Sachet bundles.  Will you help Blawgletter write
an amicus brief?

Today, the Ninth Circuit issued an order inviting amicus briefs on important antitrust issues:

Whether a plaintiff who seeks to establish the predatory or anticompetitive conduct element of an attempted monopolization claim under section 2 of the Sherman Act by showing that the defendant offered bundled discounts to the defendant’s customers must prove that the defendant’s prices were below an appropriate measure of the defendant’s costs.  If so, what is the appropriate measure of costs and how should the trial court instruct the jury on the matter of costs?  If not, what standard should the trial court instruct the jury to use to determine whether the bundled discounts are predatory or anticompetitive?

Cascade Health Solutions v. PeaceHealth, Nos. 05-35627, 05-35640, 05-36153 & 05-36202 (9th Cir. Mar. 20, 2007).  The court directed the filing of amicus briefs within 30 days — which Blawgletter puts at no later than April 19, 2007 — and grants leave to file to all comers.

In the underlying case, McKenzie-Williamette Hospital obtained jury findings that PeaceHealth attempted to monopolize the provision of hospital care, unlawfully discriminated in the pricing of services, and wrongfully interfered with the hospital’s prospective business relations.  The jury awarded the hospital $5.4 million, which the district court trebled to $16.2 million.

Blawgletter views the court’s call for amicus briefs as a laudable effort to clarify a vexing set of questions in the area of bundling services — a practice common in health care and lots of other businesses.  Anyone care to join us in writing a brief to assist the court?

Barry Barnett

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