Proposed Final Judgment and Competitive Impact Statement

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 proposed Final Judgments,

Stipulations, and a Competitive Impact Statement have been filed with

the United States District Court for the District of Utah in United

States v. Utah Society For Healthcare Human Resources Administration,

et al., Civil No. 94C282G as to the Utah Society For Healthcare Human

Resource Administration; the Utah Hospital Association; St. Benedict's

Hospital; IHC Hospitals, Inc.; Holy Cross Hospital of Salt Lake City;

Pioneer Valley Hospital, Inc.; Lakeview Hospital, Inc.; Mountain View

Hospital, Inc.; Brigham City Community Hospital, Inc.; and HCA Health

Services of Utah, Inc.

d/b/a St. Mark's Hospital.

The Complaint alleges that the defendants conspired to exchange

wage information about registered nurses with the purpose and effect of

stabilizing and lowering registered-nurse wages in Salt Lake County,

Utah.

The proposed Final Judgments prohibit the defendants from

continuing their conspiracy, and also require defendants to establish

comprehensive antitrust compliance programs.

Public comment on the proposed Final Judgments is invited within

the statutory 60-day comment period. Such comments and responses

thereto will be published in the Federal Register and filed with the

Court. Comments should be directed to Gail Kursh, Chief, Professions

and Intellectual Property Section, room 9903, U.S. Department of

Justice, Antitrust Division, 555 4th Street NW., Washington, DC 20001

(telephone: 202/307-5799).

Joseph H. Widmar,

Deputy Assistant Attorney General, Antitrust Division.

In the United States District Court, District of Utah, Central

Division

United States of America, Plaintiff, v. Utah Society for Healthcare

Human Resources Administration; Utah Hospital Association; St.

Benedict's Hospital; IHC Hospitals, Inc.; Holy Cross Hospital of Salt

Lake City; Pioneer Valley Hospital, Inc.; Lakeview Hospital, Inc.;

Mountain View Hospital, Inc.; Brigham City Community Hospital, Inc.;

and HCA Health Services of Utah, Inc. d/b/a St. Mark's Hospital,

Defendants.; Stipulation

Civil Action No.

Filed:

It is stipulated by and between the undersigned parties, by their

respective attorneys, that:

1. The parties to this Stipulation consent that a Final Judgment in

the form attached may be filed and entered by the Court, upon any

party's or 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), without further notice to any party or other proceedings,

provided that plaintiff has not withdrawn its consent, which it may do

at any time before entry of the proposed Final Judgment by serving

notice on the defendants and by filing that notice with the Court.

2. If plaintiff withdraws its consent or the proposed Final

Judgment is not entered pursuant to this Stipulation, this Stipulation

shall be of no effect whatever and its making shall be without

prejudice to any party in this or any other proceeding.

Dated: March 14, 1994.

For the Plaintiff:

Anne K. Bingaman,

Assistant Attorney General.

Joseph H. Widmar,

Gail Kursh,

Attorneys, U.S. Department of Justice.

Edward D. Eliasberg, Jr.,

Karen L. Gable,

Jesse M. Caplan,

Kenneth M. Dintzer,

Attorneys, U.S. Department of Justice, 555 4th Street, NW., Washington,

DC 20001, 202/307-0808.

Gail Kursh,

Attorneys, U.S. Department of Justice.

For the Defendants.

Brent D. Ward, Esq.,

Attorney for Utah Hospital Association.

Jesse M. Caplan,

Kenneth M. Dintzer,

Attorneys, U.S. Department of Justice, 555 4th Street NW., Washington,

DC 20001, (202) 307-0808.

Final Judgment

Plaintiff, United States of America, having filed its Complaint on

March 14, 1994, and plaintiff and defendant, by their respective

attorneys, having consented to the entry of this Final Judgment without

trial or adjudication of any issue of fact or law, and without this

Final Judgment constituting any evidence against or an admission by

defendant to any such issue;

Now, therefore, before the taking of any testimony and without

trial or adjudication of any issue of fact or law, and upon consent of

the parties, 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 to this Final Judgment. 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.

II

Applicability

This Final Judgment applies to the defendant and to each of its

officers, directors, agents, employees, successors, and assigns, and to

all other persons in active concert or participation with any of them

who receive actual notice of this Final Judgment by personal service or

otherwise.

III

Definitions

As used in this Final Judgment: (A) ``Actual pay rate'' means the

actual pay rate for any employee or class of employees in a specific

job being evaluated.

(B) ``Average pay rate'' means the rate determined by calculating

the average pay of all the employees in a specific job being evaluated.

(C) ``Compensation'' means any component of payment for employee

services, including, but not limited to, wages, salaries, benefits,

shift differentials, hourly and per diem rates, hiring formulas,

payroll budget information, and the frequency or timing of changes in

any of these components of payment.

(D) ``Current compensation'' means compensation that is actually

being utilized in paying any employee.

(E) ``Defendant'' means Utah Hospital Association.

(F) ``Employee'' means any full-time, part-time, hourly or per diem

employee or independent contractor.

(G) ``Health care facility'' means any entity employing nurses to

provide health care services, including but not limited to, any

hospital, hospital corporation, HMO facility, ambulatory care center,

clinic, first-aid clinic, urgent care center, free standing emergency

care center, ambulatory surgery center, nursing home, home health care,

and nursing service.

(H) ``Historic compensation'' means compensation that was at one

time, but that is no longer, utilized in paying any employee.

(I) ``Nurse'' means any registered or practical nurse, nurse

practitioner, or nurse specialist.

(J) ``Prospective compensation'' means compensation that is planned

or proposed to be utilized in paying any employee.

(K) ``Utah'' means within the State of Utah.

IV

Prohibited Conduct

(A) Defendant is prohibited from: (1) Conducting or facilitating

any exchange or discussion by or between any health care facility

employees of information concerning;

(a) the current or prospective compensation paid to nurses, or

(b) the historic compensation paid to nurses unless a written log

or audio or audio/visual recording of such exchange or discussion is

made; and

(2) communicating to, requesting from, or exchanging with any

health care facility in Utah information concerning the compensation

paid to nurses, except nothing in this subsection shall prohibit the

exchange or discussion of historic compensation as provided in

IV(A)(1).

(B) Nothing in this Final Judgment shall prohibit defendant from

sponsoring, sanctioning, conducting, or publishing a survey of

information concerning the compensation paid to nurses under the

following conditions:

(1) any requests for information and any dissemination of

information in connection with the survey is in writing;

(2) the survey is designed, developed, conducted, or published

without involvement by any representative, agent, or employee of any

health care facility in Utah, except that a representative, agent, or

employee of any health care facility may provide written data in

response to a written request for information in connection with the

survey;

(3) the survey includes only historic or current compensation

information, and does not request or disseminate prospective

compensation information;

(4) the survey does not request actual pay rates when the only

health care facilities that participated in the survey operate in Utah;

the survey may request average pay rates;

(5) the survey only disseminates aggregate data, and either: (a)

Each disseminated statistic is based on input from at least ten (10)

separately owned and operated health care facilities; or

(b) no information about a compensation practice, including a wage

increase, is provided within three months of the adoption of that

practice; each disseminated statistic is based on input from at least

five (5) separately owned and operated health care facilities; and any

information disseminated in such a survey is sufficiently aggregated

that recipients cannot identify the compensation paid by any survey

participant;

(6) for each aggregated statistic, no individual separately owned

and operated health care facility's data represents more than twenty-

five (25) percent on a weighted basis of that statistic; and

(7) representatives, agents, or employees of any health care

facility in Utah do not have access to any unaggregated data produced

in response to any request for information in connection with the

survey.

V

Compliance Program

Defendant is ordered to maintain an antitrust compliance program

which shall include designating, within 30 days of entry of this Final

Judgment, an Antitrust Compliance Officer with responsibility for

accomplishing the antitrust compliance program and with the purpose of

achieving compliance with this Final Judgment. The Antitrust Compliance

Officer shall, on a continuing basis, supervise the review of the

current and proposed activities of the defendant institution to ensure

that it complies with this Final Judgment. The Antitrust Compliance

Officer shall: (A) Distribute, within 60 days from the entry of this

Final Judgment, a copy of this Final Judgment to all officers,

directors, agents, and non-clerical employees of the defendant.

(B) Distribute in a timely manner a copy of this Final Judgment to

any person who succeeds to a position described in Section V(A).

(C) Brief annually those persons designated in Section V(A) and

defendant's general membership on the meaning and requirements of this

Final Judgment and the antitrust laws and advise them that the

defendant's legal advisors are available to confer with them concerning

compliance with this Final Judgment and the antitrust laws.

(D) Obtain from each person then holding one of the positions

designated in Section V(A) an annual written certification that he or

she: (1) Has read, understands, and agrees to abide by the terms of

this Final Judgment;

(2) has been advised and understands that his or her failure to

comply with this Final Judgment may result in conviction for criminal

contempt of court; and

(3) is not aware of any violation of this decree that he or she has

not reported to the Antitrust Compliance Officer.

(E) Distribute, within 60 days from the entry of this Final

Judgment, a copy of this Final Judgment to each health care facility

that is a member of defendant.

(F) Distribute a copy of this Final Judgment to each health care

facility joining defendant as a member within 60 days of that health

care facility joining defendant.

(G) Maintain a record of recipients to whom this Final Judgment has

been distributed and from whom the certifications were obtained, as

required by Section V.

VI

Certification

(A) Within 75 days after the entry of this Final Judgment,

defendant shall certify to the plaintiff whether it has distributed

this Final Judgment and the notification in accordance with section V

above.

(B) For each year of the term of this Final Judgment, defendant

shall file with the plaintiff, on or before the anniversary date of

entry of this Final Judgment, a statement as to the fact and manner of

its compliance with the provisions of section V above.

(C) If defendant's Antitrust Compliance Officer learns of any

violation of section IV of this Final Judgment, the defendant shall

immediately notify the plaintiff and forthwith take appropriate action

to determinate or modify the activity so as to comply with this Final

Judgment.

VII

Inspection

(A) For the purpose of determining or securing compliance with this

Final Judgment, and subject to any legally recognized privilege, duly

authorized representatives of the Department of Justice shall, upon

written request of the Assistant Attorney General in charge of the

Antitrust Division, and on reasonable notice to defendant be permitted:

(1) Access during that defendant's office hours to inspect and copy all

records and documents in its possession or control relating to any

matters contained in this Final Judgment;

(2) to interview that defendant's officers, directors, employees

and agents concerning such matters. The interviews shall be subject to

the defendant's reasonable convenience and without restraint or

interference from the defendant. Counsel for the defendant or counsel

for the individual interviewed may be present at the interview.

(B) Upon the written request of the Assistant Attorney General in

charge of the Antitrust Division, defendant shall submit such written

reports, under oath if requested, relating to any of the matters

contained in this Final Judgment as may be requested.

(C) No information or documents obtained by the means provided in

this section VII shall be divulged by the plaintiff to any person other

than a duly authorized representative of the Executive Branch of the

United States, except in the course of legal proceedings to which the

United States is a party, or for the purpose of securing compliance

with this Final Judgment, or as otherwise required by law.

VIII

Term

This Final Judgment shall expire five (5) years from the date of

entry.

IX

Power to Modify

Jurisdiction is retained by this Court to enable any of the parties

to apply to this Court at any time for such further orders and

directions as may be necessary or appropriate to carry out or construe

this Final Judgment, to modify or terminate any of its provisions, to

enforce compliance, and to punish violations of its provisions.

X

Public Interest

Entry of this Final Judgment is in the public interest.

Dated:

----------------------------------------------------------------------

United States District Judge

Stipulation

It is stipulated by and between the undersigned parties, by their

respective attorneys, that:

1. The parties to this Stipulation consent that Final Judgment in

the form attached may be filed and entered by the Court, upon any

party's or 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), without further notice to any party or other proceedings,

provided that plaintiff has not withdrawn its consent, which it may do

at any time before entry of the proposed Final Judgment by serving

notice on the defendants and by filing that notice with the Court.

2. If plaintiff withdraws its consent or the proposed Final

Judgment is not entered pursuant to this Stipulation, this Stipulation

shall be of no effect whatever and its making shall be without

prejudice to any party in this or any other proceeding.

Dated: March 14, 1994.

For the Plaintiff.

Anne K. Bingaman,

Assistant Attorney General.

Joseph H. Widmar,

Gail Kursh,

Attorneys, U.S. Department of Justice.

Edward D. Eliasberg, Jr.,

Karen L. Gable,

Jesse M. Caplan,

Kenneth M. Dintzer,

Attorneys, U.S. Department of Justice, 555 4th Street NW., Washington,

DC 20001, 202/307-0808.

For the Defendants:

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Counsel for Pioneer Valley Hospital, Inc.; Mountain View Hospital,

Inc.; Lakeview Hospital, Inc.; and Brigham City Community Hospital,

Inc.

----------------------------------------------------------------------

Counsel for HCA Health Services of Utah d/b/a St. Marks's Hospital.

David L. Jones,

President, for Holy Cross Hospital of Salt Lake City; and St.

Benedict's Hospital.

For the Defendants.

Robert D. Paul,

Shaw, Pittman, Potts & Trowbridge.

Richard W. Casey,

Giauque, Crockett, Bendinger & Peterson Counsel for IHC Hospitals, Inc.

For the Defendants.

Robert C. Jones,

Counsel for Pioneer Valley Hospital, Inc.; Lakeview Hospital, Inc.;

Mountain View Hospital, Inc.; and Brigham City Community Hospital, Inc.

For the Defendants.

Greg Tucker,

Counsel for HCA Health Services of Utah, Inc. d/b/a St. Mark's

Hospital.

Final Judgment

Plaintiff, United States of America, having filed its Complaint on

March 14, 1994, and plaintiff and defendants, by their respective

attorneys, having consented to the entry of this Final Judgment without

trial or adjudication of any issue of fact or law, and without this

Final Judgment constituting any evidence against or an admission by

defendants to any such issue;

Now, therefore, before the taking of any testimony and without

trial or adjudication of any issue of fact or law, and upon consent of

the parties, 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 to this Final Judgment. The

Complaint states a claim upon which relief may be granted against the

defendants under Section 1 of the Sherman Act, 15 U.S.C. 1.

Jurisdiction is retained by this Court to enable any of the parties to

this Final Judgment to apply to this Court at any time for such further

orders and directions as may be necessary or appropriate to carry out

or construe this Final Judgment, to modify or terminate any of its

provisions, to enforce compliance, and to punish violations of its

provisions.

II

Applicability

This Final Judgment applies to each defendant and to each of its

trustees, officers, directors, agents, employees, successors, and

assigns, and to all other persons in active concert or participation

with any of them who receive actual notice of this Final Judgment by

personal service or otherwise except that: (A) The provisions of

Section IV (A)(1)-(3) do not apply to the communications of a nurse

employee of any hospital defendant that are exclusively for the purpose

of, and are ancillary to, and reasonably necessary for, the seeking or

holding of individual employment as a nurse, and

(B) For HCA Health Services of Utah, Inc. d/b/a St. Mark's

Hospital, the provisions of Sections V, VI, and VII apply only to

defendant HCA Health Services of Utah, Inc. d/b/a St. Mark's Hospital

and to any party who may succeed to the ownership of St. Mark's

Hospital.

III

Definitions

As used in this Final Judgment: (A) ``Actual pay rate'' means the

actual pay rate for any employee or class of employees in a specific

job being evaluated.

(B) ``Average pay rate'' means the rate determined by calculating

the average pay of all the employees in a specific job being evaluated.

(C) ``Compensation'' means any component of payment for employee

services, including, but not limited to, wages, salaries, benefits,

shift differentials, hourly and per diem rates, hiring formulas,

payroll budget information, and the frequency or timing of any of these

components of payment.

(D) ``Current compensation'' means compensation that is actually

being utilized in paying any employee.

(E) ``Defendants'' means St. Benedict's Hospital; IHC Hospitals,

Inc., and IHC Hospitals, Inc. d/b/a LDS Hospital, Primary Children's

Medical Center, Cottonwood Hospital Medical Center, Alta View Hospital,

and Wasatch Canyons Hospital (``IHC''); Holy Cross Hospital of Salt

Lake City; Pioneer Valley Hospital, Inc. d/b/a Pioneer Valley Hospital;

Lakeview Hospital, Inc. d/b/a Lakeview Hospital; Mountain View

Hospital, Inc. d/b/a Mountain View Hospital; Brigham City Community

Hospital, Inc.

d/b/a Brigham City Community Hospital; and HCA Health Services of Utah,

Inc. d/b/a St. Marks Hospital.

(F) ``Employee'' means any full-time, part-time, hourly or per diem

employee.

(G) ``Health care facility'' means any entity employing nurses to

provide health care services, except that, for each defendant, the term

does not include its own parent corporation and any entity owned or

controlled, by means of corporate membership or otherwise, either

directly or indirectly by the defendant or its parent.

(H) ``Historic compensation'' means compensation that was at one

time, but that is no longer, utilized in paying any employee.

(I) ``Hospital defendant'' means any defendant employing nurses to

provide health care services.

(J) ``Joint venture'' means a joint arrangement in which two or

more health care facilities pool their resources to finance a venture

and substantially share in the risk of adverse financial results.

(K) ``Nurse'' means any registered or practical nurse, nurse

practitioner, or nurse specialist, whether an employee or independent

contractor.

(L) ``Prospective compensation'' means compensation that a

defendant or health care facility plans or proposes to pay any

employee.

(M) ``Utah'' means within the State of Utah.

IV

Prohibited Conduct

(A) Except as provided for by Section IV(B) and (C), each hospital

defendant is prohibited from: (1) agreeing with any other health care

facility in Utah to fix, limit, or maintain the compensation paid to

nurses;

(2) agreeing with any other health care facility in Utah to

communicate or exchange information concerning the current or

prospective compensation paid to nurses; or

(3) communicating to, requesting from, or exchanging with any other

health care facility in Utah or third party, other than one owned

directly or indirectly by the hospital defendant or its parent,

information concerning the current or prospective compensation paid to

nurses.

(B) Nothing in this Final Judgment shall prohibit any hospital

defendant from: (1) Communicating its own historic or current

compensation information exclusively for the purpose of recruiting

nurses for employment;

(2) communicating its own prospective compensation information to

an individual nurse in connection with an offer or discussion of

employment;

(3) providing or receiving historic or current compensation

information to or from a third party, other than a health care facility

in Utah, in response to a compensation survey conducted in accordance

with the conditions detailed in either (a) or (b) below: (a) Any

requests for information and any dissemination of information in

connection with the survey are in writing, and: (i) The survey is

conducted and published without involvement by any representative,

agent, independent contractor, or employee of any hospital defendant or

any health care facility in Utah, except that a representative, agent,

or employee of any hospital defendant or any health care facility may

communicate individually and separately with the third party

responsible for conducting and publishing the survey concerning the

design and development of the survey, and may provide written data in

response to a written request for information in connection with the

survey;

(ii) the survey includes only historic or current compensation

information, and does not request or disseminate prospective

compensation information;

(iii) the survey does not request or disseminate actual pay rates

when the only health care facilities that participated in the survey

operate in Utah. The survey, however, may request and disseminate

average pay rates;

(iv) the survey disseminates only aggregate data, and either:

(iv.a) Each disseminated statistic is based on data from at least ten

(10) separately owned and operated health care facilities; or

(iv.b) no information about a compensation practice, including a

wage increase, is provided by a survey participant within three months

of the adoption of that practice; each disseminated statistic is based

on data from at least five (5) separately owned and operated health

care facilities; and any information disseminated in such a survey is

sufficiently aggregated that recipients cannot identify the

compensation paid by any survey participant;

(v) no individual separately owned and operated health care

facility's data represent more than twenty-five (25) percent on a

weighted basis of each aggregated statistic; and

(vi) representatives, agents, independent contractors, or employees

of any hospital defendant or any health care facility in Utah do not

have access to any unaggregated data produced in response to any

request for information in connection with the survey; or

(b) any compensation information is provided in writing, and the

defendant hospital has received written assurance that the survey will

be conducted in accordance with the conditions detailed below: (i) The

survey disseminates aggregate data only, from a sufficiently large

number of participants that data cannot be identified with any

particular health care facility or health care facility chain;

(ii) representatives, agents, or employees of any health care

facility in Utah (excluding the third party conducting the survey) do

not have access to any unaggregated data produced in response to any

request for information in connection with the survey; and

(iii) if a majority of the health care facilities that participated

in the survey operate or are headquartered in Utah, the survey may not

identify the facilities that participated in the survey, may not

disseminate entry level rates for a particular position, and may only

disseminate the average pay rate for that position;

(4) communicating any compensation information to a person, except

as described and limited in Section IV(B)(1)-(3), provided that: (a) No

information is directly or indirectly conveyed to the Utah Hospital

Association, the Utah Society for Healthcare Human Resources

Administration, or to any health care facility in Utah;

(b) the defendant advises the person of the existence of this Final

Judgment;

(c) the hospital defendant requires, if within its power, or

requests if not, that any current or prospective compensation

information provided not be communicated to another health care

facility in Utah; and

(d) except when subject to subpoena or other legal compulsion, the

information is not provided for the purpose of analyzing or setting any

compensation practice for any party except the hospital defendant

providing the information; or

(5) participating in a joint venture to provide health care

services and engaging in conduct, including setting the salaries of

nurses of the joint venture, that is ancillary to, and reasonably

necessary to achieve the benefits of, the joint venture, provided that

the joint venture is not formed for the primary purpose of purchasing

nursing services.

(C) Nothing in this Final Judgment shall prohibit incidental and

nonsystematic communication between nurses in the employ of hospital

defendants, provided these communications are not performed at the

request, direction, suggestion, or order of a head nurse or any person

listed in V(A), and the nurse has no role in setting nurse

compensation.

V

Compliance Program

Each defendant is ordered to maintain an antitrust compliance

program which shall include designating, within 30 days of entry of

this Final Judgment, an Antitrust Compliance Officer with

responsibility for accomplishing the antitrust compliance program and

with the purposes of achieving compliance with this Final Judgment.

Each Antitrust Compliance Officer shall, on a continuing basis,

supervise the review of the current and proposed activities of his or

her defendant institution to ensure that it complies with the Final

Judgment. Each defendant's Antitrust Compliance Officer shall:

(A) Distribute, within 60 days from the entry of this Final

Judgment, a copy of this Final Judgment to all trustees, officers,

directors, administrators, assistant administrators, chief financial

officers, non-clerical human resources and compensation staff,

directors of nursing, and nurse recruiters of his or her defendant

institution, except, for IHC this subsection applies to all trustees,

officers, and non-clerical human resources and compensation staff at

the Central Office of IHC Hospitals, Inc. and the administrators,

assistant administrators, chief financial officers, non-clerical human

resources and compensation staff, directors of nursing, and nurse

recruiters of the defendant IHC hospitals in Salt Lake County.

(B) Distribute in a timely manner a copy of this Final Judgment to

any person who succeeds to a position described in Section V(A).

(C) Brief annually those persons then holding the positions

designated in Section V(A) on the meaning and requirements of this

Final Judgment and the antitrust laws and advise them that the

defendant's legal advisors are available to confer with them concerning

compliance with the Final Judgment and the antitrust laws.

(D) Obtain from each person then holding one of the positions

designated in Section V(A) an annual written certification that he or

she: (1) Has read, understands, and agrees to abide by the terms of

this Final Judgment;

(2) has been advised and understands that his or her failure to

comply with this Final Judgment may result in conviction for criminal

contempt of court; and

(3) is not aware of any violation of this decree that he or she has

not reported to the Antitrust Compliance Officer.

(E) Maintain a record of recipients to whom the Final Judgment has

been distributed and from whom the certifications obtained, as required

by Section V(D).

VI

Certification

(A) Within 75 days after the entry of this Final Judgment, each

defendant shall certify to the plaintiff whether it has distributed

this Final Judgment and the notification in accordance with Section V

above.

(B) For each year of the term of this Final Judgment, each

defendant shall file with the plaintiff, on or before the anniversary

date of entry of this Final Judgment, a statement as to the fact and

manner of its compliance with the provisions of Section V above.

(C) If at any time a defendant's Antitrust Compliance Officer

learns of any violation of Section IV of this Final Judgment, that

defendant shall immediately notify the plaintiff and forthwith take

appropriate action to terminate or modify the activity so as to comply

with this Final Judgment.

VII

Inspection

(A) To determine or secure compliance with this Final Judgment, and

subject to any legally recognized privilege, duly authorized

representatives of the Department of Justice shall, upon written

request of the Assistant Attorney General in charge of the Antitrust

Division, and on reasonable notice to any defendant, be permitted: (1)

Access during that defendant's administrative office hours to inspect

and copy all records and documents in its possession or control

relating to any matters contained in this Final Judgment; and

(2) to interview that defendant's trustees, officers, employees,

and agents concerning such matters. The interviews shall be subject to

the defendant's and individual's reasonable convenience and without

restraint or interference from the defendant. Counsel for the defendant

or counsel for the individual interviewed may be present at the

interview.

(B) Upon the written request of the Assistant Attorney General in

charge of the Antitrust Division, a defendant shall submit such written

reports, under oath if requested, relating to any of the matters

contained in this Final Judgment as may be reasonably requested,

provided that the preparation of such report will not unduly burden the

defendant or disrupt defendant's operations.

(C) No information or documents obtained by the means provided in

this Section VII shall be divulged by the plaintiff to any person other

than a duly authorized representative of the Executive Branch of the

United States, except in the course of legal proceedings to which the

United States is a party, or for the purpose of securing compliance

with this Final Judgment, or as otherwise required by law.

VIII

Term

This Final Judgment shall expire five (5) years from the date of

entry.

IX

Opportunity to Modify

(A) If, subsequent to the entry of this Final Judgment, a

stipulated final judgment in this matter incorporating different items

is filed with respect to another hospital defendant, or if this Final

Judgment or a subsequently filed stipulated final judgment with respect

to a hospital defendant in this matter is modified to include different

terms, any hospital defendant, in its sole discretion, may move this

Court to substitute such different terms.

(B) Any hospital defendant may move the Court to apply this Final

Judgment in lieu of any other stipulated final judgment in this matter,

for any other hospital that hospital defendant, or its parent,

acquires. In addition, any hospital defendant shall move this Court to

apply this Final Judgment to any other hospital that it or its parent

acquires against which a complaint in this matter is outstanding, in

full settlement of the pending litigation. Either Motion must be made

within thirty (30) days of the acquisition.

(C) The plaintiff will support any motion made in accordance with

this Section.

X

Public Interest

Entry of this Final Judgment is in the public interest.

Dated:

----------------------------------------------------------------------

United States District Judge.

Stipulation

It is stipulated by and between the undersigned parties, by their

respective attorneys, that:

1. The parties to this Stipulation consent that a Final Judgment in

the form attached may be filed and entered by the Court, upon any

party's or 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), without further notice to any party or other proceedings,

provided that plaintiff has not withdrawn its consent, which it may do

at any time before entry of the proposed Final Judgment by serving

notice on the defendants and by filing that notice with the Court.

2. If plaintiff withdraws its consent or the proposed Final

Judgment is not entered pursuant to this Stipulation, this Stipulation

shall be of no effect whatever and its making shall be without

prejudice to any party in this or any other proceeding.

Dated: March 14, 1994.

For the Plaintiff.

Anne K. Bingaman,

Assistant Attorney General.

Joseph H. Widmar,

Gail Kursh,

Attorneys, U.S. Department of Justice.

Edward D. Eliasberg, Jr.

Karen L. Gable,

Jesse M. Caplan,

Kenneth M. Dintzer,

Attorneys, U.S. Department of Justice, 555 4th Street, NW., Washington,

DC 20001, 202/307-0808.

For the Defendants.

Jay Gurmankin,

Counsel for Utah Society For Healthcare Human Resources Administration.

Final Judgment

Plaintiff, United States of America, having filed its Complaint on

March 14, 1994, and plaintiff and defendant, by their respective

attorneys, having consented to the entry of this Final Judgment without

trial or adjudication of any issue of fact or law, and without this

Final Judgment constituting any evidence against or an admission by

defendant to any such issue;

Now, therefore, before the taking of any testimony and without

trial or adjudication of any issue of fact or law, and upon consent of

the parties, 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 to this Final Judgment. 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.

II

Applicability

This Final Judgment applies to the defendant and to each of its

officers, directors, agents, employees, successors, and assigns, and to

all other persons in active concert or participation with any of them

who receive actual notice of this Final Judgment by personal service or

otherwise.

III

Definitions

As used in this Final Judgment: (A) ``Compensation'' means any

component of payment for employee services, including, but not limited

to, wages, salaries, benefits, shift differentials, hourly and per diem

rates, hiring formulas, payroll budget information, and the frequency

or timing of changes in any of these components of payment.

(B) ``Current compensation'' means compensation that a defendant or

health care facility currently pays to employees.

(C) ``Defendant'' means Utah Society for Healthcare Human Resources

Administration.

(D) ``Employee'' means any full-time, part-time, hourly, or per

diem employee.

(E) ``Health care facility'' means any entity employing nurses to

provide healthcare services.

(F) ``Historic compensation'' means compensation that a defendant

or health care facility no longer pays to employees.

(G) ``Nurse'' means any registered or practical nurse, nurse

practitioner, or nurse specialist, whether an employee or independent

contractor.

(H) ``Person'' means any natural person, corporation, firm,

company, association or other business, legal, or government entity.

(I) ``Prospective compensation'' means compensation that a

defendant or health care facility plans or proposes to pay employees.

IV

Prohibited Conduct

Defendant is prohibited from: (A) Conducting or facilitating any

exchange or discussion by or between any health care facility employees

of information concerning; (1) the current or prospective compensation

paid to nurses, or

(2) the historic compensation paid to nurses unless a written log

or audio or audio/visual recording of such exchange or discussion is

made; and

(b) communicating to, requesting from, or exchanging with any

health care facility in Utah information the compensation paid to

nurses, except nothing in this subsection shall prohibit the exchange

or discussion of historic compensation as provided in IV(A)(2).

V

Compliance Program

Defendant is ordered to maintain an antitrust compliance program

which shall include designating, within 30 days of entry of this Final

Judgment, an Antitrust Compliance Officer with responsibility for

accomplishing the antitrust compliance program and with the purpose of

achieving compliance with this Final Judgment. The Antitrust Compliance

Officer shall, on a continuing basis, supervise the review of the

current and proposed activities of the defendant to ensure that it

complies with the Final Judgment. The Antitrust Compliance Officer

shall: (A) Distribute within 60 days from the entry of this Final

Judgment, a copy of this Final Judgment to each member of defendant;

(B) Distribute a copy of this Final Judgment to each person joining

defendant as a member within 60 days of that person joining defendant;

(C) Hold an annual briefing of defendant's general membership on

the meaning and requirements of this Final Judgment and the antitrust

laws;

(D) Obtain from each of defendant's officers an annual written

certification that he or she: (1) Has read, understands, and agrees to

abide by the terms of this Final Judgment;

(2) has been advised and understands that his or her failure to

comply with this Final Judgment may result in conviction for criminal

contempt of court; and

(3) is not aware of any violation of this decree that he or she has

not reported to the Antitrust Compliance Officer; and

(E) Maintain a record of recipients to whom the Final Judgment has

been distributed and from whom the certifications were obtained as

required by Section V.

VI

Certification

(A) Within 75 days after the entry of this Final Judgment,

defendant shall certify to the plaintiff whether it has distributed

this Final Judgment and the notification in accordance with Section V

above.

(B) For each year of the term of this Final Judgment, defendant

shall file with the plaintiff, on or before the anniversary date of

entry of this Final Judgment, a statement as to the fact and manner of

its compliance with the provisions of Section V above.

(C) If defendant's Antitrust Compliance Officer learns of any

violation of Sections IV of this Final Judgment, defendant shall

immediately notify the plaintiff and forthwith take appropriate action

to terminate or modify the activity so as to comply with this Final

Judgment.

VII

Inspection

(A) For the purpose of determining or securing compliance with this

Final Judgment, and subject to any legally recognized privilege, duly

authorized representatives of the Department of Justice shall, upon

written request of the Assistant Attorney General in charge of the

Antitrust Division, and on reasonable notice to defendant be permitted:

(1) Access during regular business office hours to inspect and copy all

records and documents in its possession or control relating to any

matters contained in this Final Judgment; and

(2) to interview defendant's officers, members, employees, and

agents concerning such matters. The interviews shall be subject to the

defendant's reasonable convenience and without restraint or

interference from the defendant. Counsel for the defendant or counsel

for the individual interviewed may be present at the interview.

(B) Upon the written request of the Assistant Attorney General in

charge of the Antitrust Division, defendant shall submit such written

reports, under oath if requested, relating to any of the matters

contained in this Final Judgment as may be requested.

(C) No information or documents obtained by the means provided in

this Section VII shall be divulged by the plaintiff to any person other

than a duly authorized representative of the Executive Branch of the

United States, except in the course of legal proceedings to which the

United States is a party, or for the purpose of securing compliance

with this Final Judgment, or as otherwise required by law.

VIII

Term

This Final Judgment shall expire five (5) years from the date of

entry.

IX

Power To Modify

Jurisdiction is retained by this Court to enable any of the parties

to apply to this Court at any time for such further orders and

directions as may be necessary or appropriate to carry out or construe

this Final Judgment, to modify or terminate any of its provisions, to

enforce compliance, and to punish violations of its provisions.

X

Public Interest

Entry of this Final Judgment is in the public interest.

Dated:

----------------------------------------------------------------------

United States District Judge

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 three proposed Final Judgments

submitted for entry in this civil antitrust proceeding.

I

Nature and Purpose of the Proceeding

On March 14, 1994, the United States filed a civil antitrust

Complaint alleging that the defendants and co-conspirators unreasonably

conspired to restrain wage competition among themselves in violation of

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

The Complaint alleges that, from at least as early as January, 1984

and continuing through June, 1992, the defendants and co-conspirators

conspired to exchange current and prospective, nonpublic registered-

nurse entry wage information with the purpose and effect of restraining

wage competition for registered nursing services in Salt Lake County,

Utah.

The conspiracy was effectuated through telephone calls and written

surveys between the hospital defendants and co-conspirators, and

through meetings of the Utah Society for Healthcare Human Resources

Administration (``USHHRA'') and the Utah Hospital Association

(``UHA''), both of which consist of human resource directors from the

hospital defendants. The hospital defendants agreed to exchange

prospective and current compensation information. The conspiracy had

the effect of depriving registered nurses in Salt Lake County and

elsewhere in Utah of the benefits of free and open competition in the

purchase of registered nursing services. In addition, the conspiracy

resulted in smaller annual increases in the registered-nurse entry wage

than the hospital defendants would have paid absent the conspiracy.

The Complaint seeks to prevent the defendants from continuing or

renewing the alleged conspiracy, or from engaging in any other

conspiracy, or adopting any practice having a similar purpose of effect

for a period of 5 years.

The defendants will be required to file annual reports with the

Court and the Government certifying that they have complied with the

terms of section V of their respective Final Judgments.

Entry of the proposed Final Judgments will terminate the action

against all the defendants, except that the Court will retain

jurisdiction over the matter for further proceedings that may be

required to interpret, enforce, or modify the Judgment, or to punish

violations of any of its provisions.

II

Description of the Practices Involved in the Alleged Violations

At trial, the Government would have made the following contentions:

1. The hospital defendants, St. Benedict's Hospital, IHC Hospitals,

Inc. (``IHC''), Holy Cross Hospital of Salt Lake City, Pioneer Valley

Hospital, Inc., Lakeview Hospital, Inc., Mountain View Hospital, Inc.,

Brigham City Community Hospital, Inc., and HCA Health Services of Utah,

Inc. d/b/a St. Mark's Hospital, provide and sell general acute-care

hospital services and recruit and hire nurses. The hospital defendants

located in Salt Lake County compete with each other in recruiting and

hiring nurses and purchase approximately 75% of the registered nursing

services in that County.

2. On a regular basis, the hospital defendants telephoned one

another and exchanged nonpublic prospective and current wage and budget

information for nurses. On a number of occasions, hospital defendants

told each other, including IHC, of their intent to match whatever

registered-nurse entry wage IHC eventually adopted.

3. On at least eight occasions between 1984 and 1992, some or all

of the hospital defendants attended meetings organized by USHHRA for

the express purpose of exchanging nonpublic prospective and current

wage and budget information about registered nursing wages.

4. Annually, IHC collected current and nonpublic prospective wage

and budget information from the other hospital defendants for use in a

published wage survey that was distributed to the other hospitals. IHC

used this information to limit its registered-nurse wage increases.

5. Annually, the UHA collected current and, in some years,

prospective information pursuant to a survey designed by the hospital

defendants. This information was published and distributed to the

hospital defendants, which use this information to limit registered-

nurse wage increases.

6. As a direct result of these wage and budget exchanges, the

hospital defendant's registered-nurse entry wages in Salt Lake County

and elsewhere in Utah were kept artificially low, and registered nurses

were paid these lower wages from 1984 through June, 1992.

III

Explanation of the Proposed Final Judgments

The United States and the defendants have stipulated that the Court

may enter the proposed Final Judgments after compliance with the

Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h). Under the

provisions of section 2(e) of the Antitrust Procedures and Penalties

Act, 15 U.S.C. 16(e), the proposed Final Judgments may not be entered

unless the Court finds that entry is in the public interest. Section X

of each of the three proposed Final Judgments sets forth such a

finding.

The proposed Final Judgments are intended to ensure that the

hospital defendants reach independent decisions about the wages they

pay registered nurses by prohibiting agreements, discussions, or other

communications among competing hospitals of current and prospective

registered nursing wages, and to ensure that USHHRA and the UHA are not

used as forums or means for hospitals to exchange nonpublic prospective

and current wage and budget information about registered nursing wages.

A. Prohibitions and Obligations

The Hospital Defendants' Final Judgment enjoins the hospital

defendants from entering into any agreement with any other health care

facility to fix nursing wages. It also prohibits them from discussing

with any health care facility in Utah or with any third party,

prospective or current budget or nursing wage information, or the

timing of wage increases, except in very limited circumstances when the

communications are solely for the purpose of recruiting or hiring a

nurse.

The Hospital Defendants' Final Judgment further prohibits the

hospital defendants from developing, supervising, or participating in a

salary survey asking for current or prospective wage information

concerning nurses or in which the wage information is presented in a

manner that would allow participants to determine what another health

care facility in Utah is, has been, or will be paying its nurses.

The Hospital Defendants' Final Judgment obligates each hospital

defendant to file with plaintiff, on or before each anniversary date of

the Final Judgment, a statement that the defendant has complied with

the terms of the Final Judgment and has had no communications of the

type prohibited under the Final Judgment.

The Hospital Defendants' Final Judgment also provides that an

authorized representative of the Department of Justice may visit the

defendants' offices, after providing reasonable notice, to review their

records and to conduct interviews regarding any matters contained in

the Final Judgment. The defendants may also be required to submit

written reports, under oath, pertaining to the Final Judgment.

The USHHRA Final Judgment prohibits USHHRA from conducting or

facilitating any exchange or discussion by or between any health care

facility employees of information concerning the current or prospective

compensation paid to nurses. It also prohibits USHHRA from conducting

or facilitating any exchange or discussion of information concerning

compensation previously paid to nurses unless a written log or audio or

audio/visual recording of such exchange or discussion is made.

The UHA Final Judgment prohibits the UHA from sponsoring or

facilitating any exchange or discussion by or between any health care

facilities of information concerning the compensation paid to nurses.

The UHA Final Judgment does not, however, prohibit the UHA from

sponsoring or publishing a survey of information concerning the

compensation paid to nurses if, among other things: (1) Any request for

and dissemination of information is in writing, (2) the survey includes

only historic or current compensation information and does not request

or disseminate prospective compensation information, (3) the survey

only disseminates aggregate data that is presented in a manner that

would not allow participants to determine what another health care

facility in Utah is, has been, or will be paying its nurses, and (4)

health care facilities in Utah do not have access to unaggregated data

produced in response to the survey.

The USHHRA and UHA Final Judgments have reporting and visitation

provisions similar to the Hospital Defendants' Final Judgment.

B. Scope of the Proposed Final Judgments

The Hospital Defendants' Final Judgment applies to the hospital

defendants, as well as to each of their trustees, officers, directors,

agents, employees, successors, and assigns, 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. Moreover, pursuant to the terms of the Final Judgment, any

person who becomes a trustee, officer, director, administrator, chief

financial officer, non-clerical human resources and compensation staff

member, director of nursing, or nurse recruiter within 5 years after

the entry of the Final Judgment shall be furnished a copy of the Final

Judgment.

The USHHRA and UHA Final Judgments have applicability and

notification provisions similar to those of the Hospital Defendants'

Final Judgment.

C. Effect of the Proposed Final Judgments on Competition

The relief in the proposed Final Judgments is designed to ensure

that hospitals in Salt Lake County establish their registered-nurse

wages independently and that registered nurses receive competitive

wages. Specifically, the injunction against exchanges of current and

prospective wages and budget information and the reporting requirements

of Section IV and Section VI of the Hospital Defendants' Final Judgment

are designed to eliminate restraints on wage competition among

hospitals in Salt Lake County. The injunction against conducting or

facilitating the exchange of information concerning the compensation

paid to nurses and the reporting requirements of Sections IV and VI of

both the USHHRA and UHA Final Judgments are designed to preclude those

organizations from being forums or means for hospitals to exchange

nonpublic prospective and current wage and budget information about

registered nursing wages.

The Department of Justice believes that these proposed Final

Judgments contain adequate provisions to prevent further violations of

the type described in the Complaint and to remedy the effects of the

alleged conspiracy.

IV

Remedies Available to Potential 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 Judgments will neither impair nor assist

the bringing of such actions. Under the provisions of section 5(a) of

the Clayton Act, 15 U.S.C. 16(a), the Judgments have no prima facie

effect in any subsequent lawsuits that may be brought against the

defendants in this matter.

V

Procedures Available for Modification of the Proposed Judgments

As provided by the Antitrust Procedures and Penalties Act, any

person beliving that the proposed Final Judgments should be modified

may submit written comments to Gail Kursh, Chief, Professions and

Intellectual Property Section, U.S. Department of Justice, Antitrust

Division, 555 4th Street, NW., room 9903, Washington, DC 20001, within

the 60-day period provided by the Act. These comments, and the

Department's responses, 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 to withdraw its consent

to the proposed judgment at any time prior to entry. Section I of each

of the proposed Final Judgments provides that the Court retains

jurisdiction over this action, and the parties may apply to the Court

for any order necessary or appropriate for modification,

interpretation, or enforcement of the Final Judgments.

VI

Alternative to the Proposed Final Judgments

The alternative to the proposed Final Judgments would be a full

trial of the case against the defendants. The Department of Justice

believes that such a trial would involve substantial cost to the United

States and is not warranted since the proposed Final Judgments provide

the relief that the United States seeks in its Complaint.

VII

Determinative Materials and Documents

No materials and documents of the type described in Section 2(b) of

the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b), were

considered in formulating the proposed Final Judgments.

Dated:

Respectfully submitted,

Edward D. Eliasberg, Jr.

Karen L. Gable

Jesse M. Caplan

Kenneth M. Dintzer

Attorney, U.S. Department of Justice, 555 4th Street, NW., Washington,

DC 20001, 202/307-0808.

Certificate of Mailing

I hereby certify that a true and correct copy of the foregoing

Competitive Impact Statement was sent by regular mail on this 14th day

of March, 1994, to:

Jay D. Gurmankin, 1010 Boston Building, #9 Exchange Place, Salt Lake

City, Utah 84111.

Richard W. Casey, Giauque, Crockett, & Bendinger, 500 Kearns Building,

Salt Lake City, Utah 84101.

Robert D. Paul, Thomas C. Hill, Shaw, Pittman, Potts & Trowbridge, 2300

N Street, NW., Washington, DC 20037.

Gordon B. Nash, Jr., Gardner, Carton & Douglas, suite 3400--Quaker

Tower, 321 N. Clark Street, Chicago, IL 60610-3381.

Phillip Proger, Robert Jones, Jones, Day, Reavis & Pogue, 1450 G

Street, NW., Washington, DC 20005-2088.

Greg Tucker, 1 Park Plaza, Nashville, TN 37203.

Brent Ward, Parry, Murray, Ward & Cannon, 1270 Eagle Gate Tower, Salt

Lake City, Utah 84111.

Karen L. Gable,

Attorney, Antitrust Division.

[FR Doc. 94-6987 Filed 3-24-94; 8:45 am]

BILLING CODE 4410-01-M