The opinion of the court was delivered by: Glasser, United States Senior District Judge
The Designated Defendants Ciba-Geigy Corporation and G.D. Searle & Co. in this antitrust action have moved for summary judgment as to the Designated Plaintiffs' claims for declaratory and injunctive relief pursuant to Section 16 of the Clayton Act, 15 U.S.C. § 26. The Designated Defendants argue that the prior order of this Court, issued on January 25, 2007, see Drug Mart Pharm. Corp. v. American Home Prods. Corp., 472 F. Supp. 2d 385 (E.D.N.Y. 2007) ("January 25 Order"), which granted summary judgment in favor of the defendants as to the Designated Plaintiffs' claims for treble damages under Section 4 of the Clayton Act, 15 U.S.C. § 15, and which held that the Designated Plaintiffs had failed to establish a genuine issue of material fact as to the existence of an actual antitrust injury, compels the conclusion that the Designated Plaintiffs' claims for equitable relief under Section 16 must likewise fail. For the reasons stated below, the Designated Defendants' motion for summary judgment as to the Section 16 claim is granted.
Also pending is the Designated Plaintiffs' motion to alter or amend the January 25 Order, which incorrectly stated that the Designated Plaintiffs are not seeking equitable or injunctive relief. For the reasons stated below, that motion is granted.
The complicated facts of this case have been set forth in numerous prior opinions of this and other courts, familiarity with which is assumed. See January 25 Order, 472 F. Supp. 2d at 390 (citing cases). The facts relevant to this motion are relatively simple. The Designated Plaintiffs are a group of seventeen retail pharmacies from fourteen states, who allege, inter alia, that the Designated Defendants, manufacturers of brand-name prescription drugs ("BNPDs"), have violated Section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a), by engaging in illegal price discrimination in the form of discounts, rebates, and other "charge-back" benefits offered to certain favored purchasers, such as health maintenance organizations and mail-order pharmacies, but not to the Designated Plaintiffs. In 2005, the Designated Defendants filed a motion seeking summary judgment on the ground that the Designated Plaintiffs had failed to set forth a cognizable theory of damages under the Robinson-Patman Act and were therefore unable to establish the element of antitrust injury, as is required to obtain damages under Section 4 of the Clayton Act.*fn1 In opposition to the Designated Defendants' motion, the Designated Plaintiffs relied on their 1995 Expert Report, which identified four "components" of the Designated Plaintiffs' actual damages:
1) Lost profits on actual sales where the profits were lost as a result of the price discrimination; 2) Lost profits on lost sales of BNPDs where the sales and profits were lost as a result of the price discrimination; 3) Lost profits on lost sales of products other than BNPDs ("lost ancillary profits") where the sales and profits were lost as a result of the price discrimination; and 4) special damages resulting from the price discrimination.
January 25 Order, 472 F. Supp. 2d at 421 (quoting Declaration of Robert Grass ("Grass Decl."), dated January 21, 2005 (docket no. 464), Ex. 3 at 144). The Designated Plaintiffs also argued that certain statements contained in depositions and affidavits submitted in opposition to the Designated Defendants' motion offered further evidence of their damages, but the Court declined to consider that extraneous evidence, finding that because the plaintiffs stated "in responses to interrogatories served in 1995. . . that the amount of sales and profits that they allegedly lost because of defendants' price discrimination would be the 'subject of an expert report,'" they were limited to the theories of damages contained in that report in opposing the defendants' motion. January 25 Order, 472 F. Supp. at 430 (quoting Grass Decl. Ex. 2). The Court granted summary judgment to the defendants, holding with respect to each of the Designated Plaintiffs' theories of injury that the Designated Plaintiffs failed to allege an antitrust injury cognizable under Section 4 of the Clayton Act or failed to offer sufficient empirical evidence in support of a cognizable theory to create an issue of fact as to the Designated Plaintiffs' actual injury.
In the Rule 56 motions decided in the January 25 Order, the Designated Defendants did not move for summary judgment as to the Designated Plaintiffs' claims for equitable relief pursuant to Section 16 of the Clayton Act; indeed, the January 25 Order expressed the Court's erroneous belief that the Designated Plaintiffs sought only monetary damages in this case. 472 F. Supp. 2d at 422 n. 42. Shortly after the January 25 Order was issued, the Designated Plaintiffs moved pursuant to Federal Rule of Civil Procedure 59(e) and several other rules of procedure to alter or amend that erroneous statement, noting that "[t]he Complaints filed by the 17 Representative Plaintiffs seek not only monetary damages, but also declaratory and injunctive relief." Representative Plaintiffs' Memorandum of Law in Support of Their Motion Pursuant to Fed. R. Civ. P. 59(e), Fed. R. Civ. P. 60(a), Fed. R. Civ. P. 60(b) and Local Civil Rule 6.3 to Correct a Mistake or Error in, or in the Alternative, to Alter or Amend, a Judgment or Order (docket no. 526), at 1-2.*fn2 Additionally, in a letter to this Court dated March 1, 2007 (docket no. 532), and a letter to Magistrate Judge Gold dated March 13, 2007 (docket no. 533), the Designated Plaintiffs sought leave to conduct "focused discovery" regarding the state of the BNPD market from 1995 through 2007 for the purpose of developing their case for injunctive relief prior to trial. The defendants responded to these letters in a letter to the Court dated March 16, 2007 (docket no. 534), in which they asserted that the plaintiffs "erroneously assume that injunctive and declaratory relief remain open to them in these cases," arguing that "[t]he Court's January 25 Order precludes such relief. . . ." Id. at 1. Reviewing the January 25 Order's holding that the plaintiffs failed to present evidence of actual antitrust injury, the defendants argued that "[h]aving failed to show that they suffered antitrust injury in support of their Robinson-Patman Act claims, or any causal connection between Defendants' conduct and the purported harm, Plaintiffs a fortiori cannot show the threat of antitrust injury necessary to support an injunction." Id. at 2. The Designated Defendants therefore asked leave of the Court to move for summary judgment as to the Designated Plaintiffs' claims for equitable relief prior to a decision being made on the Designated Plaintiffs' request for additional discovery or any further case management decisions. Such leave was granted, and this motion was filed on April 10, 2007.
This case presents a complicated question of statutory interpretation, the complexities of which are not fully addressed by either party in the briefing submitted to the Court. The fundamental question this Court is called upon to answer is whether an antitrust plaintiff, having failed to establish the element of actual antitrust injury for purposes of a claim for treble damages under Section 4 of the Clayton Act, can nevertheless maintain an action for injunctive relief under Section 16, on the premise that the same purportedly anticompetitive conduct which has been determined not to have harmed the plaintiff might nevertheless create a risk of threatened antitrust injury in the future. While the Court ultimately concludes that, at least in the factual situation presented by this case, that question must be answered in the negative, an examination of the historical development of the antitrust laws and a survey of the controlling case law is necessary to place that answer into a properly limited and qualified context.
1. The History of Sections 4 and 16
Section 4 of the Clayton Act states that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States. . . [and] shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee," 15 U.S.C. § 15, while Section 16 states that "[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief. . . against threatened loss or damage by a violation of the antitrust laws. . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity. . . ." 15 U.S.C. § 26. By its express terms, Section 4 contemplates a monetary award only to plaintiffs who have already sustained actual damages, while Section 16 permits a plaintiff to obtain an injunction prior to sustaining actual injury by demonstrating that the defendant's anticipated violation of the antitrust laws threatens to cause injury to the plaintiff if consummated. This feature of Section 16, permitting equitable relief prior to the occurrence of actual injury, was expressly noted in the legislative history of Section 16 as an intended benefit of the legislation.
The House Report on that legislation recognized that
[u]nder [the law in effect at the time], a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law.
H.R. Rep. No. 627, 63d Cong., 2d Sess., pt. 1, p. 2 (1914), quoted in Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 112 (1986). Representative McGillicuddy, a member of the House Judiciary Committee, said the following in reference to the ...