Drug Mart Pharmacy Corporation et al v. American Home Products Corporation et al

Filing 703

MEMORANDUM AND OPINION: For the reasons stated in the attached Memorandum & Order, defendants' motion for summary judgment is granted. So Ordered by Chief Magistrate Steven M. Gold on 8/16/2012. (O'Connor, Erin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DRUG MART PHARMACY CORP., et al.,
:
:
Plaintiffs,
:
:
-against:
:
AMERICAN HOME PRODUCTS CORP., et al. ,
:
:
Defendants.
:
:
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GOLD, STEVEN M., U.S.M.J.:

MEMORANDUM &
ORDER
93-CV-5148 (ILG)

Now pending before the Court is a motion for summary judgment brought by defendants
seeking dismissal of Robinson-Patman Act claims asserted by twenty-eight plaintiffs. Docket
Entry 677. The parties have consented to have defendants’ motion decided by the undersigned
Magistrate Judge. Docket Entry 683. For the reasons stated below, defendants’ motion is
granted.
This complex, long-pending antitrust litigation has been the subject of numerous written
decisions by various courts. A sampling of those decisions is listed in Drug Mart Pharmacy
Corp. v. Am. Home Prods. Corp., 472 F. Supp. 2d 385, 390 (E.D.N.Y. 2007). 1 Accordingly,
familiarity with the facts and procedural background of the case is presumed, and is reviewed
here only briefly.
In short, plaintiffs are a number of individually-owned retail pharmacies. 2 Plaintiffs
allege that defendants, five manufacturers of brand name prescription drugs (“BNPDs”), offered

1

See also Drug Mart Pharmacy Corp. v. Am. Home Prods. Corp., 378 F. Supp. 2d 134 (E.D.N.Y. 2005); In re
Brand-Name Prescription Drugs Antitrust Litig., 264 F. Supp. 2d 1372 (Jud. Pan. Mult. Lit. 2003); In re Brand
Name Prescription Drugs Antitrust Litig., 123 F.3d 599 (7th Cir. 1997); In re Brand Name Prescription Drugs
Antitrust Litig., 1994 WL 240537 (N.D. Ill. May 27, 1994).
2
Plaintiffs originally consisted of 3,700 retail pharmacies operating at 3,987 locations. Def. R.56.1 ¶ 9, Docket
Entry 679; Pl. R.56.1 ¶ 9, Docket Entry 685. As of March, 2010, 894 retail pharmacies remained as plaintiffs

discounts and rebates to plaintiffs’ competitors but not to plaintiffs, and that this constitutes price
discrimination in violation of the Robinson-Patman Act.
BACKGROUND
A. Early Procedural History
At the beginning of this case, a variety of plaintiffs including chain stores as well as
individually-owned retail pharmacies brought antitrust claims under both the Robinson-Patman
Act, 15 U.S.C. § 13, and the Sherman Act, 15 U.S.C. § 1. The case was consolidated for all
pretrial purposes as a multi-district litigation in the Northern District of Illinois. Def. R.56.1
¶ 10. See also In re Brand-Name Prescription Drugs Antitrust Litig., 264 F. Supp. 2d 1372 (Jud.
Pan. Mult. Lit. 2003).
Each of the chain store plaintiffs settled its claims years ago. A Sherman Act class of
individually-owned retail pharmacies was certified in 1994. In re Brand-Name Prescription
Drugs Antitrust Litig., 264 F. Supp. 2d at 1374. The plaintiffs in this action opted out of the
class. The Sherman Act class plaintiffs settled their claims against several of the defendants and
proceeded to trial before United States District Judge Kocoras in the Northern District of Illinois
against the others. The Court entered a directed verdict in defendants’ favor after trial. In re
Brand Name Prescription Drugs Antitrust Litig., 1999 WL 639173, at *2 (N.D. Ill. Aug. 17,
1999); In re Brand Name Prescription Drugs Antitrust Litig., 1999 WL 33889 (N.D. Ill. Jan. 19,
1999) (granting defendants judgment as a matter of law).

pursuing damages. Docket Entry 615. In June 2010, plaintiffs stipulated to the dismissal of claims by 3,101
pharmacy locations. Docket Entry 626.
The five defendants remaining in the action are (1) Abbott Laboratories, (2) Johnson & Johnson, (3) Novartis
Pharmaceuticals Corp. (formerly Ciba-Geigy and Sandoz), (4) Pfizer Inc. (including two indirect wholly-owned
subsidiaries: G. D. Searle LLC, formerly known as G. D. Searle & Co., and Pharmacia & Upjohn Company LLC,
formerly known as Pharmacia & Upjohn Company), and (5) Rhone-Poulenc Rorer, Inc. (“RPR”) and Hoechst
Marion Roussel, Inc., (“HMR”), whose parent companies merged in 1999. Def. Mem. 1 n.1, Docket Entry 678.
2

On April 21, 1995, Judge Kocoras issued a case management order referred to as Pretrial
Order No. 5 (“PTO 5”). This Order called upon the parties to identify twenty of the retail
pharmacies that had opted out of the class action and five of the defendants to serve as
representative or “Designated Parties.” Pursuant to the terms of the Order, discovery was stayed
as to the non-designated parties until the conclusion of the first trial of a designated plaintiff’s
Robinson-Patman claim; upon the expiration of the stay, the non-designated plaintiffs would
have eight months to complete fact and expert discovery on their Robinson-Patman Act claims.
PTO 5 ¶ 5.
Both the Sherman and Robinson-Patman Act claims of the individual retail pharmacies
that opted out of the class were remanded and consolidated before this Court sometime after the
entry of Pretrial Order No. 5. In 2005, the parties settled their Sherman Act claims, leaving only
plaintiffs’ Robinson-Patman claims pending. Docket Entry 519. Apparently anticipating this
possibility, Pretrial Order Number 5 provides that any damages recovered by a plaintiff who
proceeds to trial on a Robinson-Patman Act claim must be reduced by any portion of those
damages previously recovered in connection with the resolution of the plaintiffs’ Sherman Act
claims. PTO 5 ¶ 11.
B. Dismissal of Designated Plaintiffs’ Robinson-Patman Act Claims
When the claims of the individual retail pharmacies were first transferred here, discovery
had proceeded, as provided by PTO 5, only with respect to the designated parties. Once the
Sherman Act claims of all of the remaining parties were settled, the designated defendants
moved for summary judgment on the Robinson-Patman Act claims of the designated plaintiffs.
In 2007, Senior United States District Judge I. Leo Glasser granted defendants’ motion
for summary judgment “relating to the [seventeen] representative plaintiffs’ claims under the

3

Robinson-Patman Act . . . on the ground that plaintiffs have failed to show they are entitled to
damages.” Drug Mart Pharmacy Corp. v. Am. Home Prods. Corp., 472 F. Supp. 2d 385, 420-21
(E.D.N.Y. 2007) (“Drug Mart II”). 3 At that time, the designated plaintiffs were relying on an
expert report that calculated damages based in part on the fact that plaintiffs paid more for
BNPDs than favored purchasers did, and on generalized evidence indicating that the share of the
market for BNPDs served by favored purchasers had grown while at the same time individual
retail pharmacies had lost market share. Judge Glasser rejected plaintiffs’ reliance on the fact of
a price differential “[b]ecause damages may not be based on the pricing margin caused by the
discrimination, but [should be calculated based] on the estimates of plaintiffs’ sales absent the
discrimination.” Id. at 427. With respect to plaintiffs’ evidence of lost market share, Judge
Glasser held that “[u]nder the Robinson-Patman Act, plaintiffs must carry their burden of proof
to demonstrate that they individually suffered damages. . . . [H]ere, plaintiffs have failed to
proffer evidence that specific plaintiff pharmacies lost sales of BNPDs manufactured by
defendants to any specific favored purchaser.” Id. at 429 (emphasis added).
Having obtained summary judgment with respect to damages, defendants next sought
dismissal of the designated plaintiffs’ claims for injunctive relief. Judge Glasser granted
defendants’ motion for summary judgment, reasoning that, under the particular circumstances
presented here, plaintiffs’ failure to establish damages was fatal to their injunctive relief claims.
Drug Mart Pharmacy Corp. v. Am. Home Prods. Corp., 2007 WL 4526618 (E.D.N.Y. Dec. 20,
2007) (“Drug Mart III”).
C. Discovery Proceedings Culminating in the Pending Motion
Pretrial Order No. 5 provides that judgments entered after trial or other dispositions of the
claims of designated parties do not have res judicata or collateral estoppel effect on the claims of
3

“Drug Mart I,” a decision not directly relevant here, is reported at 378 F. Supp. 2d 134 (E.D.N.Y. 2005).
4

non-designated parties. PTO 5 ¶ 12. Thus, while Judge Glasser’s rulings with respect to the
designated plaintiffs are uniquely relevant and highly persuasive precedent, they neither bar nor
resolve the claims of the non-designated plaintiffs.
After Judge Glasser dismissed the claims of the designated parties, approximately 3,700
individual retail pharmacy plaintiffs remained. Def. R.56.1 ¶ 19. Confronted with Judge
Glasser’s decision, these remaining plaintiffs devised a plan to gather evidence in discovery that
might show “that specific plaintiff pharmacies lost sales of BNPDs manufactured by defendants
to any specific favored purchaser.” Drug Mart II, 472 F. Supp. 2d at 429. Pursuant to this plan,
which came to be known as the “matching process,” plaintiffs compiled lists of specific BNPD
customers who no longer purchased drugs from them, and then searched the databases of nonparty favored purchasers (and one favored purchaser who is a party) to see whether those same
individuals were obtaining the same BNPDs from those favored purchasers. The significance of
the data developed by the matching process is at the heart of the pending summary judgment
motion.
The precise contours of the matching process evolved over time. Indeed, although as
noted above Pretrial Order No. 5 contemplated that the non-designated parties would complete
fact and expert discovery within eight months, the matching process took considerably longer
than that; the process was not completed until May, 2011. Docket Entry 666-1 ¶ 3.
The first conference at which the matching process was discussed in any detail was held
on March 4, 2009. At that time, I pressed plaintiffs to explain how they intended to prove that
they sustained damages or injury as a result of defendants’ price discrimination:
[I]f you’re not going to have a patient-specific theory, then I think you
need to say so, live with it, and let the defendants test it if they want to. If
you are going to have a patient-specific theory, then identify the patients
and ask the third parties what records they have of those patients and
5

produce your list of patients in an electronic form that’s compatible with
the third parties from whom you’re seeking discovery so that they can
cheaply and efficiently tell you which of your former patients are now
patients of theirs.
3/4/09 Tr., Docket Entry 586, at 10. In response, plaintiffs represented that they would base their
case upon evidence that specific customers were lost to particular favored purchasers:
[W]e are not suggesting that we would do anything other than put forth
patient-specific information. And we’re not proposing any kind of
extrapolations or use of aggregate data or anything like that. . . . As a
pharmacist sits in his pharmacy as a plaintiff in this case, he is able to
identify a certain universe of patients who he reasonably believes, based
on his own personal knowledge and his own business records, is a lost
customer in the sense that we mean it in this litigation, because he knows
that that particular patient was getting a long-term maintenance drug from
him for a period of years, and that patient is now in a plan where there is a
mail-order pharmacy option, and the patient is now getting his
maintenance drugs, or some of them at least, filled by the mail-order
pharmacy.
Id. at 13-14.
Several court conferences were held to address the details of the matching process and
how it would be executed. One such conference was held on November 13, 2009. At that time,
plaintiffs reported that they had identified 1.2 million customers who had been purchasing
specific BNPDs from 500 plaintiffs but were no longer doing so. Based on that preliminary data,
plaintiffs surmised that “at the end of the day we’re going to have some material number that
isn’t going to be three for a pharmacy, or five for a pharmacy.” 11/13/09 Tr., Docket Entry 604,
at 16.
Yet another conference was held on March 24, 2010. Plaintiffs’ counsel reported that it
had now become clear that only 894 of the original 3,700 retail pharmacy plaintiffs would be
able to identify customers they believed they had lost to favored purchasers. 3/24/10 Tr., Docket
Entry 616, at 4. Counsel predicted at that time that these 894 retail pharmacies would

6

demonstrate, through the matching process, that they had lost millions of transactions to favored
purchasers. Id. at 6. In June 2010, the claims of 3,101 pharmacy locations were dismissed with
prejudice by stipulation. Def. R.56.1 ¶ 59; Stipulation of Dismissal, Docket Entry 626.
Another court conference was held after the matching process data had been analyzed
and before defendants brought this motion for summary judgment. At that time, plaintiffs raised
the possibility that they would seek additional discovery before the motion was made. 8/11/11
Tr., Docket Entry 667, at 26. Although I afforded plaintiffs an opportunity to apply to take
additional discovery, id.at 26-27, they never did so.
1.

The Matching Process

The parties ultimately entered into a stipulation that states in pertinent part that,
after compiling a database of potential lost customers from their data,
Plaintiffs have undertaken a so-called ‘matching process’ to identify
which of those potential lost customers may have filled prescriptions at
one of five so-called favored purchasers: Caremark, AdvancePCS, Express
Scripts, and Medco (collectively, the “PBMs”), and Omnicare, a long-term
care pharmacy. The matching process was designed to determine the
universe of potential lost customers that Plaintiffs claim they lost as a
result of the pricing practices of Defendants and was subject to the
following limitations: (i) the universe of so-called favored purchasers was
limited to the four PBMs and Omnicare; (ii) the universe of BNPDs was
limited to manufacturer Defendants’ top-selling maintenance drugs; and
(iii) the time periods searched were limited to data currently maintained by
the PBMs and the Plaintiffs. 4
Stipulation ¶ 1, Docket Entry 666-1 (emphasis added).
In April, 2010, plaintiffs produced a list of potential lost customers from 831 pharmacy
locations. 5 Def. R.56.1 ¶ 58. In light of the voluminous data involved and the expense of
comparing plaintiffs’ lists with those of the favored purchasers, a subset of thirty plaintiffs was
randomly selected to participate in the first round of the matching process. Def. R.56.1 ¶ 62.
4

“PBMs” are pharmacy benefit managers. Def. R.56.1 ¶ 39.
Plaintiffs had previously produced a list of approximately 2,770,426 potential lost customers for 500 pharmacies.
Def. R.56.1 ¶ 50.

5

7

Two of the thirty plaintiffs subsequently dismissed their claims, leaving twenty-eight pharmacies
involved in the matching process. Def. R.56.1 ¶¶ 63, 64. These plaintiffs then compared their
database of lost customers with electronically stored customer lists, some going back as far as
1998, from the five favored purchasers whose data were examined as part of the matching
process. Def. R.56.1 ¶¶ 40, 66. The matching process employed the following criteria:
If the alleged favored purchaser’s data showed a mail order fill of the
same drug (say, drug x) for a matched patient within six months of the last
fill at the Plaintiff pharmacy, the transaction was . . . counted as a match.
Any subsequent prescriptions for drug x, or a therapeutic alternative, were
. . . counted as matches against the manufacturer of drug x as well.
Def. R.56.1 ¶ 67.
When the matching process was finally completed, the results were considerably less
impressive than plaintiffs had anticipated. See 3/23/12 Tr., Docket Entry 700, at 53 (plaintiffs’
counsel’s acknowledgement that they expected to see more matches). As stated by defendants,
the twenty-eight pharmacies participating in the matching process had identified from their own
records approximately 164,501 potential lost customers for 168 BNPDs over a twelve-year time
frame from 1998 to 2010. 6 Def. R.56.1 ¶ 65. See also Plaintiffs’ Letter dated 5/29/09, Docket
Entry 594 (identifying 168 BNPDs and a time frame applicable to each). When plaintiffs’ data
was compared to the data of the five favored purchasers, approximately 5,500 matched potential
lost customers and 17,346 matched potential lost transactions were identified. 7 Def. R.56.1 ¶¶
79, 80 (identifying 5,515 matched customers); id. ¶ 89 (identifying 5,454 matched customers);

6

For purposes of statistical analysis, defendants point out that the equivalent of ten years of data was collected and
analyzed. Herscovici Decl. ¶ 13. Plaintiffs originally identified thirteen favored purchasers and three distributors.
Tietjen Decl. Ex. 6, Docket Entry 686. Three of the favored purchasers were able to produce data beginning from
1998. Pl. R.56.1 ¶ 66. Express Scripts matched data beginning from January, 2002; Advance PCS collected data
from January, 2006. Id. Plaintiffs contend that Express Scripts, Medco and CVS/Caremark currently account for
50% of the PBM marketplace. Pl. Opp. at 7 n.19, Docket Entry 684.
7
Although defendants challenge several aspects of the results of the matching process as calculated by plaintiffs, I
rely – as do defendants in large part – on plaintiffs’ tabulations of matched lost customers for purposes of deciding
the pending motion.
8

Herscovici Decl. ¶ 5 & n.3. 8 Plaintiffs further refined the results of the matching process, and by
the time they submitted their opposition to defendants’ summary judgment motion, plaintiffs had
calculated a total of 5,147 lost customers and 15,043 lost transactions. Plaintiffs’ Memorandum
in Opposition (“Pl. Opp.”), Docket Entry 684, at 22.
Some plaintiffs could not identify any matched customers at all with respect to BNPDs
manufactured by one or more defendants, and those plaintiffs voluntarily dismissed their
corresponding claims. Stipulation and Order of Dismissal, Docket Entry 697; Pl. Opp. 22
(identifying individual pharmacies with zero matching results). See also 3/23/12 Tr. at 60. In
addition, each of the more than 800 remaining plaintiffs has voluntarily dismissed its claims
against defendant Hoffman La Roche as a result of the minimal number of matches with respect
to this defendant by the twenty-eight plaintiffs. Docket Entry 694.
As demonstrated by these results, only approximately 3% (5,147 of 164,501) of the
potential lost customers plaintiffs culled from their own records could be “matched” to a
customer who subsequently filled the same prescriptions with one or more favored purchasers.
This implies, of course, that 97% of the customers plaintiffs identified as lost based upon their
own records could not be found in the databases of favored purchasers searched during
discovery. Moreover, even these figures are substantially reduced if the 2,586 lost customers
claimed by plaintiff Pharma-Card are excluded; as discussed below, Pharma-Card’s results
include a large number of customers claimed by plaintiffs but not identified by the matching
process.
The results are even less significant when considered in context. Defendants, relying on
data reported by the National Community Pharmacists Association, point out that independent
8

“Herscovici Decl.” refers to the Declaration of Steven Herscovici, Ph,D., submitted in support of defendants’
motion for summary judgment, Docket Entry 681.
9

retail pharmacies filled between 22,000 and 28,000 BNPD prescriptions per year during the
period of time relevant to the matching process. 9 In contrast, the data from the matching process
reveals that, on average, each plaintiff pharmacy lost less than 200 (5,147/28) customers and
only approximately 537 (15,043/28) transactions over the entire period examined by the
matching process, or approximately 18 customers and 54 transactions per year. Pl. Opp. 22-24.
This average loss of 54 transactions per year is only about one quarter of one per cent of the
more than 20,000 BNPD transactions conducted per year by the average retail pharmacy.
The de minimus nature of these results is further illustrated when they are broken down
and analyzed by defendant. According to defendants, when examined in this manner, the results
are that approximately 88% of plaintiffs’ claims against particular defendants are based on five
or fewer lost customers per year. Joint Memorandum of Law in Support of Individual
Defendants’ Motions for Summary Judgment,” Docket Entry 678 (“Def. Mem.”) at 3. 10 On the
other hand, plaintiffs calculate that, excluding the dismissed claims, approximately 31% of
plaintiffs’ remaining claims against particular defendants are based on five or fewer lost
customers per year. Pl. Opp. at 22.
Many pharmacies lost no more than ten customers per defendant over the relevant
twelve-year time period, or less than one customer per year. For example, 19 of the 28 pharmacy
plaintiffs could identify only ten or fewer matched Novartis (formerly Ciba-Geigy and Sandoz)
customers over the entire ten-plus year period, or less than one lost customer per year. Pl. Opp.

9

Although plaintiffs note that the five favored purchasers that were searched as part of the matching process account
for only 50% of the PBM marketplace, and that only the most common prescription drugs were included in the
search protocol, plaintiffs offer no alternative base figure for comparison.
10
After defendants submitted their summary judgment motion, plaintiffs further refined their results and dismissed
some of their claims. Defendants then filed an amended memorandum of law to reflect plaintiffs’ changes to the
matching results. Docket Entry 698. In the amended memorandum, defendants calculate that 87% of plaintiffs’
claims are based on five or fewer lost customers per year. Docket Entry 698-1 at 10.
10

at 22. The following chart summarizes the de minimus number of lost customers with respect to
each of the defendants:

Defendant

No. of pharmacies
with 10 or less lost
customers total

Percentage of
pharmacies
with 10 or less
lost customers

No. of
pharmacies that
lost only 1
customer total

No. of
dismissed
claims for
zero matches

Abbott

16

57%

5

3

Novartis

19

68%

3

1

Johnson & Johnson

18

64%

6

4

Upjohn/Pfizer

4

14%

0

1

Hoechst Marion Roussel
(Marion Merrell
Dow)/Rhone Poulenc Rorer
(“HMR (MMD)/RPR”)

12

43%

2

2

Total

69

49%

16

11

Pl. Opp. at 22. Excluding Upjohn, the defendant that consistently had the highest number of
matches, and Pharma-Card, which I conclude for reasons discussed below has substantially
overstated its results, none of the plaintiff pharmacies lost more than 50 total customers per
defendant over the relevant twelve-year time period, or less than five customers per year per
defendant. Id.
When examined on a per-plaintiff basis – again, with the arguable exception of plaintiff
Pharma-Card – similarly insignificant results are obtained. Even Klein’s Pharmacy, the plaintiff
with the highest number of lost transactions identified by the matching process, lost a total of
only 2,521 transactions, or approximately 252 transactions per year. Pl. Opp. at 23. This

11

amounts to only slightly more than 1% of the total BNPD transactions conducted by an average
retail pharmacy during any one year (252/22,000).
In short, no matter how analyzed, the matching process identified only a de minimus
number of lost customers and transactions.
2.

Plaintiff Pharma-Card Prescription Services

As noted above, plaintiff Pharma-Card claims to have lost a large number of customers
other than those identified by the matching process. More specifically, Pharma-Card asserts that
it lost approximately 2,586 customers as a result of defendants’ price discrimination, or nearly
half of the 5,500 lost customers claimed by all 28 of the plaintiffs. 11 Def. R.56.1 ¶ 89. Most of
these customers, however, were not identified by the matching process, but were instead added
to the results manually by plaintiffs based upon the belief held by Pharma-Card’s employees that
certain customers were lost to favored purchasers because of defendants’ price discrimination.
Id. ¶ 85(a) (denied by plaintiffs); see Pl. Opp. at 17-19. Almost 2,000 of these customers were
submitted for matching, but only five were identified in the records of the favored purchasers as
having filled subscriptions for BNPDs with them. Def. R.56.1 ¶¶ 90-91; Def. Mem. at 28-29.
Moreover, at least during part of the twelve-year period covered by the matching process,
Pharma-Card operated at fourteen separate retail locations. Pl. Opp. at 17. Even if all 2,586
customers were properly included in the matching process results, it would show only that
approximately 184 customers were lost per retail location, or that Pharma-Card lost only about
18 customers per year at each of its locations. 12
11

In their memorandum in opposition to summary judgment, plaintiffs contend that Pharma-Card lost 2,773
customers. Pl. Opp. at 22.
12
Pharma-Card identified a total of 1,669 lost transactions through the matching process. Pl. Opp. at 23. I presume
that the number of claimed lost transactions is smaller than the number of lost customers because lost transactions
were determined solely from the matching process and not manually supplemented. Even if Pharma-Card operated
at a single retail location, this would amount to approximately 160 lost transactions per year, a tiny sum when
compared to the more than 22,000 BNPD transactions conducted annually by the average retail pharmacy.
12

3. Other Evidence of Damages
Finally, plaintiffs seek to rely on their own affidavits in which they claim to have lost
customers and transactions in addition to those identified through the matching process. Teitjen
Decl., Docket Entry 686, Exs. 20-48. These affidavits are not properly considered as evidence of
plaintiffs’ lost sales for at least two reasons. First, plaintiffs offer no convincing explanation for
the failure of the matching process to identify the lost customers referenced in these affidavits. 13
Second, and perhaps most significantly – and this applies with equal force to those Pharma-Card
customers that were manually added to the matching process results – plaintiffs entered into a
stipulation, filed with the Court on August 8, 2011, explicitly providing that the matching
process would “determine the universe of potential lost customers that Plaintiffs claim they lost
as a result of the pricing practices of Defendants.” 14 Stipulation ¶ 1, Docket Entry 666-1
(emphasis added).
DISCUSSION
A. Standards Governing Summary Judgment
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In
reaching a summary judgment determination, the court must resolve ambiguities and draw
reasonable inferences in favor of the nonmoving party. Johnson v. Killian, 680 F.3d 234, 236
(2d Cir. 2012).

13

Plaintiffs do contend that some customers were lost to favored purchasers other than those whose data was used in
the matching process. Pl. Opp. at 15, 19. It was plaintiffs, though, who selected the favored purchasers whose data
would be included.
14
In addition, reports of customers as related by pharmacy employees are arguably hearsay. See, e.g., Teitjen Decl.
Ex. 20, Tallman Aff. ¶ 8 & Ex. B at 4; id. Ex. 23, Mouret Aff. ¶ 10; id. Ex. 29, Ellison Aff. ¶ 10. However, the
Second Circuit has explicitly permitted testimony of the same type pursuant to Federal Rule of Evidence 803(3)
when offered in antitrust cases to prove customers’ motives. Hydrolevel Corp. v. Am. Soc’y of Mech. Eng’rs, Inc.,
635 F.2d 118, 128 (2d Cir. 1980); Herman Schwabe, Inc. v. United Shoe Mach. Corp., 297 F.2d 906, 914 (2d Cir.),
cert. denied, 369 U.S. 865 (1962).
13

Two additional principles inform my review of defendants’ motion. First, the Second
Circuit has held that “summary judgment is particularly favored [in antitrust cases] because of
the concern that protracted litigation will chill pro-competitive market forces.” PepsiCo, Inc. v.
Coca-Cola Co., 315 F.3d 101, 104 (2d Cir. 2002) (citing Tops Mkts, Inc. v. Quality Mkts, Inc.,
142 F.3d 90, 95 (2d Cir. 1998)). See also Am. Banana Co., Inc. v. J. Bonafede Co., Inc., 407
Fed. App. 520, 522 (2d Cir. 2010). The Circuit stressed in Pepsico that a party may demonstrate
that it is entitled to summary judgment by pointing to an absence of evidence to support the
nonmoving party’s case. PepsiCo, 315 F.3d at 105.
Second, the Supreme Court, in its most recent decision addressing the Robinson-Patman
Act, urged lower courts to construe the Act narrowly. 15 Volvo Trucks N. Am., Inc. v. ReederSimco GMC, Inc., 546 U.S. 164, 181 (2006). The Court cited its much earlier decision in
Automatic Canteen Co. of America v. FTC, 346 U.S. 61, 63 (1953), which it described as
“cautioning against Robinson-Patman constructions that extend beyond the prohibitions of the
Act and, in doing so, help give rise to a price uniformity and rigidity in open conflict with the
purposes of other antitrust legislation.” Id. at 181. Even Justice Stevens, who dissented in
Volvo, noted that the Act “may well merit [noted antitrust law scholar] Judge [Robert] Bork’s
characterization as ‘wholly mistaken economic theory.’” 546 U.S. at 187. See also Toledo Mack
Sales & Serv., Inc. v. Mack Trucks, Inc., 530 F.3d 204, 227 (3d Cir. 2008) (describing the
Supreme Court’s decision in Volvo as narrowly construing the Robinson-Patman Act).

15

The Court has, on other occasions, stated that the Robinson-Patman Act should be construed liberally and
“broadly to effectuate its purpose.” Abbott Labs. v. Portland Retail Druggists Ass’n, Inc., 425 U.S. 1, 11 (1976),
quoted in Jefferson Cnty. Pharm. Ass’n, Inc. v. Abbott Labs., 460 U.S. 150, 159 (1983). Although Volvo does not
disavow these prior decisions, the Volvo decision does seem to place more emphasis on the possible anti-competitive
effects of the Robinson-Patman Act than prior decisions. At least one scholar has noted that the Robinson-Patman
Act has “come into disfavor” during the last quarter century. Daniel J. Gifford & Robert T. Kudrle, The Law and
Economics of Price Discrimination in Modern Economies: Time for Reconciliation?, 43 U.C. DAVIS L. REV. 1235,
1269 (2010).
14

With this guidance in mind, I now consider whether plaintiffs’ evidence, revealing as it
does that plaintiffs lost only a trivial number of customers and sales to favored purchasers, is
nevertheless sufficient to support a Robinson-Patman Act claim. For the reasons explained
below, I conclude that it is not.
B. The Robinson-Patman Act
Section 2(a) of the Robinson-Patman Act (the “Act”), an amendment to the Clayton Act,
renders it
unlawful for any person engaged in commerce, . . . either directly or
indirectly, to discriminate in price between different purchasers of
commodities of like grade and quality, . . . where the effect of such
discrimination may be substantially to lessen competition or tend to create
a monopoly in any line of commerce, or to injure, destroy, or prevent
competition with any person who either grants or knowingly receives the
benefit of such discrimination, or with customers of either of them.
15 U.S.C. § 13(a). 16
To succeed on a Robinson-Patman claim, a plaintiff must establish: “(1) that seller’s sales
were made in interstate commerce; (2) that the seller discriminated in price as between the two
purchasers; (3) that the product or commodity sold to the competing purchasers was of the same
grade and quality; and (4) that the price discrimination had a prohibited effect on competition.”
George Haug Co. v. Rolls Royce Motor Cars Inc., 148 F.3d 136, 141 (2d Cir. 1998). As is
frequently the case, only the fourth element – proof of what is referred to as “competitive injury”
– is at issue here. 17 Indeed, as the Second Circuit has stated,
[t]he language in Section 2(a) relating to injury to competition is the key
to the legality of most differential pricing practices and has engendered
significant legal authority as courts have struggled to determine what
16

Plaintiffs also assert claims pursuant to Sections 2(d) and 2(f) of the Robinson-Patman Act, discussed infra.
Defendants do not contest, for purposes of the pending motion, plaintiffs’ allegations of discriminatory pricing.
Indeed, the Seventh Circuit, ruling on appeal from a grant of judgment as a matter of law against the plaintiff class,
stated that “the manufacturers of brand name prescription drugs engage in price discrimination . . . . Everyone
knows this.” In re Brand Name Prescription Drugs Antitrust Litig., 186 F.3d 781, 786 (7th Cir. 1999).
17

15

degree and type of market consequences will constitute the proscribed
statutory effect on competition in various commercial situations.
George Haug Co., 148 F.3d at 141.
A plaintiff seeking damages under the Act must not only demonstrate a competitive
injury as required by the Act itself, but must also satisfy Section 4 of the Clayton Act, 15 U.S.C.
§ 15, by establishing an “antitrust injury.” Id. at 422-24. That is because the Robinson-Patman
Act does not provide for a private right of action; instead, “the private right of action for a § 2(a)
Robinson-Patman Act claim, as for all private plaintiff antitrust rights of action, is provided by
§ 4 of the Clayton Act.” Drug Mart II, 472 F. Supp. 2d at 422. The “antitrust injury”
requirement “compels plaintiffs to show that they were in fact injured by price discrimination,
that the injury is of the type the Act was intended to prevent, and that the injury is causally
connected with the violation of the Act.” Id. at 423 n. 44 (citing Brunswick Corp. v. Pueblo
Bowl-O-Mat, 429 U.S. 477, 489 (1977)).
In enacting Robinson-Patman, “Congress sought to target the perceived harm to
competition occasioned by powerful buyers, rather than sellers; specifically, Congress responded
to the advent of large chainstores, enterprises with the clout to obtain lower prices for goods than
smaller buyers could demand.” Volvo, 546 U.S. at 175. The purpose of the Act is to prohibit
“price discrimination only to the extent that it threatens to injure competition.” Brooke Grp. Ltd.
v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 220 (1993). The Supreme Court
emphasized this point in Volvo, where it warned against “interpretation[s of the Act] geared more
to the protection of existing competitors than to the stimulation of competition.” 546 U.S. at 181
(emphasis in original). 18

18

In opposing summary judgment, plaintiffs cite cases suggesting that a showing of injury to a competitor is
sufficient to establish competitive injury, even in the face of proof that competition remains healthy. Pl. Opp. at 40
(citing Chroma Lighting v. GTE Products Corp., 111 F.3d 653, 657 (9th Cir. 1997) (referring to “Congressional
16

The parties’ submissions do not directly address whether defendants’ pricing practices
have had any impact on the competitiveness of the market for BNPDs. For example, neither side
has presented any evidence regarding whether or how defendants’ discount and rebate programs
have affected the availability of BNPDs to patients or the amounts patients, or their health
insurance providers, must pay for them. Rather, both sides focus on whether the injury, or lack
thereof, sustained by plaintiffs is sufficient to demonstrate competitive or antitrust injury.
Because the parties have not addressed the impact on competition generally, and because it is
difficult to conceive of an adverse impact on competition absent a significant diversion of sales, I
do not separately consider whether defendants’ pricing practices have adversely affected
competition in the market for BNPDs from a consumer’s point of view.
1. Competitive Injury
There are “three categories of competitive injury that may give rise to a RobinsonPatman Act claim: primary line, secondary line, and tertiary line.” Volvo, 546 U.S. at 176. This
case, like Volvo, involves a secondary line claim, or a claim of “price discrimination that injures
competition among the discriminating seller’s customers,” described as “‘favored’ and
‘disfavored’ purchasers.” 19 Id. “A hallmark of the requisite competitive injury [in a secondary
line claim] . . . is the diversion of sales or profits from a disfavored purchaser to a favored
purchaser.” Id. at 177. In other words, and as plaintiffs’ commitment to the matching process

intent to protect individual competitors, not just market competition”) and J.F. Feeser, Inc. v. Serv-a-Portion, Inc.,
909 F.2d 1524, 1535 (3rd Cir. 1990) (holding that “evidence of injury to a competitor may satisfy the component of
competitive injury necessary to show a violation of the Robinson-Patman Act”)). See also Alan’s of Atlanta, Inc. v.
Minolta Corp., 903 F.2d 1414, 1418 n.6 (11th Cir. 1990) (citing cases and finding that “the legal focus of the
competitive injury inquiry is on the competitor, not the consumer”). The language from Volvo quoted in the text
raises a question about the continued viability of these holdings.
19
A plaintiff seeking to establish competitive injury in a secondary-line case must prove that it was a disfavored
purchaser engaged in actual competition with a favored purchaser(s) at the time of the price differential. Best
Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 584 (2d Cir. 1987). Defendants apparently do not
dispute, at least for purposes of this motion, that plaintiffs and the favored purchasers whose data was used in the
matching process were in competition.
17

reflects, a Robinson-Patman Act claimant may not rely on the effect of price discrimination on
the market generally. Rather,
[t]he plaintiff disfavored purchaser must show that it lost customers or
profits because the favored purchaser used its favored advantage either to
lower its resale prices or otherwise to attract business. It is for that reason
that a plaintiff asserting a claim under the Act must proffer individualized
proof of lost customers or profits as against each defendant.
Drug Mart I, 378 F. Supp. 2d at 139. See also O’Connell v. Citrus Bowl, Inc., 99 F.R.D. 117
(E.D.N.Y. 1983) (denying plaintiffs’ motion for class certification of Robinson-Patman Act
claims because each putative class member’s proof of competitive injury would be highly
individualized).
The Robinson-Patman Act prohibits price discrimination only “where the effect of such
discrimination may be substantially to lessen competition.” 15 U.S.C. § 13(a). Applying this
statutory language, the Supreme Court in Volvo held that an automobile manufacturer defendant
was entitled to judgment as a matter of law following a jury verdict in favor of a plaintiff car
dealer. In Volvo, the plaintiff car dealer claimed that, with respect to certain trucks designed to a
customer’s specifications, defendant Volvo offered other dealers more favorable price
concessions than it received. Plaintiff’s difficulty in establishing a Robinson-Patman Act
violation stemmed from the fact that he rarely competed with other Volvo dealers over the same
truck customers. In fact, plaintiff was able to present evidence of only two occasions over five
years when it competed against another Volvo dealer for a particular sale, and a “loss of only one
sale of 12 trucks that would have generated $30,000 in gross profits.” 546 U.S. at 180. While
the Court focused primarily on the absence of proof that Volvo dealers simultaneously competed
with each other for the same retail customers, it also indicated that the limited evidence of lost
sales presented by the plaintiff was insufficient to establish competitive injury, stating that “if

18

price discrimination between two purchasers existed at all, it was not of such magnitude as to
affect substantially competition between [plaintiff] and the ‘favored’ Volvo dealer.” Id. See also
United Magazine Co., Inc. v. Curtis Circulation Co., 279 Fed. Appx. 14, 17-18 (2d Cir. 2008);
Interstate Cigar Co. Inc. v. Sterling Drug Inc., 655 F.2d 29, 31 (2d Cir. 1981) (stating that
plaintiffs failed to establish that any price discrimination or discount to a favored purchaser
“would tend to lessen competition substantially”).
Other courts have similarly rejected Robinson-Patman Act claims for failure to
demonstrate a substantial anti-competitive impact. For example, the Fifth Circuit, on remand
from the Supreme Court, rejected another car dealer’s claim because, among other things, the
plaintiff failed to establish that the incentive programs he challenged were likely to have a
substantial effect on competition. Chrysler Credit Corp. v. J. Truett Payne Co., Inc., 670 F.2d
575, 581 (5th Cir. 1982). In words directly applicable to defendants’ pending motion, the Fifth
Circuit stated:
In order to show a violation of Section 2(a) of the Robinson-Patman Act a
plaintiff must demonstrate the likely effect of the alleged price
discrimination was to allow a favored competitor to draw significant sales
or profits away from him, the disfavored competitor.
670 F.2d at 580. See also O’Connell, 99 F.R.D. at 122 (favorably citing the language from J.
Truett Payne quoted above). In Boise Cascade Corp. v. Federal Trade Commission, 837 F.2d
1127 (D.C. Cir. 1988), a contention of competitive injury was rejected in part because the
number of accounts (162) that switched from the disfavored purchasers to the favored purchaser
“was quite small.” 837 F.2d at 1145. See also Lupia v. Stella D’Oro Biscuit Co., Inc., 586 F.2d
1163, 1171 (7th Cir. 1978) (dismissing primarily because of a lack of competition between
plaintiff and any favored purchaser for the same customers and stating that a plaintiff who “has
not alleged that its sales lost due to secondary price discrimination were more than ‘de
19

minimus’” has failed to establish a cognizable competitive injury); Erickson’s Flooring & Supply
Co. v. Basic Coatings, Inc., 2007 WL 3036747, at *6 (E.D. Mich. Oct. 15, 2007) (finding that
“only one instance of discriminatory pricing towards one other distributor in relation to only one
customer [was insufficient]. Indeed, Plaintiff’s claim is weaker than the one pressed in Volvo
Trucks, because Plaintiff does not claim that the allegedly lower prices given to Erickson’s
Decorating even cost it any sales; it alleges that this discrimination hurt its profit margin at only
one point in time, in relation to only one customer. . . . Plaintiff has provided no evidence that
the alleged price concession might have had anything approaching a “substantial” effect on
competition.”). Here, the effect of defendants’ pricing practices has been carefully measured,
and the results undermine any contention that plaintiffs have suffered a significant loss of sales.
The decision in De Modena v. Kaiser Foundation Health Plan, Inc., 743 F.2d 1388 (9th
Cir. 1984), cert. denied, 469 U.S. 1229 (1985), is of particular interest because it involved, like
this case, allegations of price discrimination in the market for prescription drugs. Defendants in
De Modena operated health plans that provided medical care to their members in return for
monthly dues. The services defendants provided to their members included a prescription drug
plan. Plaintiffs, retail pharmacies, brought Robinson-Patman Act claims, contending that
defendants were able to acquire drugs at discriminatorily low prices. The Court in De Modena
held that, with respect to drugs provided to their own members, defendants were protected from
liability by an exception to the Robinson Patman Act applicable to transactions made by nonprofit institutions for their own purposes. The court found, though, that defendants also made
sales to “walk-in” customers who were not their members, and that these sales were thus not
covered by the “own purposes” exception described above. The district court dismissed
plaintiffs’ claim despite these walk-in sales on the grounds that they constituted less than one

20

percent of defendants’ total drug sales and were therefore de minimus. The Ninth Circuit
reversed, but not on the ground that the district court wrongly concluded that a de minimus
number of sales is not actionable; rather, the Ninth Circuit held that whether the sales at issue
were de minimus or not should be determined by measuring their effect on competition, not by
calculating the portion of defendants’ sales they represented. 743 F.2d at 1394-95. Indeed, if a
de minimus number of diverted sales were sufficient, it would not matter how they were
measured, and the Ninth Circuit would have had no reason to remand.
In this case, of course, the matching process measured the number of customers drawn
from plaintiffs to favored purchasers, and defendants in support of their motion seek to examine
that number in the context of the BNPD sales volume of a typical retail pharmacy. The
reasoning in De Modena accordingly supports defendants’ position here.
In response to defendants’ argument that the limited number of lost sales demonstrated
by the matching process precludes their Robinson-Patman Act claims, plaintiffs invoke what has
come to be known as the “Morton Salt” inference. The inference takes its name from the
decision in FTC v. Morton Salt Co., 334 U.S. 37 (1948), where the Supreme Court stated:
It would greatly handicap effective enforcement of the Act to require
testimony to show that which we believe to be self-evident, namely, that
there is a ‘reasonable possibility’ that competition may be adversely
affected by a practice under which manufacturers and producers sell their
goods to some customers substantially cheaper than they sell like goods to
the competitors of these customers. This showing in itself is sufficient to
justify our conclusion that . . . findings of injury to competition were
adequately supported by evidence.
344 U.S. at 49-51. In Volvo, the Supreme Court described Morton Salt as recognizing that “a
permissible inference of competitive injury may arise from evidence that a favored competitor
received a significant price reduction over a substantial period of time.” 546 U.S. at 177.

21

Plaintiffs contend, in essence, that the results of the matching process do not preclude
their claims because the Morton Salt inference provides them with an alternative means of
demonstrating likely competitive injury. As a general matter, plaintiffs are correct: a RobinsonPatman plaintiff may typically establish competitive injury in one of two ways: “proof of lost
sales or profits, or under the Morton Salt test, proof of a substantial price discrimination between
competitors over time.” J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1535 (3d Cir.
1990) (internal citations omitted).
The problem for plaintiffs is that this is not a typical case. The Morton Salt inference is
just that – an inference – and it is subject to rebuttal. Thus, as noted above, the Supreme Court in
Volvo referred to the Morton Salt inference as a “permissible” one that “may” arise under certain
circumstances. Even before Volvo, the Supreme Court had pointed out that, “[i]n the absence of
direct evidence of displaced sales,” the Morton Salt inference “may be overcome by evidence
breaking the causal connection between a price differential and lost sales or profits.” Falls City
Indus., Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 435 (1983). Similarly, in Boise Cascade, the
Circuit Court held that
The [Morton Salt] inference can . . . be overcome by evidence showing an
absence of competitive injury within the meaning of Robinson-Patman.
That is to say, a sustained and substantial price discrimination raises an
inference, but it manifestly does not create an irrebuttable presumption of
competitive injury.
837 F.2d at 1144.
Here, plaintiffs have undertaken an extensive, costly and time-consuming effort to trace
the customers they claim to have lost to favored purchasers because of price discrimination, but
have essentially come up empty. Moreover, their efforts to point to other evidence of
competitive injury fail for several reasons, not the least of which is that they have stipulated that

22

the results of the matching process would define the “universe of potential lost customers” they
would claim they lost as a result of the defendants’ pricing practices. Stipulation ¶ 1, Docket
Entry 666-1. Under these circumstances, any inference has been rebutted; the assumption that a
substantial price difference over time would result in customers leaving plaintiffs for favored
purchasers has been carefully tested, but no meaningful evidence of lost sales has been
developed.
As plaintiffs contend, there is authority that suggests that the Act has no substantiality
requirement. See, e.g., H.L. Hayden Co. of New York, Inc. v. Siemens Medical Systems, Inc.,
879 F.2d 1005, 1020-22 (2d Cir. 1989) (assuming that plaintiff suffered a competitive injury
even though plaintiff cited only three instances of lost sales but finding that plaintiff failed to
establish a causal connection between any lost sales and alleged Robinson-Patman violations);
Precision Printing Co., Inc. v. Unisource Worldwide, Inc., 993 F. Supp. 338, 353 (W.D. Pa.
1998) (finding that plaintiff “raise[d] a genuine issue of material fact on the issue of competitive
harm” based on evidence that “at least one customer shifted business away from plaintiff because
it was no longer price-competitive” but denying/granting summary judgment because there was
no Robinson-Patman violation); Capital Ford Truck Sales, Inc. v. Ford Motor Co., 819 F. Supp.
1555, 1578 (N.D. Ga. 1992) (holding that “[t]he de minimis injury doctrine applies only when a
plaintiff has no direct evidence of lost sales and adduces proof of competitive injury through
evidence of substantial price discrimination over time”); see also 3A FED. JURY PRAC. & INSTR.
§ 150.205 (requiring plaintiff to “show there is a reasonable possibility that the alleged price
discrimination may have harmed competition. Plaintiff is not required to show that the alleged
price difference actually harmed competition.”) (citing Corn Products Refining Co. v. Fed. Trade
Comm’n, 324 U.S. 726 (1945)); The Bohack Corp. v. Iowa Beef Processors, Inc., 715 F.2d 703,

23

711 n.9 (2d Cir. 1983) (affirming a jury charge that stated that “the plaintiff must establish by a
fair preponderance of the evidence that it suffered a loss of sales and consequently a loss of
profit because of the illegal price discrimination . . . . The loss of Bohack may be shown by
showing that the price discrimination diverted sales from Bohack that Bohack lost sales and
therefore profit. It is not necessary that you find that competition was in fact lessened, injured or
damaged, but only that the acts of the defendant may have substantially lessened competition,
injured or destroyed some competition.”); Cf. Gen. Auto Parts Co. v. Genuine Parts Co., 2007
WL 704121, at *6 (D. Idaho Mar. 5, 2007) (denying summary judgment after finding that there
were disputes of fact on whether any price discrimination “might” have substantially lessened
competition). However, after reviewing all of the pertinent authorities, and relying in particular
on the Supreme Court’s most recent pronouncement in Volvo, I conclude that a RobinsonPatman claim requires a showing of substantial competitive injury and that the de minimus sales
identified by the matching process are insufficient to establish such an injury. 546 U.S. at 180.
For all these reasons, I conclude that plaintiffs have failed to demonstrate sufficient
competitive injury to sustain their Robinson-Patman Act claims. Accordingly, defendants are
entitled to summary judgment.
2.

Antitrust Injury

As noted above, a plaintiff seeking to recover damages on a Robinson-Patman claim must
establish an antitrust injury. An antitrust injury is an “(1) an injury-in-fact; (2) that has been
caused by the violation; and (3) that is the type of injury contemplated by the statute.” Blue Tree
Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 220 (2d
Cir. 2004) (citing Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489 (1977)). See
also Dayton Superior Corp. v. Marjam Supply Co., 2011 WL 710450 at * 6 (E.D.N.Y. Feb. 22,

24

2011). Even if plaintiffs’ claims were not subject to dismissal for failure to raise a question of
fact with respect to competitive injury, I would grant defendants’ summary judgment motion
because plaintiffs have, largely for the reasons discussed above, also failed to present evidence of
antitrust injury.
Price discrimination does not entitle a disfavored purchaser to “automatic damages.” J.
Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 561 (1981). Rather,
[f]or purposes of Robinson-Patman secondary line cases, antitrust injury is
the competitor’s unfair competitive edge that is used to attract sales or
profits from the plaintiffs. Thus, the injury must be traced to the
competitor’s competitive use of their price advantage. 20
Drug Mart II, 472 F. Supp. 2d at 424 (citing Uniroyal , Inc. v. Jetco Auto Serv., Inc., 461 F.
Supp. 350, 358 (S.D.N.Y. 1978)). In other words, “[i]f the price discrimination . . . was the
cause of the plaintiffs’ injury, the plaintiffs should be able to match up their losses with gains to
the favored competitors.” Id. at 424-25 (quoting Hasbrouck v. Texaco, Inc., 1980 WL 1843 at
*19 (E.D. Wash. Mar. 31, 1980), aff’d in part, rev’d in part, 663 F.2d 930 (9th Cir. 1981).
Except to the minimal extent described above, plaintiffs here, despite tremendous effort, have
been unable to “match up their losses” with gains to the favored purchasers. Plaintiffs have
identified less than 3% of their total lost customers as having purchased BNPDs from favored
purchasers, undermining any inference that price advantages enjoyed by favored purchasers

20

Judge Glasser discussed the standard to apply in analyzing antitrust injury as follows:
First, the plaintiffs must prove the fact of antitrust injury; second, they must make a
showing regarding the amount of damages in order to justify an award by the trier of fact.
. . . [P]laintiffs’ burden of proving the fact of damage under § 4 of the Clayton Act is
satisfied by its proof of some damage flowing from the unlawful conspiracy. Once
causation is established, the jury is permitted to calculate the actual damages suffered
using a “‘reasonable estimate, as long as the jury verdict is not the product of speculation
or guess work.’” The plaintiffs therefore must proffer evidence of some damage, with the
recognition that the actual amount need not be proven to the same degree of certainty as
proving some quantum of damages.
Drug Mart II, 472 F. Supp. 2d at 423-24 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114
(1969) and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562 (1931)).
25

caused plaintiffs’ injury. Where the evidence of lost sales is as de minimus as it is here, it cannot
support a finding of a causal connection between lost sales and the alleged price discrimination.
Although there appear to be few precedents on point, the relevant decisions do suggest
that a trivial effect on a claimant’s sales is insufficient to demonstrate antitrust injury. For
example, in Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d 17 (1st Cir. 1981) (Breyer,
J.), the First Circuit rejected plaintiff’s claim, holding that because “the affected sales were but a
tiny fraction of its total business,” plaintiff was unable “to show any significant actual injury.”
Id. at 23. A similar analysis contributed to the dismissal in Hygrade Milk and Cream Co. v.
Tropicana Products, Inc., 1996 WL 257581 at *18-19 (S.D.N.Y. May 16, 1996) (rejecting claim
of antitrust injury where lost sales were, at best, “insignificant”).
Because they are essentially unable to match up a significant number of the customers
they lost with those the favored purchasers gained, plaintiffs have failed to demonstrate antitrust
injury. But see U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1377 (2d Cir.
1988) (affirming that an antitrust plaintiff may recover nominal damages under the Clayton Act,
albeit in the context of a Sherman Act claim). Defendants are therefore entitled to summary
judgment on this ground as well.
3. Equitable Relief
Plaintiffs seek equitable relief as well as damages. Injunctive relief “against threatened
loss or damage by a violation of the antitrust laws” is available pursuant to Section 16 of the
Clayton Act, 15 U.S.C. § 26. If a Robinson-Patman plaintiff establishes all the elements of its
prima facie claim, including competitive injury, injunctive relief may be granted without any
showing of antitrust injury.

26

Although the matter was not explicitly raised by the parties in their motion papers,
plaintiffs’ claims for equitable relief are foreclosed by Judge Glasser’s decision in Drug Mart III,
2007 WL 4526618 (E.D.N.Y. Dec. 20, 2007). In that decision, Judge Glasser considered
whether his decision granting defendants summary judgment with respect to plaintiffs’ damages
claims was dispositive of, or even relevant to, plaintiffs’ claims for equitable relief. Judge
Glasser determined that plaintiffs’ equitable relief claims could not survive, and rendered a
thorough decision that explained his reasoning in great detail. Little would be served by
retracing Judge Glasser’s steps here; I therefore simply summarize his decision as follows.
Citing Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104 (1986), Judge Glasser recognized
that, generally, a plaintiff may obtain equitable relief from price discrimination merely by
demonstrating a threat of antitrust injury, and need not establish actual injury and damages. Id.
at *6. Judge Glasser went on to conclude, however, that
where the allegedly anticompetitive conduct has been ongoing for a
substantial period of time, the distinction between Section 4’s requirement
of actual injury and Section 16’s more liberal requirement of threatened
injury tends to shrink or disappear. If the plaintiff cannot show itself to
have suffered some actual injury of the type the antitrust laws were
intended to prevent from a purportedly anticompetitive practice in which
the defendant has engaged for a substantial portion of time, the plaintiff is
effectively presumed to be unable to establish the existence of a threat of
future injury arising from that same conduct in the future, at least absent
some plausible explanation why a practice that has not created a
cognizable injury in the past creates a credible risk of doing so in the
future if permitted to continue.
Drug Mart III, 2007 WL 4526618, at *13 (relying on Merit Motors, Inc. v. Chrysler Corp., 569
F.2d 666 (D.C. Cir. 1977), Ashley Meadow Farms, Inc. v. Am. Horse Shows Ass’n, Inc., 617 F.
Supp. 1058 (S.D.N.Y. 1985), and Machovec v. Council for the Nat’l Register of Health Serv.
Providers in Psych., Inc., 616 F. Supp. 258 (E.D. Va. 1985)).
Accordingly, Judge Glasser granted summary judgment to the designated defendants with
27

respect to the designated plaintiffs’ claims for equitable relief. Because plaintiffs have failed to
demonstrate competitive injury, Judge Glasser’s decision controls here, and it requires dismissal
of plaintiffs’ claims for injunctive relief.
4. Section 2(d) and 2(f) Claims
Plaintiffs also bring claims pursuant to Sections 2(d) and 2(f) of the Act. 15 U.S.C.
§§ 13(d), (f). 21 Because 2(f) claims are derivative in nature and I find that plaintiffs failed to
establish their 2(a) claims, defendants’ motion for summary judgment with respect to the 2(f)
claims is granted. See Intimate Bookshop, Inc. v. Barnes & Noble, Inc., 88 F. Supp. 2d 133, 137
(S.D.N.Y. 2000). Section 2(d) does not require plaintiffs to establish competitive injury, Blue
Tree Hotels, 369 F.3d at 219 (citing FTC v. Simplicity Pattern Co., 360 U.S. 55, 65 (1959));
Hygrade Milk & Cream Co., 1996 WL 257581, at *13; under the Clayton Act, however,
plaintiffs must establish antitrust injury. Because I find that plaintiffs have failed to establish
antitrust injury, defendants’ motion for summary judgment with respect to the 2(d) claims is also
granted.

21

Section 2(d) prohibits
any person engaged in commerce to pay or contract for the payment of anything of value
to or for the benefit of a customer of such person in the course of such commerce as
compensation or in consideration for any services or facilities furnished by or through
such customer in connection with the processing, handling, sale, or offering for sale of
any products or commodities manufactured, sold, or offered for sale by such person,
unless such payment or consideration is available on proportionally equal terms to all
other customers competing in the distribution of such products or commodities.
15 U.S.C. § 13(d). Section 2(f) provides that it is “unlawful for any person engaged in commerce, in the course of
such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.” Id.
§ 13(f).
28

CONCLUSION
For all these reasons, defendants’ motion for summary judgment is granted.
SO ORDERED.
Dated:

Brooklyn, New York
August 16, 2012
/s/
STEVEN M. GOLD
United States Magistrate Judge

U:\eoc 2012\drug mart\m&o final.docx

29