[Federal Register Volume 59, Number 58 (Friday, March 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6987]
[[Page Unknown]]
[Federal Register: March 25, 1994]
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DEPARTMENT OF JUSTICE
Antitrust Division
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 proposed Final Judgments,
Stipulations, and a Competitive Impact Statement have been filed with
the United States District Court for the District of Utah in United
States v. Utah Society For Healthcare Human Resources Administration,
et al., Civil No. 94C282G as to the Utah Society For Healthcare Human
Resource Administration; the Utah Hospital Association; St. Benedict's
Hospital; IHC Hospitals, Inc.; Holy Cross Hospital of Salt Lake City;
Pioneer Valley Hospital, Inc.; Lakeview Hospital, Inc.; Mountain View
Hospital, Inc.; Brigham City Community Hospital, Inc.; and HCA Health
Services of Utah, Inc.
d/b/a St. Mark's Hospital.
The Complaint alleges that the defendants conspired to exchange
wage information about registered nurses with the purpose and effect of
stabilizing and lowering registered-nurse wages in Salt Lake County,
Utah.
The proposed Final Judgments prohibit the defendants from
continuing their conspiracy, and also require defendants to establish
comprehensive antitrust compliance programs.
Public comment on the proposed Final Judgments is invited within
the statutory 60-day comment period. Such comments and responses
thereto will be published in the Federal Register and filed with the
Court. Comments should be directed to Gail Kursh, Chief, Professions
and Intellectual Property Section, room 9903, U.S. Department of
Justice, Antitrust Division, 555 4th Street NW., Washington, DC 20001
(telephone: 202/307-5799).
Joseph H. Widmar,
Deputy Assistant Attorney General, Antitrust Division.
In the United States District Court, District of Utah, Central
Division
United States of America, Plaintiff, v. Utah Society for Healthcare
Human Resources Administration; Utah Hospital Association; St.
Benedict's Hospital; IHC Hospitals, Inc.; Holy Cross Hospital of Salt
Lake City; Pioneer Valley Hospital, Inc.; Lakeview Hospital, Inc.;
Mountain View Hospital, Inc.; Brigham City Community Hospital, Inc.;
and HCA Health Services of Utah, Inc. d/b/a St. Mark's Hospital,
Defendants.; Stipulation
Civil Action No.
Filed:
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The parties to this Stipulation consent that a Final Judgment in
the form attached may be filed and entered by the Court, upon any
party's or the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. 16), without further notice to any party or other proceedings,
provided that plaintiff has not withdrawn its consent, which it may do
at any time before entry of the proposed Final Judgment by serving
notice on the defendants and by filing that notice with the Court.
2. If plaintiff withdraws its consent or the proposed Final
Judgment is not entered pursuant to this Stipulation, this Stipulation
shall be of no effect whatever and its making shall be without
prejudice to any party in this or any other proceeding.
Dated: March 14, 1994.
For the Plaintiff:
Anne K. Bingaman,
Assistant Attorney General.
Joseph H. Widmar,
Gail Kursh,
Attorneys, U.S. Department of Justice.
Edward D. Eliasberg, Jr.,
Karen L. Gable,
Jesse M. Caplan,
Kenneth M. Dintzer,
Attorneys, U.S. Department of Justice, 555 4th Street, NW., Washington,
DC 20001, 202/307-0808.
Gail Kursh,
Attorneys, U.S. Department of Justice.
For the Defendants.
Brent D. Ward, Esq.,
Attorney for Utah Hospital Association.
Jesse M. Caplan,
Kenneth M. Dintzer,
Attorneys, U.S. Department of Justice, 555 4th Street NW., Washington,
DC 20001, (202) 307-0808.
Final Judgment
Plaintiff, United States of America, having filed its Complaint on
March 14, 1994, and plaintiff and defendant, by their respective
attorneys, having consented to the entry of this Final Judgment without
trial or adjudication of any issue of fact or law, and without this
Final Judgment constituting any evidence against or an admission by
defendant to any such issue;
Now, therefore, before the taking of any testimony and without
trial or adjudication of any issue of fact or law, and upon consent of
the parties, it is hereby
Ordered, adjudged and decreed, as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting to this Final Judgment. The
Complaint states a claim upon which relief may be granted against the
defendant under Section 1 of the Sherman Act, 15 U.S.C. 1.
II
Applicability
This Final Judgment applies to the defendant and to each of its
officers, directors, agents, employees, successors, and assigns, and to
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.
III
Definitions
As used in this Final Judgment: (A) ``Actual pay rate'' means the
actual pay rate for any employee or class of employees in a specific
job being evaluated.
(B) ``Average pay rate'' means the rate determined by calculating
the average pay of all the employees in a specific job being evaluated.
(C) ``Compensation'' means any component of payment for employee
services, including, but not limited to, wages, salaries, benefits,
shift differentials, hourly and per diem rates, hiring formulas,
payroll budget information, and the frequency or timing of changes in
any of these components of payment.
(D) ``Current compensation'' means compensation that is actually
being utilized in paying any employee.
(E) ``Defendant'' means Utah Hospital Association.
(F) ``Employee'' means any full-time, part-time, hourly or per diem
employee or independent contractor.
(G) ``Health care facility'' means any entity employing nurses to
provide health care services, including but not limited to, any
hospital, hospital corporation, HMO facility, ambulatory care center,
clinic, first-aid clinic, urgent care center, free standing emergency
care center, ambulatory surgery center, nursing home, home health care,
and nursing service.
(H) ``Historic compensation'' means compensation that was at one
time, but that is no longer, utilized in paying any employee.
(I) ``Nurse'' means any registered or practical nurse, nurse
practitioner, or nurse specialist.
(J) ``Prospective compensation'' means compensation that is planned
or proposed to be utilized in paying any employee.
(K) ``Utah'' means within the State of Utah.
IV
Prohibited Conduct
(A) Defendant is prohibited from: (1) Conducting or facilitating
any exchange or discussion by or between any health care facility
employees of information concerning;
(a) the current or prospective compensation paid to nurses, or
(b) the historic compensation paid to nurses unless a written log
or audio or audio/visual recording of such exchange or discussion is
made; and
(2) communicating to, requesting from, or exchanging with any
health care facility in Utah information concerning the compensation
paid to nurses, except nothing in this subsection shall prohibit the
exchange or discussion of historic compensation as provided in
IV(A)(1).
(B) Nothing in this Final Judgment shall prohibit defendant from
sponsoring, sanctioning, conducting, or publishing a survey of
information concerning the compensation paid to nurses under the
following conditions:
(1) any requests for information and any dissemination of
information in connection with the survey is in writing;
(2) the survey is designed, developed, conducted, or published
without involvement by any representative, agent, or employee of any
health care facility in Utah, except that a representative, agent, or
employee of any health care facility may provide written data in
response to a written request for information in connection with the
survey;
(3) the survey includes only historic or current compensation
information, and does not request or disseminate prospective
compensation information;
(4) the survey does not request actual pay rates when the only
health care facilities that participated in the survey operate in Utah;
the survey may request average pay rates;
(5) the survey only disseminates aggregate data, and either: (a)
Each disseminated statistic is based on input from at least ten (10)
separately owned and operated health care facilities; or
(b) no information about a compensation practice, including a wage
increase, is provided within three months of the adoption of that
practice; each disseminated statistic is based on input from at least
five (5) separately owned and operated health care facilities; and any
information disseminated in such a survey is sufficiently aggregated
that recipients cannot identify the compensation paid by any survey
participant;
(6) for each aggregated statistic, no individual separately owned
and operated health care facility's data represents more than twenty-
five (25) percent on a weighted basis of that statistic; and
(7) representatives, agents, or employees of any health care
facility in Utah do not have access to any unaggregated data produced
in response to any request for information in connection with the
survey.
V
Compliance Program
Defendant is ordered to maintain an antitrust compliance program
which shall include designating, within 30 days of entry of this Final
Judgment, an Antitrust Compliance Officer with responsibility for
accomplishing the antitrust compliance program and with the purpose of
achieving compliance with this Final Judgment. The Antitrust Compliance
Officer shall, on a continuing basis, supervise the review of the
current and proposed activities of the defendant institution to ensure
that it complies with this Final Judgment. The Antitrust Compliance
Officer shall: (A) Distribute, within 60 days from the entry of this
Final Judgment, a copy of this Final Judgment to all officers,
directors, agents, and non-clerical employees of the defendant.
(B) Distribute in a timely manner a copy of this Final Judgment to
any person who succeeds to a position described in Section V(A).
(C) Brief annually those persons designated in Section V(A) and
defendant's general membership on the meaning and requirements of this
Final Judgment and the antitrust laws and advise them that the
defendant's legal advisors are available to confer with them concerning
compliance with this Final Judgment and the antitrust laws.
(D) Obtain from each person then holding one of the positions
designated in Section V(A) an annual written certification that he or
she: (1) Has read, understands, and agrees to abide by the terms of
this Final Judgment;
(2) has been advised and understands that his or her failure to
comply with this Final Judgment may result in conviction for criminal
contempt of court; and
(3) is not aware of any violation of this decree that he or she has
not reported to the Antitrust Compliance Officer.
(E) Distribute, within 60 days from the entry of this Final
Judgment, a copy of this Final Judgment to each health care facility
that is a member of defendant.
(F) Distribute a copy of this Final Judgment to each health care
facility joining defendant as a member within 60 days of that health
care facility joining defendant.
(G) Maintain a record of recipients to whom this Final Judgment has
been distributed and from whom the certifications were obtained, as
required by Section V.
VI
Certification
(A) Within 75 days after the entry of this Final Judgment,
defendant shall certify to the plaintiff whether it has distributed
this Final Judgment and the notification in accordance with section V
above.
(B) For each year of the term of this Final Judgment, defendant
shall file with the plaintiff, on or before the anniversary date of
entry of this Final Judgment, a statement as to the fact and manner of
its compliance with the provisions of section V above.
(C) If defendant's Antitrust Compliance Officer learns of any
violation of section IV of this Final Judgment, the defendant shall
immediately notify the plaintiff and forthwith take appropriate action
to determinate or modify the activity so as to comply with this Final
Judgment.
VII
Inspection
(A) For the purpose of determining or securing compliance with this
Final Judgment, and subject to any legally recognized privilege, duly
authorized representatives of the Department of Justice shall, upon
written request of the Assistant Attorney General in charge of the
Antitrust Division, and on reasonable notice to defendant be permitted:
(1) Access during that defendant's office hours to inspect and copy all
records and documents in its possession or control relating to any
matters contained in this Final Judgment;
(2) to interview that defendant's officers, directors, employees
and agents concerning such matters. The interviews shall be subject to
the defendant's reasonable convenience and without restraint or
interference from the defendant. Counsel for the defendant or counsel
for the individual interviewed may be present at the interview.
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division, defendant shall submit such written
reports, 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 VII shall be divulged by the plaintiff to any person other
than a duly 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, or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
VIII
Term
This Final Judgment shall expire five (5) years from the date of
entry.
IX
Power to Modify
Jurisdiction is retained by this Court to enable any of the parties
to apply to this Court at any time for such further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify or terminate any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X
Public Interest
Entry of this Final Judgment is in the public interest.
Dated:
----------------------------------------------------------------------
United States District Judge
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The parties to this Stipulation consent that Final Judgment in
the form attached may be filed and entered by the Court, upon any
party's or the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. 16), without further notice to any party or other proceedings,
provided that plaintiff has not withdrawn its consent, which it may do
at any time before entry of the proposed Final Judgment by serving
notice on the defendants and by filing that notice with the Court.
2. If plaintiff withdraws its consent or the proposed Final
Judgment is not entered pursuant to this Stipulation, this Stipulation
shall be of no effect whatever and its making shall be without
prejudice to any party in this or any other proceeding.
Dated: March 14, 1994.
For the Plaintiff.
Anne K. Bingaman,
Assistant Attorney General.
Joseph H. Widmar,
Gail Kursh,
Attorneys, U.S. Department of Justice.
Edward D. Eliasberg, Jr.,
Karen L. Gable,
Jesse M. Caplan,
Kenneth M. Dintzer,
Attorneys, U.S. Department of Justice, 555 4th Street NW., Washington,
DC 20001, 202/307-0808.
For the Defendants:
----------------------------------------------------------------------
Counsel for Pioneer Valley Hospital, Inc.; Mountain View Hospital,
Inc.; Lakeview Hospital, Inc.; and Brigham City Community Hospital,
Inc.
----------------------------------------------------------------------
Counsel for HCA Health Services of Utah d/b/a St. Marks's Hospital.
David L. Jones,
President, for Holy Cross Hospital of Salt Lake City; and St.
Benedict's Hospital.
For the Defendants.
Robert D. Paul,
Shaw, Pittman, Potts & Trowbridge.
Richard W. Casey,
Giauque, Crockett, Bendinger & Peterson Counsel for IHC Hospitals, Inc.
For the Defendants.
Robert C. Jones,
Counsel for Pioneer Valley Hospital, Inc.; Lakeview Hospital, Inc.;
Mountain View Hospital, Inc.; and Brigham City Community Hospital, Inc.
For the Defendants.
Greg Tucker,
Counsel for HCA Health Services of Utah, Inc. d/b/a St. Mark's
Hospital.
Final Judgment
Plaintiff, United States of America, having filed its Complaint on
March 14, 1994, and plaintiff and defendants, by their respective
attorneys, having consented to the entry of this Final Judgment without
trial or adjudication of any issue of fact or law, and without this
Final Judgment constituting any evidence against or an admission by
defendants to any such issue;
Now, therefore, before the taking of any testimony and without
trial or adjudication of any issue of fact or law, and upon consent of
the parties, it is hereby
Ordered, adjudged and decreed, as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting to this Final Judgment. 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. 1.
Jurisdiction is retained by this Court to enable any of the parties to
this Final Judgment to apply to this Court at any time for such further
orders and directions as may be necessary or appropriate to carry out
or construe this Final Judgment, to modify or terminate any of its
provisions, to enforce compliance, and to punish violations of its
provisions.
II
Applicability
This Final Judgment applies to each defendant and to each of its
trustees, officers, directors, agents, employees, successors, and
assigns, and to 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 except that: (A) The provisions of
Section IV (A)(1)-(3) do not apply to the communications of a nurse
employee of any hospital defendant that are exclusively for the purpose
of, and are ancillary to, and reasonably necessary for, the seeking or
holding of individual employment as a nurse, and
(B) For HCA Health Services of Utah, Inc. d/b/a St. Mark's
Hospital, the provisions of Sections V, VI, and VII apply only to
defendant HCA Health Services of Utah, Inc. d/b/a St. Mark's Hospital
and to any party who may succeed to the ownership of St. Mark's
Hospital.
III
Definitions
As used in this Final Judgment: (A) ``Actual pay rate'' means the
actual pay rate for any employee or class of employees in a specific
job being evaluated.
(B) ``Average pay rate'' means the rate determined by calculating
the average pay of all the employees in a specific job being evaluated.
(C) ``Compensation'' means any component of payment for employee
services, including, but not limited to, wages, salaries, benefits,
shift differentials, hourly and per diem rates, hiring formulas,
payroll budget information, and the frequency or timing of any of these
components of payment.
(D) ``Current compensation'' means compensation that is actually
being utilized in paying any employee.
(E) ``Defendants'' means St. Benedict's Hospital; IHC Hospitals,
Inc., and IHC Hospitals, Inc. d/b/a LDS Hospital, Primary Children's
Medical Center, Cottonwood Hospital Medical Center, Alta View Hospital,
and Wasatch Canyons Hospital (``IHC''); Holy Cross Hospital of Salt
Lake City; Pioneer Valley Hospital, Inc. d/b/a Pioneer Valley Hospital;
Lakeview Hospital, Inc. d/b/a Lakeview Hospital; Mountain View
Hospital, Inc. d/b/a Mountain View Hospital; Brigham City Community
Hospital, Inc.
d/b/a Brigham City Community Hospital; and HCA Health Services of Utah,
Inc. d/b/a St. Marks Hospital.
(F) ``Employee'' means any full-time, part-time, hourly or per diem
employee.
(G) ``Health care facility'' means any entity employing nurses to
provide health care services, except that, for each defendant, the term
does not include its own parent corporation and any entity owned or
controlled, by means of corporate membership or otherwise, either
directly or indirectly by the defendant or its parent.
(H) ``Historic compensation'' means compensation that was at one
time, but that is no longer, utilized in paying any employee.
(I) ``Hospital defendant'' means any defendant employing nurses to
provide health care services.
(J) ``Joint venture'' means a joint arrangement in which two or
more health care facilities pool their resources to finance a venture
and substantially share in the risk of adverse financial results.
(K) ``Nurse'' means any registered or practical nurse, nurse
practitioner, or nurse specialist, whether an employee or independent
contractor.
(L) ``Prospective compensation'' means compensation that a
defendant or health care facility plans or proposes to pay any
employee.
(M) ``Utah'' means within the State of Utah.
IV
Prohibited Conduct
(A) Except as provided for by Section IV(B) and (C), each hospital
defendant is prohibited from: (1) agreeing with any other health care
facility in Utah to fix, limit, or maintain the compensation paid to
nurses;
(2) agreeing with any other health care facility in Utah to
communicate or exchange information concerning the current or
prospective compensation paid to nurses; or
(3) communicating to, requesting from, or exchanging with any other
health care facility in Utah or third party, other than one owned
directly or indirectly by the hospital defendant or its parent,
information concerning the current or prospective compensation paid to
nurses.
(B) Nothing in this Final Judgment shall prohibit any hospital
defendant from: (1) Communicating its own historic or current
compensation information exclusively for the purpose of recruiting
nurses for employment;
(2) communicating its own prospective compensation information to
an individual nurse in connection with an offer or discussion of
employment;
(3) providing or receiving historic or current compensation
information to or from a third party, other than a health care facility
in Utah, in response to a compensation survey conducted in accordance
with the conditions detailed in either (a) or (b) below: (a) Any
requests for information and any dissemination of information in
connection with the survey are in writing, and: (i) The survey is
conducted and published without involvement by any representative,
agent, independent contractor, or employee of any hospital defendant or
any health care facility in Utah, except that a representative, agent,
or employee of any hospital defendant or any health care facility may
communicate individually and separately with the third party
responsible for conducting and publishing the survey concerning the
design and development of the survey, and may provide written data in
response to a written request for information in connection with the
survey;
(ii) the survey includes only historic or current compensation
information, and does not request or disseminate prospective
compensation information;
(iii) the survey does not request or disseminate actual pay rates
when the only health care facilities that participated in the survey
operate in Utah. The survey, however, may request and disseminate
average pay rates;
(iv) the survey disseminates only aggregate data, and either:
(iv.a) Each disseminated statistic is based on data from at least ten
(10) separately owned and operated health care facilities; or
(iv.b) no information about a compensation practice, including a
wage increase, is provided by a survey participant within three months
of the adoption of that practice; each disseminated statistic is based
on data from at least five (5) separately owned and operated health
care facilities; and any information disseminated in such a survey is
sufficiently aggregated that recipients cannot identify the
compensation paid by any survey participant;
(v) no individual separately owned and operated health care
facility's data represent more than twenty-five (25) percent on a
weighted basis of each aggregated statistic; and
(vi) representatives, agents, independent contractors, or employees
of any hospital defendant or any health care facility in Utah do not
have access to any unaggregated data produced in response to any
request for information in connection with the survey; or
(b) any compensation information is provided in writing, and the
defendant hospital has received written assurance that the survey will
be conducted in accordance with the conditions detailed below: (i) The
survey disseminates aggregate data only, from a sufficiently large
number of participants that data cannot be identified with any
particular health care facility or health care facility chain;
(ii) representatives, agents, or employees of any health care
facility in Utah (excluding the third party conducting the survey) do
not have access to any unaggregated data produced in response to any
request for information in connection with the survey; and
(iii) if a majority of the health care facilities that participated
in the survey operate or are headquartered in Utah, the survey may not
identify the facilities that participated in the survey, may not
disseminate entry level rates for a particular position, and may only
disseminate the average pay rate for that position;
(4) communicating any compensation information to a person, except
as described and limited in Section IV(B)(1)-(3), provided that: (a) No
information is directly or indirectly conveyed to the Utah Hospital
Association, the Utah Society for Healthcare Human Resources
Administration, or to any health care facility in Utah;
(b) the defendant advises the person of the existence of this Final
Judgment;
(c) the hospital defendant requires, if within its power, or
requests if not, that any current or prospective compensation
information provided not be communicated to another health care
facility in Utah; and
(d) except when subject to subpoena or other legal compulsion, the
information is not provided for the purpose of analyzing or setting any
compensation practice for any party except the hospital defendant
providing the information; or
(5) participating in a joint venture to provide health care
services and engaging in conduct, including setting the salaries of
nurses of the joint venture, that is ancillary to, and reasonably
necessary to achieve the benefits of, the joint venture, provided that
the joint venture is not formed for the primary purpose of purchasing
nursing services.
(C) Nothing in this Final Judgment shall prohibit incidental and
nonsystematic communication between nurses in the employ of hospital
defendants, provided these communications are not performed at the
request, direction, suggestion, or order of a head nurse or any person
listed in V(A), and the nurse has no role in setting nurse
compensation.
V
Compliance Program
Each defendant is ordered to maintain an antitrust compliance
program which shall include designating, within 30 days of entry of
this Final Judgment, an Antitrust Compliance Officer with
responsibility for accomplishing the antitrust compliance program and
with the purposes of achieving compliance with this Final Judgment.
Each Antitrust Compliance Officer shall, on a continuing basis,
supervise the review of the current and proposed activities of his or
her defendant institution to ensure that it complies with the Final
Judgment. Each defendant's Antitrust Compliance Officer shall:
(A) Distribute, within 60 days from the entry of this Final
Judgment, a copy of this Final Judgment to all trustees, officers,
directors, administrators, assistant administrators, chief financial
officers, non-clerical human resources and compensation staff,
directors of nursing, and nurse recruiters of his or her defendant
institution, except, for IHC this subsection applies to all trustees,
officers, and non-clerical human resources and compensation staff at
the Central Office of IHC Hospitals, Inc. and the administrators,
assistant administrators, chief financial officers, non-clerical human
resources and compensation staff, directors of nursing, and nurse
recruiters of the defendant IHC hospitals in Salt Lake County.
(B) Distribute in a timely manner a copy of this Final Judgment to
any person who succeeds to a position described in Section V(A).
(C) Brief annually those persons then holding the positions
designated in Section V(A) on the meaning and requirements of this
Final Judgment and the antitrust laws and advise them that the
defendant's legal advisors are available to confer with them concerning
compliance with the Final Judgment and the antitrust laws.
(D) Obtain from each person then holding one of the positions
designated in Section V(A) an annual written certification that he or
she: (1) Has read, understands, and agrees to abide by the terms of
this Final Judgment;
(2) has been advised and understands that his or her failure to
comply with this Final Judgment may result in conviction for criminal
contempt of court; and
(3) is not aware of any violation of this decree that he or she has
not reported to the Antitrust Compliance Officer.
(E) Maintain a record of recipients to whom the Final Judgment has
been distributed and from whom the certifications obtained, as required
by Section V(D).
VI
Certification
(A) Within 75 days after the entry of this Final Judgment, each
defendant shall certify to the plaintiff whether it has distributed
this Final Judgment and the notification in accordance with Section V
above.
(B) For each year of the term of this Final Judgment, each
defendant shall file with the plaintiff, on or before the anniversary
date of entry of this Final Judgment, a statement as to the fact and
manner of its compliance with the provisions of Section V above.
(C) If at any time a defendant's Antitrust Compliance Officer
learns of any violation of Section IV of this Final Judgment, that
defendant shall immediately notify the plaintiff and forthwith take
appropriate action to terminate or modify the activity so as to comply
with this Final Judgment.
VII
Inspection
(A) To determine or secure compliance with this Final Judgment, and
subject to any legally recognized privilege, duly authorized
representatives of the Department of Justice shall, upon written
request of the Assistant Attorney General in charge of the Antitrust
Division, and on reasonable notice to any defendant, be permitted: (1)
Access during that defendant's administrative office hours to inspect
and copy all records and documents in its possession or control
relating to any matters contained in this Final Judgment; and
(2) to interview that defendant's trustees, officers, employees,
and agents concerning such matters. The interviews shall be subject to
the defendant's and individual's reasonable convenience and without
restraint or interference from the defendant. Counsel for the defendant
or counsel for the individual interviewed may be present at the
interview.
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division, a defendant shall submit such written
reports, under oath if requested, relating to any of the matters
contained in this Final Judgment as may be reasonably requested,
provided that the preparation of such report will not unduly burden the
defendant or disrupt defendant's operations.
(C) No information or documents obtained by the means provided in
this Section VII shall be divulged by the plaintiff to any person other
than a duly 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, or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
VIII
Term
This Final Judgment shall expire five (5) years from the date of
entry.
IX
Opportunity to Modify
(A) If, subsequent to the entry of this Final Judgment, a
stipulated final judgment in this matter incorporating different items
is filed with respect to another hospital defendant, or if this Final
Judgment or a subsequently filed stipulated final judgment with respect
to a hospital defendant in this matter is modified to include different
terms, any hospital defendant, in its sole discretion, may move this
Court to substitute such different terms.
(B) Any hospital defendant may move the Court to apply this Final
Judgment in lieu of any other stipulated final judgment in this matter,
for any other hospital that hospital defendant, or its parent,
acquires. In addition, any hospital defendant shall move this Court to
apply this Final Judgment to any other hospital that it or its parent
acquires against which a complaint in this matter is outstanding, in
full settlement of the pending litigation. Either Motion must be made
within thirty (30) days of the acquisition.
(C) The plaintiff will support any motion made in accordance with
this Section.
X
Public Interest
Entry of this Final Judgment is in the public interest.
Dated:
----------------------------------------------------------------------
United States District Judge.
Stipulation
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The parties to this Stipulation consent that a Final Judgment in
the form attached may be filed and entered by the Court, upon any
party's or the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. 16), without further notice to any party or other proceedings,
provided that plaintiff has not withdrawn its consent, which it may do
at any time before entry of the proposed Final Judgment by serving
notice on the defendants and by filing that notice with the Court.
2. If plaintiff withdraws its consent or the proposed Final
Judgment is not entered pursuant to this Stipulation, this Stipulation
shall be of no effect whatever and its making shall be without
prejudice to any party in this or any other proceeding.
Dated: March 14, 1994.
For the Plaintiff.
Anne K. Bingaman,
Assistant Attorney General.
Joseph H. Widmar,
Gail Kursh,
Attorneys, U.S. Department of Justice.
Edward D. Eliasberg, Jr.
Karen L. Gable,
Jesse M. Caplan,
Kenneth M. Dintzer,
Attorneys, U.S. Department of Justice, 555 4th Street, NW., Washington,
DC 20001, 202/307-0808.
For the Defendants.
Jay Gurmankin,
Counsel for Utah Society For Healthcare Human Resources Administration.
Final Judgment
Plaintiff, United States of America, having filed its Complaint on
March 14, 1994, and plaintiff and defendant, by their respective
attorneys, having consented to the entry of this Final Judgment without
trial or adjudication of any issue of fact or law, and without this
Final Judgment constituting any evidence against or an admission by
defendant to any such issue;
Now, therefore, before the taking of any testimony and without
trial or adjudication of any issue of fact or law, and upon consent of
the parties, it is hereby
Ordered, adjudged and decreed, as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting to this Final Judgment. The
Complaint states a claim upon which relief may be granted against the
defendant under section 1 of the Sherman Act, 15 U.S.C. 1.
II
Applicability
This Final Judgment applies to the defendant and to each of its
officers, directors, agents, employees, successors, and assigns, and to
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.
III
Definitions
As used in this Final Judgment: (A) ``Compensation'' means any
component of payment for employee services, including, but not limited
to, wages, salaries, benefits, shift differentials, hourly and per diem
rates, hiring formulas, payroll budget information, and the frequency
or timing of changes in any of these components of payment.
(B) ``Current compensation'' means compensation that a defendant or
health care facility currently pays to employees.
(C) ``Defendant'' means Utah Society for Healthcare Human Resources
Administration.
(D) ``Employee'' means any full-time, part-time, hourly, or per
diem employee.
(E) ``Health care facility'' means any entity employing nurses to
provide healthcare services.
(F) ``Historic compensation'' means compensation that a defendant
or health care facility no longer pays to employees.
(G) ``Nurse'' means any registered or practical nurse, nurse
practitioner, or nurse specialist, whether an employee or independent
contractor.
(H) ``Person'' means any natural person, corporation, firm,
company, association or other business, legal, or government entity.
(I) ``Prospective compensation'' means compensation that a
defendant or health care facility plans or proposes to pay employees.
IV
Prohibited Conduct
Defendant is prohibited from: (A) Conducting or facilitating any
exchange or discussion by or between any health care facility employees
of information concerning; (1) the current or prospective compensation
paid to nurses, or
(2) the historic compensation paid to nurses unless a written log
or audio or audio/visual recording of such exchange or discussion is
made; and
(b) communicating to, requesting from, or exchanging with any
health care facility in Utah information the compensation paid to
nurses, except nothing in this subsection shall prohibit the exchange
or discussion of historic compensation as provided in IV(A)(2).
V
Compliance Program
Defendant is ordered to maintain an antitrust compliance program
which shall include designating, within 30 days of entry of this Final
Judgment, an Antitrust Compliance Officer with responsibility for
accomplishing the antitrust compliance program and with the purpose of
achieving compliance with this Final Judgment. The Antitrust Compliance
Officer shall, on a continuing basis, supervise the review of the
current and proposed activities of the defendant to ensure that it
complies with the Final Judgment. The Antitrust Compliance Officer
shall: (A) Distribute within 60 days from the entry of this Final
Judgment, a copy of this Final Judgment to each member of defendant;
(B) Distribute a copy of this Final Judgment to each person joining
defendant as a member within 60 days of that person joining defendant;
(C) Hold an annual briefing of defendant's general membership on
the meaning and requirements of this Final Judgment and the antitrust
laws;
(D) Obtain from each of defendant's officers an annual written
certification that he or she: (1) Has read, understands, and agrees to
abide by the terms of this Final Judgment;
(2) has been advised and understands that his or her failure to
comply with this Final Judgment may result in conviction for criminal
contempt of court; and
(3) is not aware of any violation of this decree that he or she has
not reported to the Antitrust Compliance Officer; and
(E) Maintain a record of recipients to whom the Final Judgment has
been distributed and from whom the certifications were obtained as
required by Section V.
VI
Certification
(A) Within 75 days after the entry of this Final Judgment,
defendant shall certify to the plaintiff whether it has distributed
this Final Judgment and the notification in accordance with Section V
above.
(B) For each year of the term of this Final Judgment, defendant
shall file with the plaintiff, on or before the anniversary date of
entry of this Final Judgment, a statement as to the fact and manner of
its compliance with the provisions of Section V above.
(C) If defendant's Antitrust Compliance Officer learns of any
violation of Sections IV of this Final Judgment, defendant shall
immediately notify the plaintiff and forthwith take appropriate action
to terminate or modify the activity so as to comply with this Final
Judgment.
VII
Inspection
(A) For the purpose of determining or securing compliance with this
Final Judgment, and subject to any legally recognized privilege, duly
authorized representatives of the Department of Justice shall, upon
written request of the Assistant Attorney General in charge of the
Antitrust Division, and on reasonable notice to defendant be permitted:
(1) Access during regular business office hours to inspect and copy all
records and documents in its possession or control relating to any
matters contained in this Final Judgment; and
(2) to interview defendant's officers, members, employees, and
agents concerning such matters. The interviews shall be subject to the
defendant's reasonable convenience and without restraint or
interference from the defendant. Counsel for the defendant or counsel
for the individual interviewed may be present at the interview.
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division, defendant shall submit such written
reports, 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 VII shall be divulged by the plaintiff to any person other
than a duly 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, or for the purpose of securing compliance
with this Final Judgment, or as otherwise required by law.
VIII
Term
This Final Judgment shall expire five (5) years from the date of
entry.
IX
Power To Modify
Jurisdiction is retained by this Court to enable any of the parties
to apply to this Court at any time for such further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify or terminate any of its provisions, to
enforce compliance, and to punish violations of its provisions.
X
Public Interest
Entry of this Final Judgment is in the public interest.
Dated:
----------------------------------------------------------------------
United States District Judge
Competitive Impact Statement
Pursuant to section 2(b) of the Antitrust Procedures and Penalties,
Act, 15 U.S.C. 16(b)-(h), the United States submits this Competitive
Impact Statement relating to the three proposed Final Judgments
submitted for entry in this civil antitrust proceeding.
I
Nature and Purpose of the Proceeding
On March 14, 1994, the United States filed a civil antitrust
Complaint alleging that the defendants and co-conspirators unreasonably
conspired to restrain wage competition among themselves in violation of
section 1 of the Sherman Act, 15 U.S.C. 1.
The Complaint alleges that, from at least as early as January, 1984
and continuing through June, 1992, the defendants and co-conspirators
conspired to exchange current and prospective, nonpublic registered-
nurse entry wage information with the purpose and effect of restraining
wage competition for registered nursing services in Salt Lake County,
Utah.
The conspiracy was effectuated through telephone calls and written
surveys between the hospital defendants and co-conspirators, and
through meetings of the Utah Society for Healthcare Human Resources
Administration (``USHHRA'') and the Utah Hospital Association
(``UHA''), both of which consist of human resource directors from the
hospital defendants. The hospital defendants agreed to exchange
prospective and current compensation information. The conspiracy had
the effect of depriving registered nurses in Salt Lake County and
elsewhere in Utah of the benefits of free and open competition in the
purchase of registered nursing services. In addition, the conspiracy
resulted in smaller annual increases in the registered-nurse entry wage
than the hospital defendants would have paid absent the conspiracy.
The Complaint seeks to prevent the defendants from continuing or
renewing the alleged conspiracy, or from engaging in any other
conspiracy, or adopting any practice having a similar purpose of effect
for a period of 5 years.
The defendants will be required to file annual reports with the
Court and the Government certifying that they have complied with the
terms of section V of their respective Final Judgments.
Entry of the proposed Final Judgments will terminate the action
against all the defendants, except that the Court will retain
jurisdiction over the matter for further proceedings that may be
required to interpret, enforce, or modify the Judgment, or to punish
violations of any of its provisions.
II
Description of the Practices Involved in the Alleged Violations
At trial, the Government would have made the following contentions:
1. The hospital defendants, St. Benedict's Hospital, IHC Hospitals,
Inc. (``IHC''), Holy Cross Hospital of Salt Lake City, Pioneer Valley
Hospital, Inc., Lakeview Hospital, Inc., Mountain View Hospital, Inc.,
Brigham City Community Hospital, Inc., and HCA Health Services of Utah,
Inc. d/b/a St. Mark's Hospital, provide and sell general acute-care
hospital services and recruit and hire nurses. The hospital defendants
located in Salt Lake County compete with each other in recruiting and
hiring nurses and purchase approximately 75% of the registered nursing
services in that County.
2. On a regular basis, the hospital defendants telephoned one
another and exchanged nonpublic prospective and current wage and budget
information for nurses. On a number of occasions, hospital defendants
told each other, including IHC, of their intent to match whatever
registered-nurse entry wage IHC eventually adopted.
3. On at least eight occasions between 1984 and 1992, some or all
of the hospital defendants attended meetings organized by USHHRA for
the express purpose of exchanging nonpublic prospective and current
wage and budget information about registered nursing wages.
4. Annually, IHC collected current and nonpublic prospective wage
and budget information from the other hospital defendants for use in a
published wage survey that was distributed to the other hospitals. IHC
used this information to limit its registered-nurse wage increases.
5. Annually, the UHA collected current and, in some years,
prospective information pursuant to a survey designed by the hospital
defendants. This information was published and distributed to the
hospital defendants, which use this information to limit registered-
nurse wage increases.
6. As a direct result of these wage and budget exchanges, the
hospital defendant's registered-nurse entry wages in Salt Lake County
and elsewhere in Utah were kept artificially low, and registered nurses
were paid these lower wages from 1984 through June, 1992.
III
Explanation of the Proposed Final Judgments
The United States and the defendants have stipulated that the Court
may enter the proposed Final Judgments after compliance with the
Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h). Under the
provisions of section 2(e) of the Antitrust Procedures and Penalties
Act, 15 U.S.C. 16(e), the proposed Final Judgments may not be entered
unless the Court finds that entry is in the public interest. Section X
of each of the three proposed Final Judgments sets forth such a
finding.
The proposed Final Judgments are intended to ensure that the
hospital defendants reach independent decisions about the wages they
pay registered nurses by prohibiting agreements, discussions, or other
communications among competing hospitals of current and prospective
registered nursing wages, and to ensure that USHHRA and the UHA are not
used as forums or means for hospitals to exchange nonpublic prospective
and current wage and budget information about registered nursing wages.
A. Prohibitions and Obligations
The Hospital Defendants' Final Judgment enjoins the hospital
defendants from entering into any agreement with any other health care
facility to fix nursing wages. It also prohibits them from discussing
with any health care facility in Utah or with any third party,
prospective or current budget or nursing wage information, or the
timing of wage increases, except in very limited circumstances when the
communications are solely for the purpose of recruiting or hiring a
nurse.
The Hospital Defendants' Final Judgment further prohibits the
hospital defendants from developing, supervising, or participating in a
salary survey asking for current or prospective wage information
concerning nurses or in which the wage information is presented in a
manner that would allow participants to determine what another health
care facility in Utah is, has been, or will be paying its nurses.
The Hospital Defendants' Final Judgment obligates each hospital
defendant to file with plaintiff, on or before each anniversary date of
the Final Judgment, a statement that the defendant has complied with
the terms of the Final Judgment and has had no communications of the
type prohibited under the Final Judgment.
The Hospital Defendants' Final Judgment also provides that an
authorized representative of the Department of Justice may visit the
defendants' offices, after providing reasonable notice, to review their
records and to conduct interviews regarding any matters contained in
the Final Judgment. The defendants may also be required to submit
written reports, under oath, pertaining to the Final Judgment.
The USHHRA Final Judgment prohibits USHHRA from conducting or
facilitating any exchange or discussion by or between any health care
facility employees of information concerning the current or prospective
compensation paid to nurses. It also prohibits USHHRA from conducting
or facilitating any exchange or discussion of information concerning
compensation previously paid to nurses unless a written log or audio or
audio/visual recording of such exchange or discussion is made.
The UHA Final Judgment prohibits the UHA from sponsoring or
facilitating any exchange or discussion by or between any health care
facilities of information concerning the compensation paid to nurses.
The UHA Final Judgment does not, however, prohibit the UHA from
sponsoring or publishing a survey of information concerning the
compensation paid to nurses if, among other things: (1) Any request for
and dissemination of information is in writing, (2) the survey includes
only historic or current compensation information and does not request
or disseminate prospective compensation information, (3) the survey
only disseminates aggregate data that is presented in a manner that
would not allow participants to determine what another health care
facility in Utah is, has been, or will be paying its nurses, and (4)
health care facilities in Utah do not have access to unaggregated data
produced in response to the survey.
The USHHRA and UHA Final Judgments have reporting and visitation
provisions similar to the Hospital Defendants' Final Judgment.
B. Scope of the Proposed Final Judgments
The Hospital Defendants' Final Judgment applies to the hospital
defendants, as well as to each of their trustees, officers, directors,
agents, employees, successors, and assigns, and to all other persons in
active concert or participation with any of them who shall have
received actual notice of the Final Judgment by personal service or
otherwise. Moreover, pursuant to the terms of the Final Judgment, any
person who becomes a trustee, officer, director, administrator, chief
financial officer, non-clerical human resources and compensation staff
member, director of nursing, or nurse recruiter within 5 years after
the entry of the Final Judgment shall be furnished a copy of the Final
Judgment.
The USHHRA and UHA Final Judgments have applicability and
notification provisions similar to those of the Hospital Defendants'
Final Judgment.
C. Effect of the Proposed Final Judgments on Competition
The relief in the proposed Final Judgments is designed to ensure
that hospitals in Salt Lake County establish their registered-nurse
wages independently and that registered nurses receive competitive
wages. Specifically, the injunction against exchanges of current and
prospective wages and budget information and the reporting requirements
of Section IV and Section VI of the Hospital Defendants' Final Judgment
are designed to eliminate restraints on wage competition among
hospitals in Salt Lake County. The injunction against conducting or
facilitating the exchange of information concerning the compensation
paid to nurses and the reporting requirements of Sections IV and VI of
both the USHHRA and UHA Final Judgments are designed to preclude those
organizations from being forums or means for hospitals to exchange
nonpublic prospective and current wage and budget information about
registered nursing wages.
The Department of Justice believes that these proposed Final
Judgments contain adequate provisions to prevent further violations of
the type described in the Complaint and to remedy the effects of the
alleged conspiracy.
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 suffered, as well as costs and reasonable attorney's fees.
Entry of the proposed Final Judgments will neither impair nor assist
the bringing of such actions. Under the provisions of section 5(a) of
the Clayton Act, 15 U.S.C. 16(a), the Judgments have no prima facie
effect in any subsequent lawsuits that may be brought against the
defendants in this matter.
V
Procedures Available for Modification of the Proposed Judgments
As provided by the Antitrust Procedures and Penalties Act, any
person beliving that the proposed Final Judgments should be modified
may submit written comments to Gail Kursh, Chief, Professions and
Intellectual Property Section, U.S. Department of Justice, Antitrust
Division, 555 4th Street, NW., room 9903, Washington, DC 20001, within
the 60-day period provided by the Act. These comments, and the
Department's responses, will be filed with the Court and published in
the Federal Register. All comments will be given due consideration by
the Department of Justice, which remains free to withdraw its consent
to the proposed judgment at any time prior to entry. Section I of each
of the proposed Final Judgments provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for modification,
interpretation, or enforcement of the Final Judgments.
VI
Alternative to the Proposed Final Judgments
The alternative to the proposed Final Judgments would be a full
trial of the case against the defendants. The Department of Justice
believes that such a trial would involve substantial cost to the United
States and is not warranted since the proposed Final Judgments provide
the relief that the United States seeks in its Complaint.
VII
Determinative Materials and Documents
No materials and documents of the type described in Section 2(b) of
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b), were
considered in formulating the proposed Final Judgments.
Dated:
Respectfully submitted,
Edward D. Eliasberg, Jr.
Karen L. Gable
Jesse M. Caplan
Kenneth M. Dintzer
Attorney, U.S. Department of Justice, 555 4th Street, NW., Washington,
DC 20001, 202/307-0808.
Certificate of Mailing
I hereby certify that a true and correct copy of the foregoing
Competitive Impact Statement was sent by regular mail on this 14th day
of March, 1994, to:
Jay D. Gurmankin, 1010 Boston Building, #9 Exchange Place, Salt Lake
City, Utah 84111.
Richard W. Casey, Giauque, Crockett, & Bendinger, 500 Kearns Building,
Salt Lake City, Utah 84101.
Robert D. Paul, Thomas C. Hill, Shaw, Pittman, Potts & Trowbridge, 2300
N Street, NW., Washington, DC 20037.
Gordon B. Nash, Jr., Gardner, Carton & Douglas, suite 3400--Quaker
Tower, 321 N. Clark Street, Chicago, IL 60610-3381.
Phillip Proger, Robert Jones, Jones, Day, Reavis & Pogue, 1450 G
Street, NW., Washington, DC 20005-2088.
Greg Tucker, 1 Park Plaza, Nashville, TN 37203.
Brent Ward, Parry, Murray, Ward & Cannon, 1270 Eagle Gate Tower, Salt
Lake City, Utah 84111.
Karen L. Gable,
Attorney, Antitrust Division.
[FR Doc. 94-6987 Filed 3-24-94; 8:45 am]
BILLING CODE 4410-01-M
