Proposed Final Judgment and Competitive Impact Statement
Federal RegisterSep 15, 1994
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DEPARTMENT OF JUSTICE
Antitrust Division
Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h), that a proposed Final Judgment,
Settlement Agreement, and Competitive Impact Statement have been lodged
with the United States District Court for the District of Arizona in
United States of America and State of Arizona v. Delta Dental Plan of
Arizona, Inc., an Arizona Corporation, Civil Action No. 94-1793PHXPGR.
The Complaint in this case alleges that the defendant and co-
conspirators agreed to restrain or eliminate the discounting of fees
for dental services to other dental plans or consumers in the State of
Arizona in violation of the Sherman Act, 15 U.S.C. 1. A second count,
not subject to the Antitrust Procedures and Penalties Act, alleges that
the same actions violated the Uniform Arizona Antitrust Act, A.R.S.
Sec. 44-1402. The proposed Final Judgment enjoins the defendant from
maintaining, adopting, or enforcing a clause in dentist's contracts
that requires the dentist to give the defendant the lowest fees offered
to any person or dental plan. It also enjoins the defendant from
demanding information about dentists' participation in other dental
plans; monitoring dentist's fees to other persons or dental plans;
writing to dentists about fees dentists charge to other plans;
requiring a dentist to identify other plans he or she may participate
in; seeking a vote of dentists on the levels of reimbursement;
terminating, discriminating or retaliating against dentists who
discount fees; treating dentists who discount fees differently from
non-discounting dentists; and taking any other action to discourage
dentists from discounting fees. Certain language in the defendant's
contracts with dentists is voided. A companion Settlement Agreement
requires, among other things, that the defendant notify dentists of the
terms of the proposed Final Judgment, and reinstate any dentist dropped
from the defendant's plan because of discounting, if the dentist so
desires.
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 Gary R. Spratling, 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, Phillip R. Malone, Carla G. Addicks, Antitrust
Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box
36046, 10th Floor, San Francisco, California 94102, (415) 556-6300
Attorneys for the United States
Grant Woods, Attorney General, Sydney K. Davis, Chief Counsel,
ID#004041, Suzanne M. Dallimore, ID#014151, Lisa L. Glow, ID#013232,
Consumer Protection & Antitrust Section, Department of Law Building,
Room #259, 1275 West Washington Street, Phoenix, Arizona 85007-2997,
(602) 542-3702
Attorneys for the State of Arizona
In the United States District Court District of Arizona
United States of America, and State of Arizona, by and through
its Attorney General Grant Woods, Plaintiffs, vs. Delta Dental Plan
of Arizona, Inc., an Arizona Corporation, Defendant. Filed: August
30, 1994. Civil No. 94-1793PHXPGR.
Complaint
Count One
The United States of America, acting under the direction of the
Attorney General of the United States, and the State of Arizona, acting
under the direction of the Attorney General of the State of Arizona,
bring this civil action to obtain equitable and other relief against
the defendant named herein, and complain and allege 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. Sec. 4, as amended, and by the State of
Arizona under 15 U.S.C. Sec. 26, to prevent and restrain a continuing
violation by the Defendant of Section 1 of the Sherman Act, 15 U.S.C.
Sec. 1.
2. The Defendant maintains an office, transacts business, and is
found within the District of Arizona, within the meaning of 15 U.S.C.
Sec. 22 and 28 U.S.C. Sec. 1391(c).
II
Defendant
3. Delta Dental Plan of Arizona, Inc. (``Delta'' or ``the
Defendant''), is an Arizona corporation with its principal place of
business in Phoenix, Arizona. The defendant is a non-profit corporation
whose participating providers consist of dentists licensed to practice
in Arizona and who execute participating provider agreements with
Delta. At material times, dentists comprised the majority of the Board
of Directors of the Defendant.
4. At material times, approximately eight-five percent of dentists
licensed to practice in Arizona were participating providers of the
Defendant with power and authority to vote on matters concerning their
payment for services rendered.
5. Whenever this Complaint refers to any corporation's act, deed,
or transaction, it means that such corporation engaged in the act,
deed, or transaction by or through its members, officers, directors,
agents, employees, or other representatives while they actively were
engaged in the management, direction, control, or transaction of its
business or affairs.
III
Co-Conspirators
6. Various firms and individuals, not named as defendants in this
Complaint, have participated as co-conspirators with the Defendant in
the violations alleged in this Complaint, and have performed acts and
made statements in furtherance thereof.
IV
Trade and Commerce
7. At material times, the Defendant has engaged in the business of
providing dental insurance coverage for patients in the State of
Arizona. The Defendant contracts directly with individual dentists an
groups of dentists for the provision of dental services to persons
covered by the Defendant's dental insurance plans. The Defendant
compensates contracting dentist on the basis of submitted fee
schedules. Dentists agree to comply with the terms of the contractual
agreements with the Defendant.
8. At material times, the confidential fee listings and
participating dentist agreements between dentists and the Defendant
contained provisions known as ``most favored nation'' clauses. These
provisions stated that, for example, the dentists' ```usual fee' shall
be deemed to be the lowest fee charged or offered and received as
payment in full,''or ``I agree to charge to Delta Dental my usual fees
charged to all my other patients or the amount accepted as payment in
full, whichever is less. * * *'' In this case, the Defendant's most
favored nation clauses had the effect of requiring participating
dentists to charge fees to all other group dental care programs or non-
Delta patients that were the same as or higher than the fees they
charged to the Defendant.
9. At material times, payments from the Defendant constituted a
significant portion of most individual dentist's receipts from the
provision of dental services to patients having some form of dental
insurance or coverage.
10. After the Defendant began actively enforcing the most favored
nation clauses in its agreements with participating dentists, most of
those dentists refused to discount their fees to non-Delta patients or
competing dental plans because the most favored nation clauses would
have required them to also lower all of their charges to the Defendant
to the same level. Because most participating dentists receive such a
significant portion of their income from serving Delta patients, the
costs of having to lower their Delta fees would have been too great.
Consequently, the effect of the Defendant's most favored nation clauses
is to require participating dentists to charge all other patients or
dental plans fees as high as or higher than those charged to the
Defendant.
11. The Defendant's most favored nation clauses have caused large
numbers of dentists who had previously chosen to reduce their fees to
participate in competing discount dental plans to drop out of or resign
from such plans. Participating dentists also have refused to join such
plans.
12. Because such a large percentage of Arizona dentists participate
in the Defendant's plan, and because revenue from serving the
Defendant's patients is a significant part of many of those dentists'
receipts, among other reasons, the Delta 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.
Many competing plans have had their ability to attract and serve groups
of patients severely restricted and may be forced out of business.
13. Most dentists who are participants with the Defendant are
independent, private practices and are in actual or potential
competition with other participating dentists for the provision of
dental services to patients.
14. The Defendant is a member of Delta Dental Plans Association,
located in the State of Illinois, which is a nationwide network of
dental insurance providers. The Defendant pays annual dues and an
advertising assessment to this organization, and participates in a
nationwide advertising campaign.
15. Certain corporate employers remit from outside the State or
Arizona not insubstantial premium payments to the Defendant for
providing dental career insurance to their employees.
16. Many businesses that remit premiums to the Defendant for
providing dental care insurance to their employees are involved in
selling products and services outside the State of Arizona. The premium
levels paid by such businesses affect the prices of such products and
services.
17. At material times, the Defendant and co-conspirators have
utilized interstate banking facilities and purchased not insubstantial
quantities of goods and services from outside the State of Arizona, for
use in providing dental insurance coverage or dental services to
patients.
18. The activities of the Defendant that are the subject of this
Complaint, and the activities of their co-conspirators, have been
within the flow of, and have substantially affected, interstate trade
and commerce.
V
Violation Alleged
19. Beginning at a time unknown to the Plaintiffs and continuing
through at least July 1994, the Defendant and co-conspirators engaged
in a combination and conspiracy in unreasonable restraint of interstate
trade and commerce in violation of Section 1 of the Sherman Act, 15
U.S.C. Sec. 1. This offense is likely to recur unless the relief
hereinafter sought is granted.
20. This combination and conspiracy consisted of a continuing
agreement, understanding, and concert of action among the Defendant and
co-conspirators to restrain or eliminate the discounting of fees for
dental services to competing dental plans or to other consumers of
dental services.
21. For the purpose of forming and effectuating this combination
and conspiracy, the Defendant and co-conspirators did the following
things, among others:
(a) agreed to adopt and enforce most favored nation clauses in the
contracts and other agreements with dentists, for the purpose and with
the effect of restraining or eliminating discount fees for dental
services and restricting the ability of dentists to discount fees for
dental services;
(b) enforced most favored nation clauses; and
(c) coerced participating dentists into dropping out of dental
plans that competed with the defendant.
22. This combination and conspiracy had the following effects,
among others:
(a) price competition among dentists for the provision of dental
services has been unreasonably restrained;
(b) price competition among dentists for the provision of dental
services to plans in competition with the defendant has been
unreasonably restrained, in that, to recruit and retain a marketable
panel of dentists, competing dental plans would have had to increase
fees paid to dentists to the level charged by defendant;
(c) price competition among dental insurance plans has been
unreasonably restrained, in that, most competing dental insurance plans
have been unable to obtain or retain a sufficient number of dentists to
provide services to their clients, because dentists have withdrawn from
or refused to participate in dental insurance plans that pay them less
than the defendant; and
(d) consumers of dental services in Arizona have been deprived of
the benefits of free and open competition.
Count Two
The State of Arizona, acting under the direction of the Attorney
General of the State of Arizona, complains and alleges as follows:
23. Each and every allegation contained in paragraphs 3-22 of this
Complaint is here re-alleged with the same force and effect as though
said allegations were here set forth in full detail.
VI
Jurisdiction and Venue
24. Count Two of this Complaint is filed by the State of Arizona
pursuant to the Uniform Arizona Antitrust Act, A.R.S. Secs. 44-1402,
et. seq., and is properly before this Court under the doctrine of
pendent jurisdiction, 28 U.S.C. Sec. 1367.
VII
Violation Alleged
25. The conduct alleged in paragraphs 20 through 22 of this
Complaint is in violation of the Uniform Arizona Antitrust Act, A.R.S.
Sec. 44-1402.
VIII
Prayer
Wherefore, the Plaintiffs pray:
1. That the Court adjudge and decree that the Defendant and co-
conspirators engaged in an unlawful agreement, combination and
conspiracy in unreasonable restraint of interstate trade and commerce
in violation of Section 1 of the Sherman Act, 15 U.S.C. 1, as alleged
in Count One of the Complaint.
2. That the Court adjudge and decree that the Defendant and co-
conspirators engaged in an unlawful agreement, combination and
conspiracy in unreasonable restraint of Arizona trade and commerce in
violation of the Uniform Arizona Antitrust Act, A.R.S. Sec. 44-1402, as
alleged in Count Two of the Complaint.
3. That the Defendant, its members, officers, directors, agents,
employees, and successors and all other persons acting or claiming to
act on its behalf be enjoined, restrained and prohibited for a period
of five years from, in any manner, directly or indirectly, continuing,
maintaining, or renewing the alleged combination and conspiracy, or
from engaging in any other combination, conspiracy, agreement,
understanding, plan, program, or other arrangement having a similar
purpose or effect as the alleged combination and conspiracy.
4. That the United States and the State of Arizona have such other
relief as the nature of the case may require and the Court may deem
just and proper.
Grant Woods,
Attorney General.
Sydney K. Davis,
Chief Counsel Consumer Protection & Antitrust Section.
Suzanne M. Dallimore,
Antitrust Unit Chief, Civil Division.
Lisa L. Glow,
Attorney, Antitrust Unit, State of Arizona.
Janet A. Napolitano,
United States Attorney, District of Arizona.
Anne K. Bingaman,
Assistant Attorney General.
Robert E. Litan,
Deputy Assistant Attorney General.
Mark C. Schechter,
Deputy Director of Operations.
Gary R. Spratling,
Chief.
Barbara J. Nelson,
Phillip R. Malone,
Carla G. Addicks,
Attorneys.
Antitrust Division, U.S. Department of Justice, Box 36046, 450 Golden
Gate Avenue, San Francisco, California 94102, (415) 556-6300.
Barbara J. Nelson, Phillip R. Malone, Carla G. Addicks, Antitrust
Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box
36046, 10th Floor, San Francisco, California 94102, (415) 556-6300
Attorneys for the United States
Grant Woods, Attorney General, Sydney K. Davis, Chief Counsel, ID#
004041, Suzanne M. Dallimore, ID# 014151, Lisa L. Glow, ID# 013232,
Consumer Protection & Antitrust Section, Department of Law Building,
Room #259, 1275 West Washington Street, Phoenix, Arizona 85007-2997,
(602) 542-3702
Attorneys for the State of Arizona
In the United States District Court--District of Arizona
United States of America, and State of Arizona, by and through
its Attorney General Grant Woods, Plaintiffs, vs. Delta Dental Plan
of Arizona, Inc., an Arizona Corporation, Defendant. Filed August
30, 1994. Civil No. 94-1793PHXPGR.
Settlement Agreement
This Agreement is made and entered into as of August 25, 1994, in
the above-captioned matter.
Whereas, the Plaintiffs, State of Arizona and the United States of
America, through their respective attorneys, filed a complaint on
August 30, 1994, alleging violations of the Sherman Act, 15 U.S.C.
Sec. 1, and of the Uniform Arizona Antitrust Act, A.R.S. Sec. 44-1402;
Whereas, the Defendant denies liability;
Whereas, there has been no determination by the Court that a
violation of law has occurred; and
Whereas, the Plaintiffs, and Defendant, desiring to resolve their
disputes without trial or adjudication of any issue of law or fact,
have consented to the entry of the attached Final Judgment, filed
herewith;
Now Therefore, in consideration of the covenants and undertakings
here set forth, and intending this agreement to be legally binding, it
is agreed by and between Defendant and the Plaintiffs as follows:
1. As used in this Settlement Agreement:
A. ``Attorney General'' means any duly authorized representative of
the Office of the Attorney General, State of Arizona.
B. ``State'' means the State of Arizona, acting through its
Attorney General.
C. ``Person'' means any natural person and any corporation,
partnership, joint venture, formal or informal association, and any
other legal entity.
D. ``Party'' means any person stipulating or otherwise consenting
to the entry of the Final Judgment.
E. ``Defendant'' means Delta Dental Plan of Arizona, an Arizona
Corporation.
F. ``Complaint'' means the Plaintiffs' complaint in this action.
G. ``Term'' means the term of this Settlement Agreement and Final
Judgment.
H. ``Participating Provider'' and ``Provider'' means any dentist
practicing in the State of Arizona who has entered into a Participating
Dentist Agreement with the Defendant.
I. ``Participating Dentist Agreement'' means the Delta Dental
Participating Dentist Agreement and Confidential Fee Listing document
by which Defendant contracts with dentists in the State of Arizona,
including all versions, amendments and additions thereto in effect at
any time since January 1, 1990 and during the term of this Settlement
Agreement and Final Judgment.
J. ``Most Favored Nation Clause'' or ``MFN'' means those provisions
in the Defendant's participating dentist agreements that require that
the participating dentist's usual and customary fee be the lowest fee
charged or offered by that dentist to, or received from, any person or
dental plan.
K. ``This action'' means the matter of United States of America and
State of Arizona v. Delta Dental Plan of Arizona, Inc., filed or to be
filed in connection with this Settlement Agreement.
L. ``Final Judgment'' means the Final Judgment entered or to be
entered in the above-referenced action.
M. ``Affiliate'' means any entity owned or controlled by Delta
Dental.
2. The terms of the Final Judgment and Settlement Agreement shall
apply to the Defendant and to the Defendant's officers, employees,
members acting as corporate policy makers, directors, successors,
assigns, subsidiaries, divisions and any other organizational units of
any kind, and to all other persons in active concert or participation
with any of them who shall have received actual notice of the Final
Judgment by personal service or otherwise.
3. Defendant agrees that a Final Judgment in the form attached to
this Agreement as Exhibit A and incorporated herein by this reference
may be filed and entered by the Court upon execution of this Settlement
Agreement upon the motion of any party or upon the Court's own motion,
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 the United States 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
and by filing that notice with the Court, Defendant agrees to be bound
to the terms of the Final Judgment.
4. Defendant agrees to refrain from maintaining, adopting, or
enforcing an MFN or similar provision in participating dentist
agreements, in corporate by-laws, in rules or regulations, or by any
other means or methods.
5. Defendant agrees to comply with IV(A) of the Final Judgment.
6. Defendant agrees to refrain from taking any action, directly or
indirectly, to coerce any dentist or member to refrain from offering
discount fees to any person or dental plan within the State of Arizona
or to refrain from participating in any dental plan.
7. Nothing contained in this Settlement Agreement shall restrict
Defendant from examining, auditing or monitoring fees a dentist charges
to Defendant, and taking appropriate action where there is good cause
to believe that a participating dentist may have engaged in
impermissible ``irregularities in billing'' as defined by A.R.S.
Sec. 32-1201.11.
8. Defendant agrees to amend its participating dentist agreements
in accordance with the Final Judgment.
9. Defendant agrees to, within fifteen (15) days of the execution
of this agreement, send a letter by first class mail to every dentist
participating as of January 1, 1993, stating as follows:
Pursuant to Delta's settlement of an action brought by the Arizona
Attorney General and the United States, Delta's Most Favored Nation
pricing provisions in your participating Dentist Agreement are now void
and of no force or effect. You are free to set your usual fees as you
in your sole discretion determine. You are completely free to offer
discounts to and to associate with, and to offer any price you want to
any person or dental plan in the State or Arizona. Delta will not audit
or monitor in any way the fees you charge other persons or dental plans
in the future except in cases where there are reasonable grounds to
suspect ``irregularities in billing'' as that term is defined in
Arizona Revised Statutes Sec. 32-1201.11, which deals with fraudulent
billing. If you have been terminated as a Delta dentist for failing to
honor the MFN provisions of your agreement and if you wish to be
reinstated as a Delta dentist, please so state in writing within thirty
days of the date of this letter and your request will be honored within
five days of receipt.
Delta will not discriminate or retaliate against any dentist on the
basis of his or her participation with a discount dental plan. Delta
reserves the right to limit the number of dentists who may participate
in any Preferred Provider Organization Delta may create, but will do so
for reason unrelated to the dentist's fee discounting practices or his
or her participation with any competing dental plan.
10. Defendant agrees to provide a declaration of service of the
foregoing letter on Delta dentists to the Plaintiff's offices within
five (5) days of its mailing.
11. Defendant agrees to reinstate terminated dentists in accordance
with the letter described in 9.
12. Defendant agrees that no later than thirty (30) days from the
entry of the Final Judgment, Defendant shall pay to the Attorney
General's Antitrust Revolving Fund an amount agreed upon by the
parties.
13. The State of Arizona agrees not to initiate debarment or
termination proceedings relating to State of Arizona Contract No. A2-
0093-001 upon any ground arising out of the complaint in the action.
The State certifies that as of the date of execution of this Settlement
Agreement, no termination or partial termination, suspension or
debarment of that contract has been initiated, that no such proceeding
is contemplated or planned and that the State has no present intention
of initiating such a proceeding upon information processed as of the
date of this Settlement Agreement. The State agrees to notify Defendant
in writing consistent with its contractual and legal obligations of any
termination that may be initiated in the future. Nothing in this
Settlement Agreement shall be construed to alter or amend any provision
contained in State of Arizona Contract No. A2-0093-001, or to afford
any party any additional rights or benefits.
14. The term of this Settlement Agreement shall be for five years,
from the date of entry of the Final Judgment.
15. In the event that Plaintiffs reasonably believe that Defendant
has violated the provisions of the Final Judgment or Settlement
Agreement, Defendant agrees that the Plaintiffs, or each of them, may
move the court for an order, upon affidavits stating the factual
grounds therefore, and the Court, after notice by regular mail to the
last known address of the Defendant and to its attorney of record, and
after a hearing at which Defendant shall have a reasonable opportunity
to present evidence and legal argument, may enter an order which, among
other remedies, may require Defendant to pay a penalty in such amount
as is established by the Court, per violation of the Final Judgment or
this Settlement Agreement, such penalty to be paid within 30 days of
the date on which the order is mailed, regular mail, to the last known
address of Defendant. The Court may also enter such other sanction,
including debarment, as it deems appropriate.
16. Defendant agrees that upon failure to pay the penalty as
provided in this section, or for any other violation of the Final
Judgment or this Settlement Agreement, the plaintiffs or each of them
may exercise all remedies available at law or in equity.
17. Nothing contained in this Settlement Agreement or the Final
Judgment shall limit the rights of the United States from utilizing
other investigative alternatives, such as the Civil Investigative
Demand process provided by 15 U.S.C. 1311-1314, or a federal grand
jury, or the State of Arizona from utilizing its civil investigative
authority under A.R.S. Sec. 44-1406.
18. Except as provided in paragraph 13, nothing contained in this
Settlement Agreement or the Final Judgment shall affect the rights or
remedies of any State agency arising out of any contractual
relationship with, or regulatory authority over, Defendant.
19. By execution of this Settlement Agreement, the State of Arizona
covenants and agrees to release, waive and forever discharge and to
refrain forever from prosecuting or maintaining any suit or action
against the Defendant, or its present or past officers, directors,
agents, employees, affiliates, predecessors, or any of its respective
successors, assigns or representatives known or unknown, fixed or
contingent, suspected or claimed which the State of Arizona ever had or
may now have against Defendant or any of this covenant's beneficiaries
pertaining to all matters that were or could have been asserted in the
complaint arising out of antitrust law.
20. Nothing in this Settlement Agreement shall be deemed a release
or waiver of any claims arising out of a breach of this Agreement.
21. Nothing in this Settlement Agreement or Final Judgment shall be
construed to release or to confer any right whatsoever on any party or
state agency not expressly named in it.
22. This Settlement Agreement, the Final Judgment, or any portion
or draft thereof shall not be used as evidence, or construed in any way
whatsoever as an admission by Defendant, the United States, or the
State of Arizona with respect to any issue in this action.
23. Upon filing the Complaint, Final Judgment, and Settlement
Agreement in this case, the State of Arizona will dismiss the complaint
filed in State of Arizona v. Delta Dental Plan of Arizona, Inc., No. CV
94-10142, filed in the Superior Court of the State of Arizona in and
for the County of Maricopa.
24. Immediately upon Court approval of this Settlement Agreement
and entry of the Final Judgment, the United States and the State of
Arizona shall, at their own expense, and consistent with any federal or
state law, return to Defendant all documents produced by Defendant to
the Attorney General's Office and in the Plaintiffs' possession,
custody, or control, and all copies thereof, or, at Plaintiffs'
election, certify to counsel for Defendant that such documents have
been disposed of in a manner mutually agreed upon by counsel for the
parties.
25. This Settlement Agreement constitutes the entire agreement
between the parties. All prior oral or written agreements, commitments
or understandings with respect to the matters provided for herein are
hereby set aside and no evidence of any oral or written agreements,
commitments or understandings with respect to the matters provided for
herein shall be admissible in any proceeding for any purpose absent
written consent of all parties to this Settlement Agreement and Final
Judgment.
26. Article headings contained in the Final Judgment are inserted
for convenience of reference only, and shall not be deemed to be part
of the Final Judgment for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions
of it.
27. This Settlement Agreement shall be final upon execution. No
delay in entry of the Final Judgment shall delay performance as agreed
in this Settlement Agreement. In the vent that the United States
withdraws its consent to this agreement or to the Final Judgment, the
parties agree to re-negotiate this agreement in good faith.
28. This Settlement Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed an
original and all of which shall constitute the same instrument.
29. Each of the parties to this Settlement Agreement represents and
warrants that:
a. It has the power and authority to enter into this Settlement
Agreement and to perform its obligations thereunder;
b. It has taken all action and has secured the consents of all
persons necessary to authorize the execution, delivery and performance
of this Settlement Agreement; and
c. This Settlement Agreement has been duly executed and delivered
by it and constitutes a valid and binding obligation enforceable
against it is accordance with its terms.
30. The Defendant will file a certified copy of a resolution of the
Board of Directors of Defendant, authorizing entry into this
stipulation and consenting to entry of the Final Judgment in the form
of Final Judgment hereto attached.
31. The parties intend that if there is any ambiguity in this
Settlement Agreement, it will be construed in favor of settlement of
claims.
32. Nothing contained herein has been agreed to for the benefit of
any third party and nothing herein shall be construed to provide any
rights to any third party.
In Witness Whereof, the parties hereto have executed this
Settlement Agreement as of this 25th day of August, 1994.
Delta Dental Plan of Arizona, Inc., and Arizona Corporation
James E. Judd,
President and CEO.
State of Arizona
Suzanne M. Dallimore.
United States of America
Barbara J. Nelson.
In the United States District Court--District of Arizona
United States of America, and State of Arizona, by and through
its Attorney General Grant Woods, Plaintiffs, vs. Delta Dental Plan
of Arizona, Inc., an Arizona Corporation, Defendant. Civil No.
Final Judgment
Whereas, Plaintiffs, United States of America and State of Arizona,
through their respective attorneys, filed their Complaint on August 30,
1994, alleging violations of the Sherman Act, 15 U.S.C. Sec. 1 and the
Uniform Arizona Antitrust Act, A.R.S. Sec. 44-1402;
Whereas, the Defendant denies liability;
Whereas, there has been no determination by the Court that a
violation of law has occurred;
Whereas, the Plaintiffs and Defendant, desiring to resolve their
disputes without trial or adjudication of any issue of law or fact,
have entered into a Settlement Agreement dated as of August 25, 1994 in
which they have provided for the entry of this Final Judgment;
Whereas, this Final Judgment shall not be evidence against or an
admission by any party with respect to any issue of fact or law; and
Whereas, this Final Judgment is filed in accordance with the terms
of the Antitrust Procedures and Penalties Act, 15 U.S.C. Sec. 16, and
is a consent judgment as that term is used in 15 U.S.C. Sec. 16(a);
Now therefore, before the taking of any testimony and without trial
or adjudication of any issue of fact or law herein, it is hereby
Ordered, Adjudged, and Decreed as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting hereto. The Court has
jurisdiction over Count Two of the Complaint pursuant to 28 U.S.C.
Sec. 1367(a). The Complaint states a claim upon which relief may be
granted against the Defendant under Section 1 of the Sherman Act, 15
U.S.C. Sec. 1, and under A.R.S. Sec. 44-1402.
II
Definitions
As used herein, the term:
(A) ``Defendant'' means Delta Dental Plan of Arizona, Inc., an
Arizona Corporation;
(B) ``Most Favored Nation Clause'' or ``MFN'' means those
provisions in the Defendant's participating dentist agreements that
require that the participating dentist's usual and customary fee be the
lowest fee charged or offered by that dentist to, or received from, any
person or dental plan;
(C) ``Participating Dentist Agreement'' means the Delta Dental
Participating Dentist Agreement and Confidential Fee Listing document
by which Defendant contracts with dentists in the State of Arizona
including all versions, amendments and additions thereto in effect at
any time since January 1, 1990 and during the term of this Final
Judgment.
III
Applicability
(A) This Final Judgment applies to the Defendant and to the
Defendant's officers, employees, members acting as corporate
policymakers, directors, successors, assigns, subsidiaries, divisions
and any other organizational units of any kind, and to all other
persons in active concert or participation with any of them who shall
have received actual notice of the Final Judgment by personal service
or otherwise. Within 60 days of entry, Defendant shall mail a copy of
this Final Judgment to each dentist who was a member as of January 1,
1993.
(B) Nothing herein contained shall suggest that any portion of this
Final Judgment is or has been created for the benefit of any third
party and nothing herein shall be construed to provide any rights to
any third party.
IV
Injunction
(A) Within the State of Arizona, Defendant and its members are
enjoined and restrained from any and all of the following conduct:
(1) Maintaining, adopting, or enforcing an MFN or similar provision
in participating dentist agreements, in corporate by-laws, in rules or
regulations, or by any other means or methods;
(2) Demanding information from dentists about their participation
with any person or other dental plan;
(3) Examining, auditing, or monitoring the fees a dentist charges
to any other dental plan or to any person other than a Delta Dental
Plan participant;
(4) Sending written communication to dentists regarding the fees
dentists charge to persons or dental plans other than Defendant's;
(5) Requiring any dentist to identify the dental plans with which
he or she participates;
(6) Seeking any vote of dentists on the levels of reimbursement
Defendant is to pay to its dentists;
(7) Terminating, or discriminating or retaliating against, any
dentist because he or she offers discounted fees to any person or
dental plan;
(8) Differentiating between dentists in payment or other treatment
based on a dentist's discounting of fees; or
(9) Taking any other action, directly or indirectly, to coerce any
dentist to refrain from offering discount fees to any person or dental
plan within the State or Arizona or to refrain from participating in
any dental plan, or to discourage any dentist from offering discount
fees or participating in any dental plan.
However, nothing contained in this Final Judgment shall restrict
Defendant from examining, auditing or monitoring fees a dentist charges
to Defendant, and taking appropriate action, where there is good cause
to believe that a participating dentist may have engaged in
impermissible ``irregularities in billing'' as defined by A.R.S.
Sec. 32-1201.11.
(B) The following italicized language and all similar provisions of
the Confidential Fee Listing and Participating Dentist Agreement shall
be null and void and Defendant shall be entitled to no benefit from it,
direct or indirect, prospective or retroactive:
Confidential Fee Listing
USUAL: A ``usual fee'' for a patient is a fee charged or offered
and intended to be collected by an individual dentist or group of
dentists; i.e. his/her own usual fee. However, if a dentist or group
of dentists charge a lower fee to patients who are members of any
other individual or group dental care program for the same or
similar service or procedure, the ``usual fee'' shall be deemed to
be the lowest fee charged or offered and received as payment in
full.
Participating Dentist Agreement
5. I agree to charge Delta Dental my usual fees charged to all
my other patients or the amount accepted as payment in full,
whichever is less, for services rendered to Delta Dental's covered
patients, and agree to accept Delta Dental's determination of
reasonable fees for any procedure as full satisfaction of my fee
where my usual fee for such services is determined to be in excess
of the 90th percentile or the customary range of charges made by
dentists of similar training for the same service(s) within the same
geographic area as determined by Delta Dental.
(C) Defendant shall, within fifteen (15) days of the date of the
Settlement Agreement, mail a letter to all participating dentists
containing the language set forth in the Settlement Agreement, and
shall certify to the Plaintiffs in writing, within five (5) days of
mailing, that the letter was sent.
(D) No later than thirty (30) days from the date of entry of this
Final Judgment, Defendant shall pay to the State of Arizona Attorney
General's Antitrust Revolving Fund an amount to be agreed upon by the
parties.
(E) Defendant shall comply in all respects with all provisions of
the Settlement Agreement dated August 25, 1994.
V
Retention of Jurisdiction
Jurisdiction is retained by this Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for further orders and directions as may be necessary or
appropriate to carry out or construe this Final Judgment, modify it on
the basis of changed circumstances, terminate any of its provisions,
enforce compliance, and punish violations of its provisions.
Nothing in this provision shall give standing to any person not a
party to this Final Judgment to seek any relief related to it.
VI
Access to Information
For the purposes of determining or securing compliance with the
Final Judgment, Defendant agrees that from time to time:
(A) Duly authorized representatives of the United States, upon
written request of the Assistant Attorney General in charge of the
Antitrust Division, or the Attorney General of the State of Arizona,
upon written request of the Attorney General, and on reasonable notice
to Defendant, shall be permitted, subject to any legally recognized
privilege, access, during office hours, to inspect and copy all books,
ledgers, accounts, correspondence, memoranda and other records and
documents in the possession or under the control of Defendant relating
to any matters contained in this Final Judgment; and
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division, or the Attorney General of the State
of Arizona, it shall submit such written reports, under oath if
requested, with respect to any of the matters contained in the Final
Judgment.
The parties agree that Defendant shall have the right to be
represented by counsel in any such process.
Any information provided to the Plaintiff under this section of the
Final Judgment shall be kept confidential by the Plaintiffs and shall
not be disclosed to third parties except as necessary to enforce the
Final Judgment or as otherwise previously agreed or required by law.
VII
Term
This Final Judgment shall expire five years from the date of its
entry.
VIII
Public Interest
Entry of this Final Judgment is in the public interest.
Dated this ________ day of ____________________, 1994.
----------------------------------------------------------------------
United States District Judge
Resolution of the Board of Directors of Delta Dental Plan of Arizona,
Inc.
Resolved, that Delta Dental Plan of Arizona, Inc., an Arizona non-
profit corporation, shall enter into the Settlement Agreement and
consent to the entry of a Final Judgment in the form exhibited to the
Board of Directors, copies of which are attached to the minutes of the
meeting at which this Resolution has been adopted.
Certificate
Michael C. Bailey, D.M.D., Secretary of Delta Dental Plan of
Arizona, Inc., an Arizona non-profit corporation, hereby certifies that
there is set forth above the full text of a Resolution of the Board of
Directors of said Delta Dental Plan of Arizona, Inc., duly and
regularly adopted at a meeting of said Board of Directors on August 6,
1994; that copies of the forms of Settlement Agreement and Final
Judgment referred to in said Resolution are attached hereto as Exhibit
``A'' and Exhibit ``B''; and that said Resolution is in full force and
effect and has not been altered, amended or repealed.
Dated: August 6, 1994.
Michael C. Bailey, D.M.D.,
Secretary.
In the United States District Court, District of Arizona
United States of America, and State of Arizona, by and through
its Attorney General Grant Woods, Plaintiffs, vs. Delta Dental Plan
of Arizona, Inc., an Arizona Corporation, Defendant. Filed August
30, 1994. Civil No. 94-1793PHXPGR.
Final Judgment
Whereas, Plaintiff, United States of America and State of Arizona,
through their respective attorneys, filed their Complaint on August 30,
1994, alleging violations of the Sherman Act, 15 U.S.C. Sec. 1 and the
Uniform Arizona Antitrust Act, A.R.S. Sec. 44-1402;
Whereas, the Defendant denies liability;
Whereas, there has been no determination by the Court that a
violation of law has occurred;
Whereas, the Plaintiffs and Defendant, desiring to resolve their
disputes without trial or adjudication of any issue of law or fact,
have entered into a Settlement Agreement dated as of August 25, 1994 in
which they have provided for the entry of this Final Judgment;
Whereas, this Final Judgment shall not be evidence against or an
admission by any party with respect to any issue of fact or law; and
Whereas, this Final Judgment is filed in accordance with the terms
of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, and is a
consent judgment as that term is used in 15 U.S.C. 16(a);
Now Therefore, before the taking of any testimony and without trial
or adjudication of any issue of fact or law herein, it is hereby
Ordered, Adjudged, and Decreed as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting hereto. The Court has
jurisdiction over Count Two of the Complaint pursuant to 28 U.S.C.
1367(a). The Complaint states a claim upon which relief may be granted
against the Defendant under Section 1 of the Sherman Act, 15 U.S.C. 1,
and under A.R.S. Sec. 44-1402.
II
Definitions
As used herein, the term:
(A) ``Defendant'' means Delta Dental Plan of Arizona, Inc., an
Arizona Corporation;
(B) ``Most Favored Nation Clause'' or ``MFN'' means those
provisions in the Defendant's participating dentist agreements that
require that the participating dentist's usual and customary fee be the
lowest fee charged or offered by that dentist to, or received from, any
person or dental plan;
(C) ``Participating Dentist Agreement'' means the Delta Dental
Participating Dentist Agreement and Confidential Fee Listing document
by which Defendant contracts with dentists in the State of Arizona
including all versions, amendments and additions thereto in effect at
any time since January 1, 1990 and during the term of this Final
Judgment.
III
Applicability
(A) This Final Judgment applies to the Defendant and to the
Defendant's officers, employees, members acting as corporate policy
makers, directors, successors, assigns, subsidiaries, divisions and any
other organizational units of any kind, and to all other persons in
active concert or participation with any of them who shall have
received actual notice of the Final Judgment by personal service or
otherwise. Within 60 days of entry, Defendant shall mail a copy of this
Final Judgment to each dentist who was a member as of January 1, 1993.
(B) Nothing herein contained shall suggest that any portion of this
Final Judgment is or has been created for the benefit of any third
party and nothing herein shall be construed to provide any rights to
any third party.
IV
Injunction
(A) Within the State of Arizona, Defendant and its members are
enjoined and restrained from any and all of the following conduct:
(1) Maintaining, adopting, or enforcing an MFN or similar provision
in participating dentist agreements, in corporate by-laws, in rules or
regulations, or by any other means or methods;
(2) Demanding information from dentists about their participation
with any person or other dental plan;
(3) Examining, auditing, or monitoring the fees a dentist charges
to any other dental plan or to any person other than a Delta Dental
Plan participant;
(4) Sending written communication to dentists regarding the fees
dentists charge to persons or dental plans other than Defendant's;
(5) Requiring any dentist to identify the dental plans with which
he or she participates;
(6) Seeking any vote of dentists on the levels of reimbursement
Defendant is to pay to its dentists;
(7) Terminating, or discriminating or retaliating against, any
dentist because he or she offers discounted fees to any person or
dental plan;
(8) Differentiating between dentists in payment or other treatment
based on a dentist's discounting of fees; or
(9) Taking any other action, directly or indirectly, to coerce any
dentist to refrain from offering discount fees to any person or dental
plan within the State of Arizona or to refrain from participating in
any dental plan, or to discourage any dentist from offering discount
fees or participating in any dental plan.
However, nothing contained in this Final Judgment shall restrict
Defendant from examining, auditing or monitoring fees a dentist charges
to Defendant, and taking appropriate action, where there is good cause
to believe that a participating dentist may have engaged in
impermissible ``irregularities in billing'' as defined by A.R.S.
Sec. 32-1201.11.
(B) The following underlined language and all similar provisions of
the Confidential Fee Listing and Participating Dentist Agreement shall
be null and void and Defendant shall be entitled to no benefit from it,
direct or indirect, prospective or retroactive:
Confidential Fee Listing
USUAL: A ``usual fee'' for a patient is a fee charged or offered
and intended to be collected by an individual dentist or a group of
dentists; i.e. his/her own usual fee. However, if a dentist or group
of dentists charge a lower fee to patients who are members of any
other individual or group dental care program for the same or
similar service or procedure, the ``usual fee'' shall be deemed to
be the lowest fee charged or offered and received as payment in
full.
Participating Dentist Agreement
5. I agree to charge Delta Dental my usual fees charged to all
my other patients or the amount accepted as payment in full,
whichever is less, for services rendered to Delta Dental's covered
patients, and agree to accept Delta Dental's determination of
reasonable fees for any procedure as full satisfaction of my fee
where my usual fee for such services is determined to be in excess
of the 90th percentile or the customary range of charges made by
dentists of similar training for the same service(s) within the same
geographic area as determined by Delta Dental.
(C) Defendant shall, within fifteen (15) days of the date of the
Settlement Agreement, mail a letter to all participating dentists
containing the language set forth in the Settlement Agreement, and
shall certify to the Plaintiffs in writing, within five (5) days of
mailing, that the letter was sent.
(D) No later than thirty (30) days from the date of entry of this
Final Judgment, Defendant shall pay to the State of Arizona Attorney
General's Antitrust Revolving Fund an amount to be agreed upon by the
parties.
(E) Defendant shall comply in all respects with all provisions of
the Settlement Agreement dated August 25, 1994.
V
Retention of Jurisdiction
Jurisdiction is retained by this Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for further orders and directions as may be necessary or
appropriate to carry out or construe this Final Judgment, modify it on
the basis of changed circumstances, terminate any of its provisions,
enforce compliance, and punish violations of its provisions.
Nothing in this provision shall give standing to any person not a
party to this Final Judgment to seek any relief related to it.
VI
Access to Information
For the purposes of determining or securing compliance with the
Final Judgment, Defendant agrees that from time to time;
(A) Duly authorized representatives of the United States, upon
written request of the Assistant Attorney General in charge of the
Antitrust Division, or the Attorney General of the State of Arizona,
upon written request of the Attorney General and on reasonable notice
to Defendant, shall be permitted, subject to any legally recognized
privilege, access, during office hours, to inspect and copy all books,
ledgers, accounts, correspondence, memoranda and other records and
documents in the possession or under the control of Defendant relating
to any matters contained in this Final Judgment; and
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division, or the Attorney General of the State
of Arizona, it shall submit such written reports, under oath if
requested, with respect to any of the matters contained in the Final
Judgment.
The parties agree that Defendant shall have the right to be
represented by counsel in any such process.
Any information provided to the Plaintiffs under this section of
the Final Judgment shall be kept confidential by the Plaintiffs and
shall not be disclosed to third parties except as necessary to enforce
the Final Judgment or as otherwise previously agreed or required by
law.
VII
Term
This Final Judgment shall expire five years from the date of its
entry.
VIII
Public Interest
Entry of this Final Judgment is in the public interest.
Dated this ________ day of ____________, 1994.
----------------------------------------------------------------------
United States District Judge
Barbara J. Nelson, Phillip R. Malone, Carla G. Addicks, Antitrust
Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box
36046, 10th Floor, San Francisco, California 94102, (415) 556-6300
Attorneys for the United States
In the United States District Court District of Arizona
United States of America, and State of Arizona, by and through
its Attorney General Grant Woods, Plaintiffs, vs. Delta Dental Plan
of Arizona, Inc., an Arizona Corporation, Defendant. Filed: August
30, 1994. Civil No. 94-1793PHXPGR
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 relating to the proposed Final Judgment (or ``the
Judgment'') submitted for entry against and with the consent of Delta
Dental Plan of Arizona, Inc., an Arizona Corporation, in this civil
antitrust proceeding.
I
Nature and Purpose of the Proceeding
On August 30, 1994, the United States and the State of Arizona,
acting under the direction of their respective Attorneys General, filed
this civil antitrust suit. Count One of the Complaint, brought by both
the United States and the State of Arizona, alleges that Delta Dental
Plan of Arizona, Inc. (``Delta''), an Arizona corporation, and its co-
conspirators conspired to unreasonably restrain competition by
restraining or eliminating discounting of fees for dental services in
violation of Section 1 of the Sherman Act, 15 U.S.C. 1. Count One of
the Complaint asks the Court to find that Delta has violated Section 1
of the Sherman Act, and further requests the Court to enjoin the
continuance of the conspiracy. Count Two of the Complaint is brought
solely by the State of Arizona and alleges a violation of the Uniform
Arizona Antitrust Act, A.R.S. Sec. 44-1402, by the same conduct. This
Competitive Impact Statement addresses only the Court advanced by the
United States, Count One.
Entry of the proposed Final Judgment will terminate the entire
action, except that the Court will retain jurisdiction over the matter
for further proceedings which 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
Defendant Delta is an Arizona corporation with its principal place
of business in Phoenix, Arizona. The majority of the Board of Directors
of Delta is made up of dentists. Delta contracts with businesses,
government agencies, and other organizations to provide pre-paid dental
care coverage to their employees. Delta contracts directly with
dentists or groups of dentists to provide dental services to patients
who are members of these covered groups. Delta compensates its
participating provider dentists for their services on the basis of a
fee for service determined by Delta in part using fee schedules
submitted by each dentist.
Approximately 85 percent of the dentists in the state of Arizona
have provider contracts with Delta. For most of these dentists,
payments received from Delta for treating Delta member patients are a
significant part of their income. Most of these dentists are in
independent, private practice and actually or potentially compete with
other participating Delta dentists to provide dental services to both
Delta and non-Delta patients.
Defendant Delta's participating dentist agreements and confidential
fee listings with dentists participating in its dental plan each
contain what is called a ``most favored nation'' clause (``MFN'').
These clauses on their face require that each dentist charge Delta the
lowest price that dentist charges any patient or competing dental care
plan. If dentists wish to reduce their fees for dental services to any
other plan or patient, the MFN requires them to also reduce their fees
to Delta to the same level. For the reasons described below, however,
the actual effect of the MFN clauses has been to require participating
Delta dentists to charge other dental plans and non-Delta patients fees
that are as high as or higher than the fees the dentists charge to
Delta.
Count One of the Complaint alleges that, beginning at a time
unknown to the Plaintiffs and continuing through at least July 1994,
Delta and its co-conspirators agreed, combined and conspired to
unreasonably restrain or eliminate the discounting of fees for dental
services to competing dental plans or to other consumers of dental
services in violation of Section 1 of the Sherman Act. The Complaint
alleges that, for the purpose and with the effect of forming and
carrying out this conspiracy, Delta and its co-conspirators agreed to
adopt and enforce an MFN in Delta's participating dentist agreements
and confidential fee listings with participating dentists for the
purpose of restraining or eliminating discount fees for dental services
and restricting the ability of dentists to discount their fees, then
enforced the MFN, and coerced dentists into dropping out of discount
dental plans that were attempting to compete with Delta.
Had this case proceeded to trail, the Plaintiffs were prepared to
prove that the conspiracy has unreasonably restrained price competition
among dentists and between other dental insurance plans and Delta.
Delta's adoption and enforcement of the MFN in its agreements with
participating dentists has restrained price competition among Arizona
dentists for the provision of dental services because it has caused
large numbers of dentists to refuse to discount their fees. Before the
MFN was enforced, many Arizona dentists chose to reduce their fees to
participate in various competing managed-care and other discount plans.
For example, at one pint a competing discount plan claimed to have
contracts with over 1000 participating dentists.
After Delta began enforcing the MFN clauses, however, most
participating dentists refused to discount their fees to non-Delta
patients or competing discount dental plans because, if they did, the
MFN would require them to also lower all of their fees to Delta. Since
most dentists in Arizona who participate with Delta receive a
significant portion of their income from treating Delta patients, the
cost to those dentists of discounting their fees to non-Delta patients
or competing dental care programs would be too great to justify
discounting. For the same reason, it would be too costly for most
dentists to drop their participation in Delta's plan in order to avoid
the MFN and be able to discount their fees to competing discount dental
plans. Consequently, the MFN clauses have substantially restrained both
the discounting that previously was occurring and future discounting
that otherwise would have occurred.
The Plaintiffs were also prepared to prove that the conspiracy has
unreasonably restrained competition between other dental insurance
plans and Delta. Delta's vigorous enforcement of the MFN has forced
large numbers of dentists who had previously been discounting their
fees to resign from competing discount dental plans. The MFN has also
prevented those and other dentists from joining competing discount
plans. As a result, the competing discount plans have not been able to
attract and/or keep a sufficiently large, qualified, and geographically
varied panel of dentists necessary to adequately serve their members
and make their plans commercially marketable to employers and other
potential patient groups. Many competing plans were about to be forced
out of business or had in fact seen their ability to attract and serve
patient groups severely restricted, leading to a substantial reduction
in competition with Delta.
The conspiracy has deprived Arizona dental consumers of the
benefits of free and open competition. Delta's activities have deprived
consumers of price competition among dentists who are no longer
discounting their fees. The conspiracy has also denied patients the
opportunity to choose among competing dental insurance plans offering
different combinations of dentists, services, and price. This reduction
in the availability of dental coverage alternatives, such as managed
care and other discount plans, has substantially reduced the cost
savings to consumers that such competing plans could provide if they
were able to contract for dentists' services at discounted fees. In
fact, in some smaller Arizona communities, all of the dentists
providing services to patients under competing discount plans have
resigned from those plans as a result of Delta's enforcement of the
MFN, leaving consumers there without any access to lower-cost dental
services.
The anticompetitive effects of the Delta MFN would not be mitigated
by any willingness or ability of competing plans to raise their
payments to participating dentists up to the level of the Delta
payments. If other plans did so, they would no longer be achieving the
same cost savings to pass on to dental care consumers. The MFN would
still cause increased costs to consumers and would not result in Delta
obtaining any reduction in its fees or costs.
Explanation of the Proposed Final Judgment
The Plaintiffs 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 of any party with respect to 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 VIII of the proposed Final Judgment sets forth such a finding.
The proposed Final Judgment is accompanied by a Settlement
Agreement between Plaintiffs and Delta. Section IV. (E) of the Final
Judgment requires Delta to comply with all the terms of this Settlement
Agreement. Paragraph 3 of the Settlement Agreement sets forth the
parties' stipulation that the proposed Final Judgment may be entered
when appropriate.
The proposed Final Judgment is intended to ensure that Delta
eliminates its MFN and stops all similar practices that unreasonably
restrain competition among dentists and dental care plans in the state
of Arizona.
A. Scope of the Proposed Final Judgment
Section III of the proposed Final Judgment provides that the Final
Judgment shall apply to Delta and to its officers, employees, members
acting as corporate policy makes, directors, successors, assigns,
subsidiaries, divisions and other organizational units, and to all
other persons in active concert or participation with any of them who
shall have received actual notice of the Final Judgment by personal
service or otherwise.
B. Prohibitions and Obligations
Under Section IV of the proposed Final Judgment, Delta is enjoined
and restrained for a period of five years from maintaining, enforcing,
or adopting an MFN or similar provision in its participating dentist
agreements, in its corporate by-laws, in rules or regulations, or by
any other means or methods. Other provisions of the Final Judgment
ensure that the MFN's anticompetitive purpose or effects cannot be
achieved in other ways. Specifically, delta is further enjoined and
restrained from: (1) Demanding information from dentists about their
participation with any person or other dental plan; (2) examining,
auditing, or monitoring the fees a dentist charges to any person or to
any other dental plan; (3) sending any written communication to
dentists regarding the fees dentists charge to persons or dental plans
other than the Defendant's; (4) requiring any dentist to identify the
dental plans with which he or she participates; (5) seeking any vote of
dentists on the levels of reimbursement that the Defendant is to pay to
its dentists; (6) terminating, or discriminating or retaliating
against, any dentist because he or she offers discounted fees to any
person or dental plan; (7) differentiating between dentists in payment
or other treatment based on a dentist's discounting of fees; and (8)
taking any other action, directly or indirectly, to coerce any dentist
to refrain from offering discount fees to any person or dental plan
within the State of Arizona or to refrain from participating in any
dental plan, or to discourage any dentist from offering discount fees
or participating in any dental plan.
Section IV.(B) of the Final Judgment declares that specified
portions of Delta's Confidential Fee Listing and Participating Dentist
Agreement which constitute the MFN provisions, or any similar
provisions, are null and void.
The Final Judgment excepts from its terms, and does not prohibit,
Delta's auditing of dentists' fees for the purpose of determining
compliance with A.R.S. Sec. 32-1201.11, an Arizona state law relating
to fraudulent billing.
The Final Judgment requires that, within 60 days of entry of the
Final Judgment, Delta provide a copy of the Final Judgment to all
dentists who were Delta members on January 1, 1993. (Section III.(A)).
Section IV.(C) of the Final Judgment obligates Delta to mail to all
participating dentists, within 15 days of the date of the Settlement
Agreement, a letter containing specific language set forth in Paragraph
9 of the Settlement Agreement. That language advises dentists, among
other things, that the MFN pricing provisions in the Delta provider
agreements are void; that the dentists are free to offer discounts to
and to associate with, and to offer any price they want, to any person
or dental plan in Arizona; and that Delta will not discriminate or
retaliate against any dentist based on that dentist's participation
with a discount dental plan. The language of the letter also advises
dentists that, if they have been terminated as Delta members because of
failure to honor the MFN provision, they will be reinstated if they so
choose.
The Judgment also provides that the United States and Arizona will
have access to information to enforce the judgment. (Section VI).
C. Effect of the Proposed Final Judgment on Competition
The relief required by the proposed Final Judgment will enjoin and
eliminate a substantial restraint on price competition among dentists
and between Delta and other dental plans in Arizona, by removing the
limitations imposed by the MFN on dentists abilities to discount their
fees and to join discount dental coverage plans if they so choose. The
Judgment will stop the conspiracy between Delta and its co-conspirators
by eliminating the anticompetitive MFN, and by preventing Delta and its
co-conspirators from taking any other action to dissuade or discourage
dentists from discounting or participating in competing dental plans.
As a result, the conspiracy will no longer hamper discount dental
plans' efforts to attract and maintain viable panels of dentists to
serve their members. At the same time, Delta will still be able to
compete with other dental plans because it will not be restricted from
seeking and achieving lower-cost fees through other, legitimate means.
Significant discounting and price competition was occurring before
enforcement of the MFN. Because the MFN is the mechanism that has been
used to restrain or eliminate that discounting and to prevent discount
plans from retaining participating dentists eliminating the MFN and
similar restrictions will restore the competition lost as a result of
the conspiracy. Additional relief, such as requiring changes in the
dentist control of Delta's board, is not warranted since the Department
of Justice discovered no evidence in this case that competition was
suppressed by circumstances other than Delta's adoption and enforcement
of the MFN.
The prohibitions and obligations in the proposed Final Judgment
will restore to dental consumers in Arizona the benefits of free and
open competition that were suppressed by Delta's adoption and
enforcement of the MFN. Without the Delta MFN, consumers should have
access to a greater and more meaningful selection of dental insurance
alternatives. Discount dental plans should be able to achieve cost
savings which they can pass on to consumers.
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. In the view of the Department of
Justice such a trial would involve substantial cost to the United
States and is not warranted because the proposed Final Judgment
provides all the relief that is needed to remedy the violations of the
Sherman Act alleged in the United States 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 the
Defendant in this matter.
VI
Procedures Available for Modification of the Proposed Judgment
As provided by the Antitrust Procedures and Penalties Act, any
person believing that the proposed judgment should be modified may
submit written comments to Gary R. Spratling, Chief, San Francisco
Office Department of Justice, Antitrust Division, 450 Golden Gate
Avenue, San Francisco, California 94102, within the 60-day period
provided by the Act. These comments, 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 3 of
the Settlement Agreement, to withdraw its consent to the proposed
judgment at any time prior to its entry if the Department should
determine that some modification of the judgment is necessary to the
public interest. The proposed 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. Sec. 16(b), were
considered in formulating the proposed Judgment. Consequently, none are
filed herewith.
Dated: August 25, 1994.
Respectfully submitted,
Barbara J. Nelson,
Philllip R. Malone,
Carla G. Addicks,
Antitrust Division, U.S. Department of Justice, 450 Golden Gate Avenue,
Box 36046, 10th Floor, San Francisco, California 94102, (415) 556-6300.
Attorneys for the United States.
[FR Doc. 94-22844 Filed 9-14-94; 8:45 am]
BILLING CODE 4410-01-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.