Supreme Court of California Justia
Citation 49 Cal. 4th 758, 233 P.3d 1066, 111 Cal. Rptr. 3d 666

Clayworth v. Pfizer

Filed 7/12/10



IN THE SUPREME COURT OF CALIFORNIA



JAMES CLAYWORTH et al.,

Plaintiffs and Appellants,

S166435

v.

Ct.App. 1/2 A116798

PFIZER, INC., et al.,

Alameda County

Defendants and Respondents. )

Super. Ct. No. RG04172428



When a group of companies conspires to fix prices at higher than a

competitive level, the resulting overcharge is paid in the first instance by the direct

purchaser of the cartel‟s goods. In markets where the direct purchaser is not also

the ultimate purchaser, but an intermediary between the cartel and the consumer

(the indirect purchaser), several questions arise: First, who should be permitted to

sue for price fixing, the direct purchaser, the indirect purchaser, or both? Second,

how should damages be allocated? Should an antitrust conspirator be permitted to

raise as a defense that the direct purchaser passed on some or all of the overcharge

to indirect purchasers downstream in the chain of distribution?

Under federal antitrust law, the answer to these questions is settled. In

Hanover Shoe v. United Shoe Mach. (1968) 392 U.S. 481 (Hanover Shoe), the

United States Supreme Court held antitrust violators ordinarily could not assert as

a defense that any illegal overcharges had been passed on by a plaintiff direct

purchaser to indirect purchasers. Instead, the full measure of the overcharge is

1


recoverable by the direct purchaser. In a related decision nine years later, the

Supreme Court concluded only direct purchasers, not indirect purchasers, could

sue for price fixing. (Illinois Brick Co. v. Illinois (1977) 431 U.S. 720 (Illinois

Brick).)

Under state antitrust law, only the first question—who may sue—is settled.

In 1978, in direct response to Illinois Brick, the Legislature amended the state‟s

Cartwright Act (Bus. & Prof. Code, § 16700 et seq.)1 to provide that unlike federal

law, state law permits indirect purchasers as well as direct purchasers to sue

(§ 16750, subd. (a)). This left open the further question how damages should be

allocated. Does the Cartwright Act permit a pass-on defense, or in this respect are

state and federal law the same?

We conclude that under the Cartwright Act, as under federal law, generally

no pass-on defense is permitted. While the text of the Cartwright Act does not

answer the question, the Legislature‟s actions in response to Illinois Brick and

related federal statutory amendments reveal a clear legislative preference for the

Hanover Shoe rule. As well, that rule is the one most closely in accord with the

Legislature‟s overarching goals of maximizing effective deterrence of antitrust

violations, enforcing the state‟s antitrust laws against those violations that do

occur, and ensuring disgorgement of any ill-gotten proceeds. Accordingly, we

reverse the Court of Appeal, which held that a pass-on defense was available and

that it entitled the alleged price-fixing defendants here to summary judgment.


1

All further unlabeled statutory references are to the Business and

Professions Code.

2

FACTUAL AND PROCEDURAL BACKGROUND

On appeal from a grant of summary judgment, we review and recite the

evidence in the light most favorable to the nonmoving party (here, plaintiffs).

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Plaintiffs (hereafter Pharmacies) are retail pharmacies located in

California.2 Defendants (hereafter Manufacturers) are, with two exceptions,

companies that manufacture, market, and/or distribute brand-name pharmaceutical

products throughout the United States.3 Manufacturers also manufacture, market,

and/or distribute similar brand-name pharmaceutical products in Canada where,

unlike in the United States, the products are subject to government pricing

restrictions.


2

Plaintiffs are James Clayworth, R.Ph., an individual, dba Clayworth

Pharmacy and Clayworth Healthcare; Marin Apothecaries, Inc., dba Ross Valley
Pharmacy; Golden Gate Pharmacy Services, Inc., dba Golden Gate Pharmacy;
Pediatric Care Pharmacy, Inc.; Chimes Pharmacy, Inc.; Mark Horne, R.Ph., an
individual, dba Burton‟s Pharmacy; Meyers Pharmacy, Inc.; Benson Toy, R.Ph.,
an individual, dba Marin Medical Pharmacy; Seventeen Fifty Medical Center
Pharmacy, Inc.; Tony Mavrantonis, R.Ph., an individual, dba Jack‟s Drug; Julian
Potashnick, R.Ph., an individual, dba Leo‟s Pharmacies; Jerry Shapiro, R.Ph., an
individual, dba Uptown Drug, Co.; Tilley Apothecaries, Inc., dba Zweber‟s
Apothecary; RP Healthcare, Inc.; Rohnert Park Drugs, Inc.; and JGS Pharmacies,
Inc., dba Dollar Drugs.

3

Defendants are Abbott Laboratories; AstraZeneca LP; Novartis

Pharmaceuticals Corp.; Allergan, Inc.; Boehringer Ingelheim Pharmaceuticals,
Inc.; Eli Lilly & Company; Johnson & Johnson; Janssen Pharmaceutical, Inc.;
Ortho McNeil Pharmaceutical, Inc.; Ortho Biotech, Inc.; GlaxoSmithKline; Pfizer,
Inc.; Hoffman-LaRoche; Aventis Pharmaceuticals, Inc.; Amgen, Inc.; Purdue
Pharma L.P.; Merck & Co., Inc.; Bristol-Myers-Squibb Company; Wyeth;
Johnson & Johnson Health Care Systems Inc., which apparently does not
manufacture, market, or distribute pharmaceutical products; and Pharmaceutical
Research and Manufacturers of America, a United States-based nonprofit trade
association.

3

Pharmacies filed suit under section 1 of the Cartwright Act (Stats. 1907,

ch. 530, § 1, pp. 984-985, as amended; §§ 16720, 16726) and the unfair

competition law (UCL) (§ 17200 et seq.), alleging Manufacturers had unlawfully

conspired to fix the prices of their brand-name pharmaceuticals in the United

States market, including in California. The complaint alleged Manufacturers had

agreed to set artificially high prices for their products, and had acted in concert to

restrain reimportation of their lower-priced foreign drugs into the United States

and to restrict price competition from generics. As a result, the complaint alleged,

Manufacturers were able to maintain prices for their drugs in California, as

elsewhere in the United States, at levels 50 to 400 percent higher than for the same

drugs sold outside the United States. Pharmacies alleged they consequently had

been forced to pay an overcharge, the differential between the conspiracy-inflated

prices set by Manufacturers and the prices Pharmacies would have paid in a

competitive market. They sought treble damages, restitution, and injunctive relief.

Each Manufacturer answered, denying Pharmacies‟ allegations and

asserting as an affirmative defense that Pharmacies‟ claims were barred on the

ground Pharmacies passed on any alleged overcharge to third parties and therefore

did not suffer a compensable injury.

Pharmacies filed a motion for summary adjudication of Manufacturers‟

pass-on defense, arguing that the defense was unavailable under the Cartwright

Act in light of Hanover Shoe, supra, 392 U.S. 481, the subsequent legislative

history of the Cartwright Act, and public policy. Manufacturers responded with a

cross-motion for summary judgment, arguing that under the plain language of the

4

Cartwright Act, a pass-on defense was available and defeated both the Cartwright

Act and UCL claims.4

Evidence presented in connection with the cross-motions established the

following essentially undisputed facts. Manufacturers sell their drugs to

wholesalers at a price referred to as the wholesale acquisition cost. In turn,

various independent entities use the wholesale acquisition cost to calculate and

publish benchmark drug prices, termed the average wholesale price, for use in the

industry. Wholesalers resell the drugs to Pharmacies at prices based on a

percentage of the average wholesale price. Because the published average

wholesale price is a fixed percentage above the price charged by Manufacturers to

wholesalers, any price increases by Manufacturers will increase the average

wholesale price proportionally. As a result, when Manufacturers increase their

prices, the costs of drugs to Pharmacies increase by the same percentage amount.

In turn, Pharmacies sell the drugs to two groups of consumers: (1) those

with third party insurance or a drug benefit plan offered by either a private entity

or the government, which in turn pays customers‟ claims on their behalf, and

(2) uninsured (or cash-paying) consumers. For the first group, those covered by

third party payers, Pharmacies are reimbursed at a contractually or statutorily fixed

amount, predetermined as a percentage of the average wholesale price, plus a

dispensing fee; this reimbursement is greater than Pharmacies‟ acquisition costs.

For the second group, the cash-paying consumers, Pharmacies establish the retail

prices unilaterally. Though not required to be, these prices traditionally have been


4

This motion assumed arguendo that Manufacturers had engaged in price

fixing. For purposes of this appeal, we do likewise.

5

based on a set percentage of the average wholesale price as well, plus in some

instances an additional dispensing fee.

Currently, consumers covered by third party payers comprise the bulk of

Pharmacies‟ customers. It appears the percentage of cash-paying consumers has

declined over time, with the consequence that the degree of price-setting discretion

Pharmacies have has fallen as well.

In light of this evidence, the trial court granted Manufacturers‟ summary

judgment cross-motion and denied as moot Pharmacies‟ summary adjudication

motion. It held a pass-on defense was available under the Cartwright Act: A

defendant could reduce or eliminate its liability upon proof that the plaintiff had

passed on the alleged price overcharge and thereby limited its damages or suffered

no injury. The trial court interpreted the evidence before it as showing that

Pharmacies had passed on all of Manufacturers‟ overcharges to consumers and

had thus sustained no damages under the Cartwright Act. The pass-on defense

similarly defeated Pharmacies‟ UCL claim; the trial court concluded Pharmacies

lacked standing to pursue the claim because, having recouped the overcharge, they

had not “lost money or property,” as required under section 17204.

The Court of Appeal affirmed. It rejected the argument that the Legislature

had approved application to the Cartwright Act of Hanover Shoe, supra, 392 U.S.

481, and its bar against pass-on defenses. Relying instead on its reading of the

plain meaning of the Cartwright Act‟s damages provision (§ 16750, subd. (a)), the

Court of Appeal concluded a pass-on defense was available and was fatal to

Pharmacies‟ claims because they could show no “damages sustained” (ibid.). It

likewise rejected Pharmacies‟ UCL claims on the grounds that Pharmacies were

not entitled to restitution and lacked standing to challenge Manufacturers‟ alleged

unfair business practices.

6

We granted review to address a significant issue of first impression:

whether under the Cartwright Act an antitrust defendant can defeat liability by

asserting a pass-on defense. (See Global Minerals & Metals Corp. v. Superior

Court (2003) 113 Cal.App.4th 836, 852, fn. 10 [“[T]his issue of the availability of

a „pass-on defense‟ in antitrust law still remains an open question in California

. . . .”]; J. P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195,

213, fn. 10 [same]; B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191

Cal.App.3d 1341, 1353 [same].)

DISCUSSION

I. Hanover Shoe and Its Antecedents

In Hanover Shoe, supra, 392 U.S. 481, the United States Supreme Court

considered whether the pass-on defense should be available to defendants found to

have charged excess prices under federal antitrust law. The United States had

obtained a judgment against United Shoe Machinery Corporation (United Shoe)

under section 4 of the Sherman Act (15 U.S.C. § 4) for monopolizing the market

for shoe manufacturing machinery. Relying on this judgment, shoe manufacturer

Hanover Shoe, Inc. (Hanover Shoe) sought to recover the “damages by him

sustained” under section 4 of the Clayton Act (15 U.S.C. § 15); United Shoe

argued in response that Hanover Shoe had likely incorporated any overcharge it

paid United Shoe into the prices it charged its customers for shoes, and

accordingly had sustained no damage.

In a seven-to-one decision authored by Justice White, the United States

Supreme Court rejected United Shoe‟s assertion of a pass-on defense.5 It held that


5

Justice Stewart dissented on the threshold question whether United Shoe

had been shown to violate the antitrust laws and accordingly did not reach the
issue of how to determine damages. (See Hanover Shoe, supra, 392 U.S. at p. 513


(footnote continued on next page)

7

“when a buyer shows that the price paid by him for materials purchased for use in

his business is illegally high and also shows the amount of the overcharge, he has

made out a prima facie case of injury and damage within the meaning of § 4” of

the Clayton Act (15 U.S.C. § 15). (Hanover Shoe, supra, 392 U.S. at p. 489.)

Explaining this conclusion, the Supreme Court pointed out that however a

buyer responds to illegal overcharges, he inevitably will be damaged. First, if the

buyer does nothing and absorbs the loss, he suffers lost profits because, while

revenue is static, his costs have been increased by the amount of the overcharge.

(Hanover Shoe, supra, 392 U.S. at p. 489.) Second, “if the buyer, responding to

the illegal price, maintains his own price but takes steps to increase his volume or

to decrease other costs, his right to damages is not destroyed. Though he may

manage to maintain his profit level, he would have made more if his purchases

from the defendant had cost him less.” (Ibid.) Third, “the buyer is equally entitled

to damages if he raises the price for his own product.” (Ibid.) In this last scenario,

to the extent the higher price costs the buyer sales, he is injured by his loss of

sales; to the extent it does not cost him sales, because demand for his product is

inelastic, his marginal profit would have been higher had his costs, illegally

enhanced, been lower. In sum: “As long as the seller continues to charge the

illegal price, he takes from the buyer more than the law allows. At whatever price

the buyer sells, the price he pays the seller remains illegally high, and his profits

would be greater were his costs lower.” (Ibid.)

The Supreme Court offered two additional reasons why acceptance of the

pass-on defense would be problematic. First, it would require a fact finder to


(footnote continued from previous page)

(dis. opn. of Stewart, J.).) The seven members of the Supreme Court to consider
the pass-on defense thus were unanimous in rejecting it.

8

decide a host of imponderables: whether in the absence of the illegal overcharge

the plaintiff would have priced his product differently, what impact such a

different price would have had on total sales “in the real economic world rather

than an economist‟s hypothetical model” (Hanover Shoe, supra, 392 U.S. at

p. 493), and whether the price change might have been pursued anyway even in

the absence of the initial overcharge. “Since establishing the applicability of the

passing-on defense would require a convincing showing of each of these virtually

unascertainable figures, the task would normally prove insurmountable.” (Ibid.)

Proof of such factors would depend on massive and complex showings and

rebuttals, potentially sidetracking every antitrust trial in a host of issues collateral

to the central claim—whether the defendant had engaged in illegal anticompetitive

conduct. (Ibid.)

Second, broad acceptance of the defense would create a risk that no one

would be left with a sufficiently significant injury to be motivated to seek relief;

individual end consumers, each harmed to the tune of a few pennies or dollars

only, might have insufficient motivation even to pursue a class action.

Consequently, “those who violate the antitrust laws by price fixing or

monopolizing would retain the fruits of their illegality because no one was

available who would bring suit against them” (Hanover Shoe, supra, 392 U.S. at

p. 494), and enforcement of the antitrust laws would be compromised.

Hanover Shoe‟s view of how properly to measure damages was not novel;

as Justice White pointed out, a long line of Holmes and Brandeis opinions had

adopted the same understanding. (See Hanover Shoe, supra, 392 U.S. at pp. 489-

490.) Writing for the court in Chattanooga Foundry v. Atlanta (1906) 203 U.S.

390, Justice Holmes explained why a pass-on defense was inconsistent with the

law‟s general take on damages: “A man is injured in his property when his

property is diminished. . . . [W]hen a man is made poorer by an extravagant bill

9

we do not regard his wealth as a unity, or the tort, if there is one, as directed

against that unity as an object. We do not go behind the person of the sufferer.

We say that he has been defrauded or subjected to duress, or whatever it may be,

and stop there.” (Id. at p. 399.) Several years later, he explained again why a

pass-on defense should not stand as a bar to allegations of excessive rate charges

under federal transportation law: “The only question before us is . . . whether the

fact that the plaintiffs were able to pass on the damage . . . prevents their

recovering the overpayment . . . . The answer is not difficult. The general

tendency of the law, in regard to damages at least, is not to go beyond the first

step. . . . The plaintiffs suffered losses . . . when they paid. Their claim accrued at

once in the theory of the law and it does not inquire into later events.” (Southern

Pac. Co. v. Darnell-Taenzer Co. (1918) 245 U.S. 531, 533-534.) To similar effect

in rejecting a pass-on defense in the context of an illegal overcharge by railroad

yards, Justice Brandeis wrote for the court: “Neither the fact of subsequent

reimbursement . . . , nor the disposition which may hereafter be made of the

damages recovered, is of any concern to the wrongdoers.” (Adams v. Mills (1932)
286 U.S. 397, 407.) To allow a pass-on defense would undermine the

enforcement of the statutory scheme (there, the Interstate Commerce Act (49

U.S.C. former § 8)): “[T]he purpose of that section would be defeated if the

tortfeasors were permitted to escape reparation by a plea that the ultimate

incidence of the injury was not upon those who were compelled in the first

instance to pay the unlawful charge.” (Adams v. Mills, at p. 408.)

This rejection of using overcharge pass-ons as a defense occurs not because

the law is blind to their existence, but rather because its eyes are open to their

ubiquity. Justice Holmes, again: The disregard of pass-ons is in part a recognition

of “the endlessness and futility of the effort to follow every transaction to its

ultimate result. [Citation.] Probably in the end the public pays the damages in

10

most cases of compensated torts.” (Southern Pac. Co. v. Darnell-Taenzer Co.,

supra, 245 U.S. at p. 534.) The Hanover Shoe court certainly acknowledged that a

buyer faced with an overcharge might seek to pass on that overcharge. (Hanover

Shoe, supra, 392 U.S. at pp. 489, 493.) What the court also recognized, however,

was how much deeper down the rabbit hole one could go. Price fixing has

primary consequences: the overcharge to direct purchasers. It may have

secondary consequences: the pass-on to indirect purchasers. It may have tertiary

consequences: the price increase may result in lost sales or profits, or lost market

share for a buyer forced to compete with sellers not subject to the overcharge. (Id.

at pp. 489-493.)6 To trace every consequence of a monopoly or a price-fixing

conspiracy is to encounter Holmes‟s “futility of the effort to follow every

transaction to its ultimate result.” (Southern Pac. Co., at p. 534.) Hanover Shoe

recognized fully the difficulties inherent in tracing an antitrust violation to its

ultimate consequences. (See Hanover Shoe, at p. 493.) The rule it adopted, which

accounts only for the primary consequence (the overcharge), recognizes that to

stop after consideration of primary and secondary consequences (the overcharge

and any pass-on) would fail to properly account for a host of tertiary consequences

and thus underestimate the impact of the overcharge, but that attempting to

actually account for those tertiary consequences would often be both impractical,

given the difficulties of proving “in the real economic world” (ibid.) the ultimate

impacts of a price change, and a severe impairment to deterrence (id. at p. 494).


6

One can imagine still more remote consequences as well, such as changes

in the value of a business as a going concern, or changes in buying patterns by
consumers who substitute purchases of other products, with consequent positive
and negative effects on the various distributors in the market. And so on, and so
on.

11

With this background, we turn to the issue in this case. Does the rule of

Hanover Shoe, that a defensive pass-on theory may not be used to defeat an

antitrust damages claim, apply under the Cartwright Act?

II. The Cartwright Act and the Pass-on Defense



A. The Cartwright Act’s Text and Early History

We begin with the language of the statute. If the text is sufficiently clear to

offer conclusive evidence of the statute‟s meaning, we need look no further.

(Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.) If it is

susceptible of multiple interpretations, however, we will divine the statute‟s

meaning by turning to a variety of extrinsic sources, including the legislative

history (e.g., Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1080-1081), the

nature of the overall statutory scheme (e.g., Tonya M. v. Superior Court (2007) 42

Cal.4th 836, 844-845), and consideration of the sorts of problems the Legislature

was attempting to solve when it enacted the statute (e.g., Burris v. Superior Court

(2005) 34 Cal.4th 1012, 1018).

Section 16750, subdivision (a) authorizes anyone “injured in his or her

business or property” by actions forbidden under the Cartwright Act (§ 16700 et

seq.) to recover three times the “damages sustained.” Aside from an increase in

the multiplier, to treble damages from the original double damages, this language

has been carried forward essentially without change from the original version of

the act.7


7

As originally enacted, the Cartwright Act‟s private damages provision read:

“In addition to the criminal and civil penalties herein provided, any person who
shall be injured in his business or property by any other person or corporation or
association or partnership, by reason of anything forbidden or declared to be
unlawful by this act, may sue therefor . . . to recover twofold the damages by him
sustained, and the costs of suit.” (Stats. 1907, ch. 530, § 11, p. 987.)

12

We reject at the outset Manufacturers‟ contention that the choice of the

words “damages sustained” (§ 16750, subd. (a)) or “damages by him sustained”

(Stats. 1907, ch. 530, § 11, p. 987) establishes a particular legislative intent on the

question whether a pass-on defense should be available. The express text says

only that a party must have been “injured” by a Cartwright Act violation and may

recover the resulting “damages sustained”; it says nothing about how the injury or

damages are to be quantified. In the antitrust context, one might measure the

damages from a violation any number of ways: e.g., the excess amount a party

paid the violator (the overcharge) (see Hanover Shoe, supra, 392 U.S. at pp. 487-

490); the sales a party lost as a result of the overcharge (lost sales) (see Hanover

Shoe, at p. 493; Kansas v. UtiliCorp United Inc. (1990) 497 U.S. 199, 224 (dis.

opn. of White, J.); B.W.I. Custom Kitchen v. Owens-Illinois, Inc., supra, 191

Cal.App.3d at p. 1353); the lost profit opportunity a party suffered due to

increased costs (lost profits) (see Hanover Shoe, at p. 493 & fn. 9); or the impact

on the value of a business as a going concern due to lost market share (see B.W.I.

Custom Kitchen, at p. 1353). Put another way, one could in theory measure injury

by considering only the primary consequences of a price conspiracy (the

overcharge), as Hanover Shoe did; by considering only the primary and secondary

consequences (the overcharge and pass-on), as Manufacturers argue; or by

considering the primary, secondary, and tertiary consequences (as, for instance,

B.W.I. Custom Kitchen, at p. 1353, theorized one might have to). The words of the

statute themselves dictate no particular choice among these options, nor any

particular conclusion as to whether a pass-on defense should be available.

That the text of the Cartwright Act is ambiguous on this point is further

illustrated by the fact the United States Supreme Court, interpreting the essentially

identical language of the federal Clayton Act (15 U.S.C. § 12 et seq.), reached a

conclusion diametrically opposite to that of the Court of Appeal in this case.

13

Construing the Clayton Act‟s damages provision (“damages by him sustained”),8

the Supreme Court concluded defensive use of a pass-on theory was prohibited

(Hanover Shoe, supra, 392 U.S. at pp. 489-494); construing the Cartwright Act‟s

damages provision (“damages sustained”),9 the Court of Appeal here concluded

such use of a pass-on theory was permitted, indeed compelled. Nor is Hanover

Shoe an anomaly; addressing a federal damages provision mirroring that of the

Cartwright Act, the Supreme Court in Adams v. Mills, supra, 286 U.S. at pages

406-408, likewise rejected the defendants‟ pass-on theory.10 This divergence

illustrates not that either conclusion must be wrong, only that reasonable jurists

may—from a text as opaque as “damages sustained”—arrive at widely differing

conclusions, and that that text is thus susceptible of being read as supporting more

than one rule for measuring damages.11 The question we face is how to measure


8

Title 15 United States Code section 15(a).

9

Section 16750, subdivision (a).

10

At issue was a claim under section 8 of the Interstate Commerce Act (49

U.S.C. former § 8), which created liability for “the full amount of damages
sustained” because of overcharges and other violations.

11

Manufacturers argue that Hanover Shoe, supra, 392 U.S. 481, is not

evidence of textual ambiguity because it was not a statutory interpretation case.
We disagree. The United States Supreme Court itself has indicated Hanover Shoe
resolved “a question of statutory interpretation,” namely, the “proper construction
of § 4 of the Clayton Act [15 U.S.C. § 15].” (California v. ARC America Corp.
(1989) 490 U.S. 93, 103.) More fundamentally, while it is true Hanover Shoe did
not discuss how best to interpret the phrase “damages by him sustained,” that
omission implicitly acknowledges that an exegesis of those few words would have
yielded no answers. Tasked with interpreting a statute, courts resort to all manner
of tools to divine intent. Where in one case the text or legislative history may
produce a clear answer, in another it may lead only to a dead end. Courts do not
often catalogue every blind alley; that Hanover Shoe did not address the statutory
text‟s opacity is of no significance. That the Supreme Court relied on nontextual
tools to construe the Clayton Act is significant; it demonstrates the court‟s


(footnote continued on next page)

14

“damages sustained,” and nothing in the Cartwright Act‟s language, as enacted in

1907 or thereafter amended, resolves that question. Insofar as the text of the

Cartwright Act is concerned, the question is an open one.

We reject as well a second interpretive argument pressed by Manufacturers

and adopted by the Court of Appeal: that at the beginning of the 20th century

there was an existing, generally understood meaning for “damages by him

sustained,” and we therefore should presume the Legislature intended that

meaning when it used the phrase in the Cartwright Act.

The general principle that we should assume the Legislature uses words in

accordance with their commonly understood meaning is sound. In State of

California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, for

example, we interpreted ambiguous provisions of the Cartwright Act by

considering whether extant law established an accepted meaning for the chosen

terms. Because our research disclosed an accepted understanding that a

prohibition against a “combination” did not extend to mergers, we concluded the

Legislature surely knew of and adopted that understanding when it passed the

Cartwright Act. (State of California ex rel. Van de Kamp v. Texaco, Inc., at

pp. 1160-1163.)

That principle has no similar application here. We can discern no

contemporaneous consensus with respect to the phrase “damages by him

sustained.” The Cartwright Act was passed in 1907 as part of a wave of turn-of-

the-century state and federal legislation intended to stem the power of monopolies

and cartels. (Landry & Hornbeck, One Hundred Years in the Making: The


(footnote continued from previous page)

conclusion that the text itself was not restrictive enough to specify a unique
measure of damages—that it was, in short, ambiguous.

15

Cartwright Act in Broad Outline (2008) 17, No. 2, J. of Antitrust and Unfair

Competition Section of State Bar 7, 7-8; State of California ex rel. Van de Kamp v.

Texaco, Inc., supra, 46 Cal.3d at pp. 1154-1156; see generally Limbaugh, Historic

Origins of Anti-trust Legislation (1953) 18 Mo. L.Rev. 215.) It was based in part

on other recently enacted state laws aimed at the same problems. (State of

California ex rel. Van de Kamp v. Texaco, Inc., at pp. 1160-1162 & fn. 14; Hibner

& Cooper, The Cartwright Act at 100—A History of Complementary Antitrust

Enforcement—A Celebration (2008) 17, No. 2, J. of Antitrust and Unfair

Competition Section of State Bar 81, 91-92.) The phrase “damages sustained” or

“damages by him sustained” was routinely employed in the remedial provisions of

the antitrust statutes of the time.12 However, our review of out-of-state and federal

decisions in the years preceding the Cartwright Act‟s 1907 adoption discloses

nothing (never mind a consensus) speaking to how the “damages by him

sustained” should be measured or allocated between direct and indirect purchasers

who seek to sue for antitrust loss.

Certainly the California cases relied on by Manufacturers and the Court of

Appeal do not establish any consensus as to how damages were to be measured.

In De Costa v. Massachusetts Mining Company (1861) 17 Cal. 613, 617, a

nuisance case, we explained that the damages for creating an unwanted ditch on


12

E.g., Sherman Antitrust Act of 1890 (Act of July 2, 1890, ch. 647, § 7,

26 Stat. 209, 210) (“damages by him sustained”); 1899 Michigan Public Acts,
No. 255, section 11, page 412 (“damages by him sustained”); 1907 Missouri
Laws, page 380 (former Mo. Rev. Stat., § 8972) (“damages by him sustained”);
1905 Nebraska Laws, chapter 162, section 18, page 644 (“damages by him
sustained”); 1898 Ohio Laws, section 11, page 146 (former Ohio Gen. Code,
§ 6397) (“damages by him sustained”); 1893 Oklahoma Revised Statutes, chapter
83, section 4, page 1163 (“damages sustained”); 1898 Utah Revised Statutes, title
54, section 1761, page 424 (“damages sustained”).

16

another‟s property were confined to the injury sustained, the diminution in the

value of the property in its present condition, rather than the full cost of

remediation (filling in the ditch). In Utter v. Chapman (1869) 38 Cal. 659, 664-

666, a breach of contract case, we explained that the plaintiff steamship operator

could not automatically recover the full contract price for shipping grain the

defendant failed to provide. The plaintiff had a duty to mitigate by finding

substitute employment for his steamer, such as transporting grain for other parties,

and, to the extent he was able to do so, his damages were thereby diminished. In

Hicks v. Drew (1897) 117 Cal. 305, 314-315, a tort action for injury to real

property, we indicated damages should be measured based on the net impact of the

defendant‟s actions, offsetting any benefit to the plaintiff against any loss.

These contract and tort cases are unhelpful on the question of how to

measure the “damages sustained” in an antitrust case. They express in a variety of

contexts the truism that damages are to compensate for actual loss, but this, again,

begs the question before us: how to measure actual loss in the context of an

intermediary purchaser antitrust action for price fixing.

Notably as well, in 1907 an antitrust claim for civil money damages was a

wholly new kind of claim, part of the “dramatically enhanced sanctions imposed

by the [Cartwright] Act.” (State of California ex rel. Van de Kamp v. Texaco, Inc.,

supra, 46 Cal.3d at p. 1167.) At common law, no such private claim existed;

remedies for illegal agreements and restraints on trade were confined to

proceedings to hold the agreements void and unenforceable and to revoke

corporate privileges. (Ibid.) Thus, no reason exists to assume the Legislature

intended to incorporate any particular existing method of measuring damages

17

derived from statutory or common law precedent, including the common law

contract and tort damage measures on which Manufacturers rely.13

More generally, we consider it implausible that the Legislature had any

specific intent on the question we face. Certainly nothing in what minimal

legislative history has survived from the Cartwright Act‟s 1907 enactment sheds

any direct light on the question. The economic theories that underlie an antitrust

claim are sufficiently complex that we may safely surmise the fine points of

whether enforcement by direct and indirect purchasers should be permitted or

preferred, and what precise proof of passed-on costs, lost sales, and lost profits

should become the grist of an antitrust trial, were not at the forefront of the

Legislature‟s mind when enacting what was then a pioneering law. Certainly by

its choice of the generic phrases “damages by him sustained” and “injured in his

business or property,” the Legislature did not presume to resolve these complex

questions.

Two early Court of Appeal Cartwright Act cases relied on by

Manufacturers do not lead us to a different conclusion. Krigbaum v. Sbarbaro

(1913) 23 Cal.App. 427 is a case about antitrust causation, i.e., the notion that to

have an antitrust claim one must establish a causal nexus between one‟s injury and

the alleged unlawful restraint of trade. (See Associated General Contractors v.

Carpenters (1983) 459 U.S. 519, 540-542; Vinci v. Waste Management, Inc.

(1995) 36 Cal.App.4th 1811, 1814.) In Krigbaum, the plaintiff alleged the

defendants had conspired to monopolize the market for vineyard-quality land, but


13

Nor do generic contract and tort damage cases address the significant

antitrust-only policy concerns that have motivated the United States Supreme
Court in its reading of the Sherman and Clayton Acts (15 U.S.C. § 1 et seq.; id.,
§ 12 et seq.) and that must influence our reading of the Cartwright Act.

18

his injury arose not from any restraints on trade accomplished by the alleged trust;

rather, it arose from specific actions the defendants took to interfere with a

particular real estate transaction he had brokered. (Krigbaum, at pp. 433-434.)

Because the plaintiff had not alleged causation, a demurrer to his Cartwright Act

claim was properly sustained. (Ibid.) Krigbaum has nothing to say on the general

topic that concerns us: when (as here) causation has been properly alleged, how

are antitrust damages to be measured?

Equally unilluminating is Overland P. Co. v. Union L. Co. (1922) 57

Cal.App. 366, another antitrust causation case. The plaintiff, a printing and

publishing company, alleged the defendant printing trade association had agreed to

limit bidding for certain printing jobs, thereby driving up prices. As the Court of

Appeal there correctly explained, nothing about this arrangement caused the

plaintiff injury; instead, the decision of the plaintiff‟s competitors not to bid for

work reduced the competition for the plaintiff and likely benefited it. (Id. at

pp. 374-375.) Here, in contrast, Pharmacies are not Manufacturers‟ competitors

but their indirect customers, and they have properly alleged that Manufacturers‟

price-fixing conspiracy caused them injury in the form of higher prices. As with

Krigbaum v. Sbarbaro, supra, 23 Cal.App. 427, nothing in the Overland P. court‟s

discussion speaks to how we should measure the damages of those plaintiffs who

have alleged causation.

In the absence of textual guidance, we must turn elsewhere. We thus look

to the Legislature‟s subsequent amendments to related parts of the Cartwright Act,

and we consider as well “the object which [the Cartwright Act] seeks to achieve

and the evil which it seeks to prevent . . . .” (Judson Steel Corp. v. Workers’

Comp. Appeals Bd. (1978) 22 Cal.3d 658, 669; see also Burris v. Superior Court,

supra, 34 Cal.4th at p. 1018 [“we must consider the human problems the

Legislature sought to address in adopting [the statute]”].)

19

Consideration of these sources leads us to conclude the federal Hanover

Shoe rule (Hanover Shoe, supra, 392 U.S. at p. 494) is most consistent with

legislative intent and applies equally to state claims under the Cartwright Act.

Every indication available from the Legislature demonstrates that, given a choice,

it would prefer an enforcement regime in which Hanover Shoe is the law. In

particular, the Legislature‟s actions at two closely related points in time are telling:

(1) in 1977, following Congress‟s passage of the Hart-Scott-Rodino amendments

to the federal Clayton Act (15 U.S.C. § 12 et seq.); and (2) in 1978, in the

immediate aftermath of the United States Supreme Court‟s decision in Illinois

Brick, supra, 431 U.S. 720.

B. The Cartwright Act’s Amendment History

1. Cartwright Act amendment in response to federal

legislation

a. The Hart-Scott-Rodino Act

In 1976, Congress amended the Clayton Act (15 U.S.C. § 12 et seq.) by

passing the Hart-Scott-Rodino Antitrust Improvements Act (the Hart-Scott-Rodino

Act). The Hart-Scott-Rodino Act authorized state attorneys general to file parens

patriae suits14 on behalf of injured consumers for violations of the Sherman Act

(15 U.S.C. § 1 et seq.). (15 U.S.C. § 15c(a)(1).) Congress created the remedy out

of concern that consumers, the indirect purchasers who typically bear the brunt of

antitrust violations in the form of higher prices, had no existing effective redress


14

“ „ “Parens patriae,” literally “parent of the country,” refers traditionally to

[the] role of [the] state as sovereign and guardian of persons under legal disability
[¶] . . . [¶] State attorney generals [sic] have parens patriae authority to bring
actions on behalf of state residents for anti-trust offenses and to recover on their
behalf.‟ ” (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th
1143, 1148, fn. 6.)

20

because the small amounts of their injuries made individual suits impracticable,

and consumer class actions had proven a disappointing vehicle for antitrust

enforcement. (H.R.Rep. No. 94-499, 2d Sess. (1976), reprinted in 1976 U.S. Code

Cong. & Admin. News, pp. 2573-2577.) The Hart-Scott-Rodino Act was designed

to fill the remedial gap that “sometimes result[ed] in the unjust enrichment of

antitrust violators and undermine[d] the deterrent effect of the treble damage

action.” (Id. at pp. 2573-2574.) The remedial provisions of the Hart-Scott-Rodino

Act focused on achieving full disgorgement of all illegal antitrust profits, using

fluid recovery and the cy près doctrine if necessary, because “[t]he only

alternative—retention of the profits by the adjudicated wrongdoer—is

unconscionable and unacceptable.” (Id. at pp. 2585-2586; see also id. at p. 2585

[“[T]he premise of § 4D [codified at 15 U.S.C. § 15d] is that defendants should be

made to disgorge all measurable profits from an antitrust violation . . . .”].)

Notably, the Hart-Scott-Rodino Act originally contained no language to

address the possibility that indirect purchasers might recover damages (through

their respective attorneys general) when in some instances those same damages

might already have been recovered by direct purchasers under the Hanover Shoe

rule prohibiting a pass-on defense (see Hanover Shoe, supra, 392 U.S. at p. 494).

The problem of potential double recovery under Hanover Shoe was solved by a

Senate amendment excluding from parens patriae damage awards any amount that

“duplicates amounts which have been awarded for the same injury.” (15 U.S.C.

§ 15c(a)(1); see Sen.Rep. No. 94-803, 2d Sess., p. 44 (1976).) As the Senate

Report accompanying the amendment explained, the proviso was inserted to

“assure that defendants are not subjected to duplicative liability, particularly in a

chain-of-distribution situation where it is claimed that middlemen absorbed all or

part of the illegal overcharge,” and to thereby eliminate any perceived tension

between authorizing indirect purchaser suits and following Hanover Shoe.

21

(Sen.Rep. No. 94-803, supra, at p. 44.)15 Specifically, the amendment was

intended to codify In re Western Liquid Asphalt Cases (9th Cir. 1973) 487 F.2d

191, a case that relied on the sufficiency of consolidation, interpleader,

compulsory joinder, and the like, rather than a bar on indirect purchaser suits, to

eliminate double recovery problems. (Id. at p. 201.) “Where the choice is

between a windfall to intermediaries or letting guilty defendants go free, liability

is imposed.” (Sen.Rep. No. 94-803, supra, at p. 44, citing Hanover Shoe, supra,

392 U.S. at p. 494.)

The Hart-Scott-Rodino Act was thus of a piece with Hanover Shoe. First,

consistent with the policies spelled out by the United States Supreme Court, it

reflected Congress‟s belief that it was better to overdeter antitrust violations than

to underdeter them, as well as Congress‟s desire to create a remedial framework

that maximized the likelihood violators would be required to fully disgorge price-

fixing profits. (See H.R.Rep. No. 94-499, supra, reprinted in 1976 U.S. Code

Cong. & Admin. News, pp. 2573-2586.) Second, the Hart-Scott-Rodino Act

expressly contemplated that antitrust violators might be sued by both direct and

indirect purchasers, and that rather than limiting direct purchaser recoveries—by

repudiating Hanover Shoe—or limiting indirect purchaser suits, the problem of

duplicative recoveries could be addressed by allowing damages already paid to be

offset against subsequent damages claims. (See 15 U.S.C. § 15c(a)(1).)

15

Bill author Representative Peter Rodino made the same point, explaining

on the House floor that the Hart-Scott-Rodino Act had been specifically tailored,
through Senate amendments to the bill that became new section 4C(a)(1) of the
Clayton Act (15 U.S.C. § 15c(a)(1)), to allow the Hanover Shoe no pass-on
defense rule to coexist hand-in-hand with the bill‟s new parens patriae suits on
behalf of indirect purchasers. (Remarks of Rep. Rodino, Debate on H.R. No.
8532, 94th Cong., 2d Sess., 122 Cong. Rec. H30878-30879 (daily ed. Sept. 16,
1976).)

22

b. The legislative response to the Hart-Scott-Rodino

Act

The Legislature moved quickly to incorporate the remedial framework of

the Hart-Scott-Rodino Act into the Cartwright Act, enacting a statute that precisely

tracked the federal act and authorized the Attorney General to sue for Cartwright

Act violations on behalf of consumers. (§ 16760, added by Stats. 1977, ch. 543,

§ 1, p. 1747.)16 Notably for our purposes, the Legislature adopted as well the

Hart-Scott-Rodino Act‟s damages provision. (Compare § 16760, subd. (a)(1) [any

award must exclude damages “which duplicate[] amounts which have been

awarded for the same injury”] with 15 U.S.C. § 15c(a)(1) [same].) As we have

discussed, that provision was specifically designed to account for duplicative

damage awards resulting from allowing indirect purchasers to recover damages

when, under the Hanover Shoe no pass-on defense rule (Hanover Shoe, supra, 392

U.S. at p. 494), direct purchasers might already have been awarded those same

damages. Section 16760, subdivision (a)(1), in parallel with the corresponding

provision in the Hart-Scott-Rodino Act, thus took as its premise that under the

Cartwright Act direct purchasers could themselves recover overcharges that might

in theory have been passed on to indirect purchasers, that is, the Hanover Shoe


16

See Assembly Office of Research, third reading analysis of Assembly Bill

No. 1162 (1977-1978 Reg. Sess.) as amended May 17, 1977, page 1 (“The bill is
modeled directly on federal law”); Senate Committee on Judiciary, Analysis of
Assembly Bill No. 1162 (1977-1978 Reg. Sess.) as amended May 17, 1977, page
2 (“This bill would enact into California law essentially the same provisions which
were enacted last year by Congress and put into Federal law”). Notably, the text
of section 16760 shows the Legislature shared Congress‟s preference for
maximizing deterrence and ensuring full disgorgement of profits generated by
antitrust violations: section 16760 expressly authorizes the use of cy près and
fluid recovery to maximize distribution to those harmed, with any excess to go to
the Attorney General as costs or to the state as unclaimed property, rather than
reverting to the wrongdoer. (§ 16760, subd. (e)(1)-(3).)

23

rule. Evidently, then, the Legislature presumed that such a rule would apply to the

Cartwright Act as well.

Two additional factors suggest the Legislature took as a given the

application of Hanover Shoe‟s no pass-on defense rule to the Cartwright Act.

First, we may presume that when the Legislature borrows a federal statute and

enacts it into state law, it has considered and is aware of the legislative history

behind that enactment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1244; see

also American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d

440, 447 [the legislative history of a federal statute may be used to interpret a state

statute based on it].) Second, Assembly Bill No. 1162‟s legislative history

indicates members of the Legislature were in fact aware of the legislative history

behind, and the import of, the various portions of the Hart-Scott-Rodino Act they

incorporated into state law. The Assembly Judiciary Committee‟s materials for

Assembly Bill No. 1162 include by way of explanation for the bill and its purpose

excerpts from the Hart-Scott-Rodino Act‟s legislative history, including remarks

from Representative Rodino describing at length how the no-duplicative-recovery

provision of title 15 United States Code section 15c(a)(1) was adopted to

accommodate the effects of applying the Hanover Shoe rule. (See Assem. Com.

on Judiciary, Worksheet on Assem. Bill No. 1162 (1977-1978 Reg. Sess.) as

introduced Mar. 29, 1977 [attachments excerpting Sept. 16, 1976 remarks of Rep.

Rodino].)

Manufacturers argue it would be absurd to conclude the Legislature that

passed Assembly Bill No. 1162 (1977-1978 Reg. Sess.), strengthening consumer

antitrust protections, also approved the Hanover Shoe rule, which might in a

hypothetical case impair consumer recoveries. Manufacturers posit a scenario in

which an intermediary purchaser (such as Pharmacies here) sues first, recovers the

full measure of any overcharge under Hanover Shoe, and leaves nothing for the

24

ultimate consumers (because § 16760‟s duplicative-liability language would

exclude the previous recovery from an antitrust defendant‟s future liability).

We have no difficulty reconciling Assembly Bill No. 1162‟s consumer-

protecting provisions with tacit approval of the Hanover Shoe rule. In the abstract,

both rules are intended to achieve the same goal: maximum deterrence and

disgorgement. If the Hanover Shoe rule enhances enforcement and deters to some

degree future antitrust violations, consumers benefit. As for the specific

hypothetical, it posits a scenario in which an antitrust suit is filed, a full award is

made against the defendants, and the case becomes final, all before the four-year

statute of limitations expires and before the Attorney General has any opportunity

to file suit. The Legislature could easily have assumed that this would be a rare

scenario indeed, and that the short statute of limitations (at least in comparison

with the time it takes to resolve an antitrust case), combined with the availability

of devices such as joinder, interpleader, and case consolidation, would make such

a scenario the exception rather than the rule. (See Union Carbide Corp. v.

Superior Court (1984) 36 Cal.3d 15, 24 [noting that where suits are pending at the

same time, consolidation can be employed, and the practical likelihood of

sequential suits is “ „remote‟ ” because “ „[t]he extended nature of antitrust

actions, often involving years of discovery, combines with the short four-year

statute of limitations to make it impractical for potential plaintiffs to sit on their

rights until after entry of judgment in the earlier suit‟ ”].)17


17

This case is perhaps far more typical. Pharmacies, intermediary purchasers,

filed suit in 2004; had any consumers sought recovery of the same amounts
Pharmacies seek (i.e., recovery for the years 2000-2004), they would have had to
file suit long before now, and their actions could have been consolidated or
coordinated without any risk of an award in this case impairing relief in any such
hypothetical other case.

25

In short, the Legislature decided to include in its new parens patriae statute

a protection against the occasional potential for double recovery that arises when

indirect purchasers can sue but direct purchasers are not subject to a pass-on

defense, a provision created under the specific belief that Hanover Shoe would

apply. From this, we may infer the Legislature approved application of Hanover

Shoe to the Cartwright Act.

2. Cartwright Act amendment in response to Illinois Brick

a. The sequel to Hanover Shoe: Illinois Brick

Nine years after Hanover Shoe, supra, 392 U.S. 481, the United States

Supreme Court was pressed to decide whether the bar on defensive use of a pass-

on theory (the claim a direct purchaser could not sue because it had passed on any

overcharge) should be extended to the offensive use of a pass-on theory (the claim

by an indirect purchaser that it, too, had suffered antitrust injury because

overcharges had been passed on to it by the direct purchaser and perhaps

additional intermediary indirect purchasers). In Illinois Brick, supra, 431 U.S.

720, a sharply divided court concluded that just as defendants could not raise a

pass-on theory as a defense, so indirect purchasers could not use a pass-on theory

to sue for overcharges arising from antitrust violations.

Plaintiff the State of Illinois sued concrete block manufacturers for price

fixing in violation of the Sherman Act (15 U.S.C. § 1 et seq.), alleging that the

manufacturers had illegally increased prices and those increases were passed on to

masonry contractors, who passed them on to general contractors, who charged

more in their bids to build buildings for the State of Illinois and other government

entities. (Illinois Brick, supra, 431 U.S. at pp. 726-727.) Again writing for the

majority, Justice White explained that the availability of a pass-on defense should

be symmetric. First, allowing offensive but not defensive pass-on claims would

26

create a risk of double recovery in those cases where both direct and indirect

purchasers sued, with a defendant paying the entirety of any overcharge to the

direct purchaser and some additional amount to the indirect purchaser. (Id. at pp.

730-731.) Second, the uncertainties involved in tracing overcharges and the risk

of overcomplicating antitrust trials extended equally to offensive pass-on cases as

to defensive pass-on cases. (Id. at pp. 731-732.) Third, Hanover Shoe “rest[ed]

on the judgment that the antitrust laws will be more effectively enforced by

concentrating the full recovery for the overcharge in the direct purchasers rather

than by allowing every plaintiff potentially affected by the overcharge to sue only

for the amount it could show was absorbed by it.” (Illinois Brick, at p. 735.)

Because no exception applied that would have allowed defensive use of a pass-on

theory—and because Hanover Shoe was still sound law and should not be

overruled—Illinois could not use a pass-on theory offensively and, as an indirect

purchaser, could recover nothing.

The dissenters agreed fully that Hanover Shoe was good law, but concluded

the same considerations that animated it dictated a rule allowing indirect purchaser

suits. (See Illinois Brick, supra, 431 U.S. at pp. 749-750 (dis. opn. of Brennan,

J.).) In Hanover Shoe, the court had chosen to run the risk of overcompensating a

plaintiff rather than underdeterring antitrust violations and allowing antitrust

violators to retain their ill-gotten gains. In an offensive pass-on case, there was no

danger that recognizing pass-on charges would allow a defendant to escape

liability; rather, allowing a pass-on claim would advance the goal of preventing

wrongdoers from escaping punishment. (Illinois Brick, at pp. 752-753.) The

dissenters asserted that “ „[t]he attempt to transform a rejection of a defense

because it unduly hampers antitrust enforcement into a reason for a complete

refusal to entertain the claims of a certain class of plaintiffs seems an ingenious

attempt to turn the decision [in Hanover Shoe] and its underlying rationale on its

27

head.‟ ” (Id. at pp. 753-754.) The majority‟s concerns about double recovery, the

dissenters argued, could be addressed fully through procedural devices (joinder,

interpleader, and the like) in instances where double recovery was a risk, without

resort to the majority‟s blanket ban on indirect purchaser suits. (Id. at pp. 761-

764.)

b. The legislative response to Illinois Brick

Illinois Brick, supra, 431 U.S. 720, evoked an immediate legislative

response. Within months of the decision, Assembly Bill No. 3222 (1977-1978

Reg. Sess.) was introduced to prevent Illinois Brick from having any effect on

judicial interpretation of the Cartwright Act.18 This “Illinois Brick repealer” bill

passed both houses unanimously and wrote into the Cartwright Act a repudiation

of Illinois Brick‟s ban on indirect purchaser suits, allowing suit by any injured

person “regardless of whether such injured person dealt directly or indirectly with

the defendant.” (§ 16750, subd. (a), added by Stats. 1978, ch. 536, § 1, p. 1693;

see Union Carbide Corp. v. Superior Court, supra, 36 Cal.3d at pp. 19-20

[explaining that § 16750 was amended to repudiate the Illinois Brick bar against


18

At the time, federal antitrust cases were treated as “applicable” (Chicago

Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 315) and
“authoritative” (Shasta Douglas Oil Co. v. Work (1963) 212 Cal.App.2d 618, 625)
on Cartwright Act questions. Consequently, the Legislature feared Illinois Brick‟s
rule would be applied equally to the Cartwright Act. (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 3222 (1977-1978 Reg. Sess.) as introduced Mar. 27,
1978, p. 1 [bill introduced to “prevent a federal case interpretation of the Sherman
Act precluding an indirect purchaser‟s standing to sue in antitrust actions [i.e.,
Illinois Brick] being applied to actions under the Cartwright Act”]; id. at p. 2
[explaining the bill was needed because federal antitrust decisions like Illinois
Brick
were “considered „persuasive‟ in interpreting the provisions of the
Cartwright Act”].)

28

indirect purchaser recovery].)19 Reviewing the legislative history behind this

enactment, we find indications the Legislature fully embraced the Illinois Brick

dissent, including—critically for our purposes—its view that Hanover Shoe,

supra, 392 U.S. 481, was a sound rule of law.

Passage of the Illinois Brick repealer statute was driven by the fear that

indirect purchasers might be stripped of their standing to sue under the Cartwright

Act because, under the reasoning of the Illinois Brick majority, application of the

Hanover Shoe rule under the Cartwright Act could be interpreted as dictating that

outcome. Rejecting that reasoning, the Assembly Judiciary Committee‟s summary

of Assembly Bill No. 3222 cited with approval Illinois Brick‟s “vigorous dissent.”

(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3222 (1977-1978 Reg.

Sess.) as introduced Mar. 27, 1978, p. 1.) It spelled out the dissent‟s critique of

the majority‟s bar on indirect purchaser suits and indicated that as the “dissent

noted . . . the implementation problems cited by the majority[20] could be

addressed by the application of existing procedural requirements, e.g., mandatory

joinder of the direct purchaser, interpleader, parens patriae.” (Assem. Com. on

Judiciary, Analysis of Assem. Bill No. 3222 (1977-1978 Reg. Sess.) as introduced


19

California was not alone in this. To date, 25 states and the District of

Columbia have passed Illinois Brick repealer statutes; numerous others have
interpreted existing state law to allow indirect purchaser suits. (Karon, “Your
Honor, Tear Down that Illinois Brick Wall!” The National Movement Toward
Indirect Purchaser Antitrust Standing and Consumer Justice
(2004) 30 Wm.
Mitchell L.Rev. 1351, 1361-1362.) The Cartwright Act amendment and other like
Illinois Brick repealer statutes have subsequently been upheld against preemption
challenges. (California v. ARC America Corp., supra, 490 U.S. at pp. 105-106.)

20

These implementation problems were those that would arise if indirect

purchaser suits were permitted at the same time that Hanover Shoe‟s bar on a pass-
on defense remained in place. (See Illinois Brick, supra, 431 U.S. at pp. 737-747
(maj. opn.); id. at pp. 761-764 (dis. opn.).)

29

Mar. 27, 1978, pp. 1-2.) The Judiciary Committee‟s analysis thus accepted that

allowing indirect purchaser suits would require courts to reconcile the existence of

such suits with the Hanover Shoe no pass-on defense rule, and cited with approval

the Illinois Brick dissent‟s proposed methods for reconciliation.

Nowhere in this or any other committee report did the Legislature suggest

reconciliation could or should instead occur by repudiating Hanover Shoe under

the Cartwright Act. Rather, the existence of the Hanover Shoe rule was taken as a

given; the relevant debate was whether indirect purchaser suits could be

accommodated in a world where Hanover Shoe was the law. The Legislature, like

the Illinois Brick dissent, apparently preferred procedural devices to a blanket ban

on indirect purchaser suits and passed Assembly Bill No. 3222 to clarify that that

preference was part of existing Cartwright Act law. (See Assem. Com. on

Judiciary, Analysis of Assem. Bill No. 3222 (1977-1978 Reg. Sess.) as introduced

Mar. 27, 1978, p. 2 [measure is “declarative of existing law”].) As with the

passage of Assembly Bill No. 1162 (1977-1978 Reg. Sess.) the previous year, the

Legislature‟s adoption of this amendment indicates acceptance of Hanover Shoe,

supra, 392 U.S. 481.

C. Broader Legislative Policy Considerations

In divining the Legislature‟s intent, we consider as well overarching

legislative goals evident from the Legislature‟s adoption and amendment of the

Cartwright Act over the years.

From its inception, the Cartwright Act has always been focused on the

punishment of violators for the larger purpose of promoting free competition.

(See Stats. 1907, ch. 530, p. 984 [the Cartwright Act is “An act to define trust and

to provide for criminal penalties and civil damages, and punishment of [entities

connected with trusts], and to promote free competition in commerce and all

classes of business in this state”].) It is, like antitrust laws generally, about

30

“ „ “ „the protection of competition, not competitors.‟ ” ‟ ” (Cel-Tech

Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th

163, 186.) Private damage awards are just a tool by which these procompetitive

purposes are carried out: “ „The main purpose of the anti-trust laws is to protect

the public from monopolies and restraints of trade, and the individual right of

action for treble damages is incidental and subordinate to that main purpose.‟ ”

(Milton v. Hudson Sales Corp. (1957) 152 Cal.App.2d 418, 443; see also Bruce’s

Juices v. Amer. Can Co. (1947) 330 U.S. 743, 751 [private damage remedies

provide “a strong and reliable motive for enforcement”]; Cianci v. Superior Court

(1985) 40 Cal.3d 903, 913 [private treble damages are designed “ „to serve as well

the high purpose of enforcing the antitrust laws‟ ”].)

As the Cartwright Act‟s primary concern is with the elimination of

restraints of trade and impairments of the free market, we can and should select

the damages rule most consistent with that focus. The goal of deterring antitrust

violations and concerns that a given private party may receive a windfall are not of

equal weight. The Legislature‟s adoption of a double damages remedy (Stats.

1907, ch. 530, § 11, p. 987), later amended to treble damages (§ 16750, subd. (a)),

demonstrates as much: double and treble damages may overcompensate injured

plaintiffs, but they do so in order to maximize deterrence.

These relative priorities offer useful guidance. In cases where no

consumers have come forward and the choice is between allowing an antitrust

violator to retain the full measure of profits from its violation or requiring their

disgorgement to an innocent direct or intermediary purchaser who paid those

monies and was forced to cope with the violation, the Legislature surely would

prefer the latter, thereby maximizing deterrence and the probability of full

31

disgorgement.21 To allow defendants universally to assert a pass-on defense, even

in cases such as this that present no risk of duplicative recovery, would hamper

enforcement by reducing incentives to sue and police antitrust violations.

As Hanover Shoe itself recognized, a universal pass-on defense would

hamper enforcement in a second way. Allowing a pass-on defense would plunge

parties and courts into minitrials attempting to trace every penny of an initial

overcharge, as well as seeking to measure the further ramifications that an

overcharge might have in the form of lost sales and other tertiary consequences.

(Hanover Shoe, supra, 392 U.S. at pp. 492-493.) “ „[T]he task of disentangling

overlapping damages claims is not lightly to be imposed upon potential antitrust

litigants, or upon the judicial system.‟ ” (Kansas v. UtiliCorp United Inc., supra,

497 U.S. at p. 211.) While the Legislature when it enacted the Illinois Brick

repealer statute imposed that task for the small universe of cases in which multiple

levels of purchasers might sue, rejection of the Hanover Shoe rule would extend

that burden to nearly every case. Accepting the rule, in contrast, streamlines

antitrust trials, renders the process of proving antitrust damages less daunting, and

ultimately enhances enforcement.

Manufacturers raise one overarching policy concern of their own. They

object that Pharmacies simply were not damaged by the alleged price-fixing


21

In a closely related vein, we previously have approved the use of fluid

recovery funds under the Cartwright Act precisely because they might be the only
way to “ensure that the policies of disgorgement or deterrence are realized” and
because Cartwright Act defendants should not be “permitted to retain ill gotten
gains simply because their conduct harmed large numbers of people in small
amounts instead of small numbers of people in large amounts.” (State of
California v. Levi Strauss & Co.
(1986) 41 Cal.3d 460, 472.) The same
considerations are in play here, where rejection of the Hanover Shoe rule would
allow alleged antitrust violators to escape without sanction.

32

conspiracy and the law should not countenance a rule that permits a windfall to

undamaged plaintiffs.

This objection misconceives both the nature of the Hanover Shoe rule in

general and its potential application here. The Hanover Shoe court recognized that

a purchaser forced by a monopoly or price-fixing cartel to pay higher prices might

well be injured by that antitrust violation even in instances where it appeared the

purchaser could pass on some or all of that overcharge downstream to others.

(Hanover Shoe, supra, 392 U.S. at p. 493, fn. 9 [“The mere fact that a price rise

followed an unlawful cost increase does not show that the sufferer of the cost

increase was undamaged.”]; see also Kansas v. UtiliCorp United Inc., supra, 497

U.S. at pp. 208-211.) A purchaser might lose profits or sales, and perhaps market

share as well, vis-à-vis another purchaser/distributor not subject to the same

overcharge. Recognizing the difficulty of proving the precise amount of other

forms of injury, the Hanover Shoe court selected the amount of the initial

overcharge as the measure of damages, not because the initial overpayment was

the only injury, but because it was the most readily measured, and because

measuring damages in this way would, in the long run, best serve the various goals

of antitrust law. (See Hanover Shoe, at pp. 492-494; cf. 2A Areeda et al.,

Antitrust Law (3d ed. 2007) ¶ 395, p. 377 [“[T]he most commonly used measure

of damages, viz., the overcharge, is an ambiguous proxy for the actual damages

suffered.”].)

Some or all of the injuries identified in Hanover Shoe, supra, 392 U.S. 481,

and Kansas v. UtiliCorp United Inc., supra, 497 U.S. 199, are in play here.

Evidence in the record indicates Pharmacies‟ contracts with third party payers

were sometimes negotiable, and rates changed over time. Given an opportunity to

do so, Pharmacies might have been able to prove lost profits on third party payer

sales, that is, that in the absence of overcharges they could have negotiated

33

reimbursement rates that would have increased the gap between their acquisition

costs and reimbursement rates. Evidence in the record also indicated Pharmacies

had seen fewer and fewer cash-paying customers over time and thus had unilateral

pricing discretion for a smaller percentage of their sales. Given an opportunity to

do so, Pharmacies might have been able to prove lost profits (because they could

have maintained the same retail prices for cash-paying customers, while obtaining

their drugs from wholesalers at a lower acquisition cost (see Kansas v. UtiliCorp

United Inc., at p. 209; Hanover Shoe, at p. 493, fn. 9)) or lost sales (due to cash-

paying customers, who are sensitive to higher prices, filling fewer prescriptions

than they would have if both acquisition costs and corresponding retail prices were

lower).22 Finally, Pharmacies alleged the value of their businesses as going

concerns had declined due to lost sales, lost profits, and competition from foreign

distributors not subject to Manufacturers‟ overcharges. As the cross-motions

below focused on the pass-on defense, Pharmacies were not called on to bring

forward evidence in support of this allegation. Of course, the rule of Hanover

Shoe obviates the need for the parties and the trial court to develop and consider

proof of these other forms of injury, not because they do not exist, but because, as

noted, enforcement of the antitrust laws works better if the initial amount of the

overcharge is chosen as a default measure of all the injuries a price-fixing

conspiracy may engender for a given purchaser.23

22

Indeed, the possibility that in this latter scenario Pharmacies did not lose

sales as a result of the alleged price-fixing conspiracy rests on the rather unlikely
proposition that cash-paying customers‟ demand for drugs is wholly inelastic to
price.

23

Manufacturers argue, and the Court of Appeal agreed, that Pharmacies

waived these other forms of injury. The record does not support this claim.
Pharmacies expressly did not concede that they had suffered no other injuries as a
result of the alleged price-fixing conspiracy. Rather, they waived any attempt to


(footnote continued on next page)

34

At its core, Manufacturers‟ argument is that the Cartwright Act should be

read to go beyond the primary consequence of the price conspiracy (the

overcharge) to consider the secondary consequence of the conspiracy (the pass-

on), but that it should blind itself to the tertiary consequences (lost sales, lost

profits, and so on). The Court of Appeal as well implicitly accepted Hanover

Shoe‟s focus on overcharges as the measure of damages and its corresponding

disregard for tertiary consequences, but rejected that case insofar as it disregarded

secondary consequences (the pass-on). But these two aspects of Hanover Shoe go

hand-in-hand: Hanover Shoe found it acceptable to ignore tertiary consequences

only because it also disregarded secondary consequences. Put differently,

Hanover Shoe is not a case about what constitutes injury, but about how to

measure damages. That a purchaser passes on an overcharge does not mean it

lacks for injury or damages. The Hanover Shoe court disregarded all tertiary

damages for measurement purposes because, and only because, it also disregarded

the secondary pass-on for measurement purposes. Conversely, one cannot

rationally admit evidence of a pass-on, under a theory of mitigation, while also

excluding evidence that the pass-on in fact failed to mitigate fully the loss

occasioned by the original overcharge. (See Hanover Shoe, supra, 392 U.S. at

pp. 491-494; B.W.I. Custom Kitchen v. Owens-Illinois, Inc., supra, 191


(footnote continued from previous page)

prove other injuries because those injuries‟ existence and measure were legally
irrelevant under Hanover Shoe, the rule Pharmacies contended applied under the
Cartwright Act. As we agree that Hanover Shoe applies, we need not consider
whether, had we concluded it did not, Pharmacies should have been permitted to
prove injuries other than the overcharge in this case. (Cf. B.W.I. Custom Kitchen
v. Owens-Illinois, Inc.
, supra, 191 Cal.App.3d at p. 1353 [if the pass-on defense
applies, plaintiffs should have the opportunity to prove other injuries].)

35

Cal.App.3d at p. 1353.)24 Instead, the choice in measuring damages is between a

rule that for policy reasons considers only the overcharge (the Hanover Shoe rule)

and one that considers all the consequences of the overcharge.

D. Conclusion

The inferences we draw from the Legislature‟s actions and responses to

developments in federal antitrust law, as well as its actions in enacting and

amending the Cartwright Act over the years, all point in the same direction: For

state antitrust purposes, the Hanover Shoe rule should apply even as indirect

purchasers are allowed to sue. We therefore conclude, under the Cartwright Act

as under federal law, that a pass-on defense generally may not be asserted.


24

We are aware of no statute or case that adopts such an in-between rule, and

Manufacturers have cited none. The irrationality of such a rule is inferable as well
from the United States Supreme Court‟s own precedents. To prevail on a pass-on
defense in those rare instances where it has been permitted under federal law, a
defendant must show the plaintiff could not have raised rates otherwise (Kansas v.
UtiliCorp United Inc.
, supra, 497 U.S. at p. 209; Hanover Shoe, supra, 392 U.S. at
p. 493, fn. 9) and did not lose sales, because the quantity to be purchased was
controlled by a preexisting “cost-plus” contract (Kansas v. UtiliCorp United Inc.,
at p. 218; Illinois Brick, supra, 431 U.S. at p. 736; Hanover Shoe, at p. 494; see
also Hovenkamp, The Indirect Purchaser Rule and Cost-plus Sales (1990) 103
Harv. L.Rev. 1717, 1720 [cost-plus contracts involve both a fixed markup and a
fixed quantity to be delivered]). In essence, Supreme Court precedent recognizes
that a pass-on defense (based on evidence of secondary consequences) is only
presentable in circumstances that foreclose the possibility of tertiary consequences
(lost sales and profits). Only then can one fairly say in defense that the plaintiff
has suffered no injury as the result of an illegal overcharge.


In contrast, in stable markup cases such as this one, where a purchaser‟s

resale price is fixed as a direct function of its acquisition price so as to pass on any
overcharge, the resale market‟s response to that overcharge-inflated resale price is
not fixed and may be different than it would have been in the absence of the
overcharge—and that different response (e.g., lower sales) may injure the plaintiff.

36

Instead, in an antitrust price-fixing case, the presumptive measure of damages is

the amount of the overcharge paid by the plaintiff.

While a pass-on defense is generally precluded, a few instances remain in

which it will still be available. First, Hanover Shoe recognized an exception for

“cost-plus” contracts (Hanover Shoe, supra, 392 U.S. at p. 494) and, given the

Legislature‟s endorsement of Hanover Shoe, that exception would apply to the

Cartwright Act as well. Second, in light of the Illinois Brick repealer statute

(§ 16750, subd. (a)), cases may arise where application of the Hanover Shoe rule

raises the prospect of duplicative recovery. In instances where multiple levels of

purchasers have sued, or where a risk remains they may sue, trial courts and

parties have at their disposal and may employ joinder, interpleader, consolidation,

and like procedural devices to bring all claimants before the court. In such cases,

if damages must be allocated among the various levels of injured purchasers, the

bar on consideration of pass-on evidence must necessarily be lifted; defendants

may assert a pass-on defense as needed to avoid duplication in the recovery of

damages.

We need not address in detail the scope of these two exceptions, for neither

applies here. Manufacturers have not sought to establish that any cost-plus

contract exception would apply. Nor does it appear any wholesaler, consumer, or

parens patriae suits have been filed that might pose a risk of duplicative recovery,

and the statute of limitations for the period at issue has long since expired.

Accordingly, the trial court erred in granting summary judgment for

Manufacturers on the basis of a pass-on defense.

III. The Unfair Competition Law

In a claim closely related to their Cartwright Act claims, Pharmacies also

alleged they had been injured by Manufacturers‟ unfair business practices and

were entitled to relief under the UCL (§ 17200 et seq.). The Court of Appeal

37

affirmed the trial court‟s grant of summary judgment to Manufacturers on the

UCL claims, concluding Pharmacies lacked standing and, additionally, were

ineligible for any relief. We consider each ground in turn.

A. Standing

“The purpose of a standing requirement is to ensure that the courts will

decide only actual controversies between parties with a sufficient interest in the

subject matter of the dispute to press their case with vigor.” (Common Cause v.

Board of Supervisors (1989) 49 Cal.3d 432, 439.) In 2004, the electorate

substantially revised the UCL‟s standing requirement; where once private suits

could be brought by “any person acting for the interests of itself, its members or

the general public” (former § 17204, as amended by Stats. 1993, ch. 926, § 2,

p. 5198), now private standing is limited to any “person who has suffered injury in

fact and has lost money or property” as a result of unfair competition (§ 17204, as

amended by Prop. 64, approved by voters, Gen. Elec. (Nov. 2, 2004) § 3; see

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227-

228.) The intent of this change was to confine standing to those actually injured

by a defendant‟s business practices and to curtail the prior practice of filing suits

on behalf of “ „clients who have not used the defendant‟s product or service,

viewed the defendant‟s advertising, or had any other business dealing with the

defendant . . . .‟ ” (Californians for Disability Rights, at p. 228, quoting Prop. 64,

§ 1, subd. (b)(3).)

While the voters clearly intended to restrict UCL standing, they just as

plainly preserved standing for those who had had business dealings with a

defendant and had lost money or property as a result of the defendant‟s unfair

business practices. (Prop. 64, § 1, subds. (b), (d); see § 17204.) Under that

standard, Pharmacies have established standing. To distribute their

pharmaceuticals, Manufacturers depend on a network of wholesalers and retailers.

38

Pharmacies acted as retailers for Manufacturers‟ drugs and thus had indirect

business dealings with Manufacturers. (See Shersher v. Superior Court (2007)

154 Cal.App.4th 1491, 1499-1500 [indirect purchases may support UCL

standing].) They lost money: the overcharges they paid. (See Hall v. Time Inc.

(2008) 158 Cal.App.4th 847, 854 [§ 17204 standard is satisfied when the plaintiff

has “expended money due to the defendant‟s acts of unfair competition”].)

Finally, that loss was the result of an unfair business practice: Pharmacies paid

more than they otherwise would have because of a price-fixing conspiracy in

violation of state law. The voters‟ intent that under Proposition 64 suits be limited

to those who suffer injury in fact is satisfied here. (See Chattanooga Foundry v.

Atlanta, supra, 203 U.S. at p. 396 [“A person whose property is diminished by a

payment of money wrongfully induced is injured in his property.”].)

While Manufacturers argue that ultimately Pharmacies suffered no

compensable loss because they were able to mitigate fully any injury by passing

on the overcharges, this argument conflates the issue of standing with the issue of

the remedies to which a party may be entitled. That a party may ultimately be

unable to prove a right to damages (or, here, restitution) does not demonstrate that

it lacks standing to argue for its entitlement to them. (See Southern Pac. Co. v.

Darnell-Taenzer Co., supra, 245 U.S. at p. 534 [“The plaintiffs suffered losses . . .

when they [over]paid. Their claim accrued at once in the theory of the law and it

does not inquire into later events.”]; Adams v. Mills, supra, 286 U.S. at p. 407 [“In

contemplation of law the claim for damages arose at the time the extra charge was

paid,” notwithstanding any subsequent reimbursement].) The doctrine of

mitigation, where it applies, is a limitation on liability for damages, not a basis for

extinguishing standing. (See Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066

[“ „The rule of [mitigation of damages] comes into play after a legal wrong has

occurred, but while some damages may still be averted‟ ” (quoting Prosser &

39

Keeton, Torts (5th ed. 1984) § 65, p. 458)].) This is so because mitigation, while

it might diminish a party‟s recovery, does not diminish the party‟s interest in

proving it is entitled to recovery.

Nothing in the text of section 17204 or Proposition 64 suggests the voters

intended to provide otherwise when they remade the UCL‟s standing

requirements. Rather, section 17204 requires only that a party have “lost money

or property,” and Pharmacies indisputably lost money when they paid an allegedly

illegal overcharge. We decline Manufacturers‟ invitation to turn this facially

simple threshold condition into a requirement that plaintiffs prove compensable

loss at the outset.25

B. Remedies

The Court of Appeal affirmed summary judgment on a second, overlapping

ground: Pharmacies were not entitled to any remedy. Pharmacies‟ complaint

seeks two forms of relief: restitution and an injunction. We need consider only

the latter. If a party has standing under section 17204 (as Pharmacies do here), it

may seek injunctive relief under section 17203. (See § 17204 [authorizing without

limitation “[a]ctions for relief pursuant to this chapter” to be brought by parties

who satisfy the provision‟s standing requirement].) Manufacturers‟ papers

identify no obstacle that would preclude Pharmacies from obtaining injunctive

relief if they establish Manufacturers were engaged in an unfair business

practice.26


25

Doing so would render the UCL‟s standing requirement substantially more

stringent than other state unfair competition statutes such as the Cartwright Act,
under which Pharmacies‟ standing is undisputed. Again, we see nothing in the
text or history of Proposition 64 that suggests the voters intended such a result.

26

In this court, Manufacturers argue that Pharmacies have waived reliance on

their complaint‟s request for injunctive relief to defeat summary adjudication.


(footnote continued on next page)

40

The Court of Appeal held Pharmacies were barred from seeking injunctive

relief because, it concluded, they had suffered no monetary loss. To the extent this

holding rests on the conclusion Pharmacies lacked standing under section 17204, it

is erroneous; as discussed ante, Pharmacies have standing. To the extent the

holding rests on the conclusion that even if Pharmacies had standing, they could

not seek injunctive relief unless they could also seek restitution, it similarly is

erroneous. Section 17203 makes injunctive relief “the primary form of relief

available under the UCL,” while restitution is merely “ancillary.” (In re Tobacco

II Cases (2009) 46 Cal.4th 298, 319.) Nothing in the statute‟s language conditions

a court‟s authority to order injunctive relief on the need in a given case to also

order restitution. Accordingly, the right to seek injunctive relief under section

17203 is not dependent on the right to seek restitution; the two are wholly

independent remedies. (See ABC Internat. Traders, Inc. v. Matsushita Electric

Corp. (1997) 14 Cal.4th 1247, 1268 [§ 17203 “contains . . . no language of

condition linking injunctive and restitutionary relief”]; Prata v. Superior Court

(2001) 91 Cal.App.4th 1128, 1139 [plaintiff could pursue injunctive relief even

though restitution was unavailable].)


(footnote continued from previous page)

This argument misplaces the relevant burden. If Manufacturers sought summary
judgment on the ground Pharmacies could obtain no relief on their UCL claim, it
was incumbent on Manufacturers, as the moving party, to show that each form of
relief sought by Pharmacies was unavailable. While Manufacturers attempted that
showing with respect to the request for restitution, their moving papers simply
ignored Pharmacies‟ request for injunctive relief.


In any event, the issue whether the availability of injunctive relief bars

summary adjudication was decided by the Court of Appeal and fully briefed
before us by the parties. It involves a pure issue of law, reviewable de novo. We
may exercise our discretion to consider it. (See People v. Superior Court (Laff)
(2001) 25 Cal.4th 703, 712, fn. 3.)

41

As the claim for injunctive relief is sufficient to preclude summary

judgment, we need not decide, and express no opinion on, the further question

whether Pharmacies may eventually be entitled to restitution.

DISPOSITION

For the foregoing reasons, we reverse the Court of Appeal‟s judgment and

remand for further proceedings not inconsistent with this opinion.













WERDEGAR, J.

WE CONCUR:

GEORGE, C. J.
BAXTER, J.
MORENO, J.
RUVOLO, J.*
ROBIE, J.**
MILLER, J.***













______________________


*

Presiding Justice of the Court of Appeal, First Appellate District, Division

Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

**

Associate Justice of the Court of Appeal, Third Appellate District, assigned

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

***

Associate Justice of the Court of Appeal, Fourth Appellate District,

Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

42



See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Clayworth v. Pfizer, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 165 Cal.App.4th 209
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S166435
Date Filed: July 12, 2010
__________________________________________________________________________________

Court:
Superior
County: Alameda
Judge: Ronald M. Sabraw and Harry R. Sheppard

__________________________________________________________________________________

Attorneys for Appellant:

Alioto Law Firm, Joseph M. Alioto, Joseph M. Alioto, Jr., Theresa D. Moore, Angelina Alioto-Grace,
Thomas P. Pier; Law Offices of John H. Boone, John H. Boone; Foreman & Brasso, Russell F. Brasso;
Law Offices of James M. Dombroski, James M. Dombroski; Law Offices of Jeffery K. Perkins, Jeffrey K.
Perkins; Gary D. McCallister & Associates, Gary D. McCallister, Thomas A. Kelliher, Eric I. Unrein and
Jaime Goldstein for Plaintiffs and Appellants.

Coughlin Stoia Geller Rudman & Robbins, Pamela M. Parker; Schubert Jonckheer Kolbe & Kralowec and
Kimberly A. Kralowec for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and
Appellants.

Zelle Hofmann Voelbel & Mason, Craig C. Corbitt and Henry A. Cirillo for Pharmacists Planning Services,
Inc., as Amicus Curiae on behalf of Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Filice Brown Eassa & McLeod, Peter A. Strotz, Paul R. Johnson, William E. Steimle; Davis Polk &
Wardwell, Ameila Starr, Arthur F. Golden, William J. Fenrich and Daniel J. Schwartz for Defendant and
Respondent AstraZeneca LP.

Winston & Strawn, Tyler M. Paetkau, Nicole P. Dogwill, James F. Hurst, Susan A. Pipal, Matthew J.
Sullivan; Eimer Stahl Klevorn & Solberg, David M. Stahl, J. Cunyon Gordon and Adam Oyenbanji for
Defendant and Respondent Abbott Laboratories.

Gibson, Dunn & Crutcher, Jeffrey T. Thomas and James N. Knight for Defendant and Respondent
Allergan, Inc.










Page 2 – S166435 – counsel continued

Attorneys for Respondent:

Mayer, Brown, Rowe & Maw, Mayer Brown, Donald M. Falk, John Nadolenco, Mack Anderson; Sheppard
Mullin Richter & Hampton, Steven O. Kramer, John P. Stigi III; Hogan & Hartson and Joseph H. Young
for Defendant and Respondent Amgen, Inc.

Covington & Burling, Elizabeth Abigail Brown, Anita F. Stork, Theodore Voorhees, Jr., and Thomas J.
Cosgrove for Defendant and Respondent Boehringer Ingelheim Pharmaceuticals, Inc.

Sedgwick, Detert, Moran & Arnold, Paul J. Riehle, Matthew A. Fischer; Cravath, Swaine & Moore, Evan
R. Chesler, Elizabeth L. Grayer, Jessica Buturla and Jeffrey B. Korn for Defendant and Respondent Bristol-
Myers Squibb Company.

Reed Smith, Michael Diane Floyd, Kirsten J. Handelman; Oppenheimer Wolff & Donnelly, Gary Hansen,
David Graham and Aaron Mills Scott for Defendant and Respondent Eli Lilly & Company.

Irell & Manella, Alexander F. Wiles, John C. Keith; Cleary Gottlieb Steen & Hamilton, George S. Cary,
Sara D. Schotland and David I. Gelfand for Defendant and Respondent GlaxoSmithKline PLC.

Drinker Biddle & Reath, H. Christian L‟Orange, Paul H. Saint-Antoine, Mary E. Kohart, David J. Antczak
and Joanne C. Lewers for Defendant and Respondent Hoffmann-La Roche Inc.

Folger Levin & Kahn, Crowell & Moring, Beatrice Bich-Dao Nguyen, Samuel Ray Miller, Tracy E.
Reichmuth, Cecilia C. Ogbu, Steven E. Wilson; Patterson Belknap Webb & Tyler, William Cavanaugh, Jr.,
and Cecilia B. Loving for Defendants and Respondents Janssen Pharmaceutica Inc., Johnson & Johnson
Health Care Systems, Inc., Ortho Biotech, Inc., and Ortho-McNeil Pharmaceutical, Inc.

Hughes Hubbard & Reed, Rita M. Haeusler, John M. Townsend, Scott H. Christensen, James A. Graffam;
Orrick, Herrington & Sutcliffe, Robert P. Reznick and David Goldstein for Defendant and Respondent
Merck Sharp & Dohme Corp. formerly known as Merck & Co., Inc.

Kaye Scholer, Aton Arbisser, Bryant S. Delgadillo, Saul P. Morgenstern, Karin E. Garvey; Faegre &
Benson, James A. O‟Neal and Kim J. Walker for Defendant and Respondent Novartis Pharmaceuticals
Corporation.

Nossaman, Gunther, Knox & Elliott, Nossaman, Scott DeVries, Katrina June Lee; Dickstein Shapiro, Peter
J. Kadzik, Bernard Nash, Maria Colsey Heard, Milton Marquis and Andres Colin for Defendant and
Respondent Pfizer Inc.

Latham & Watkins, Charles H. Samel, Jennifer A. Carmassi, Margaret M. Zwisler, Steven H. Schulman
and Belinda S. Lee for Defendant and Respondent Pharmaceutical Research and Manufacturers of
America.

Arnold & Porter, Ronald C. Redcay, Douglas L. Wald, Mark R. Merley, Daniel R. Waldman, Anne P.
Davis and Ryan Z. Watts for Defendant and Respondent Wyeth.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph M. Alioto, Jr.
Alioto Law Firm
555 California Street, Thirty-First Floor
San Francisco, CA 94104
(415) 434-8900

William J. Fenrich
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000


Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issues: (1) When plaintiffs pay overcharges on goods or services as a result of the anticompetitive conduct of defendant sellers but recover the overcharges through increased prices at which the goods or services are sold to end users, may defendants assert a "pass-on" defense and argue that plaintiffs were not injured because they did not suffer financial loss as a result of the anticompetitive conduct? (2) Is restitution available under the Unfair Competition Law (Bus. & Prof. Code, 17200 et seq.) to plaintiffs who recovered from third persons the overcharges paid to defendants? (3) When plaintiffs recover from third persons the overcharges paid to defendants, have they suffered actual injury and lost money or property for purposes of establishing standing under the Unfair Competition Law, as amended by Proposition 64?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 07/12/201049 Cal. 4th 758, 233 P.3d 1066, 111 Cal. Rptr. 3d 666S166435Review - Civil Appealsubmitted/opinion due

Parties
1Clayworth, James (Plaintiff and Appellant)
Represented by John H. Boone
Attorney at Law
2193 E. Conchita Way
Palm Springs, CA

2Clayworth, James (Plaintiff and Appellant)
Represented by Russell F. Brasso
Foreman & Brasso
930 Montgomery Street, Suite 600
San Francisco, CA

3Clayworth, James (Plaintiff and Appellant)
Represented by Jeffrey K. Perkins
Attorney at Law
1275 Columbus Avenue, Suite 200
San Francisco, CA

4Clayworth, James (Plaintiff and Appellant)
Represented by Joseph Michael Alioto
Alioto Law Firm
555 California Street, Suite 3160
San Francisco, CA

5Pfizer, Inc. (Defendant and Respondent)
Represented by Peter Kadzik
Dickstein Shapiro, LLP
1825 Eye Street, N.W.
Washington, DC

6Pfizer, Inc. (Defendant and Respondent)
Represented by Katrina June Lee
Nossaman, LLP
50 California Street, 34th Floor
San Francisco, CA

7Abbott Laboratories (Defendant and Respondent)
Represented by Nicole Paula Dogwill
Winston & Strawn, LLP
101 California Street, Suite 3900
San Francisco, CA

8Amgen, Inc. (Defendant and Respondent)
Represented by Steven O. Kramer
Sheppard, Mullin, Richter & Hampton, LLP
333 S. Hope Street, 43rd Floor
Los Angeles, CA

9Allergan, Inc. (Defendant and Respondent)
Represented by Jeffrey T. Thomas
Gibson Dunn & Crutcher
3161 Michelson Drive
Irvine, CA

10Astrazeneca (Defendant and Respondent)
Represented by William J. Fenrich
Davis Polk & Wardwell, LLP
450 Lexington Avenue
New York, NY

11Astrazeneca (Defendant and Respondent)
Represented by Arthur Golden
Davis Polk & Wardwell, LLP
450 Lexington Avenue
New York, NY

12Astrazeneca (Defendant and Respondent)
Represented by Daniel Schwartz
Davis Polk & Wardwell, LLP
450 Lexington Avenue
New York, NY

13Astrazeneca (Defendant and Respondent)
Represented by Paul R. Johnson
Filice Brown et al., LLP
1999 Harrison Street, 18th Floor
Oakland, CA

14Boehringer Ingelheim Pharmaceuticals (Defendant and Respondent)
Represented by Anita Fern Stork
Covington & Burling
One Front Street, 35th Floor
San Francisco, CA

15Bristol-Myers Squibb Company (Defendant and Respondent)
Represented by Paul Jeffrey Riehle
Sedgwick, Detert, Moran & Arnold
One Market Plaza, Stuart Tower
San Francisco, CA

16Eli Lilly & Company (Defendant and Respondent)
Represented by Raymond A. Cardozo
Reed Smith, LLP
101 Second Street, Suite 1800
San Francisco, CA

17GlaxoSmithKline, PLC (Defendant and Respondent)
Represented by George S. Cary
Cleary Gottlieb Steen & Hamilton, LLP
2000 Pennsylvania Avenue, N.W.
Washington, DC

18GlaxoSmithKline, PLC (Defendant and Respondent)
Represented by Alexander F. Wiles
Irell & Manella
1800 Avenue of the Stars, Suite 900
Los Angeles, CA

19Hoffman-La Roche, Inc. (Defendant and Respondent)
Represented by H. Christian L'Orange
Drinker Biddle & Reath, LLP
50 Fremont Street
San Francisco, CA

20Janssen Pharmaceutica, Inc. (Defendant and Respondent)
Represented by Beatrice Bich-Dao Nguyen
Crowell & Morning, LLP
275 Battery Street, 23rd Floor
San Francisco, CA

21Johnson & Johnson Health Care Systems, Inc. (Defendant and Respondent)
Represented by Beatrice Bich-Dao Nguyen
Crowell & Morning, LLP
275 Battery Street, 23rd Floor
San Francisco, CA

22Merck Sharp & Dohme Corporation (Defendant and Respondent)
350 S. Grand Avenue, 36th Floor
Los Angeles, CA 90071

Represented by David Mark Goldstein
Orrick Herrington & Sutcliffe, LLP
405 Howard Street
San Francisco, CA

23Merck Sharp & Dohme Corporation (Defendant and Respondent)
350 S. Grand Avenue, 36th Floor
Los Angeles, CA 90071

Represented by Robert P. Reznick
Orrick Herrington & Sutcliffe, LLP
1152 Fifteenth Street, N.W.
Washington, DC

24Novartis Pharaceuticals Corporated (Defendant and Respondent)
Represented by Aton Arbisser
Kaye Scholer Fierman et al.
1999 Avenue of the Stars, Suite 1600
Los Angeles, CA

25Ortho Biotech, Inc. (Defendant and Respondent)
Represented by Beatrice Bich-Dao Nguyen
Crowell & Morning, LLP
275 Battery Street, 23rd Floor
San Francisco, CA

26Ottho-McNeil, Inc. (Defendant and Respondent)
Represented by Beatrice Bich-Dao Nguyen
Crowell & Morning, LLP
275 Battery Street, 23rd Floor
San Francisco, CA

27Pharmaceutical Research & Manufacturers (Defendant and Respondent)
Represented by Charles Howard Samel
Latham & Watkins, LLP
355 S. Grand Avenue
Los Angeles, CA

28Wyeth (Defendant and Respondent)
Represented by Ronald C. Redcay
Arnold & Porter
777 S. Figueroa Street, 44th Floor
Los Angeles, CA

29Consumer Attorneys of California (Amicus curiae)
Represented by Kimberly Ann Kralowec
The Kralowec Law Group
188 The Embarcadero, Suite 800
San Francisco, CA

30Consumer Attorneys of California (Amicus curiae)
Represented by Pamela M. Parker
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, Suite 1900
San Diego, CA

31Pharmacists Planning Services, Inc. (Amicus curiae)
Represented by Henry Alan Cirillo
Zelle Hofmann Voelbel & Mason, LLP
44 Montgomery Street, 34th Floor
San Francisco, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Dockets
Sep 3 2008Received oversized petition for review
  James Clayworth, et al., appellants by Joseph M. Alioto, Jr., counsel
Sep 3 2008Application filed
 
Sep 5 2008Petition for review filed with permission
  James Clayworth, appellants by Joseph M. Alioto, Jr., counsel
Sep 5 2008Record requested
 
Sep 10 2008Received Court of Appeal record
  file jacket/briefs/loose papers/one box
Sep 15 2008Note: Mail returned (unable to forward)
  counsel, James Nicholas Knight
Sep 25 2008Answer to petition for review filed
  AstraZeneca, et al., respondents Paul Johnson, et al., counsel
Oct 6 2008Reply to answer to petition filed
  James Clayworth et al, appellants Joseph M. Alioto Jr., counsel
Oct 31 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including December 4, 2008, or the date upon which review is either granted or denied.
Nov 19 2008Petition for review granted (civil case)
  Kennard, Chin and Corrigan, JJ., were recused and did not participate. Votes: George, C.J., Werdegar, Moreno, and Miller*, JJ. * Hon. Douglas P. Miller, Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Dec 3 2008Certification of interested entities or persons filed
  James Clayworth, et al., appellants James Dombroski, counsel
Dec 4 2008Certification of interested entities or persons filed
  Abbott Laboratories, respondents Paul Johnson, counsel
Dec 4 2008Application to appear as counsel pro hac vice (granted case)
  Arthur F. Golden, William J. Fenrich and Daniel J. Schwartz of the law firm of Davis Polk & Wardwell; as co-counsel for respondent AstraZeneca LP
Dec 5 2008Received:
  Notice of Errata to Cert. of Int. Parties of appellants
Dec 9 2008Request for extension of time filed
  For appellants to file the opening brief on the merits, to 2-17-09.
Dec 10 2008Application to appear as counsel pro hac vice granted
  The application of Arthur F. Golden, William J. Fenrich and Daniel J. Schwartz of New York for admission pro hac vice to appear on behalf of respondent AstraZenica LP is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Dec 16 2008Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 17, 2009. No further extensions of time are contemplated.
Feb 17 2009Received:
  Appellants' opening brief on the merits, containing oversized exhibits. Submitted to court for approval.
Feb 23 2009Opening brief on the merits filed
  James Clayworth, et al, appellants Joseph M. Alioto, Jr., counsel Brief with oversized exhibits filed with court's permission
Mar 6 2009Request for extension of time filed
  joint request of all respondents for extension of time to file a single answer brief on the merits, to 5-11-09.
Mar 12 2009Extension of time granted
  On joint application of respondents and good cause appearing, it is ordered that the time to serve and file a single answer brief on the merits is extended to and including May 11, 2009.
May 11 2009Answer brief on the merits filed
Defendant and Respondent: Pfizer, Inc.Attorney: Katrina June Lee Defendant and Respondent: Abbott LaboratoriesAttorney: Nicole Paula Dogwill Defendant and Respondent: Amgen, Inc.Attorney: Steven O. Kramer Defendant and Respondent: Allergan, Inc.Attorney: Jeffrey T. Thomas Defendant and Respondent: AstrazenecaAttorney: Paul R. Johnson Defendant and Respondent: Boehringer Ingelheim PharmaceuticalsAttorney: Anita Fern Stork Defendant and Respondent: Bristol-Myers Squibb CompanyAttorney: Paul Jeffrey Riehle Defendant and Respondent: Eli Lilly & CompanyAttorney: Kirsten Joy Handelman Defendant and Respondent: Hoffman-La Roche, Inc.Attorney: H. Christian L'Orange Defendant and Respondent: Johnson & Johnson Health Care Systems, Inc.Attorney: Beatrice Bich-Dao Nguyen Defendant and Respondent: Ortho Biotech, Inc.Attorney: Beatrice Bich-Dao Nguyen Defendant and Respondent: Merck Sharp & Dohme CorporationAttorney: Rita Maria Haeusler Defendant and Respondent: Novartis Pharaceuticals CorporatedAttorney: Aton Arbisser Defendant and Respondent: Pharmaceutical Research & ManufacturersAttorney: Jennifer Anne Carmassi Defendant and Respondent: WyethAttorney: Ronald C. Redcay Defendant and Respondent: GlaxoSmithKline, PLCAttorney: Alexander F. Wiles Defendant and Respondent: Janssen Pharmaceutica, Inc.Attorney: Beatrice Bich-Dao Nguyen Defendant and Respondent: Ottho-McNeil, Inc.Attorney: Beatrice Bich-Dao Nguyen  
May 20 2009Request for extension of time filed
  by James Clayworth,et al., appellants, for an extension until June 22, 2009, to file the reply brief on the merits.
May 28 2009Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file appellants' reply brief on the merits is extended to and including June 22, 2009.
Jun 22 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: Clayworth, JamesAttorney: Joseph Michael Alioto   James Clayworth, et al., appellants Joseph M. Alioto Jr., counsel
Jun 25 2009Notice of substitution of counsel
  for respondent Amgen Sheppard Mullin et al. in place of Mayer Brown LLP
Jul 1 2009Change of contact information filed for:
  Counsel for respondent AstraZeneca LP. Davis Polk & Wardwell LLP, (name change)
Jul 22 2009Application to file amicus curiae brief filed
  Pharmacists Planning Services, Inc. Henry Cirillo, counsel with separate appendix
Jul 22 2009Application to file amicus curiae brief filed
  Consumer Attorneys of California Pamela Parker, Kimberly Kralowek, counsel Motion for Judicial Notice received in conjunction with the amicus brief.
Aug 4 2009Permission to file amicus curiae brief granted
  The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Aug 4 2009Amicus curiae brief filed
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Pamela M. Parker   Consumer Attorneys of California in support of appellants. Pamela Parker, Kimberly Kralowec, counsel
Aug 4 2009Request for judicial notice filed (Grant or AA case)
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Pamela M. Parker   Consumer Attorneys of Calif, amicus curiae
Aug 4 2009Permission to file amicus curiae brief granted
  The application of Pharmacists Planning Services, Inc. for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Aug 4 2009Amicus curiae brief filed
Amicus curiae: Pharmacists Planning Services, Inc.Attorney: Henry Alan Cirillo   Pharmacists Planning Services, Inc. in support of appellants, Henry Cirillo, counsel received one volume of appendix
Aug 25 2009Response to amicus curiae brief filed
Defendant and Respondent: AstrazenecaAttorney: Paul R. Johnson   AstraZeneca, respondent, Paul Johnson, Arthur Golden, counsel
Nov 12 2009Change of contact information filed for:
  Merck Sharp & Dohme Corp. formerly known as Merck & Co., Inc. counsel for defendant and respondent.
Dec 9 2009Change of contact information filed for:
  Beatrice Bich-Dao Nguyen old firm: Folger Levin & Kahn new firm: Crowell & Morning LLP
Jan 27 2010Received additional record
  5 and misc. documentation.
Jan 28 2010Returned record
  the additional record received 1/27/10 has been returned to the 1DCA (misc. documentation that was already before the court).
Feb 18 2010Notice of substitution of counsel
  Defendant and Respondent Merck, Sharp & Dohme Corp. hereby substitutes Orrick, Herrington & Sutcliffe LLP, in place and in stead of Hughes Hubbard & Reed, LLP,
Mar 3 2010Application to appear as counsel pro hac vice (granted case)
  Robert P. Reznick to appear for respondents (to court for permission)
Mar 5 2010Application to appear as counsel pro hac vice granted
  The application of Robert P. Reznick for admission pro hac vice to appear on behalf of Pfizer, Inc.et al. is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Mar 16 2010Order filed
  The order filed on March 5, 2010, granting pro hac vice status to Robert P. Reznick, is amended to read in its entirety: "The application of Robert P. Reznick for admission pro hac vice to appear on behalf of Merck Sharp & Dohme Corp. is hereby granted. (See Cal. Rules of Court, rule 9.40.)" This order is filed nunc pro tunc as of March 5, 2010, due to clerical error.
Mar 18 2010Justice pro tempore assigned
  Hon. Ignazio J. Ruvolo, CA 1/4 (for Kennard, J.) Hon. Ronald B. Robie, CA 3 (for Chin, J.) Hon. Douglas P. Miller, CA 4/2 (for Corrigan, J.)
Mar 30 2010Case ordered on calendar
  to be argued on Monday, May 3, 2010, at 1:30 p.m., in San Francisco
Apr 1 2010Change of contact information filed for:
  Pamela M. Parker counsel for amicus curiae Consumer Attorneys of California. "Notice of Firm Name Change" effective March 31, 2010.
Apr 6 2010Request for judicial notice granted
  The request for judicial notice by amicus curiae Consumer Attorneys of California, filed on August 4, 2009, is granted.
May 3 2010Cause argued and submitted
 
Jul 9 2010Notice of forthcoming opinion posted
  To be filed Monday, July 12, 2010 at 10 a.m.

Briefs
Feb 23 2009Opening brief on the merits filed
 
May 11 2009Answer brief on the merits filed
Defendant and Respondent: Pfizer, Inc.Attorney: Katrina June Lee Defendant and Respondent: Abbott LaboratoriesAttorney: Nicole Paula Dogwill Defendant and Respondent: Amgen, Inc.Attorney: Steven O. Kramer Defendant and Respondent: Allergan, Inc.Attorney: Jeffrey T. Thomas Defendant and Respondent: AstrazenecaAttorney: Paul R. Johnson Defendant and Respondent: Boehringer Ingelheim PharmaceuticalsAttorney: Anita Fern Stork Defendant and Respondent: Bristol-Myers Squibb CompanyAttorney: Paul Jeffrey Riehle Defendant and Respondent: Eli Lilly & CompanyAttorney: Kirsten Joy Handelman Defendant and Respondent: Hoffman-La Roche, Inc.Attorney: H. Christian L'Orange Defendant and Respondent: Johnson & Johnson Health Care Systems, Inc.Attorney: Beatrice Bich-Dao Nguyen Defendant and Respondent: Ortho Biotech, Inc.Attorney: Beatrice Bich-Dao Nguyen Defendant and Respondent: Merck Sharp & Dohme CorporationAttorney: Rita Maria Haeusler Defendant and Respondent: Novartis Pharaceuticals CorporatedAttorney: Aton Arbisser Defendant and Respondent: Pharmaceutical Research & ManufacturersAttorney: Jennifer Anne Carmassi Defendant and Respondent: WyethAttorney: Ronald C. Redcay Defendant and Respondent: GlaxoSmithKline, PLCAttorney: Alexander F. Wiles Defendant and Respondent: Janssen Pharmaceutica, Inc.Attorney: Beatrice Bich-Dao Nguyen Defendant and Respondent: Ottho-McNeil, Inc.Attorney: Beatrice Bich-Dao Nguyen  
Jun 22 2009Reply brief filed (case fully briefed)
Plaintiff and Appellant: Clayworth, JamesAttorney: Joseph Michael Alioto  
Aug 4 2009Amicus curiae brief filed
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Pamela M. Parker  
Aug 4 2009Amicus curiae brief filed
Amicus curiae: Pharmacists Planning Services, Inc.Attorney: Henry Alan Cirillo  
Aug 25 2009Response to amicus curiae brief filed
Defendant and Respondent: AstrazenecaAttorney: Paul R. Johnson  
Brief Downloads
application/pdf icon
1_appellants_petition_for_review.pdf (5157857 bytes) - Appellants' Petition for Review
application/pdf icon
2_respondents_answer_to_petition_for_review.pdf (1424201 bytes) - Respondents' Answer to Petition for Review
application/pdf icon
3_appellants_reply_to_answer_to_petition_for_review.pdf (1621362 bytes) - Appellants' Reply to Answer to Petition for Review
application/pdf icon
4_appellants_opening_brief_on_the_merits.pdf (5969082 bytes) - Appellants' Opening Brief on the Merits
application/pdf icon
5_respondents_answer_brief_on_the_merits.pdf (3483342 bytes) - Respondents' Answer Brief on the Merits
application/pdf icon
6_appellants_reply_brief_on_the_merits.pdf (1919642 bytes) - Appellants' Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by justin gonzales

Facts:
The plaintiffs are retail pharmacies located in California. The plaintiffs sued the defendants, who are, with two exceptions, companies that manufacture, market, and/or distribute brand-name pharmaceutical products throughout the United States, under section 1 of the Cartwright Act and the unfair competition law for unlawfully conspiring to fix the prices of their brand-name pharmaceuticals in the United States market.

Defendants sell their drugs to wholesalers at a price referred to as the wholesale acquisition cost. In turn, various independent entities use the wholesale acquisition cost to calculate and publish benchmark drug prices, termed the average wholesale price, for use in the industry. Wholesalers resell the drugs to plaintiffs at prices based on a percentage of the average wholesale price. Plaintiffs then sell the drugs to two groups of consumers: (1) those with third party insurance or a drug benefit plan, and (2) uninsured consumers. For the first group, plaintiffs have no price-setting discretion; while for the second group, plaintiffs establish the retail prices unilaterally. Over time, however, the first group has come to compromise the bulk of the plaintiffs’ customers, with the consequence that the degree of price-setting discretion by the plaintiffs has fallen and plaintiffs have largely passed on any alleged price overcharges.

Plaintiffs allege that defendants have agreed to set artificially high prices for their products, and have acted in concert to restrain reimportation of their lower-priced foreign drugs into the United States and to restrict price competition from generics. As a result, plaintiffs allege that defendants were able to maintain prices for their drugs at levels 50 to 400 percent higher than for the same drugs sold outside the United States. In turn, plaintiffs were forced to pay the overcharge between the conspiracy-inflated prices set by defendants and the prices plaintiffs would have paid in a competitive market.

Procedural History:
Plaintiffs filed suit under section 1 of the Cartwright Act and unfair competition law. Defendants denied plaintiffs’ allegations and asserted as an affirmative defense that plaintiffs passed on any alleged overcharge to third parties and therefore did not suffer a compensable injury. Plaintiffs filed a motion for summary adjudication of defendants’ pass-on defense. Defendants responded with a cross-motion for summary judgment. Trial court granted defendants’ summary judgment cross-motion and denied as moot plaintiffs’ summary adjudication motion. The Court of Appeals affirmed.

Issue:
Whether under the Cartwright Act an antitrust defendant can defeat liability by asserting a pass-on defense.

Holding:
No, generally, an antitrust defendant cannot defeat liability under the Cartwright Act by asserting a pass-on defense. Under the Cartwright Act, antitrust violators typically cannot assert as a defense that any illegal overcharges have been passed on by a plaintiff direct purchaser to indirect purchasers, with certain exceptions. Such a defense is still available for “cost-plus” contracts and where the defense is needed to avoid duplication in the recovery of damages.

Reasoning:
Looking first to the text of the Cartwright Act, the Court found the words of the statute themselves did not dictate whether a pass-on defense should be available or not under the Cartwright Act. The Cartwright Act authorizes anyone “injured in his or her business or property” by actions forbidden under the Act to recover three times the “damages sustained.” CAL. BUS. & PROF. CODE § 16750(a). Thus, while the text does allow recovery of damages, it does not state how the injury or damages are to be quantified and thus does not provide a conclusion to the question of whether a pass-on defense is available.

Next, the Court looked at whether a commonly understood meaning of the text existed to guide its interpretation but determined that no commonly understood meaning existed at the time the Cartwright Act was passed. Looking at the legislative history and contemporaneous decisions, it could not find a consensus for how to read the phrase “damages by him sustained.”

Finally, the Court examined subsequent amendments to related sections of the Cartwright Act and the objectives of the Cartwright Act and concluded these sources and considerations lead to the conclusion that a pass-on defense should not be generally be available under the Cartwright Act. Within months of the Illinois Brick Co. v. Illinois decision, 431 U.S. 720 (1977), the California legislature introduced and unanimously passed in both houses a bill preventing Illinois Brick’s ban on indirect purchaser suits from having any effect on judicial interpretation of the Cartwright Act. Neither the bill nor any committee reports, however, suggested that this legislation in anyway repudiated Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968), under the Cartwright Act, which held antitrust violators could not ordinarily assert a pass-on defense. Consequently, amendments to the Cartwright Act left intact the ability for indirect purchasers and those passing on any overcharges to bring suit for antitrust violations, but denied alleged antitrust violators the right to use a pass-on defense. Moreover, the Court found such an interpretation to be in accord with the objectives of the Cartwright Act: maximizing effective deterrence of antitrust violations, enforcing the state’s antitrust laws against those violations that do occur, and ensuring disgorgement of any ill-gotten proceeds. By accepting the Hanover Shoe rule, the Court streamlines antitrust trials, renders the process of proving antitrust damages less daunting, and ultimately enhances enforcement.

Tags:
antitrust, price fixing, overcharge, Cartwright Act, unfair competition law, pass-on defense, plaintiff direct purchaser, Illinois Brick, Hanover Shoe rule