[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Notices]
[Pages 21218-21222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10596]



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DEPARTMENT OF JUSTICE
Antitrust Division


Proposed Final Judgment and Competitive Impact Statement

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

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16 (b)-(h), that a proposed Final Judgment, 
Settlement Agreement, and Competitive Impact Statement have been filed 
with the United States District Court for the Northern District of 
California in United States of America v. Oregon Dental Service, Civil 
Action No. C95 1211 FMS. The Complaint in this case alleges that the 
defendant and others engaged in a combination in unreasonable restraint 
of interstate trade and commerce in violation of the Sherman Act, 15 
U.S.C. 1. The proposed Final Judgment enjoins the defendant for five 
years from maintaining, adopting, or enforcing a clause in its 
contracts with dentists that requires the dentist to give the defendant 
the lowest fees he or she offers to any person or dental plan. It also 
enjoins the defendant from taking any other action, directly or 
indirectly, to influence or attempt to influence dentists' discounting 
of fees or participation in other dental plans. Finally, the proposed 
Final Judgment enjoins the defendant from disclosing or in any way 
directly revealing to dentists its maximum allowable or acceptable fee 
for dental procedures.
    Public comment on the proposed Final Judgment is invited within the 
statutory 60-day comment period, which runs from the date of this 
notice. Such comments, and responses thereto, will be published in the 
Federal Register and filed with the Court. Comments should be directed 
to Christopher S. Crook, Acting Chief, San Francisco Office, Box 36046, 
Antitrust Division, U.S. Department of Justice, San Francisco, 
California 94102 (telephone: (415) 556-6300).
Constance K. Robinson,
Director of Operations, Antitrust Division.
Barbara J. Nelson, Philip R. Malone, Carla G. Addicks, Antitrust 
Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box 
36046, 10th Floor, San Francisco, California 94102-3478, (415) 556-
6300, Attorneys for the United States
In the United States District Court Northern District of California

[Civil No. C95 1211 FMS]

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

Complaint

    The United States of America, acting under the direction of the 
Attorney General of the United States, brings this civil action to 
obtain equitable and other relief against the defendant named herein, 
and complains and alleges as follows:

I. Jurisdiction and Venue

    1. This Complaint is filed by the United States under Section 4 of 
the Sherman Act; 15 U.S.C. 4, as amended, to prevent and restrain a 
continuing violation by the defendant of Section 1 of the Sherman Act, 
15 U.S.C. 1.
    2. The defendant maintains an office, transacts business, and is 
found within the Northern District of California, within the meaning of 
15 U.S.C. 22 and 28 U.S.C. 1391(c).

II. Defendant

    3. Oregon Dental Service (``ODS''), is a corporation organized and 
existing under the laws of the State of Oregon with its principal place 
of business in Portland, Oregon. ODS provides dental coverage to 
employees of Oregon corporations and others. Certain of those employees 
are located in the Northern District of California.
    4. ODS is a non-profit corporation whose participating providers 
consist of dentists licensed to practice in Oregon and who execute 
participating provider agreements with ODS. At material times, dentists 
comprised the majority of the Board of Directors of ODS. At material 
times, in excess of ninety percent of dentists licensed to practice in 
Oregon were participating providers of ODS.
    5. Various firms and individuals, not named as defendants in this 
Complaint, have entered into agreements with ODS in violation of the 
Sherman Act as alleged in this Complaint, and have performed acts and 
made statements in furtherance thereof.

III. Trade and Commerce

    6. At material times, ODS has engaged in the business of providing 
dental insurance coverage. ODS contracts directly with individual 
dentists and groups of dentists for the provision of dental services to 
persons covered by ODS' dental insurance plans. Participating dentists 
agree to comply with the terms of the contractual agreements with ODS, 
and to abide by ODS' rules and policies.
    7. ODS compensates participating dentists on the basis of submitted 
fee schedules. At material times, payments from ODS to Oregon dentists 
constituted a significant portion of most individual participating 
dentist's receipts from the provision of dental services to patients.
    8. At material times, ODS' ``Participating Dentist Rules and 
Policies'' contained provisions known as ``most favored nation'' 
clauses. These provisions stated that, for example, the ``lowest fee 
accepted by the Dentist for services to be rendered to any group shall 
constitute the Dentist's filed fee scheduled for payment of ODS Health 
Plan claims.''
    9. ODS' enforcement of the most favored nation clauses in its rules 
and policies resulted in most participating dentists' refusal to 
discount their fees to non-ODS patients or competing dental plans.
    10. ODS' most favored nation clauses have caused significant 
numbers of dentists to drop out of or refuse to join competing discount 
dental plans. Because such a large percentage of Oregon dentists 
participate with ODS' plan, the ODS most favored nation clauses have 
resulted in many competing dental plans being unable to attract and/or 
retain sufficient numbers of dentists to serve their members.
    11. ODS periodically determines the amount it will pay for 
procedures to participating dentists based upon fee filings submitted 
by the participating dentists. A majority of these dentists used the 
fee schedule they filed with ODS as their fee schedule for all other 
patients, including those covered by other insurance plans and 
uninsured patients.
    12. ODS sets the maximum fee allowable for a particular procedure 
at the 90th percentile of all fees submitted to it by participating 
dentists (the level at or above the fee charged by 90% of participating 
dentists). If 10 or fewer of a dentist's submitted fees are above the 
90th percentile, ODS notifies the dentist of the amount of the maximum 
allowable fee. Most participating dentists file fee schedules proposing 
to charge more than the maximum [[Page 21219]] allowable fee for 10 or 
fewer procedures; when one of these dentists is advised of the exact 
maximum allowable fees, he or she is able to lower the fees no more 
than necessary to obtain approval from ODS. If the dentist agrees to 
charge the maximum allowable amount, the dentist signs the notification 
and returns it to ODS.
    13. Most dentists who are participants with ODS are in independent, 
private practices and are in actual or potential competition with other 
participating dentists for the provision of dental services.
    14. At material times, ODS and participating dentists have utilized 
interstate banking facilities and purchased not insubstantial 
quantities of goods and services from outside the state of Oregon, for 
use in providing dental insurance coverage or dental services to 
patients.
    15. The activities of ODS that are the subject of this Complaint 
have been within the flow of, and have substantially affected, 
interstate trade and commerce.

IV. Violation Alleged

    16. Beginning at a time unknown to the plaintiff and continuing 
through at least September 1994, ODS and others engaged in a 
combination in unreasonable restraint of interstate trade and commerce 
in violation of Section 1 of the Sherman Act, 15 U.S.C. ODS voluntarily 
abandoned the combination in September, 1994, but this offense is 
likely to recur unless the relief hereinafter sought is granted.
    17. For the purpose of forming and effectuating this combination, 
ODS did the following things, among others:
    (a) Adopted and enforced most favored nation clauses in the 
contracts with dentists and in rules and policies the dentists agreed 
to abide by, and
    (b) Received and disseminated information on the maximum allowable 
fees for certain procedures, and obtained signed commitments from 
participating dentists to charge the maximum allowable fees.
    18. These agreements had the following effects, among others:
    (a) Price competition among dentists for the provision of dental 
services has been unreasonably restrained and fees for such services 
have been stabilized at a level higher than they might otherwise have 
been;
    (b) Price competition among dental insurance plans has been 
unreasonably restrained; and
    (c) Consumers of dental services in Oregon have been deprived of 
the benefits of free and open competition.

V. Prayer

    Wherefore, the plaintiff prays:
    1. That the Court adjudge and decree that ODS engaged in an 
unlawful combination in unreasonable restraint of interstate trade and 
commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. 1, as 
alleged in the Complaint.
    2. That ODS, its members, officers, directors, agents, employees, 
and successors and all other persons acting or claiming to act on its 
behalf be enjoined, restrained and prohibited for a period of five 
years from, in any manner, directly or indirectly, continuing, 
maintaining, or renewing the alleged agreements, or from entering into 
any other agreement, understanding, plan, program, or other arrangement 
having a similar purpose or effect as the alleged agreements.
    3. That the United States have such other relief as the nature of 
the case may require and the Court may deem just and proper.

    Dated: April 10, 1995.
Anne K. Bingaman,
Assistant Attorney General.
Mark C. Schechter,
Deputy Director of Operations.
Christopher S. Crook,
Acting Chief, San Francisco Office. Antitrust Division, U.S. Department 
of Justice.
Barbara J. Nelson,
Philip R. Malone,
Carla G. Addicks,
Attorneys, Antitrust Division, U.S. Department of Justice.
    Barbara J. Nelson, Philip R. Malone, Carla G. Addicks, Antitrust 
Division, U.S. Department of Justice, 450 Golden Gate Avenue, Box 
36046, 10th Floor, San Francisco, California 94102-3478, (415) 556-
6300, Attorneys for the United States.
In the United States District Court Northern District of California
[Civil No. C95 1211 FMS]
    In the matter of: United States of America, Plaintiff, v. Oregon 
Dental Service, Defendant.

Stipulation

    It is stipulated by and between the undersigned parties, by their 
respective attorneys, that:
    1. The Court has jurisdiction over the subject matter of this 
action and over each of the parties thereto, and venue of this action 
is proper in the Northern District of California;
    2. The parties consent that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of any 
party or upon the Court's own motion at any time after compliance with 
the requirements of the Antitrust Procedures and Penalties Act (15 
U.S.C. 16), and without further notice to any party or other 
proceedings, provided that plaintiff United States has not withdrawn 
its consent, which it may do at any time before the entry of the 
proposed Final Judgment by serving notice thereof on the defendant and 
by filing that notice with the Court. The parties represent that they 
have full authority to enter into this Stipulation.
    3. In the event plaintiff United States withdraws its consent or if 
the proposed Final Judgment is not entered pursuant to this 
Stipulation, this Stipulation shall be of no effect whatever and the 
making of this Stipulation shall be without prejudice to any party in 
this or any other proceeding.
    4. The parties agree that the Final Judgment resolves all disputes 
between the parties as to the most favored nation clause and disclosure 
of the maximum allowable fees. Plaintiff will not institute further 
investigation of ODS with regard to the most favored nation clause or 
disclosure of maximum allowable fees so long as ODS remains in 
compliance with the terms of the Final Judgment, except for the 
purposes of determining or securing compliance with the Final Judgment.
    5. ODS agrees to comply with the provisions of the Final Judgment 
pending entry of the Final Judgment.

    Dated: March 28, 1995.

    For the United States:
Barbra J. Nelson,
    For the Defendant:
Timothy G. Beckler.
In the United States District Court Northern District of California
    In the matter of: United States of America, Plaintiff v. Oregon 
Dental Service, Defendant.
[Civil No. C95 1211]

Final Judgment

    Whereas, plaintiff, United States of America through its attorney, 
filed its Complaint on     , 1995, alleging a violation of the Sherman 
Act, 15 U.S.C. 1;
    Whereas, the defendant denies liability with respect to all matters 
subject of the complaint;
    Whereas, there has been no determination by the Court that a 
violation of law has occurred;
    Whereas, the plaintiff and defendant desire to resolve their 
disputes without trial or adjudication of any issue of law or fact; and
    Whereas, this Final Judgment shall not be evidence against or an 
admission by any party with respect to any issue of law or 
fact; [[Page 21220]] 
    Now therefore, before the taking of any testimony and without trial 
or adjudication of any issue of law or fact herein, it is hereby 
ordered, adjudged, and decreed as follows:

I. Jurisdiction

    This Court has jurisdiction of the subject matter of this action 
and of each of the parties consenting hereto. The Complaint states a 
claim upon which relief may be granted against the defendant under 
Section I of the Sherman Act, 15 U.S.C. 1.

II. Definitions

    As used herein, the term:
    (A) ``ODS'' means Oregon Dental Service;
    (B) ``Most Favored Nation Clause'' or ``MFN'' means those 
provisions in the defendant's participating dentist agreements that 
prior to September 28, 1994, required that the lowest fee accepted by 
the participating dentist for services rendered to any group 
constituted the dentist's filed fee schedule for payment of ODS claims.

III. Applicability

    (A) This Final Judgment applies to ODS and to ODS' officers, 
employees, members acting as corporate policy makers, directors, 
successors, assigns, subsidiaries, divisions and any other 
organizational units of any kind, and to all other persons in active 
concert or participation with any of them. Within 60 days of entry, ODS 
shall provide a copy of this Final Judgment by mail or personal service 
to ODS' officers, directors and managerial employees. Thereafter, ODS 
shall distribute in a timely manner a copy of this Final Judgment to 
any new officer, director, or managerial employee.
    (B) Nothing herein contained shall suggest that any portion of this 
Final Judgment is or has been created for the benefit of any third 
party and nothing herein shall be construed to provide any rights to 
any third party.

IV. Injunction

    (A) ODS is enjoined and restrained from:
    (1) Maintaining, adopting, or enforcing an MFN or similar provision 
in participating dentist agreements or by any other means or methods;
    (2) Taking any other action, directly or indirectly, to influence 
or attempt to influence any dentist to refrain from offering discount 
fees to any person or dental plan or to refrain from participating in 
any dental plan;
    (3) Disclosing or in any way directly revealing to a dentist or 
dentists the maximum allowable or acceptable fee for a dental procedure 
or procedures.

V. Retention of Jurisdiction

    Jurisdiction is retained by the Court for the purpose of enabling 
either party to this Final Judgment to apply to this Court at any time 
for further orders and directions as may be necessary or appropriate to 
carry out or construe this Final Judgment, modify it on the basis of 
changed circumstances, terminate any of its provisions, enforce 
compliance, and punish violations of its provisions.
    Nothing in this provision shall give standing to any person not a 
party to this Final Judgment to seek any relief related to it.

VI. Access to Information

    For the purposes of determining or securing compliance with the 
Final Judgment, from time to time:
    (A) Duly authorized representatives of the United States, upon 
written request of the Assistant Attorney General in charge of the 
Antitrust Division, and on reasonable notice to ODS, shall be 
permitted, subject to any legally recognized privilege, access, during 
office hours, to inspect and copy all books, ledgers, accounts, 
correspondence, memoranda and other records and documents in the 
possession or under the control of ODS relating to any matters 
contained in this Final Judgment; and
    (B) In the event that the plaintiff has reasonable cause to believe 
that ODS had not complied with the terms of this Final Judgment, then 
upon the written request of the Assistant Attorney General in charge of 
the Antitrust Division, ODS shall submit such written reports, under 
oath if requested, with respect to any of the matter contained in this 
Final Judgment.
    ODS shall have the right to be represented by counsel in any such 
process.
    Any information provided to the plaintiff under this section of the 
Final Judgment shall be kept confidential by the plaintiff and shall 
not be disclosed to third parties except as necessary to enforce the 
Final Judgment or as otherwise previously agreed or required by law.
    Nothing in this Final Judgment prohibits the plaintiff from using 
any other investigatory method authorized by law.

VII. Term

    This Final Judgment shall expire five years from the date of its 
entry.

VIII. Public Interest

    Entry of this Final Judgment is in the public interest.

    Dated this ________ day of ____________, 1995.

United States District Judge.

In the United States District Court Northern District of California
    In the matter of: United States of America, Plaintiff, v. Oregon 
Dental Service, defendant.

[Civil No. C95 1211]

Competitive Impact Statement

    Pursuant to Section 2(b) of the Antitrust Procedures and Penalties 
Act, 15 U.S.C. Sec. 16(b)-(h), the United States submits this 
Competitive Impact Statement relating to the proposed Final Judgment 
(or ``the Judgment'') submitted for entry against and with the consent 
of Oregon Dental Service (``ODS'' or ``the defendant'') in this civil 
proceeding.

I. Nature and Purpose of the Proceeding

    On April 10, 1995, the United States filed this single-count civil 
antitrust suit alleging that ODS, an Oregon non-profit corporation 
which does business in the Northern District of California, entered 
into a combination in unreasonable restraint of trade consisting of 
agreements to restrain price competition for dental services in 
violation of Section 1 of the Sherman Act, 15 U.S.C. 1. Plaintiff asked 
the Court to find that the defendant has violated Section 1 of the 
Sherman Act and further asked the Court to enjoin the continuation of 
the combination.
    Entry of the proposed Final Judgment will terminate the action, 
except that the Court will retain jurisdiction over the matter for any 
further proceedings required to interpret, enforce or modify the 
judgment or to punish violations of any of its provisions.

II. Practices Giving Rise to the Violation

    ODS is an Oregon non-profit corporation. ODS' principal place of 
business is in Portland, Oregon. It was created by the Oregon Dental 
Association, a professional association of dentists. Dentists hold the 
majority of positions on ODS' Board of Directors. ODS contracts with 
businesses, governmental agencies, and other organizations to provide 
pre-paid dental care coverage to their employees. ODS contracts 
directly with dentists or groups of dentists to provide dental services 
to patients who are members of those covered groups. [[Page 21221]] 
    ODS compensates its participating provider dentists for their 
services on the basis of a fee for service, determined in part through 
fee schedules submitted by each dentist. ODS sets its maximum allowable 
fee at the 90th percentile of all fees for a procedure submitted to it 
by participating dentists. That is, the maximum allowable fee is equal 
to or greater than the fees charged by 90% of participating dentists. 
If 10 or fewer of a dentist's filed fees are above this 90th 
percentile, ODS informs the dentist of the maximum amount that it will 
pay for the service. Most participating dentists file fee schedules 
proposing to charge above the maximum allowable fee for 10 or fewer 
procedures, so they are informed of exactly what fee they may charge 
and can avoid lowering their fees more than necessary to receive 
payment from ODS. If the dentist agrees to charge that amount, he or 
she signs the notification and returns it to ODS.
    In excess of 90 percent of the dentists in the state of Oregon have 
provider contracts with ODS. For most of these dentist, payments from 
treatment of ODS patients are a significant part of their income. Most 
of these dentists are in independent, private practice and actually or 
potentially compete with other participating ODS dentists to provide 
dental service to both ODS and non-ODS patients.
    ODS' participating dentists agree to abide by ODS rules and 
policies, which contain what is called a ``most favored nation'' clause 
(``MFN''). The MFN requires that each dentist charge ODS the lowest 
price that dentist charges any other group. Accordingly, if a dentist 
reduces fees to a competing dental plan, the MFN requires that the 
dentist also reduce fees to ODS. The United States alleges that the 
effect of the MFN has been to require participating ODS dentists to 
charge other dental plans and non-ODS patients fees that are as high as 
or higher than the fees charged to ODS.
    The Complaint alleges that, beginning at a time unknown to the 
plaintiff and continuing through at least September 1994, ODS and 
others engaged in a combination in unreasonable restraint of interstate 
trade and commerce in violation of Section 1 of the Sherman Act, 15 
U.S.C. 1. The Complaint alleges that the combination ended in September 
1994, when ODS voluntarily terminated the MFN for business reasons.
    To form and effectuate this combination, ODS adopted and enforced 
an MFN in its rules and policies which dentists were contractually 
obligated to adhere to, received and disseminated information on the 
maximum allowable fees for certain procedures, and obtained signed 
commitments from participating dentists to charge the maximum allowable 
fees.
    Had this case proceeded to trial, the plaintiff was prepared to 
prove that the combination unreasonably restrained price competition 
among dentists and between other dental insurance plans and ODS, and 
stabilized prices for dental services.
    ODS' adoption and enforcement of the MFN restrained price 
competition among Oregon dentists for the provision of dental services 
because it caused significant numbers of dentists to refuse to discount 
their fees. Before the MFN was enforced, certain Oregon dentists had 
reduced their fees to ODS competitors in order to participate in the 
competitors' managed-care plans. Others had indicated a willingness to 
do so.
    After ODS began enforcing the MFN, however, most participating 
dentists refused to discount their fees to non-ODS patients or 
competing discount dental plans because, if they did, the MFN would 
require them to also lower all of their fees to ODS. Since most 
dentists in Oregon receive a significant portion of their income from 
treating ODS patients, the cost to those dentists of discounting their 
fees on non-ODS patients or competing dental care plans became too 
great to justify discounting. For the same reason, it was too costly 
for most dentists to drop their participation in ODS' plan in order to 
avoid the MFN and be able to discount their fees to competing discount 
dental plans. Consequently, the MFN substantially reduced discounting 
that was occurring and, had it continued in force, would have deterred 
future discounting.
    The plaintiff was also prepared to prove that the combination 
unreasonably restrained competition between ODS and other dental 
insurance plans. Because of the MFN and its effect on the willingness 
of dentists to join discount dental plans, competing discount plans 
were unable to attract and keep a sufficiently large qualified, and 
geographically varied panel of dentists to adequately serve their 
members and make their plans commercially marketable to employer and 
other groups. Some plans left the market or had their ability to 
attract and serve patient groups severely restricted, leading to a 
substantial reduction in their ability to complete with ODS.
    The combination deprived Oregon consumers of price competition 
among dentists who stopped discounting their fees. Consumers were also 
deprived of choices of competing dental insurance plans offering 
different combinations of dentists, services, and prices.
    Moreover, the plaintiff was prepared to prove that ODS' revealing 
the maximum acceptable fees to those dentists with 10 or fewer 
procedures over the maximum prevented those fees from falling below the 
maximum and effectively stabilized those fees at the maximum acceptable 
level--a level higher than they might otherwise have been. As a result, 
consumers were further deprived of price competition among dentists.

III. Explanation of the Proposed Final Judgment

    The plaintiff and ODS have stipulated that the Court may enter the 
proposed Final Judgment after compliance with the Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16(b)-(h). The proposed Final Judgment 
provides that its entry does not constitute any evidence against or 
admission of any party with respect to any issue of law or fact.
    Under the provisions of Section 2(e) of the Antitrust Procedures 
and Penalties Act, 15 U.S.C. 16(e), the proposed Final Judgment may not 
be entered unless the Court finds that entry is in the public interest. 
Section VIII of the proposed Final Judgment sets forth such a finding.
    The proposed Final Judgment is intended to ensure that ODS does not 
reinstate its MFN and ceases disclosing its maximum allowable fees to 
participating dentists. The proposed Final Judgment also prohibits ODS 
from taking any other action that may influence dentists' decisions 
regarding the discounting of fees.

A. Scope of the Proposed Final Judgment

    Section III of the proposed Final Judgment provides that the Final 
Judgment shall apply to ODS and to ODS' officers, employees, members 
acting as corporate policy makers, directors, successors, assigns, 
subsidiaries, divisions and any other organizational units of any kind, 
and to all other persons in active concert or participation with any of 
them.
    In the Stipulation to the proposed Final Judgment, ODS has agreed 
to be bound by the terms of the proposed Final Judgment, pending its 
approval by the Court.

B. Prohibitions and Obligations

    Under Section IV of the proposed Final Judgment, ODS is enjoined 
and restrained for a period of five years from maintaining, adopting, 
or enforcing an MFN or similar provision in 
[[Page 21222]] participating dentist agreements or by any other means 
or methods, or by taking any other action, directly or indirectly, to 
influence or attempt to influence any dentist to refrain from offering 
discount fees to any person or dental plan or to refrain from 
participating in any dental plan. ODS is also enjoined and restrained 
for a period of five years from disclosing or in any way directly 
revealing to a dentist or dentists the maximum allowable or acceptable 
fee for a dental procedure or procedures.
    The proposed Final Judgment also provides that the plaintiff will 
have access to information to enforce the judgment.

C. Effect of the Proposed Final Judgment on Competition

    The relief required by the proposed Final Judgment will prohibit 
reinstatement of a substantial restraint on price competition among 
dentists and between ODS and other dental plans in Oregon, by ensuring 
that ODS will not adopt or enforce the limitations on dentists' 
abilities to discount created by the MFN. The proposed Final Judgment 
will also prohibit ODS from taking any other action which might 
discourage participating dentists from discounting or participating in 
competing discount plans. As a result, dentists will be free to 
discount or to join other discount plans, and discount dental plans 
will no longer be prevented by ODS' actions from attracting and 
maintaining viable panels of dentists to serve their members.
    Finally, the relief required by the proposed Final Judgment will 
prohibit ODS' dissemination of the maximum fee amount for particular 
procedures. Without the information provided by ODS, dentists will have 
to determine independently the fees to charge for their services.
    The prohibitions in the proposed Final Judgment will restore to 
dental consumers the benefits of free and open competition that were 
suppressed by ODS' adoption and enforcement of the MFN. The proposed 
Final Judgment prohibits ODS from reinstating the MFN during the term 
of the Final Judgment.

IV. Alternatives to the Proposed Final Judgment

    The alternative to the proposed Final Judgment is a full trial on 
the merits of the case. Such a trial would involve substantial cost to 
the United States and the defendant and is not warranted because the 
proposed Final Judgment provides all the relief that is needed to 
remedy the violations of the Sherman Act alleged in the United States' 
complaint.

V. Remedies Available to Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal court to recover three times 
the damages suffered, as well as costs and reasonable attorney's fees. 
Entry of the proposed Final Judgment will neither impair nor assist in 
the bringing of such actions. Under the provisions of Section 5(a) of 
the Clayton Act, 15 U.S.C. 16(a), the Final Judgment has no prima facie 
effect in any subsequent lawsuits that may be brought against the 
defendant in this matter.

VI. Procedures Available for Modification of the Proposed Final 
Judgment

    As provided in the Antitrust Procedures and Penalties Act, any 
person believing that the proposed judgment should be modified may 
submit written comments to Christopher S Crook, Acting Chief, San 
Francisco Office, Department of Justice, Antitrust Division, 450 Golden 
Gate Avenue, San Francisco, California, 94102-3478, within the 60-day 
period provided by the Act. These comments, and the plaintiff's 
responses to them, will be filed with the Court and published in the 
Federal Register. All comments will be given due consideration by the 
Department of Justice, which remains free, pursuant to the Stipulation, 
to withdraw its consent to the proposed Final Judgment at any time 
prior to its entry if The Department should determine that some 
modification of the judgment is necessary to the public interest. The 
proposed Final Judgment provides that the Court will retain 
jurisdiction over this action, and that the parties may apply to the 
Court for such orders as may be necessary or appropriate for the 
modification, interpretation, or enforcement of the Judgment.

VII. Determinative Documents

    No materials and documents of the type described in Section 2(b) of 
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b), were 
considered in formulating the proposed Judgment. Consequently, none are 
filed herewith.

    Dated: April 10, 1995.

    Respectfully submitted,
Barbara J. Nelson,
Phillip R. Malone,
Carla G. Addicks,
Antitrust Division, U.S. Department of Justice.
[FR Doc. 95-10596 Filed 4-28-95; 8:45 am]
BILLING CODE 4410-01-M