/f-supp-2d/385/0740-01

United States District Court for the Northern District of Illinois · 2005-08-12

Original case on neochart.com

Case and law context

15 U.S.C. § 1

Role: rule-announced; posture: civil; putative class action by independent pharmacies against pharmacy benefits manager; after denial of 12(b)(6), defendant's Rule 16 issue-narrowing motion to fix rule of reason (not per se) as the standard for Claim I; granted; result: not-decided; claim:

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakerssatisfied
Counted merits instance
applied / merits

basis: pleaded; count: Claim I; subject: count=Claim I

Court rejects the characterisation of 1,200 separate vertical contracts: the relevant agreement is the horizontal one among the spokes (pleading sufficiency was decided earlier by adopting the transferor court's opinion).
hub-and-spoke/buyers-knowingly-sharing-common-purchasing-agent
Claim I asserts a conspiracy between Plan Sponsors, using Caremark as their “common agent,” to fix the prices paid independent pharmacies for dispensing prescription drugs to Plan Subscribers.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [6180:6372] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Under United States v. Masonite Corp., 316 U.S. 265, 276, 62 S.Ct. 1070, 86 L.Ed. 1461 (1942) the Plan Sponsors’ knowledge of and acquiescence in that common strategy could reasonably support a finding of conspiracy under Section 1.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [11894:12126] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

For purposes of Pharmacy’s common agent claim, the relevant agreement is that alleged to exist among the Plan Sponsors. And that agreement, between firms that would normally compete with each other for the purchase of prescription drugs, may fairly be said to constitute a horizontal restraint.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [12421:12715] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Restraint of trade or commerce among the several States or with foreign nationsnot_reached
Excluded from merits counts
rule-announced / merits

Unspecified variantNo source quotation recorded for this block.
/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat)not_reached
Excluded from merits counts
rule-announced / merits

Unspecified variantNo source quotation recorded for this block.
/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Relevant product/geographic market definition and market power under the Rule of Reasonnot_reached
Excluded from merits counts
rule-announced / merits

Market power is necessary under the rule of reason but cannot convert a restraint into a per se violation; whether Caremark has it is not decided.
Unspecified variant
there appears to be no authority (and indeed none is found in the cases North Jackson cites) to support the notion that substantial market power is a sufficient, rather than a necessary, basis for finding that a given restraint is per se unlawful under Section 1
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [29159:29421] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Per se illegality for naked restraints manifestly anticompetitive and lacking redeeming virtuenot_reached
Excluded from merits counts
rule-announced / merits

party: Plan Sponsors, acting through Caremark as their common agent; count: Claim I (common-agent claim); subject: party=Plan Sponsors, acting through Caremark as their common agent; count=Claim I (common-agent claim)

Buyer-side price setting by competing payors through a shared intermediary is a real horizontal restraint, but it is bundled with claims processing, formularies, rebates and network building, and its immediate effect is lower consumer prices; the per se label in the complaint does not bind the court. Mode of analysis only: per se treatment is refused and the rule of reason selected for Claim I; whether the restraint is unreasonable is expressly left open, so this is not a not-satisfied finding. Polarity here is relative to "per se treatment applies". The court's general naked-vs-ancillary rule sentence (@16295) is filed under the Claim II block.
ancillary-restraint/cooperative-buying-through-common-agent
Over 1,200 of such Plan Sponsors have hired Care-mark to help control the cost of prescription drugs for their employees or members (“Plan Subscribers”) (SAC ¶¶15, 29).
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [3665:3833] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In return for inclusion in Caremark’s network and access to the large volume of business that such inclusion brings, North Jackson must agree to dispense drugs to Plan Subscribers at a discount from prices charged to its cash-paying customers (SAC ¶ 30).
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [4612:4866] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

By negotiating prescription drug reimbursement rates on behalf of the 1,200 Plan Sponsors it represents, Caremark acts on behalf of what is essentially a cooperative purchasing group.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [13830:14013] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Caremark specializes in various functions of benefit plan administration and is likely able to achieve economies of scale in the performance of those functions that would otherwise be unavailable to Plan Sponsors.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [22123:22336] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

And the creation of retail pharmacy networks, which necessarily involves the setting of reimbursement rates, undoubtedly contributes to the success of that larger endeavor.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [22337:22509] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

But where in contrast buyers join together in a productive venture, cooperative buying is rarely viewed as a per se unlawful restraint under Section 1 so long as it contributes to the productive enterprise.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [18624:18830] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

And because the alleged anticompetitive agreement between Plan Sponsors is ancillary to that arrangement, it will be assessed under the more probing analysis offered by the rule of reason.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [24868:25056] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Per se illegality for naked restraints manifestly anticompetitive and lacking redeeming virtuenot_reached
Excluded from merits counts
rule-announced / merits

party: Caremark and rival PBMs; count: Claim II; subject: party=Caremark and rival PBMs; count=Claim II

Only the mode of analysis is conceded, and only conditionally ("if proved"); existence of the PBM-PBM agreement is untested, so nothing is satisfied. The rule line is the court's general statement that naked restraints get per se treatment; its second sentence is the ancillary-restraint rule the court applies to Claim I.
horizontal-price-fixing/competing-intermediaries-fixing-reimbursement-rates
Claim II charges a conspiracy between Caremark and PBMs with which it competes to fix those same prices.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [6373:6477] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Naked restraints are unlikely to have any redeeming value and so are usually accorded per se treatment. But ancillary restraints that “may contribute to the success of a cooperative venture that promises greater productivity and output” (id. at 189) demand the more thorough analysis provided by the rule of reason.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [16295:16610] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Caremark implicitly concedes that the conspiracy alleged in Claim II — ’that between Caremark and other PBMs to fix drug prices — would if proved constitute a naked horizontal price-fixing agreement subject to per se treatment.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [8548:8775] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Presumptive Rule of Reason burden-shifting analysis (antitrust market + anticompetitive effect vs procompetitive justification)not_reached
Excluded from merits counts
rule-announced / merits

count: Claim I; subject: count=Claim I

Selected as the governing standard for Claim I (the selection itself is recorded in the restraint.per-se Claim I block); the court expressly withholds any view on ultimate lawfulness.
Unspecified variantNo source quotation recorded for this block.
/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick)not_reached
Excluded from merits counts
rule-announced / merits

Unspecified variantNo source quotation recorded for this block.

Court interpretations recorded from this case

interpretation

there appears to be no authority (and indeed none is found in the cases North Jackson cites) to support the notion that substantial market power is a sufficient, rather than a necessary, basis for finding that a given restraint is per se unlawful under Section 1

/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005

there appears to be no authority (and indeed none is found in the cases North Jackson cites) to support the notion that substantial market power is a sufficient, rather than a necessary, basis for finding that a given restraint is per se unlawful under Section 1
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [29159:29421] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Under the Rule of Reason (absent direct proof of actual detrimental effects on price or output under FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986)), plaintiff must define a relevant product and geographic market and prove defendants possess market power within it.

interpretation

Naked restraints are unlikely to have any redeeming value and so are usually accorded per se treatment. But ancillary restraints that “may contribute to the success of a cooperative venture that promises greater productivity and output” (id. at 189) demand the more thorough analysis provided by the rule of reason.

/f-supp-2d/385/0740-01 — United States District Court for the Northern District of Illinois · 2005

Naked restraints are unlikely to have any redeeming value and so are usually accorded per se treatment. But ancillary restraints that “may contribute to the success of a cooperative venture that promises greater productivity and output” (id. at 189) demand the more thorough analysis provided by the rule of reason.
Source: docroot/ir/caselaw/f_supp_2d_385.jsonl#/f-supp-2d/385/0740-01; Unicode character offsets [16295:16610] (end exclusive); SHA-256 061c34d0b500376f04d011b5ab2e2f1ac60dba2bb321f15089be5be4b7c5e5d9.

Distinguishes naked restraints (per se) from restraints reasonably ancillary to an efficiency-enhancing integration or cooperative venture (evaluated under the Rule of Reason), though Dagher holds core activity of a lawful integrated joint venture (setting the price of its own product) does not even implicate the ancillary-restraints inquiry.