Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices 21217

below, and any known shareholders of

Chicago and North Western

Transportation Company who have not

tendered their shares in the tender offer

commenced March 23, 1995, by UP Rail,

Inc.

FOR FURTHER INFORMATION CONTACT:

Beryl Gordon, (202) 927–5610. [TDD for

the hearing impaired: (202) 927–5721.]

SUPPLEMENTARY INFORMATION: In our UP/

CNW Decision No. 25 (served March 7,

1995), we approved common control of

UP (class I railroads Union Pacific

Railroad Company and Missouri Pacific

Railroad Company) and CNW (class I

railroad Chicago and North Western

Railway Company). Union Pacific

Railroad Company (UPRR) and Missouri

Pacific Railroad Company (MPRR) are

indirect wholly owned subsidiaries of

Union Pacific Corporation (UPC), a noncarrier holding company. CNW is a

direct wholly owned subsidiary of

Chicago and North Western

Transportation Company (CNWT),

another non-carrier holding company.

UPC, UPRR, MPRR, CNWT, and CNW

are referred to herein as the primary

applicants. The UP/CNW common

control that we approved envisioned

that UP and CNW would come under

common control with the conversion,

from non-voting status to voting status,

of the approximately 29.5% of the

CNWT common stock held by noncarrier UP Rail, Inc. (UPR), another

indirect wholly owned UPC subsidiary.

Our UP/CNW Decision No. 25 became

effective on April 6, 1995.

On March 16, 1995, UPC and CNWT

entered into an Agreement and Plan of

Merger (the Merger Agreement) that

provides, among other things, (1) that

UPR will make a tender offer for 100%

of CNWT’s common stock at a price of

$35 per share in cash, and (2) that all

non-tendering CNWT shareholders will

also receive $35 per share in cash

following the UPR/CNWT merger. The

tender offer was commenced on March

23, 1995, and is scheduled to expire on

April 24, 1995.

By petition (UP/CNW–134) filed April

4, 1995, the primary applicants have

requested that we issue a determination

that the terms and conditions of the

proposed UPR/CNWT merger (in

particular, the $35-per-share price to be

paid to CNWT shareholders) are just

and reasonable. The primary applicants

seek this determination (1) because they

believe the Commission is required by

Schwabacher v. United States, 334 U.S.

182 (1948), to make such a

determination to protect minority

shareholders and (2) in order to

immunize the UPR/CNWT merger from

the otherwise applicable state law

rights, particularly the otherwise

applicable state law appraisal rights, of

dissenting CNWT shareholders. 49

U.S.C. 11341(a). A copy of the Merger

Agreement can be found in UP/CNW–

134, Exhibit B, Annex I.

The primary applicants indicate that

they have served a copy of their UP/

CNW–134 petition on all active parties

in the Finance Docket No. 32133

proceeding and on counsel for plaintiffs

in certain Delaware shareholder suits

challenging various aspects of the

Merger Agreement. The primary

applicants have also pledged to serve a

copy of their petition on any known

CNWT shareholders who do not tender

their shares in response to the tender

offer. The primary applicants urge

expedited handling of their petition (in

particular: that we publish notice of

their petition in the Federal Register;

that we allow interested persons 30 days

to file comments; that we further allow

the primary applicants an additional 15

days to file a reply; and that we proceed

promptly to a decision thereafter).

Our statutory mandate, 49 U.S.C.

11344(c), requires, among other things,

that we determine, in appropriate cases,

that the terms and conditions of certain

transactions affecting stockholders are

just and reasonable. See, e.g., Union

Pacific Corp. et al.—Cont.—MO-KS-TX

Co. et al., 4 I.C.C.2d 409, 515 (1988) (‘‘In

appraising this transaction affecting the

rights of stockholders, it is incumbent

upon us to see that the interests of

minority stockholders are protected and

that the overall proposal is just and

reasonable to those stockholders.

Schwabacher v. United States, 344 U.S.

at 198, 201.’’). Because the UP/CNW–

134 petition implicates our statutory

mandate and involves a matter that

requires expedited regulatory action, we

will proceed upon the schedule urged

by the primary applicants.

Accordingly, we solicit comments

from all interested persons respecting

whether the terms and conditions of the

proposed UPR/CNWT merger are just

and reasonable. Such comments must be

submitted by May 31, 1995. The

primary applicants may file replies to

such comments by June 15, 1995.

Any interested person who has not

received copies of the UP/CNW–134

petition and the primary applicants’

letter dated April 17, 1995 (announcing

a settlement of the Delaware litigation)

may request copies, in writing or by

telephone, from Arvid E. Roach II,

Covington & Burling, 1201 Pennsylvania

Avenue, N.W., P.O. Box 7566,

Washington, D.C. 20044–7566

(telephone: 202–662–5388).

In addition to submitting an original

and 10 copies of all documents filed

with the Commission, the primary

applicants and any commenters are

encouraged to submit all pleadings and

attachments as computer data contained

on a 3.5-inch floppy diskette formatted

for WordPerfect 5.1 (or formatted so that

it can be converted by WordPerfect 5.1).

The primary applicants are also

encouraged to submit their UP/CNW–

134 petition (including Exhibits A and

B thereto), and their letter dated April

17, 1995 (including Exhibits A and B

thereto), on such a diskette.

Decided: April 19, 1995.

By the Commission, Chairman Morgan,

Vice Chairman Owen, and Commissioners

Simmons and McDonald.

Vernon A. Williams,

Secretary.

[FR Doc. 95–10633 Filed 4–28–95; 8:45 am]

BILLING CODE 7035–01–P

DEPARTMENT OF JUSTICE

Notice of Lodging of Consent Decree

Pursuant to the Clean Water Act

In accordance with Departmental

policy, 28 CFR 50.7, notice is hereby

given that a proposed partial consent

decree in United States v. Metropolitan

Dade County, et al., Case No. Civ–93–

1109–Moreno, was lodged on April 19,

1995, with the United States District

Court for the Southern District of

Florida. The consent decree settles all

claims for injunctive relief and civil

penalties brought against Metropolitan

Dade County and the Miami-Dade Water

and Sewer Authority Department under

Sections 301, 309 (b) and (d), and 402

of the Clean Water Act, 33 U.S.C. 1311,

1319 (b) and (d), and 1342, and sets

forth remedial measures, supplemental

environmental projects, and a civil

penalty.

The Department of Justice will

receive, for a period of thirty (30) days

from the date of this publication,

comments relating to the proposed

consent decree. Comments should be

addressed to the Assistant Attorney

General for the Environment and

Natural Resources Division, Department

of Justice, Washington, DC 20530, and

should refer to United States v.

Metropolitan Dade County, et al., DOJ

Ref. #90–5–1–1–4022.

The proposed consent decree may be

examined at the office of the United

States Attorney, Southern District of

Florida, 99 N.E. 4th Street, Miami,

Florida 33132; the Region IV Office of

the United States Environmental

Protection Agency, 345 Courtland

Street, NE., Atlanta, Georgia 30365; and

at the Consent Decree Library, 1120 G
21218 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Notices

Street, NW., 4th Floor, Washington, DC

20005, (202) 624–0892. A copy of the

proposed consent decree may be

obtained in person or by mail from the

Consent Decree Library, 1120 G Street,

NW., 4th Floor, Washington, DC 20005.

In requesting a copy please refer to the

referenced case and enclose a check in

the amount of $36.75 (25 cents per page

reproduction costs), payable to the

Consent Decree Library.

Joel M. Gross,

Acting Chief, Environmental Enforcement

Section, Environment and Natural Resources

Division.

[FR Doc. 95–10549 Filed 4–28–95; 8:45 am]

BILLING CODE 4410–01–M

Antitrust Division

Proposed Final Judgment and

Competitive Impact Statement

In the matter of: United States v. Oregon

Dental Service.

Notice is hereby given pursuant to the

Antitrust Procedures and Penalties Act,

15 U.S.C. 16 (b)–(h), that a proposed

Final Judgment, Settlement Agreement,

and Competitive Impact Statement have

been filed with the United States

District Court for the Northern District

of California in United States of

America v. Oregon Dental Service, Civil

Action No. C95 1211 FMS. The

Complaint in this case alleges that the

defendant and others engaged in a

combination in unreasonable restraint of

interstate trade and commerce in

violation of the Sherman Act, 15 U.S.C.

1. The proposed Final Judgment enjoins

the defendant for five years from

maintaining, adopting, or enforcing a

clause in its contracts with dentists that

requires the dentist to give the

defendant the lowest fees he or she

offers to any person or dental plan. It

also enjoins the defendant from taking

any other action, directly or indirectly,

to influence or attempt to influence

dentists’ discounting of fees or

participation in other dental plans.

Finally, the proposed Final Judgment

enjoins the defendant from disclosing or

in any way directly revealing to dentists

its maximum allowable or acceptable

fee for dental procedures.

Public comment on the proposed

Final Judgment is invited within the

statutory 60-day comment period,

which runs from 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

Christopher S. Crook, Acting Chief, San

Francisco Office, Box 36046, Antitrust

Division, U.S. Department of Justice,

San Francisco, California 94102

(telephone: (415) 556–6300).

Constance K. Robinson,

Director of Operations, Antitrust Division.

Barbara J. Nelson, Philip R. Malone, Carla G.

Addicks, Antitrust Division, U.S.

Department of Justice, 450 Golden Gate

Avenue, Box 36046, 10th Floor, San

Francisco, California 94102–3478, (415)

556–6300, Attorneys for the United

States

In the United States District Court

Northern District of California

[Civil No. C95 1211 FMS]

In the matter of: United States of America,

Plaintiff, v. Oregon Dental Service,

Defendant.

Complaint

The United States of America, acting

under the direction of the Attorney

General of the United States, brings this

civil action to obtain equitable and other

relief against the defendant named

herein, and complains and alleges as

follows:

I. Jurisdiction and Venue

1. This Complaint is filed by the

United States under Section 4 of the

Sherman Act; 15 U.S.C. 4, as amended,

to prevent and restrain a continuing

violation by the defendant of Section 1

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

2. The defendant maintains an office,

transacts business, and is found within

the Northern District of California,

within the meaning of 15 U.S.C. 22 and

28 U.S.C. 1391(c).

II. Defendant

3. Oregon Dental Service (‘‘ODS’’), is

a corporation organized and existing

under the laws of the State of Oregon

with its principal place of business in

Portland, Oregon. ODS provides dental

coverage to employees of Oregon

corporations and others. Certain of those

employees are located in the Northern

District of California.

4. ODS is a non-profit corporation

whose participating providers consist of

dentists licensed to practice in Oregon

and who execute participating provider

agreements with ODS. At material

times, dentists comprised the majority

of the Board of Directors of ODS. At

material times, in excess of ninety

percent of dentists licensed to practice

in Oregon were participating providers

of ODS.

5. Various firms and individuals, not

named as defendants in this Complaint,

have entered into agreements with ODS

in violation of the Sherman Act as

alleged in this Complaint, and have

performed acts and made statements in

furtherance thereof.

III. Trade and Commerce

6. At material times, ODS has engaged

in the business of providing dental

insurance coverage. ODS contracts

directly with individual dentists and

groups of dentists for the provision of

dental services to persons covered by

ODS’ dental insurance plans.

Participating dentists agree to comply

with the terms of the contractual

agreements with ODS, and to abide by

ODS’ rules and policies.

7. ODS compensates participating

dentists on the basis of submitted fee

schedules. At material times, payments

from ODS to Oregon dentists constituted

a significant portion of most individual

participating dentist’s receipts from the

provision of dental services to patients.

8. At material times, ODS’

‘‘Participating Dentist Rules and

Policies’’ contained provisions known

as ‘‘most favored nation’’ clauses. These

provisions stated that, for example, the

‘‘lowest fee accepted by the Dentist for

services to be rendered to any group

shall constitute the Dentist’s filed fee

scheduled for payment of ODS Health

Plan claims.’’

9. ODS’ enforcement of the most

favored nation clauses in its rules and

policies resulted in most participating

dentists’ refusal to discount their fees to

non-ODS patients or competing dental

plans.

10. ODS’ most favored nation clauses

have caused significant numbers of

dentists to drop out of or refuse to join

competing discount dental plans.

Because such a large percentage of

Oregon dentists participate with ODS’

plan, the ODS most favored nation

clauses have resulted in many

competing dental plans being unable to

attract and/or retain sufficient numbers

of dentists to serve their members.

11. ODS periodically determines the

amount it will pay for procedures to

participating dentists based upon fee

filings submitted by the participating

dentists. A majority of these dentists

used the fee schedule they filed with

ODS as their fee schedule for all other

patients, including those covered by

other insurance plans and uninsured

patients.

12. ODS sets the maximum fee

allowable for a particular procedure at

the 90th percentile of all fees submitted

to it by participating dentists (the level

at or above the fee charged by 90% of

participating dentists). If 10 or fewer of

a dentist’s submitted fees are above the

90th percentile, ODS notifies the dentist

of the amount of the maximum

allowable fee. Most participating

dentists file fee schedules proposing to

charge more than the maximum