WASHINGTON - On April 25,  Open Markets Institute filed an amicus brief in the Seventh Circuit in support of the plaintiffs in Marion Diagnostic Center, LLC v. Becton, Dickinson & Co. The plaintiffs, who are health care providers, allege that Becton, Dickinson & Co. (Becton) illegally dominated the markets for conventional syringes, safety syringes, and safety IV catheters. Becton is accused of using exclusionary contracts and rebates to keep rival manufacturers out of these three markets. As a result of its actions, Becton has been able to charge higher prices for its products and impede the introduction of safer options, such as syringes with a much lower risk of needlesticks that transfer HIV, hepatitis B, and hepatitis C to nurses and other care providers

The issue before the court is the scope of the judicially-created Illinois Brick rule. The rule holds that typically only customers who purchased products directly from an antitrust violator can recover overcharges due to illegal conduct. Even if the direct purchasers raised their prices in turn and "passed on" the overcharges, purchasers further down the supply chain ("indirect purchasers"), in general, cannot sue for damages under federal antitrust law.

In this case, the parties directly dealing with Becton — distributors and group purchasing organizations — are accused of being conspirators in Becton's campaign to exclude rivals. In other words, the direct purchasers are antitrust violators in their own right. Nonetheless, the district court held that only these parties have the right to bring suit and that the plaintiffs are out of luck. This decision is contrary to both Seventh Circuit precedent and Supreme Court guidance on applying Illinois Brick.

Read the full amicus brief below or download here.