[Federal Register Volume 59, Number 58 (Friday, March 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6987]


[[Page Unknown]]

[Federal Register: March 25, 1994]


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DEPARTMENT OF JUSTICE

Antitrust Division

 

Proposed Final Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16(b)-(h), that 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:
----------------------------------------------------------------------
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