81 FR 24636 - United States v. Charleston Area Medical Center, Inc. and St. Mary's Medical Center, Inc.: Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE
Antitrust Division

Federal Register Volume 81, Issue 80 (April 26, 2016)

Page Range		24636-24644
FR Document		2016-09728
Federal Register, Volume 81 Issue 80 (Tuesday, April 26, 2016)
[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Notices]
[Pages 24636-24644]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-09728]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Charleston Area Medical Center, Inc. and St. 
Mary's Medical Center, Inc.: 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 Competitive Impact Statement have been filed with the 
United States District Court for the Southern District of West Virginia 
in United States of America v. Charleston Area Medical Center, Inc. and 
St. Mary's Medical Center, Inc., Civil Action No. 2:16-cv-03664. On 
April 14, 2016, the United States filed a Complaint alleging that 
Charleston Area Medical Center, Inc. and St. Mary's Medical Center, 
Inc. unlawfully agreed to allocate territories for the marketing of 
competing healthcare services and unlawfully limited competition. The 
proposed Final Judgment, filed at the same time as the Complaint, 
enjoins Defendants from limiting competition in this manner and 
requires Defendants to institute comprehensive antitrust compliance 
programs to ensure that Defendants do not establish similar unlawful 
agreements and similar limitations on competition in the future.
    Copies of the Complaint, proposed Final Judgment, and Competitive 
Impact Statement are available for inspection on the Antitrust 
Division's Web site at http://www.justice.gov/atr and at the Office of 
the Clerk of the United States District Court for the Southern District 
of West Virginia. 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 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 Antitrust Division's Web site, 
filed with the Court, and, under certain circumstances, published in 
the Federal Register. Comments should be directed to Peter Mucchetti, 
Chief, Litigation I, Antitrust Division, Department of Justice, 450 
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 SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

    UNITED STATES OF AMERICA, Plaintiff, v. CHARLESTON AREA MEDICAL 
CENTER, INC. and ST. MARY'S MEDICAL CENTER, INC., Defendants.

CASE NO.: 2:16-cv-03664
JUDGE: John T. Copenhaver, Jr.
FILED: 04/14/2016

COMPLAINT

    The United States of America brings this civil antitrust action to 
enjoin an agreement by Charleston Area Medical Center, Inc. (``CAMC'') 
and St. Mary's Medical Center, Inc. (``St. Mary's) (collectively, 
``Defendants'') that unlawfully allocated territories for the marketing 
of competing healthcare services and limited competition between the 
Defendants.

NATURE OF THE ACTION

    1. Defendants CAMC and St. Mary's are healthcare providers that 
operate general acute-care hospitals in Charleston, Kanawha County, 
West Virginia, and Huntington, Cabell County, West Virginia, 
respectively. CAMC and St. Mary's compete with each other to provide 
healthcare services. Marketing is a key component of this competition 
and includes both print and outdoor advertising, such as newspaper 
advertisements and billboards.
    2. CAMC and St. Mary's agreed to limit marketing of competing 
healthcare services. According to St. Mary's Director of Marketing, St. 
Mary's ``had an agreement with CAMC that St. Mary's would not advertise 
on billboards or in print in Kanawha County and that CAMC would not 
advertise on billboards or in print in Cabell County.'' He also 
testified that ``the agreement between St. Mary's and CAMC is still in 
place today.''
    3. Defendants' agreement has disrupted the competitive process and 
harmed patients and physicians. Among other things, the agreement has 
deprived patients of information they otherwise would have had when 
making important healthcare decisions and has denied physicians working 
for the Defendants the opportunity to advertise their services to 
potential patients.
    4. Defendants' agreement is a naked restraint of trade that is per 
se unlawful under Section 1 of the Sherman Act, 15 U.S.C. 1.

JURISDICTION, VENUE, AND INTERSTATE COMMERCE

    5. 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.
    6. This Court has subject matter jurisdiction over this action 
under Section 4 of the Sherman Act, 15 U.S.C. 4, and 28 U.S.C. 1331, 
1337(a), 1345, and 1367.
    7. Venue is proper in the Southern District of West Virginia, 
Charleston Division, under 28 U.S.C. 1391 and Section 12 of the Clayton 
Act, 15 U.S.C. 22. Each Defendant transacts business within the 
Southern District of West Virginia, and all Defendants reside in the 
Southern District of West Virginia.
    8. Defendants 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

[[Page 24637]]

also purchase supplies and equipment from out-of-state vendors that are 
shipped across state lines.

DEFENDANTS AND THEIR MARKETING

    9. CAMC is a nonprofit West Virginia corporation headquartered in 
Charleston, Kanawha County, West Virginia. It operates four general 
acute-care hospitals (CAMC General Hospital, CAMC Memorial Hospital, 
CAMC Women and Children's Hospital, and CAMC Teays Valley Hospital) 
with a total of 908 beds and a medical staff of over 120 employed 
physicians.
    10. St. Mary's is a nonprofit West Virginia corporation 
headquartered in Huntington, Cabell County, West Virginia. It operates 
a general acute-care hospital located in Cabell County with 393 beds 
and a medical staff of over 50 employed physicians. St. Mary's also 
serves as a teaching hospital for medical students and residents from 
Marshall University School of Medicine.
    11. CAMC and St. Mary's compete with each other to provide hospital 
and physician services to patients. Hospitals compete through price, 
quality, and other factors to sell their services to patients, 
employers, and insurance companies.
    12. Marketing is an important tool that hospitals use to compete 
for patients, and this competition can lead hospitals to invest in 
providing better care and a broader range of services. Hospitals use 
marketing to inform patients about a hospital's quality, scope of 
services, and the expertise of its physicians. An executive of each 
Defendant testified at deposition that marketing is an important 
strategy through which hospitals seek to increase patient volume and 
market share.
    13. Defendants' marketing methods include print advertisements, 
such as newspaper advertisements, and outdoor advertisements, such as 
billboards.

UNLAWFUL AGREEMENT BETWEEN

ST. MARY'S AND CAMC

    14. Since at least 2012, CAMC and St. Mary's have agreed to limit 
their marketing for competing services. CAMC agreed not to place print 
or outdoor advertisements in Cabell County, and St. Mary's agreed not 
to place print or outdoor advertisements in Kanawha County. Defendants' 
marketing departments have monitored and enforced this agreement.
    15. For example, in January 2012, a CAMC urology group asked CAMC's 
marketing department to advertise its physicians in The Herald 
Dispatch, a Cabell County newspaper. In response, a CAMC marketing 
department employee emailed the CAMC Director of Marketing, noting that 
CAMC does not typically advertise in The Herald Dispatch because of its 
`` `gentleman's agreement' '' with St. Mary's. Consistent with its 
agreement with St. Mary's, CAMC did not place the newspaper 
advertisement.
    16. In May 2013, St. Mary's Director of Marketing complained to 
CAMC's Director of Marketing after CAMC ran a newspaper ad promoting a 
CAMC physicians' group in The Herald Dispatch, and succeeded in getting 
CAMC to agree to remove the advertisement. In an email from St. Mary's 
Director of Marketing to other St. Mary's senior executives, he wrote, 
``I talked with CAMC and they agreed this ad violated our agreement not 
to advertise in Charleston paper if they didn't advertise in Huntington 
paper. Their director of marketing Says she pulled the ad but was 
concerned it might still run again one more time this Sunday. I can't 
call the HD [Herald Dispatch] and make sure because they could 
challenge this type of handshake agreement That [sic] prevents them 
from getting advertising dollars from a different advertiser. We'll see 
and I'll follow up from there but after Sunday I am confident we won't 
see CAMC again in HD.'' Consistent with its agreement with St. Mary's, 
and as described by St. Mary's Director of Marketing, CAMC asked the 
Herald Dispatch to remove the advertisement.
    17. In June 2014, when a CAMC-owned physicians' group requested 
marketing in Cabell County, a CAMC marketing department employee 
responded by telling the group's representative that CAMC does not 
market specialist physicians in Cabell County and St. Mary's does not 
market specialists in Kanawha County. Consistent with its agreement 
with St. Mary's, CAMC refused to market that physicians' group in 
Cabell County.
    18. In August 2014, when another CAMC-owned physicians' group 
requested billboard advertising in Cabell County, a CAMC marketing 
representative wrote to CAMC's Director of Marketing, ``They had asked 
for print and billboard placement in Huntington. I explained our 
informal agreement. They understood.'' CAMC's Director of Marketing 
replied, ``Just watch the county line my friend.'' Consistent with its 
agreement with St. Mary's, CAMC did not place print or billboard 
advertising for the physician practice in Cabell County.
    19. The agreement between CAMC and St. Mary's has eliminated a 
significant form of competition to attract patients by depriving 
patients in Kanawha and Cabell Counties of information regarding their 
healthcare-provider choices and physicians in those counties the 
opportunity to advertise their services to potential patients.

NO PROCOMPETITIVE JUSTIFICATIONS

    20. The Defendants' anticompetitive agreement is not reasonably 
necessary to further any procompetitive purpose.

VIOLATION ALLEGED

Violation of Section 1 of the Sherman Act

    21. The United States incorporates paragraphs 1 through 20.
    22. CAMC and St. Mary's compete to provide healthcare services. 
Defendants' agreement is facially anticompetitive because it limits 
competition between the Defendants by allocating territories for the 
marketing of competing healthcare services. As a result, the agreement 
eliminates a significant form of competition to attract patients.
    23. The agreement constitutes an unreasonable restraint of trade 
that is per se illegal under Section 1 of the Sherman Act, 15 U.S.C. 1. 
No elaborate analysis is required to demonstrate the anticompetitive 
effect of this agreement.

REQUESTED RELIEF

    The United States requests that the Court:
    (A) judge that Defendants' agreement limiting competition 
constitutes an illegal restraint of interstate trade in violation of 
Section 1 of the Sherman Act, 15 U.S.C. 1;
    (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, unless such communication: is related to the 
legitimate joint provision of services; is part of normal due diligence 
relating to a merger, acquisition, joint venture, investment, or 
divestiture; or is related to claims or statements made in a 
Defendant's Marketing that the other Defendant believes are false or 
misleading;
    (D) require Defendants to institute a comprehensive antitrust 
compliance program to ensure that Defendants do

[[Page 24638]]

not enter into or attempt to enter into any similar agreements and that 
Defendants' members, officers, agents, and employees are fully informed 
of the application of the antitrust laws to the Defendants' businesses; 
and
    (E) award Plaintiff its costs in this action and such other relief 
as may be just and proper.

Dated: April 14, 2016

Respectfully Submitted,

For Plaintiff United States of America:

WILLIAM J. BAER,
Assistant Attorney General for Antitrust

DAVID I. GELFAND,
Deputy Assistant Attorney General

PATRICIA A. BRINK,
Director of Civil Enforcement

PETER J. MUCCHETTI,
Chief, Litigation I

RYAN M. KANTOR,
Assistant Chief, Litigation I

MICHELLE R. SELTZER,
Assistant Chief, Litigation I

CAROL A. CASTO,
Acting United States Attorney for the Southern District of West 
Virginia

Matthew Lindsay,
Assistant United States Attorney, Robert C. Byrd U.S. Courthouse, 
Suite 4000, 300 Virginia Street, Charleston, WV 25301, Tel. No. 304-
340-2338, [email protected]

KATHLEEN KIERNAN,*
BARRY L. CREECH,
JOHN LOHRER,
GLENN HARRISON,
Attorneys for the United States Antitrust Division, U.S. Department of 
Justice, 450 Fifth Street, N.W., Suite 4100, Washington, D.C. 20530 
(202) 353-3100 (phone), (202) 307-5802 (fax), 
[email protected]

Attorneys for the United States

* Attorney of Record

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

    UNITED STATES OF AMERICA, Plaintiff, v. CHARLESTON AREA MEDICAL 
CENTER, INC. and ST. MARY'S MEDICAL CENTER, INC., Defendants.

CASE NO.: 2:16-cv-03664
JUDGE: John T. Copenhaver, Jr.
FILED: 04/14/2016

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 April 14, 2016, the United States filed a civil antitrust 
Complaint alleging that Defendants Charleston Area Medical Center 
(``CAMC'') and St. Mary's Medical Center (``St. Mary's'') violated 
Section 1 of the Sherman Act, 15 U.S.C. 1. The Complaint alleges that 
CAMC and St. Mary's agreed to unlawfully allocate territories for the 
marketing of competing healthcare services and to limit competition 
between themselves. Specifically, according to the Complaint, CAMC and 
St. Mary's entered into an agreement under which they agreed not to 
advertise on billboards or in print in each others' home counties in 
West Virginia. The agreement eliminated a significant form of 
competition to attract patients and overall substantially diminished 
competition to provide healthcare services. Defendants' agreement to 
allocate territories for marketing is per se illegal under Section 1 of 
the Sherman Act, 15 U.S.C. 1.
    With the Complaint, the United States filed a Stipulation and 
proposed Final Judgment that, as explained more fully below, enjoins 
Defendants from (1) agreeing with any healthcare provider to prohibit 
or limit marketing or to allocate any service, customer, or geographic 
market or territory, and (2) communicating with each other about 
marketing, subject to narrow exceptions.
    The United States and the Defendants have stipulated that the 
proposed Final Judgment may be entered after compliance with the APPA. 
Entry of the proposed Final Judgment would terminate this action, 
except that this Court would retain jurisdiction to construe, modify, 
and enforce the proposed Final Judgment and to punish violations 
thereof.

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

A. Background on Defendants and Their Marketing Activities

    Defendants CAMC and St. Mary's are healthcare providers that 
operate general acute-care hospitals in Charleston, Kanawha County, 
West Virginia, and Huntington, Cabell County, West Virginia, 
respectively. CAMC and St. Mary's compete with each other to provide 
hospital and physician services to patients. Hospitals compete through 
price, quality, and other factors to sell their services to patients, 
employers, and insurance companies.
    Marketing is an important tool that hospitals use to compete for 
patients. Hospitals use marketing to inform patients about a hospital's 
quality, scope of services, and the expertise of its physicians. 
Defendants' marketing methods include print advertisements, such as 
newspaper advertisements, and outdoor advertisements, such as 
billboards. Healthcare provider advertisements on billboards and 
newspapers helps enable patients to make more informed healthcare 
choices, including choosing healthcare providers that offer higher 
quality care and more convenient services. Advertising also spurs 
competition for patients, which can lead hospitals to invest in 
providing better care and a broader range of services.

B. Defendants' Unlawful Agreement to Limit Marketing

    Since at least 2012, CAMC and St. Mary's have agreed to limit their 
marketing for competing services. CAMC agreed not to place print or 
outdoor advertisements in Cabell County, and St. Mary's agreed not to 
place print or outdoor advertisements in Kanawha County. Defendants' 
marketing departments have monitored and enforced this agreement. 
Defendants' documents show the impact of this agreement on the 
Defendants' marketing.
    In January 2012, a CAMC urology group asked CAMC's marketing 
department to advertise its physicians in The Herald Dispatch, a Cabell 
County newspaper. In response, a CAMC marketing department employee 
emailed the CAMC Director of Marketing, noting that CAMC does not 
typically advertise in The Herald Dispatch because of its 
```gentleman's agreement''' with St. Mary's. Consistent with its 
agreement with St. Mary's, CAMC did not place the newspaper 
advertisement.
    In May 2013, St. Mary's Director of Marketing complained to CAMC's 
Director of Marketing after CAMC ran a newspaper ad promoting a CAMC 
physicians' group in The Herald Dispatch, and succeeded in getting CAMC 
to agree to remove the advertisement. In an email from St. Mary's 
Director of Marketing to other St. Mary's senior executives, he wrote, 
``I talked with CAMC and they agreed this ad violated our agreement not 
to advertise in Charleston paper if they didn't advertise in Huntington 
paper. Their director of marketing Says she pulled the ad but was 
concerned it might still run again one more time this Sunday. I can't 
call the HD [Herald Dispatch] and make sure because they could 
challenge this type of handshake agreement That [sic] prevents them 
from

[[Page 24639]]

getting advertising dollars from a different advertiser. We'll see and 
I'll follow up from there but after Sunday I am confident we won't see 
CAMC again in HD.'' Consistent with its agreement with St. Mary's, and 
as described by St. Mary's Director of Marketing, CAMC asked the Herald 
Dispatch to remove the advertisement.
    In June 2014, when a CAMC-owned physicians' group requested 
marketing in Cabell County, a CAMC marketing department employee 
responded by telling the group's representative that CAMC does not 
market specialist physicians in Cabell County and St. Mary's does not 
market specialists in Kanawha County. Consistent with its agreement 
with St. Mary's, CAMC refused to market that physicians' group in 
Cabell County.
    In August 2014, when another CAMC-owned physicians' group requested 
billboard advertising in Cabell County, a CAMC marketing representative 
wrote to CAMC's Director of Marketing, ``They had asked for print and 
billboard placement in Huntington. I explained our informal agreement. 
They understood.'' CAMC's Director of Marketing replied, ``Just watch 
the county line my friend.'' Consistent with its agreement with St. 
Mary's, CAMC did not place print or billboard advertising for the 
physician practice in Cabell County.
    Defendants' anticompetitive agreement is not reasonably necessary 
to further any procompetitive purpose. Defendants' agreement 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. 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 Defendants' anticompetitive agreement. 
Section VIII 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, Defendants cannot 
agree with any healthcare provider to prohibit or limit marketing or to 
allocate any service, customer, or geographic market or territory, 
unless such agreement is reasonably necessary to further a 
procompetitive purpose concerning the joint provision of services. The 
joint provision of services is any past, present, or future coordinated 
delivery of any healthcare services by two or more healthcare 
providers. Defendants also are prohibited from communicating with each 
other about any Defendant's marketing, subject to three narrow 
exceptions. There is an exception for communication about joint 
marketing if the communication is related to the joint provision of 
services. In addition, there are exceptions for communications about 
marketing that are part of customary due diligence relating to a 
merger, acquisition, joint venture, investment, or divestiture, and 
communications about false or misleading statements made in a 
Defendant's marketing.
    These prohibited conduct provisions will restore the competition 
lost as a result of CAMC's and St. Mary's unlawful agreement to 
allocate territories for the marketing of competing healthcare 
services.

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 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 an approved 
notice explaining the obligations of the Final Judgment to each 
Defendant's officers, directors, and marketing managers, and to any 
person who succeeds to any such position. 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. Recipients 
must also certify that they are not aware of any violation of the Final 
Judgment. Additionally, each Antitrust Compliance Officer shall 
annually brief each person required to receive a copy of the Final 
Judgment and this Competitive Impact Statement on the meaning and 
requirements of the Final Judgment and the antitrust laws. Each 
Antitrust Compliance Officer shall also annually communicate to all 
employees that any employee may disclose, without reprisal, information 
concerning any potential violation of the Final Judgment or the 
antitrust laws.
    For a period of five years following the date of entry of the Final 
Judgment, the 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, Defendants 
must within thirty days file with the United States a statement 
describing the violation or potential violation, and must promptly take 
action to terminate or modify the activity in order to comply with the 
Final Judgment.
    To facilitate monitoring of the Defendants' compliance with the 
Final Judgment, Section VI of the proposed Final Judgment requires each 
Defendant to grant the United States access, upon reasonable notice, to 
Defendant's records and documents relating to matters contained in the 
Final Judgment. 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.
    These provisions are designed to prevent recurrence of the type of 
illegal conduct alleged in the Complaint.

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

[[Page 24640]]

any subsequent private lawsuit that may be brought against the 
Defendants.

V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT

    The United States and the 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:

Peter J. Mucchetti
Chief, Litigation I Section
Antitrust Division
United States Department of Justice
450 Fifth Street, NW., 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 Defendants. The 
United States is satisfied, however, that the relief proposed in the 
Final Judgment will prevent the recurrence of the violation alleged in 
the Complaint and ensure that patients and physicians benefit from 
competition between the 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 APA 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). In considering these statutory factors, 
the court's inquiry is necessarily a limited one, because 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 over 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\
---------------------------------------------------------------------------

    \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

[[Page 24641]]

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 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: April 14, 2016

Respectfully submitted,

For PlaintiffUnited States of America

Kathleen Kiernan,

Trial Attorney, Antitrust Division, U.S. Department of Justice, 
Litigation I Section, 450 Fifth Street NW., Suite 4100, Washington, 
DC 20530, Phone: (202) 353-3100, DC Bar # 1003748, Email: 
[email protected]

CAROL A. CASTO,
Acting United States Attorney for the Southern District of West 
Virginia

Matthew Lindsay,

Assistant United States Attorney, Robert C. Byrd U.S. Courthouse, 
Suite 4000, 300 Virginia Street, Charleston, WV 25301, Tel. No. 304-
340-2338, [email protected]

CERTIFICATE OF SERVICE

    I hereby certify that on April 14, 2016, 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 Defendant Charleston Area Medical Center, Inc.:

Robert W. McCann
Drinker Biddle & Reath LLP
[email protected]

    Counsel for Defendant St. Mary's Medical Center, Inc.:

David Simon
Foley & Lardner LLP
[email protected]

Kathleen Kiernan,

Trial Attorney, Antitrust Division, U.S. Department of Justice, 
Litigation I Section, 450 Fifth Street NW., Suite 4100, Washington, 
DC 20530, Phone: (202) 353-3100, DC Bar # 1003748, Email: 
[email protected]

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. CHARLESTON AREA MEDICAL CENTER, 
INC. and ST. MARY'S MEDICAL CENTER, INC., Defendants.

CASE NO.: 2:16-cv-03664
JUDGE: John T. Copenhaver, Jr.
FILED: 04/14/2016

[[Page 24642]]

[PROPOSED] FINAL JUDGMENT

    Whereas, Plaintiff the United States of America filed its Complaint 
on April 14, 2016, alleging that Defendants violated Section 1 of the 
Sherman Act, 15 U.S.C. Sec.  1;
    And whereas, Plaintiff and Defendants Charleston Area Medical 
Center, Inc. and St. Mary's Medical Center, Inc., 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, Plaintiff requires the 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 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 Defendants under Section 1 of the 
Sherman Act, 15 U.S.C. Sec.  1.

II. DEFINITIONS

    As used in this Final Judgment:
    (A) ``Agreement'' means any contract, arrangement, or 
understanding, formal or informal, oral or written, between two or more 
persons.
    (B) ``CAMC'' means Defendant Charleston Area Medical Center, Inc., 
a nonprofit hospital system organized and existing under the laws of 
West Virginia with its headquarters in Charleston, West Virginia, its 
successors and assigns, and its controlled subsidiaries, divisions, 
groups, affiliates, partnerships, and joint ventures, and their 
respective directors, officers, managers, agents, and employees.
    (C) ``Communicate'' means to discuss, disclose, transfer, 
disseminate, or exchange information or opinion, formally or 
informally, directly or indirectly, in any manner.
    (D) ``Joint Provision of Services'' means any past, present, or 
future joint health education campaign or 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.
    (E) ``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.
    (F) ``Marketing Manager'' means any company employee or manager 
with management responsibility for or oversight of Marketing.
    (G) ``Person'' means any natural person, corporation, firm, 
company, sole proprietorship, partnership, joint venture, association, 
institute, governmental unit, or other legal entity.
    (H) ``Provider'' means any health care professional or group of 
professionals and any inpatient or outpatient medical facility 
including hospitals, ambulatory surgical centers, urgent care 
facilities, and nursing facilities. A health insurance plan, health 
maintenance organization, or other third party payor of health care 
services, acting in that capacity, is not a ``Provider.''
    (I) ``Relevant Area'' means the state of West Virginia; Boyd 
County, Kentucky; and Lawrence County, Ohio.
    (J) ``St. Mary's'' means Defendant St. Mary's Medical Center, Inc., 
a nonprofit hospital organized and existing under the laws of West 
Virginia with its headquarters in Huntington, West Virginia, its 
successors and assigns, and its controlled subsidiaries, divisions, 
groups, affiliates, partnerships, and joint ventures, and their 
respective directors, officers, managers, agents, and employees.

III. APPLICABILITY

    This Final Judgment applies to the 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 Defendant shall not enter into, attempt to enter into, 
maintain, or enforce any Agreement with any other Provider that:
    (1) prohibits or limits Marketing; or
    (2) allocates any service, customer, or geographic market or 
territory between or among the Defendant and any other Provider, unless 
such Agreement is reasonably necessary to further a procompetitive 
purpose concerning the Joint Provision of Services.
    (B) Each Defendant shall not communicate with the other Defendant 
about any Defendant's Marketing, except each Defendant may:
    (1) communicate with the other Defendant about joint Marketing if 
the communication is related to the Joint Provision of Services;
    (2) communicate with the other Defendant about Marketing if the 
communication is part of customary due diligence relating to a merger, 
acquisition, joint venture, investment, or divestiture; or
    (3) communicate with the other Defendant about claims or statements 
made in the other Defendant's Marketing that the Defendant believes are 
false or misleading, or to respond to such communications from the 
other Defendant.

V. REQUIRED CONDUCT

    (A) Within 30 days of entry of this Final Judgment, each Defendant 
shall appoint, subject to the approval of the United States, an 
Antitrust Compliance Officer. In the event such person is unable to 
perform his or her duties, each Defendant shall appoint, subject to the 
approval of the United States, a replacement within ten (10) working 
days.
    (B) Each Defendant's 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 60 days of entry of the Final Judgment to that Defendant's 
officers, directors, and Marketing Managers, and to any person who 
succeeds to any such position, within 30 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 
60 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 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 
Defendant and/or any person who violates this Final Judgment;
    (4) maintain a record of certifications obtained pursuant to this 
Section; and
    (5) annually communicate to all of the Defendant's employees that 
they may disclose to the Antitrust Compliance Officer, without 
reprisal, information

[[Page 24643]]

concerning any potential violation of this Final Judgment or the 
antitrust laws.
    (C) Each 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) file with the United States a statement describing any 
violation or potential violation within 30 days of a violation or 
potential violation 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 annually on the anniversary date 
of the entry of this Final Judgment that the Defendant has complied 
with all of the provisions of this Final Judgment.

VI. COMPLIANCE INSPECTION

    (A) For the purposes of determining or securing compliance with 
this Final Judgment, or of any related orders, 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, 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, and on reasonable notice to 
Defendants, be permitted:
    (1) access during Defendants' office hours to inspect and copy, or 
at the option of the United States, to require Defendants to provide 
hard copy or electronic copies of, all books, ledgers, accounts, 
records, data, and documents in the possession, custody, or control of 
Defendants, relating to any matters contained in this Final Judgment; 
and
    (2) to interview, either informally or on the record, 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 Defendants.
    (B) Upon the written request of an authorized representative of the 
Assistant Attorney General in charge of the Antitrust Division, 
Defendants shall 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 to any person other 
than an authorized representative of the executive branch of the United 
States, except in the course of legal proceedings to which the United 
States is a party (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 
Defendants to the United States, 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 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 shall give Defendants ten calendar days notice prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding).

VII. 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.

VIII. EXPIRATION OF FINAL JUDGMENT

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

IX. NOTICE

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

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

X. PUBLIC INTEREST DETERMINATION

    The parties have complied with the requirements 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
-----------------------------------------------------------------------
Hon. Dwane L. Tinsley
United States Magistrate Judge

Exhibit 1

[Letterhead of Defendant]
[Name and Address of Antitrust Compliance Officer]
Dear [XX]:

    I am providing you this letter to make sure you know about a court 
order recently entered by a federal judge in Charleston, West Virginia. 
This order applies to [Defendant] 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.
    Under the order, we are prohibited from agreeing with other 
healthcare providers (including hospitals and physicians) to limit 
marketing or to divide any services, customers, or geographic markets 
or territories between us and other healthcare providers. This means 
you may not promise, tell, agree with, or give any assurance to another 
healthcare provider that [Defendant] will refrain from marketing our 
services to any customer or in any particular geographic area, and you 
may not ask for any promise, agreement, or assurance from them that 
they will refrain from marketing their services to any customer or in 
any particular geographic area. In addition, you may not communicate 
with [other Defendant] or its employees about our marketing plans or 
their marketing plans. (While there are a few limited exceptions to 
this rule, such as discussing joint projects, you must check with me 
before you communicate

[[Page 24644]]

with anyone from [other Defendant] about marketing plans.)
    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,

[Defendant's Antitrust Compliance Officer]

[FR Doc. 2016-09728 Filed 4-25-16; 8:45 am]
 BILLING CODE P
24636 Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Notices

210.4(f) of the Commission’s Rules of and St. Mary’s Medical Center, Inc. NATURE OF THE ACTION
Practice and Procedure (19 CFR unlawfully agreed to allocate territories 1. Defendants CAMC and St. Mary’s
210.4(f)). Submissions should refer to for the marketing of competing are healthcare providers that operate
the docket number (‘‘Docket No. 3143’’) healthcare services and unlawfully general acute-care hospitals in
in a prominent place on the cover page limited competition. The proposed Charleston, Kanawha County, West
and/or the first page. (See Handbook for Final Judgment, filed at the same time Virginia, and Huntington, Cabell
Electronic Filing Procedures, Electronic as the Complaint, enjoins Defendants County, West Virginia, respectively.
Filing Procedures 4). Persons with from limiting competition in this CAMC and St. Mary’s compete with
questions regarding filing should manner and requires Defendants to each other to provide healthcare
contact the Secretary (202–205–2000). institute comprehensive antitrust services. Marketing is a key component
Any person desiring to submit a compliance programs to ensure that of this competition and includes both
document to the Commission in Defendants do not establish similar print and outdoor advertising, such as
confidence must request confidential unlawful agreements and similar newspaper advertisements and
treatment. All such requests should be limitations on competition in the future. billboards.
directed to the Secretary to the Copies of the Complaint, proposed 2. CAMC and St. Mary’s agreed to
Commission and must include a full Final Judgment, and Competitive Impact limit marketing of competing healthcare
statement of the reasons why the Statement are available for inspection services. According to St. Mary’s
Commission should grant such on the Antitrust Division’s Web site at Director of Marketing, St. Mary’s ‘‘had
treatment. See 19 CFR 201.6. Documents http://www.justice.gov/atr and at the an agreement with CAMC that St.
for which confidential treatment by the Office of the Clerk of the United States Mary’s would not advertise on
Commission is properly sought will be District Court for the Southern District billboards or in print in Kanawha
treated accordingly. All nonconfidential of West Virginia. Copies of these County and that CAMC would not
written submissions will be available for materials may be obtained from the advertise on billboards or in print in
public inspection at the Office of the Antitrust Division upon request and Cabell County.’’ He also testified that
Secretary and on EDIS 5. payment of the copying fee set by ‘‘the agreement between St. Mary’s and
This action is taken under the Department of Justice regulations. CAMC is still in place today.’’
authority of section 337 of the Tariff Act Public comment is invited within 60 3. Defendants’ agreement has
of 1930, as amended (19 U.S.C. § 1337), days of the date of this notice. Such disrupted the competitive process and
and of sections 201.10 and 210.8(c) of comments, including the name of the harmed patients and physicians. Among
the Commission’s Rules of Practice and submitter, and responses thereto, will be other things, the agreement has
Procedure (19 CFR §§ 201.10, 210.8(c)). posted on the Antitrust Division’s Web deprived patients of information they
By order of the Commission. site, filed with the Court, and, under otherwise would have had when making
Issued: April 20, 2016. certain circumstances, published in the important healthcare decisions and has
Lisa R. Barton, Federal Register. Comments should be denied physicians working for the
Secretary to the Commission. directed to Peter Mucchetti, Chief, Defendants the opportunity to advertise
[FR Doc. 2016–09611 Filed 4–25–16; 8:45 am] Litigation I, Antitrust Division, their services to potential patients.
BILLING CODE 7020–02–P Department of Justice, 450 Fifth Street 4. Defendants’ agreement is a naked
NW., Suite 4100, Washington, DC 20530 restraint of trade that is per se unlawful
(telephone: 202–307–0001). under Section 1 of the Sherman Act, 15
DEPARTMENT OF JUSTICE Patricia A. Brink
U.S.C. 1.
Director of Civil Enforcement. JURISDICTION, VENUE, AND
Antitrust Division INTERSTATE COMMERCE
UNITED STATES DISTRICT COURT
United States v. Charleston Area 5. The United States brings this action
Medical Center, Inc. and St. Mary’s FOR THE SOUTHERN DISTRICT OF
pursuant to Section 4 of the Sherman
Medical Center, Inc.: Proposed Final WEST VIRGINIA
Act, 15 U.S.C. 4, to prevent and restrain
Judgment and Competitive Impact CHARLESTON DIVISION Defendants’ violations of Section 1 of
Statement the Sherman Act, 15 U.S.C. 1.
UNITED STATES OF AMERICA,
Plaintiff, v. CHARLESTON AREA 6. This Court has subject matter
Notice is hereby given pursuant to the jurisdiction over this action under
Antitrust Procedures and Penalties Act, MEDICAL CENTER, INC. and ST.
MARY’S MEDICAL CENTER, INC., Section 4 of the Sherman Act, 15 U.S.C.
15 U.S.C. 16(b)–(h), that a proposed 4, and 28 U.S.C. 1331, 1337(a), 1345,
Final Judgment, Stipulation, and Defendants.
and 1367.
Competitive Impact Statement have CASE NO.: 2:16–cv–03664 7. Venue is proper in the Southern
been filed with the United States JUDGE: John T. Copenhaver, Jr. District of West Virginia, Charleston
District Court for the Southern District FILED: 04/14/2016 Division, under 28 U.S.C. 1391 and
of West Virginia in United States of Section 12 of the Clayton Act, 15 U.S.C.
America v. Charleston Area Medical COMPLAINT
22. Each Defendant transacts business
Center, Inc. and St. Mary’s Medical The United States of America brings within the Southern District of West
Center, Inc., Civil Action No. 2:16–cv– this civil antitrust action to enjoin an Virginia, and all Defendants reside in
03664. On April 14, 2016, the United
mstockstill on DSK4VPTVN1PROD with NOTICES

agreement by Charleston Area Medical the Southern District of West Virginia.
States filed a Complaint alleging that Center, Inc. (‘‘CAMC’’) and St. Mary’s 8. Defendants engage in interstate
Charleston Area Medical Center, Inc. Medical Center, Inc. (‘‘St. Mary’s) commerce and in activities substantially
(collectively, ‘‘Defendants’’) that affecting interstate commerce.
4 Handbook for Electronic Filing Procedures:
unlawfully allocated territories for the Defendants provide healthcare services
http://www.usitc.gov/secretary/fed_reg_notices/
rules/handbook_on_electronic_filing.pdf. marketing of competing healthcare to patients for which employers, health
5 Electronic Document Information System services and limited competition plans, and individual patients remit
(EDIS): http://edis.usitc.gov. between the Defendants. payments across state lines. Defendants

VerDate Sep<11>2014 22:08 Apr 25, 2016 Jkt 238001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\26APN1.SGM 26APN1
24638 Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Notices

not enter into or attempt to enter into I. NATURE AND PURPOSE OF THE Hospitals use marketing to inform
any similar agreements and that PROCEEDING patients about a hospital’s quality, scope
Defendants’ members, officers, agents, On April 14, 2016, the United States of services, and the expertise of its
and employees are fully informed of the filed a civil antitrust Complaint alleging physicians. Defendants’ marketing
application of the antitrust laws to the that Defendants Charleston Area methods include print advertisements,
Defendants’ businesses; and Medical Center (‘‘CAMC’’) and St. such as newspaper advertisements, and
(E) award Plaintiff its costs in this Mary’s Medical Center (‘‘St. Mary’s’’) outdoor advertisements, such as
action and such other relief as may be violated Section 1 of the Sherman Act, billboards. Healthcare provider
just and proper. 15 U.S.C. 1. The Complaint alleges that advertisements on billboards and
Dated: April 14, 2016 CAMC and St. Mary’s agreed to newspapers helps enable patients to
Respectfully Submitted, unlawfully allocate territories for the make more informed healthcare choices,
For Plaintiff United States of America: marketing of competing healthcare including choosing healthcare providers
WILLIAM J. BAER, services and to limit competition that offer higher quality care and more
Assistant Attorney General for Antitrust between themselves. Specifically, convenient services. Advertising also
DAVID I. GELFAND, according to the Complaint, CAMC and spurs competition for patients, which
Deputy Assistant Attorney General St. Mary’s entered into an agreement can lead hospitals to invest in providing
PATRICIA A. BRINK, under which they agreed not to better care and a broader range of
Director of Civil Enforcement advertise on billboards or in print in services.
PETER J. MUCCHETTI, each others’ home counties in West B. Defendants’ Unlawful Agreement to
Chief, Litigation I Virginia. The agreement eliminated a Limit Marketing
RYAN M. KANTOR, significant form of competition to attract
Since at least 2012, CAMC and St.
Assistant Chief, Litigation I patients and overall substantially Mary’s have agreed to limit their
MICHELLE R. SELTZER, diminished competition to provide marketing for competing services.
Assistant Chief, Litigation I healthcare services. Defendants’ CAMC agreed not to place print or
CAROL A. CASTO, agreement to allocate territories for outdoor advertisements in Cabell
Acting United States Attorney for the marketing is per se illegal under Section
Southern District of West Virginia County, and St. Mary’s agreed not to
1 of the Sherman Act, 15 U.S.C. 1. place print or outdoor advertisements in
Matthew Lindsay, With the Complaint, the United States
Assistant United States Attorney, Robert C.
Kanawha County. Defendants’
filed a Stipulation and proposed Final
Byrd U.S. Courthouse, Suite 4000, 300 marketing departments have monitored
Judgment that, as explained more fully and enforced this agreement.
Virginia Street, Charleston, WV 25301, Tel. below, enjoins Defendants from (1)
No. 304–340–2338, Matthew.Lindsay@ Defendants’ documents show the impact
agreeing with any healthcare provider to of this agreement on the Defendants’
usdoj.gov
prohibit or limit marketing or to allocate marketing.
KATHLEEN KIERNAN,* any service, customer, or geographic
BARRY L. CREECH, In January 2012, a CAMC urology
market or territory, and (2) group asked CAMC’s marketing
JOHN LOHRER, communicating with each other about
GLENN HARRISON, department to advertise its physicians
marketing, subject to narrow exceptions. in The Herald Dispatch, a Cabell County
Attorneys for the United States Antitrust The United States and the Defendants
Division, U.S. Department of Justice, newspaper. In response, a CAMC
have stipulated that the proposed Final marketing department employee
450 Fifth Street, N.W., Suite 4100, Judgment may be entered after
Washington, D.C. 20530 (202) 353–3100 emailed the CAMC Director of
compliance with the APPA. Entry of the Marketing, noting that CAMC does not
(phone), (202) 307–5802 (fax), proposed Final Judgment would
Kathleen.kiernan@usdoj.gov typically advertise in The Herald
terminate this action, except that this Dispatch because of its ‘‘‘gentleman’s
Attorneys for the United States Court would retain jurisdiction to agreement’’’ with St. Mary’s. Consistent
* Attorney of Record construe, modify, and enforce the with its agreement with St. Mary’s,
UNITED STATES DISTRICT COURT proposed Final Judgment and to punish CAMC did not place the newspaper
violations thereof. advertisement.
FOR THE SOUTHERN DISTRICT OF
II. DESCRIPTION OF THE EVENTS In May 2013, St. Mary’s Director of
WEST VIRGINIA
GIVING RISE TO THE ALLEGED Marketing complained to CAMC’s
CHARLESTON DIVISION VIOLATIONS VIOLATIONS Director of Marketing after CAMC ran a
UNITED STATES OF AMERICA, newspaper ad promoting a CAMC
A. Background on Defendants and Their physicians’ group in The Herald
Plaintiff, v. CHARLESTON AREA
Marketing Activities Dispatch, and succeeded in getting
MEDICAL CENTER, INC. and ST.
MARY’S MEDICAL CENTER, INC., Defendants CAMC and St. Mary’s are CAMC to agree to remove the
Defendants. healthcare providers that operate advertisement. In an email from St.
CASE NO.: 2:16–cv–03664 general acute-care hospitals in Mary’s Director of Marketing to other St.
JUDGE: John T. Copenhaver, Jr. Charleston, Kanawha County, West Mary’s senior executives, he wrote, ‘‘I
FILED: 04/14/2016 Virginia, and Huntington, Cabell talked with CAMC and they agreed this
County, West Virginia, respectively. ad violated our agreement not to
COMPETITIVE IMPACT STATEMENT CAMC and St. Mary’s compete with advertise in Charleston paper if they
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Plaintiff United States of America, each other to provide hospital and didn’t advertise in Huntington paper.
pursuant to Section 2(b) of the Antitrust physician services to patients. Hospitals Their director of marketing Says she
Procedures and Penalties Act (‘‘APPA’’ compete through price, quality, and pulled the ad but was concerned it
or ‘‘Tunney Act’’), 15 U.S.C. 16(b)–(h), other factors to sell their services to might still run again one more time this
files this Competitive Impact Statement patients, employers, and insurance Sunday. I can’t call the HD [Herald
relating to the proposed Final Judgment companies. Dispatch] and make sure because they
submitted for entry in this civil antitrust Marketing is an important tool that could challenge this type of handshake
proceeding. hospitals use to compete for patients. agreement That [sic] prevents them from

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getting advertising dollars from a III. EXPLANATION OF THE certification that he or she has read and
different advertiser. We’ll see and I’ll PROPOSED FINAL JUDGMENT agreed to abide by the terms of the Final
follow up from there but after Sunday The proposed Final Judgment will Judgment, and must maintain a record
I am confident we won’t see CAMC prevent the continuation and recurrence of all certifications received. Recipients
again in HD.’’ Consistent with its of the violations alleged in the must also certify that they are not aware
agreement with St. Mary’s, and as Complaint and restore the competition of any violation of the Final Judgment.
described by St. Mary’s Director of restrained by Defendants’ Additionally, each Antitrust
Marketing, CAMC asked the Herald anticompetitive agreement. Section VIII Compliance Officer shall annually brief
Dispatch to remove the advertisement. of the proposed Final Judgment each person required to receive a copy
provides that these provisions will of the Final Judgment and this
In June 2014, when a CAMC-owned
expire five years after its entry. Competitive Impact Statement on the
physicians’ group requested marketing
meaning and requirements of the Final
in Cabell County, a CAMC marketing A. Prohibited Conduct Judgment and the antitrust laws. Each
department employee responded by Antitrust Compliance Officer shall also
telling the group’s representative that Under Section IV of the proposed
Final Judgment, Defendants cannot annually communicate to all employees
CAMC does not market specialist that any employee may disclose,
physicians in Cabell County and St. agree with any healthcare provider to
prohibit or limit marketing or to allocate without reprisal, information
Mary’s does not market specialists in concerning any potential violation of
Kanawha County. Consistent with its any service, customer, or geographic
market or territory, unless such the Final Judgment or the antitrust laws.
agreement with St. Mary’s, CAMC For a period of five years following
refused to market that physicians’ group agreement is reasonably necessary to
further a procompetitive purpose the date of entry of the Final Judgment,
in Cabell County. the Defendants separately must certify
concerning the joint provision of
In August 2014, when another CAMC- services. The joint provision of services annually to the United States that they
owned physicians’ group requested is any past, present, or future have complied with the provisions of
billboard advertising in Cabell County, coordinated delivery of any healthcare the Final Judgment. Additionally, upon
a CAMC marketing representative wrote services by two or more healthcare learning of any violation or potential
to CAMC’s Director of Marketing, ‘‘They providers. Defendants also are violation of the terms and conditions of
had asked for print and billboard prohibited from communicating with the Final Judgment, Defendants must
placement in Huntington. I explained each other about any Defendant’s within thirty days file with the United
our informal agreement. They marketing, subject to three narrow States a statement describing the
understood.’’ CAMC’s Director of exceptions. There is an exception for violation or potential violation, and
Marketing replied, ‘‘Just watch the communication about joint marketing if must promptly take action to terminate
county line my friend.’’ Consistent with the communication is related to the or modify the activity in order to
its agreement with St. Mary’s, CAMC joint provision of services. In addition, comply with the Final Judgment.
did not place print or billboard there are exceptions for To facilitate monitoring of the
advertising for the physician practice in communications about marketing that Defendants’ compliance with the Final
Cabell County. are part of customary due diligence Judgment, Section VI of the proposed
relating to a merger, acquisition, joint Final Judgment requires each Defendant
Defendants’ anticompetitive
venture, investment, or divestiture, and to grant the United States access, upon
agreement is not reasonably necessary to
communications about false or reasonable notice, to Defendant’s
further any procompetitive purpose.
misleading statements made in a records and documents relating to
Defendants’ agreement allocates
Defendant’s marketing. matters contained in the Final
territories for marketing and constitutes Judgment. Defendants must also make
a naked restraint of trade that is per se These prohibited conduct provisions
will restore the competition lost as a their employees available for interviews
unlawful under Section 1 of the or depositions and answer
result of CAMC’s and St. Mary’s
Sherman Act, 15 U.S.C. 1. See United interrogatories and prepare written
unlawful agreement to allocate
States v. Topco Assocs., Inc., 405 U.S. reports relating to matters contained in
territories for the marketing of
596, 607–08 (1972) (holding that naked the Final Judgment upon request.
competing healthcare services.
market allocation agreements among These provisions are designed to
horizontal competitors are plainly B. Compliance and Inspection prevent recurrence of the type of illegal
anticompetitive and illegal per se); The proposed Final Judgment sets conduct alleged in the Complaint.
United States v. Cooperative Theatres of forth various provisions to ensure
Ohio, Inc., 845 F.2d 1367, 1371, 1373 IV. REMEDIES AVAILABLE TO
Defendants’ compliance with the
(6th Cir. 1988) (holding that the POTENTIAL PRIVATE LITIGANTS
proposed Final Judgment. Section V of
defendants’ agreement to not ‘‘actively the proposed Final Judgment requires Section 4 of the Clayton Act, 15
solicit[ ] each other’s customers’’ was each Defendant to appoint an Antitrust U.S.C. 15, provides that any person who
‘‘undeniably a type of customer Compliance Officer within 30 days of has been injured as a result of conduct
allocation scheme which courts have the Final Judgment’s entry. The prohibited by the antitrust laws may
often condemned in the past as a per se Antitrust Compliance Officer must bring suit in federal court to recover
violation of the Sherman Act’’); furnish copies of this Competitive three times the damages the person has
Blackburn v. Sweeney, 53 F.3d 825, 828
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Impact Statement, the Final Judgment, suffered, as well as costs and reasonable
(7th Cir. 1995) (holding that the and an approved notice explaining the attorneys’ fees. Entry of the proposed
‘‘[a]greement to limit advertising to obligations of the Final Judgment to Final Judgment will neither impair nor
different geographical regions was each Defendant’s officers, directors, and assist the bringing of any private
intended to be, and sufficiently marketing managers, and to any person antitrust damage action. Under the
approximates[,] an agreement to allocate who succeeds to any such position. The provisions of Section 5(a) of the Clayton
markets so that the per se rule of Antitrust Compliance Officer must also Act, 15 U.S.C. 16(a), the proposed Final
illegality applies’’). obtain from each recipient a Judgment has no prima facie effect in

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Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Notices 24641

the government’s predictions about the have, been alleged’’). Because the response to public comments alone.
efficacy of its remedies, and may not ‘‘court’s authority to review the decree U.S. Airways, 38 F. Supp. 3d at 76.
require that the remedies perfectly depends entirely on the government’s
VIII. DETERMINATIVE DOCUMENTS
match the alleged violations.’’ SBC exercising its prosecutorial discretion by
Commc’ns, 489 F. Supp. 2d at 17; see bringing a case in the first place,’’ it There are no determinative materials
also U.S. Airways, 38 F. Supp. 3d at 75 follows that ‘‘the court is only or documents within the meaning of the
(noting that a court should not reject the authorized to review the decree itself,’’ APPA that were considered by the
proposed remedies because it believes and not to ‘‘effectively redraft the United States in formulating the
others are preferable); Microsoft, 56 F.3d complaint’’ to inquire into other matters proposed Final Judgment.
at 1461 (noting the need for courts to be that the United States did not pursue. Dated: April 14, 2016
‘‘deferential to the government’s Microsoft, 56 F.3d at 1459–60. As a Respectfully submitted,
predictions as to the effect of the court confirmed in SBC For PlaintiffUnited States of America
proposed remedies’’); United States v. Communications, courts ‘‘cannot look
Kathleen Kiernan,
Archer-Daniels-Midland Co., 272 F. beyond the complaint in making the
public interest determination unless the Trial Attorney, Antitrust Division, U.S.
Supp. 2d 1, 6 (D.D.C. 2003) (noting that Department of Justice, Litigation I Section,
the court should grant due respect to the complaint is drafted so narrowly as to
450 Fifth Street NW., Suite 4100,
United States’ prediction as to the effect make a mockery of judicial power.’’ SBC Washington, DC 20530, Phone: (202) 353–
of proposed remedies, its perception of Commc’ns, 489 F. Supp. 2d at 15. 3100, DC Bar # 1003748, Email:
the market structure, and its views of In its 2004 amendments, Congress Kathleen.Kiernan@usdoj.gov
the nature of the case). made clear its intent to preserve the CAROL A. CASTO,
practical benefits of using consent Acting United States Attorney for the
Courts have greater flexibility in
decrees in antitrust enforcement, adding Southern District of West Virginia
approving proposed consent decrees
the unambiguous instruction that Matthew Lindsay,
than in crafting their own decrees
‘‘[n]othing in this section shall be Assistant United States Attorney, Robert C.
following a finding of liability in a
construed to require the court to Byrd U.S. Courthouse, Suite 4000, 300
litigated matter. ‘‘[A] proposed decree
conduct an evidentiary hearing or to Virginia Street, Charleston, WV 25301, Tel.
must be approved even if it falls short
require the court to permit anyone to No. 304–340–2338, Matthew.Lindsay@
of the remedy the court would impose
intervene.’’ 15 U.S.C. 16(e)(2); see also usdoj.gov
on its own, as long as it falls within the U.S. Airways, 38 F. Supp. 3d at 76
range of acceptability or is ‘within the (noting that a court is not required to CERTIFICATE OF SERVICE
reaches of public interest.’’’ United hold an evidentiary hearing or to permit I hereby certify that on April 14, 2016,
States v. Am. Tel. & Tel. Co., 552 F. intervenors as part of its review under I electronically filed the foregoing paper
Supp. 131, 151 (D.D.C. 1982) (citations the Tunney Act). The language captured with the Clerk of the Court using the
omitted); see also U.S. Airways, 38 F. Congress’s intent when it enacted the ECF system and sent it via email to the
Supp. 3d at 75 (noting that room must Tunney Act in 1974. Senator Tunney following counsel at the email addresses
be made for the government to grant explained: ‘‘The court is nowhere below.
concessions in the negotiation process compelled to go to trial or to engage in
for settlements) (citing Microsoft, 56 Counsel for Defendant Charleston
extended proceedings which might have Area Medical Center, Inc.:
F.3d at 1461); United States v. Alcan the effect of vitiating the benefits of
Aluminum Ltd., 605 F. Supp. 619, 622 prompt and less costly settlement Robert W. McCann
(W.D. Ky. 1985) (approving the consent through the consent decree process.’’ Drinker Biddle & Reath LLP
decree even though the court would 119 Cong. Rec. 24,598 (1973) (statement Robert.McCann@dbr.com
have imposed a greater remedy). To of Sen. Tunney). Rather, the procedure Counsel for Defendant St. Mary’s
meet this standard, the United States for the public-interest determination is Medical Center, Inc.:
‘‘need only provide a factual basis for left to the discretion of the court, with
concluding that the settlements are David Simon
the recognition that the court’s ‘‘scope
reasonably adequate remedies for the of review remains sharply proscribed by Foley & Lardner LLP
alleged harms.’’ SBC Commc’ns, 489 F. precedent and the nature of Tunney Act DSimon@foley.com
Supp. 2d at 17. proceedings.’’ SBC Commc’ns, 489 F. Kathleen Kiernan,
Moreover, the court’s role under the Supp. 2d at 11.3 A court can make its Trial Attorney, Antitrust Division, U.S.
APPA is limited to reviewing the public-interest determination based on Department of Justice, Litigation I Section,
remedy in relationship to the violations the competitive impact statement and 450 Fifth Street NW., Suite 4100,
that the United States has alleged in its Washington, DC 20530, Phone: (202) 353–
Complaint, and does not authorize the 3 See United States v. Enova Corp., 107 F. Supp. 3100, DC Bar # 1003748, Email:
court to ‘‘construct [its] own 2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney Kathleen.Kiernan@usdoj.gov
hypothetical case and then evaluate the Act expressly allows the court to make its public
interest determination on the basis of the UNITED STATES DISTRICT COURT
decree against that case.’’ Microsoft, 56 competitive impact statement and response to
F.3d at 1459; see also U.S. Airways, 38 FOR THE SOUTHERN DISTRICT OF
comments alone’’); United States v. Mid-Am.
F. Supp. 3d at 76 (noting that the court Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade WEST VIRGINIA
Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977)
must simply determine whether there is (‘‘Absent a showing of corrupt failure of the
CHARLESTON DIVISION
a factual foundation for the government to discharge its duty, the Court, in UNITED STATES OF AMERICA,
mstockstill on DSK4VPTVN1PROD with NOTICES

government’s decisions such that its making its public interest finding, should . . .
carefully consider the explanations of the Plaintiff, v. CHARLESTON AREA
conclusions regarding the proposed
government in the competitive impact statement MEDICAL CENTER, INC. and ST.
settlements are reasonable); InBev, 2009 and its responses to comments in order to MARY’S MEDICAL CENTER, INC.,
U.S. Dist. LEXIS 84787, at *20 (‘‘the determine whether those explanations are
Defendants.
‘public interest’ is not to be measured by reasonable under the circumstances.’’); S. Rep. No.
93–298, at 6 (1973) (‘‘Where the public interest can CASE NO.: 2:16–cv–03664
comparing the violations alleged in the be meaningfully evaluated simply on the basis of
complaint against those the court briefs and oral arguments, that is the approach that JUDGE: John T. Copenhaver, Jr.
believes could have, or even should should be utilized.’’). FILED: 04/14/2016

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24642 Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Notices

[PROPOSED] FINAL JUDGMENT (E) ‘‘Marketing’’ means any past, about any Defendant’s Marketing,
Whereas, Plaintiff the United States of present, or future activities that are except each Defendant may:
America filed its Complaint on April 14, involved in making persons aware of the (1) communicate with the other
2016, alleging that Defendants violated services or products of the hospital or of Defendant about joint Marketing if the
Section 1 of the Sherman Act, 15 U.S.C. physicians employed or with privileges communication is related to the Joint
§ 1; at the hospital, including advertising, Provision of Services;
And whereas, Plaintiff and communications, public relations, (2) communicate with the other
Defendants Charleston Area Medical provider network development, Defendant about Marketing if the
Center, Inc. and St. Mary’s Medical outreach to employers or physicians, communication is part of customary due
Center, Inc., by their respective and promotions, such as free health diligence relating to a merger,
attorneys, have consented to the entry of screenings and education. acquisition, joint venture, investment,
this Final Judgment without trial or (F) ‘‘Marketing Manager’’ means any or divestiture; or
adjudication of any issue of fact or law; company employee or manager with (3) communicate with the other
And whereas, Plaintiff requires the management responsibility for or Defendant about claims or statements
Defendants to agree to undertake certain oversight of Marketing. made in the other Defendant’s
actions and refrain from certain conduct (G) ‘‘Person’’ means any natural Marketing that the Defendant believes
for the purpose of remedying the person, corporation, firm, company, sole are false or misleading, or to respond to
anticompetitive effects alleged in the proprietorship, partnership, joint such communications from the other
Complaint; venture, association, institute, Defendant.
Now therefore, before any testimony governmental unit, or other legal entity. V. REQUIRED CONDUCT
is taken, without this Final Judgment (H) ‘‘Provider’’ means any health care
constituting any evidence against or (A) Within 30 days of entry of this
professional or group of professionals
admission by Defendants regarding any Final Judgment, each Defendant shall
and any inpatient or outpatient medical
issue of fact or law, and upon consent appoint, subject to the approval of the
facility including hospitals, ambulatory
of the parties to this action, it is ordered, United States, an Antitrust Compliance
surgical centers, urgent care facilities,
adjudged, and decreed: Officer. In the event such person is
and nursing facilities. A health
unable to perform his or her duties, each
I. JURISDICTION insurance plan, health maintenance
Defendant shall appoint, subject to the
organization, or other third party payor
This Court has jurisdiction over the approval of the United States, a
of health care services, acting in that
subject matter of and each of the parties replacement within ten (10) working
capacity, is not a ‘‘Provider.’’
to this action. The Complaint states a days.
(I) ‘‘Relevant Area’’ means the state of (B) Each Defendant’s Antitrust
claim upon which relief may be granted West Virginia; Boyd County, Kentucky;
against the Defendants under Section 1 Compliance Officer shall:
and Lawrence County, Ohio. (1) furnish a copy of this Final
of the Sherman Act, 15 U.S.C. § 1.
(J) ‘‘St. Mary’s’’ means Defendant St. Judgment, the Competitive Impact
II. DEFINITIONS Mary’s Medical Center, Inc., a nonprofit Statement, and a cover letter that is
As used in this Final Judgment: hospital organized and existing under identical in content to Exhibit 1 within
(A) ‘‘Agreement’’ means any contract, the laws of West Virginia with its 60 days of entry of the Final Judgment
arrangement, or understanding, formal headquarters in Huntington, West to that Defendant’s officers, directors,
or informal, oral or written, between Virginia, its successors and assigns, and and Marketing Managers, and to any
two or more persons. its controlled subsidiaries, divisions, person who succeeds to any such
(B) ‘‘CAMC’’ means Defendant groups, affiliates, partnerships, and joint position, within 30 days of that
Charleston Area Medical Center, Inc., a ventures, and their respective directors, succession;
nonprofit hospital system organized and officers, managers, agents, and (2) annually brief each person
existing under the laws of West Virginia employees. designated in Section V(B)(1) on the
with its headquarters in Charleston, III. APPLICABILITY meaning and requirements of this Final
West Virginia, its successors and Judgment and the antitrust laws;
assigns, and its controlled subsidiaries, This Final Judgment applies to the (3) obtain from each person
divisions, groups, affiliates, Defendants, and all other persons in designated in Section V(B)(1), within 60
partnerships, and joint ventures, and active concert or participation with any days of that person’s receipt of the Final
their respective directors, officers, of them who receive actual notice of this Judgment, a certification that he or she
managers, agents, and employees. Final Judgment by personal service or (i) has read and, to the best of his or her
(C) ‘‘Communicate’’ means to discuss, otherwise. ability, understands and agrees to abide
disclose, transfer, disseminate, or IV. PROHIBITED CONDUCT by the terms of this Final Judgment; (ii)
exchange information or opinion, is not aware of any violation of the Final
formally or informally, directly or (A) Each Defendant shall not enter Judgment that has not already been
indirectly, in any manner. into, attempt to enter into, maintain, or reported to the Defendant; and (iii)
(D) ‘‘Joint Provision of Services’’ enforce any Agreement with any other understands that any person’s failure to
means any past, present, or future joint Provider that: comply with this Final Judgment may
health education campaign or (1) prohibits or limits Marketing; or result in an enforcement action for civil
coordinated delivery of any healthcare (2) allocates any service, customer, or or criminal contempt of court against
mstockstill on DSK4VPTVN1PROD with NOTICES

services by two or more healthcare geographic market or territory between each Defendant and/or any person who
providers, including a clinical or among the Defendant and any other violates this Final Judgment;
affiliation, joint venture, management Provider, unless such Agreement is (4) maintain a record of certifications
agreement, accountable care reasonably necessary to further a obtained pursuant to this Section; and
organization, clinically integrated procompetitive purpose concerning the (5) annually communicate to all of the
network, group purchasing organization, Joint Provision of Services. Defendant’s employees that they may
management services organization, or (B) Each Defendant shall not disclose to the Antitrust Compliance
physician hospital organization. communicate with the other Defendant Officer, without reprisal, information

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24644 Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Notices

with anyone from [other Defendant] Consent Decree. Comments should be Mines, Inc. will pay $5.4 million to the
about marketing plans.) addressed to the Assistant Attorney U.S. Environmental Protection Agency
A copy of the court order is attached. General, Environment and Natural (‘‘EPA’’) and $600,000 to the Colorado
Please read it carefully and familiarize Resources Division, and should refer to Department of Public Health and
yourself with its terms. The order, rather United States and State of South Dakota Environment (‘‘CDPHE’’) for response
than the above description, is v. CoCa Mines, Inc. and Thomas E. costs incurred and to be incurred at the
controlling. If you have any questions Congdon, D.J. Ref. No. 90–11–3–11179. Site. The settlement extends a covenant
about the order or how it affects your All comments must be submitted no not to sue under Sections 106 and 107
activities, please contact me. Thank you later than thirty (30) days after the of CERCLA, 42 U.S.C. 9606 and 9607, to
for your cooperation. publication date of this Notice. the Settling Defendant, CoCa Mines,
Sincerely, Comments may be submitted either by Inc., and to the Settling Defendant’s
[Defendant’s Antitrust Compliance Officer] email or by mail: Related Parties a term defined, subject
[FR Doc. 2016–09728 Filed 4–25–16; 8:45 am]
to specific limitations, to include Hecla
To submit Limited and Creede Resources, Inc. The
Send them to:
BILLING CODE P comments:
settlement further extends, subject to
By e-mail ....... pubcomment-ees.enrd@ specific limitations, to Settling
DEPARTMENT OF JUSTICE usdoj.gov. Defendant’s successors and assigns, and
By mail ........... Assistant Attorney General, to the officers, directors, and employees
Notice of Lodging of Proposed U.S. DOJ—ENRD, P.O. of Settling Defendant and Settling
Consent Decree Under the Box 7611, Washington, Defendant’s Related Parties.
Comprehensive Environmental DC 20044–7611. The publication of this notice opens
Response, Compensation, and Liability a period for public comment on the
Act During the public comment period, Consent Decree. Comments should be
the Consent Decree may be examined addressed to the Assistant Attorney
On April 15, 2016, the Department of and downloaded at this Justice General, Environment and Natural
Justice lodged a proposed Consent Department Web site: http:// Resources Division, and should refer to
Decree with the United States District www.justice.gov/enrd/consent-decrees. United States and State of Colorado v.
Court for the District of South Dakota, We will provide a paper copy of the CoCa Mines, Inc., D.J. Ref. No. 90–11–
Western Division in the lawsuit entitled Consent Decree upon written request 3–10841. All comments must be
United States and State of South Dakota and payment of reproduction costs. submitted no later than thirty (30) days
v. CoCa Mines, Inc. and Thomas E. Please mail your request and payment after the publication date of this notice.
Congdon, Civil Action No. 5:16–cv– to: Consent Decree Library, U.S. DOJ— Comments may be submitted either by
05022–JLV. ENRD, P.O. Box 7611, Washington, DC email or by mail:
This case was brought under Sections 20044–7611.
107(a) and 113(g)(2) of the Please enclose a check or money order To submit
Comprehensive Environmental for $8.25 (25 cents per page Send them to:
comments:
Response, Compensation, and Liability reproduction cost) payable to the United
Act (‘‘CERCLA’’), 42 U.S.C. 9607(a) and States Treasury. By e-mail ....... pubcomment-ees.enrd@
9613(g)(2), for the recovery of response usdoj.gov.
Jeffrey K. Sands, By mail ........... Assistant Attorney General,
costs related to the cleanup at the Gilt
Edge Mine Site (‘‘Site’’) in Lawrence Assistant Section Chief, Environmental U.S. DOJ—ENRD, P.O.
Enforcement Section, Environment and Box 7611, Washington,
County, South Dakota. Natural Resources Division. D.C. 20044–7611.
The United States and the State of
[FR Doc. 2016–09565 Filed 4–25–16; 8:45 am]
South Dakota filed a Complaint in this
case on April 14, 2016 alleging that the BILLING CODE 4410–15–P During the public comment period,
Defendants are jointly and severally the Consent Decree may be examined
liable for response costs related to the and downloaded at this Justice
cleanup at the Site. 42 U.S.C. 9607(a) DEPARTMENT OF JUSTICE Department Web site: http://
and 9613(g)(2). The Complaint requests www.justice.gov/enrd/consent-decrees.
Notice of Lodging of Proposed We will provide a paper copy of the
recovery of costs that the United States Consent Decree Under the
and the State incurred responding to Consent Decree upon written request
Comprehensive Environmental and payment of reproduction costs.
releases of hazardous substances at the Response, Compensation, and Liability
Site near Lead, South Dakota. Both Please mail your request and payment
Act to:
Defendants signed the Consent Decree
and will pay a combined $10.3 million On April 14, 2016, the Department of Consent Decree Library, U.S. DOJ—
in cash, with CoCa Mines paying up to Justice lodged a proposed Consent ENRD, P.O. Box 7611, Washington,
an additional $700,000 in future Decree with the United States District DC 20044–7611.
insurance recovery. The money will be Court for the District of Colorado in the Please enclose a check or money order
used to help pay for response costs lawsuit entitled United States and State for $6.75 (25 cents per page
related to the cleanup at the Site. In of Colorado v. CoCa Mines, Inc., Civil reproduction cost) payable to the United
return, the United States and the State Action No. 1:16–cv–00847WJM. States Treasury for a copy of the
mstockstill on DSK4VPTVN1PROD with NOTICES

of South Dakota agree not to sue the The case concerns the Nelson Tunnel/ Consent Decree.
Defendants under Sections 106 and 107 Commodore Waste Rock Pile Superfund
of CERCLA, 42 U.S.C. 9606 and 9607. Site (‘‘Site’’) located near Creede, Jeffrey K. Sands,
The Consent Decree would resolve the Colorado, and the potential liability of Assistant Section Chief, Environmental
claims against the Defendants as CoCa Mines, Inc. under Section 107(a) Enforcement Section, Environment and
described in the Complaint. of CERCLA, 42 U.S.C. 9607(a), as a past Natural Resources Division.
The publication of this Notice opens owner or operator at the Site from 1973 [FR Doc. 2016–09564 Filed 4–25–16; 8:45 am]
a period for public comment on the to 1993. Under the settlement CoCa BILLING CODE 4410–15–P

VerDate Sep<11>2014 22:08 Apr 25, 2016 Jkt 238001 PO 00000 Frm 00091 Fmt 4703 Sfmt 9990 E:\FR\FM\26APN1.SGM 26APN1
Document Created: 2016-04-26 01:37:06
Document Modified: 2016-04-26 01:37:06
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		81 FR 24636
81 FR 24636 - United States v. Charleston Area Medical Center, Inc. and St. Mary's Medical Center, Inc.: Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICEAntitrust Division

Federal Register Volume 81, Issue 80 (April 26, 2016)

DEPARTMENT OF JUSTICE
Antitrust Division
