Federal Register / Vol. 62, No. 42 / Tuesday, March 4, 1997 / Notices 9807

Suite 500, Denver, Colorado, 80202.

When requesting a copy by mail, please

enclose a check in the amount of $12.25

(twenty-five cents per page reproduction

costs) payable to the ‘‘Consent Decree

Library.’’

Joel M. Gross,

Chief, Environmental Enforcement Section,

Environmental and Natural Resources

Division.

[FR Doc. 97–5247 Filed 3–3–97; 8:45 am]

BILLING CODE 4410–15–M

Antitrust Division

United States v. Delta Dental of Rhode

Island; Proposed Final Judgment and

Competitive Impact Statement

Notice is hereby given pursuant to the

Antitrust Procedures and Penalties Act,

15 U.S.C. Section 16 (b) through (h), that

a proposed Final Judgment, a

Stipulation, and a Competitive Impact

Statement have been filed with the

United States District Court for the

District of Rhode Island in United States

of America v. Delta Dental of Rhode

Island, Civil Action No. 96–113P.

The Complaint in the case alleges that

Delta Dental of Rhode Island (‘‘Delta’’)

entered into so-called ‘‘most favored

nation’’ agreements with its panel

dentists in unreasonable restraint of

trade, in violation of Section 1 of the

Sherman Act, 15 U.S.C. § 1. Delta, a

broad-panel plan contracting with over

90% of Rhode Island’s dentists, required

that participating dentists offer no lower

price to competing dental plans. The

agreements effectively restricted the

willingness of panel dentists to discount

fees for dental care and blocked

competition from narrow-panel, lower

cost dental plans.

The proposed Final Judgment

eliminates Delta’s most favored nation

clause and enjoins Delta from engaging

in other actions that would limit future

discounting by its participating dentists.

Public comment on the proposed

Final Judgment is invited within the

statutory 60-day comment period. Such

comments and responses thereto will be

published in the Federal Register and

filed with the Court. Comments should

be directed to Gail Kursh, Chief; Health

Care Task Force; United States

Department of Justice; Antitrust

Division; Liberty Place; 325 7th Street,

NW., Room 404, Washington, DC 20530

(202/307–5799).

Rebecca P. Dick,

Deputy Director of Operations, Antitrust

Division, United States Department of Justice.

United States District Court for the

District of Rhode Island

[Civil Action No. 96–113P]

United States of America, Plaintiff, vs.

Delta Dental of Rhode Island, Defendant.

Stipulation

It is stipulated by and between the

undersigned parties, their respective

attorneys, that:

1. The Court has jurisdiction over the

subject matter of this action and over

both of the parties, and venue of this

action is proper in the District of Rhode

Island.

2. The parties consent that a Final

Judgment in the form attached may be

filed and entered by the Court, upon the

motion of either party or upon the

Court’s own action, at any time after

compliance with the requirements of the

Antitrust Procedures and Penalties Act

(15 U.S.C. 16), and without further

notice to any party or other proceedings,

provided that Plaintiff has not

withdrawn its consent, which it may do

at any time before the entry of the

proposed Final Judgment by serving

notice thereof on Defendant any by

filing that notice with the Court.

3. If Plaintiff withdraws its consent, or

if the proposed Final Judgment is not

entered pursuant to the terms of this

Stipulation, this Stipulation shall be of

no effect whatsoever, and the making of

this Stipulation shall be without

prejudice to either party in this or in

any other proceeding.

4. Defendant agrees to be bound by

the provisions of the proposed Final

Judgment pending its approval by the

Court.

Dated: lll.

For Plaintiff

Joel I. Klein,

Acting Assistant Attorney General.

A. Douglas Melamed,

Deputy Assistant Attorney General.

Rebecca P. Dick,

Deputy Director, Office of Operations.

Gail Kursh,

Chief, Health Care Task Force.

David C. Jordan,

Assistant Chief, Health Care Task Force,

Antitrust Division, Department of Justice,

Washington, D.C. 20530.

For Defendant

William R. Landry, #494,

Blish & Cavanagh, Commerce Center, 30

Exchange Terrace, Providence, R.I. 02903–

1765, (401) 831–8900.

Steven Kramer,

William E. Berlin,

Mark J. Botti,

Michael S. Spector,

Richard S. Martin,

Attorneys, Antitrust Division, Department of

Justice, 325 7th Street, N.W., Washington,

D.C. 20530, (202) 307–0997.

Sheldon Whitehouse,

United States Attorney, District of Rhode

Island.

By: Anthony DiGioia,

Ass’t. U.S. Attorney, 10 Dorrance Street,

Providence, R.I. 02903, (401) 528–5477.

William G. Kopit,

Espstein Becker & Green, 1227 25th Street,

N.W., Washington, D.C. 20037, (202) 861–

9000.

United States District Court for the

District of Rhode Island

[Civil Action No. 96–113P]

United States of America, Plaintiff, vs.

Delta Dental of Rhode Island, Defendant.

Final Judgment

Plaintiff, United States of America,

filed its Complaint on February 29,

1996. Plaintiff and Defendant, by their

respective attorneys, have consented to

the entry of this Final Judgment without

trial or final adjudication of any issue of

fact or law. This Final Judgment shall

not be evidence against or an admission

by any party of any issue of fact or law,

nor a determination that any violation of

law has occurred. Therefore, before the

taking of any trial testimony and

without trial of any issue of fact or law,

and upon consent of the parties, it is

Ordered, adjudged, and decreed, as

follows:

I. Jurisdiction

This Court has jurisdiction over the

subject matter of this action and over

each of the consenting parties. The

Complaint states a claim upon which

relief may be granted against Delta

under Section 1 of the Sherman Act, 15

U.S.C. 1.

II. Definitions

As used herein, the term:

(A) ‘‘Defendant’’ or ‘‘Delta’’ means

Delta Dental of Rhode Island.

(B) ‘‘Participating Dentist’s

Agreement’’ means Delta’s agreement

with dentists for the provision of dental

services to Delta’s subscribers, including

Delta’s Rules and Regulations

referenced in the agreement, and all

amendments and additions to any such

agreement.

(C) ‘‘Participating Dentist’’ means any

dentist who has agreed to comply with

the terms of the Participating Dentist’s

Agreement.

(D) ‘‘Most Favored Nation Clause’’

means:
9808 Federal Register / Vol. 62, No. 42 / Tuesday, March 4, 1997 / Notices

(1) paragraph 10 of Delta’s Rules and

Regulations, sometimes characterized as

Delta’s ‘‘Prudent Buyer Policy,’’

pursuant to which:

‘‘Delta Dental reserves the right to limit

reimbursements to dentists to such

levels as such dentists have agreed to

accept as reimbursement from other

non-governmental dental benefits

reimbursement programs;’’ or

(2) any contractual provision, policy,

or practice which requires a dentist to

charge Delta no more than the lowest fee

charged by that dentist to any non-Delta

plan or patient.

(E) ‘‘Usual and customary fees’’ means

the fees for services and material that

dentists usually charge, before any

discounting, to their patients.

III. Applicability

This Final Judgment applies to Delta

and to its successors and assigns, and to

all other persons (including

Participating Dentists) in active concert

or participation with any of them, who

have received actual notice of the Final

Judgment by personal service or

otherwise.

IV. Prohibited Conduct

Delta is enjoined and restrained from:

(A) maintaining, adopting, or

enforcing any Most Favored Nation

Clause or similar provision in any

Participating Dentist’s Agreement, or by

any other means or methods;

(B) maintaining, adopting, or

enforcing any policy or practice varying

Delta’s payments to, or other treatment

of, any dentist because the dentist

charges any non-Delta patient or plan a

fee lower than the fee the dentist

charges Delta;

(C) taking any action to discourage

any dentist from participating in any

non-Delta plan or from offering or

charging to any non-Delta patient, or

any non-Delta plan, any fee lower than

that paid to the dentist by Delta; and

(D) monitoring, auditing, or obtaining

from any dentist the fees a particular

dentist charges any non-Delta patient or

any non-Delta plan, except as provided

in Section V.

V. Permitted Activities

Nothing herein shall be construed so

as to preclude Delta from:

(A) establishing preferred provider

networks or other forms of limited

panels of providers, including

discounted fee panels, recruiting

dentists who are participating with

other dental plans in similar panels, and

negotiating bi-lateral fee arrangement

with such dentists, provided that such

activity does not violate any provision

of Section IV;

(B) establishing provider

reimbursement levels as may be

reasonable and necessary to respond to

market conditions and having different

reimbursement levels for different

categories or panels of providers,

provided that Delta’s criteria for

differentiation in reimbursement among

categories or panels of dentists are not

based on their participation in other

dental plans, on fees those dentists offer

other dental plans or persons, or on fees

those dentists agree upon with other

dental plans or persons; and

(C) collecting through otherwise

lawful means, including use of a survey

sent to all Participating Dentists, (1)

Participating Dentists’ usual and

customary fees for each applicable

service, provided that such information

is collected uniformly from all

Participating Dentists; and (2) data and

information, including reimbursement

levels, regarding other dental plans.

VI. Nullification

Delta’s Most Favored Nation Clause

shall be null and void and Delta shall

impose no obligation arising from it on

any Participating Dentist. Within 90

days of entry of this Final Judgment,

Delta shall disseminate to each Delta

Participating Dentist revised Rules and

Regulations, referenced in the

Participating Dentist’s Agreement, that

omit the Most Favored Nation Clause.

Delta shall eliminate the Most Favored

Nation Clause from all Participating

Dentist’s Agreements entered into after

entry of this Final Judgment.

VII. Compliance Measures

The Delta shall:

(A) distribute, within 60 days of the

entry of this Final Judgment, a copy of

this Final Judgment to: (1) all Delta

officers and directors; and (2) all Delta

employees who have any responsibility

for approving, disapproving,

monitoring, recommending, or

implementing any provisions in

agreements with Participating Dentists.

(B) distribute in a timely manner a

copy of this Final Judgment to any

officer, director, or employee who

succeeds to a position described in

Section VII(A) (1) or (2);

(C) obtain from each present or future

officer, director, or employee designated

in Section VII(A) (1) or (2), within 60

days of entry of this Final Judgment or

of the Person’s succession to a

designated position, a written

certification that he or she: (1) has read,

understands, and agrees to abide by the

terms of this Final Judgment; and (2) has

been advised and understands that his

or her failure to comply with this Final

Judgment may result in conviction for

criminal contempt of court;

(D) maintain a record of persons to

whom the Final Judgment has been

distributed and from whom, pursuant to

Section VII(C), the certification has been

obtained;

(E) distribute, within 60 days of the

entry of this Final Judgment, a copy of

the attached letter, which has been

approved by the Antitrust Division, by

first-class mail to all currently

Participating Dentists; and

(F) report to the Plaintiff any violation

of the Final Judgment.

VIII. Certification

(A) Within 100 days of the entry of

this Final Judgment, Delta shall certify

to the Plaintiff whether it has: (1)

disseminated revised Rules and

Regulations pursuant to Section VI; (2)

distributed the Final Judgment in

accordance with Section VII(A); (3)

obtained certifications in accordance

with Section VII(C); and (4) distributed

copies of the attached letter in

accordance with Section VII(E).

(B) For ten years after the entry of this

Final Judgment, on or before its

anniversary date, Delta shall file with

the Plaintiff an annual Declaration as to

the fact and manner of its compliance

with the provisions of Sections IV, V,

VI, and VII.

IX. Plaintiff’s Access to Information

(A) to determine or secure compliance

with this Final Judgment, duly

authorized representatives of the

Plaintiff, upon written request of the

Assistant Attorney General in charge of

the Antitrust Division and on reasonable

notice to Delta made to its principal

office, shall be permitted, subject to any

legally recognized privilege:

(1) Access during Delta’s office hours

to inspect and copy all documents in

the possession or under the control of

Delta, who may have counsel present,

relating to any matters contained in this

Final Judgment; and

(2) Subject to the reasonable

convenience of Delta and without

restraint or interference from it, to

interview officers, employees or agents

of Delta, who may have Delta’s counsel

and/or their own counsel present,

regarding such matters.

(B) Upon the written request of the

Assistant Attorney General in charge of

the Antitrust Division made to Delta’s

principal office, Delta shall submit such

written reports, under oath if requested,

relating to any matters contained in this

Final Judgment as may be reasonably

requested, subject to any legally

recognized privilege.
Federal Register / Vol. 62, No. 42 / Tuesday, March 4, 1997 / Notices 9809

(C) Delta shall have the right to be

represented by counsel in any process

under this Section.

(D) No information or documents

obtained by the means provided in

Section IX shall be divulged by the

Plaintiff to any person other than duly

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, or

for the purpose of securing compliance

with this Final Judgment, or as

otherwise required by law.

(E) If at the time information or

documents are furnished by Delta to

Plaintiff, Delta 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 Delta 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 10 days’ notice

shall be given by Plaintiff to Delta prior

to divulging such material in any legal

proceeding (other than a grand jury

proceeding) to which Delta is not a

party.

(F) Nothing in this Final Judgment

prohibits the Plaintiff from using any

other investigatory method authorized

by law.

X. Further Elements of the Final

Judgment

(A) This Final Judgment shall expire

ten years from the date of its entry.

(B) Jurisdiction is retained by this

Court for the purpose of enabling either

of the parties to this Final Judgment, but

no other person, 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 or terminate

any of its provisions, based on changed

circumstances of fact or law warranting

such action; to enforce compliance; and

to punish violations of its provisions.

(C) Entry of this Final Judgment is in

the public interest.

Dated: lll.

llll

United States District Judge.

Attachment

Attachment Referred to in Section VII(E)

As you may know, Delta Dental has been

involved in a lawsuit with the United States

Department of Justice in the United States

District Court of Rhode Island regarding Rule

10 of Delta’s Rules and Regulations for

Dentists, which is sometimes called Delta’s

‘‘Prudent Buyer’’ policy. Rule 10 has allowed

Delta Dental to limit its payments to dentists

to the lowest level the dentist had agreed to

accept from any other non-governmental plan

or from any uninsured patient.

Delta Dental and the Department of Justice

have agreed to a consent decree that has been

entered as an order of the District Court. As

part of this consent decree, Delta has agreed

to eliminate Rule 10 if its Rules and

Regulations.

The consent decree declares Rule 10 null

and void and prohibits Delta from varying its

payments to, or other treatment of, any

dentist because the dentist charges any nonDelta patient or plan a fee lower than the fee

the dentists charges Delta. Within the next

thirty (30) days, we will forward to you a

superseding set of Rules and Regulations that

omits Rule 10.

Sincerely yours,

llll

Director of Provider Relations.

[Civil Action No. 96–113P]

United States District Court for the

District of Rhode Island

United States of America, Plaintiff, vs.

Delta Dental of Rhode Island, Defendant.

Competitive Impact Statement

Pursuant to Section 2(b) of the

Antitrust Procedures and Penalties Act,

15 U.S.C. § 16 (b)–(h), the United States

submits this Competitive Impact

Statement describing the proposal Final

Judgment submitted to resolve this civil

antitrust proceeding.

I. Nature and Purpose of the Proceeding

On February 29, 1996, the United

States filed a civil antitrust compliant

alleging that Delta Dental of Rhode

Island (‘‘Delta’’), enters into agreements

with its participating dentists that

unreasonably restrain completion by

inhibiting discounting of fees for denial

care in violation of Section 1 of the

Sherman Act, 15 U.S.C. § 1. The

Compliant seeks injunctive relief to

enjoin continuance of the violation.

Entry of the proposed Final Judgment

will terminate this action, except that

the Court will retain jurisdiction over

the matter for any further proceedings

that may be required to interpret,

enforce, or modify the Judgment or to

punish violations of any of its

provisions.

II. Practices Giving Rise to the Alleged

Violation

If this matter had proceeded to trial,

the United States would have

introduced evidence as follows. Delta is

Rhode Island’s largest dental insurer,

insuring or administering plans

providing insurance to about 35–45% of

Rhode Island residents covered by

dental insurance. Delta seeks to offer its

enrollees the broadest possible panel of

dentists and contracts with over 90% of

Rhode Island dentists. Delta accounts

for a substantial percentage of the

professional income of most Rhode

Island dentists.

Pursuant to Delta’s Participating

Dentist’s Agreement (the ‘‘Agreement’’),

each contracting dentist agrees to

comply with Delta’s Rules and

Regulations. Rule 10 of these Rules and

Regulations is a Most Favored Nation

(MFN) clause, which provides that Delta

has the right to lower the fees it pays a

dentist to the level of the lowest fees

that that dentist charges any other plan.

Delta has applied its MFN clause also to

dentists’ charges to uninsured patients.

Rule 7 gives Delta the additional right

to audit dentists’ records to determine

whether they are complying with the

MFN clause.

In contrast to Delta’s program, which

by design includes as many dentists as

possible, some dental plans such as

preferred provider organizations

(‘‘PPOs’’) and health maintenance

organizations (‘‘HMOs’’), contract

selectively with a limited panel of

dentists. By offering the prospect of

increased patient volume, these

managed care plans are able to contract

with some dentists for services at fees

substantially below Delta’s. These plans

then create financial incentives for their

enrollees to use panel dentists. Selective

contracting with dentists helps a

managed dental care plan lower the cost

of the delivery of dental service to its

enrollees. Accordingly, these plans are

able to offer patents lower premiums

and lower out-of-pocket costs.

Delta currently provides so much

more of most Rhode Island dentists’

income than would any entering

managed care plan that if these dentists

were to reduce their fees to such plans,

the resulting reduction in their income

from Delta would be much greater than

their added income from the entrant

plan. Because few dentists in Rhode

Island are not under contract with Delta,

and because Delta’s MFN clause gives

its participating dentists strong

disincentives to contract with dental

managed care plans at fees below

Delta’s, other plans have been unable to

form a competitively viable panel. By

thus excluding from the dental

insurance market reduced-cost plans

that many consumers view as an

important option, Delta’s MFN clause

has protected Delta from competition

from such lower-cost plans at the

expense of consumers.

In recent years, Delta’s MFN clause

has blocked the entry or expansion of

several low-cost plans. For example,

Delta’s MFN clause caused dentists to

withdraw from Dental Blue PPO—a lowcost preferred provider organization

established in the fall of 1993 by Blue
9810 Federal Register / Vol. 62, No. 42 / Tuesday, March 4, 1997 / Notices

1 Delta’s application of its MFN clause to the

Dental Blue PPO demonstrates that Delta has not

enforced the clause when a dentist, who had

initially agreed to charge another plan substantially

lower fees, then raised the fees to Delta’s level or

disaffiliated from the plan. Delta’s approach

suggests that Delta applied its MFN clause to

prevent the entry of a new, low-cost rival, not just

to ensure that it obtained the lowest prices

available.

Delta indeed did develop a contingency plan to

compete on price with Dental Blue PPO by forming

its own limited-panel, reduced-fee PPO. When

Delta’s MFN clause brought about the collapse of

the Dental Blue PPO, however, Delta shelved its

PPO plans. Rhode Island consumers thus remained

without a limited panel, lower-cost competitive

alternative to Delta’s existing, mid-range plan.

Cross and Blue Shield of Massachusetts

to serve Raytheon employees and their

dependents, including the

approximately 1,000 employees and

their dependents at Raytheon’s facility

in Portsmouth, Rhode Island. Dental

Blue PPO had initially succeeded in

contracting with a number of Rhode

Island dentists at substantially

discounted rates—rates, by Delta’s

calculations, that were 14% lower than

Delta’s. These PPO savings would have

significantly reduced or eliminated

Raytheon plan members’ co-payments.

After identifying Dental Blue PPO as

a long-run competitive threat, Delta’s

senior management pursued several

related tactics. First, it contacted the

former chairman of the Rhode Island

Dental Association (‘‘RIDA’’)’s Council

on Dental Programs, who supports

Delta’s MFN clause because he believes

it sets a floor on dentists’ fees. He sent

RIDA’s members a letter warning that

because of Delta’s MFN clause dentists

would face ‘‘severe financial penalties’’

if they contracted with dental Blue PPO.

Second, Delta’s management sent a

letter to Rhode Island dentists who

Delta knew to be participating in Dental

Blue PPO, announcing its intention to

apply its MFN clause and describing the

new, reduced payment levels they

would receive from delta if they

continued to participate in Dental Blue

PPO.

By the end of January 1994, all of the

dentists contacted by Delta had

withdrawn from Dental Blue PPO. Some

of them made clear to Delta at the time

that the reason for their withdrawal was

Delta’s decision to apply its MFN clause

and requested that Delta return their

payments to former levels. As a result,

Raytheon employees were denied the

opportunity to lower or eliminate their

co-payments for dental care, and Rhode

Island was denied the entry of a lowcost dental insurance plan.1

Delta’s MFN clause also caused

dentists to refuse to contract, at fees

below levels paid by Delta, with at least

two other lower-cost plans. In one

instance, U.S. Healthcare attempted to

establish a plan in Rhode Island (as it

had in other states) that would have

paid dentists at fee levels lower than

Delta’s. Rhode Island dentists uniformly

refused to participate because they

feared that Delta would apply its MFN

clause. Similarly, Delta’s participating

dentists refused, because of Delta’s MFN

clause, to contract with dental Benefit

Providers (‘‘DBP’’) at fee levels below

Delta’s, forcing DBP to pay Delta’s

higher rates to enter the market and

depriving consumers of a low-cost

alternative.

Delta’s MFN clause also prevented

two other organizations—a self-insured

employee group and an uninsured

retiree group—from recruiting

additional dentists, at fee levels

substantially below Delta’s, to augment

their limited panels of dentists. Both

had persuaded a few Rhode Island

dentists to accept fees substantially

below Delta’s and both had avoided the

application of Delta’s MFN clause—

despite Delta’s commitment to enforce

the clause—only because Delta had been

unaware of their operation. Although

both wanted to expand their panels,

they refrained from recruiting additional

dentists because of their concern that

such efforts would disclose their

existence to Delta and trigger Delta’s

enforcement of its MFN clause, causing

their existing dentists to disaffiliate. As

a result, some members of these groups

were denied more accessible, low-cost

dental care that would have been

available in the absence of the MFN

clause.

Although the language of Delta’s MFN

clause appears to apply only to fees

dentists offer to insurance plans, Delta

has also on occasion enforced the MFN

when dentists have lowered their fees to

uninsured patients. Some dentists who

have been willing to serve uninsured

patients at reduced rates have suffered

an added financial penalty imposed by

Delta. As a result, they and other

dentists have been deterred from

offering discounts to uninsured patients.

Delta’s MFN clause has thus raised the

prices, and reduced the availability, of

dental services to some of Rhode

Island’s most vulnerable consumers.

By Delta’s own admission, its MFN

clause has not generated any meaningful

savings or other procompetitive

benefits. Far from saving consumers

money, Delta’s MFN clause has, in fact,

eliminated most discounting by dentists

below Delta’s fees, and—as recognized

by the former chairman of the RIDA’s

Council on Dental Programs—set a floor

on dental fees, thus raising the costs of

dental services and dental insurance for

Rhode Island consumers.

III. Explanation of the Proposed Final

Judgment

The Plaintiff and Delta have

stipulated that the Court may enter the

proposed Final Judgment after

compliance with the Antitrust

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

§ 16(b)-(h). The proposed Final

Judgment provides that its entry does

not constitute any evidence against or

admission by any party of any issue of

fact or law.

Under the provisions of Section 2(e)

of the Antitrust Procedures and

Penalties Act, 15 U.S.C. § 16(e), the

proposed Final Judgment may not be

entered unless the Court finds that entry

is in the public interest. Section X(C) of

the proposed Final Judgment sets forth

such a finding.

The proposed Final Judgment is

intended to ensure that Delta eliminates

its MFN clause and ceases all similar

practices that unreasonably restrain

competition among dentists and dental

insurance plans.

A. Scope of the Proposed Final

Judgment

Section III of the proposed Final

Judgment provides that the Final

Judgment shall apply to Delta, to its

successors and assigns, and to all other

persons (including Delta’s participating

dentists) in active concert or

participation with any of them, who

shall have received actual notice of the

Final Judgment by personal service or

otherwise.

In the Stipulation to the proposed

Final Judgment, Delta has agreed to be

bound by the provisions of the proposed

Final Judgment pending its approval by

the Court.

B. Prohibitions and Obligations

Under Section IV(A) of the proposed

Final Judgment, Delta is enjoined and

restrained for a period of ten years from

maintaining, adopting, or enforcing any

Most Favored Nation Clause or similar

provision in any Participating Dentist’s

Agreement or by any other means or

methods. Other provisions of the Final

Judgment seek to ensure that the MFN

clause’s anticompetitive effects cannot

be achieved in other ways. Specifically,

Section IV(B) enjoins Delta from

maintaining, adopting, or enforcing any

policy or practice varying its payments

to, or other treatment of, any dentist

because the dentist charges any nonDelta patient or plan a fee lower than

the fee the dentist charges Delta; Section

IV(C) enjoins Delta from taking any

action to discourage any dentist from

participating in any non-Delta plan or

from offering or charging to any non-
Federal Register / Vol. 62, No. 42 / Tuesday, March 4, 1997 / Notices 9811

Delta patient, or any non-Delta plan, any

fee lower than that paid to the dentist

by Delta; and Section IV(D) enjoins

Delta from monitoring, auditing, or

obtaining from any dentist information

about the fees a particular dentist

charges any non-Delta patient or any

non-Delta plan, except as provided in

Section V.

Section V permits Delta to engage in

certain specified activities without

violating the prohibitions of Section IV,

including creation of a limited-panel

plan, implementation of different

reimbursement levels under certain

circumstances, and collection through

certain means of information about

market rates. These activities will likely

facilitate, rather than impair,

competition.

Section VI of the Final Judgment

declares Delta’s MFN clause null and

void. It directs Delta to disseminate to

each Delta participating dentist revised

Rules and Regulations, referenced in the

Participating Dentist’s Agreement, that

omit the Most Favored Nation Clause.

This Section also requires Delta to

eliminate the Most Favored Nation

Clause from all Participating Dentist’s

Agreements entered into after entry of

the Final Judgment.

Section VII of the Final Judgment

imposes various compliance measures.

Section VII(A) requires Delta to

distribute, within 60 days of entry of the

Final Judgment, a copy of the Final

Judgment to: (1) all Delta officers and

directors; and (2) all Delta employees

who have any responsibility for

approving, disapproving, monitoring,

recommending, or implementing any

provisions in agreements with

participating dentists. Sections VII(B)-

(D) require Delta to provide a copy of

the Final Judgment to future officers,

directors, and employees who have any

responsibility for approving,

disapproving, monitoring,

recommending, or implementing any

provisions in agreements with

participating dentists and to obtain and

maintain records of such persons’

written certifications that they have

read, understand, and will abide by the

terms of the Final Judgment. Section

VII(E) requires Delta to distribute a copy

of a letter, approved by the Antitrust

Division and attached to the Final

Judgment, to all currently participating

dentists. Section VII(F) obligates Delta

to report to the Plaintiff any violation of

the Final Judgment.

Finally, Section VIII obligates Delta to

certify its compliance with specified

requirements, summarized above, of

Sections IV, V, VI, and VII of the Final

Judgment. In addition, Section IX sets

forth a series of measures by which the

Plaintiff may have access to information

needed to determine or secure Delta’s

compliance with the Final Judgment.

C. Effect of the Proposed Final Judgment

on Competition

By eliminating the MFN clause, the

relief imposed by the proposed Final

Judgment will enjoin and eliminate a

substantial restraint on price

competition between Delta and other

dental insurance plans and among

dentists in Rhode Island and its

environs. It will do so by eliminating

the disincentives created by the MFN

clause for dentists to discount their fees

and to join non-Delta plans offering

payments below Delta’s levels. The

Judgment also prevents Delta from

taking any other action to discourage

dentists from discounting or

participating in competing dental

insurance plans. Consequently, nonDelta plans’ efforts to attract and

maintain viable panels of dentists to

serve their members will no longer be

hampered.

The proposed Final Judgment will

restore the benefits of free and open

competition to dental insurance plans

and consumers in Rhode Island.

Consequently, limited panel dental

insurance plans should be able to

achieve cost savings that they can pass

on to consumers, and consumers should

be able to choose from a wider array of

dental insurance alternatives.

Competition among dentists should also

be invigorated.

IV. Alternatives to the Proposed Final

Judgment

The alternative to the proposed Final

Judgment would be a full trial on the

merits of the case. Such a trial would

involve substantial costs to both the

United States and Delta and is not

warranted because the proposed Final

Judgment provides all of the relief that

the United States would likely obtain

upon a favorable decision at the close of

trial and fully remedies the violations of

the Sherman Act alleged in the

Complaint.

V. Remedies Available to Private

Litigants

Section 4 of the Clayton Act, 15

U.S.C. § 15, provides that any person

who has been injured as a result of

conduct prohibited by the antitrust laws

may bring suit in federal court to

recover three times the damages

suffered, as well as costs and reasonable

attorney’s fees. Entry of the proposed

Final Judgment will neither impair nor

assist in the bringing of such actions.

Under the provisions of Section 5(a) of

the Clayton Act, 15 U.S.C. § 16(a), the

Final Judgment has no prima facie effect

in any subsequent lawsuits that may be

brought against Delta in this matter.

VI. Procedures Available for

Modification of the Proposed Final

Judgment

As provided by the Antitrust

Procedures and Penalties Act, any

person believing that the proposed Final

Judgment should be modified may

submit written comments to Gail Kursh,

Chief; Health Care Task Force;

Department of Justice; Antitrust

Division; 325 7th Street, N.W.; Room

404; Washington, D.C. 20530, within the

60-day period provided by the Act.

Comments received, and the

Government’s responses to them, will be

filed with the Court and published in

the Federal Register. All comments will

be given due consideration by the

Department of Justice, which remains

free, pursuant to Paragraph 2 of the

Stipulation, to withdraw its consent to

the proposed Final Judgment at any

time before its entry if the Department

should determine that some

modification of the Judgment is

necessary to protect the public interest.

The proposed Final Judgment itself

provides that the Court will retain

jurisdiction over this action, and that

the parties may apply to the Court for

such orders as may be necessary or

appropriate for the modification,

interpretation, or enforcement of the

Judgment.

VII. Determinative Documents

No materials and documents of the

type described in Section 2(b) of the

Antitrust Procedures and Penalties Act,

15 U.S.C. § 16(b), were considered in

formulating the proposed Final

Judgment. Consequently, none are filed

herewith.

Dated: February 19, 1997.

Respectfully submitted,

Steven Kramer,

William E. Berlin

Mark J. Botti,

Michael S. Spector,

Richard S. Martin,

Attorneys, Antitrust Division, U.S.

Department of Justice, 325 7th Street, N.W.,

Room 426, Washington, D.C. 20530, (202)

307-0997.

United States District Court for the

District of Rhode Island

[Civil Action No. 96–113P]

United States of America, Plaintiff, vs.

Delta Dental of Rhode Island, Defendant.

Certificate of Service

I certify that I caused a copy of the

Stipulation, the Final Judgment, and the

United States’ Competitive Impact
9812 Federal Register / Vol. 62, No. 42 / Tuesday, March 4, 1997 / Notices

Statement to be served on February 20,

1997, by overnight delivery to:

William R. Landry, Blish & Cavanagh,

Commerce Center, 30 Exchange

Terrace, Providence, R.I. 02903-1765

and by first class mail to:

William G. Kopit, Epstein Becker &

Green, 1227 25th Street, N.W.,

Washington, D.C. 20037.

Dated: February 20, 1997.

Steven Kramer,

Attorney, Antitrust Division, U.S. Department

of Justice, 325 7th Street, N.W., Room 426,

Washington, D.C. 20530, (202) 307-0997.

[FR Doc. 97–5151 Filed 3–3–97; 8:45 am]

BILLING CODE 4410–11–M

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—National Center for

Manufacturing Sciences, Inc. (NCMS)

Notice is hereby given that, on

February 4, 1997, pursuant to Section

6(a) of the National Cooperative

Research and Production Act of 1993,

15 U.S.C. 4301 et seq. (‘‘the Act’’), the

National Center for Manufacturing

Sciences, Inc. (‘‘NCMS’’) has filed

written notifications simultaneously

with the Attorney General and the

Federal Trade Commission disclosing

changes in its membership and

providing information on the status of

its research projects. The notifications

were filed for the purpose of extending

the Act’s provisions limiting the

recovery of antitrust plaintiffs to actual

damages under specified circumstances.

Specifically, the following companies

were accepted as active members of

NCMS: Advanced Technology &

Research Corporation, Burtonsville, MD;

Lockheed Martin Corporation, Idaho

Falls, ID; OMNEX Engineering &

Management, Inc., Ann Arbor, MI; and

Structural Dynamics Research

Corporation, Milford, OH. Software

Productivity Consortium NFP, Inc.,

Herndon, VA, was approved for affiliate

membership. Cimflex Teknowledge

Corporation, Palo Alto, CA, changed its

name to Teknowledge Corporation, and

ICAD, Inc., Burlington, MA, has

changed its name to Concentra

Corporation. The McNeal-Schwendler

Corporation, Los Angeles, CA, acquired

Aries Technology, Inc. and

subsequently became a member of

NCMS. The following companies have

canceled their active membership in

NCMS: Andersen Consulting LLP,

Detroit, MI; Computer Tool & Die

Systems, Inc., Ann Arbor, MI;

Knowledge Based Systems, Inc., College

Station, TX; Physical Sciences Inc.,

Andover, MA; C. Thorrez Industries,

Inc., Jackson, MI; and Weed Instrument

Company, Inc., Simi Valley, CA. The

following organizations have resigned

from affiliate membership in NCMS:

American Supplier Institute, Allen Park,

MI; Les Chefs Mailleurs de la Qualite,

Quebec City, Quebec, Canada.

No other changes have been made in

either the membership or planned

activity of the group research project.

Membership in this group research

project remains open, and NCMS

intends to file additional written

notification disclosing all changes in

membership.

On February 20, 1987, NCMS filed its

original notification pursuant to Section

6(a) of the Act. The Department of

Justice published a notice in the Federal

Register pursuant to Section 6(b) of the

Act on March 17, 1987 (52 FR 8375).

The last notification was filed with

the Department on November 24, 1996.

This notice was published in the

Federal Register on December 19, 1996

(61 FR 67067).

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 97–5246 Filed 3–3–97; 8:45 am]

BILLING CODE 4410–11–M

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993; Ole for Process Control

(OPC) Foundation

Notice is hereby given that, on

December 18, 1996, pursuant to § 6(a) of

the National Cooperative Research and

Production Act of 1993, 15 U.S.C.

§ 4301 et seq. (‘‘the Act’’), the Ole for

Process Control Foundation (‘‘OPC’’)

has filed written notifications

simultaneously with the Attorney

General and the Federal Trade

Commission disclosing changes in its

membership. The notifications were

filed for the purpose of invoking the

Act’s provisions limiting the recovery of

antitrust plaintiffs to actual damages

under specified circumstances.

Specifically, the identities of the new

members are as follows: ABB Asea

Brown Boveri Ltd., Zurich,

SWITZERLAND; Applicorn

International S.A., Caudebec Les Elbeuf,

FRANCE; Biles & Associates, Houston,

TX; Canary Labs, Inc., Martinsburg, PA;

Ci Technologies Pty Limited, Pymble,

NSW, AUSTRALIA; Dynapro Systems,

Inc., New Westminster, BC, CANADA;

Hardy Software Systems, Inc., Houston,

TX; Honeywell, Inc., Phoenix, AZ;

ICONICS, INC., Foxborough, MA;

Institut fur Automation und

Kommunikation e. V. Magdeburg,

Barleben, GERMANY; Johnson

Yokogawa Corporation, Newnan, GA;

National Instruments, Austin, TX;

OMNX Control Systems, Charleston,

TN; PID, Phoenix, AZ; Process

Automation Systems, Inc., Vancouver,

BC, CANADA; ProMicro Ltd., London,

ENGLAND; RDI Software Technologies,

Inc., Des Plaines, IL; Roy-G-Biv

Corporation, Seattle, WA; S–S

Technologies, Inc., Kitchener, ON,

CANADA; Siemens AG, AUT 1E

Nuremberg, GERMANY; SoftPLC

Corporation, Humble, TX; Star

Enterprise, Houston, TX; TA

Engineering Co., Inc., Moraga, CA; The

Foxboro Company, Foxboro, MA; The

Software Studio, Inc., Cupertino, CA;

Toshiba Corporation, Tokyo, JAPAN;

Trebing & Himstedt Prozessautomation

GmbH & Co. KG, Schwerin, GERMANY;

and Wonderware Corporation, Irvine,

CA. One member, Rockwell Software,

Inc., has moved from Milwaukee, WI to

West Allis, WI.

No other changes have been made in

either the membership or planned

activity of OPC. Membership in this

venture remains open and OPC intends

to file additional written notifications

disclosing all membership changes.

On July 15, 1996, the Ole for Process

Control Foundation (‘‘OPC’’), filed its

original notification pursuant to § 6(b) of

the Act. The Department of Justice

published a notice in the Federal

Register pursuant to § 6(b) of the Act on

August 14, 1996 (61 Fed. Reg. 42269).

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 97–5248 Filed 3–3–97; 8:45 am]

BILLING CODE 4410–11–M

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993; VSI Alliance

Notice is hereby given that, on

November 29, 1996, pursuant to § 6(a) of

the National Cooperative Research and

Production Act of 1993, 15 U.S.C.

§ 4301 et seq.. (‘‘the Act’’), the VSI

Alliance (‘‘VSI’’) has filed written

notifications simultaneously with the

Attorney General and the Federal Trade

Commission disclosing (1) the identities

of the parties and (2) the nature and

objectives of the venture. The

notifications were filed for the purpose

of invoking the Act’s provisions limiting

the recovery of antitrust plaintiffs to

actual damages under specified

circumstances. Pursuant to § 6(b) of the

Act, the identities of the parties are:

Advanced RISC Machines Ltd.,

Cambridge, ENGLAND; Cadence Design

Systems, Inc., San Jose, CA; Fujitsu

Limited, Kawasaki, JAPAN; Mentor

Graphics Corporation, Wilsonville, OR;

Sony Corporation, Tokyo, JAPAN;