United States v. Delta Dental of Rhode Island; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Delta Dental of Rhode Island; Proposed Final

Judgment and Competitive Impact Statement

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. Section 16 (b) through (h), that a proposed

Final Judgment, a Stipulation, and a Competitive Impact Statement have

been filed with the United States District Court for the District of

Rhode Island in United States of America v. Delta Dental of Rhode

Island, Civil Action No. 96-113P.

The Complaint in the case alleges that Delta Dental of Rhode Island

(``Delta'') entered into so-called ``most favored nation'' agreements

with its panel dentists in unreasonable restraint of trade, in

violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. Delta, a

broad-panel plan contracting with over 90% of Rhode Island's dentists,

required that participating dentists offer no lower price to competing

dental plans. The agreements effectively restricted the willingness of

panel dentists to discount fees for dental care and blocked competition

from narrow-panel, lower cost dental plans.

The proposed Final Judgment eliminates Delta's most favored nation

clause and enjoins Delta from engaging in other actions that would

limit future discounting by its participating dentists.

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 Gail Kursh, Chief; Health Care Task

Force; United States Department of Justice; Antitrust Division; Liberty

Place; 325 7th Street, NW., Room 404, Washington, DC 20530 (202/307-

5799).

Rebecca P. Dick,

Deputy Director of Operations, Antitrust Division, United States

Department of Justice.

United States District Court for the District of Rhode Island

[Civil Action No. 96-113P]

United States of America, Plaintiff, vs. Delta Dental of Rhode

Island, Defendant.

Stipulation

It is stipulated by and between the undersigned parties, their

respective attorneys, that:

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

action and over both of the parties, and venue of this action is proper

in the District of Rhode Island.

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

may be filed and entered by the Court, upon the motion of either party

or upon the Court's own action, 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 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 any by filing that notice with the Court.

3. If Plaintiff withdraws its consent, or if the proposed Final

Judgment is not entered pursuant to the terms of this Stipulation, this

Stipulation shall be of no effect whatsoever, and the making of this

Stipulation shall be without prejudice to either party in this or in

any other proceeding.

4. Defendant agrees to be bound by the provisions of the proposed

Final Judgment pending its approval by the Court.

Dated: ______.

For Plaintiff

Joel I. Klein,

Acting Assistant Attorney General.

A. Douglas Melamed,

Deputy Assistant Attorney General.

Rebecca P. Dick,

Deputy Director, Office of Operations.

Gail Kursh,

Chief, Health Care Task Force.

David C. Jordan,

Assistant Chief, Health Care Task Force, Antitrust Division,

Department of Justice, Washington, D.C. 20530.

For Defendant

William R. Landry, #494,

Blish & Cavanagh, Commerce Center, 30 Exchange Terrace, Providence,

R.I. 02903-1765, (401) 831-8900.

Steven Kramer,

William E. Berlin,

Mark J. Botti,

Michael S. Spector,

Richard S. Martin,

Attorneys, Antitrust Division, Department of Justice, 325 7th

Street, N.W., Washington, D.C. 20530, (202) 307-0997.

Sheldon Whitehouse,

United States Attorney, District of Rhode Island.

By: Anthony DiGioia,

Ass't. U.S. Attorney, 10 Dorrance Street, Providence, R.I. 02903,

(401) 528-5477.

William G. Kopit,

Espstein Becker & Green, 1227 25th Street, N.W., Washington, D.C.

20037, (202) 861-9000.

United States District Court for the District of Rhode Island

[Civil Action No. 96-113P]

United States of America, Plaintiff, vs. Delta Dental of Rhode

Island, Defendant.

Final Judgment

Plaintiff, United States of America, filed its Complaint on

February 29, 1996. Plaintiff and Defendant, by their respective

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

trial or final adjudication of any issue of fact or law. This Final

Judgment shall not be evidence against or an admission by any party of

any issue of fact or law, nor a determination that any violation of law

has occurred. Therefore, before the taking of any trial testimony and

without trial of any issue of fact or law, and upon consent of the

parties, it is

Ordered, adjudged, and decreed, as follows:

I. Jurisdiction

This Court has jurisdiction over the subject matter of this action

and over each of the consenting parties. The Complaint states a claim

upon which relief may be granted against Delta under Section 1 of the

Sherman Act, 15 U.S.C. 1.

II. Definitions

As used herein, the term:

(A) ``Defendant'' or ``Delta'' means Delta Dental of Rhode Island.

(B) ``Participating Dentist's Agreement'' means Delta's agreement

with dentists for the provision of dental services to Delta's

subscribers, including Delta's Rules and Regulations referenced in the

agreement, and all amendments and additions to any such agreement.

(C) ``Participating Dentist'' means any dentist who has agreed to

comply with the terms of the Participating Dentist's Agreement.

(D) ``Most Favored Nation Clause'' means:

[[Page 9808]]

(1) paragraph 10 of Delta's Rules and Regulations, sometimes

characterized as Delta's ``Prudent Buyer Policy,'' pursuant to which:

``Delta Dental reserves the right to limit reimbursements to dentists

to such levels as such dentists have agreed to accept as reimbursement

from other non-governmental dental benefits reimbursement programs;''

or

(2) any contractual provision, policy, or practice which requires a

dentist to charge Delta no more than the lowest fee charged by that

dentist to any non-Delta plan or patient.

(E) ``Usual and customary fees'' means the fees for services and

material that dentists usually charge, before any discounting, to their

patients.

III. Applicability

This Final Judgment applies to Delta and to its successors and

assigns, and to all other persons (including Participating Dentists) in

active concert or participation with any of them, who have received

actual notice of the Final Judgment by personal service or otherwise.

IV. Prohibited Conduct

Delta is enjoined and restrained from:

(A) maintaining, adopting, or enforcing any Most Favored Nation

Clause or similar provision in any Participating Dentist's Agreement,

or by any other means or methods;

(B) maintaining, adopting, or enforcing any policy or practice

varying Delta's payments to, or other treatment of, any dentist because

the dentist charges any non-Delta patient or plan a fee lower than the

fee the dentist charges Delta;

(C) taking any action to discourage any dentist from participating

in any non-Delta plan or from offering or charging to any non-Delta

patient, or any non-Delta plan, any fee lower than that paid to the

dentist by Delta; and

(D) monitoring, auditing, or obtaining from any dentist the fees a

particular dentist charges any non-Delta patient or any non-Delta plan,

except as provided in Section V.

V. Permitted Activities

Nothing herein shall be construed so as to preclude Delta from:

(A) establishing preferred provider networks or other forms of

limited panels of providers, including discounted fee panels,

recruiting dentists who are participating with other dental plans in

similar panels, and negotiating bi-lateral fee arrangement with such

dentists, provided that such activity does not violate any provision of

Section IV;

(B) establishing provider reimbursement levels as may be reasonable

and necessary to respond to market conditions and having different

reimbursement levels for different categories or panels of providers,

provided that Delta's criteria for differentiation in reimbursement

among categories or panels of dentists are not based on their

participation in other dental plans, on fees those dentists offer other

dental plans or persons, or on fees those dentists agree upon with

other dental plans or persons; and

(C) collecting through otherwise lawful means, including use of a

survey sent to all Participating Dentists, (1) Participating Dentists'

usual and customary fees for each applicable service, provided that

such information is collected uniformly from all Participating

Dentists; and (2) data and information, including reimbursement levels,

regarding other dental plans.

VI. Nullification

Delta's Most Favored Nation Clause shall be null and void and Delta

shall impose no obligation arising from it on any Participating

Dentist. Within 90 days of entry of this Final Judgment, Delta shall

disseminate to each Delta Participating Dentist revised Rules and

Regulations, referenced in the Participating Dentist's Agreement, that

omit the Most Favored Nation Clause. Delta shall eliminate the Most

Favored Nation Clause from all Participating Dentist's Agreements

entered into after entry of this Final Judgment.

VII. Compliance Measures

The Delta shall:

(A) distribute, within 60 days of the entry of this Final Judgment,

a copy of this Final Judgment to: (1) all Delta officers and directors;

and (2) all Delta employees who have any responsibility for approving,

disapproving, monitoring, recommending, or implementing any provisions

in agreements with Participating Dentists.

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

any officer, director, or employee who succeeds to a position described

in Section VII(A) (1) or (2);

(C) obtain from each present or future officer, director, or

employee designated in Section VII(A) (1) or (2), within 60 days of

entry of this Final Judgment or of the Person's succession to a

designated position, a written certification that he or she: (1) has

read, understands, and agrees to abide by the terms of this Final

Judgment; and (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;

(D) maintain a record of persons to whom the Final Judgment has

been distributed and from whom, pursuant to Section VII(C), the

certification has been obtained;

(E) distribute, within 60 days of the entry of this Final Judgment,

a copy of the attached letter, which has been approved by the Antitrust

Division, by first-class mail to all currently Participating Dentists;

and

(F) report to the Plaintiff any violation of the Final Judgment.

VIII. Certification

(A) Within 100 days of the entry of this Final Judgment, Delta

shall certify to the Plaintiff whether it has: (1) disseminated revised

Rules and Regulations pursuant to Section VI; (2) distributed the Final

Judgment in accordance with Section VII(A); (3) obtained certifications

in accordance with Section VII(C); and (4) distributed copies of the

attached letter in accordance with Section VII(E).

(B) For ten years after the entry of this Final Judgment, on or

before its anniversary date, Delta shall file with the Plaintiff an

annual Declaration as to the fact and manner of its compliance with the

provisions of Sections IV, V, VI, and VII.

IX. Plaintiff's Access to Information

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

duly authorized representatives of the Plaintiff, upon written request

of the Assistant Attorney General in charge of the Antitrust Division

and on reasonable notice to Delta made to its principal office, shall

be permitted, subject to any legally recognized privilege:

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

documents in the possession or under the control of Delta, who may have

counsel present, relating to any matters contained in this Final

Judgment; and

(2) Subject to the reasonable convenience of Delta and without

restraint or interference from it, to interview officers, employees or

agents of Delta, who may have Delta's counsel and/or their own counsel

present, regarding such matters.

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

charge of the Antitrust Division made to Delta's principal office,

Delta shall submit such written reports, under oath if requested,

relating to any matters contained in this Final Judgment as may be

reasonably requested, subject to any legally recognized privilege.

[[Page 9809]]

(C) Delta shall have the right to be represented by counsel in any

process under this Section.

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

Section IX shall be divulged by the Plaintiff to any person other than

duly authorized representatives 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.

(E) If at the time information or documents are furnished by Delta

to Plaintiff, Delta represents and identifies in writing the material

in any such information or documents to which a claim of protection may

be asserted under Rule 26(c)(7) of the Federal Rules of Civil

Procedure, and Delta marks each pertinent page of such material,

``subject to claim of protection under Rule 26(c)(7) of the Federal

Rules of Civil Procedure,'' then 10 days' notice shall be given by

Plaintiff to Delta prior to divulging such material in any legal

proceeding (other than a grand jury proceeding) to which Delta is not a

party.

(F) Nothing in this Final Judgment prohibits the Plaintiff from

using any other investigatory method authorized by law.

X. Further Elements of the Final Judgment

(A) This Final Judgment shall expire ten years from the date of its

entry.

(B) Jurisdiction is retained by this Court for the purpose of

enabling either of the parties to this Final Judgment, but no other

person, 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; to modify or terminate any of its provisions,

based on changed circumstances of fact or law warranting such action;

to enforce compliance; and to punish violations of its provisions.

(C) Entry of this Final Judgment is in the public interest.

Dated: ______.

________

United States District Judge.

Attachment

Attachment Referred to in Section VII(E)

As you may know, Delta Dental has been involved in a lawsuit

with the United States Department of Justice in the United States

District Court of Rhode Island regarding Rule 10 of Delta's Rules

and Regulations for Dentists, which is sometimes called Delta's

``Prudent Buyer'' policy. Rule 10 has allowed Delta Dental to limit

its payments to dentists to the lowest level the dentist had agreed

to accept from any other non-governmental plan or from any uninsured

patient.

Delta Dental and the Department of Justice have agreed to a

consent decree that has been entered as an order of the District

Court. As part of this consent decree, Delta has agreed to eliminate

Rule 10 if its Rules and Regulations.

The consent decree declares Rule 10 null and void and prohibits

Delta from varying its payments to, or other treatment of, any

dentist because the dentist charges any non-Delta patient or plan a

fee lower than the fee the dentists charges Delta. Within the next

thirty (30) days, we will forward to you a superseding set of Rules

and Regulations that omits Rule 10.

Sincerely yours,

________

Director of Provider Relations.

[Civil Action No. 96-113P]

United States District Court for the District of Rhode Island

United States of America, Plaintiff, vs. Delta Dental of Rhode

Island, Defendant.

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 describing the proposal Final Judgment

submitted to resolve this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

On February 29, 1996, the United States filed a civil antitrust

compliant alleging that Delta Dental of Rhode Island (``Delta''),

enters into agreements with its participating dentists that

unreasonably restrain completion by inhibiting discounting of fees for

denial care in violation of Section 1 of the Sherman Act, 15 U.S.C.

Sec. 1. The Compliant seeks injunctive relief to enjoin continuance of

the violation.

Entry of the proposed Final Judgment will terminate this action,

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

further proceedings that 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

If this matter had proceeded to trial, the United States would have

introduced evidence as follows. Delta is Rhode Island's largest dental

insurer, insuring or administering plans providing insurance to about

35-45% of Rhode Island residents covered by dental insurance. Delta

seeks to offer its enrollees the broadest possible panel of dentists

and contracts with over 90% of Rhode Island dentists. Delta accounts

for a substantial percentage of the professional income of most Rhode

Island dentists.

Pursuant to Delta's Participating Dentist's Agreement (the

``Agreement''), each contracting dentist agrees to comply with Delta's

Rules and Regulations. Rule 10 of these Rules and Regulations is a Most

Favored Nation (MFN) clause, which provides that Delta has the right to

lower the fees it pays a dentist to the level of the lowest fees that

that dentist charges any other plan. Delta has applied its MFN clause

also to dentists' charges to uninsured patients. Rule 7 gives Delta the

additional right to audit dentists' records to determine whether they

are complying with the MFN clause.

In contrast to Delta's program, which by design includes as many

dentists as possible, some dental plans such as preferred provider

organizations (``PPOs'') and health maintenance organizations

(``HMOs''), contract selectively with a limited panel of dentists. By

offering the prospect of increased patient volume, these managed care

plans are able to contract with some dentists for services at fees

substantially below Delta's. These plans then create financial

incentives for their enrollees to use panel dentists. Selective

contracting with dentists helps a managed dental care plan lower the

cost of the delivery of dental service to its enrollees. Accordingly,

these plans are able to offer patents lower premiums and lower out-of-

pocket costs.

Delta currently provides so much more of most Rhode Island

dentists' income than would any entering managed care plan that if

these dentists were to reduce their fees to such plans, the resulting

reduction in their income from Delta would be much greater than their

added income from the entrant plan. Because few dentists in Rhode

Island are not under contract with Delta, and because Delta's MFN

clause gives its participating dentists strong disincentives to

contract with dental managed care plans at fees below Delta's, other

plans have been unable to form a competitively viable panel. By thus

excluding from the dental insurance market reduced-cost plans that many

consumers view as an important option, Delta's MFN clause has protected

Delta from competition from such lower-cost plans at the expense of

consumers.

In recent years, Delta's MFN clause has blocked the entry or

expansion of several low-cost plans. For example, Delta's MFN clause

caused dentists to withdraw from Dental Blue PPO--a low-cost preferred

provider organization established in the fall of 1993 by Blue

[[Page 9810]]

Cross and Blue Shield of Massachusetts to serve Raytheon employees and

their dependents, including the approximately 1,000 employees and their

dependents at Raytheon's facility in Portsmouth, Rhode Island. Dental

Blue PPO had initially succeeded in contracting with a number of Rhode

Island dentists at substantially discounted rates--rates, by Delta's

calculations, that were 14% lower than Delta's. These PPO savings would

have significantly reduced or eliminated Raytheon plan members' co-

payments.

After identifying Dental Blue PPO as a long-run competitive threat,

Delta's senior management pursued several related tactics. First, it

contacted the former chairman of the Rhode Island Dental Association

(``RIDA'')'s Council on Dental Programs, who supports Delta's MFN

clause because he believes it sets a floor on dentists' fees. He sent

RIDA's members a letter warning that because of Delta's MFN clause

dentists would face ``severe financial penalties'' if they contracted

with dental Blue PPO. Second, Delta's management sent a letter to Rhode

Island dentists who Delta knew to be participating in Dental Blue PPO,

announcing its intention to apply its MFN clause and describing the

new, reduced payment levels they would receive from delta if they

continued to participate in Dental Blue PPO.

By the end of January 1994, all of the dentists contacted by Delta

had withdrawn from Dental Blue PPO. Some of them made clear to Delta at

the time that the reason for their withdrawal was Delta's decision to

apply its MFN clause and requested that Delta return their payments to

former levels. As a result, Raytheon employees were denied the

opportunity to lower or eliminate their co-payments for dental care,

and Rhode Island was denied the entry of a low-cost dental insurance

plan.\1\

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\1\ Delta's application of its MFN clause to the Dental Blue PPO

demonstrates that Delta has not enforced the clause when a dentist,

who had initially agreed to charge another plan substantially lower

fees, then raised the fees to Delta's level or disaffiliated from

the plan. Delta's approach suggests that Delta applied its MFN

clause to prevent the entry of a new, low-cost rival, not just to

ensure that it obtained the lowest prices available.

Delta indeed did develop a contingency plan to compete on price

with Dental Blue PPO by forming its own limited-panel, reduced-fee

PPO. When Delta's MFN clause brought about the collapse of the

Dental Blue PPO, however, Delta shelved its PPO plans. Rhode Island

consumers thus remained without a limited panel, lower-cost

competitive alternative to Delta's existing, mid-range plan.

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

Delta's MFN clause also caused dentists to refuse to contract, at

fees below levels paid by Delta, with at least two other lower-cost

plans. In one instance, U.S. Healthcare attempted to establish a plan

in Rhode Island (as it had in other states) that would have paid

dentists at fee levels lower than Delta's. Rhode Island dentists

uniformly refused to participate because they feared that Delta would

apply its MFN clause. Similarly, Delta's participating dentists

refused, because of Delta's MFN clause, to contract with dental Benefit

Providers (``DBP'') at fee levels below Delta's, forcing DBP to pay

Delta's higher rates to enter the market and depriving consumers of a

low-cost alternative.

Delta's MFN clause also prevented two other organizations--a self-

insured employee group and an uninsured retiree group--from recruiting

additional dentists, at fee levels substantially below Delta's, to

augment their limited panels of dentists. Both had persuaded a few

Rhode Island dentists to accept fees substantially below Delta's and

both had avoided the application of Delta's MFN clause--despite Delta's

commitment to enforce the clause--only because Delta had been unaware

of their operation. Although both wanted to expand their panels, they

refrained from recruiting additional dentists because of their concern

that such efforts would disclose their existence to Delta and trigger

Delta's enforcement of its MFN clause, causing their existing dentists

to disaffiliate. As a result, some members of these groups were denied

more accessible, low-cost dental care that would have been available in

the absence of the MFN clause.

Although the language of Delta's MFN clause appears to apply only

to fees dentists offer to insurance plans, Delta has also on occasion

enforced the MFN when dentists have lowered their fees to uninsured

patients. Some dentists who have been willing to serve uninsured

patients at reduced rates have suffered an added financial penalty

imposed by Delta. As a result, they and other dentists have been

deterred from offering discounts to uninsured patients. Delta's MFN

clause has thus raised the prices, and reduced the availability, of

dental services to some of Rhode Island's most vulnerable consumers.

By Delta's own admission, its MFN clause has not generated any

meaningful savings or other procompetitive benefits. Far from saving

consumers money, Delta's MFN clause has, in fact, eliminated most

discounting by dentists below Delta's fees, and--as recognized by the

former chairman of the RIDA's Council on Dental Programs--set a floor

on dental fees, thus raising the costs of dental services and dental

insurance for Rhode Island consumers.

III. Explanation of the Proposed Final Judgment

The Plaintiff 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. Sec. 16(b)-(h). The proposed

Final Judgment provides that its entry does not constitute any evidence

against or admission by any party of any issue of fact or law.

Under the provisions of Section 2(e) of the Antitrust Procedures

and Penalties Act, 15 U.S.C. Sec. 16(e), the proposed Final Judgment

may not be entered unless the Court finds that entry is in the public

interest. Section X(C) of the proposed Final Judgment sets forth such a

finding.

The proposed Final Judgment is intended to ensure that Delta

eliminates its MFN clause and ceases all similar practices that

unreasonably restrain competition among dentists and dental insurance

plans.

A. Scope of the Proposed Final Judgment

Section III of the proposed Final Judgment provides that the Final

Judgment shall apply to Delta, to its successors and assigns, and to

all other persons (including Delta's participating dentists) in active

concert or participation with any of them, who shall have received

actual notice of the Final Judgment by personal service or otherwise.

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

to be bound by the provisions of the proposed Final Judgment pending

its approval by the Court.

B. Prohibitions and Obligations

Under Section IV(A) of the proposed Final Judgment, Delta is

enjoined and restrained for a period of ten years from maintaining,

adopting, or enforcing any Most Favored Nation Clause or similar

provision in any Participating Dentist's Agreement or by any other

means or methods. Other provisions of the Final Judgment seek to ensure

that the MFN clause's anticompetitive effects cannot be achieved in

other ways. Specifically, Section IV(B) enjoins Delta from maintaining,

adopting, or enforcing any policy or practice varying its payments to,

or other treatment of, any dentist because the dentist charges any non-

Delta patient or plan a fee lower than the fee the dentist charges

Delta; Section IV(C) enjoins Delta from taking any action to discourage

any dentist from participating in any non-Delta plan or from offering

or charging to any non-

[[Page 9811]]

Delta patient, or any non-Delta plan, any fee lower than that paid to

the dentist by Delta; and Section IV(D) enjoins Delta from monitoring,

auditing, or obtaining from any dentist information about the fees a

particular dentist charges any non-Delta patient or any non-Delta plan,

except as provided in Section V.

Section V permits Delta to engage in certain specified activities

without violating the prohibitions of Section IV, including creation of

a limited-panel plan, implementation of different reimbursement levels

under certain circumstances, and collection through certain means of

information about market rates. These activities will likely

facilitate, rather than impair, competition.

Section VI of the Final Judgment declares Delta's MFN clause null

and void. It directs Delta to disseminate to each Delta participating

dentist revised Rules and Regulations, referenced in the Participating

Dentist's Agreement, that omit the Most Favored Nation Clause. This

Section also requires Delta to eliminate the Most Favored Nation Clause

from all Participating Dentist's Agreements entered into after entry of

the Final Judgment.

Section VII of the Final Judgment imposes various compliance

measures. Section VII(A) requires Delta to distribute, within 60 days

of entry of the Final Judgment, a copy of the Final Judgment to: (1)

all Delta officers and directors; and (2) all Delta employees who have

any responsibility for approving, disapproving, monitoring,

recommending, or implementing any provisions in agreements with

participating dentists. Sections VII(B)-(D) require Delta to provide a

copy of the Final Judgment to future officers, directors, and employees

who have any responsibility for approving, disapproving, monitoring,

recommending, or implementing any provisions in agreements with

participating dentists and to obtain and maintain records of such

persons' written certifications that they have read, understand, and

will abide by the terms of the Final Judgment. Section VII(E) requires

Delta to distribute a copy of a letter, approved by the Antitrust

Division and attached to the Final Judgment, to all currently

participating dentists. Section VII(F) obligates Delta to report to the

Plaintiff any violation of the Final Judgment.

Finally, Section VIII obligates Delta to certify its compliance

with specified requirements, summarized above, of Sections IV, V, VI,

and VII of the Final Judgment. In addition, Section IX sets forth a

series of measures by which the Plaintiff may have access to

information needed to determine or secure Delta's compliance with the

Final Judgment.

C. Effect of the Proposed Final Judgment on Competition

By eliminating the MFN clause, the relief imposed by the proposed

Final Judgment will enjoin and eliminate a substantial restraint on

price competition between Delta and other dental insurance plans and

among dentists in Rhode Island and its environs. It will do so by

eliminating the disincentives created by the MFN clause for dentists to

discount their fees and to join non-Delta plans offering payments below

Delta's levels. The Judgment also prevents Delta from taking any other

action to discourage dentists from discounting or participating in

competing dental insurance plans. Consequently, non-Delta plans'

efforts to attract and maintain viable panels of dentists to serve

their members will no longer be hampered.

The proposed Final Judgment will restore the benefits of free and

open competition to dental insurance plans and consumers in Rhode

Island. Consequently, limited panel dental insurance plans should be

able to achieve cost savings that they can pass on to consumers, and

consumers should be able to choose from a wider array of dental

insurance alternatives. Competition among dentists should also be

invigorated.

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. Such a trial would involve substantial

costs to both the United States and Delta and is not warranted because

the proposed Final Judgment provides all of the relief that the United

States would likely obtain upon a favorable decision at the close of

trial and fully remedies the violations of the Sherman Act alleged in

the Complaint.

V. Remedies Available to Private Litigants

Section 4 of the Clayton Act, 15 U.S.C. Sec. 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. Sec. 16(a), the Final Judgment has no prima

facie effect in any subsequent lawsuits that may be brought against

Delta in this matter.

VI. Procedures Available for Modification of the Proposed Final

Judgment

As provided by the Antitrust Procedures and Penalties Act, any

person believing that the proposed Final Judgment should be modified

may submit written comments to Gail Kursh, Chief; Health Care Task

Force; Department of Justice; Antitrust Division; 325 7th Street, N.W.;

Room 404; Washington, D.C. 20530, within the 60-day period provided by

the Act. Comments received, 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 2 of the Stipulation, to

withdraw its consent to the proposed Final Judgment at any time before

its entry if the Department should determine that some modification of

the Judgment is necessary to protect the public interest. The proposed

Final 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 Final Judgment. Consequently,

none are filed herewith.

Dated: February 19, 1997.

Respectfully submitted,

Steven Kramer,

William E. Berlin

Mark J. Botti,

Michael S. Spector,

Richard S. Martin,

Attorneys, Antitrust Division, U.S. Department of Justice, 325 7th

Street, N.W., Room 426, Washington, D.C. 20530, (202) 307-0997.

United States District Court for the District of Rhode Island

[Civil Action No. 96-113P]

United States of America, Plaintiff, vs. Delta Dental of Rhode

Island, Defendant.

Certificate of Service

I certify that I caused a copy of the Stipulation, the Final

Judgment, and the United States' Competitive Impact

[[Page 9812]]

Statement to be served on February 20, 1997, by overnight delivery to:

William R. Landry, Blish & Cavanagh, Commerce Center, 30 Exchange

Terrace, Providence, R.I. 02903-1765

and by first class mail to:

William G. Kopit, Epstein Becker & Green, 1227 25th Street, N.W.,

Washington, D.C. 20037.

Dated: February 20, 1997.

Steven Kramer,

Attorney, Antitrust Division, U.S. Department of Justice, 325 7th

Street, N.W., Room 426, Washington, D.C. 20530, (202) 307-0997.

[FR Doc. 97-5151 Filed 3-3-97; 8:45 am]

BILLING CODE 4410-11-M