[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Notices]
[Pages 39935-39936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14968]


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FEDERAL TRADE COMMISSION

[File No. 031 0155]


Robert Lewis, James Sowder, Gerald Wear, and Joel R. Yoseph; 
Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before July 13, 2004.

ADDRESSES: Comments should refer to ``Robert Lewis, James Sowder, 
Gerald Wear, and Joel R. Yoseph, File No. 031 0155,'' to facilitate the 
organization of comments. A comment filed in paper form should include 
this reference both in the text and on the envelope, and should be 
mailed or delivered to the following address: Federal Trade Commission/
Office of the Secretary, Room H-159, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580. Comments containing confidential material must be 
filed in paper form, as explained in the Supplementary Information 
section. The FTC is requesting that any comment filed in paper form be 
sent by courier or overnight service, if possible, because U.S. postal 
mail in the Washington area and at the Commission is subject to delay 
due to heightened security precautions. Comments filed in electronic 
form (except comments containing any confidential material) should be 
sent to the following e-mail box: [email protected].

FOR FURTHER INFORMATION CONTACT: Joe Lipinsky, FTC Northwest Regional 
Office, 915 Second Avenue, Suite 2896, Seattle, WA 98174, (206) 220-
4473.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Section 2.34 
of the Commission's Rules of Practice, 16 CFR 2.34, notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of thirty (30) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for June 14, 2004), on the World Wide Web, at http://www.ftc.gov/os/2004/06/index.htm. A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, 
DC 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. Written comments must be submitted 
on or before July 13, 2004. Comments should refer to ``Robert Lewis, 
James Sowder, Gerald Wear, and Joel R. Yoseph, File No. 031 0155,'' to 
facilitate the organization of comments. A comment filed in paper form 
should include this reference both in the text and on the envelope, and 
should be mailed or delivered to the following address: Federal Trade 
Commission/Office of the Secretary, Room H-159, 600 Pennsylvania 
Avenue, NW., Washington, DC 20580. If the comment contains any material 
for which confidential treatment is requested, it must be filed in 
paper (rather than electronic) form, and the first page of the document 
must be clearly labeled ``Confidential.'' \1\ The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because U.S. postal mail in the Washington area 
and at the Commission is subject to delay due to heightened security 
precautions. Comments filed in electronic form should be sent to the 
following e-mail box: [email protected].
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments, whether filed 
in paper or electronic form, will be considered by the Commission, and 
will be available to the public on the FTC Web site, to the extent 
practicable, at www.ftc.gov. As a matter of discretion, the FTC makes 
every effort to remove home contact information for individuals from 
the public comments it receives before placing those comments on the 
FTC Web site. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
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    \1\ Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be 
accompanied by an explicit request for confidential treatment, 
including the factual and legal basis for the request, and must 
identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
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Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, an agreement containing a proposed consent order with Robert 
Lewis, James Sowder, Gerald Wear and Joel R. Yoseph. The Respondents 
are attorneys who provide criminal defense services to indigents in 
Clark County, Washington. The agreement settles charges that these 
parties violated Section 5 of the Federal Trade Commission Act, 15 
U.S.C. 45, by orchestrating and implementing a conspiracy among 43 
competing attorneys to fix prices and other terms charged for providing 
criminal defense services to indigents.
    The proposed consent order has been placed on the public record for 
30 days to receive comments from interested persons. Comments received 
during this period will become part of the public

[[Page 39936]]

record. After 30 days, the Commission will review the agreement and the 
comments received and will decide whether it should withdraw from the 
agreement or make the proposed order final.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. The analysis is not intended to constitute an official 
interpretation of the agreement and proposed order or to modify their 
terms in any way. Further, the proposed consent order has been entered 
into for settlement purposes only and does not constitute an admission 
by any Respondent that said Respondent violated the law or that the 
facts alleged in the complaint (other than jurisdictional facts) are 
true.

The Complaint

    The allegations of the complaint are summarized below.
    In Clark County, Washington, criminal defense services for indigent 
defendants are provided by private attorneys working in individual 
practices or as members of small law firms, who work under contract 
with Clark County. Those attorneys were and are separate and 
independent competitors of one another in all material respects.
    Near the end of 2001, Clark County started its biennial contract 
negotiations with the attorneys who had provided criminal indigent 
defense services during the preceding contract period. Early in these 
negotiations, the Respondents presented the County with a document 
titled ``Indigent Defense Bar Consortium Contract'' (hereinafter 
``Consortium Contract'') signed by 43 of the attorneys who had 
previously signed felony contracts with the County. In that document, 
the Respondents and their colleagues purported to form a ``Consortium'' 
and stated their intention to authorize the Consortium, as represented 
by the Respondents, to be the sole negotiator on behalf of all 
signatories. The document further stated the signatories' collective 
demand to alter the payment methodology and substantially increase the 
payment for all homicide, attempted homicide, persistent offender and 
death penalty cases. The signatories also stated their intention to 
refuse to accept any further such cases unless the County acceded to 
their demands, and authorized the Consortium to take legal action 
against any signatory who agreed to provide criminal defense services 
on terms inconsistent with those demanded by the Consortium.
    After receiving the document from the Respondents, Clark County 
agreed to a new contract adopting the payment methodology demanded by 
the Consortium and substantially increasing reimbursement rates for all 
homicide, attempted homicide, persistent offender and death penalty 
cases. The Respondents, by orchestrating the formation of the 
Consortium and threatening the County with a refusal to deal, have 
violated Section 5 of the FTC Act.

The Proposed Consent Order

    The proposed order is designed to remedy the illegal conduct 
charged in the complaint and prevent its recurrence. It is modeled 
after the remedy sought by the Commission and approved by the Supreme 
Court in Federal Trade Commission v. Superior Court Trial Lawyers 
Association, 493 U.S. 411 (1990), in which the Court held that a 
boycott among criminal indigent defense attorneys was a per se 
violation of the antitrust laws, despite the lawyers' claims that the 
boycott was a political act ostensibly designed to improve the quality 
of representation by increasing their reimbursement rates. The Court 
observed that ``[n]o matter how altruistic the motives of respondents 
may have been, it is undisputed that their immediate objective was to 
increase the price that they would be paid for their services.'' 493 
U.S. at 427.
    The proposed order's specific provisions are as follows:
    Paragraph II.A prohibits the Respondents from entering into or 
facilitating any agreement between or among any attorneys: (1) To 
negotiate with payors on any attorney's behalf; (2) to deal, to refuse 
to deal, or to threaten to refuse to deal with payors; (3) regarding 
the terms of dealing with any payor; or (4) not to deal individually 
with any payor.
    Other parts of Paragraph II reinforce these general prohibitions. 
Paragraph II.B prohibits the Respondents from facilitating exchanges of 
information between attorneys concerning whether, or on what terms, to 
deal with a payor. Paragraph II.C bars attempts to engage in any action 
prohibited by Paragraph II.A or II.B; and Paragraph II.D proscribes 
inducing anyone to engage in any action prohibited by Paragraphs II.A 
through II.C.
    Paragraph II contains a proviso clarifying that the order does not 
prohibit rights to petition government officials, as guaranteed by the 
First Amendment, nor does the order prohibit the Respondents from 
providing information or views to the County or its representatives.
    Paragraphs III, IV and V impose various obligations on Respondents 
to report or provide access to information to the Commission to 
facilitate monitoring Respondents' compliance with the order.
    The proposed order will expire in 20 years.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-14968 Filed 6-30-04; 8:45 am]
BILLING CODE 6750-01-P