Portland Retail Druggists Association, Etc. v. Kaiser Foundation Health Plan

Several retail pharmacies, and a nonprofit trade association to which some of them belong, appeal the orders of the district court disposing of all of their claims brought in two consolidated antitrust actions. We vacate the entry of judgment and remand for further proceedings.

I

This litigation began as two separate suits, one filed in the Northern and the other in the Central District of California in January 1977. Each complaint is substantially identical and charges appellees with violations of three distinct antitrust provisions: (1) Section 2(f) of the Robinson-Pat-man Anti-Price Discrimination Act, 15 U.S.C. § 13 (f), by knowingly inducing or receiving discriminatorily low prices from pharmaceutical suppliers; (2) Section 2 of the Sherman Act, 15 U.S.C. § 2 , by attempting to monopolize the retail drug market; (3) Section 1 of the Sherman Act, by unlawfully tying health products and services for sale. Class allegations were pleaded.

The various appellees together make up “health maintenance organizations,” operating under the Kaiser-Permanente Medical Care Program (Kaiser). A health maintenance organization, like the typical health insurer, in an actuarial sense spreads…