83 FR 52557 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-UHD Alliance, Inc.

DEPARTMENT OF JUSTICE
Antitrust Division

Federal Register Volume 83, Issue 201 (October 17, 2018)

Page Range		52557-52558
FR Document		2018-22543

Federal Register, Volume 83 Issue 201 (Wednesday, October 17, 2018)

[Federal Register Volume 83, Number 201 (Wednesday, October 17, 2018)]
[Notices]
[Pages 52557-52558]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22543]


-----------------------------------------------------------------------

 DEPARTMENT OF JUSTICE

Antitrust Division


Notice Pursuant to the National Cooperative Research and 
Production Act of 1993--UHD Alliance, Inc.

    Notice is hereby given that, on September 6, 2018, pursuant to 
Section 6(a) of the National Cooperative Research and Production Act of 
1993, 15 U.S.C. 4301 et seq. (``the Act''), UHD Alliance, Inc. (``UHD 
Alliance'') filed written notifications simultaneously with the 
Attorney General and the Federal Trade Commission disclosing changes in 
its membership. The notifications were filed for the purpose of 
extending the Act's provisions

[[Page 52558]]

limiting the recovery of antitrust plaintiffs to actual damages under 
specified circumstances. Specifically, HP Inc., Houston, TX; and 
Quatius Ltd., Kwai Chung, HONG KONG-CHINA, have withdrawn as parties to 
this venture.
    No other changes have been made in either the membership or planned 
activity of the group research project. Membership in this group 
research project remains open, and UHD Alliance intends to file 
additional written notifications disclosing all changes in membership.
    On June 17, 2015, UHD Alliance filed its original notification 
pursuant to Section 6(a) of the Act. The Department of Justice 
published a notice in the Federal Register pursuant to Section 6(b) of 
the Act on July 17, 2015 (80 FR 42537).
    The last notification was filed with the Department on June 7, 
2018. A notice was published in the Federal Register pursuant to 
Section 6(b) of the Act on July 9, 2018 (83 FR 31775).

Suzanne Morris,
Chief, Premerger and Division Statistics Unit, Antitrust Division.
[FR Doc. 2018-22543 Filed 10-16-18; 8:45 am]
 BILLING CODE 4410-11-P

Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Notices 52557

particular decree is the one that will the United States ‘‘need only provide a for the public interest determination is
best serve society, but whether the factual basis for concluding that the left to the discretion of the court, with
settlement is ‘‘within the reaches of the settlements are reasonably adequate the recognition that the court’s ‘‘scope
public interest.’’ More elaborate remedies for the alleged harms.’’ SBC of review remains sharply proscribed by
requirements might undermine the Commc’ns, 489 F. Supp. 2d at 17. precedent and the nature of Tunney Act
effectiveness of antitrust enforcement by Moreover, the court’s role under the proceedings.’’ SBC Commc’ns, 489 F.
consent decree. APPA is limited to reviewing the Supp. 2d at 11.5 A court can make its
Bechtel, 648 F.2d at 666 (emphasis remedy in relationship to the violations public interest determination based on
added) (citations omitted).4 In that the United States has alleged in its the competitive impact statement and
determining whether a proposed Complaint, and does not authorize the response to public comments alone.
settlement is in the public interest, a court to ‘‘construct [its] own U.S. Airways, 38 F. Supp. 3d at 75.
district court ‘‘must accord deference to hypothetical case and then evaluate the
the government’s predictions about the decree against that case.’’ Microsoft, 56 VIII. DETERMINATIVE DOCUMENTS
efficacy of its remedies, and may not F.3d at 1459; see also U.S. Airways, 38 There are no determinative materials
require that the remedies perfectly F. Supp. 3d at 74 (noting that the court or documents within the meaning of the
match the alleged violations.’’ SBC must simply determine whether there is APPA that were considered by the
Commc’ns, 489 F. Supp. 2d at 17; see a factual foundation for the United States in formulating the
also U.S. Airways, 38 F. Supp. 3d at 75 government’s decisions such that its proposed Final Judgment.
(noting that a court should not reject the conclusions regarding the proposed Dated: October 10, 2018
proposed remedies because it believes settlements are reasonable; InBev, 2009
Respectfully submitted,
others are preferable); Microsoft, 56 F.3d U.S. Dist. LEXIS 84787, at *20 (‘‘the lllllllllllllllllllll
at 1461 (noting the need for courts to be ‘public interest’ is not to be measured by
SOYOUNG CHOE *
‘‘deferential to the government’s comparing the violations alleged in the Defense, Industrials, and Aerospace Section,
predictions as to the effect of the complaint against those the court Antitrust Division, 450 Fifth Street NW, Suite
proposed remedies’’); United States v. believes could have, or even should 8700, Washington, DC 20530, Telephone:
Archer-Daniels-Midland Co., 272 F. have, been alleged’’). Because the (202) 598–2436, Facsimile: (202) 514–9033,
Supp. 2d 1, 6 (D.D.C. 2003) (noting that ‘‘court’s authority to review the decree soyoung.choe@usdoj.gov
the court should grant due respect to the depends entirely on the government’s * Attorney of Record
United States’ prediction as to the effect exercising its prosecutorial discretion by [FR Doc. 2018–22555 Filed 10–16–18; 8:45 am]
of proposed remedies, its perception of bringing a case in the first place,’’ it
BILLING CODE 4410–11–P
the market structure, and its views of follows that ‘‘the court is only
the nature of the case). authorized to review the decree itself,’’
Courts have greater flexibility in and not to ‘‘effectively redraft the DEPARTMENT OF JUSTICE
approving proposed consent decrees complaint’’ to inquire into other matters
than in crafting their own decrees that the United States did not pursue. Antitrust Division
following a finding of liability in a Microsoft, 56 F.3d at 1459–60. As this
litigated matter. ‘‘[A] proposed decree Court recently confirmed in SBC Notice Pursuant to the National
must be approved even if it falls short Communications, courts ‘‘cannot look Cooperative Research and Production
of the remedy the court would impose beyond the complaint in making the Act of 1993—UHD Alliance, Inc.
on its own, as long as it falls within the public interest determination unless the
range of acceptability or is ‘within the Notice is hereby given that, on
complaint is drafted so narrowly as to
reaches of public interest.’ ’’ United September 6, 2018, pursuant to Section
make a mockery of judicial power.’’ SBC
States v. Am. Tel. & Tel. Co., 552 F. 6(a) of the National Cooperative
Commc’ns, 489 F. Supp. 2d at 15.
Supp. 131, 151 (D.D.C. 1982) (citations In its 2004 amendments, Congress Research and Production Act of 1993,
omitted) (quoting United States v. made clear its intent to preserve the 15 U.S.C. 4301 et seq. (‘‘the Act’’), UHD
Gillette Co., 406 F. Supp. 713, 716 (D. practical benefits of utilizing consent Alliance, Inc. (‘‘UHD Alliance’’) filed
Mass. 1975)), aff’d sub nom. Maryland decrees in antitrust enforcement, adding written notifications simultaneously
v. United States, 460 U.S. 1001 (1983); the unambiguous instruction that with the Attorney General and the
see also U.S. Airways, 38 F. Supp. 3d at ‘‘[n]othing in this section shall be Federal Trade Commission disclosing
74 (noting that room must be made for construed to require the court to changes in its membership. The
the government to grant concessions in conduct an evidentiary hearing or to notifications were filed for the purpose
the negotiation process for settlements require the court to permit anyone to of extending the Act’s provisions
(citing Microsoft, 56 F.3d at 1461)); intervene.’’ 15 U.S.C. § 16(e)(2); see also
5 See United States v. Enova Corp., 107 F. Supp.
United States v. Alcan Aluminum Ltd., U.S. Airways, 38 F. Supp. 3d at 75
2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney
605 F. Supp. 619, 622 (W.D. Ky. 1985) (indicating that a court is not required Act expressly allows the court to make its public
(approving the consent decree even to hold an evidentiary hearing or to interest determination on the basis of the
though the court would have imposed a permit intervenors as part of its review competitive impact statement and response to
under the Tunney Act). The language comments alone’’); United States v. Mid-Am.
greater remedy). To meet this standard, Dairymen, Inc., No. 73–CV–681–W–1, 1977–1 Trade
wrote into the statute what Congress Cas. (CCH) ¶ 61,508, at 71,980, *22 (W.D. Mo. 1977)
4 Cf. BNS, 858 F.2d at 464 (holding that the intended when it enacted the Tunney (‘‘Absent a showing of corrupt failure of the
court’s ‘‘ultimate authority under the [APPA] is Act in 1974, as Senator Tunney government to discharge its duty, the Court, in
limited to approving or disapproving the consent explained: ‘‘[t]he court is nowhere making its public interest finding, should . . .
daltland on DSKBBV9HB2PROD with NOTICES

decree’’); United States v. Gillette Co., 406 F. Supp. carefully consider the explanations of the
713, 716 (D. Mass. 1975) (noting that, in this way,
compelled to go to trial or to engage in government in the competitive impact statement
the court is constrained to ‘‘look at the overall extended proceedings which might have and its responses to comments in order to
picture not hypercritically, nor with a microscope, the effect of vitiating the benefits of determine whether those explanations are
but with an artist’s reducing glass’’). See generally prompt and less costly settlement reasonable under the circumstances.’’); S. Rep. No.
Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the 93–298, at 6 (1973) (‘‘Where the public interest can
remedies [obtained in the decree are] so
through the consent decree process.’’ be meaningfully evaluated simply on the basis of
inconsonant with the allegations charged as to fall 119 Cong. Rec. 24,598 (1973) (statement briefs and oral arguments, that is the approach that
outside of the ‘reaches of the public interest’’’). of Sen. Tunney). Rather, the procedure should be utilized.’’).

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52558 Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Notices

limiting the recovery of antitrust District Court for the District of particularly strong in 16 geographic regions
plaintiffs to actual damages under Columbia. Copies of these materials may established by the Centers for Medicare &
specified circumstances. Specifically, be obtained from the Antitrust Division Medicaid Services (‘‘CMS’’). In these 16
HP Inc., Houston, TX; and Quatius Ltd., upon request and payment of the regions, over 9.3 million people are enrolled
Kwai Chung, HONG KONG–CHINA, in individual PDPs. Competition between
copying fee set by Department of Justice
CVS and Aetna is particularly important in
have withdrawn as parties to this regulations. these regions because they compete for
venture. Public comment is invited within 60 similar customers by lowering prices and
No other changes have been made in days of the date of this notice. Such improving products. Moreover, they are two
either the membership or planned comments, including the name of the of the largest and fastest-growing
activity of the group research project. submitter, and responses thereto, will be competitors. Individuals in these 16 regions
Membership in this group research posted on the Antitrust Division’s will experience harm, including price
project remains open, and UHD Alliance website, filed with the Court, and, under increases and quality reductions, from the
intends to file additional written certain circumstances, published in the loss of competition between CVS and Aetna.
notifications disclosing all changes in Federal Register. Comments should be 3. Because the transaction likely would
membership. directed to Peter Mucchetti, Chief, substantially lessen competition between
On June 17, 2015, UHD Alliance filed Healthcare and Consumer Products CVS and Aetna for individual PDPs in these
its original notification pursuant to Section, Antitrust Division, Department 16 regions, the proposed acquisition violates
Section 6(a) of the Act. The Department Section 7 of the Clayton Act, 15 U.S.C. § 18,
of Justice, 450 Fifth Street NW, Suite and should be enjoined.
of Justice published a notice in the 4100, Washington, DC 20530
Federal Register pursuant to Section (telephone: 202–307–0001). II. Background
6(b) of the Act on July 17, 2015 (80 FR
Patricia A. Brink, A. Medicare Drug Coverage
42537).
The last notification was filed with Director of Civil Enforcement. 4. Medicare is a federal program that
the Department on June 7, 2018. A provides health insurance to qualified
United States District Court for the beneficiaries. Medicare offers coverage for
notice was published in the Federal
District of Columbia outpatient prescription drugs under the
Register pursuant to Section 6(b) of the
United States Of America, U.S. Department Medicare Part D program, which harnesses
Act on July 9, 2018 (83 FR 31775).
of Justice, Antitrust Division, 450 5th Street competition between private insurance
Suzanne Morris, NW, Suite 4100, Washington, DC 20530, companies in order to lower prescription
Chief, Premerger and Division Statistics Unit, State of California, 455 Golden Gate Avenue, drug costs for Medicare beneficiaries and
Antitrust Division. Suite 11000, San Francisco, CA 94102, State taxpayers, enhance plan designs, and
of Florida, PL–01, The Capitol, Tallahassee, improve quality of coverage.
[FR Doc. 2018–22543 Filed 10–16–18; 8:45 am]
FL 32399–1050, State of Hawaii, 425 Queen 5. Medicare beneficiaries obtain individual
BILLING CODE 4410–11–P drug coverage in two main ways, depending
Street, Honolulu, HI 96813, State of
Mississippi, P.O. Box 22947, Jackson, MS on the type of medical insurance they have.
39225, and State of Washington, 800 Fifth Beneficiaries enrolled in Original Medicare,
DEPARTMENT OF JUSTICE a fee-for-service program offered directly
Avenue, Suite 2000, Seattle, WA 98104–3188,
Plaintiffs, v., CVS Health Corporation, 1 CVS through the federal government, can enroll in
Antitrust Division a standalone individual PDP. Beneficiaries
Drive, Woonsocket, RI 02895, and AETNA
Inc., 151 Farmington Avenue, Hartford, CT enrolled in Medicare Advantage, a type of
United States v. CVS Health private insurance offered by companies that
06156, Defendants.
Corporation and Aetna Inc.; Proposed contract with the federal government, can
Final Judgment and Competitive Case No. 1:18–cv–02340
Judge Richard J. Leon enroll in a plan that includes drug coverage.
Impact Statement 6. No matter how beneficiaries obtain
COMPLAINT Medicare drug coverage, the federal
Notice is hereby given pursuant to the government subsidizes the cost of that
Antitrust Procedures and Penalties Act, The United States of America, acting under
the direction of the Attorney General of the coverage. As explained in greater detail
15 U.S.C. 16(b)–(h), that a proposed United States, and the States of California, below, the federal government also provides
Final Judgment, Stipulation, and Florida, Hawaii, Mississippi, and additional subsidies to low-income
Competitive Impact Statement have Washington (‘‘Plaintiff States’’), bring this beneficiaries under the low-income subsidy
been filed with the United States civil antitrust action to prevent CVS Health (‘‘LIS’’) program.
District Court for the District of Corporation from acquiring Aetna Inc. B. Individual PDPs
Columbia in United States of America v.
I. Introduction 7. Individual PDPs provide beneficiaries
CVS Health Corporation and Aetna Inc.,
1. CVS’s proposed $69 billion acquisition with insurance coverage for a set of
Civil Action No. 1:18–cv–02340. On prescription drugs (the ‘‘formulary’’), a
October 10, 2018, the United States filed of Aetna would combine two of the country’s
leading sellers of individual prescription network of pharmacies where beneficiaries
a Complaint alleging that CVS Health drug plans, also known as individual PDPs. may fill prescriptions, and a set schedule of
Corporation’s proposed acquisition of More than 20 million individual defined premiums and cost-sharing rates.
Aetna Inc. would violate Section 7 of beneficiaries—primarily seniors and persons 8. To offer individual PDPs, insurers must
the Clayton Act, 15 U.S.C. 18. The with disabilities—rely on these government- be approved by CMS. CMS has divided the
proposed Final Judgment, filed at the sponsored plans for prescription drug 50 states and the District of Columbia into 34
same time as the Complaint, requires insurance coverage. Competition between Part D regions. To offer an individual PDP in
the merging parties to divest Aetna’s CVS and Aetna to sell individual PDPs has a Part D region, the insurer must offer the
individual prescription drug plan resulted in lower premiums, better service, plan at the same price to all individuals in
and more innovative products. The proposed the region and have a pharmacy network that
daltland on DSKBBV9HB2PROD with NOTICES

business. is adequate to serve individuals throughout
Copies of the Complaint, proposed acquisition would eliminate this valuable
competition, harming beneficiaries, the region. No Part D region is smaller than
Final Judgment, and Competitive Impact taxpayers, and the federal government, which a state, and some Part D regions encompass
Statement are available for inspection pays for a large portion of beneficiaries’ multiple contiguous states. Beneficiaries can
on the Antitrust Division’s website at prescription drug coverage. enroll only in individual PDPs offered in the
http://www.justice.gov/atr and at the 2. While CVS and Aetna compete Part D region where they reside. The
Office of the Clerk of the United States throughout the United States, they are following map shows the Part D regions:

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Document Created: 2018-10-17 01:47:01
Document Modified: 2018-10-17 01:47:01

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		83 FR 52557

83 FR 52557 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-UHD Alliance, Inc.

DEPARTMENT OF JUSTICEAntitrust Division

Federal Register Volume 83, Issue 201 (October 17, 2018)

DEPARTMENT OF JUSTICE
Antitrust Division