Manager.’’ The Alert 

informed each practice that the 

Federation had, in its role as a thirdparty messenger, notified Anthem of the 

practice’s desire to initiate negotiations 

regarding the current Provider 

Agreement, and advised Anthem that 

the practice had designated the 

Federation to represent it and act as its 

consultant in this process. The Alert 

then informed member practices they 

had two options: Negotiate directly with 

Anthem (noting that if this option were 

selected the practice was encouraged to 

forward all communication from 

Anthem to the Federation), or advise 

Anthem that the practice wished to have 

the Federation speak on its behalf. 

35. Responding promptly, as 

requested, to Ms. Odenkirk’s November 

19, 2002, Critical Federation Alert, most 

Federation member practices notified 

the Federation in writing that they 

wanted the Federation to speak on their 

behalf as their third-party messenger for 

contract negotiations with Anthem. 

36. On Saturday morning, December 

14, 2002, Ms. Odenkirk and most 

Federation members attended a 

membership meeting. The meeting was 

called amid apprehension among 

Federation members that large 

Federation member groups might make 

individual deals with insurers without 

regard to the interests of smaller 

Federation groups and solo 

practitioners. Federation members’

discussion at the meeting informed the 

strategy that Ms. Odenkirk and the 

Defendant physicians developed for the 

Federation to coordinate Federation 

members’ contract negotiations with 

Anthem, ChoiceCare, and United. The 

strategy employed the Federation’s 

collective knowledge and consultation 

with Federation members as the ‘‘key’’

to ensuring that small groups were not 

‘‘left behind’’ in negotiations with 

insurers. 

37. Following up promptly on the 

sense of the December 14 meeting, Dr. 

Metherd, in coordination with Drs. 

Wendel and Karram, prepared a draft of 

a letter for Ms. Odenkirk to send to 

Federation members. The letter 

suggested that Federation members 

again send letters to Anthem demanding 

higher fees and contract amendments. 

Reviewing a redraft of the letter by Ms. 

Odenkirk on December 17, 2003, Dr. 

Wendel e-mailed Dr. Metherd: ‘‘Have 

reviewed the letter and changes from 

Lynda [Odenkirk], I also think that we 

need to also send similar letters to 

[C]hoice [C]are and [U]nited. It[’]s time 

to carpet bomb them with these letters 

and demand responses in a timely 

fashion. This may be a way for the 

[F]ederation to help to facilitate the 

process.’’

38. On December 20, 2002, Ms. 

Odenkirk sent to all Federation member 

practices the final version of the letter 

implementing the coordinated strategy 

developed from the December 14 

membership meeting. The letter 

reviewed the status of the Federation’s 

dealings with Anthem on members’

behalf to discuss ‘‘problems in the 

provider agreement.’’ The letter 

apprised Federation members that 

Anthem had ‘‘become recalcitrant’’

toward the Federation’s attempts to 

attend meetings on behalf of multiple 

physician groups and that 

‘‘[c]onsequently, the Federation [wa]s 

recommending another tactic by which 

you may negotiate with Anthem.’’ The 

letter sought to provide Federation 

members ‘‘with a clear set of 

guidelines* * * that w[ould] hopefully 

lead to a productive set of discussions.’’

The ‘‘guidelines’’ set forth a number of 

steps for member groups to follow, 

which the Federation touted as ‘‘the 

means by which you are most likely to 

achieve your goals.’’ The letter also 

noted: ‘‘If this tactic is UNSUCCESSFUL 

in achieving a contract with Anthem 

that meets your concerns, then the 

Federation will so notify you that you 

are continuing to work under a bad 

contract and that you are now left with 

two options. You may: (1.) Continue to 

work under this bad contract or (2.) 

Terminate the contract.’’

39. Beginning in January 2003, and 

following up on the steps Ms. Odenkirk 

had outlined in her December 20, 2002, 

letter to Federation practices, most 

Federation member practices sent 

substantively identical letters to 

Anthem enclosing proposed contractual 

changes styled as ‘‘necessary to achieve 

an equitable business relationship 

between Anthem and this OB/GYN 

practice.’’ The letters sought a response 

from Anthem within two weeks of 

receipt and advised that ‘‘all responses 

from Anthem will be forwarded to the 

Federation of Physicians and Dentists 

for review, interpretation and 

consultation.’’ The letters closed with a 

slightly adapted version of the thinly 

veiled threat of termination first raised 

in the wave of September and October 

2002 third-party messenger letters sent 

by Federation member practices to 

Anthem: ‘‘This practice truly desires to 

avoid any interruption of obstetrical and 

gynecological services to Anthem’s 

customers. Such a circumstance can be 

avoided by a meaningful and productive 

written response from Anthem 

regarding the issues raised herein no 

later than the aforementioned date.’’

40. Proceeding over the next several 

months, Federation member practices-in 

close coordination with the Federation 

and with some additional direct 

coordination among Drs. Karram, 

Wendel, and Metherd-negotiated 

contracts with Anthem that provided for 

a substantial increase in fees. While 

targeting Anthem initially, the 

Federation, with encouragement and 

assistance from the Defendant 


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physicians, also coordinated member 

groups’ efforts to pressure ChoiceCare 

and United to renegotiate their 

contracts. 

41. Implementing Federation 

members’ similar strategy toward 

ChoiceCare, Ms. Odenkirk sent to 

ChoiceCare letters dated January 27–31, 

2003, on behalf of 30 member practices. 

The letters reviewed the history of 

Humana’s discussions with each 

practice, and included each practice’s 

desired fee amounts. The letters asked 

for a response by February 14, 2003, and 

notified Humana that the practice ‘‘still 

intends to forward any and all responses 

from HUMANA to the Federation of 

Physicians and Dentists for review, 

interpretation and consultation, as they 

have every right to do.’’ Each letter 

again noted, as had the practices’ thirdparty messenger letters sent to Humana 

in the fall of 2002, that a service 

interruption could be avoided by 

Humana’s prompt and meaningful 

written response. 

42. From December 2002, through 

March 2003, Dr. Karram’s and Dr. 

Wendel’s large OB–GYN groups 

spearheaded Federation member groups’

attempts to renegotiate their contracts 

with Anthem and Humana. By a letter 

dated March 4, 2003, Humana proposed 

to Dr. Wendel’s group a 30-month 

contract increasing fee levels 

substantially, in stages, over existing 

fees. According to the proposal, the 

terms were discussed and agreed upon 

in a telephone conversation on March 4. 

The next day, Dr. Wendel’s office faxed 

Humana’s proposal to Ms. Odenkirk. 

43. On March 7, 2003, Ms. Odenkirk 

sent by e-mail and regular mail a 

Critical Federation Alert that had been 

prepared by Dr. Metherd in consultation 

with Drs. Karram and Wendel and 

edited and approved by Ms. Odenkirk 

and Mr. Seddon. The Alert encouraged 

Federation members to meet as soon as 

possible with Anthem and Humana to 

discuss proposed contract changes 

because the companies ‘‘seem to 

legitimately desire discussions.’’

Accompanying the Alert were 

negotiation guidelines to use in 

meetings, including advice to tell the 

health plan ‘‘that you are seeking a fair 

contract both in language and 

reimbursements.’’ The guidelines also 

suggested to members, in part, that 

(3.) You may explain to the health plan 

that you are, or will be, reviewing all of your 

major contracts and negotiating fairer terms 

for all, and that you are not just focusing on 

any one particular health plan. One 

particular concern a health plan may have is 

that they will be ‘out front’ if they were, for 

instance, to increase reimbursements thereby 

placing them at a disadvantage with their 

competitors in their markets. 

44. As negotiations progressed, Ms. 

Odenkirk became active in advising 

groups how to proceed. Dr. Metherd 

also coordinated with Dr. Wendel and 

other physicians regarding the status of 

Federation members’ negotiations with 

Anthem. 

45. On April 1, 2003, Dr. Metherd emailed to Ms. Odenkirk and Mr. Seddon 

proposed additions to a draft Critical 

Federation Alert that Dr. Metherd had 

begun drafting with them in mid-March. 

Dr. Metherd proposed adding two 

paragraphs to a draft he had received 

from Mr. Seddon and explained the 

reason for his additions: 

It is becoming extremely important to 

somehow inform the smaller groups and solo 

practitioners that the large groups are not 

achieving favorable contracts at the expense 

of the small groups. * * * It’s also important 

to somehow explain that the physicians are 

not going to get 170–180% of Medicare and 

that 30–35% is a more realistic number. 

Finally, from my personal discussions with 

the insurance companies, the members need 

to emphasize that all major plans are going 

to be looked at by the physicians. This seems 

to be critical for the insurance companies to 

hear. 

46. By mid-April 2003, ChoiceCare 

had reached agreement with several of 

the larger Federation member groups. 

ChoiceCare continued making offers of 

varying fee amounts to other groups, 

which, in turn, forwarded them to, or 

discussed them with, Ms. Odenkirk to 

obtain her thoughts. In an April 16, 

2003, e-mail, Dr. Metherd updated Ms. 

Odenkirk and suggested how she should 

advise the smaller Federation member 

groups regarding ChoiceCare: 

Since you know what everyone is getting, 

we need you to make sure that the small 

groups are pushing to end up in reasonable 

proximity (5% for example) to the larger 

groups in regards to reimbursements. The 

larger groups need to know that they can 

utilize [the Federation’s] guidelines that we 

sent out on April 3 * * * as a way to 

pressure ChoiceCare to minimize variations 

in their reimbursements. 

Since you are the only one who, as the 

third party messenger, can know all the facts, 

it is imperative that you use the knowledge 

to push all of us in the same direction. * * * 

It is absolutely critical that one segment of 

the Federation here not feel that it has gained 

a significant advantage or suffered a 

significant disadvantage at another’s expense 

* * * especially as we will soon be moving 

onto United, Aetna, etc. 

47. By May 1, 2003, Anthem had sent 

to all Federation members a contract 

amendment raising fees over a threeyear period to 120% of Medicare fees, 

as of July, 2003; 125%, as of January, 

2004; and 130%, as of January, 2005. 

48. By early May 2003, the large OB–

GYN practice groups shifted their focus 

to United Healthcare. At a May 8th the 

meeting with United, called by Dr. 

Wendel to discuss OB–GYN fees in 

Cincinnati, Dr. Wendel informed United 

that his group had been able to negotiate 

new deals with the other two top payers 

in Cincinnati. During the meeting, Dr. 

Wendel threatened that his group would 

terminate its contract if United did not 

offer it a satisfactory deal. At a meeting 

on the same day with United, Dr. 

Karram conveyed a similar message on 

behalf of his group. 

49. Dr. Metherd communicated 

several times in May 2003 with Drs. 

Karram and Wendel concerning his 

negotiations on fees with ChoiceCare. 

On May 12, 2003, Dr. Metherd 

responded to ChoiceCare and attempted 

to leverage Federation members’

contract renegotiations with Anthem 

and suggested that ChoiceCare would 

face a boycott if it did not meet his and 

other OB–GYNs’ fee demands. 

50. On May 11, 2003, Dr. Metherd 

sent an e-mail to Drs. Karram, Wendel: 

As per our discussions on Friday [May 

9th], I think we need to do some 

‘campaigning’ so to speak. We need to 

educate the members and encourage them to 

do four things. 

(1.) They need to accept the contract from 

Anthem. While not perfect, it’s actually 

pretty good and Lynda [Odenkirk] also feels 

the same based on my discussions with her 

this week. Apparently she is quite surprised 

that we have done as well as we have. * * * 

(2.) They need to negotiate with 

ChoiceCare. * * * 

(3.) Everyone needs to do the above so we 

can all move onto United next especially 

given the promising discussions that you 

have just had. 

(4.) Finally, membership dues for the 

Federation are here and we need to convince 

the members that this is worth doing again 

this next year. * * * 

51. Prompted by Dr. Metherd, on May 

16, 2003, Ms. Odenkirk sent to 

essentially all Cincinnati Federation 

members a ‘‘Federation Alert—Update.’’

Ms. Odenkirk’s Alert opined that the 

revised Anthem contract was ‘‘as good 

as it’s going to get at this point in time’’

and suggesting it was ready to be signed. 

Ms. Odenkirk’s Federation Alert also 

posed the Anthem contract to 

Federation members as a ‘‘benchmark to 

follow’’ when negotiating with other 

comparable health plans. 

52. On May 20, 2003, Dr. Metherd 

sent to Federation members a proposal 

to endorse a ‘‘large insurance company’’

that had recently provided a contract 

with ‘‘physician-friendly’’ changes. Dr. 

Metherd explained that the other 

insurers could also be endorsed if they 


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offered similar contracts and expressed 

the hope that ‘‘this would then offer all 

companies an incentive to work with 

member physicians to achieve 

physician-friendly agreements.’’ The 

proposal also noted, ‘‘This concept has 

been reviewed and approved by the 

Federation leadership.’’

53. At a May 28, 2003, meeting with 

United representatives, Dr. Metherd 

threatened to terminate his contract 

with United if it did not offer him 

satisfactory terms. After the meeting, he 

sent an e-mail to a United representative 

to emphasize the need for United to 

‘‘offer an acceptable contract to all 

members’’ and complete fee 

negotiations promptly if it wished to 

participate in the ‘‘endorsement’’

program that had also been discussed at 

the meeting. 

54. By May 30, 2003, United had met 

with about six Federation member 

groups. Each group conveyed that they 

wanted essentially the same deal and 

would terminate their contracts if they 

did not get it. 

55. On May 29, 2003, Dr. Metherd 

sent an e-mail to all Federation 

members requesting their attention to 

‘‘some extremely important issues,’’

including the need for doctors to keep 

the Federation informed of their 

negotiation status with various insurers. 

On May 29, Dr. Karram e-mailed Ms. 

Odenkirk and stated, ‘‘I agree with 

Warren. We need to get everyone 

moving faster and to become more 

persistent otherwise they will not get 

increases in 03. I am sure that is what 

[ChoiceCare] is doing. Just think of the 

money they will save if they keep 

delaying people till 04.’’ Dr. Karram’s email also asked Ms. Odenkirk: ‘‘Are we 

ready to move on to the next player. I 

think that is Medical Mutual of Ohio.’’

56. During June and July 2003, Ms. 

Odenkirk continued to advise 

Federation members concerning their 

contract negotiations with ChoiceCare, 

United, and, to a lesser extent, Anthem. 

57. By letters dated June 13, 2003, Ms. 

Odenkirk sent to United proposed 

contractual amendments for nearly all 

Federation member groups. On June 17, 

2003, she apprised the groups of the 

communications to United on their 

behalf. In a July 9, 2003, Federation 

Alert, Ms. Odenkirk suggested that all 

Federation members persist in 

negotiations with United and let United 

‘‘know that you have been able to 

achieve a significantly better agreement 

with one of their competitors, and are 

currently in discussions with another 

competitor, so if they want to remain 

competitive they need to answer you.’’

She reiterated essentially the same 

message to Federation members in an 

August 1, 2003, Critical Federation 

Alert. By November 24, 2003, United 

had signed contracts, calling for 

substantially increased reimbursements, 

with 33 OB–GYN practice groups or 

solo practitioners, representing the vast 

majority of Federation member 

physicians. 

58. On June 23, 2003, ChoiceCare 

representatives met with Drs. Karram, 

Metherd, and Wendel to learn more 

about the ‘‘ ‘endorsement campaign’ ’’

Federation OB–GYNs were planning. 

Dr. Metherd described the endorsement 

as both public and private support of 

those managed-care organizations that 

had met the OB–GYNs’ established 

minimum fee levels. No physician 

articulated any criterion for being 

included in the endorsement other than 

meeting their fee demands, despite 

repeated questions about any other 

criteria. All three physicians confirmed 

that all physicians affiliated with the 

Federation would have to receive fees at 

or above the fee threshold to receive the 

endorsement. 

59. On August 10, 2003, Dr. Metherd 

sent an e-mail survey to Federation 

member practices, inquiring as to the 

status of negotiations with their top 

three insurance companies. On 

September 12, 2003, Dr. Metherd faxed 

the results of his August 10 e-mail 

survey to Ms. Odenkirk. The results 

included the status of negotiations with 

their top three insurance companies for 

each of the 31 (out of 43) practices that 

responded. 

60. In a September 18, 2003, memo 

addressed to Cincinnati area members, 

Ms. Odenkirk advised members that 

Cincinnati OB/GYNs have been discussing 

their issues with several health plans and 

have been reaching successful outcomes. 

Therefore, I continue to encourage you to 

hav[e] dialogues with various health plans. I 

am in the process [o]f reviewing the Aetna 

and Medical Mutual of Ohio (‘MMO’) 

agreements, so if you’re interested in opening 

a dialogue with either of these companies, 

please feel free to use the enclosed sample 

third party letters. 

The enclosed sample letters, addressed 

to Aetna and Medical Mutual, 

appointed the Federation as the 

practice’s third-party messenger, raised 

concerns about contract language and 

fees, and contained the usual language 

threatening contract termination. 

61. At an October 7, 2003, Federation 

membership meeting, which Ms. 

Odenkirk attended, both Dr. Wendel 

and Dr. Metherd announced to 

competing physicians that they had 

terminated their respective unfavorable 

contracts with Aetna because of Aetna’s 

refusal to discuss the contracts. 

62. In an October 17, 2003, Critical 

Federation Alert, Ms. Odenkirk updated 

members on the status of negotiations 

with Aetna and Medical Mutual. The 

Alert evaluated Aetna’s new fee 

schedule as ‘‘NOT ‘reasonable for the 

Cincinnati market’ ’’ and gave 

Federation members specific 

instructions on how to respond to 

Aetna’s and Medical Mutual’s fee 

proposals. 

63. On October 21, 2003, Dr. Metherd 

e-mailed the entire Cincinnati 

membership to inform them that his 

practice had terminated Aetna. 

Although written under the pretense 

only of informing OB–GYNs not to refer 

Aetna patients to him, Dr. Metherd 

prefaced his message with an account of 

his reason for termination, decrying 

Aetna’s fees as ‘‘significantly lower than 

the current market level in the 

Cincinnati-Northern Kentucky area’’

and Aetna’s refusal to renegotiate his 

contract. 

64. On October 29, 2003, Dr. Metherd 

e-mailed Lynda Odenkirk, reporting on 

strategizing at a meeting that day of the 

recently formed local Federation 

Chapter Executive Committee, with 

copies to the Executive Committee, 

which included Drs. Karram and 

Wendel: 

The meeting went well * * * we’re still 

waiting to see whether and how Aetna 

responds to Seven Hills. Thus far no one else 

is getting any attention from them and, 

apparently, they are not being all that 

friendly with Seven Hills. We’ll just have to 

wait and see * * * all of us at the meeting 

are aware of the goals of the entire Federation 

and will, hopefully, not forget them. [Dr. 

Wendel] and I are hoping everyone will react 

to Aetna as we had to [terminating their 

contracts] * * * time will tell. As for 

endorsing United * * * the message back to 

them is that they still haven’t provided ‘fair 

and equitable’ contracting (i.e. the language 

issues) and that they will receive no 

endorsement as a result. They will be told 

this by Dr. Karram, and, that, if they do better 

in 2005 when we come back to them, then, 

perhaps they will be endorsed. (all ellipses 

in original) 

65. In an October 29, 2003, memo to 

Cincinnati area members, Ms. Odenkirk 

noted that a new fee schedule from 

Cigna represented a reduction in rates, 

and, in her opinion, did not meet the 

notice requirements in the members’

contracts with Cigna. Ms. Odenkirk’s 

memo included an attached sample 

letter, addressed to Cigna, which not 

only raised the concerns noted in her 

memo, but also appointed the 

Federation as the practice’s third-party 

messenger. 

66. On November 5, 2003, Ms. 

Odenkirk prepared a sample letter for 

Federation members to send Aetna 


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regarding its revised fee schedule. The 

sample letter advised Aetna that the 

sender had ‘‘recently negotiated far 

better reimbursements with several of 

your competitors, which has 

significantly changed the Cincinnati 

market. Therefore we find that your fee 

schedule is not reasonable for this area.’’

67. Dr. Metherd commented to Ms. 

Odenkirk on her sample letter to Aetna, 

in a November 5, 2003, e-mail, which he 

copied to the Cincinnati Chapter 

Executive Committee: 

The letter looks good * * * Both [another 

physician] and [Dr.] Wendel are making 

overtures to Aetna as I did in order to judge 

Aetna’s reaction. Before we put this out 

there, let’s see what they hear as well. * * * 

If Aetna responds to [another physician] and 

[Dr.] Wendel with a willingness to consider 

a proposal as they did with me, then we can 

encourage current Aetna providers (and those 

of us that just recently terminated) to renew 

contact with them via both phone and your 

letter. 

68. On November 7, 2003, Lynda 

Odenkirk e-mailed a Critical Federation 

Alert updating Federation members on 

the status of negotiations with Medical 

Mutual, Cigna, and Aetna. Ms. 

Odenkirk’s Alert reported about 

‘‘multiple terminations of the Aetna 

agreement by Cincinnati-Northern 

Kentucky OB/GYN physicians’’ and that 

Aetna had now indicated a willingness 

to negotiate with area OB–GYNs. She 

strongly encouraged Federation 

members—even those that had noticed 

termination of their Aetna contracts—to 

negotiate with Aetna. Ms. Odenkirk also 

advised Federation members that 

Medical Mutual had been advised that 

part of its fee schedule offer was 

‘‘unacceptable.’’

69. On November 17, 2003, Medical 

Mutual mailed proposed agreements 

offering substantially increased fees to 

nearly all Federation member practices. 

On November 19, 2003, Ms. Odenkirk emailed a Critical Federation Alert that 

informed Federation members that 

Medical Mutual’s new ‘‘proposal is, for 

all points and purposes, fair and 

reasonable, as it is now in line with 

agreements you’ve recently negotiated 

with other companies.’’ By early 2004, 

most of the Federation member 

practices had signed and returned the 

contracts. 

70. Ms. Odenkirk’s November 19, 

2003, Critical Federation Alert also gave 

Federation members specific 

instructions to persist in negotiations 

with Aetna, noting that its fee schedule 

was ‘‘considerably below’’ current 

levels. In the same November 19, 2003, 

Critical Federation Alert, Ms. Odenkirk 

instructed members that ‘‘[b]y now you 

should have sent your third party letter 

to CIGNA’’ and added that members 

should use with Cigna all of the points 

mentioned concerning Aetna. The Alert 

also included a general comment 

regarding the smaller insurers in the 

area, such as Aetna, Cigna, and Medical 

Mutual: ‘‘Consequently, you should 

make these calls and make it plainly 

known to each that you will NOT settle 

for anything less than a ‘fair and 

equitable’ contract from each. Moreover, 

you are in such a position with the 

bigger companies that you NO LONGER 

have to accept UNFAIR contracts from 

these smaller companies.‘‘

71. Coordinated by the Federation, 

using the Anthem agreement as a 

benchmark, as Ms. Odenkirk had urged, 

and using threats of terminating their 

services, Federation members were able 

to force ChoiceCare, United, and 

Medical Mutual to offer all Federation 

OB–GYN practices new contracts at fees 

and terms substantially equivalent to 

those in their Anthem contracts. 

72. Most of the contracts between 

Federation member OB–GYNs and the 

major insurers run through, at least, the 

end of 2005. The Federation continues 

to have Cincinnati-area member OB–

GYNs. Although some OB–GYNs have 

discontinued their membership in the 

Federation, the Cincinnati chapter of the 

Federation continues to exist and is 

available to coordinate another round of 

collectively negotiated contracts when 

the current contracts approach 

expiration. 

VIII. Violation Alleged 

73. Beginning at least as early as 

April, 2002, and continuing to date, 

Defendants and their conspirators have 

engaged in a combination and 

conspiracy in unreasonable restraint of 

interstate trade and commerce in 

violation of Section 1 of the Sherman 

Act, 15 U.S.C. 1. This offense is likely 

to continue and recur unless the relief 

requested is granted. 

74. The combination and conspiracy 

consisted of an understanding and 

concert of action among Defendants and 

their conspirators that the Federation’s 

Cincinnati Chapter members would 

coordinate their negotiations with 

health care insurance companies 

operating in the Cincinnati area to 

enable the collective negotiation of 

higher fees from these health care 

insurers. 

75. For the purpose of forming and 

effectuating this combination and 

conspiracy, Defendants and their 

conspirators did the following things, 

among others: 

(a) Successfully recruited as members 

of the Federation a high percentage of 

competing OB–GYNs practicing in the 

Cincinnati area; 

(b) Designated the Federation to 

represent most Federation members in 

their fee negotiations with Anthem, 

Humana, United, Medical Mutual, 

Aetna, and Cigna; 

(c) Reached an understanding to 

coordinate their negotiations through 

the Federation; and 

(d) In coordination with the 

Federation demanded new, 

substantially higher fees from each 

insurer while threatening termination of 

their contracts if satisfactory results 

were not obtained. 

76. This combination and conspiracy 

has had the following effects, among 

others: 

(a) Price competition among 

independent and competing OB–GYNs 

in the Cincinnati area who became 

Federation members has been 

restrained; 

(b) Health care insurance companies 

in the Cincinnati area and their 

subscribers have been denied the 

benefits of free and open competition in 

the purchase of OB–GYN services in the 

Cincinnati area; and 

(c) Self insured employers and their 

employees have paid significantly 

higher prices for OB–GYN services in 

the Cincinnati area than they would 

have paid in the absence of this restraint 

of trade. 

IX. Request for Relief 

77. To remedy these illegal acts, the 

United States of America requests that 

the Court: 

(a) Adjudge and decree that 

Defendants entered into an unlawful 

contract, combination, or conspiracy in 

unreasonable restraint of interstate trade 

and commerce in violation of Section 1 

of the Sherman Act, 15 U.S.C. 1; 

(b) Enjoin the Defendant Federation 

and its members, officers, agents, 

servants, employees and attorneys and 

their successors, the individual 

physician Defendants, and all other 

persons acting or claiming to act in 

active concert or participation with one 

or more of them, from continuing, 

maintaining, or renewing in any 

manner, directly or indirectly, the 

conduct alleged herein or from engaging 

in any other conduct, combination, 

conspiracy, agreement, understanding, 

plan, program, or other arrangement 

having the same effect as the alleged 

violations or that otherwise violates 

Section 1 of the Sherman Act, 15 U.S.C. 

1, through price fixing of medical 

services, collective negotiation on behalf 

of competing independent physicians or 

physician groups, or group boycotts of 

the purchasers of health care services; 


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(c) Enjoin the Federation and any 

Federation representative from 

representing or providing consulting 

services of any kind to any medical 

practice group, or any self-employed 

physician; and 

(d) Award to plaintiff its costs of this 

action and such other and further relief 

as may be appropriate and as the Court 

may deem just and proper. 

Dated: June 24, 2005. 

For Plaintiff United States of America: 

R. Hewitt Pate, 

Assistant Attorney General, Antitrust 

Division. 

J. Bruce McDonald, 

Deputy Assistant Attorney General, Antitrust 

Division. 

J. Robert Kramer, 

Director of Enforcement, Antitrust Division. 

Mark J. Botti, 

Chief, Litigation I, Antitrust Division. 

Joseph Miller, 

Assistant Chief, Litigation I, Antitrust 

Division. 

Gregory G. Lockhart, 

United States Attorney. 

Gerald F. Kaminski (Bar No. 0012532), 

Assistant United States Attorney, Office of 

the United States Attorney, 221 E. 4th Street, 

Suite 400, Cincinnati, Ohio 45202 (513) 684–

3711. 

Steven Kramer, John Lohrer, Paul Torzilli 

Attorneys, Antitrust Division, United States 

Department of Justice, 1401 H Street, NW., 

Suite 4000, Washington, DC 20530, (202) 

307–0997, steven.kramer@usdoj.gov. 

Certificate of Service 

I hereby certify that on June 24, 2005, 

copies of the foregoing Complaint were 

served by facsimile and first-class 

regular U.S. mail, postage prepaid, to: 

Michael E. DeFrank, Esq., Hemmer 

Pangburn DeFrank PLLC, Suite 200, 

250 Grandview Drive, Fort Mitchell, 

KY 41017, Fax: 859–344–1188, 

Attorney for Defendant Dr. James 

Wendel. 

G. Jack Donson, Jr., Esq., Taft, Stettinius 

& Hollander, 425 Walnut Street, Suite 

1800, Cincinnati, Ohio 45202, Fax: 

513–381–0205, Attorney for 

Defendant Dr. Michael Karram. 

Jeffrey M. Johnston, Esq., 37 North 

Orange Avenue, Suite 500, Orlando, 

FL 32801, Fax: 407–926–2452, 

Attorney for Defendant Dr. Warren 

Metherd. 

Paul J. Torzilli, 

Attorney, United States Department of 

Justice. 

In the United States District Court for 

the Southern District of Ohio Western 

Division 

United States of America, Plaintiff, vs. 

Federation of Physicians and Dentists, 

Lynda Odenkirk, et al., Defendants. 

[Case No. 1:05–cv–431, Hon. Sandra 

S. Beckwith, C.J., Hon. Timothy S. 

Hogan, M.J.] 

[Proposed] Final Judgment As to the 

Federation of Physicians and Dentists 

and Lynda Odenkirk 

Whereas, Plaintiff, the United States 

of America, filed its Complaint on June 

24, 2005, alleging that Defendant 

Federation of Physicians and Dentists 

(‘‘Defendant FPD’’), and Defendant 

Lynda Odenkirk (‘‘Defendant 

Odenkirk’’) (collectively ‘‘the Federation 

Defendants’’) participated in agreements 

in violation of section 1 of the Sherman 

Act; 

Whereas, Plaintiff and the Federation 

Defendants, by their counsel, have 

consented to the Court’s entry of this 

Final Judgment without trial or 

adjudication of any issue of fact or law, 

and without this Final Judgment 

constituting any evidence against, or 

any admission by the Federation 

Defendants that the law has been 

violated as alleged in the Complaint, or 

that the facts alleged in such Complaint, 

other than the jurisdictional facts, and 

the allegations admitted in the 

Federation Defendants’ Answers, are 

true; 

Whereas, the essence of this Final 

Judgment is to restore competition, as 

alleged in the Complaint, and to restrain 

the Federation Defendants from 

participating in any unlawful 

conspiracy to increase fees for physician 

services; 

And Whereas, Plaintiff United States 

requires the Federation Defendants to be 

enjoined from rendering services to, or 

representing, any independent 

physician pertaining to such physician’s 

dealing with any payer, for the purpose 

of preventing future violations of 

Section 1 of the Sherman Act. 

Now Therefore, without trial or 

adjudication of any issue of law or fact, 

and upon consent of Plaintiff and the 

Federation Defendants, it is Ordered, 

Adjudged and Decreed: 

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and over the United 

States and the Federation Defendants in 

this action. The Complaint states a 

claim upon which relief may be granted 

against the Federation Defendants under 

Section 1 of the Sherman Act, 15 U.S.C. 

1. 

II. Definitions 

As used in this Final Judgment: 

(A) ‘‘Communicate’’ means to discuss, 

disclose, transfer, disseminate, or 

exchange information or opinion, 

formally or informally, in any manner; 

(B) ‘‘Defendant FPD’’ means the 

Federation of Physicians and Dentists, 

its successors and assigns; its 

subsidiaries, divisions, groups, 

partnerships and joint ventures; and 

each entity over which it has control; 

and their directors, officers, managers, 

agents, representatives, and employees. 

(C) ‘‘Defendant Odenkirk’’ means 

Lynda Odenkirk, an employee of 

Defendant FPD; 

(D) ‘‘Delaware Decree’’ means the 

final judgment entered in United States 

v. Federation of Physicians and 

Dentists, Inc., CA 98–475 JJF (D. Del., 

judgment entered Nov. 6, 2002). 

(E) ‘‘The Federation Defendants’’

means Defendant FPD and Defendant 

Odenkirk; 

(F) ‘‘Independent physician’’ means 

any physician or physicians in private 

solo or group medical practice, 

regardless of whether such person is a 

member of the Federation of Physicians 

and Dentists. For purposes of this Final 

Judgment, an ‘‘independent physician’’

does not include physicians or other 

medical professional employees not in 

private practice or who belong to a 

recognized or certified bargaining unit 

that is affiliated with the Federation of 

Physicians and Dentists; 

(G) ‘‘Messenger’’ means, in relation to 

the Federation Defendants, 

communicating to a payer any 

information the Federation Defendants 

have received from an independent 

physician, or communicating to any 

independent physician any information 

the Federation Defendants receive from 

any payer; 

(H) ‘‘Payer’’ means any person that 

purchases or pays for all or part of a 

physician’s services for itself or any 

other person and includes but is not 

limited to individuals, health insurance 

companies, health maintenance 

organizations, preferred provider 

organizations, and employers; 

(I) ‘‘Person’’ means any natural 

person, corporation, firm, company, sole 

proprietorship, partnership, joint 

venture, association, institute, 

governmental unit, or other legal entity; 

(J) ‘‘Recognized or certified bargaining 

unit’’ means a group of physicians that 

have been recognized or certified 

pursuant to state or federal law to 

bargain collectively with their common 

employer over wages, terms, and 

conditions of employment. 


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III. Applicability 

(A) This Final Judgment applies to the 

Federation Defendants and to any 

person, including any independent 

physician, in active concert or 

participation with the Federation 

Defendants, who receives actual notice 

of this Final Judgment by personal 

service or otherwise. 

(B) Defendant Odenkirk shall be 

bound by the provisions of Section IV 

of this Final Judgment only while she is 

an employee or agent of, or acting in 

active concert with, Defendant FPD. 

(C) This Final Judgment shall not 

apply to the conduct of any physician 

or other medical professional employee 

who belongs to a recognized or certified 

bargaining unit affiliated with 

Defendant FPD, only to the extent such 

conduct reasonably relates to the lawful 

activities of the recognized or certified 

bargaining unit. 

(D) Nothing contained in this Final 

Judgment is intended to suggest or 

imply that any provision herein is or 

has been created or intended for the 

benefit of any third party and nothing 

herein shall be construed to provide any 

rights to any third party. 

(E) Nothing contained in this Final 

Judgment is intended to suggest or 

imply that Defendant FPD’s obligations 

under the Delaware Decree have been 

diminished, limited, curtailed, or 

otherwise modified. 

(F) In the event of any conflict or 

inconsistency between Section IV of this 

Final Judgment, and sections IV or V of 

the Delaware Decree, this Final 

Judgment controls. 

IV. Prohibited Conduct 

The Federation Defendants are 

enjoined from, in any manner, directly 

or indirectly: 

(A) Providing, or attempting to 

provide, any services to any 

independent physician regarding such 

physician’s actual, possible, or 

contemplated negotiation, contracting, 

or other dealings with any payer; 

(B) Acting, or attempting to act, in a 

representative capacity, including as a 

messenger or in dispute resolution (such 

as arbitration), for any independent 

physician with any payer; 

(C) Reviewing or analyzing, or 

attempting to review or analyze, for any 

independent physician, any proposed or 

actual contract or contract term between 

such physician and any payer; 

(D) Communicating, or attempting to 

communicate, with any independent 

physician about that physician’s, or any 

other physician’s, negotiating, 

contracting, or participating status with 

any payer, or, except as consistent with 

section V(A), about any proposed or 

actual contract or contract term between 

any independent physician and any 

payer; 

(E) Responding, or attempting to 

respond, to any question or request 

initiated by any payer, except to state 

that this Final Judgment prohibits such 

response; and 

(F) Training or educating, or 

attempting to train or educate, any 

independent physician in any aspect of 

contracting or negotiating with any 

payer, including but not limited to, 

contractual language and interpretation 

thereof, methodologies of payment or 

reimbursement by any payer for such 

physician’s services, and dispute 

resolution such as arbitration, except 

that the Federation Defendants may, 

provided they do not violate sections 

IV(A) through IV(E) of this Final 

Judgment, (1) Speak on general topics 

(including contracting), but only when 

invited to do so as part of a regularly 

scheduled medical educational seminar 

offering continuing medical education 

credit and only if at least five-days 

advance written notice has been 

provided to Plaintiff and any handouts, 

outlines, presentation slides, notes or 

other documents relating to what was 

said by the Federation Defendants are 

retained by the Defendant FPD for 

possible inspection by Plaintiff; (2) 

publish articles on general topics 

(including contracting) in a regularly 

disseminated newsletter; and (3) 

provide education to independent 

physicians regarding the regulatory 

structure (including legislative 

developments) of workers 

compensation, Medicaid, and Medicare, 

except Medicare Advantage. 

V. Permitted Conduct 

(A) The Federation Defendants may 

engage in activities that fall within the 

safety zone set forth in Statement 6 of 

the 1996 Statements of Antitrust 

Enforcement Policy in Health Care, 4 

Trade Reg. Rep. (CCH) ¶ 13,153. 

(B) Nothing in this Final Judgment 

shall prohibit the Federation 

Defendants, or any one or more of 

Defendant FPD’s members from: 

(1) Engaging or participating in lawful 

union organizational efforts and 

activities; 

(2) Advocating or discussing, in 

accordance with the doctrine 

established in Eastern Railroad 

Presidents Conference v. Noerr Motor 

Freight, Inc., 365 U.S. 127 (1961), 

United Mine Workers v. Pennington, 381 

U.S. 657 (1965), and their progeny, 

legislative, judicial, or regulatory 

actions, or other governmental policies 

or actions; and 

(3) Exercising rights protected by the 

National Labor Relations Act or any 

state collective bargaining laws. 

(C) Nothing in this Final Judgment 

shall prohibit: 

(1) Any independent physician to 

whom this Final Judgment applies from 

engaging solely with other members or 

employees of such physician’s bona fide 

solo practice or practice group in 

activities otherwise prohibited herein; 

(2) Any independent physician to 

whom this Final Judgment applies from 

acting alone in the exercise of his or her 

own independent business judgment, 

from choosing the payer or payers with 

which to contract, and/or refusing to 

enter into discussions or negotiations 

with any payer. 

(D) Nothing in this Final Judgment 

shall prohibit or impair the right of the 

Federation Defendants (or any affiliate 

thereof) as a labor organization from 

communicating with other labor 

organizations concerning the identity of 

payers who are considered pro- or antiunion, provided such activity is 

consistent with § 8(b)(4) of the National 

Labor Relations Act, 29 U.S.C. 158(b)(4), 

and to the extent it does not constitute 

a secondary boycott. 

VI. Compliance 

To facilitate compliance with this 

Final Judgment, Defendant FPD shall: 

(A) Distribute within 60 days from the 

entry of this Final Judgment, a copy of 

this Final Judgment and the Competitive 

Impact Statement to: 

(1) All of Defendant FPD’s directors, 

officers, managers, agents, employees, 

and representatives, who provide or 

have provided, or supervise or have 

supervised the provision of, services to 

independent physicians; and 

(2) All of Defendant FPD’s members 

who are independent physicians. 

(B) Distribute as soon as practicable a 

copy of this Final Judgment and the 

Competitive Impact Statement to: 

(1) Any person who succeeds to a 

position with Defendant FPD described 

in section VI(A), in no event shall such 

distribution occur more than fifteen (15) 

days later than such person assumes 

such position; and 

(2) Any independent physician who 

becomes a member of Defendant FPD, in 

no event shall such distribution occur 

more than fifteen (15) days later than 

such physician becomes a member. 

(C) Conduct an annual seminar 

explaining to all of Defendant FPD’s 

directors, officers, managers, agents, 

employees, and representatives, who 

provide or have provided, or supervise 

or have supervised the provision of, 

services to independent physicians, the 

antitrust principles applicable to their 


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work, the restrictions contained in this 

Final Judgment, and the implications of 

violating the Final Judgment; 

(D) Maintain an internal mechanism 

by which questions about the 

application of the antitrust laws and this 

Final Judgment from any of Defendant 

FPD’s directors, officers, managers, 

agents, employees, and representatives, 

who provide or have provided, or 

supervise or have supervised the 

provision of, services to independent 

physicians, can be answered by counsel 

as the need arises; 

(E) Obtain a certificate from each 

person to whom Defendant FPD must 

distribute this Final Judgment: 

(1) Pursuant to section VI(A), within 

120 days from the entry of this Final 

Judgment; and 

(2) Pursuant to section VI(B), as soon 

as practicable but in no event more than 

120 days from the date of such 

distribution; 

The certificate shall state that such 

person has received, read, and 

understands this Final Judgment, and 

that such person has been advised and 

understands that such person must 

comply with this Final Judgment and 

may be held in civil or criminal 

contempt for failing to do so. Defendant 

FPD shall retain each certificate for the 

duration of this Final Judgment; and 

(F) Maintain for inspection by 

Plaintiff a record of recipients to whom 

this Final Judgment, and Competitive 

Impact Statement have been distributed 

and from whom written certifications, 

pursuant to section VI(E), have been 

received. 

VII. Certification 

(A) Within 75 days after entry of this 

Final Judgment, Defendant FPD shall 

certify to Plaintiff that it has provided 

a copy of this Final Judgment to all 

persons described in VI(A) of this Final 

Judgment. 

(B) For a period of ten (10) years 

following the date of entry of this Final 

Judgment, the Federation Defendants 

shall separately certify to Plaintiff 

annually on the anniversary date of the 

entry of this Final Judgment that each, 

respectively, and any agents if 

applicable, has complied with the 

provisions of this Final Judgment. 

VIII. Compliance Inspection 

(A) For the purposes of determining 

or securing compliance with this Final 

Judgment or determining whether the 

Final Judgment should be modified or 

vacated, and subject to any legally 

recognized privilege, authorized 

representatives of the United States 

Department of Justice, including 

consultants and other persons retained 

by the United States, shall, upon written 

request of an authorized representative 

of the Assistant Attorney General in 

charge of the Antitrust Division and on 

reasonable notice to the Federation 

Defendants, be permitted: 

(1) Access during the Federation 

Defendants’ regular business hours to 

inspect and copy, or, at the United 

States’ option, to require that the 

Federation Defendants provide copies of 

all books, ledgers, accounts, records and 

documents in their possession, custody, 

or control, relating to any matters 

contained in this Final Judgment; 

(2) To interview, either informally or 

on the record, Defendant Odenkirk or 

any of Defendant FPD’s officers, 

directors, employees, agents, managers, 

and representatives, who may have their 

individual counsel present, regarding 

such matters. The interviews shall be 

subject to the reasonable convenience of 

the interviewee and without restraint or 

interference by the Federation 

Defendants; and 

(3) To obtain from the Federation 

Defendants written reports or responses 

to written interrogatories, under oath if 

requested, relating to any matters 

contained in this Final Judgment. 

(B) The provisions of section VIII(A) 

shall not apply to any member of 

Defendant FPD or to any such member’s 

group practice. 

(C) No information or documents 

obtained by the means provided in this 

Section shall be divulged by Plaintiff to 

any person other than authorized 

representatives of the executive branch 

of the United States, except in the 

course of legal proceedings to which the 

United States is a party (including grand 

jury proceedings), or for the purpose of 

securing compliance with this Final 

Judgment, or as otherwise required by 

law. 

(D) If at any time a Federation 

Defendant furnishes information or 

documents to the United States, the 

Federation Defendant represents and 

identifies in writing the material in any 

such information or documents to 

which a claim of protection may be 

asserted under Rule 26(c)(7) of the 

Federal Rules of Civil Procedure, and 

marks each pertinent page of such 

material, ‘‘Subject to claim of protection 

under Rule 26(c)(7) of the Federal Rules 

of Civil Procedure,’’ then the United 

States shall give the Federation 

Defendant ten (10) calendar days notice 

prior to divulging such material in any 

legal proceeding (other than a grand jury 

proceeding) to which such Defendant is 

not a party. 

(E) The Federation Defendants have 

the right to representation by counsel in 

any proceeding under this Section. 

IX. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment, 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

X. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten (10) 

years from the date of its entry. 

XI. Public Interest Determination 

The parties have complied with the 

requirements of the Antitrust 

Procedures and Penalties Act, 15 U.S.C. 

section 16, including making copies 

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’ responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and responses to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Dated:lllll, 2007. 

Sandra S. Beckwith, Chief Judge 

United States District Court. 

In the United States District Court for 

the Southern District of Ohio Western 

Division 

United States Of America, Plaintiff, 

vs. Federation of Physicians and 

Dentists, et al., Defendants. 

Case No. 1:05–CV–431, Chief Judge 

Sandra S. Beckwith, Magistrate Judge 

Thomas S, Hogan. 

Plaintiff’s Competitive Impact 

Statement Concerning the Proposed 

Final Judgment As to the Federation of 

Physicians and Dentists and Lynda 

Odenkirk 

In this civil antitrust action, the 

United States of America, pursuant to 

section 2(b) of the Antitrust Procedures 

and Penalties Act (‘‘APPA’’), 15 U.S.C. 

section 16(b)–(h), files this Competitive 

Impact Statement concerning the 

proposed Final Judgment as to the 

Federation of Physicians and Dentists 

and Lynda Odenkirk (‘‘Final Judgment’’) 

that the parties have submitted for 

entry. 

I. Nature and Purpose of the Proceeding 

The United States filed this civil 

antitrust Complaint on June 24, 2005, in 

the United States District Court for the 

Southern District of Ohio, Western 

Division, alleging that the Federation of 


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Physicians and Dentists (‘‘Federation’’) 

and Federation employee Lynda 

Odenkirk, along with physician codefendants Drs. Warren Metherd, 

Michael Karram, and James Wendel 

coordinated a conspiracy among about 

120 obstetrician-gynecologist physicians 

(‘‘OB–GYNs’’) practicing in greater 

Cincinnati, Ohio, that unreasonably 

restrained interstate trade and 

commerce in violation of Section 1 of 

the Sherman Act, 15 U.S.C. section 1. 

As alleged in the Complaint, the 

conspiracy artificially raised fees paid 

by health care insurers to Federation 

members in the Cincinnati area, which 

are ultimately borne by employers and 

their employees. The physician 

defendants agreed to a judgment that 

was filed concurrently with the 

Complaint and eventually entered by 

this Court on November 14, 2005, after 

determining, under the APPA, that the 

decree was in the public interest. (Dkt. 

Entry #36). 

The plaintiff and the remaining 

defendants, the Federation and Ms. 

Odenkirk (the ‘‘Federation defendants’’), 

have stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA and upon 

the Court’s determination that it serves 

the public interest. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment, and to punish violations of it. 

II. Description of the Events Giving Rise 

to the Alleged Violation of the Antitrust 

Laws 

The Complaint in this action includes 

the following allegations. The 

Federation is a membership 

organization of physicians and dentists, 

headquartered in Tallahassee, Florida. 

The Federation’s membership includes 

economically independent physician 

groups in private practice in many 

states, including Ohio. The Federation 

has offered such member physicians 

assistance in negotiating fees and other 

terms in their contracts with health care 

insurers. 

In spring 2002, several Cincinnati 

OB–GYNs became interested in joining 

the Federation to negotiate higher fees 

from health care insurers. The physician 

defendants assisted the Federation in 

recruiting other Cincinnati-area OB–

GYNs as members. By June 2002, the 

membership of the Federation had 

grown to include a large majority of 

competing OB–GYN physicians in the 

Cincinnati area. 

With substantial assistance from the 

physician defendants and Ms. Odenkirk, 

the Federation coordinated and helped 

implement its members’ concerted 

demands to insurers for higher fees and 

related terms, accompanied by threats of 

contract terminations. From September 

2002 through the fall of 2003, Ms. 

Odenkirk communicated with the 

physician defendants and other 

Cincinnati-area OB–GYN Federation 

members to coordinate their contract 

negotiations with health care insurers. 

Along with the physician defendants, 

Ms. Odenkirk developed a strategy to 

intensify Federation member 

physicians’ pressure on health care 

insurers to renegotiate their contracts, 

including informing member physicians 

about the status of competing member 

groups’ negotiations and taking steps to 

coordinate their negotiations. 

The agreement coordinated by the 

Federation defendants forced 

Cincinnati-area health care insurers to 

raise fees paid to Federation member 

OB–GYNs above the levels that would 

likely have resulted if Federation 

members had negotiated competitively 

with those insurers. As a result of the 

conspirators’ conduct, the three largest 

Cincinnati-area health care insurers 

each were forced to increase fees paid 

to most Federation members OB–GYNs 

by approximately 15–20% starting July 

1, 2003, followed by cumulative 

increases of approximately 20–25% 

starting January 1, 2004, and 

approximately 25–30% effective January 

1, 2005. Federation member OB–GYNs’

conduct, coordinated by the Federation 

defendants, also caused other insurers 

to raise the fees they paid to Federation 

members. 

III. Explanation of the Proposed Final 

Judgment 

A. Relief To Be Obtained 

The proposed Final Judgment is 

designed to enjoin the Federation 

defendants from taking future actions 

that could facilitate private-practice 

physicians’ coordination of their 

dealings with payers. The central 

objective of the injunctive provisions, 

therefore, is to prohibit the Federation 

from being involved anywhere in the 

country in its private-practice members’

negotiating or contracting with health 

insurers or other payers for health care 

services. 

The proposed Final Judgment 

prohibits the Federation defendants 

from providing any services to any 

physician in private practice regarding 

such physician’s negotiation, 

contracting, or other dealings with any 

payer. The proposed Final Judgment 

also prohibits the Federation defendants 

from (1) representing (including as a 

messenger) any private-practice 

physician with any payer; (2) reviewing 

or analyzing, for any such physician, 

any proposed or actual contract or 

contract term between such physician 

and any payer; and (3) communicating 

with any independent physician about 

that physician’s, or any other 

physician’s, negotiating, contracting, or 

participating status with any payer. 

Communications by the Federation 

defendants about any proposed or actual 

contract or contract term between any 

independent physician and any payer 

are also generally prohibited. In 

addition, the proposed Final Judgment 

enjoins the Federation defendants from 

responding to any question or request 

initiated by any payer, except to state 

that the Final Judgment prohibits such 

a response. Finally, the proposed Final 

Judgment generally prohibits the 

Federation defendants from training or 

educating, or attempting to train or 

educate, any independent physician in 

any aspect of contracting or negotiating 

with any payer. 

The only exceptions to these broad 

prohibitions cover conduct that neither 

threatens competitive harm nor 

undermines the clarity of the 

prohibitions, which the Department will 

enforce aggressively. One exception 

limits the prohibition on the Federation 

defendants from training or educating, 

or attempting to train or educate, any 

independent physician in any aspect of 

contracting or negotiating with any 

payer, provided they do not violate the 

other injunctive provisions of the 

proposed Final Judgment, enabling 

defendants to (1) speak on general 

topics (including contracting), but only 

when invited to do so as part of a 

regularly scheduled medical 

educational seminar offering continuing 

medical education credit, advance 

written notice has been given to 

Plaintiff, and documents relating to 

what was said by the Federation 

Defendants are retained by them for 

possible inspection by the United 

States; (2) publish articles on general 

topics (including contracting) in a 

regularly disseminated newsletter; and 

(3) provide education to independent 

physicians regarding the regulatory 

structure (including legislative 

developments) of workers 

compensation, Medicaid, and Medicare, 

except Medicare Advantage. 

In a section titled ‘‘permitted 

conduct,’’ the proposed decree permits 

the Federation defendants to engage in 

activities involving physician 

participation in written fee surveys that 

are covered by the ‘‘safety zone’’ under 

Statement 6 of the 1996 Statements of 

Antitrust Enforcement Policy in Health 


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Care, 4 Trade Reg. Rep. (CCH) ¶ 13,153, 

which addresses provider participation 

in exchanges of price and cost 

information. The proposed Final 

Judgment also clarifies that it does not 

prohibit the Federation defendants or 

Federation members from engaging in 

lawful union organizational efforts and 

activities. The proposed Final Judgment 

also allows the Federation defendants or 

Federation members to petition 

governmental entities in accordance 

with doctrine established in Eastern 

Railroad Presidents Conference v. Noerr 

Motor Freight, Inc., 365 U.S. 127 (1961), 

and its progeny. In addition, the decree 

permits Federation physician members 

to choose independently, or solely with 

other members or employees of such 

member’s bona fide solo practice or 

practice groups, health insurers with 

which to contract, and/or to refuse to 

enter into discussion or negotiations 

with any health care payer. 

To promote compliance with the 

decree, the proposed Final Judgment 

also requires the Federation to provide 

Federation agents and members in 

private practice with copies of the Final 

Judgment and this Competitive Impact 

Statement and to institute mechanisms 

to facilitate Federation agents’

compliance. For a period of ten years 

following the date of entry of the Final 

Judgment, the Federation defendants 

separately must certify annually to the 

United States whether they have 

complied with the provisions of the 

Final Judgment. 

The proposed Final Judgment clarifies 

that it does not alter the Federation’s 

obligations under the decree entered by 

the district court in Delaware in a prior, 

similar case against the Federation, 

United States v. Federation of 

Physicians and Dentists, Inc., CA 98–

475 JJF (D. Del., judgment entered Nov. 

6, 2002), and that, if there is any conflict 

between the injunctive provisions of the 

proposed Final Judgment and the 

injunctive provisions or conduct 

permitted by the Delaware decree, the 

proposed Final Judgment controls. The 

proposed Final Judgment embodies 

more stringent relief than that provided 

by the Delaware decree because it 

prohibits the Federation from, for 

example, representing physicians in 

their dealings with payers as a 

messenger and from reviewing and 

analyzing physician contracts with any 

payer, activities that the Delaware 

decree had permitted in limited 

circumstances. 

B. Anticipated Effects on Competition of 

the Relief To Be Obtained 

The proposed Final Judgment 

attempts to prevent recurrence of the 

violation and restore lost competition, 

as alleged in the Complaint. The 

essential relief imposed by the proposed 

Final Judgment—prohibiting the 

Federation’s involvement in its privatepractice members’ contracting with 

payers—will eliminate a substantial 

restraint on price competition among 

competing OB–GYNs in Cincinnati and 

elsewhere. Consequently, payers in the 

Cincinnati area and elsewhere seeking 

to develop or maintain a network of 

OB–GYNs will benefit from competition 

unimpeded by the collusive behavior of 

the Federation and its members. 

Employers arranging for delivery of 

physician services through insurer 

networks and members of such health 

care plans will similarly benefit from 

the plans’ ability to negotiate for OB–

GYN services on competitive terms, 

rather than on the collusively inflated 

fees that resulted from the Federation’s 

coordination of the negotiations 

conducted with payers by the majority 

of Cincinnati-area OB–GYN physicians. 

IV. Remedies Available to Potential 

Private Litigants Damaged By the 

Alleged Violation if the Proposed Final 

Judgment is Entered 

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 will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment also would have no prima 

facie effect in any subsequent private 

lawsuits that may be brought against the 

Federation defendants involving their 

alleged conduct in this action. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The parties have stipulated that the 

proposed Final Judgment may be 

entered by this Court after compliance 

with the provisions of the APPA, 

provided that the United States has not 

withdrawn its consent. The APPA 

conditions entry of the decree upon this 

Court’s determination that the proposed 

Final Judgment is in the public interest. 

The APPA provides a period of at 

least sixty (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 sixty (60) 

days of the latter of the date of 

publication of this Competitive Impact 

Statement in the Federal Register or the 

last date of publication in a newspaper 

of notice of the filing of the proposed 

Final Judgment and this Competitive 

Impact Statement. The United States 

will evaluate and respond to the 

comments received during this period, 

and it remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to entry. The 

comments and the response of the 

United States will be filed with this 

Court and published in the Federal 

Register. Written comments should be 

submitted to: Joseph Miller, Acting 

Chief, Litigation I Section, Antitrust 

Division, United States Department of 

Justice, 1401 H Street, NW., Suite 4000, 

Washington, DC 20530. 

The proposed Final Judgment 

provides that this Court retains 

jurisdiction over this action, and the 

parties may apply to this Court for any 

order necessary or appropriate for the 

modification, interpretation, or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment Actually Considered by The 

United States 

The United States considered 

rejecting the Federation’s proposal that 

the Final Judgment contain exceptions 

permitting the Federation to engage in 

certain educational and training 

activities, and thus continuing to litigate 

the claims in the Complaint. The 

exceptions, however, are narrow and do 

not undermine the effectiveness of the 

decree. The United States decided, 

therefore, that the Final Judgment 

provides it with substantially all of the 

relief it could have expected to achieve 

in Court and did not warrant the delay, 

risks, and costs of further litigation. 

VII. Standard of Review Under the 

APPA of the Proposed Final Judgment 

After the sixty (60)-day comment 

period and compliance with the 

provisions of the APPA, if the United 

States has not withdrawn its consent to 

the proposed Final Judgment, it will 

move for entry of the proposed Final 

Judgment in accordance with the APPA. 

Persons considering commenting on the 

proposed Final Judgment are advised 

that, in determining, under the APPA, 

whether entry of the proposed Final 

Judgment is ‘‘in the public interest,’’ the 

Court shall consider: 

(A) The competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration or relief sought, 

anticipated effects of alternative remedies 


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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). 

As these statutory provisions suggest, 

the APPA requires the Court to 

consider, among other things, the 

relationship between the remedy 

secured and the specific allegations set 

forth in the government’s complaint, 

whether the decree is sufficiently clear, 

whether enforcement mechanisms are 

sufficient, and whether the decree may 

positively harm third parties. See 

United States v. Microsoft Corp., 56 F.3d 

1448, 1458–62 (D.C. Cir. 1995). In 

determining whether the proposed 

judgment is in the public interest, 

‘‘[n]othing in [the APPA] 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), ‘‘which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Congo Rec. 24,598 (1973) 

(statement of Senator Tunney). This 

caveat is also consistent with the 

deferential review of consent decrees 

under the APPA. See United States v. 

Microsoft, 56 F.3d at 1460–62; United 

States v. BNS, Inc., 858 F.2d 456, 462 

(9th Cir. 1988); United States v. SBC 

Commc’ns, Inc., Nos. 05–2102 and 05–

2103, 2007 WL 1020746, at *9 (D.D.C. 

Mar. 29, 2007) (confirming that 2004 

amendments to the APPA ‘‘effected 

minimal changes[] and that the[ e] 

Court’s scope of review remains sharply 

proscribed by precedent and the nature 

of [APPA] proceedings.’’). 

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. 

Respectfully submitted, 

Dated: July 2, 2007. 

For Plaintiff United States of America: 

Gregory G. Lockhart, 

United States Attorney. 

Gerald F. Kaminski 

Assistant United States Attorney, Bar No. 

0012532. 

Office of the United States Attorney, 221 E. 

4th Street, Suite 400, Cincinnati, Ohio 45202, 

(513) 684–3711. 

Steven Kramer, 

Paul Torzilli, 

Attorneys, Antitrust Division, U.S. 

Department of Justice, 1401 H Street, NW., 

Suite 4000, Washington, DC 20530, (202) 

307–0997, steven.kramer@usdoj.gov. 

Certificate of Service 

I hereby certify that on July 2, 2007, 

I electronically filed the foregoing 

Plaintiff’s Competitive Impact Statement 

Concerning the Proposed Final 

Judgment as to The Federation of 

Physicians and Dentists and Lynda 

Odenkirk with the Clerk of Court using 

the CM/ECF system which will send 

notification of such filing to the 

following CM/ECF participants: 

David M. Cook, Esq. of Cook, Portune 

& Logothetis (Cincinnati) (as Trial 

Attorney for Defendant Federation of 

Physicians and Dentists, and Trial 

Attorney for Defendant Lynda 

Odenkirk), and 

Kimberly L. King, Esq. of Hayward & 

Grant, P.A. (Tallahassee, FL) (as 

Attorney for Defendant Federation of 

Physicians and Dentists, and Attorney 

for Defendant Lynda Odenkirk). 

Paul Torzilli, 

Attorney, United States Department of 

Justice. 

[FR Doc. 07–3421 Filed 7–17–07; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Office of Justice Programs 

[OMB Number 1121–0240] 

Agency Information Collection 

Activities: Revision of a Currently 

Approved Collection; Comments 

Requested 

ACTION: 30-day notice of information 

collection under review: 2007 Survey of 

State and Local Law Enforcement 

Agencies. 

The Department of Justice (DOJ), 

Office of Justice Programs, Bureau of 

Justice Statistics (BJS), will be 

submitting the following information 

collection request to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995. 

The proposed information collection is 

published to obtain comments from the 

public and affected agencies. This 

proposed information collection was 

previously published in the Federal 

Register Volume 72, Number 90, pages 

26648–26649 on May 10, 2007, allowing 

for a 60 day comment period. The 

purpose of this notice is to allow for an 

additional 30 days for public comment 

until August 17, 2007. This process is 

conducted in accordance with 5 CFR 

1320.10. 

If you have comments especially on 

the estimated public burden or 

associated response time, suggestions, 

or need a copy of the proposed 

information collection instrument with 

instructions or additional information, 

please contact Brian Reaves, Bureau of 

Justice Statistics, 810 Seventh St., NW., 

Washington, DC 20531. 

Written comments and suggestions 

from the public and affected agencies 

concerning the proposed collection of 

information are encouraged. Your 

comments should address one or more 

of the following four points: 

—Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

—Evaluate the accuracy of the agencies 

estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

—Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

—Minimize the burden of the collection 

of information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms 

of information technology, e.g., 

permitting electronic submission of 

responses. 

Overview of This Information 

Collection: 

(1) Type of Information Collection: 

Revision of a currently approved 

collection. 

(2) Title of the Form/Collection: 2007 

Survey of State and Local Law 

Enforcement Agencies. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Justice sponsoring the 

collection: Form Number: The form 

numbers are CJ–44L and CJ–44S, Bureau 

of Justice Statistics, Office of Justice 

Programs, Department of Justice. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Federal, State, and 

Local Government. This information 

collection is a survey of State and local 

law enforcement agencies. The survey 

will provide statistics on law 

enforcement personnel, budgets, 


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