AMERISOURCEBERGEN CORPORATION V DIALYSIST WEST, INC.

Filing 920060424

Opinion

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AMERISOURCEBERGEN CORPORATION, a New Jersey corporation, dba Bergen Brunswig Corporation, aka BBC; AMERISOURCEBERGEN DRUG CORPORATION; MEDICAL INITIATIVES, INC., aka Oncology Supply; ASD SPECIALTY HEALTHCARE, INC., Plaintiffs-Appellants, v. DIALYSIST WEST, INC., an Arizona corporation, Defendant-Appellee, v. AMERX INC., a Florida corporation; CSG DISTRIBUTORS, a Tennessee company; PREMIER MEDICAL DISTRIBUTORS, INC., Third-party-Defendants. No. 04-15595 D.C. No. CV-02-01472-JWS District of Arizona, Phoenix ORDER AMENDING OPINION Filed April 24, 2006 Before: Jerome Farris, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges. ORDER The opinion filed on March 22, 2006 is amended as follows: on slip opinion page 3046, lines 10-16, the following sentences are deleted: "AmerisourceBergen contends, however that the contracts for sale of Epogen and other drugs 4563 4564 AMERISOURCEBERGEN v. DIALYSIST WEST were not separate contracts. Because the Vendor Agreement signed by Dialysist West permits AmerisourceBergen to return any goods to Dialysist West for "full credit," AmerisourceBergen believes it was justified in applying the credit it held for the counterfeit Epogen purchases against its outstanding debts." The following sentences are added on slip opinion page 3046, at line 10: "AmerisourceBergen concedes that the contracts for sale of Epogen and the other drugs were separate contracts. But because the Vendor Agreement signed by Dialysist West permits AmerisourceBergen to return any goods to Dialysist West for "full credit," AmerisourceBergen believes it was justified in applying the credit it held for the counterfeit Epogen purchases against its outstanding debts." PRINTED FOR ADMINISTRATIVE OFFICE--U.S. COURTS BY THOMSON/WEST--SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted 2006 Thomson/West.

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