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IN RE BRAND NAME PRESCRIPTION DRUGS ANTITRUST LITI

January 4, 1995

IN RE: BRAND NAME PRESCRIPTION DRUGS ANTITRUST LITIGATION; This document relates to: ALL CASES


The opinion of the court was delivered by: CHARLES P. KOCORAS

 CHARLES P. KOCORAS, District Judge:

 This matter is before the court on the Manufacturer Defendants' motion for certification for interlocutory appeal. On October 18, 1994, this court issued an order denying the Manufacturer Defendant's motion for summary judgment. In that motion, the Manufacturer Defendants argued that the plaintiffs were indirect purchasers within the meaning of Illinois Brick Co. v. Illinois, 431 U.S. 720, 52 L. Ed. 2d 707, 97 S. Ct. 2061 (1977). In denying the defendant's motion, we held that Illinois Brick had no application to cases involving allegations of vertical conspiracy and thus posed no bar to the plaintiffs' claims. Subsequent to the issuance of the October 18, 1994 Order, the Manufacturer Defendants moved to have the issue certified for interlocutory appeal. For the reasons set forth below, the defendant's motion is denied.

 DISCUSSION

 The Manufacturer Defendants seek to have the following issue certified for interlocutory appeal: In a private antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15, involving an alleged conspiracy between and among manufacturer and wholesaler defendants, which results in higher manufacturer prices on goods purchased by wholesalers and resold to retailer plaintiffs, do Kansas v. UtiliCorp United, Inc., 497 U.S. 199, 111 L. Ed. 2d 169, 110 S. Ct. 2807 (1990), and Illinois ex rel. Burris v. Panhandle E. Pipe Line Co., 935 F.2d 1469 (7th Cir. 1991), cert. denied, 502 U.S. 1094, 117 L. Ed. 2d 415, 112 S. Ct. 1169 (U.S. 1992), bar retail purchasers from suing the manufacturers for damages based upon prices that were allegedly inflated at the manufacturer level?

 As a general proposition, "permission to take an interlocutory appeal should be granted sparingly and with discrimination." In re Folding Carton Antitrust Litigation, 75 F.R.D. 727, 738 (N.D.Ill. 1977). Certification is the exception and not the rule. Zygmuntowicz v. Hospitality Invs., 828 F. Supp. 346, 353 (E.D.Pa. 1993). When deciding a motion for certification, the district court must consider the following factors: (1) whether the motion to be appealed involves a controlling question of law; (2) whether there is a substantial ground for difference of opinion on that question of law; and (3) whether an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b); Segni v. Commercial Office of Spain, 650 F. Supp. 1045, 1046 (N.D.Ill. 1987). Although the issue to be appealed involves a controlling question of law, we find that the other two factors set forth in § 1292(b) have not been satisfied. As such, the defendant's motion for certification must be denied.

 A. Substantial Grounds for Difference of Opinion

 Interlocutory review "should not be used merely to provide review of difficult rulings in hard cases." McCann v. Communications Design Corp., 775 F. Supp. 1506, 1534 (D.Conn. 1991) (citing United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)). Rather, the existence of a "difficult central question of law which is not settled by controlling authority" must be demonstrated. In re Heddendorf, 263 F.2d 887, 889 (1st Cir. 1959). If the controlling court of appeals has ruled on a question, then no substantial ground for difference of opinion exists, and there is no reason for immediate appeal. See Walker v. Eastern Air Lines, Inc., 785 F. Supp. 1168, 1174 (S.D.N.Y. 1992). Where a controlling court of appeals has not decided an issue, it must still be demonstrated that a "substantial likelihood" exists that the district court ruling will be reversed on appeal. TCFBanking and Sav., F.A. v. Arthur Young & Co., 697 F. Supp. 362, 366 (D.Minn. 1988).

 In Fontana Aviation, Inc. v. Cessna Aircraft Co., 617 F.2d 478 (7th Cir. 1980), an aircraft dealer, alleging a conspiracy between the aircraft manufacturer and the aircraft distributor, brought suit against the manufacturer charging antitrust violations. The Seventh Circuit held that Illinois Brick did not bar the plaintiff dealer's claim. Id. at 480. In its discussion of Illinois Brick's applicability to the situation, the Seventh Circuit proclaimed:

 
We are not satisfied that the Illinois Brick rule directly applies in circumstances where the manufacturer and the intermediary are both alleged to be co-conspirators in a common illegal enterprise resulting in intended injury to the buyer.

 Id. at 481. Thus, in Fontana, the Seventh Circuit indicated that the "co-conspiracy intermediary issue" was not within the realm of Illinois Brick and was no bar to the plaintiff's suit. Based on the Seventh Circuit's ruling in Fontana, we concluded that Illinois Brick had no application to cases involving allegations of vertical conspiracy.

 The Manufacturer Defendants assert, however, that two recent cases, i.e., the Supreme Court's decision in Utilicorp and the Seventh Circuit's decision in Panhandle II, serve to bar the plaintiffs in the present case. Notwithstanding the fact that both Utilicorp and Panhandle II concerned only the narrow "cost-plus" exception to Illinois Brick --an issue not present here--, the defendants maintain that these cases mandate the dismissal of vertical conspiracy cases where the plaintiff purchases directly from a wrongdoer. We disagree.

 In neither case was a vertical conspiracy alleged. The consumers in Utilicorp and Panhandle II were plainly indirect purchasers who bought from an innocent party. Illinois Brick was therefore applicable, and the only question was whether the cost-plus exception to the indirect purchaser rule would be recognized because the plaintiffs purchased from regulated utilities. Panhandle II, 935 F.2d at 1476. The reviewing courts declined to interpret the cost-plus exception as applying to purchases from utilities. Id. at 1477-79.

 The defendants argue that this judicial reluctance to expand the cost-plus exception to Illinois Brick translates into a sweeping prohibition of suits against entities occupying the uppermost tier of a vertical conspiracy, even where the plaintiffs purchase directly from a wrongdoer. In support of this argument, the defendants quote Panhandle II for the proposition that the "broader point" of the Supreme Court's decision in Utilicorp was that Illinois Brick should be applied even if the economic assumptions underlying that decision are not met. However, the discussion in Panhandle II concerned only the proper scope of the cost-plus exception. Panhandle II 935 F.2d at 1478. Taken in context, Panhandle II held only that even where the economic assumptions which justify the indirect purchaser rule are not met, the cost-plus ...


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