Clayworth

I.

FACTUAL AND PROCEDURAL

BACKGROUND

The factual background of this case has been summarized in three previous opinions: two by Division Two of this court and one by the California Supreme Court. (Clayworth v. Pfizer, Inc. (2008) previously published at 165 Cal.App.4th 209 (Clayworth I), review granted Nov. 19, 1008, opn. ordered nonpub., and revd. in Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758 (Clayworth II); Clayworth v. Pfizer, Inc.

1 (Aug. 22, 2012, A131804 [nonpub. opn.] (Clayworth III).)1 We recount here only the facts that are relevant to the narrow issues in this appeal. The pharmacies filed this suit against the drug companies2 alleging that they conspired to fix prices to reap a higher profit from the sale of drugs sold in the United States than from the sale of the same drugs in Canada. They asserted that this price fixing violated the Cartwright Act (Bus. & Prof. Code, § 16720 et seq.) and the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). During discovery, evidence revealed that the drug companies’ alleged overcharges had been passed on by the pharmacies to their customers. The drug companies filed a motion based on this evidence arguing that…