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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-4862

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** March 1, 2012
- **Citation:** 77 FR 12617

## Text

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'').
---------------------------------------------------------------------------

\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' '').
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-4862. Public record. Not legal advice.