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But Gary's, the party who has been “put upon,” is a seller, not a buyer, in the tying product market: when U. Healthcare accepts Gary's into its network of providers, what Gary's gains is the opportunity to sell drugs to U. As will appear, our disposition of BCI's antitrust claim will take us through a number of layers of analysis, dealing with both its per se and rule of reason claims, and in the course thereof treating such matters as product market definition (and the applicability vel non of the decision in Eastman Kodak Co. That is, it has taken conduct that constitutes tortious interference with contractual relations and has attempted to turn it into a violation of both federal antitrust and racketeering laws. Healthcare has established a network of health care providers which includes doctors, hospitals, and pharmacies in various geographic regions. Subscribers can change their pharmacy designation by filling out a form. Faced with a freeze on its Eagleville store and no movement on the Abington store's application for membership in the pharmacy network, Gary's President, Gary Wolf, set up a meeting with U. Healthcare officials, including Wolfson and marketing executive Scott Murphy, for December 1, 1993. In May 1994, even before Gary's had received a proposal from U. Healthcare, Risler told Lori Manley, the BCI customer service representative, that Gary's would be switching to CHA/U. The testimony with respect to Risler of Manley and the two additional BCI employees was admitted over U. After Gary's decision was officially announced, the audit of the Lansdale store uncovered no problems. On appeal, defendants challenge the denial of these motions. Where a different standard of review is implicated, it will be noted in the text. BCI claims that this arrangement was an illegal tie in violation § 1 of the Sherman Act, 15 U. Before turning to a review of the jury verdict, which the defendants challenge, we will consider the characterization question. Chrysler Motors Corp., 959 F.2d 468, 475 (3d Cir.1992) (in banc). In a typical tying case, a seller leverages its market power in the market for the tying product to require the buyer of the product to purchase an unwanted product in the tied market, thereby (unlawfully) foreclosing competition in that market. The defendants, in contrast, contend that the case is better viewed as one of reciprocal dealing which, they submit, carries with it less stringent antitrust standards. Here, BCI proffered ample evidence from which a jury could conclude that U. Healthcare attempted to acquire Gary's TPA business by threatening Gary's with withdrawal of membership in the U. As will be shown, in our view, BCI has attempted just the opposite. Healthcare prescription purchase program, individuals who enroll as subscribers in U. Healthcare's HMOs select one pharmacy from the network of providers at which they will purchase prescription drugs. Because subscribers seldom purchase prescription drugs from pharmacies other than those within the network, membership in the U. All four stores served as approved providers in the U. Brownstein later cited the results of the audit on the Eagleville store as the reason for the delay in processing the Abington store's application for membership in the pharmacy network, stating that U. Healthcare had concerns about Gary's dispensing too many brand-name drugs at its stores. In early June 1994, both BCI and CHA submitted bids for Gary's TPA business, but CHA was given the opportunity to review BCI's bid before submitting its final proposal. Manley testified that Risler confided that she felt she was being “strongarmed” by U. Healthcare, that “she herself did not want to leave BCI” and that the decision “was out of her control.” Two other BCI employees similarly testified that in the spring of 1994, Risler denied having any real choice in the decision to give Gary's TPA business to CHA in light of the loss of U. Healthcare's business that Gary's would suffer if it failed to switch TPAs. In the second week of June, Risler officially informed BCI of Gary's decision to give its TPA business to CHA. The district court denied these motions in all respects. Tarmac Roofing, 63 F.3d 1267, 1270-71 (3d Cir.1995) (“The legal foundation for the jury's verdict is reviewed de novo while the factual findings are reviewed to determine whether the evidence and justifiable inferences most favorable to the prevailing party afford any rational basis for the verdict.”). Introduction-Characterization of BCI's Claim BCI's antitrust claim arises from U. Healthcare's decision to use the leverage acquired by virtue of its ability to provide Gary's access to thousands of potential pharmacy customers to pressure Gary's into selection of its subsidiary, CHA, as its TPA. § 1, which generally outlaws “[e]very contract ․ in restraint of [interstate or international] trade or commerce.” Defendants submit that their conduct was simply hard bargaining that is well within the mainstream of business conduct and does not form the basis of a cognizable antitrust claim. They contend that the arrangement was one of reciprocal dealing and not tying, and that as a result the per se test for antitrust liability is inapplicable. The matter was presented to the district court primarily as a tying case, under which a plaintiff can assert both a per se and a “rule of reason” claim. Although we deal with all of the predicate acts invoked, rejecting defendants' contention that BCI lacks RICO standing, the only acts that arguably could come within RICO's ambit are alleged extortionate acts by the defendants. Rather, we conclude, based upon a passage from § 768 comment (e), that even if the Pennsylvania Supreme Court were to require independently actionable means, it would not apply that requirement in cases, such as this one, where the defendant exerted “economic pressure” or “a superior power” in a market unrelated to the competitive market. BCI also adduced evidence of heavy-handed tactics by U. The crux of that argument is that BCI's tort claims are predicated on the same conduct that underlie its federal claims, and that the law should therefore not permit BCI to repackage these failed claims as tortious interference. Healthcare pays the pharmacies that serve the prescription purchase plan a set monthly amount based on the number of U. Healthcare subscribers designating that pharmacy, without regard to the actual purchases of drugs from that pharmacy. In 1991, Eagleville Pharmacy, Incorporated, d/b/a/ I Got It At Gary's (“Gary's”) was a pharmacy chain of four stores in suburban Philadelphia. At this time, Gary's offered its full-time employees two options for their health insurance coverage: a Blue Cross/Blue Shield plan and a U. Although the extent to which Wolfson and Brownstein were involved in the implementation of the freeze sanction is unclear, both had participated regularly in Quality Assurance and Peer Review Committee meetings. Healthcare expressed its displeasure with Gary's termination of U. Healthcare coverage in 1991, and Wolfson commented that “we like to do business with people who do business with us.” At the same meeting, U. Healthcare requested and received permission to bid on Gary's TPA business for the next annual contract period. As of this time, CHA had not yet submitted a formal proposal to Gary's. Brownstein testified that he was informed that Gary's had agreed to switch TPAs to CHA, and “on the basis of that,” was instructed to enroll Gary's Abington store in the provider network. At approximately this same time, Robin Risler, who testified that, ultimately, the selection of a TPA was her responsibility, hired an insurance broker to assist her in evaluating the competing TPAs. As the time for Gary's formal switch to CHA drew near, U. Healthcare scheduled another on-site “quality assurance” audit, this time of Gary's Lansdale store for June 16, 1994. On appeal, defendants challenge the characterization of the arrangement at issue as a tying arrangement. Corp., 33 F.3d 194, 200 (3d Cir.1994); Jefferson Parish Hosp. Ryan, III, Montgomery, Mc Cracken, Walker & Rhoads, LLP, Philadelphia, PA, for Richard Wolfson, Scott Murphy and William Brownstein. This aspect of the case is quite complex, not because of the need for sophisticated economic analysis or the resolution of any close or cutting-edge trade regulation issue, but rather because of the difficulty of attempting to shoehorn into the traditional antitrust model a claim that resists such characterization. In support of its civil RICO claim, BCI alleges a variety of predicate acts, as a civil RICO claim requires. While the parties have ably briefed that point, the disposition of BCI's claim does not require us to resolve it. In addition to our analysis of the substance of Pennsylvania tort law, we address defendants' more fundamental argument that tort liability is not appropriate here. In fact, the parties stipulated that out of the approximately 1300 pharmacies in the U. Healthcare network for southeastern Pennsylvania and southern New Jersey, the freeze sanction had been imposed for generic utilization reasons only four times (including its use against Gary's) in all of 19. It stated: As you requested, I am writing you to acknowledge the agreement made between I got it at Gary's and U. Chen testified that once this letter was written, it was a “foregone conclusion” that, as long as CHA's bid was comparable and for the same services, Gary's would switch to CHA. Healthcare had inspected the Abington pharmacy, and, without further ado, approved its participation in the provider network. Healthcare acted with such speed in approving the Abington store's application for membership in the provider network that it failed to follow its own standard approval procedures, and did not present the store's application to the Membership Application Credentials Committee until after the pharmacy was already participating as a provider. Similarly, Gary's sixth pharmacy in Aston, Pennsylvania, was accepted into the provider network without delay. Healthcare's practices were illegal under both per se and rule of reason theories of antitrust liability.
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Miller, Kittredge, Donley, Elson, Fullem & Embick, LLP, Philadelphia, PA, Robert E. This appeal presents several quite difficult and important first impression questions for us, including: (1) whether the defendants' use of economic fear in the context of hard business bargaining constitutes wrongful conduct amounting to extortion for civil RICO purposes; (2) whether the inability of the plaintiff to prevail on antitrust and extortion-based civil RICO claims forecloses a successful state law tortious interference claim based on the same facts; and (3) whether the defendants' hard bargaining constituted “wrongful means” so as to forfeit the defense of privileged business competition to a tortious interference claim. Because all three of BCI's claims are grounded upon U. Healthcare's leveraging of its economic power, and because, under the jury instructions given by the district court, the RICO and state law claims may depend on the existence of a viable antitrust claim, the threshold doctrinal battleground has been over antitrust law. In the end, we conclude that, since the record before us does not support a finding that U. Healthcare exercised appreciable market power in a properly defined tying market, or that the arrangement at issue harmed competition in the tied market, the antitrust jury verdicts on both the per se and the rule of reason claims must be set aside. § 1951, “[e]xtortion” is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” 18 U. The parties' debate in this area was focused primarily on whether Pennsylvania would limit wrongful means to conduct that is independently actionable. On November 16, 1993, the Peer Review Committee recommended that Gary's Eagleville store be put on “freeze” for three-months. In contrast to the treatment of Gary's, other pharmacies with generic drug utilization rates lower than the Eagleville pharmacy and less complete documentation of prescription requests, had not been “frozen,” and instead had received lesser or no sanctions. This letter, dated January 3, 1994, and addressed to Murphy, was more explicit then the December 6 letter. We agree that as long as there are no additional cost[s] to the plan or reduction in service, U. Healthcare will assume the role of TPA for our self insured medical plan on July 1, 1994.* * *We also understand that in anticipation of our strengthening relationship, U. Healthcare will release the provider number for our pharmacy in Abington, PA. Healthcare lifted the freeze on the Eagleville store. This antitrust, civil RICO, and state law tortious interference case against defendant U. Healthcare, one of the nation's largest HMO's, two of its wholly-owned subsidiaries, and three of its top officers, is an exemplar of the legal fallout from this development. Healthcare's refusal to approve the application of a new Abington, Pennsylvania store of “I Got It at Gary's” (“Gary's”), a small southeastern Pennsylvania pharmacy, health and beauty aid chain, for membership in U. Healthcare's network of medical prescription providers. Armstrong World Indus., Inc., 980 F.2d 171, 218-19 (3d Cir.1992), the district court erred in requiring BCI to elect which remedies it will recover, and also in refusing to award injunctive relief to BCI under either RICO or the antitrust laws. Ed.2d 265 (1992)); geographic market definition (and the lack of utility of a flawed market survey in identifying the market); and above all, with the sufficiency of the record evidence (including the inferences which can be drawn therefrom) to support a legally viable antitrust claim. The battleground is over Restatement (Second) of Torts § 768 which sets forth a competitors privilege, and in fact over only one facet of that section, § 768(1)(d), which withdraws immunity from liability if the competitor employs “wrongful means.” The Pennsylvania Supreme Court has yet to define that term and hence we must predict how it would do so to resolve this case. Brownstein's audit also demonstrated that the average cost-per-prescription to U. Healthcare at the Eagleville pharmacy was in line with the network median, so that the store's prescriptions were not costing U. The Peer Review Committee, consisting of three outside pharmacists, had the power to recommend sanctions to Wolfson, who would then decide whether or not to impose them. Healthcare removed the Eagleville store from the list of approved pharmacies, and new U. Healthcare subscribers could not designate that store as their location for purchasing prescription drugs. When the December 6 letter failed to produce any movement on the Abington store, Wolf explained to Chen that, in order to get the Abington store approved, Gary's needed to “appease” U. Healthcare, and instructed her to write a further letter to U. Healthcare assuring them that Gary's would consider CHA's bid for its TPA services. In such cases, the ability to leverage this power to restrain trade in the tied market is presumed and no inquiry need be made into the actual prevailing market conditions in that market. d/b/a The Health Maintenance Organization of Pennsylvania. Perhaps the most significant development is the ascendency of managed-care driven health maintenance organizations (“HMOs”), whose hold over a large number of subscribers has permitted them to wield considerable economic power over health care providers. (“BCI”), a health care consulting firm whose specialty is serving as a Third Party Administrator (“TPA”) for health benefit self-insurers (such as Gary's), and to give its TPA business to a U. Healthcare subsidiary, Corporate Health Administrators (“CHA”). BCI cross-appeals, contending that, under Fineman v. The “fear” may be of economic loss as well as of physical harm. We conclude that the “claim of right” defense to extortion (i.e., a defense based on a lawful claim to the property obtained by the allegedly extortionate acts) formulated by the Supreme Court in United States v. While BCI must prove a number of things to prevail on a tortious interference claim under Pennsylvania law, only one is in serious dispute here. In 1991, to save costs, Gary's decided to terminate its relationship with Blue Cross/Blue Shield and U. Sandra Chen, the benefits manager at Gary's, sent termination letters to Blue Cross/Blue Shield and U. Gary's applied for admission of the new store to U. The audit results suggested that Gary's dispensed brand-name drugs instead of generic drugs at a rate higher than the median of the U. Healthcare provider, and lacked complete documentation of prescription requests. Brownstein forwarded the audit results to the Quality Assurance Committee, which referred the matter to the Peer Review Committee. Healthcare, Wolf instructed his sister, Robin Risler, the Director of Human Resources at Gary's, to “take a look at” switching to the TPA services offered by CHA at the anniversary date of Gary's contract with BCI (at which time the contract could be terminated with 30 days advance notice.) Concurrently, Wolf sent a letter to Wolfson (dated December 6, 1993) expressing, among other things, his “commitment that we will do everything possible to afford [U. Healthcare/CHA] the opportunity to service our company's needs as long as the programs are mutually beneficial”, and requesting that U. Healthcare consider acting on the pending application for Gary's Abington store. Per se liability exists where the defendant is found to have appreciable market power in the tying market. Bronston, Mayer, Brown & Platt, Washington, DC, for U. Healthcare, Inc., Corporate Health Administrators, United States Health Care Systems of Pennsylvania, Inc. Richard Feldman, Bazelon & Lees, Philadelphia, PA, for Brokerage Concepts, Inc. INTRODUCTION: The revolutionary changes in the health care field over the past decade have spawned many novel market arrangements. Healthcare conditioned membership in its provider network on Gary's agreement to discontinue its contractual relationship with plaintiff Brokerage Concepts, Inc. The defendants' appeal of the district court's denial of its post-verdict motion for judgment as a matter of law or, in the alternative, for a new trial, attacks the jury verdict on all fronts, asserting that the verdict is tainted by erroneous evidentiary rulings and jury instructions, and also that there is insufficient evidence to sustain any of the claims under proper instructions. As will be shown, resolution of BCI's extortion claim turns on whether the defendants' use of economic fear in the context of hard business bargaining was legally wrongful, an issue with which we have not previously had occasion to deal. Drawing instruction from Enmons and Viacom Int'l v. BCI also alleges the defendants unlawfully and improperly interfered with its existing and prospective contractual relations with Gary's in violation of Pennsylvania tort law. In need of a TPA to process its claims, Gary's evaluated several contenders, and then entered a written contract with BCI, terminable upon 30 days prior written notice. In August 1993, Gary's opened its fifth store, in Abington, Pennsylvania. The audit measured the pharmacy's compliance with the requirement of U. Healthcare's provider agreement that generic drugs be used whenever possible to contain costs. Such arrangements can be deemed illegal per se or be found to violate the rule of reason. The per se test is used in cases where exploitation of leverage in the market for the tying product is “probable”. Healthcare also applied pressure on Gary's in other ways-through “hard-ball” negotiation tactics, which deliberately left Gary's “hanging” as to whether its new application would be approved, and a seemingly vindictive audit of Gary's generic prescription drug dispensing policy at one of its stores that was already part of the U. On post-trial motions, the district court upheld the verdict but ruled that: (1) BCI must elect between the punitive damages awarded on its state law claim and the treble damages awarded on its federal claims (i.e., that it cannot recover both); and (2) if it elects the state law remedies, BCI cannot also collect the attorney's fees that are available under its RICO and antitrust claims. However, while BCI contends that this conduct amounts to extortion through the wrongful use of the fear of economic loss, defendants assert that the conduct is merely hard business bargaining that cannot be made to fit within the statutory framework of Hobbs Act extortion. We make no effort to announce any broad principles in this difficult area. That BCI's federal claims have fallen is not, however, the end of its case. Wolfson admitted at trial that his only reason for ordering such a review was that Gary's had terminated U. Healthcare coverage for its employees, but he testified that ordering a retaliatory review was not inappropriate. As Wolfson conceded at trial, the plan was to “let [Gary's] hang ․ until they did something.”At the same time that Gary's Abington store applied for membership in the pharmacy network, U. Healthcare, at the instruction of Brownstein, performed a two-day, on-site audit of the utilization of generic drugs at Gary's store in Eagleville, Pennsylvania. The law is well developed as to when tying arrangements should give rise to liability under the Sherman Act. Further, we need not reach this issue in order to resolve the present appeal since we find that BCI failed to set forth either a valid per se or rule of reason antitrust claim-a finding fatal to both a tying claim and a reciprocal dealing claim under any test we might devise. Per se Liability Since our jurisprudence regarding both per se and rule of reason liability has developed in the context of tying cases, we will use the terms “tying” product market and “tied” product market to describe the two markets at issue despite our belief that the arrangement in this case lies somewhere between tying and reciprocal dealing. BCI sought compensatory and treble damages, injunctive relief, and counsel fees on its antitrust and civil RICO claims, and compensatory and punitive damages on its state law tortious interference claim. The case proceeded to trial before a jury, which rendered a verdict finding U. Healthcare and its officers liable to BCI on all of BCI's claims, and awarding compensatory and punitive damages. Healthcare employed economic leverage in an effort to force Gary's to chose CHA as its TPA. In so concluding, we are mindful of, and address, those cases that reject the broad application of Enmons outside of the labor context in which it arose for fear that it would “effectively repeal the Hobbs Act.” See United States v. Having determined that the claim of right defense is available to the defendants in this case, we address the difficult problem of separating out lawful from unlawful claims to property. Having determined that BCI did not present a sustainable case of extortion, or establish any of the other predicate acts alleged, we set aside the jury verdict as to the civil RICO count. Wolfson became “upset” that Gary's had decided to self-insure, and knowing that Gary's was approved to serve as a pharmacy for U. Healthcare subscribers, promptly ordered an internal “quality assurance” review of the generic utilization rates of Gary's stores. Healthcare's pharmacy program, advised Brownstein not to process the application. In compliance with Wolfson's instructions, Brownstein did not process the application. Instead, Gary's was informed that the application would be processed in due course. One party offers to buy the other party's goods, but only if the second party buys other goods from the first party.” Spartan Grain & Mill Co. The Sherman Act is concerned with what has been termed “coercive” reciprocal dealing, where a party uses its economic power as a purchaser in one market in order to restrict competition in another market where it is a seller. Fortunately, resolution of the antitrust issue presented in this appeal does not require us to wedge the facts into either doctrinal box, for we conclude that there was insufficient evidence to support liability under the Sherman Act regardless of the label placed on the challenged arrangement. However, we decline to resolve this conflict here since the amorphous and idiosyncratic nature of this case does not provide an appropriate framework in which to fully flesh out the need for a separate test for reciprocal dealing arrangements.
BCI thereupon sued in federal district court asserting Sherman Act and civil RICO claims, as well as a claim of tortious interference with contractual relations under Pennsylvania law. Ed.2d 379 (1973), is applicable in cases, such as this one, which involve solely the allegation of the use of economic fear in a transaction between two private parties. We conclude that BCI's extortion claim can only survive if Gary's had a right to pursue its business interests free of the fear that it would be excluded from U. If such a law was in force, Gary's would have had a legal entitlement to be a member of the provider network and thus to be free of the fear that it would be excluded from that network if it did not switch TPA providers. Upon receipt of Gary's letter terminating its insurance contract, David Rocchino, one of U. Healthcare's sales vice-presidents, telephoned Wolfson to inform him of the new development and expressed his displeasure. Healthcare's executives acknowledged in their testimony that their motivation in refusing to process Gary's application was retaliatory, based on a belief that Gary's did not deserve U. Healthcare's business once Gary's had terminated U. Healthcare's contract in a manner that Wolfson and Brownstein found to be offensive. Healthcare told Gary's of the decision to refuse to process the application. Unlike tying-where one party is only a seller and the other only a buyer-reciprocal dealing exists where “two parties face each other as both buyer and seller. More colloquially, reciprocal dealing exists when one party tells the other: “I'll buy from you, if you buy from me.” Again, like tying, not all reciprocal dealing arrangements are anticompetitive. As a result, we are hesitant to conclude that the arrangement was reciprocal dealing, but instead believe that the true character of the arrangement lies somewhere between the two practices. This position is logical since both practices implicate the same antitrust concern-the unlawful extension of economic power in one market to another market. A market has two components, product and geographic. Healthcare subscribers constituted a significant portion of its customer base, Gary's understandably yielded to the pressure and gave its TPA business to CHA. Y.1990), we make a rule only for a very narrow subset of the potential universe of extortion cases: one involving the accusation of the wrongful use of economic fear where two private parties have engaged in a mutually beneficial exchange of property. Albeit with misgivings, we find that since Pennsylvania, unlike other states, has no “Any Willing Provider” law that compels HMOs to allow all interested and minimally qualified providers into their network, BCI had no such right. Thus, defendants argue, the arrangement is more accurately labeled as reciprocal dealing where U. Healthcare conditioned its agreement to purchase prescription drugs from Gary's on Gary's agreement to purchase TPA services from CHA. While there is force to defendants' broader argument, we do not believe that the relationship between Gary's and U. Healthcare can be neatly squeezed into the purchase/sale paradigm. Where appreciable tying market power cannot be shown, inquiry into the tied product market cannot be avoided, and the plaintiff therefore has the more difficult burden of showing that the arrangement violated the rule of reason because it unreasonably restrained competition in the tied product market. All those that have examined the relationship between tying and reciprocal dealing have determined that each practice should be evaluated under both the per se and rule of reason tests. Defining the Relevant Market Before we can evaluate the extent to which U. Healthcare exercises power in the tying market, that market must be properly defined. While these attempts have been frustrated on this appeal, that result does not foreclose BCI's state law claim. Healthcare bars all TPAs other than CHA access to its network. Healthcare, CHA, and HMO PA collectively as the “corporate defendants,” and Wolfson, Brownstein and Murphy collectively as the “individual defendants.”B. Under this program, subscribers can purchase their prescription drugs for a small co-payment (such as .00), with the rest of the cost of the prescription reimbursed to the pharmacy by U. Among the issues discussed were Gary's generic drug use and the admission of the Abington store to the U. Moreover, there were no further audits of Gary's pharmacies. The majority of the issues before us arise from the district court's denial of defendants' renewed motion for judgment as a matter of law, and, as to these issues, our review is plenary. Tying exists where a seller conditions the sale of one good (the tying product) on the buyer also purchasing another, separate good (the tied product). The antitrust concern over tying arrangements arises when the seller can exploit its market power in the tying market to force buyers to purchase the tied product which they otherwise would not, thereby restraining competition in the tied product market. Margin closeout forex. BCI's tortious interference claim does not require proof of criminal conduct as does its extortion claim, nor is it anchored in the same kind of market based considerations as is its antitrust claim. At all times relevant to the present dispute, defendant Richard Wolfson was the Director of Pharmacy Programs and the Chairman of the Board of U. Healthcare, defendant William Brownstein served as the Regional Pharmacy Director for Pennsylvania, and defendant Scott Murphy was the Senior Vice President of U. Healthcare, and the senior marketing executive for CHA. The reasons behind Risler's decision to switch to CHA are in dispute. Concurrently, defendants filed an alternative motion for a new trial pursuant to Fed. We see no need for congruence between federal antitrust law, which is designed to protect competition and free access to markets, and state business tort law, which is designed to protect competitors. BCI's TPA expert, Carlton Harker, testified that for the one year period of 1994-95, the BCI proposal would have saved Gary's approximately ,000, or 14%, compared to the proposal submitted by CHA. Notwithstanding this conclusion, the tortious interference verdict cannot stand, and a new trial on the tort claims is necessary, because the jury instructions permitted the jury to find tortious interference based on antitrust and/or civil RICO violations which, we have concluded, did not exist. Healthcare operates an HMO, CHA utilizes only the U. Harker further testified that he did not perceive any significant differences in the services provided under the respective plans that would explain the cost differential. Hence, while we reverse outright on the antitrust and civil RICO claims, we will remand the tortious interference claims for a new trial. It is a TPA, and provides the same type of services for self-insured employers as does BCI. Risler testified that, in making the decision to give Gary's TPA business to CHA, she was motivated by non-price, quality of service reasons. The Jury Verdict After 17 days of trial, the case was submitted to the jury on special interrogatories. Following the verdict, defendants renewed their motion for judgment as a matter of law pursuant to Fed.
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We intimate no view on the question whether defendants' behavior was outrageous enough to justify an award of punitive damages under Pennsylvania law; that will be for determination on remand. The Parties BCI serves as a TPA for employers who wish to self-insure for their health benefits and other insurance needs. She also acknowledged, however, that she had been satisfied with BCI's services. Healthcare did approve the Walmart stores in Massachusetts, where an Any Willing Provider statute was in force. Knowlton testified that, based on this evidence, and the evidence of U. Healthcare's successful dominance of other pharmacies, exclusion from the U. Healthcare provider network could threaten Gary's survival. The jury returned a verdict for BCI on all counts and awarded BCI 0,000 in compensatory damages. Since the antitrust and RICO claims are out of the case, we also need not address the question of the propriety of injunctive relief for either RICO or antitrust claims, or the interesting issues posed by the cross-appeal. In this capacity, BCI designs the employer's self-insured benefit plan and usually recommends a health services provider network. Healthcare and its subsidiaries had approximately 1,695,000 subscribers enrolled in its insured plans. At all events, the results of the decision are clear-BCI lost its contract with Gary's. § 1, by tying the participation by Gary's in the U. Healthcare pharmacy network to the purchase of CHA's TPA services for Gary's employees. § 1961 et seq., by engaging in or conspiring to commit at least two acts of racketeering activities, among them extortion, bribery, mail and wire fraud, and violations of the Travel Act. Healthcare's policy, choosing instead to forgo membership in the provider network. Defendants' experts testified that linkage of network membership and purchase of TPA services was normal business behavior and was not anti-competitive.4. Knowlton testified that this reduction, when considered with the fact that U. Healthcare does not pay pharmacies a dispensing fee, made U. Healthcare's overall compensation to pharmacies the lowest of any third-party payor in the southeastern Pennsylvania region. As a result, he testified that Gary's had no choice but to accept U. The jury also awarded BCI We intimate no view on the question whether defendants' behavior was outrageous enough to justify an award of punitive damages under Pennsylvania law; that will be for determination on remand. The Parties BCI serves as a TPA for employers who wish to self-insure for their health benefits and other insurance needs. She also acknowledged, however, that she had been satisfied with BCI's services. Healthcare did approve the Walmart stores in Massachusetts, where an Any Willing Provider statute was in force. Knowlton testified that, based on this evidence, and the evidence of U. Healthcare's successful dominance of other pharmacies, exclusion from the U. Healthcare provider network could threaten Gary's survival. The jury returned a verdict for BCI on all counts and awarded BCI $200,000 in compensatory damages. Since the antitrust and RICO claims are out of the case, we also need not address the question of the propriety of injunctive relief for either RICO or antitrust claims, or the interesting issues posed by the cross-appeal. In this capacity, BCI designs the employer's self-insured benefit plan and usually recommends a health services provider network. Healthcare and its subsidiaries had approximately 1,695,000 subscribers enrolled in its insured plans. At all events, the results of the decision are clear-BCI lost its contract with Gary's. § 1, by tying the participation by Gary's in the U. Healthcare pharmacy network to the purchase of CHA's TPA services for Gary's employees. § 1961 et seq., by engaging in or conspiring to commit at least two acts of racketeering activities, among them extortion, bribery, mail and wire fraud, and violations of the Travel Act. Healthcare's policy, choosing instead to forgo membership in the provider network. Defendants' experts testified that linkage of network membership and purchase of TPA services was normal business behavior and was not anti-competitive.4. Knowlton testified that this reduction, when considered with the fact that U. Healthcare does not pay pharmacies a dispensing fee, made U. Healthcare's overall compensation to pharmacies the lowest of any third-party payor in the southeastern Pennsylvania region. As a result, he testified that Gary's had no choice but to accept U. The jury also awarded BCI $1,000,000 in punitive damages in connection with its tortious interference claim. The providers in the network then supply the health care, and BCI reviews and processes the resulting claims for the employer. In March 1995, BCI filed the present suit challenging the defendants' actions that preceded Gary's decision to terminate its TPA contract with BCI. Healthcare, HMO PA, and CHA violated Section 1 of the Sherman Act, 15 U. In Count II, BCI alleged that all defendants violated the Racketeer-Influenced and Corrupt Organizations Act (“RICO”), 18 U. In a Count III, BCI also contended that, to the extent that defendants Wolfson, Murphy, and Brownstein were not principal wrongdoers, they are liable for aiding and abetting under RICO. The Setting of Reimbursement Prices BCI also presented evidence of how U. Healthcare exercised its market power to set reimbursement prices. Yet, notwithstanding the major reimbursement price reduction, only two pharmacies out of approximately 8000 in 12 or 13 states discontinued their participation in the U. That award was apportioned as follows: $400,000 against U. Healthcare, $200,000 against CHA, $100,000 against HMO PA, $200,000 against Wolfson, $75,000 against Murphy, and $25,000 against Brownstein. ||Legal Name UBI-BB BEST BROKERS OF ARIZ. LTD. Business Name UBI BUSINESS BROKERS. License. Business Address 1014 EAST CAMELBACK RD PHOENIX, AZ 85014. However, typographical and other errors may be present.Orion Context Broker implements the FIWARE NGSI version 2 API. Finally, note that you will get an error in case you try to query a non-existing entity or. entity type and entity service path cannot exceed 1014 characters this is not a typo.Insurance Brokers of MN - Buffalo 1014 Highway 55 East Buffalo, MN 55313. Phone 763-682-4517. Fax 763-682-6459 m.zumbusch@,000,000 in punitive damages in connection with its tortious interference claim. The providers in the network then supply the health care, and BCI reviews and processes the resulting claims for the employer. In March 1995, BCI filed the present suit challenging the defendants' actions that preceded Gary's decision to terminate its TPA contract with BCI. Healthcare, HMO PA, and CHA violated Section 1 of the Sherman Act, 15 U. In Count II, BCI alleged that all defendants violated the Racketeer-Influenced and Corrupt Organizations Act (“RICO”), 18 U. In a Count III, BCI also contended that, to the extent that defendants Wolfson, Murphy, and Brownstein were not principal wrongdoers, they are liable for aiding and abetting under RICO. The Setting of Reimbursement Prices BCI also presented evidence of how U. Healthcare exercised its market power to set reimbursement prices. Yet, notwithstanding the major reimbursement price reduction, only two pharmacies out of approximately 8000 in 12 or 13 states discontinued their participation in the U. That award was apportioned as follows: 0,000 against U. Healthcare, 0,000 against CHA, 0,000 against HMO PA, 0,000 against Wolfson, ,000 against Murphy, and ,000 against Brownstein. Finra registered broker dealer. Case opinion for US 3rd Circuit BROKERAGE CONCEPTS INC v. 97 1014. in addition to the methodological errors set out in note 14, used the improper.Sqft single family home located at 1014 Sunny Field Ln, Lawrenceville, GA. splits at a fraction of the cost than their current broker was charging them.Applications generated by Free Pascal might generate run-time errors when certain abnormal conditions are detected in the application. This appendix lists the.
BCI also presented evidence that the prescription drug business of pharmacies is a low-margin business that depends on high volume in order to operate profitably. Knowlton further testified that other sources of information indicated that his survey conclusions as to market share would apply generally in Montgomery County.3. With respect to the pharmacy operation in each of these chains, U. Healthcare conditioned participation in the provider network upon their making U. In order to maximize their sales, pharmacies typically become members of as many prescription drug plans as possible. Out of approximately 1300 participating pharmacies in southeastern Pennsylvania and southern New Jersey, only four pharmacies left the U. Healthcare pharmacy network in the period from January 1, 1993 to October 1, 1995 for reasons other than going out of business.2. Healthcare's market power based only on the responses of those stores that listed U. Forex telegram channel indonesia. [[Knowlton's Survey At trial, BCI presented a telephone survey of the market areas surrounding several of Gary's pharmacies, performed by Dr. In this survey, pharmacy students telephoned six to eight pharmacies in the vicinity of three arbitrarily selected Gary's store locations and asked them a series of questions. In fact, the ultimate result of the contract was that money flowed in the opposite direction-from U. Healthcare to Gary's in exchange for prescription drugs purchased by U. Healthcare members that designated one of Gary's stores as their network pharmacy. This position has not been adopted by any of our sister circuits. The elements of a per se claim are (1) the defendant seller must sell two distinct products; (2) the seller must possess market power in the tying product market; and (3) a substantial amount of interstate commerce must be affected. Defendants maintain that the definition was incorrect as a matter of law, and that U. Healthcare could not exercise sufficient power in a properly defined tying market to sustain a per se claim.1. Healthcare and CHA tied the purchase of CHA's TPA services to the right to continued participation in the U. Defendants contend that BCI's characterization is not correct since U. Healthcare did not “sell” Gary's the ability to participate in the pharmacy network as participation in that network is free. Defendants seek to persuade us to fill this vacuum by holding that reciprocal dealing arrangements cannot be found illegal per se, but instead should be judged only under the less rigorous rule of reason test. Where such elements are shown, the defendant's tying practices are condemned without further proof of anti-competitive effect. Principally at issue in this appeal is whether BCI met its burden of proving the second element of this test: that U. Healthcare exercised market power in the tying market. The viability of that finding, however, depends on the correctness of the market definition sent to the jury.
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In order to characterize this arrangement as a tie, U. Healthcare must be deemed to have “sold” Gary's the ability to participate in its pharmacy network, but only if Gary's also purchased CHA's TPA services. Indeed, this Court has yet to set forth a test for determining when a reciprocal dealing arrangement runs afoul of the Sherman Act. Healthcare exercised sufficient market power in the tying market to constitute a per se violation of the Sherman Act. In contrast to tying arrangements, reciprocal dealing has not been the subject of extensive case law development. BCI seeks to support this product market by arguing that no products are “reasonably interchangeable” with U. Healthcare members, and that it is compelled by the Supreme Court's decision in Eastman Kodak Co. Fortunately, as will be shown, delineation of the exact contours of the geographic market is not necessary to an evaluation of the merit of plaintiff's per se claim. The Product Market BCI has posited a single brand market consisting solely of U. Healthcare members with prescription drug benefits. Should we accept this market definition our inquiry would be at an end, for U. Healthcare must, by definition, control 100% of this product market regardless of the geographic market. Ghost trade ragnarok mobile. The burden is on the plaintiff to define both components of the relevant market. Bell Telephone Co., 24 F.3d 508, 512 (3d Cir.1994); Tunis Bros. However, while the evidence enables us to determine that the proper product market consists of all purchasers of prescription drugs, it is more difficult to determine the relevant geographic market on the basis of the record. Domino's Pizza, Inc., 124 F.3d 430, 436 (3d Cir.1997); Pastore v. They submit instead that the relevant tying market consists of “all purchasers of prescription drugs in the greater Philadelphia area.”We agree that BCI failed to meet its burden of presenting sufficient evidence to support the product and geographic markets adopted by the jury. The tying market definition asserted by BCI and adopted by the jury was: “U. Healthcare members with prescription drug benefits in the areas surrounding ․ Gary's pharmacies in suburban Philadelphia.” Defendants contend that this definition contains both a flawed product market-U. Healthcare members with prescription drug benefits-and a flawed geographic market-the areas surrounding Gary's pharmacies in suburban Philadelphia.
The outer boundaries of a product market are determined by evaluating which products would be reasonably interchangeable by consumers for the same purpose. One measure of interchangeability is “cross elasticity of demand between the product itself and substitutes for it.” Queen City Pizza, 124 F.3d at 437 (quoting Brown Shoe Co. Examining each of these contentions in turn, we conclude that this narrow market definition cannot stand as a matter of law. “Interchangeability implies that one product is roughly equivalent to another for the use to which it is put; while there might be some degree of preference for the one over the other, either would work effectively.” Allen-Myland, 33 F.3d at 206. Thus the issue is which products, if any, Gary's, the consumer, would find to be reasonably interchangeable with, or substitutable for, U. Healthcare members who purchase prescription drugs. Defendants argue that no evidence in the record contradicts the logical assumption that Gary's considers members of other prescription plans, or uninsured persons, completely interchangeable with U. It is true that when Gary's loses a supply of customers it must compete for other customers to make up lost sales; however, this does not mean that those new customers, when found, would not be interchangeable with U. When there is cross-elasticity of demand between products in a market, “the rise in the price of a good within [the] relevant market would tend to create a greater demand for other like goods in that market.” Tunis Brothers, 952 F.2d at 722. Product market definition turns on the existence of close substitutes for a particular product, not on the ability of any particular consumer to switch effortlessly to such substitutes. BCI also seeks to support its single brand market by reference to the Supreme Court's opinion in Kodak. In Kodak, independent service organizations brought suit alleging that Kodak had tied replacement parts for its copiers to Kodak repair service. The only evidence to which BCI directs us to support its argument that there are no products reasonably interchangeable with U. Moreover, to the extent that BCI is arguing that U. Healthcare customers are not interchangeable with other customers because the market for prescription customers is so competitive that U. Healthcare members are difficult to replace, this argument also does not support its product market definition. The fact that participating pharmacies do not drop out of the U. Healthcare network when it lowers its payment schedule does not prove that U. Healthcare's action failed to increase the pharmacies demand for customers who are not members of U. Nor would it be economically rational to do so since pharmacies, like most businesses, seek as many customers as they can find.
Healthcare lowered the prices it would pay to pharmacies for the purchase of prescription drugs by U. Healthcare members, none of the pharmacies dropped out of the U. This evidence does not support BCI's market definition. Even though pharmacies undoubtedly desire higher profit customers, it would not be necessary for them to drop out ofthe U. Healthcare network in order to pursue, or acquire, these customers. BCI asserts that this shows that there is no cross-elasticity of demand between U. Healthcare members and other purchasers of prescription drugs since, if there were, then the lowering of prices would have caused pharmacies to stop doing business with U. Healthcare customers in favor of other customers who paid more. Although Kodak exercised complete control over the market for the tying product-replacement parts for its copiers-since they were unique, see id. According to Kodak, any attempt to exercise market power in the derivative market for copier parts would raise the “life cycle” cost of owning a Kodak copier, and customers would buy fewer Kodak copiers, making the attempt unprofitable. at 2076-77, it argued that it could not, as a matter of law, have sufficient market power in that derivative aftermarket to restrain trade because the primary market for new copiers was competitive. The Supreme Court declined to let Kodak's economic theory prevail on summary judgment, holding that, under certain circumstances, the buyer of a Kodak copier could be “locked in” to the Kodak parts market by virtue of the high “switching costs” of purchasing a new copier from another manufacturer. In order to impose per se antitrust liability, it must be shown that the defendant had “appreciable economic power in the tying market.” Kodak, 504 U. In most instances, the proper course in the face of such circumstances would be to remand the case for a new trial; however, our review of the record indicates that it is simply not possible for U. Healthcare to have exercised sufficient market power in the properly defined product market to constitute a per se violation in any plausible geographic market. Thus, Kodak establishes that a single brand market may be considered the relevant market where a legitimate class of consumers is locked in to purchasing a non-interchangeable tying product in a derivative market due to high switching costs in the primary market. BCI directs us to no evidence introduced at trial to support a conclusion that Kodak is applicable to this case. Under BCI's theory of the case, Gary's is the purchaser of the tying product which is U. Healthcare members who purchase prescription drugs. Thus in order to fall within Kodak 's concept of lock in, BCI needed to, at a minimum, provide evidence that Gary's-not U. However, mere invocation of the common-sense precept that customers use pharmacies near their homes does not satisfy BCI's burden of showing that the particular geographic market chosen fairly represents “the area in which a potential buyer may rationally look for the goods or services he or she seeks.” In this case, where BCI introduced no evidence to support such a conclusion, an amorphous and gerrymandered geographic market cannot stand as a matter of law. at 727 (“The mere delineation of a geographical area, without reference to a market as perceived by consumers and suppliers, fails to meet the legal standard necessary for the relevant geographic market.”).2. Our task is made more difficult by the fact that the record does not contain sufficient evidence to enable us to clearly define the relevant geographic market. Thus, the need to preserve symmetry between the treatment of general and special verdicts would not be served, and would indeed be denigrated, by a finding of waiver predicated on Rule 49(a). CONCLUSIONFor the foregoing reasons, the judgment of the district court will be reversed and the case remanded with instructions to grant judgment for the defendants' on BCI's antitrust and civil RICO claim, and to conduct a new trial on BCI's claim for tortious interference with contractual relations. The record does not develop the extent to which these complaints may have been facilitated by New Jersey's enactment, in July 1994, of an Any Willing Provider statute which provides that a pharmacy cannot be excluded from an HMO if it “accepts the terms” of the HMO.
In such a situation, Kodak copier owners would be forced to purchase copier parts from Kodak since there were no reasonable substitutes for such parts. But even if it is, the argument is misplaced since Kodak is concerned with the situation where the victims of the alleged tie-in that case, the purchasers of Kodak copiers-are faced with high switching costs and thus are “locked in” to the market for the tying product. Thus we reject defendants' argument that the relevant geographic market should be the greater Philadelphia area. Healthcare's Power in the Tying Market Having determined that the market definition adopted by the jury was erroneous as a matter of law, we are now faced with the task of assessing U. Healthcare's market power in a properly defined market on the basis of the trial record. “Market power is defined as the ability' to raise prices or to require purchasers to accept burdensome terms that could not be exacted in a completely competitive market.' ” Allen-Myland, 33 F.3d at 200 (quoting United States Steel Corp. BCI also contends that since the case was submitted to the jury on special interrogatories, defendants' failure to proffer any interrogatories requiring the jury to specify the basis on which they found defendants conduct to be wrongful resulted in a waiver by defendants of any right they had to a new trial on that basis. In this case, even had the jury rendered a general verdict, we would be constrained to remand for a new trial based on errors in the charge. When asked by BCI's counsel whether he ordered the review of Gary's in response to Gary's decision to terminate with U. Healthcare, Wolfson responded: Well, I didn't think it was appropriate with an account that we had a relationship with just to send a “dear sir” letter [of termination] to a post office box․ I didn't feel that they were giving us due consideration and if they were operating in that fashion, I wanted to look to see if in fact there were any other issues related to the I Got It At Gary's Pharmacies.4. We doubt that this argument is factually correct, for we find no evidence suggesting that U. Healthcare members who wish to switch HMOs face switching costs significant enough to constitute a lock in. We believe that Knowlton is undoubtedly correct to the extent that the jury could reasonably find that pharmacy customers generally use pharmacies near their home. This conclusion is buttressed by the fact that defendants did object at trial to the jury instructions regarding the alleged antitrust violation. Otherwise there would always be the danger that the special verdict would be set aside because the jury had failed to make a particular finding whereas a general verdict could not be challenged on this ground.994 F.2d at 258 (citing 5A Moore's Federal Practice ¶ 49.03(4) (1993); 9A Charles A. Miller, Federal Practice and Procedure § 2507 (1971)). In contrast, Chen testified to the receipt of a polite and professional phone call from a Blue Cross/Blue Shield representative, inquiring if they could accommodate Gary's needs in anyway and as to the reason behind Gary's decision to cancel their health care contract.3. Healthcare and, by extension, to the pharmacies in its provider network. To meet its burden of proving the relevant geographic market, see Tunis Brothers Co., 952 F.2d at 726, BCI was required to show that the geographic market it proposed was “the area in which a potential buyer may rationally look for the goods or services he or she seeks.” See id. Knowlton defines a primary trading area is the geographic area surrounding a pharmacy from which it draws 50% of its clientele, and a secondary trading area as the geographic area from which it draws 90% of its clientele. In such a situation, it would be unfair to visit the harsh consequence of waiver on the defendants. Specifically, plaintiff relies on that part of Rule 49(a) which provides that if, when submitting special interrogatories to the jury, “the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury.” Fed. As noted in Watkins, this abilityis imperative if a special verdict ․ rather than a general verdict is to continue to be employed. Please adjust your records to reflect this upcoming change and advise me of any information you may need to finalize our relationship.2. In response to defendants' motion, pursuant to Fed. Forex trading pdf ebooks free download. The Geographic Market BCI proposed a non-contiguous, gerrymandered geographic market consisting solely of the areas surrounding Gary's pharmacies in suburban Philadelphia. Knowlton that the area from which Gary's stores, or any pharmacies, draw their customers is made up of primary and secondary trading areas surroundings its stores. BCI argues that remand is not required since defendants' waived any objection to the jury charge. Thus, it was not until our decision on appeal that the tortious interference instructions became erroneous. 49(a), which governs the use of special verdicts in the federal courts. Nor would such an application be in keeping with the purpose of that section of Rule 49(a) that allows the trial court to “fill in the gaps” of a special verdict. Healthcare read: Dear Sirs: This letter is to advise U. Healthcare that effective June 30th, 1991, ․ Gary's will discontinue its medical insurance coverage with your organization. The district court's initial order of judgment made it unclear whether BCI was to receive $200,000 in total compensatory damages, or to recover that amount separately on each of its three legal theories (thus allowing a total recovery of $600,000 in compensatory damages). The Supreme Court has twice made use of the following as an example of a tie that is not a concern of the antitrust laws: “[I]f one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition if its competitors were ready and able to sell flour by itself.” Jefferson Parish Hosp. The only evidence that BCI offered to support its geographic market was testimony from Dr. Pacific Rail Service, 32 F.3d 820, 831-32 (3d Cir.1994). As noted, the problem with the court's instruction was not that it misstated the law, but rather that, in correctly stating the law, it created the possibility that errors in the RICO and antitrust verdicts would contaminate the tortious interference verdict. Fibreboard Corp., 994 F.2d 253, 257-58 (5th Cir.1993), we do not read this rule, by its terms, as applying to the situation where, as here, the defendants' objection is not based on the fact that the wrongfulness issue was not submitted to the jury, but rather that the court gave a definition of wrongful that has been rendered erroneous by our decision on this appeal. Rule 59(e), to alter or amend the order of judgment, the district court subsequently amended its order to make clear that BCI may recover only once the $200,000 in compensatory damages that it was awarded. Of course, not all tying arrangements have anti-competitive effects in violation of the Sherman Act. Reading Co., 372 F.2d 83, 86 (3d Cir.1967)); see also Mc Kenna v. Despite this failure, we do not find waiver since we see no basis on which defendants could have objected to this portion of the instruction. While, under Rule 49(a), a court may be deemed to have made a factual finding on an element of an offense that is necessary to sustain a judgment even though the jury did not specifically answer an interrogatory concerning that element, see Watkins v.