DELAWARE VALLEY SURGICAL SUPPLY INC. v. JOHNSON & JOHNSON
The Ninth Circuit Court of Appeals today released an opinion in DELAWARE VALLEY SURGICAL SUPPLY INC. v. JOHNSON & JOHNSON, No. 08-55105, a federal appeal. The panel consisted of Alfred T. Goodwin, Harry Pregerson, and Dorothy W. Nelson, Circuit Judges.
D.W. NELSON, Senior Circuit Judge:
This appeal stems from a disagreement between two different groups of plaintiffs about who has standing as a “direct purchaser” to bring a claim under federal antitrust laws. One group consists of Delaware Valley Surgical Supply Company, Inc., (”DVSS”) and Niagara Falls Memorial Medical Center (”Niagara”). They are both entities that bought medical supplies directly from Johnson & Johnson and its subsidiaries (”J&J”). The other plaintiff is Bamberg County Memorial Hospital & Nursing Center (”Bamberg”), a hospital that had a contract with J&J setting a list price for the purchase of medical supplies, but that ultimately purchased its J&J products through a separate contract with a third-party distributor. DVSS, Niagara, and Bamberg all brought independent antitrust claims against J&J. The district court consolidated the three cases. Before reaching the merits of the underlying antitrust claims, the district court ruled that Bamberg lacked standing to assert its claim against J&J. The district court reasoned that because Bamberg bought its supply through a distributor and not from J&J, it was not a “direct purchaser.” Bamberg and J&J both contest that decision through this interlocutory appeal. We affirm the order of the district court, and hold that Bamberg lacks standing to pursue an antitrust claim under a direct purchaser theory. FACTUAL AND PROCEDURAL BACKGROUND Three plaintiffs brought antitrust actions against J&J arising from the manufacturer’s contracts with hospitals and their group purchasing organizations (”GPOs”). This litigation involves two categories of products: sutures used to close wounds and endomechanical products (”endos”) used primarily for minimally invasive laparoscopic surgery. The plaintiffs . . .