UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
June 1, 1971
In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions
Lord, D. J.
The opinion of the court was delivered by: LORD
Miscellaneous Order No. 71-12
Memorandum and Order Denying Defendants' Motion To Dismiss Claims of Insurers and Others Similarly Situated
LORD, D. J.
Following discussions in New York and Minneapolis on January 14-15, 1971 and February 9-10, 1971, regarding "standing," "remoteness" and "passing-on," the court established a schedule for filing and briefing motions to dismiss, and motions for summary judgment, or partial summary judgment, in several categories of cases. (See Miscellaneous Order 71-6). It was the court's belief that the issues of "standing" and "remoteness" were legal ones involving essentially undisputable facts and therefore ripe for decision. However, all agreed that the so called "passing-on" defense required further discovery and was not appropriate for disposition at that time.
Comprehensive briefs were filed by all interested parties and the motions were argued in San Francisco on March 16, 1971. With one exception
the court concluded that a ruling on the merits of defendants' motions cannot be made at this time.
The main thrust of defendants' argument seems to be that since the Hanover Shoe
doctrine precludes the use of a "pass-on" defense against a seller in a chain of distribution unless the sale was pursuant to a "cost plus" or other fixed mark-up arrangement, a subsequent purchaser in the chain of distribution is too remote or lacks standing unless he purchased under a "cost plus" type contract.
However, as the Court of Appeals pointed out in the settling cases :
There are then several obvious distinctions between the principles laid down in Hanover Shoe and the present case. First, the passing-on doctrine is not here being used as a defense to permit the defendants to escape liability, but rather as an attempt to award damages, insofar as is possible, to those who ultimately paid higher prices as a result of the collusive pricing, and to avoid giving a windfall gain to those who rather clearly were not injured. Secondly, to permit the use of a doctrine in the present circumstances will not act to limit or frustrate private treble-damage claims, but will, if anything, do the opposite.
have both confessed an inability to reconcile the standing and remoteness cases. The Eighth Circuit, recognizing the interrelationship between "remoteness" and "pass-on" recently concluded that one should not be decided without the other and that "judicial resolution of these complex issues must await the ripe adjudication of the factual context in which they arise."
This court believes that the resolution of the standing/remoteness/pass-on issues as they relate to this litigation must also await further development of the factual context in which they arise.
It Is Therefore Ordered that defendants' motions for summary judgment or dismissal as to the following actions are hereby denied without prejudice to the right of the defendants to refile similar motions at a later time:
Retail Clerks Local 770, et al. v. Chas. Pfizer & Co.,
Inc., et al. (N.D. Cal., No. C-70-1681) 70 Civ. 3738
Hoffa Medical Center v. American Cyanamid, et al. 69 Civ. 5632
Union Health Center of New York v. Chas. Pfizer & Co.,
Inc., et al. 69 Civ. 2838
Edward Swayduck v. Chas. Pfizer & Co., Inc., et al. 69 Civ. 5154
Teamsters Security Fund of North Carolina v. Chas. Pfizer
& Co., Inc., et al. (N.D. Cal., No. 51010) 69 Civ. 1629
Valley Clerks Trust Fund v. Chas. Pfizer & Co., Inc., et
al. (N.D. Cal., No. C-70-1294-LHB) 70 Civ. 3157
San Francisco Culinary, Bartenders & Service Employees
Welfare Fund v. Chas. Pfizer & Co., Inc., et al. (N.D.
Cal., No. C-70-1295-ACW) 70 Civ. 3158
Bakers Health & Welfare Fund v. Chas. Pfizer & Co., Inc.,
et al. (N.D. Cal., No. C-70-1680-ACW) 70 Civ. 3737
Building Service Union Health & Welfare Trust Fund v. Chas.
Pfizer & Co., Inc., et al. (N.D. Cal., No. 51523) 69 Civ. 3220
Associated Life Insurance Co. v. Chas. Pfizer & Co., Inc.,
et al. (N.D. Ill., No. 70 C 368) 70 Civ. 1094
California Physicians' Service v. Chas. Pfizer & Co., Inc.,
et al. 69 Civ. 4746
Aetna Life Insurance v. Chas. Pfizer & Co., Inc., et al. 69 Civ. 3294
Group Health Cooperative of Puget Sound v. Chas. Pfizer &
Co., Inc., et al. (W.D. Wash., No. 8222) 69 Civ. 3195
Mutual of Omaha Insurance Co., v. American Cyanamid Co., et
al. (D. Minn., 4-71-Civil-6) 71 Civ. 570