515 F.3d 883 (9th Cir. 2007), 05-35627, Cascade Health Solutions v. PeaceHealth

Docket Nº:05-35627, 05-35640, 05-36153, 05-36202.
Citation:515 F.3d 883
Party Name:CASCADE HEALTH SOLUTIONS fka McKenzie-Willamette Hospital, an Oregon nonprofit corporation, Plaintiff-Appellant, v. PEACEHEALTH, a Washington State nonprofit corporation, Defendant-Appellee, and PacificSource Health Plans, Defendant, Regence BlueCross BlueShield of Oregon; Providence Health Plan; McKenzie-Willamette Regional Medical Center Associat
Case Date:September 04, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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515 F.3d 883 (9th Cir. 2007)

CASCADE HEALTH SOLUTIONS fka McKenzie-Willamette Hospital, an Oregon nonprofit corporation, Plaintiff-Appellant,

v.

PEACEHEALTH, a Washington State nonprofit corporation, Defendant-Appellee,

and

PacificSource Health Plans, Defendant,

Regence BlueCross BlueShield of Oregon; Providence Health Plan; McKenzie-Willamette Regional Medical Center Associates, LLC, Defendant-Intervenors.

McKenzie-Willamette Hospital, Plaintiff-Appellee,

v.

PeaceHealth, a Washington State nonprofit corporation, Defendant-Appellant,

and

PacificSource Health Plans, Defendant,

Regence BlueCross BlueShield of Oregon; Providence Health Plan; McKenzie-Willamette Regional Medical Center Associates, LLC, Defendant-Intervenors.

McKenzie-Willamette Hospital, Plaintiff-Appellee,

v.

PeaceHealth, a Washington State nonprofit corporation, Defendant-Appellant.

McKenzie-Willamette Hospital, an Oregon nonprofit corporation, Plaintiff-Appellant,

v.

PeaceHealth, Defendant-Appellee.

Nos. 05-35627, 05-35640, 05-36153, 05-36202.

United States Court of Appeals, Ninth Circuit.

September 4, 2007

Argued and Submitted March 6, 2007.

Amended Feb. 1, 2008.

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M. Laurence Popofsky, Heather N. Leal, and Adam J. Gromfin, Heller Ehrman LLP, San Francisco, California, James H. Sneed and Linda M. Holleran, McDermott, Will & Emery, Washington, DC, Peter H. Glade, Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland, Oregon, for defendant-appellant and cross-appellee PeaceHealth.

Thomas M. Triplett, Kelly T. Hagan, William B. Crow, Nancy M. Erfle, and Michael T. Garone, Schwabe, Williamson & Wyatt, P.C., Portland, Oregon, Laurence E. Thorp, Thorp, Purdy, Jewett, Urness & Wilkinson, P.C., Springfield, Oregon, for plaintiff-appellee and cross-appellant Cascade Health Solutions.

Jerrold J. Ganzfried, James F. Rill, Scott E. Flick, and Thomas J. Dillickrath, Howrey LLP, Washington, DC, John Thorne and Paul J. Larkin, Jr., Verizon Communications, Inc., Arlington, Virginia, Douglas S. Grandstaff, Caterpillar, Inc., Peoria, Illinois, for amici curiae Verizon Communications Inc. and Caterpillar Inc.

Aidan Synnott, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for amici curiae law professors Daniel A. Crane, Thomas A. Lambert, Thomas D. Morgan, D. Daniel Sokol, and Richard C. Squire.

Michael Barnes, Sonnenschein Nath & Rosenthal LLP, San Francisco, California, for amicus curiae Catholic Healthcare Association of the United States.

Craig E. Stewart and Brian M. Hoffstadt, Jones Day, San Francisco, California, Sharon Douglass Mayo, Arnold & Porter LLP, San Francisco, California, for amici curiae Pacific Bell Telephone Co. and Visa U.S.A. Inc.

David T. McDonald, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Seattle, Washington, for amicus curiae Microsoft Corp.

Thomas H. Tongue, Brian R. Talcott, and David P. Rossmiller, Dunn Carney Allen Higgins & Tongue, LLP, Portland, Oregon, for amicus curiae Pacific Source Health Plans.

Michael E. Kipling, Kipling Law Group PLLC, Seattle, Washington, for amicus curiae Regence BlueCross BlueShield of Oregon.

Jonathan M. Jacobson, Wilson Sonsini Goodrich & Rosati Professional Corporation, New York, New York, Scott A. Sher, Wilson Sonsini Goodrich & Rosati Professional Corporation, Washington, DC, Deborah

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L. Galvin, Kraft Foods, Inc., Northfield, Illinois, Brian R. Henry, The Coca-Cola Company, Atlanta, Georgia, Debra A. Valentine, United Technologies Corp., Hartford, Connecticut, for amici curiae Genentech, Inc., Honeywell International Inc., Kimberly-Clark Corp., Kraft Foods, Inc., The Coca-Cola Company, and United Technologies Corp.

Thomas A. Miller, Robins Kaplan Miller & Ciresi L.L.P., Los Angeles, California, K. Craig Wildfang and Andrew M. Kepper, Robins Kaplan Miller & Ciresi L.L.P., Minneapolis, Minnesota, David A. Balto, Washington, DC, for amici curiae American Antitrust Institute, Consumer Federation of America, and Consumers Union.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. Nos. CV-02-06032-ALH, CV-02-06032 HA.

Before: RONALD M. GOULD, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

In a separate order filed concurrently with this order, we certified a question on Oregon price discrimination law to the Oregon Supreme Court. Accordingly, the opinion filed on September 4, 2007 is AMENDED as follows.

First, the last paragraph before section "I," originally, 502 F.3d at 901:

We vacate the jury's verdict in favor of McKenzie on the attempted monopolization, price discrimination, and tortious interference claims, and we vacate the district court's summary judgment in favor of PeaceHealth on the tying claim. We also vacate the district court's award of attorneys' fees, costs, and expenses. We remand for further proceedings.

shall be replaced by the paragraph:

We vacate the jury's verdict in favor of McKenzie on the attempted monopolization and tortious interference claims, and we vacate the district court's summary judgment in favor of PeaceHealth on the tying claim. We also vacate the district court's award of attorneys' fees, costs, and expenses. We certify a question to the Oregon Supreme Court on the price discrimination claim. We stay further proceedings pending resolution of the price discrimination question certified to the Oregon Supreme Court.

Second, the entire text of the section titled "II B," concerning Oregon state price discrimination law, 502 F.3d at 922, shall be replaced with:

After trial, the jury also returned a verdict in favor of McKenzie on its claim of primary-line price discrimination under Oregon state law. Because the validity of that jury verdict rests upon an unsettled question of Oregon antitrust law, we have certified that question to the Oregon Supreme Court.

Third, the section titled "IV," originally, 502 F.3d at 930:

The final issue before us is the appeal and cross-appeal of the district court's award of attorneys' fees and costs to McKenzie. Because we have vacated the district court's judgment in favor of McKenzie on the merits of McKenzie's attempted monopolization, price discrimination, and tortious interference claims, McKenzie is no longer a prevailing party for the purposes of Federal Rule of Civil Procedure 54(d)(1) and § 4(a) of the Clayton Act, 15 U.S.C. § 15(a). McKenzie is thus not entitled to attorneys' fees, costs, and expenses, and we vacate the district court's order awarding fees,

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costs, and expenses to McKenzie. If McKenzie prevails on remand, it may renew its request for attorneys' fees and costs. We dismiss McKenzie's cross-appeal on attorneys' fees and costs as moot.

shall be replaced with:

The final issue before us is the appeal and cross-appeal of the district court's award of attorneys' fees and costs to McKenzie. Because we have vacated the district court's judgment in favor of McKenzie on the merits of McKenzie's attempted monopolization and tortious interference claims, McKenzie is no longer a prevailing party for the purposes of Federal Rule of Civil Procedure 54(d)(1) and § 4(a) of the Clayton Act, 15 U.S.C. § 15(a). McKenzie is thus not entitled to attorneys' fees, costs, and expenses, and we vacate the district court's order awarding fees, costs, and expenses to McKenzie for those claims. If McKenzie prevails on remand, it may renew its request for attorneys' fees and costs. We dismiss McKenzie's cross-appeal on attorneys' fees and costs as moot. We withhold a determination of attorneys' fees, costs, and expenses for McKenzie's price discrimination claim pending resolution of the question certified to the Oregon Supreme Court.

Fourth, the section titled "V," originally, 502 F.3d at 930:

To summarize: In No. 05-35640, we VACATE the judgment in favor of McKenzie and REMAND for further proceedings. In No. 05-35627, we VACATE the summary judgment in favor of PeaceHealth and REMAND for further proceedings. In No. 05-36153, we VACATE the district court's order awarding attorneys' fees and costs to McKenzie. In No. 05-36202, we DISMISS the appeal as moot. Each party shall bear its own costs on appeal.

shall be replaced with:

To summarize: In No. 05-35640, we VACATE the judgment in favor of McKenzie on its monopolization and tortious interference claims. We certify a question to the Oregon Supreme Court on the price discrimination claim. In No. 05-35627, we VACATE the summary judgment in favor of PeaceHealth. In No. 05-36153, we VACATE the district court's order awarding attorneys' fees and costs to McKenzie. In No. 05-36202, we DISMISS the appeal as moot. Each party shall bear its own costs on appeal. We STAY further proceedings pending resolution of the price discrimination question certified to the Oregon Supreme Court.

and the footnote that was originally footnote 31 with the following text, 502 F.3d at 930:

In No. 05-35627, we also decline to address McKenzie's Noerr-Pennington arguments because these related to an evidentiary ruling and the issue may not arise on a retrial. Further, we hold that the district court's jury instruction on combination or conspiracy was not an abuse of discretion.

shall be placed at the conclusion of the amended sentence:

In No. 05-35627, we VACATE the summary judgment in favor of PeaceHealth.

OPINION

GOULD, Circuit Judge:

McKenzie-Willamette Hospital ("McKenzie") filed a complaint in the district court against PeaceHealth asserting seven claims for relief. Five of the claims arose under the federal antitrust laws: monopolization, attempted monopolization, conspiracy to...

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