[Federal Register Volume 80, Number 129 (Tuesday, July 7, 2015)]
[Notices]
[Pages 38736-38745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16585]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States and State of Michigan v. Hillsdale Community Health 
Center, et al.; 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 a proposed Final Judgment, 
Stipulation and Order, and Competitive Impact Statement have been filed 
with the United States District Court for the Eastern District of 
Michigan in United States and State of Michigan v. Hillsdale Community 
Health Center, et al., Civil Action No. 15-cv-12311 (JEL) (DRG). On 
June 25, 2015, the United States and the State of Michigan filed a 
Complaint alleging that Defendant Hillsdale Community Health Center 
(``Hillsdale'') entered into agreements with Defendants W.A. Foote 
Memorial Hospital, d/b/a Allegiance Health (``Allegiance''), Community 
Health Center of Branch County (``Branch''), and ProMedica Health 
System (``ProMedica'') that unlawfully allocated territories for the 
marketing of competing healthcare services in violation of section 1 of 
the Sherman Act, 15 U.S.C. 1, and section 2 of the Michigan Antitrust 
Reform Act, MCL 445.772. The proposed Final Judgment, submitted at the 
same time as the Complaint, prohibits the settling Defendants--
Hillsdale, Branch, and ProMedica--from agreeing with other healthcare 
providers to prohibit or limit marketing or to divide any geographic 
market or territory. The proposed Final Judgment also prohibits the 
settling Defendants from communicating with other Defendants about 
marketing plans, with limited exceptions.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection at the Department of 
Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth 
Street NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), 
on the Department of Justice's Web site at http://www.justice.gov/atr, 
and at the Office of the Clerk of the United States District Court for 
the Eastern District of Michigan. Copies of these materials may be 
obtained from the Antitrust Division upon request and payment of the 
copying fee set by Department of Justice regulations.
    Public comment on the proposed Final Judgment is invited within 60 
days of the date of this notice. Such comments, including the name of 
the submitter, and responses thereto, will be posted on the U.S. 
Department of Justice, Antitrust Division's internet Web site, filed 
with the Court and, under certain circumstances, published in the 
Federal Register. Comments should be directed to Peter J. Mucchetti, 
Chief, Litigation I Section, Antitrust Division, Department of Justice, 
450

[[Page 38737]]

Fifth Street NW., Suite 4100, Washington, DC 20530 (telephone: 202-307-
0001).

Patricia A. Brink,
Director of Civil Enforcement.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

    UNITED STATES OF AMERICA and STATE OF MICHIGAN, Plaintiffs, v. 
HILLSDALE COMMUNITY HEALTH CENTER, W.A. FOOTE MEMORIAL HOSPITAL, D/B/A 
ALLEGIANCE HEALTH, COMMUNITY HEALTH CENTER OF BRANCH COUNTY, and 
PROMEDICA HEALTH SYSTEM, INC., Defendants.
CASE NO.: 2:15-cv-12311
Hon. Judith E. Levy

COMPLAINT

    The United States of America and the State of Michigan bring this 
civil antitrust action to enjoin agreements by Defendants Hillsdale 
Community Health Center (``Hillsdale''), W.A. Foote Memorial Hospital, 
d/b/a Allegiance Health (``Allegiance''), Community Health Center of 
Branch County (``Branch''), and ProMedica Health System, Inc. 
(``ProMedica'') (collectively, ``Defendants'') that unlawfully allocate 
territories for the marketing of competing healthcare services and 
limit competition among Defendants.

NATURE OF THE ACTION

    1. Defendants are healthcare providers in Michigan that operate the 
only general acute-care hospital or hospitals in their respective 
counties. Defendants directly compete with each other to provide 
healthcare services to the residents of south-central Michigan. 
Marketing is a key component of this competition and includes 
advertisements, mailings to patients, health fairs, health screenings, 
and outreach to physicians and employers.
    2. Allegiance, Branch, and ProMedica's Bixby and Herrick Hospitals 
(``Bixby and Herrick'') are Hillsdale's closest Michigan competitors. 
Hillsdale orchestrated agreements to limit marketing of competing 
healthcare services. Allegiance explained in a 2013 oncology marketing 
plan: ``[A]n agreement exists with the CEO of Hillsdale Community 
Health Center, Duke Anderson, to not conduct marketing activity in 
Hillsdale County.'' Branch's CEO described the Branch agreement with 
Hillsdale as a ``gentlemen's agreement not to market services.'' A 
ProMedica communications specialist described the ProMedica agreement 
with Hillsdale in an email: ``The agreement is that they stay our [sic] 
of our market and we stay out of theirs unless we decide to collaborate 
with them on a particular project.''
    3. The Defendants' agreements have disrupted the competitive 
process and harmed patients, physicians, and employers. For instance, 
all of these agreements have deprived patients, physicians, and 
employers of information they otherwise would have had when making 
important healthcare decisions. In addition, the agreement between 
Allegiance and Hillsdale has deprived Hillsdale County patients of free 
medical services such as health screenings and physician seminars that 
they would have received but for the unlawful agreement. Moreover, it 
denied Hillsdale County employers the opportunity to develop 
relationships with Allegiance that could have allowed them to improve 
the quality of their employees' medical care.
    4. Defendants' senior executives created and enforced these 
agreements, which lasted for many years. On certain occasions when a 
Defendant violated one of the agreements, executives of the aggrieved 
Defendant complained about the violation and received assurances that 
the previously agreed upon marketing restrictions would continue to be 
observed going forward.
    5. Defendants' agreements are naked restraints of trade that are 
per se unlawful under Section 1 of the Sherman Act, 15 U.S.C. 1, and 
Section 2 of the Michigan Antitrust Reform Act, MCL 445.772.

JURISDICTION, VENUE, AND INTERSTATE COMMERCE

    6. The United States brings this action pursuant to Section 4 of 
the Sherman Act, 15 U.S.C. 4, to prevent and restrain Defendants' 
violations of Section 1 of the Sherman Act, 15 U.S.C. 1. The State of 
Michigan brings this action in its sovereign capacity under its 
statutory, equitable and/or common law powers, and pursuant to Section 
16 of the Clayton Act, 15 U.S.C. 26, to prevent and restrain 
Defendants' violations of Section 2 of the Michigan Antitrust Reform 
Act, MCL 445.772.
    7. This Court has subject matter jurisdiction over this action 
under Section 4 of the Sherman Act, 15 U.S.C. 4 (as to claims by the 
United States); Section 16 of the Clayton Act, 15 U.S.C. 26 (as to 
claims by the State of Michigan); and 28 U.S.C. 1331, 1337(a), 1345, 
and 1367.
    8. Venue is proper in the Eastern District of Michigan under 28 
U.S.C. 1391 and Section 12 of the Clayton Act, 15 U.S.C. 22. Each 
Defendant transacts business within the Eastern District of Michigan, 
all Defendants reside in the State of Michigan, and at least two 
Defendants reside in the Eastern District of Michigan.
    9. Defendants all engage in interstate commerce and in activities 
substantially affecting interstate commerce. Defendants provide 
healthcare services to patients for which employers, health plans, and 
individual patients remit payments across state lines. Defendants 
purchase supplies and equipment from out-of-state vendors that are 
shipped across state lines.

DEFENDANTS

    10. Hillsdale is a Michigan corporation headquartered in Hillsdale, 
Michigan. Its general acute-care hospital, which is in Hillsdale 
County, Michigan, has 47 beds and a medical staff of over 90 
physicians.
    11. Allegiance is a Michigan corporation headquartered in Jackson, 
Michigan. Its general acute-care hospital, which is in Jackson County, 
Michigan, has 480 beds and a medical staff of over 400 physicians.
    12. Branch is a Michigan corporation headquartered in Coldwater, 
Michigan. Its general acute-care hospital, which is in Branch County, 
Michigan, has 87 beds and a medical staff of over 100 physicians.
    13. ProMedica is an Ohio corporation headquartered in Toledo, Ohio, 
with facilities in northwest Ohio and southern Michigan. ProMedica's 
Bixby and Herrick Hospitals are both in Lenawee County, Michigan. Bixby 
is a general acute-care hospital with 88 beds and a medical staff of 
over 120 physicians. Herrick is a general acute-care hospital with 25 
beds and a medical staff of over 75 physicians.

[[Page 38738]]

[GRAPHIC] [TIFF OMITTED] TN07JY15.099

BACKGROUND ON HOSPITAL COMPETITION

    14. Hillsdale competes with each of the other Defendants to provide 
many of the same hospital and physician services to patients. Hospitals 
compete on price, quality, and other factors to sell their services to 
patients, employers, and insurance companies. An important tool that 
hospitals use to compete for patients is marketing aimed at informing 
patients, physicians, and employers about a hospital's quality and 
scope of services. An executive from each Defendant has testified at 
deposition that marketing is an important strategy through which 
hospitals seek to increase their patient volume and market share.
    15. Defendants' marketing includes advertisements through mailings 
and media such as local newspapers, radio, television, and billboards. 
Allegiance's marketing to patients also includes the provision of free 
medical services, such as health screenings, physician seminars, and 
health fairs. Some Defendants also market to physicians through 
educational and relationship-building meetings that provide physicians 
with information about those Defendants' quality and range of services. 
Allegiance also engages in these marketing activities with employers.

HILLSDALE'S UNLAWFUL AGREEMENTS

    16. Hillsdale has agreements limiting competition with Allegiance, 
ProMedica, and Branch.
Unlawful Agreement Between Hillsdale and Allegiance
    17. Since at least 2009, Hillsdale and Allegiance have had an 
agreement that limits Allegiance's marketing for competing services in 
Hillsdale County. As Allegiance explained in a 2013 oncology marketing 
plan: ``[A]n agreement exists with the CEO of Hillsdale Community 
Health Center, Duke Anderson, to not conduct marketing activity in 
Hillsdale County.''
    18. In compliance with this agreement, Allegiance has excluded 
Hillsdale County from marketing campaigns since at least 2009. For 
example, Allegiance excluded Hillsdale County from the marketing plans 
outlined in the above-referenced 2013 oncology marketing plan. And 
according to a February 2014 board report, Allegiance excluded 
Hillsdale from marketing campaigns for cardiovascular and orthopedic 
services.
    19. On at least two occasions, Hillsdale's CEO complained to 
Allegiance after Allegiance sent marketing materials to Hillsdale 
County residents. Both times--at the direction of Allegiance CEO 
Georgia Fojtasek--Allegiance's Vice President of Marketing, Anthony 
Gardner, apologized in writing to Hillsdale's CEO. In one apology he 
said, ``It isn't our style to purposely not honor our agreement.'' Mr. 
Gardner assured Hillsdale's CEO that Allegiance would not repeat this 
mistake.
    20. Allegiance also conveyed its hands-off approach to Hillsdale in 
2009 when Ms. Fojtasek told Hillsdale's CEO that Allegiance would take 
a ``Switzerland'' approach towards Hillsdale, and then confirmed this 
approach by mailing Hillsdale's CEO a Swiss flag.
    21. Allegiance executives and staff have discussed the agreement in 
numerous correspondences and business documents. For example, 
Allegiance staff explained in a 2012 cardiovascular services analysis: 
``Hillsdale does not permit [Allegiance] to conduct free vascular 
screens as they periodically charge for screenings.'' As a result, 
around that time, Hillsdale County patients were deprived of free 
vascular-health screenings.
    22. In another instance, in 2014 Allegiance discouraged one of its 
newly employed physicians from giving a seminar in Hillsdale County 
relating to competing services. In response to the physician's request 
to provide the

[[Page 38739]]

seminar, the Allegiance Marketing Director asked the Vice President of 
Physician Integration and Business Development: ``Who do you think is 
the best person to explain to [the doctor] our restrictions in 
Hillsdale? We're happy to do so but often our docs find it hard to 
believe and want a higher authority to confirm.''
    23. The agreement between Hillsdale and Allegiance has deprived 
Hillsdale County patients, physicians, and employers of information 
regarding their healthcare-provider choices and of free health-
screenings and education.
Unlawful Agreement Between Hillsdale and ProMedica
    24. Since at least 2012, Hillsdale and ProMedica have agreed to 
limit their marketing for competing services in one another's county.
    25. This agreement has restrained marketing in several ways. For 
example, in June 2012, Bixby and Herrick's President asked Hillsdale's 
CEO if he would have any issue with Bixby marketing its oncology 
services to Hillsdale physicians. Hillsdale's CEO replied that he 
objected because his hospital provided those services. Bixby and 
Herrick's President responded that he understood. Bixby and Herrick 
then refrained from marketing their competing oncology services in 
Hillsdale County.
    26. Another incident occurred around January 2012, when Hillsdale's 
CEO complained to Bixby and Herrick's President about the placement of 
a ProMedica billboard across from a physician's office in Hillsdale 
County. At the conclusion of the conversation, Bixby and Herrick's 
President assured Hillsdale's CEO that he would check into taking down 
the billboard.
    27. ProMedica employees have discussed and acknowledged the 
agreement in multiple documents. For example, after Hillsdale's CEO 
called Bixby and Herrick's President to complain about ProMedica's 
billboard, a ProMedica communications specialist described the 
agreement to marketing colleagues via email: ``According to [Bixby and 
Herrick's President] any potential marketing (including network 
development) efforts targeted for the Hillsdale, MI market should be 
run by him so that he can talk to Hillsdale Health Center in advance. 
The agreement is that they stay our [sic] of our market and we stay out 
of theirs unless we decide to collaborate with them on a particular 
project.''
    28. The agreement between Hillsdale and ProMedica deprived 
patients, physicians, and employers of Hillsdale and Lenawee Counties 
of information regarding their healthcare-provider choices.
Unlawful Agreement Between Hillsdale and Branch
    29. Since at least 1999, Hillsdale and Branch have agreed to limit 
marketing in one another's county. In the fall of 1999, Hillsdale's 
then-CEO and Branch's CEO reached an agreement whereby each hospital 
agreed not to market anything but new services in the other hospital's 
county. Branch's CEO testified recently in deposition that ``There's a 
gentlemen's agreement not to market services other than new services.''
    30. Branch has monitored Hillsdale's compliance with the agreement. 
For example, in November 2004, Hillsdale promoted one of its physicians 
through an advertisement in the Branch County newspaper. Branch's CEO 
faxed Hillsdale's then-CEO a copy of the advertisement, alerting him to 
the violation of their agreement.
    31. In addition to monitoring Hillsdale's compliance, Branch has 
directed its marketing employees to abide by the agreement with 
Hillsdale. For example, Branch's 2013 guidelines for sending out media 
releases instructed that it had a ``gentleman's agreement'' with 
Hillsdale and thus Branch should not send media releases to the 
Hillsdale Daily News.
    32. The agreement between Hillsdale and Branch deprived Hillsdale 
and Branch County patients, physicians, and employers of information 
regarding their healthcare-provider choices.

NO PROCOMPETITIVE JUSTIFICATIONS

    33. The Defendants' anticompetitive agreements are not reasonably 
necessary to further any procompetitive purpose.

VIOLATIONS ALLEGED

First Cause of Action: Violation of Section 1 of the Sherman Act
    34. Plaintiffs incorporate paragraphs 1 through 33.
    35. Allegiance, Branch, and ProMedica are each a horizontal 
competitor of Hillsdale in the provision of healthcare services in 
south-central Michigan. Defendants' agreements are facially 
anticompetitive because they allocate territories for the marketing of 
competing healthcare services and limit competition among Defendants. 
The agreements eliminate a significant form of competition to attract 
patients.
    36. The agreements constitute unreasonable restraints of trade that 
are per se illegal under Section 1 of the Sherman Act, 15 U.S.C. 1. No 
elaborate analysis is required to demonstrate the anticompetitive 
character of these agreements.
    37. The agreements are also unreasonable restraints of trade that 
are unlawful under Section 1 of the Sherman Act, 15 U.S.C. 1, under an 
abbreviated or ``quick look'' rule of reason analysis. The principal 
tendency of the agreements is to restrain competition. The nature of 
the restraints is obvious, and the agreements lack legitimate 
procompetitive justifications. Even an observer with a rudimentary 
understanding of economics could therefore conclude that the agreements 
would have anticompetitive effects on patients, physicians, and 
employers, and harm the competitive process.
Second Cause of Action: Violation of MCL 445.772
    38. Plaintiff State of Michigan incorporates paragraphs 1 through 
37 above.
    39. Defendants entered into unlawful agreements with each other 
that unreasonably restrain trade and commerce in violation of Section 2 
of the Michigan Antitrust Reform Act, MCL 445.772.

REQUESTED RELIEF

    The United States and the State of Michigan request that the Court:
    (A) judge that Defendants' agreements limiting competition 
constitute illegal restraints of interstate trade in violation of 
Section 1 of the Sherman Act, 15 U.S.C. 1, and Section 2 of the 
Michigan Antitrust Reform Act, MCL 445.772;
    (B) enjoin Defendants and their members, officers, agents, and 
employees from continuing or renewing in any manner the conduct alleged 
herein or from engaging in any other conduct, agreement, or other 
arrangement having the same effect as the alleged violations;
    (C) enjoin each Defendant and its members, officers, agents, and 
employees from communicating with any other Defendant about any 
Defendant's marketing in its or the other Defendant's county, unless 
such communication is related to the joint provision of services, or 
unless the communication is part of normal due diligence relating to a 
merger, acquisition, joint venture, investment, or divestiture;
    (D) require Defendants to institute a comprehensive antitrust 
compliance program to ensure that Defendants do not establish any 
similar agreements and that Defendants' members, officers, agents and 
employees are fully informed of the application of the antitrust laws

[[Page 38740]]

to hospital restrictions on competition; and
    (E) award Plaintiffs their costs in this action, including 
attorneys' fees and investigation costs to the State of Michigan, and 
such other relief as may be just and proper.

Dated: June 25, 2015

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA:

WILLIAM J. BAER
Assistant Attorney General for Antitrust

DAVID I. GELFAND
Deputy Assistant Attorney General

KATRINA ROUSE (D.C. Bar #1013035)

JENNIFER HANE

JOSEPH POTCHEN
Division Chief

BARRY JOYCE
Attorneys, Litigation I, Antitrust Division, U.S. Department of 
Justice, 450 Fifth Street, N.W., Suite 4100, Washington, D.C. 20530, 
(202) 305-7498, E-mail: [email protected]

LOCAL COUNSEL:
BARBARA L. McQUADE
United States Attorney

PETER CAPLAN
Assistant United States Attorney, 211 W. Fort Street, Suite 2001, 
Detroit, Michigan 48226, (313) 226-9784, P30643

FOR PLAINTIFF STATE OF MICHIGAN:
BILL SCHUETTE
Attorney General
State of Michigan

MARK GABRIELSE (P75163)
D.J. PASCOE,
Assistant Attorney Generals,  Michigan Department of Attorney 
General, Corporate Oversight Division, G. Mennen Williams Building, 
6th Floor, 525 W. Ottawa Street, Lansing, Michigan 48933, (517) 373-
1160, Email: [email protected]

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

    UNITED STATES OF AMERICA and STATE OF MICHIGAN, Plaintiffs, v. 
HILLSDALE COMMUNITY HEALTH CENTER, W.A. FOOTE MEMORIAL HOSPITAL, D/
B/A ALLEGIANCE HEALTH, COMMUNITY HEALTH CENTER OF BRANCH COUNTY, and 
PROMEDICA HEATLH SYSTEM, INC., Defendants.

Case No.: 2:15-cv-12311

Hon. Judith E. Levy

COMPETITIVE IMPACT STATEMENT

    Plaintiff United States of America, pursuant to Section 2(b) of 
the Antitrust Procedures and Penalties Act (``APPA'' or ``Tunney 
Act''), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement 
relating to the proposed Final Judgment submitted for entry in this 
civil antitrust proceeding.

I. NATURE AND PURPOSE OF THE PROCEEDING

    On June 25, 2015, the United States and the State of Michigan 
filed a civil antitrust Complaint alleging that Defendants Hillsdale 
Community Health Center (``Hillsdale''), W.A. Foote Memorial 
Hospital, d/b/a Allegiance Health (``Allegiance''), Community Health 
Center of Branch County (``Branch''), and ProMedica Health System, 
Inc. (``ProMedica'') violated Section 1 of the Sherman Act, 15 
U.S.C. 1, and Section 2 of the Michigan Antitrust Reform Act, MCL 
445.772. The Complaint alleges that Hillsdale agreed with its 
closest Michigan competitors to unlawfully allocate territories for 
the marketing of competing healthcare services and to limit 
competition between them. Specifically, according to the Complaint, 
Hillsdale entered into agreements with Allegiance, Branch, and 
ProMedica to limit marketing of competing healthcare services. The 
agreements eliminated a significant form of competition to attract 
patients and overall substantially diminished competition in south-
central Michigan. Defendants' agreements to allocate territories for 
marketing are per se illegal under Section 1 of the Sherman Act, 15 
U.S.C. 1, and Section 2 of the Michigan Antitrust Reform Act, MCL 
445.772.
    With the Complaint, the United States and the State of Michigan 
filed a Stipulation and proposed Final Judgment with respect to 
Hillsdale, Branch, and ProMedica (collectively ``Settling 
Defendants''). The proposed Final Judgment, as explained more fully 
below, enjoins Settling Defendants from (1) agreeing with any 
healthcare provider to prohibit or limit marketing or to allocate 
geographic markets or territories, and (2) communicating with any 
other Defendant about any Defendant's marketing in its or the other 
Defendant's county, subject to narrow exceptions.
    The United States, the State of Michigan, and the Settling 
Defendants have stipulated that the proposed Final Judgment may be 
entered after compliance with the APPA, unless the United States and 
the State of Michigan withdraw their consent. Entry of the proposed 
Final Judgment would terminate this action with respect to Settling 
Defendants, except that this Court would retain jurisdiction to 
construe, modify, and enforce the proposed Final Judgment and to 
punish violations thereof. The case against Allegiance will 
continue.

II. DESCRIPTION OF THE EVENTS GIVING RISE TO THE ALLEGED VIOLATIONS

A. Background on the Defendants and their Marketing Activities

    Allegiance, Branch, Hillsdale, and ProMedica's Bixby and Herrick 
Hospitals are general acute-care hospitals in adjacent counties in 
south-central Michigan. Defendants are the only hospital or 
hospitals in their respective counties. Hillsdale directly competes 
with each of the other Defendants to provide many of the same 
hospital and physician services to patients.
    An important tool that hospitals use to compete for patients is 
marketing aimed at informing patients, physicians, and employers 
about a hospital's quality and scope of services. Defendants' 
marketing includes advertisements through mailings and media, such 
as local newspapers, radio, television, and billboards. Allegiance's 
marketing efforts have also included the provision of free medical 
services, such as health screenings, physician seminars, and health 
fairs. Some Defendants also market to physicians through educational 
and relationship-building meetings that provide physicians with 
information about Defendants' quality and range of services. 
Allegiance also engages in these marketing meetings with employers.

B. Defendants' Unlawful Agreements to Limit Marketing

    Allegiance, Branch, and ProMedica's Bixby and Herrick Hospitals 
are Hillsdale's closest Michigan competitors. Hillsdale orchestrated 
agreements with each to limit marketing of competing healthcare 
services. Defendants' senior executives created and enforced these 
agreements, which have lasted for many years.

1. Unlawful Agreement Between Hillsdale and Allegiance

    Since at least 2009, Hillsdale and Allegiance have had an 
agreement that limits Allegiance's marketing for competing services 
in Hillsdale County. As Allegiance explained in a 2013 oncology 
marketing plan: ``[A]n agreement exists with the CEO of Hillsdale 
Community Health Center . . . to not conduct marketing activity in 
Hillsdale County.'' In compliance with this agreement, which 
Allegiance executives acknowledge in numerous documents, Allegiance 
has excluded Hillsdale County from marketing campaigns since at 
least 2009. Allegiance has on occasion apologized to Hillsdale for 
violating the agreement and assured Hillsdale that Allegiance would 
honor the previously agreed upon agreement going forward. And 
Allegiance has avoided giving free health benefits, such as 
physician seminars and health screenings, to residents of Hillsdale 
County because of the agreement. For example, Allegiance discouraged 
one of its newly employed physicians from giving a seminar relating 
to competing services in Hillsdale County. This unlawful agreement 
between Hillsdale and Allegiance has deprived Hillsdale County 
patients, physicians, and employers of information regarding their 
healthcare provider choices and of free health screenings and 
education.

1. Unlawful Agreement Between Hillsdale and ProMedica

    Since at least 2012, Hillsdale and ProMedica have agreed to 
limit their marketing for competing services in one another's 
county. As one ProMedica communications specialist described: ``The 
agreement is that they stay our [sic] of our market and we stay out 
of theirs unless we decide to collaborate with them on a particular 
project.'' This agreement has restrained the hospitals' marketing in 
each other's county. For example, in June 2012, Hillsdale's CEO 
refused to allow ProMedica to market competing oncology services in 
Hillsdale County. This unlawful agreement between Hillsdale and 
ProMedica deprived patients, physicians, and employers of Hillsdale 
and Lenawee Counties of information regarding their healthcare 
provider choices.

[[Page 38741]]

2. Unlawful Agreement Between Hillsdale and Branch

    Since at least 1999, Hillsdale and Branch have agreed to limit 
their marketing for competing services in one another's county. In 
the fall of 1999, Hillsdale's then-CEO and Branch's CEO reached an 
agreement whereby each hospital agreed not to market anything but 
new services in the other hospital's county. Branch's CEO testified 
recently in deposition that ``[t]here's a gentlemen's agreement not 
to market services other than new services.'' Branch has monitored 
Hillsdale's compliance with the agreement and directed its marketing 
employees to abide by the agreement. This unlawful agreement between 
Hillsdale and Branch deprived Hillsdale and Branch County patients, 
physicians, and employers of information regarding their healthcare 
provider choices.

3. Defendants' Marketing Agreements Are Per Se Illegal

    Defendants' agreements have disrupted the competitive process 
and harmed patients, physicians, and employers. For instance, the 
agreements have deprived patients, physicians, and employers of 
information they otherwise would have had when making important 
healthcare decisions. Another impact of the agreement between 
Allegiance and Hillsdale was to deprive Hillsdale County patients of 
free medical services such as health screenings and physician 
seminars that they would have received but for the unlawful 
agreement. Moreover, Allegiance's agreement with Hillsdale denied 
Hillsdale County employers the opportunity to receive information 
and to develop relationships that could have allowed them to improve 
the quality of their employees' medical care.
    Defendants' anticompetitive agreements are not reasonably 
necessary to further any procompetitive purpose. Each of the 
agreements among the Defendants allocates territories for marketing 
and constitutes a naked restraint of trade that is per se unlawful 
under Section 1 of the Sherman Act, 15 U.S.C. 1, and Section 2 of 
the Michigan Antitrust Reform Act, MCL 445.772. See United States v. 
Topco Assocs., Inc., 405 U.S. 596, 607-08 (1972) (holding that naked 
market allocation agreements among horizontal competitors are 
plainly anticompetitive and illegal per se); United States v. 
Cooperative Theatres of Ohio, Inc., 845 F.2d 1367, 1371, 1373 (6th 
Cir. 1988) (holding that the defendants' agreement to not ``actively 
solicit[] each other's customers'' was ``undeniably a type of 
customer allocation scheme which courts have often condemned in the 
past as a per se violation of the Sherman Act''); Blackburn v. 
Sweeney, 53 F.3d 825, 828 (7th Cir. 1995) (holding that the 
``[a]greement to limit advertising to different geographical regions 
was intended to be, and sufficiently approximates[,] an agreement to 
allocate markets so that the per se rule of illegality applies'').

III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT

    The proposed Final Judgment will prevent the continuation and 
recurrence of the violations alleged in the Complaint and restore 
the competition restrained by Settling Defendants' anticompetitive 
agreements. Section X of the proposed Final Judgment provides that 
these provisions will expire five years after its entry.

A. Prohibited Conduct

    Under Section IV of the proposed Final Judgment, Settling 
Defendants cannot agree with any healthcare provider to prohibit or 
limit marketing or to allocate geographic markets or territories. 
Settling Defendants are also prohibited from communicating with any 
other Defendant about any Defendant's marketing in its or the other 
Defendant's county, subject to narrow exceptions. There is an 
exception for communication about joint marketing if the 
communication is related to the joint provision of services, i.e., 
any past, present, or future coordinated delivery of any healthcare 
services by two or more healthcare providers. There is another 
exception for communications about marketing that are part of 
customary due diligence relating to a merger, acquisition, joint 
venture, investment, or divestiture.

B. Compliance and Inspection

    The proposed Final Judgment sets forth various provisions to 
ensure Defendants' compliance with the proposed Final Judgment. 
Section V of the proposed Final Judgment requires each Settling 
Defendant to appoint an Antitrust Compliance Officer within 30 days 
of the Final Judgment's entry. The Antitrust Compliance Officer must 
furnish copies of this Competitive Impact Statement, the Final 
Judgment, and a notice explaining the obligations of the Final 
Judgment to each Settling Defendant's officers, directors, and 
marketing managers at the level of director and above. The Antitrust 
Compliance Officer must also obtain from each recipient a 
certification that he or she has read and agreed to abide by the 
terms of the Final Judgment, and must maintain a record of all 
certifications received. Additionally, each Antitrust Compliance 
Officer shall annually brief each person receiving a copy of the 
Final Judgment and this Competitive Impact Statement on the meaning 
and requirements of the Final Judgment and the antitrust laws.
    For a period of five years following the date of entry of the 
Final Judgment, the Settling Defendants separately must certify 
annually to the United States that they have complied with the 
provisions of the Final Judgment. Additionally, upon learning of any 
violation or potential violation of the terms and conditions of the 
Final Judgment, Settling Defendants must within thirty days file 
with the United States a statement describing the violation, and 
must promptly take action to terminate it.
    To facilitate monitoring of the Settling Defendants' compliance 
with the Final Judgment, Section VII of the proposed Final Judgment 
requires each Settling Defendant to grant the United States or the 
State of Michigan access, upon reasonable notice, to Settling 
Defendant's records and documents relating to matters contained in 
the Final Judgment. Settling Defendants must also make their 
employees available for interviews or depositions and answer 
interrogatories and prepare written reports relating to matters 
contained in the Final Judgment upon request.

C. Settling Defendants' Cooperation

    Section VI of the proposed Final Judgment provides that Settling 
Defendants must cooperate fully and truthfully with the United 
States and the State of Michigan in any investigation or litigation 
alleging that Defendants unlawfully agreed to restrict marketing in 
violation of Section 1 of the Sherman Act, as amended, 15 U.S.C. 1, 
or Section 2 of the Michigan Antitrust Reform Act, MCL 445.772. Such 
cooperation includes, but is not limited to, producing documents, 
making officers, directors, employees, and agents available for 
interviews, and testifying at trial and other judicial proceedings 
fully, truthfully, and under oath.

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 the person has suffered, as well as costs and 
reasonable attorneys' fees. Entry of the proposed Final Judgment 
will neither impair nor assist the bringing of any private antitrust 
damage action. Under the provisions of Section 5(a) of the Clayton 
Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie 
effect in any subsequent private lawsuit that may be brought against 
the Settling Defendants.

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT

    The United States, the State of Michigan, and the Settling 
Defendants have stipulated that the proposed Final Judgment may be 
entered by the Court after compliance with the provisions of the 
APPA, provided that the United States has not withdrawn its consent. 
The APPA conditions entry upon the Court's determination that the 
proposed Final Judgment is in the public interest.
    The APPA provides a period of at least sixty days preceding the 
effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding 
the proposed Final Judgment. Any person who wishes to comment should 
do so within sixty days of the date of publication of this 
Competitive Impact Statement in the Federal Register, or the last 
date of publication in a newspaper of the summary of this 
Competitive Impact Statement, whichever is later. All comments 
received during this period will be considered by the U.S. 
Department of Justice, which remains free to withdraw its consent to 
the proposed Final Judgment at any time prior to the Court's entry 
of judgment. The comments and the response of the United States will 
be filed with the Court. In addition, comments will be posted on the 
U.S. Department of Justice, Antitrust Division's internet Web site 
and, under certain circumstances, published in the Federal Register.
    Written comments should be submitted to:


[[Page 38742]]


Peter J. Mucchetti
Chief, Litigation I Section
Antitrust Division
United States Department of Justice
450 Fifth Street, N.W., Suite 4100
Washington, DC 20530

    The proposed Final Judgment provides that the Court retains 
jurisdiction over this action, and the parties may apply to the 
Court for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against the Settling 
Defendants. The United States is satisfied, however, that the relief 
proposed in the Final Judgment will prevent the recurrence of the 
violations alleged in the Complaint and ensure that patients, 
physicians, and employers benefit from competition between 
Defendants. Thus, the proposed Final Judgment would achieve all or 
substantially all of the relief the United States would have 
obtained through litigation, but avoids the time, expense, and 
uncertainty of a full trial on the merits.

VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a sixty-day comment period, after which the court shall 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. 16(e)(1). In making that determination, 
the court, in accordance with the statute as amended in 2004, is 
required to consider:
    (A) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.
    15 U.S.C. 16(e)(1)(A) & (B).\1\ In considering these statutory 
factors, the court's inquiry is necessarily a limited one as the 
government is entitled to ``broad discretion to settle with the 
Defendant within the reaches of the public interest.'' United States 
v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); see 
generally United States v. U.S. Airways Group, Inc., 38 F. Supp. 3d 
69, 75 (D.D.C. 2014) (noting the court has broad discretion of the 
adequacy of the relief at issue); United States v. SBC Commc'ns, 
Inc., 489 F. Supp. 2d 1 (D.D.C. 2007) (describing the public-
interest standard under the Tunney Act); United States v. InBev 
N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 84787, at *3 
(D.D.C. Aug. 11, 2009) (noting that the court's review of a consent 
judgment is limited and only inquires ``into whether the 
government's determination that the proposed remedies will cure the 
antitrust violations alleged in the complaint was reasonable, and 
whether the mechanisms to enforce the final judgment are clear and 
manageable'').
---------------------------------------------------------------------------

    \1\ The 2004 amendments substituted ``shall'' for ``may'' in 
directing relevant factors for courts to consider and amended the 
list of factors to focus on competitive considerations and to 
address potentially ambiguous judgment terms. Compare 15 U.S.C. 
16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); see also SBC Commc'ns, 
489 F. Supp. 2d at 11 (concluding that the 2004 amendments 
``effected minimal changes'' to Tunney Act review).
---------------------------------------------------------------------------

    Under the APPA, a court considers, among other things, the 
relationship between the remedy secured and the specific allegations 
set forth in the government's complaint, whether the decree is 
sufficiently clear, whether enforcement mechanisms are sufficient, 
and whether the decree may positively harm third parties. See 
Microsoft, 56 F.3d at 1458-62. With respect to the adequacy of the 
relief secured by the decree, a court may not ``engage in an 
unrestricted evaluation of what relief would best serve the 
public.'' United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 
1988) (quoting United States v. Bechtel Corp., 648 F.2d 660, 666 
(9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62; United 
States v. Alcoa, Inc., 152 F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 
2009 U.S. Dist. LEXIS 84787, at *3. One court explained:

[t]he balancing of competing social and political interests affected 
by a proposed antitrust consent decree must be left, in the first 
instance, to the discretion of the Attorney General. The court's 
role in protecting the public interest is one of [e]nsuring that the 
government has not breached its duty to the public in consenting to 
the decree. The court is required to determine not whether a 
particular decree is the one that will best serve society, but 
whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\2\ In 
determining whether a proposed settlement is in the public interest, 
a district court ``must accord deference to the government's 
predictions about the efficacy of its remedies, and may not require 
that the remedies perfectly match the alleged violations.'' SBC 
Commc'ns, 489 F. Supp. 2d at 17; see also U.S. Airways, 38 F. Supp. 
3d at 75 (noting that a court should not reject the proposed 
remedies because it believes others are preferable); Microsoft, 56 
F.3d at 1461 (noting the need for courts to be ``deferential to the 
government's predictions as to the effect of the proposed 
remedies''); United States v. Archer-Daniels-Midland Co., 272 F. 
Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due 
respect to the United States' prediction as to the effect of 
proposed remedies, its perception of the market structure, and its 
views of the nature of the case).
---------------------------------------------------------------------------

    \2\ Cf. BNS, 858 F.2d at 464 (holding that the court's 
``ultimate authority under the [APPA] is limited to approving or 
disapproving the consent decree''); United States v. Gillette Co., 
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the 
court is constrained to ``look at the overall picture not 
hypercritically, nor with a microscope, but with an artist's 
reducing glass''). See generally Microsoft, 56 F.3d at 1461 
(discussing whether ``the remedies [obtained in the decree are] so 
inconsonant with the allegations charged as to fall outside of the 
`reaches of the public interest' '').
---------------------------------------------------------------------------

    Courts have greater flexibility in approving proposed consent 
decrees than in crafting their own decrees following a finding of 
liability in a litigated matter. ``[A] proposed decree must be 
approved even if it falls short of the remedy the court would impose 
on its own, as long as it falls within the range of acceptability or 
is `within the reaches of public interest.' '' United States v. Am. 
Tel. & Tel. Co., 552 F. Supp. 131, 151 (D.D.C. 1982) (citations 
omitted); see also U.S. Airways, 38 F. Supp. 3d at 75 (noting that 
room must be made for the government to grant concessions in the 
negotiation process for settlements) (citing Microsoft, 56 F.3d at 
1461); United States v. Alcan Aluminum Ltd., 605 F. Supp. 619, 622 
(W.D. Ky. 1985) (approving the consent decree even though the court 
would have imposed a greater remedy). To meet this standard, the 
United States ``need only provide a factual basis for concluding 
that the settlements are reasonably adequate remedies for the 
alleged harms.'' SBC Commc'ns, 489 F. Supp. 2d at 17.
    Moreover, the court's role under the APPA is limited to 
reviewing the remedy in relationship to the violations that the 
United States has alleged in its Complaint, and does not authorize 
the court to ``construct [its] own hypothetical case and then 
evaluate the decree against that case.'' Microsoft, 56 F.3d at 1459; 
see also U.S. Airways, 38 F. Supp. 3d at 76 (noting that the court 
must simply determine whether there is a factual foundation for the 
government's decisions such that its conclusions regarding the 
proposed settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS 
84787, at *20 (``the `public interest' is not to be measured by 
comparing the violations alleged in the complaint against those the 
court believes could have, or even should have, been alleged''). 
Because the ``court's authority to review the decree depends 
entirely on the government's exercising its prosecutorial discretion 
by bringing a case in the first place,'' it follows that ``the court 
is only authorized to review the decree itself,'' and not to 
``effectively redraft the complaint'' to inquire into other matters 
that the United States did not pursue. Microsoft, 56 F.3d at 1459-
60. As a court confirmed in SBC Communications, courts ``cannot look 
beyond the complaint in making the public interest determination 
unless the complaint is drafted so narrowly as to make a mockery of 
judicial power.'' SBC Commc'ns, 489 F. Supp. 2d at 15.
    In its 2004 amendments, Congress made clear its intent to 
preserve the practical

[[Page 38743]]

benefits of using consent decrees in antitrust enforcement, adding 
the unambiguous instruction that ``[n]othing in this section shall 
be construed to require the court to conduct an evidentiary hearing 
or to require the court to permit anyone to intervene.'' 15 U.S.C. 
16(e)(2); see also U.S. Airways, 38 F. Supp. 3d at 76 (noting that a 
court is not required to hold an evidentiary hearing or to permit 
intervenors as part of its review under the Tunney Act). The 
language captured Congress's intent when it enacted the Tunney Act 
in 1974. Senator Tunney explained: ``The court is nowhere compelled 
to go to trial or to engage in extended proceedings which might have 
the effect of vitiating the benefits of prompt and less costly 
settlement through the consent decree process.'' 119 Cong. Rec. 
24,598 (1973) (statement of Sen. Tunney). Rather, the procedure for 
the public-interest determination is left to the discretion of the 
court, with the recognition that the court's ``scope of review 
remains sharply proscribed by precedent and the nature of Tunney Act 
proceedings.'' SBC Commc'ns, 489 F. Supp. 2d at 11.\3\ A court can 
make its public-interest determination based on the competitive 
impact statement and response to public comments alone. U.S. 
Airways, 38 F. Supp. 3d at 76.
---------------------------------------------------------------------------

    \3\ See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 
(D.D.C. 2000) (noting that the ``Tunney Act expressly allows the 
court to make its public interest determination on the basis of the 
competitive impact statement and response to comments alone''); 
United States v. Mid-Am. Dairymen, Inc., No. 73-CV-681-W-1, 1977-1 
Trade Cas. (CCH) ] 61,508, at 71,980, *22 (W.D. Mo. 1977) (``Absent 
a showing of corrupt failure of the government to discharge its 
duty, the Court, in making its public interest finding, should . . . 
carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
circumstances.''); S. Rep. No. 93-298, at 6 (1973) (``Where the 
public interest can be meaningfully evaluated simply on the basis of 
briefs and oral arguments, that is the approach that should be 
utilized.'').
---------------------------------------------------------------------------

VIII. DETERMINATIVE DOCUMENTS

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.
Dated: June 25, 2015

Respectfully submitted,

FOR PLAINTIFF UNITED STATES OF AMERICA

Katrina Rouse
Trial Attorney
Antitrust Division
U.S. Department of Justice
Litigation I Section
450 Fifth Street, N.W., Suite 4100
Washington, D.C. 20530
Phone: (202) 305-7498
D.C. Bar #1013035
Email: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on June 25, 2015, I electronically filed the 
foregoing paper with the Clerk of the Court using the ECF system and 
sent it via email to the following counsel at the email addresses 
below.
    Counsel for Defendants Hillsdale Community Health Center and 
Community Health Center of Branch County:

Larry Jensen
Hall Render
201 West Big Beaver Rd.
Columbia Center, Suite 1200
Troy, MI 48084
Phone: (248) 457-7850
Email: [email protected]

    Counsel for Defendant W.A. Foote Memorial Hospital, d/b/a 
Allegiance Health:

James M. Burns
Dickinson Wright PLLC
1875 Eye St. NW., Suite 1200
Washington, DC 20006
Phone: (202) 659-6945
Email: [email protected]

    Counsel for Defendant ProMedica Health System, Inc.:

Stephen Y. Wu
McDermott Will & Emery LLP
227 West Monroe Street, Suite 4400
Chicago, IL 60606-5096
Phone: (312) 372-2000
Email: [email protected]

Attorney
Litigation I
Antitrust Division
U.S. Department of Justice
450 Fifth Street, NW., Suite 4100
Washington, DC 20530
Phone: (202) 305-7498
DC Bar #1013035
Email: [email protected]

EXHIBIT A

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

    UNITED STATES OF AMERICA and STATE OF MICHIGAN, Plaintiffs, v. 
HILLSDALE COMMUNITY HEALTH CENTER, W.A. FOOTE MEMORIAL HOSPITAL, D/
B/A ALLEGIANCE HEALTH, COMMUNITY HEALTH CENTER OF BRANCH COUNTY, and 
PROMEDICA HEALTH SYSTEM, INC., Defendants.

Case No.: 2:15-cv-12311

Hon. Judith E. Levy

[PROPOSED] FINAL JUDGMENT

    WHEREAS, Plaintiffs, the United States of America and the State 
of Michigan, filed their joint Complaint on June 25, 2015, alleging 
that Defendants violated Section 1 of the Sherman Act, 15 U.S.C. 1, 
and Section 2 of the Michigan Antitrust Reform Act, MCL 445.772;
    AND WHEREAS, Plaintiffs and Defendants Hillsdale Community 
Health Center, Community Health Center of Branch County, and 
ProMedica Health System, Inc. (collectively, ``Settling 
Defendants''), by their respective attorneys, have consented to the 
entry of this Final Judgment without trial or adjudication of any 
issue of fact or law;
    AND WHEREAS, Plaintiffs require the Settling Defendants to agree 
to undertake certain actions and refrain from certain conduct for 
the purpose of remedying the anticompetitive effects alleged in the 
Complaint;
    NOW THEREFORE, before any testimony is taken, without this Final 
Judgment constituting any evidence against or admission by Settling 
Defendants regarding any issue of fact or law, and upon consent of 
the parties to this action, it is ORDERED, ADJUDGED, AND DECREED:

I. JURISDICTION

    This Court has jurisdiction over the subject matter of and each 
of the parties to this action. The Complaint states a claim upon 
which relief may be granted against the Settling Defendants under 
Section 1 of the Sherman Act, 15 U.S.C. 1, and Section 2 of the 
Michigan Antitrust Reform Act, MCL 445.772.

II. DEFINITIONS

    As used in this Final Judgment:
    (A) ``Allegiance'' means Defendant W. A. Foote Memorial Hospital 
doing business as Allegiance Health, a corporation organized and 
existing under the laws of the State of Michigan with its 
headquarters in Jackson, Michigan, its (i) successors and assigns, 
(ii) controlled subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and (iii) their directors, 
officers, managers, agents, and employees.
    (B) ``Agreement'' means any contract, arrangement, or 
understanding, formal or informal, oral or written, between two or 
more persons.
    (C) ``Branch'' means Defendant Community Health Center of Branch 
County, a municipal health facility corporation formed under Public 
Act 230 of the Public Acts of 1987 (MCL 331.1101, et. seq.) with its 
headquarters in Coldwater, Michigan, its (i) successors and assigns, 
(ii) controlled subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, and (iii) their directors, 
officers, managers, agents, and employees.
    (D) ``Communicate'' means to discuss, disclose, transfer, 
disseminate, or exchange information or opinion, formally or 
informally, directly or indirectly, in any manner.
    (E) ``Hillsdale'' means Defendant Hillsdale Community Health 
Center, a corporation organized and existing under the laws of the 
State of Michigan with its headquarters in Hillsdale, Michigan, its 
(i) successors and assigns, (ii) controlled subsidiaries, divisions, 
groups, affiliates, partnerships, and joint ventures, and (iii) 
their directors, officers, managers, agents, and employees.
    (F) ``Joint Provision of Services'' means any past, present, or 
future coordinated delivery of any healthcare services by two or 
more healthcare providers, including a clinical affiliation, joint 
venture, management agreement, accountable care organization, 
clinically integrated network, group purchasing organization, 
management services organization, or physician hospital 
organization.
    (G) ``Marketing'' means any past, present, or future activities 
that are involved in making persons aware of the services or 
products of the hospital or of physicians employed or with 
privileges at the hospital, including advertising, communications, 
public relations, provider network development, outreach to 
employers or physicians, and promotions, such as free health 
screenings and education.

[[Page 38744]]

    (H) ``Marketing Manager'' means any company officer or employee 
at the level of director, or above, with responsibility for or 
oversight of Marketing.
    (I) ``Person'' means any natural person, corporation, firm, 
company, sole proprietorship, partnership, joint venture, 
association, institute, governmental unit, or other legal entity.
    (J) ``ProMedica'' means Defendant ProMedica Health System, Inc., 
a corporation organized and existing under the laws of the State of 
Ohio with its headquarters in Toledo, Ohio, its (i) successors and 
assigns, (ii) controlled subsidiaries, divisions, groups, 
affiliates, partnerships, and joint ventures, including Emma L. 
Bixby Medical Center, Inc. (d/b/a ProMedica Bixby Hospital), a 
Michigan nonprofit corporation located in Adrian, Michigan, and 
Herrick Hospital, Inc. (d/b/a ProMedica Herrick Hospital), a 
Michigan nonprofit corporation located in Tecumseh, Michigan, but 
excluding Paramount Health Care, and (iii) their directors, 
officers, managers, agents, and employees.
    (K) ``Provider'' means any physician or physician group and any 
inpatient or outpatient medical facility including hospitals, 
ambulatory surgical centers, urgent care facilities, and nursing 
facilities.
    (L) ``Relevant Area'' means Branch, Hillsdale, Jackson, and 
Lenawee Counties in the State of Michigan.

III. APPLICABILITY

    This Final Judgment applies to the Settling Defendants, and 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.

IV. PROHIBITED CONDUCT

    (A) Each Settling Defendant shall not attempt to enter into, 
enter into, maintain, or enforce any Agreement with any other 
Provider that:
    (1) Prohibits or limits Marketing; or
    (2) allocates any geographic market or territory between or 
among the Settling Defendant and any other Provider.
    (B) Each Settling Defendant shall not Communicate with any other 
Defendant about any Defendant's Marketing in its or the other 
Defendant's county, except each Settling Defendant may:
    (1) Communicate with any other Defendant about joint Marketing 
if the communication is related to the Joint Provision of Services; 
or
    (2) communicate with any other Defendant about Marketing if the 
communication is part of customary due diligence relating to a 
merger, acquisition, joint venture, investment, or divestiture.

V. REQUIRED CONDUCT

    (A) Within thirty days of entry of this Final Judgment, each 
Settling Defendant shall appoint an Antitrust Compliance Officer and 
identify to Plaintiffs his or her name, business address, and 
telephone number.
    (B) Each Antitrust Compliance Officer shall:
    (1) Furnish a copy of this Final Judgment, the Competitive 
Impact Statement, and a cover letter that is identical in content to 
Exhibit 1 within sixty days of entry of the Final Judgment to each 
Settling Defendant's officers, directors, and Marketing Managers, 
and to any person who succeeds to any such position, within thirty 
days of that succession;
    (2) annually brief each person designated in Section V(B)(1) on 
the meaning and requirements of this Final Judgment and the 
antitrust laws;
    (3) obtain from each person designated in Section V(B)(1), 
within sixty days of that person's receipt of the Final Judgment, a 
certification that he or she (i) has read and, to the best of his or 
her ability, understands and agrees to abide by the terms of this 
Final Judgment; (ii) is not aware of any violation of the Final 
Judgment that has not already been reported to the Settling 
Defendant; and (iii) understands that any person's failure to comply 
with this Final Judgment may result in an enforcement action for 
civil or criminal contempt of court against each Settling Defendant 
and/or any person who violates this Final Judgment;
    (4) maintain a record of certifications received pursuant to 
this Section; and
    (5) annually communicate to the Settling Defendant's employees 
that they may disclose to the Antitrust Compliance Officer, without 
reprisal, information concerning any potential violation of this 
Final Judgment or the antitrust laws.
    (C) Each Settling Defendant shall:
    (1) Upon learning of any violation or potential violation of any 
of the terms and conditions contained in this Final Judgment, 
promptly take appropriate action to terminate or modify the activity 
so as to comply with this Final Judgment and maintain all documents 
related to any violation or potential violation of this Final 
Judgment;
    (2) upon learning of any violation or potential violation of any 
of the terms and conditions contained in this Final Judgment, file 
with the United States and the State of Michigan a statement 
describing any violation or potential violation within thirty days 
of its becoming known. Descriptions of violations or potential 
violations of this Final Judgment shall include, to the extent 
practicable, a description of any communications constituting the 
violation or potential violation, including the date and place of 
the communication, the persons involved, and the subject matter of 
the communication; and
    (3) certify to the United States and the State of Michigan 
annually on the anniversary date of the entry of this Final Judgment 
that the Settling Defendant has complied with the provisions of this 
Final Judgment.

VI. SETTLING DEFENDANTS' COOPERATION

    Each Settling Defendant shall cooperate fully and truthfully 
with the United States and the State of Michigan in any 
investigation or litigation alleging that Defendants unlawfully 
agreed to restrict Marketing in the Relevant Area in violation of 
Section 1 of the Sherman Act, as amended, 15 U.S.C. 1, or Section 2 
of the Michigan Antitrust Reform Act, MCL 445.772. Each Settling 
Defendant shall use its best efforts to ensure that all officers, 
directors, employees, and agents also fully and promptly cooperate 
with the United States and the State of Michigan. The full, 
truthful, and continuing cooperation of each Settling Defendant will 
include, but not be limited to:
    (A) Producing all documents and other materials, wherever 
located, not protected under the attorney-client privilege or the 
work-product doctrine, in the possession, custody, or control of 
that Settling Defendant, that are relevant to the unlawful 
agreements among Defendants to restrict Marketing in the Relevant 
Area in violation of Section 1 of the Sherman Act, as amended, 15 
U.S.C. 1, or Section 2 of the Michigan Antitrust Reform Act, MCL 
445.772, alleged in the Complaint, upon the request of the United 
States or the State of Michigan;
    (B) making available for interview any officers, directors, 
employees, and agents if so requested by the United States or the 
State of Michigan; and
    (C) testifying at trial and other judicial proceedings fully, 
truthfully, and under oath, subject to the penalties of perjury (18 
U.S.C. 1621), making a false statement or declaration in court 
proceedings (18 U.S.C. 1623), contempt (18 U.S.C. 401-402), and 
obstruction of justice (18 U.S.C. 1503, et seq.), or the equivalent 
Michigan provisions, when called upon to do so by the United States 
or the State of Michigan;
    (D) provided however, that the obligations of each Settling 
Defendant to cooperate fully with the United States and the State of 
Michigan as described in this Section shall cease upon the sooner of 
(i) when all Defendants settle all claims in this matter and all 
settlements have been entered by this Court, or (ii) at the 
conclusion of all investigations and litigation alleging the non-
Settling Defendant unlawfully agreed to restrict Marketing in the 
Relevant Area in violation of Section 1 of the Sherman Act, as 
amended, 15 U.S.C. 1, or Section 2 of the Michigan Antitrust Reform 
Act, MCL 445.772, including exhaustion of all appeals or expiration 
of time for all appeals of any Court ruling in this matter.

VII. COMPLIANCE INSPECTION

    (A) For the purposes of determining or securing compliance with 
this Final Judgment, or of determining whether the Final Judgment 
should be modified or vacated, and subject to any legally recognized 
privilege, from time to time authorized representatives of the 
United States Department of Justice or the Office of the Michigan 
Attorney General, including consultants and other retained persons, 
shall, upon the written request of an authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division 
or of the Office of the Michigan Attorney General, and on reasonable 
notice to Settling Defendants, be permitted:
    (1) Access during Settling Defendants' office hours to inspect 
and copy, or at the option of the United States or the State of 
Michigan, to require Settling Defendants to provide hard copy or 
electronic copies of, all books, ledgers, accounts, records, data, 
and documents in the possession, custody, or control of Settling 
Defendants, relating to any

[[Page 38745]]

matters contained in this Final Judgment; and
    (2) to interview, either informally or on the record, Settling 
Defendants' officers, directors, employees, or agents, who may have 
individual counsel present, regarding such matters. The interviews 
shall be subject to the reasonable convenience of the interviewee 
and without restraint or interference by Settling Defendants.
    (B) Upon the written request of an authorized representative of 
the Assistant Attorney General in charge of the Antitrust Division 
or of the Office of the Michigan Attorney General, Settling 
Defendants shall, subject to any legally recognized privilege, 
submit written reports or response to written interrogatories, 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 shall be divulged by the United States or the State 
of Michigan to any person other than an authorized representative of 
the executive branch of the United States or the State of Michigan, 
except in the course of legal proceedings to which the United States 
or the State of Michigan is a party (including grand jury 
proceedings), or for the purpose of securing compliance with this 
Final Judgment, or as otherwise required by law.
    (D) If at the time information or documents are furnished by 
Settling Defendants to the United States or the State of Michigan, 
Settling Defendants represent and identify in writing the material 
in any such information or documents to which a claim of protection 
may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil 
Procedure, and Settling Defendants mark each pertinent page of such 
material, ``Subject to claim of protection under Rule 26(c)(1)(G) of 
the Federal Rules of Civil Procedure,'' then the United States and 
the State of Michigan shall give Settling Defendants ten calendar 
days notice prior to divulging such material in any legal proceeding 
(other than a grand jury proceeding).

VIII. INVESTIGATION FEES AND COSTS

    Each Settling Defendant shall pay to the State of Michigan the 
sum of $5,000.00 to partially cover the attorney fees and costs of 
investigation.

IX. RETENTION OF JURISDICTION

    This Court retains jurisdiction to enable any 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, to modify any of its provisions, to 
enforce compliance, and to punish violations of its provisions.

X. EXPIRATION OF FINAL JUDGMENT

    Unless this Court grants an extension, this Final Judgment shall 
expire five years from the date of its entry.

XI. NOTICE

    For purposes of this Final Judgment, any notice or other 
communication required to be filed with or provided to the United 
States or the State of Michigan shall be sent to the persons at the 
addresses set forth below (or such other address as the United 
States or the State of Michigan may specify in writing to any 
Settling Defendant):

Chief
Litigation I Section
U.S. Department of Justice
Antitrust Division
450 Fifth Street, Suite 4100
Washington, DC 20530

Division Chief
Corporate Oversight Division
Michigan Department of Attorney General
525 West Ottawa Street
P.O. Box 30755
Lansing, MI 48909

XII. PUBLIC INTEREST DETERMINATION

    The parties, as required, have complied with the procedures of 
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including 
making copies available to the public of this Final Judgment, the 
Competitive Impact Statement, and any comments thereon, and the 
United States' responses to comments. Based upon the record before 
the Court, which includes the Competitive Impact Statement and any 
comments and response to comments filed with the Court, entry of 
this Final Judgment is in the public interest.

Dated: __________

Court approval subject to procedures of Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16

United States District Judge

Exhibit 1

[Letterhead of Settling Defendant]

[Name and Address of Antitrust Compliance Officer]

Dear [XX]:

    I am providing you this notice to make sure you are aware of a 
court order recently entered by a federal judge in _____, Michigan. 
This court order applies to our institution and all of its 
employees, including you, so it is important that you understand the 
obligations it imposes on us. [CEO Name] has asked me to let each of 
you know that s/he expects you to take these obligations seriously 
and abide by them.
    In a nutshell, the order prohibits us from agreeing with other 
healthcare providers, including hospitals and physicians, to limit 
marketing or to divide any geographic market or territory between 
healthcare providers. This means you cannot give any assurance to 
another healthcare provider that [Settling Defendant] will refrain 
from marketing our services, and you cannot ask for any assurance 
from them that they will refrain from marketing. The court order 
also prohibits communicating with [list other three defendants], or 
their employees about our marketing plans or about their marketing 
plans. There are limited exceptions to this restriction on 
communications, such as discussing joint projects, but you should 
check with me before relying on those exceptions.
    A copy of the court order is attached. Please read it carefully 
and familiarize yourself with its terms. The order, rather than the 
above description, is controlling. If you have any questions about 
the order or how it affects your activities, please contact me. 
Thank you for your cooperation.
Sincerely,

[Settling Defendant's Antitrust Compliance Officer]
[FR Doc. 2015-16585 Filed 7-6-15; 8:45 am]
BILLING CODE 4410-11-P