Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

Proposed Final Judgment and Competitive Impact Statement

In the matter of: United States v. Oregon Dental Service.

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. 16 (b)-(h), that a proposed Final Judgment,

Settlement Agreement, and Competitive Impact Statement have been filed

with the United States District Court for the Northern District of

California in United States of America v. Oregon Dental Service, Civil

Action No. C95 1211 FMS. The Complaint in this case alleges that the

defendant and others engaged in a combination in unreasonable restraint

of interstate trade and commerce in violation of the Sherman Act, 15

U.S.C. 1. The proposed Final Judgment enjoins the defendant for five

years from maintaining, adopting, or enforcing a clause in its

contracts with dentists that requires the dentist to give the defendant

the lowest fees he or she offers to any person or dental plan. It also

enjoins the defendant from taking any other action, directly or

indirectly, to influence or attempt to influence dentists' discounting

of fees or participation in other dental plans. Finally, the proposed

Final Judgment enjoins the defendant from disclosing or in any way

directly revealing to dentists its maximum allowable or acceptable fee

for dental procedures.

Public comment on the proposed Final Judgment is invited within the

statutory 60-day comment period, which runs from the date of this

notice. Such comments, and responses thereto, will be published in the

Federal Register and filed with the Court. Comments should be directed

to Christopher S. Crook, Acting Chief, San Francisco Office, Box 36046,

Antitrust Division, U.S. Department of Justice, San Francisco,

California 94102 (telephone: (415) 556-6300).

Constance K. Robinson,

Director of Operations, Antitrust Division.

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

Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box

36046, 10th Floor, San Francisco, California 94102-3478, (415) 556-

6300, Attorneys for the United States

In the United States District Court Northern District of California

[Civil No. C95 1211 FMS]

In the matter of: United States of America, Plaintiff, v. Oregon

Dental Service, Defendant.

Complaint

The United States of America, acting under the direction of the

Attorney General of the United States, brings this civil action to

obtain equitable and other relief against the defendant named herein,

and complains and alleges as follows:

I. Jurisdiction and Venue

1. This Complaint is filed by the United States under Section 4 of

the Sherman Act; 15 U.S.C. 4, as amended, to prevent and restrain a

continuing violation by the defendant of Section 1 of the Sherman Act,

15 U.S.C. 1.

2. The defendant maintains an office, transacts business, and is

found within the Northern District of California, within the meaning of

15 U.S.C. 22 and 28 U.S.C. 1391(c).

II. Defendant

3. Oregon Dental Service (``ODS''), is a corporation organized and

existing under the laws of the State of Oregon with its principal place

of business in Portland, Oregon. ODS provides dental coverage to

employees of Oregon corporations and others. Certain of those employees

are located in the Northern District of California.

4. ODS is a non-profit corporation whose participating providers

consist of dentists licensed to practice in Oregon and who execute

participating provider agreements with ODS. At material times, dentists

comprised the majority of the Board of Directors of ODS. At material

times, in excess of ninety percent of dentists licensed to practice in

Oregon were participating providers of ODS.

5. Various firms and individuals, not named as defendants in this

Complaint, have entered into agreements with ODS in violation of the

Sherman Act as alleged in this Complaint, and have performed acts and

made statements in furtherance thereof.

III. Trade and Commerce

6. At material times, ODS has engaged in the business of providing

dental insurance coverage. ODS contracts directly with individual

dentists and groups of dentists for the provision of dental services to

persons covered by ODS' dental insurance plans. Participating dentists

agree to comply with the terms of the contractual agreements with ODS,

and to abide by ODS' rules and policies.

7. ODS compensates participating dentists on the basis of submitted

fee schedules. At material times, payments from ODS to Oregon dentists

constituted a significant portion of most individual participating

dentist's receipts from the provision of dental services to patients.

8. At material times, ODS' ``Participating Dentist Rules and

Policies'' contained provisions known as ``most favored nation''

clauses. These provisions stated that, for example, the ``lowest fee

accepted by the Dentist for services to be rendered to any group shall

constitute the Dentist's filed fee scheduled for payment of ODS Health

Plan claims.''

9. ODS' enforcement of the most favored nation clauses in its rules

and policies resulted in most participating dentists' refusal to

discount their fees to non-ODS patients or competing dental plans.

10. ODS' most favored nation clauses have caused significant

numbers of dentists to drop out of or refuse to join competing discount

dental plans. Because such a large percentage of Oregon dentists

participate with ODS' plan, the ODS most favored nation clauses have

resulted in many competing dental plans being unable to attract and/or

retain sufficient numbers of dentists to serve their members.

11. ODS periodically determines the amount it will pay for

procedures to participating dentists based upon fee filings submitted

by the participating dentists. A majority of these dentists used the

fee schedule they filed with ODS as their fee schedule for all other

patients, including those covered by other insurance plans and

uninsured patients.

12. ODS sets the maximum fee allowable for a particular procedure

at the 90th percentile of all fees submitted to it by participating

dentists (the level at or above the fee charged by 90% of participating

dentists). If 10 or fewer of a dentist's submitted fees are above the

90th percentile, ODS notifies the dentist of the amount of the maximum

allowable fee. Most participating dentists file fee schedules proposing

to charge more than the maximum [[Page 21219]] allowable fee for 10 or

fewer procedures; when one of these dentists is advised of the exact

maximum allowable fees, he or she is able to lower the fees no more

than necessary to obtain approval from ODS. If the dentist agrees to

charge the maximum allowable amount, the dentist signs the notification

and returns it to ODS.

13. Most dentists who are participants with ODS are in independent,

private practices and are in actual or potential competition with other

participating dentists for the provision of dental services.

14. At material times, ODS and participating dentists have utilized

interstate banking facilities and purchased not insubstantial

quantities of goods and services from outside the state of Oregon, for

use in providing dental insurance coverage or dental services to

patients.

15. The activities of ODS that are the subject of this Complaint

have been within the flow of, and have substantially affected,

interstate trade and commerce.

IV. Violation Alleged

16. Beginning at a time unknown to the plaintiff and continuing

through at least September 1994, ODS and others engaged in a

combination in unreasonable restraint of interstate trade and commerce

in violation of Section 1 of the Sherman Act, 15 U.S.C. ODS voluntarily

abandoned the combination in September, 1994, but this offense is

likely to recur unless the relief hereinafter sought is granted.

17. For the purpose of forming and effectuating this combination,

ODS did the following things, among others:

(a) Adopted and enforced most favored nation clauses in the

contracts with dentists and in rules and policies the dentists agreed

to abide by, and

(b) Received and disseminated information on the maximum allowable

fees for certain procedures, and obtained signed commitments from

participating dentists to charge the maximum allowable fees.

18. These agreements had the following effects, among others:

(a) Price competition among dentists for the provision of dental

services has been unreasonably restrained and fees for such services

have been stabilized at a level higher than they might otherwise have

been;

(b) Price competition among dental insurance plans has been

unreasonably restrained; and

(c) Consumers of dental services in Oregon have been deprived of

the benefits of free and open competition.

V. Prayer

Wherefore, the plaintiff prays:

1. That the Court adjudge and decree that ODS engaged in an

unlawful combination 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 the Complaint.

2. That ODS, 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 agreements, or from entering into

any other agreement, understanding, plan, program, or other arrangement

having a similar purpose or effect as the alleged agreements.

3. That the United States have such other relief as the nature of

the case may require and the Court may deem just and proper.

Dated: April 10, 1995.

Anne K. Bingaman,

Assistant Attorney General.

Mark C. Schechter,

Deputy Director of Operations.

Christopher S. Crook,

Acting Chief, San Francisco Office. Antitrust Division, U.S. Department

of Justice.

Barbara J. Nelson,

Philip R. Malone,

Carla G. Addicks,

Attorneys, Antitrust Division, U.S. Department of Justice.

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

Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box

36046, 10th Floor, San Francisco, California 94102-3478, (415) 556-

6300, Attorneys for the United States.

In the United States District Court Northern District of California

[Civil No. C95 1211 FMS]

In the matter of: United States of America, Plaintiff, v. Oregon

Dental Service, Defendant.

Stipulation

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

respective attorneys, that:

1. The Court has jurisdiction over the subject matter of this

action and over each of the parties thereto, and venue of this action

is proper in the Northern District of California;

2. The parties consent that a Final Judgment in the form hereto

attached may be filed and entered by the Court, 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 plaintiff 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 the defendant and

by filing that notice with the Court. The parties represent that they

have full authority to enter into this Stipulation.

3. In the event plaintiff United States withdraws its consent or if

the proposed Final Judgment is not entered pursuant to this

Stipulation, this Stipulation shall be of no effect whatever and the

making of this Stipulation shall be without prejudice to any party in

this or any other proceeding.

4. The parties agree that the Final Judgment resolves all disputes

between the parties as to the most favored nation clause and disclosure

of the maximum allowable fees. Plaintiff will not institute further

investigation of ODS with regard to the most favored nation clause or

disclosure of maximum allowable fees so long as ODS remains in

compliance with the terms of the Final Judgment, except for the

purposes of determining or securing compliance with the Final Judgment.

5. ODS agrees to comply with the provisions of the Final Judgment

pending entry of the Final Judgment.

Dated: March 28, 1995.

For the United States:

Barbra J. Nelson,

For the Defendant:

Timothy G. Beckler.

In the United States District Court Northern District of California

In the matter of: United States of America, Plaintiff v. Oregon

Dental Service, Defendant.

[Civil No. C95 1211]

Final Judgment

Whereas, plaintiff, United States of America through its attorney,

filed its Complaint on , 1995, alleging a violation of the Sherman

Act, 15 U.S.C. 1;

Whereas, the defendant denies liability with respect to all matters

subject of the complaint;

Whereas, there has been no determination by the Court that a

violation of law has occurred;

Whereas, the plaintiff and defendant desire to resolve their

disputes without trial or adjudication of any issue of law or fact; and

Whereas, this Final Judgment shall not be evidence against or an

admission by any party with respect to any issue of law or

fact; [[Page 21220]]

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

or adjudication of any issue of law or fact 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 Complaint states a

claim upon which relief may be granted against the defendant under

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

II. Definitions

As used herein, the term:

(A) ``ODS'' means Oregon Dental Service;

(B) ``Most Favored Nation Clause'' or ``MFN'' means those

provisions in the defendant's participating dentist agreements that

prior to September 28, 1994, required that the lowest fee accepted by

the participating dentist for services rendered to any group

constituted the dentist's filed fee schedule for payment of ODS claims.

III. Applicability

(A) This Final Judgment applies to ODS and to ODS' 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. Within 60 days of entry, ODS

shall provide a copy of this Final Judgment by mail or personal service

to ODS' officers, directors and managerial employees. Thereafter, ODS

shall distribute in a timely manner a copy of this Final Judgment to

any new officer, director, or managerial employee.

(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) ODS is enjoined and restrained from:

(1) Maintaining, adopting, or enforcing an MFN or similar provision

in participating dentist agreements or by any other means or methods;

(2) Taking any other action, directly or indirectly, to influence

or attempt to influence any dentist to refrain from offering discount

fees to any person or dental plan or to refrain from participating in

any dental plan;

(3) Disclosing or in any way directly revealing to a dentist or

dentists the maximum allowable or acceptable fee for a dental procedure

or procedures.

V. Retention of Jurisdiction

Jurisdiction is retained by the Court for the purpose of enabling

either party 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, 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, and on reasonable notice to ODS, 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 ODS relating to any matters

contained in this Final Judgment; and

(B) In the event that the plaintiff has reasonable cause to believe

that ODS had not complied with the terms of this Final Judgment, then

upon the written request of the Assistant Attorney General in charge of

the Antitrust Division, ODS shall submit such written reports, under

oath if requested, with respect to any of the matter contained in this

Final Judgment.

ODS 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 plaintiff 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.

Nothing in this Final Judgment prohibits the plaintiff from using

any other investigatory method authorized 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 ____________, 1995.

United States District Judge.

In the United States District Court Northern District of California

In the matter of: United States of America, Plaintiff, v. Oregon

Dental Service, defendant.

[Civil No. C95 1211]

Competitive Impact Statement

Pursuant to Section 2(b) of the Antitrust Procedures and Penalties

Act, 15 U.S.C. Sec. 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 Oregon Dental Service (``ODS'' or ``the defendant'') in this civil

proceeding.

I. Nature and Purpose of the Proceeding

On April 10, 1995, the United States filed this single-count civil

antitrust suit alleging that ODS, an Oregon non-profit corporation

which does business in the Northern District of California, entered

into a combination in unreasonable restraint of trade consisting of

agreements to restrain price competition for dental services in

violation of Section 1 of the Sherman Act, 15 U.S.C. 1. Plaintiff asked

the Court to find that the defendant has violated Section 1 of the

Sherman Act and further asked the Court to enjoin the continuation of

the combination.

Entry of the proposed Final Judgment will terminate the action,

except that the Court will retain jurisdiction over the matter for any

further proceedings required to interpret, enforce or modify the

judgment or to punish violations of any of its provisions.

II. Practices Giving Rise to the Violation

ODS is an Oregon non-profit corporation. ODS' principal place of

business is in Portland, Oregon. It was created by the Oregon Dental

Association, a professional association of dentists. Dentists hold the

majority of positions on ODS' Board of Directors. ODS contracts with

businesses, governmental agencies, and other organizations to provide

pre-paid dental care coverage to their employees. ODS contracts

directly with dentists or groups of dentists to provide dental services

to patients who are members of those covered groups. [[Page 21221]]

ODS compensates its participating provider dentists for their

services on the basis of a fee for service, determined in part through

fee schedules submitted by each dentist. ODS sets its maximum allowable

fee at the 90th percentile of all fees for a procedure submitted to it

by participating dentists. That is, the maximum allowable fee is equal

to or greater than the fees charged by 90% of participating dentists.

If 10 or fewer of a dentist's filed fees are above this 90th

percentile, ODS informs the dentist of the maximum amount that it will

pay for the service. Most participating dentists file fee schedules

proposing to charge above the maximum allowable fee for 10 or fewer

procedures, so they are informed of exactly what fee they may charge

and can avoid lowering their fees more than necessary to receive

payment from ODS. If the dentist agrees to charge that amount, he or

she signs the notification and returns it to ODS.

In excess of 90 percent of the dentists in the state of Oregon have

provider contracts with ODS. For most of these dentist, payments from

treatment of ODS 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 ODS dentists to provide

dental service to both ODS and non-ODS patients.

ODS' participating dentists agree to abide by ODS rules and

policies, which contain what is called a ``most favored nation'' clause

(``MFN''). The MFN requires that each dentist charge ODS the lowest

price that dentist charges any other group. Accordingly, if a dentist

reduces fees to a competing dental plan, the MFN requires that the

dentist also reduce fees to ODS. The United States alleges that the

effect of the MFN has been to require participating ODS dentists to

charge other dental plans and non-ODS patients fees that are as high as

or higher than the fees charged to ODS.

The Complaint alleges that, beginning at a time unknown to the

plaintiff and continuing through at least September 1994, ODS and

others engaged in a combination in unreasonable restraint of interstate

trade and commerce in violation of Section 1 of the Sherman Act, 15

U.S.C. 1. The Complaint alleges that the combination ended in September

1994, when ODS voluntarily terminated the MFN for business reasons.

To form and effectuate this combination, ODS adopted and enforced

an MFN in its rules and policies which dentists were contractually

obligated to adhere to, received and disseminated information on the

maximum allowable fees for certain procedures, and obtained signed

commitments from participating dentists to charge the maximum allowable

fees.

Had this case proceeded to trial, the plaintiff was prepared to

prove that the combination unreasonably restrained price competition

among dentists and between other dental insurance plans and ODS, and

stabilized prices for dental services.

ODS' adoption and enforcement of the MFN restrained price

competition among Oregon dentists for the provision of dental services

because it caused significant numbers of dentists to refuse to discount

their fees. Before the MFN was enforced, certain Oregon dentists had

reduced their fees to ODS competitors in order to participate in the

competitors' managed-care plans. Others had indicated a willingness to

do so.

After ODS began enforcing the MFN, however, most participating

dentists refused to discount their fees to non-ODS patients or

competing discount dental plans because, if they did, the MFN would

require them to also lower all of their fees to ODS. Since most

dentists in Oregon receive a significant portion of their income from

treating ODS patients, the cost to those dentists of discounting their

fees on non-ODS patients or competing dental care plans became too

great to justify discounting. For the same reason, it was too costly

for most dentists to drop their participation in ODS' plan in order to

avoid the MFN and be able to discount their fees to competing discount

dental plans. Consequently, the MFN substantially reduced discounting

that was occurring and, had it continued in force, would have deterred

future discounting.

The plaintiff was also prepared to prove that the combination

unreasonably restrained competition between ODS and other dental

insurance plans. Because of the MFN and its effect on the willingness

of dentists to join discount dental plans, competing discount plans

were unable to attract and keep a sufficiently large qualified, and

geographically varied panel of dentists to adequately serve their

members and make their plans commercially marketable to employer and

other groups. Some plans left the market or had their ability to

attract and serve patient groups severely restricted, leading to a

substantial reduction in their ability to complete with ODS.

The combination deprived Oregon consumers of price competition

among dentists who stopped discounting their fees. Consumers were also

deprived of choices of competing dental insurance plans offering

different combinations of dentists, services, and prices.

Moreover, the plaintiff was prepared to prove that ODS' revealing

the maximum acceptable fees to those dentists with 10 or fewer

procedures over the maximum prevented those fees from falling below the

maximum and effectively stabilized those fees at the maximum acceptable

level--a level higher than they might otherwise have been. As a result,

consumers were further deprived of price competition among dentists.

III. Explanation of the Proposed Final Judgment

The plaintiff and ODS 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 law or fact.

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 intended to ensure that ODS does not

reinstate its MFN and ceases disclosing its maximum allowable fees to

participating dentists. The proposed Final Judgment also prohibits ODS

from taking any other action that may influence dentists' decisions

regarding the discounting of fees.

A. Scope of the Proposed Final Judgment

Section III of the proposed Final Judgment provides that the Final

Judgment shall apply to ODS and to ODS' 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.

In the Stipulation to the proposed Final Judgment, ODS has agreed

to be bound by the terms of the proposed Final Judgment, pending its

approval by the Court.

B. Prohibitions and Obligations

Under Section IV of the proposed Final Judgment, ODS is enjoined

and restrained for a period of five years from maintaining, adopting,

or enforcing an MFN or similar provision in

[[Page 21222]] participating dentist agreements or by any other means

or methods, or by taking any other action, directly or indirectly, to

influence or attempt to influence any dentist to refrain from offering

discount fees to any person or dental plan or to refrain from

participating in any dental plan. ODS is also enjoined and restrained

for a period of five years from disclosing or in any way directly

revealing to a dentist or dentists the maximum allowable or acceptable

fee for a dental procedure or procedures.

The proposed Final Judgment also provides that the plaintiff will

have access to information to enforce the judgment.

C. Effect of the Proposed Final Judgment on Competition

The relief required by the proposed Final Judgment will prohibit

reinstatement of a substantial restraint on price competition among

dentists and between ODS and other dental plans in Oregon, by ensuring

that ODS will not adopt or enforce the limitations on dentists'

abilities to discount created by the MFN. The proposed Final Judgment

will also prohibit ODS from taking any other action which might

discourage participating dentists from discounting or participating in

competing discount plans. As a result, dentists will be free to

discount or to join other discount plans, and discount dental plans

will no longer be prevented by ODS' actions from attracting and

maintaining viable panels of dentists to serve their members.

Finally, the relief required by the proposed Final Judgment will

prohibit ODS' dissemination of the maximum fee amount for particular

procedures. Without the information provided by ODS, dentists will have

to determine independently the fees to charge for their services.

The prohibitions in the proposed Final Judgment will restore to

dental consumers the benefits of free and open competition that were

suppressed by ODS' adoption and enforcement of the MFN. The proposed

Final Judgment prohibits ODS from reinstating the MFN during the term

of the Final Judgment.

IV. Alternatives to the Proposed Final Judgment

The alternative to the proposed Final Judgment is a full trial on

the merits of the case. Such a trial would involve substantial cost to

the United States and the defendant 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 Final

Judgment

As provided in the Antitrust Procedures and Penalties Act, any

person believing that the proposed judgment should be modified may

submit written comments to Christopher S Crook, Acting Chief, San

Francisco Office, Department of Justice, Antitrust Division, 450 Golden

Gate Avenue, San Francisco, California, 94102-3478, within the 60-day

period provided by the Act. These comments, and the plaintiff'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 the Stipulation,

to withdraw its consent to the proposed Final 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 Final Judgment 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. 16(b), were

considered in formulating the proposed Judgment. Consequently, none are

filed herewith.

Dated: April 10, 1995.

Respectfully submitted,

Barbara J. Nelson,

Phillip R. Malone,

Carla G. Addicks,

Antitrust Division, U.S. Department of Justice.

[FR Doc. 95-10596 Filed 4-28-95; 8:45 am]

BILLING CODE 4410-01-M