United States et al. v. Blue Cross and Blue Shield of Montana, Inc., et al.; Public Comments and Response on Proposed Final Judgment

DEPARTMENT OF JUSTICE

Antitrust Division

United States et al. v. Blue Cross and Blue Shield of Montana,

Inc., et al.; Public Comments and Response on Proposed Final Judgment

Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.

16(b)-(h), the United States hereby publishes below the comments

received on the proposed Final Judgment in United States et al. v. Blue

Cross and Blue Shield of Montana, Inc. et al., Civil Action No. 1:11-

CV-00123-RFC, which were filed in the United States District Court for

the District of Montana on February 21, 2012, together with the

response of the United States to the comments.

Copies of the comments and the response are available for

inspection at the Department of Justice Antitrust Division, 450 Fifth

Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481),

on the Department of Justice's Web site at http://www.usdoj.gov/atr,

and at the Office of the Clerk of the United States District Court for

the District of Montana, 316 N. 26th Street, Billings, MT 59101. Copies

of any of these materials may be obtained upon request and payment of a

copying fee.

Patricia A. Brink,

Director of Civil Enforcement.

In the United States District Court for the District of Montana;

Billings Division

United States of America and State of Montana, Plaintiffs, v. Blue

Cross and Blue Shield of Montana, Inc., et al., Defendants.

Case No. 1:11-cv-00123-RFC.

Response of Plaintiff United States to Public Comment on the Proposed

Final Judgment

Pursuant to the requirements of the Antitrust Procedures and

Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), the

United States hereby responds to the public comment received regarding

the proposed Final Judgment in this case. The single comment received

agrees that the proposed Final Judgment will provide an effective and

appropriate remedy for the antitrust violations alleged in the

Complaint. The United States will move the Court for entry of the

proposed Final Judgment after the public comment and this response have

been published in the Federal Register, pursuant to 15 U.S.C. 16(d).

I. Procedural History

On November 8, 2011, the United States and the State of Montana

filed a civil antitrust lawsuit challenging an agreement (the

``Agreement'') between defendant Blue Cross and Blue Shield of Montana,

Inc. (``Blue Cross'') and defendants Billings Clinic; Bozeman Deaconess

Health Services, Inc.; Community Medical Center, Inc.; Northern Montana

Health Care, Inc.; and St. Peter's Hospital (collectively, the

``hospital defendants'').

The hospital defendants are five of the six hospitals that own

defendant New West Health Services, Inc. (``New West''), a health

insurer that competes against Blue Cross to provide commercial health

insurance to Montana consumers. In the Agreement, Blue Cross agreed to

pay $26.3 million to the hospital defendants in exchange for their

collectively agreeing to stop purchasing health insurance for their own

employees from New West and instead buy insurance for their employees

from Blue Cross exclusively for six years. Blue Cross also agreed to

provide the hospital defendants with two seats on Blue Cross's board of

directors as long as the hospitals do not compete with Blue Cross in

the sale of commercial health insurance.

The Complaint alleged that the Agreement would likely cause New

West to exit the markets for commercial health insurance, eliminating

an important competitor to Blue Cross and ultimately leading to higher

prices and lower-quality service for consumers. Consequently, the

Complaint alleged that the Agreement unreasonably restrained trade in

the sale of commercial health insurance within Montana in the Billings

Metropolitan Statistical Area (``MSA''), Bozeman Micropolitan

Statistical Area (``MiSA''), Helena MiSA, and Missoula MSA, in

violation of Section 1 of the Sherman Act, 15 U.S.C. 1; and that the

Agreement substantially lessened competition in the sale of commercial

health insurance in those same areas, and would likely continue to do

so, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18, and the

Montana Unfair Trade Practices Act, Mont. Code Ann. Sec. 30-14-205.

Simultaneously with the filing of the Complaint, the United States

and the State of Montana filed a proposed Final Judgment and

Stipulation signed by the plaintiffs and the defendants consenting to

entry of the proposed Final Judgment after compliance with the

requirements of the Tunney Act, 15 U.S.C. 16. Pursuant to those

requirements, the United States also filed its Competitive Impact

Statement (``CIS'') with the Court on November 8, 2011; published the

proposed Final Judgment and CIS in the Federal Register on November 18,

2011, see 76 FR 71355; and had summaries of the terms of the proposed

Final Judgment and CIS, together with directions for the submission of

written comments relating to the proposed Final Judgment, published in

The Washington Post on alternating days from November 17 to November

29, 2011, and in the Billings Gazette on November 14, 17, 19, 21, 23,

25, and 28. The sixty-day period for public comment ended on January

28, 2011. One comment was received, as described below and attached

hereto.

II. The Investigation and Proposed Resolution

The proposed Final Judgment is the culmination of an investigation

by the Antitrust Division of the United States Department of Justice

(``Department'') of the Agreement among defendants described above. As

part of its investigation, the Department issued eight Civil

Investigative Demands and conducted more than 30 interviews of health-

insurance competitors, brokers, customers, and other individuals with

knowledge of the health-insurance industry in Montana. The Department

carefully analyzed the information obtained and thoroughly considered

all of the issues presented.

The Department found that the Agreement would effectively eliminate

New West as a viable competitor in the sale of commercial health

insurance for several reasons. First, news that none of New West's

owners would buy health insurance for their own employees from New West

created a perception that New West was exiting the commercial health-

insurance market, likely causing many existing and potential customers

to stop purchasing (or decline to purchase) insurance from New West.

Second, the Agreement would have led New West and its hospital owners

to significantly reduce their support for and efforts to win commercial

health-insurance customers, further hindering its ability to compete.

Furthermore, because the hospital defendants agreed to act

collectively, the Agreement with Blue Cross ensured that New West would

lose the support of all its owners

[[Page 12618]]

and likely exit the market. The Agreement further deterred the

hospitals from supporting New West by granting them two positions on

Blue Cross's board of directors as long as the hospitals do not own or

belong to a competing insurer.

By eliminating New West as an effective competitor, the Agreement

would have significantly increased concentration in the markets for

commercial health insurance in Montana. In the four relevant areas,

Blue Cross's share of commercial health insurance ranged from

approximately 43% to 75% at the time the Agreement was signed, and New

West's share ranged from 7% to 12%.

The Agreement also would have eliminated vigorous head-to-head

competition between Blue Cross and New West. For the past several

years, New West had been one of only two significant alternatives to

Blue Cross for commercial health insurance in the relevant areas. Many

consumers viewed Blue Cross and New West as the two most significant

insurers in the relevant areas and each other's main competitor.

Without New West as an effective competitor, Blue Cross would likely

have increased prices and reduced the quality and service of commercial

health-insurance plans to employers and individuals in the relevant

areas.

After reviewing the investigative materials, the Department

determined that the defendants' conduct violated Section 1 of the

Sherman Act, 15 U.S.C. 1, and Section 7 of the Clayton Act, 15 U.S.C.

18, as alleged in the Complaint. The proposed Final Judgment will

eliminate the anticompetitive effects identified in the Complaint by

requiring New West and the hospital defendants to divest New West's

commercial health-insurance business, including its administrative-

services-only contracts and its fully-insured business, but excluding

the contracts that cover the hospital defendants' employees and their

dependents.

Other provisions of the proposed Final Judgment will enable the

acquirer of the divested assets to compete promptly and effectively in

the market for commercial health insurance. Most importantly, Sections

IV(G)-(I) ensure that the acquirer has a cost-competitive health-care

provider network. Section IV(G) requires the hospital defendants to

sign three-year contracts with the acquirer on terms that are

substantially similar to their existing contractual terms with New

West. To address health-care provider contracts that are not under the

hospital defendants' control, Sections IV(H) and IV(I) require New West

and the hospital defendants--at the acquirer's option--to (1) use their

best efforts to assign the contracts that are not under their control

to the acquirer, or (2) lease New West's provider network to the

acquirer for up to three years, using their best efforts to maintain

the network, including maintaining contracts with substantially similar

terms.

New West and the hospital defendants proposed to sell the

Divestiture Assets to PacificSource Health Plans, and the United

States, after consulting with the State of Montana, has approved

PacificSource as the acquirer. New West and PacificSource have entered

into a definitive sale agreement and filed the necessary notification

and request for approval with the Montana Commissioner of Securities

and Insurance.

III. Standard of Judicial Review

The APPA requires that proposed consent judgments in antitrust

cases brought by the United States be subject to a sixty-day comment

period, after which the court shall determine whether entry of the

proposed Final Judgment ``is in the public interest.'' 15 U.S.C.

16(e)(1). In making that determination, the court, in accordance with

the statute as amended in 2004, is required to consider:

(A) The competitive impact of such judgment, including termination

of alleged violations, provisions for enforcement and modification,

duration of relief sought, anticipated effects of alternative remedies

actually considered, whether its terms are ambiguous, and any other

competitive considerations bearing upon the adequacy of such judgment

that the court deems necessary to a determination of whether the

consent judgment is in the public interest; and

(B) The impact of entry of such judgment upon competition in the

relevant market or markets, upon the public generally and individuals

alleging specific injury from the violations set forth in the complaint

including consideration of the public benefit, if any, to be derived

from a determination of the issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory

factors, the court's inquiry is necessarily a limited one as the

government is entitled to ``broad discretion to settle with the

defendant within the reaches of the public interest.'' United States v.

Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see also United

States v. SBC Commc'ns, Inc., 489 F. Supp. 2d 1 (D.D.C. 2007)

(assessing public-interest standard under the Tunney Act); United

States v. InBev N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS

84787, at *3 (D.D.C. Aug. 11, 2009) (noting that the court's review of

a consent judgment is limited and only inquires ``into whether the

government's determination that the proposed remedies will cure the

antitrust violations alleged in the complaint was reasonable, and

whether the mechanisms to enforce the final judgment are clear and

manageable.'').

As the United States Court of Appeals for the District of Columbia

Circuit has held, a court considers under the APPA, among other things,

the relationship between the remedy secured and the specific

allegations set forth in the United States' complaint, whether the

decree is sufficiently clear, whether enforcement mechanisms are

sufficient, and whether the decree may positively harm third parties.

See Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the

relief secured by the decree, a court may not ``engage in an

unrestricted evaluation of what relief would best serve the public.''

United States v. BNS Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing

United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see

also Microsoft, 56 F.3d at 1460-62; InBev, 2009 U.S. Dist. LEXIS 84787,

at *3; United States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C.

2001). Courts have held that:

[t]he balancing of competing social and political interests affected

by a proposed antitrust consent decree must be left, in the first

instance, to the discretion of the Attorney General. The court's

role in protecting the public interest is one of insuring that the

government has not breached its duty to the public in consenting to

the decree. The court is required to determine not whether a

particular decree is the one that will best serve society, but

whether the settlement is ``within the reaches of the public

interest.'' More elaborate requirements might undermine the

effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\1\

In determining whether a proposed settlement is in the public interest,

a district court ``must accord deference to the government's

predictions about the efficacy of its remedies, and may not

[[Page 12619]]

require that the remedies perfectly match the alleged violations.'' SBC

Commc'ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461

(noting the need for courts to be ``deferential to the government's

predictions as to the effect of the proposed remedies''); United States

v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003)

(noting that the court should grant due respect to the United States'

``prediction as to the effect of proposed remedies, its perception of

the market structure, and its views of the nature of the case'').

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\1\ Cf BNS, 858 F.2d at 464 (holding that the court's ``ultimate

authority under the [APPA] is limited to approving or disapproving

the consent decree''); United States v. Gillette Co., 406 F. Supp.

713, 716 (D. Mass. 1975) (noting that, in this way, the court is

constrained to ``look at the overall picture not hypercritically,

nor with a microscope, but with an artist's reducing glass''); see

generally Microsoft, 56 F.3d at 1461 (discussing whether ``the

remedies [obtained in the decree are] so inconsonant with the

allegations charged as to fall outside of the `reaches of the public

interest' '').

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Courts have greater flexibility in approving proposed consent

decrees than in crafting their own decrees following a finding of

liability in a litigated matter. ``[A] proposed decree must be approved

even if it falls short of the remedy the court would impose on its own,

as long as it falls within the range of acceptability or is `within the

reaches of public interest.' '' United States v. Am. Tel. & Tel. Co.,

552 F. Supp. 131, 151 (D.D.C. 1982) (citations omitted) (quoting United

States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)), aff'd

sub nom. Maryland v. United States, 460 U.S. 1001 (1983); see also

United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky.

1985) (approving the consent decree even though the court would have

imposed a greater remedy). To meet this standard, the United States

``need only provide a factual basis for concluding that the settlements

are reasonably adequate remedies for the alleged harms.'' SBC COMMCTIS,

489 F. Supp. 2d at 17.

Moreover, the court's role under the APPA is limited to reviewing

the remedy in relationship to the violations that the United States has

alleged in its complaint, and does not authorize the court to

``construct its own hypothetical case and then evaluate the decree

against that case.'' Microsoft, 56 F.3d at 1459; see also InBev, 2009

U.S. Dist. LEXIS 84787, at *20 (``the `public interest' is not to be

measured by comparing the violations alleged in the complaint against

those the court believes could have, or even should have, been

alleged''). Because the ``court's authority to review the decree

depends entirely on the government's exercising its prosecutorial

discretion by bringing a case in the first place,'' it follows that

``the court is only authorized to review the decree itself,'' and not

to ``effectively redraft the complaint'' to inquire into other matters

that the United States did not pursue. Microsoft, 56 F.3d at 1459-60.

As the United States District Court for the District of Columbia

confirmed in SBC Communications, courts ``cannot look beyond the

complaint in making the public interest determination unless the

complaint is drafted so narrowly as to make a mockery of judicial

power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.

In its 2004 amendments to the Tunney Act,\2\ Congress made clear

its intent to preserve the practical benefits of using consent decrees

in antitrust enforcement, adding the unambiguous instruction that

``[n]othing in this section shall be construed to require the court to

conduct an evidentiary hearing or to require the court to permit anyone

to intervene.'' 15 U.S.C. 16(e)(2). This language effectuates what

Congress intended when it enacted the Tunney Act in 1974. As Senator

Tunney explained: ``[the] court is nowhere compelled to go to trial or

to engage in extended proceedings which might have the effect of

vitiating the benefits of prompt and less costly settlement through the

consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement of

Senator Tunney). Rather, the procedure for the public-interest

determination is left to the discretion of the court, with the

recognition that the court's ``scope of review remains sharply

proscribed by precedent and the nature of Tunney Act proceedings.'' SBC

Commc'ns, 489 F. Supp. 2d at 11.\3\

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\2\ The 2004 amendments substituted ``shall'' for ``may'' in

directing relevant factors for courts to consider and amended the

list of factors to focus on competitive considerations and to

address potentially ambiguous judgment terms. Compare 15 U.S.C.

16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns,

489 F. Supp. 2d at 11 (concluding that the 2004 amendments

``effected minimal changes'' to Tunney Act review).

\3\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17

(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the

court to make its public interest determination on the basis of the

competitive impact statement and response to comments alone'');

United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) (if

61,508, at 71,980 (W.D. Mo. 1977) (``Absent a showing of corrupt

failure of the government to discharge its duty, the Court, in

making its public interest finding, should * * * carefully consider

the explanations of the government in the competitive impact

statement and its responses to comments in order to determine

whether those explanations are reasonable under the

circumstances.''); S. Rep. No. 93-298 at 6 (1973) (``Where the

public interest can be meaningfully evaluated simply on the basis of

briefs and oral arguments, that is the approach that should be

utilized.'').

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IV. Summary of Public Comment and the United States' Response

During the sixty-day comment period, the United States received

only one comment, submitted by the American Medical Association

(``AMA''), which is attached to this Response. In its January 13, 2012

comment, the AMA expressed its support for the United States' and the

State of Montana's analysis as well as the remedy articulated in the

proposed Final Judgment, stating that the action against the defendants

``represents an important step towards reining in health insurers and

hospitals whose actions conspire to restrain competition and maintain

monopolized health insurance markets.'' AMA Comment at 1. The United

States has carefully reviewed the comment and has determined that the

proposed Final Judgment remains in the public interest.

The AMA is the largest association of physicians and medical

students in the United States. The AMA's comment states that the AMA

``applauds the DOJ for its vigilance in recognizing the anticompetitive

conduct'' of the defendants and for ``fashioning a remedy that holds

the promise of nurturing competition in Montana.'' Id. The AMA views

the proposed Final Judgment as creating a ``pro-competitive remedy that

addresses the entry barriers faced by small Blue Cross rivals such as

New West.'' Id. The comment concludes that ``the proposed consent

decree will reverse the anticompetitive effects of the challenged

Agreement.'' Id.

V. Conclusion

After reviewing the AMA's public comment, the United States

continues to believe that the proposed Final Judgment, as drafted,

provides an effective and appropriate remedy for the antitrust

violations alleged in the Complaint, and is therefore in the public

interest. The United States will move this Court to enter the proposed

Final Judgment after the AMA's comment and this response are published

in the Federal Register.

Dated: February 10, 2012

Respectfully submitted,

/s/ Scott I. Fitzgerald

Scott I. Fitzgerald (WA Bar 39716),

Claudia H. Dulmage.

Attorneys for the United States, U.S. Department of Justice,

Antitrust Division, Litigation I Section, 450 Fifth Street NW.,

Suite 4100, Washington, DC 20530.

CERTIFICATE OF SERVICE

I hereby certify that, on February 10, 2012, a copy of the

foregoing document was served on the following persons by the following

means:

1, 2, 3 CM/ECF

-------- Hand Delivery

-------- U.S. Mail

-------- Overnight Delivery Service

-------- Fax

-------- E-Mail

1. Clerk, U.S. District Court

2. Counsel for Defendant Blue Cross and Blue Shield of Montana:

David C. Lundsgaard

Graham & Dunn PC

[[Page 12620]]

2801 Alaskan Way Suite 300--Pier 70

Seattle, WA 98121-1128

[email protected]

3. Counsel for Billings Clinic; Bozeman Deaconess Health Services,

Inc.; Community Medical Center, Inc.; New West Health Services, Inc.;

Northern Montana Health Care, Inc.; and St. Peter's Hospital:

Kevin P. Heaney

Crowley Fleck PLLP

Transwestern Plaza II

490 N. 31st St., Suite 500

Billings, MT 59101

[email protected]

/s/ Scott I. Fitzgerald

Scott I. Fitzgerald,

Antitrust Division, U.S. Department of Justice, 450 Fifth Street

NW., Suite 4100, Washington, DC 20530, (202) 353-3863,

[email protected].

AMA--AMERICAN MEDICAL ASSOCIATION

James Madara, Executive Vice President, CEO

American Medical Association

515 N. State Street

Chicago, Illinois 60654

amarassn.org

(p) 312.464.5000

(f) 312.464.4184

January 13, 2012

Mr. Joshua H. Soven,

Chief, Litigation I Section,

Antitrust Division,

United States Department of Justice,

450 5th Street, N, Suite 4700,

Washington, DC 20530.

Re: Comments to Proposed Consent Judgment in U.S. v. Blue Cross and

Blue Shield of Montana, Inc., et al. [FR Doc. 2011-29656]

Dear Mr. Soven:

On behalf of the physician and medical student members of the

American Medical Association (AMA), I appreciate the opportunity to

provide comments in response to the action by the Antitrust Division of

the Department of Justice (DOJ) in the matter of Blue Cross and Blue

Shield of Montana, Inc. (Blue Cross) and several Montana-area hospitals

(the Hospital Defendants) in U.S. v. Blue Cross and Blue Shield of

Montana, Inc., et al., Civil Action No. 1:11-cv-00123-RFC. This action

represents an important step towards reining in health insurers and

hospitals whose actions conspire to restrain competition and maintain

monopolized health insurance markets.

Accordingly, the DOJ has acted in the public interest with the

proposed decree, and the AMA submits the following comments in support.

According to the DOJ's complaint, Blue Cross agreed to pay $26.3

million to the Hospital Defendants in exchange for their agreement to

collectively stop purchasing health insurance from New West Health

Services, an insurer owned by the Hospital Defendants, and instead buy

from Blue Cross exclusively for six years (the Agreement). The

Agreement, it is alleged, would likely cause New West to exit the

relevant Montana markets for commercial health insurance. Because New

West is Blue Cross's only viable competitor, the Agreement would have

eliminated all competition. Accordingly, as the Complaint alleges, the

Agreement would have led to higher prices and lower quality service for

consumers.

The AMA applauds the DOJ for its vigilance in recognizing the

anticompetitive conduct described above and for fashioning a remedy

that holds the promise of nurturing competition in Montana. For years,

the AMA has been expressing its concern over the lack of competition in

health insurance markets nationally. In its most recent study of health

insurance markets, the AMA found that 83% of the 368 metropolitan areas

studied qualify as highly concentrated areas, while in 95% of these

markets, at least one insurer has a market share of 30% or greater.

See, ``Competition in Health Insurance: A Comprehensive Study of U.S.

Markets,'' American Medical Association (AMA) (2011 update). Health

insurance markets that are monopolized not only hurt consumers

directly, they also enable health insurers to exercise monopsony power

in physician markets, eventually leading to reductions in service

levels and quality of care. The market conditions in Montana are

consistent with what the AMA has found nationally.

Blue Cross' dominance in Montana health insurance markets presents

a significant barrier to the market success of smaller rivals such as

New West, even assuming the absence of exclusionary conduct such as

that alleged in this case. In 2010, then Assistant Attorney General

Christine Varney reported that the DOJ found that new health insurer

entrants cannot compete with incumbents for potential purchasers of

their products unless the new entrants can offer similar provider

discounts to their enrollees--but they cannot offer these competitive

discounts without being able to promise providers a significant number

of enrollees to make such an arrangement viable. In turn, these

barriers of entry create an anticompetitive environment in which the

dominant insurer can achieve lower input prices by demanding lower

rates from providers (who face a significant loss of revenue if they

refuse such demands), without having to lower their consumer output

prices (the cost of their premiums).\1\

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\1\ See, Speech by Christine Varney, Assistant Attorney General

Antitrust Division, U.S. Department of Justice at American Bar

Association/American Health Lawyers Association Antitrust in

Healthcare Conference, May 24, 2010.

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In the instant case, the DOJ has fashioned a pro-competitive remedy

that addresses the entry barriers faced by small Blue Cross rivals such

as New West. First, the proposed final judgment would eliminate the

anticompetitive effects of the challenged Agreement by requiring New

West and the Hospital Defendants to divest New West's commercial health

insurance business. Tentative arrangements call for the acquiring

entity to be PacificSource, which is an established health insurer in

the Pacific Northwest. To overcome Blue Cross' advantage in obtaining

discounts from the Hospital Defendants because of its size, the

proposed consent decree creatively requires New West and the Hospital

Defendants to help provide PacificSource with a cost-competitive

provider network. The Hospital Defendants are required to sign three-

year hospital contracts with PacificSource on terms substantially

similar to the existing contractual terms with New West. The decree

also requires Blue Cross to provide thirty days' written notice to the

DOJ before entering into any exclusive contracts with health insurance

brokers--contracts that might hinder important health insurer access to

brokers. These provisions will help ensure that PacificSource will be

able to compete as effectively as New West before the parties entered

the Agreement.

In sum, the divestiture of New West mandated in the proposed

consent decree will reverse the anticompetitive effects of the

challenged Agreement, while the additional provisions may foster an

even more robust competition within the market than existed before the

Agreement. Given the weak state of health insurer competition in

Montana, we applaud the DOJ for creating this remedy in the public

interest.

Sincerely,

James L. Madara, MD.

[FR Doc. 2012-4862 Filed 2-29-12; 8:45 am]

BILLING CODE M