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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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No. 01-17451
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2003.C09.0000353< http://www.versuslaw.com>
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June 6, 2003
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INTERNATIONAL HEALTHCARE MANAGEMENT, A NEVADA LIMITED LIABILITY
COMPANY; HEALTH HAWAII NETWORK, A NEVADA LIMITED LIABILITY COMPANY,
PLAINTIFFS-APPELLANTS,
v.
THE HAWAII COALITION FOR HEALTH, A HAWAII
NONPROFIT CORPORATION; HAWAII MEDICAL ASSOCIATION, A HAWAII NONPROFIT
CORPORATION; QUEENS PHYSICIAN GROUP, A HAWAII NONPROFIT OPINION
CORPORATION; ARLEEN JOUXSON-MEYERS, M.D., AN INDIVIDUAL; PETER LOCATELLI,
M.D., AN INDIVIDUAL; LEONARD HOWARD, M.D., AN INDIVIDUAL; JOHN DROUILHET,
M.D., AN INDIVIDUAL; LOCKWOOD YOUNG, M.D., AN INDIVIDUAL,
DEFENDANTS-APPELLEES.
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Appeal from the United States District Court for the District of
Hawaii Helen Gillmor, District Judge, Presiding
CV-00-00757-HG/BMK
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Counsel
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John I. Alioto and Lisa Kimmel, Alioto & Alioto, San Francisco,
California, for the plaintiffs-appellants.
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M. Laurence Popofsky, Heller Ehrman White & McAuliffe, San
Francisco, California, for the defendants-appellees Hawaii Medical
Association and Leonard Howard, M.D.
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Rafael G. Del Castillo, Honolulu, Hawaii, for the defendantsappellees
Hawaii Coalition for Health, Arleen Jouxson-Meyers, M.D., and Peter
Locatelli, M.D.
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J. Thomas Rosch, Latham & Watkins, San Francisco, California, for
the defendants-appellees Queen's Physician Group, Lockwood Young, M.D.,
and John Drouilhet, M.D.
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Jack R. Bierig, Sidley Austin Brown & Wood, Chicago, Illinois, for
the amicus.
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Before: Alfred T. Goodwin, Pamela Ann Rymer, and Thomas G. Nelson,
Circuit Judges.
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The opinion of the court was delivered by: Rymer, Circuit
Judge
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FOR PUBLICATION
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Argued and Submitted May 5, 2003-Honolulu, Hawaii
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OPINION
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International Healthcare Management (IHM), a company that develops
healthcare programs, and Health Hawaii Network (HHN), which was
established to provide a network of doctors in Hawaii for a managed care
health plan developed by IHM, appeal from summary judgment in favor of the
Hawaii Medical Association (HMA), the Hawaii Coalition for Health ("the
Coalition"), Queen's Physician Group (QPG), and certain of their officers
who were also named as defendants.*fn1
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IHM and HHN alleged a conspiracy to fix prices and to boycott their
plan in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and
Hawaii law. The district court found no evidence to support either theory,
and no evidence of QPG's involvement in the alleged conspiracy. It
concluded that, in the absence of any agreement or threat to boycott HHN,
or attempt to fix prices, the joint efforts of HMA and the Coalition to
negotiate the terms of HHN's provider agreement caused no antitrust injury
under state or federal law. We agree, and affirm.
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I.
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In 1997, IHM (and others not involved in this litigation) created the
St. Francis Preferred Provider Organization managed care health plan ("St.
Francis Plan") that it hoped to market to employers in Hawaii. HHN was the
provider network for the St. Francis Plan.
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The HMA is a not-for-profit professional association of physicians in
the State of Hawaii. It is affiliated with the American Medical
Association and has over 1600 members of whom 826 are active full pay
members. At the time there were approximately 2500 active physicians in
Hawaii. Among other things, the HMA reviews and provides information to
its members about provider contracts, including managed care health plans
operating in the state. The Coalition is a consumer advocacy organization
that focuses on health care issues with a membership of physicians and
non-physicians. QPG is an independent practice association (IPA) formed to
enter into contracts with health plans.
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When the Hawaii Medical Services Association (HMSA), which is Hawaii's
Blue Cross/Blue Shield Plan, asked physicians to sign a new participating
provider agreement (PPA)*fn2 in 1997, the Coalition, the HMA, QPG, and two other
physicians' groups joined in a "Consortium" to discuss the PPA with HMSA.
In HHN's view, this was the beginning of the conspiracy about which it
complains. The Consortium asked HMSA to make a number of changes to the
PPA (none of which included changes to the fee schedule or to physicians'
compensation). The organizations comprising the Consortium communicated
with their members about the progress of negotiations, and one letter
noted that "[f]or the first time many of our physician organizations have
joined forces and are working to seek improvement of HMSA's new [PPA]."
HMSA revised its PPA somewhat, and the contract went into effect in
1998.
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Against this background, HHN began recruiting physicians for its
provider network in February 1998. A solicitation packet was sent to 1,000
doctors with HHN's participating provider agreement for the St. Francis
Plan. Dr. Jouxson-Meyers happened to be on the mailing list. In her
capacity as president of the Coalition, she wrote to HHN that its PPA
contained several provisions which were similar to the ones HMSA had
recently modified, and offered to help HHN improve its provider agreement.
She also advised Coalition members that the PPA "is not very good" as it
contained provisions similar to the initial version of HMSA's
PPA.
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HHN set up a meeting with Dr. Jouxson-Meyers; with HHN's blessing, she
invited representatives from other organizations that had participated in
the HMSA discussions to attend. An HMA representative was there, but no
one came from QPG. HHN indicated that it would only consider concerns with
its PPA that the Coalition put into writing. Dr. Jouxson-Meyers complied
on March 21 with a letter that identified eleven specific concerns,
including the requirement that physicians fully comply with the PPA's
utilization management program or face a threat of reduced reimbursement
and the lack of assurance that reimbursement rates would be fair or
reasonable.*fn3 HHN forwarded the letter to Dr. Sidney Steinberg, a
health care management consultant, who responded to the Coalition on April
20 that Dr. Jouxson-Meyers's letter raised several issues that "need
review and either modification or clarification," including credentials
evaluation and utilization management. He invited the Coalition to stay in
touch as HHN "undertakes a comprehensive review of the provider agreement
to assure that the issues you raised are properly addressed . . .
."
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Meanwhile, HHN acquired the assets of Pacific Benefit Services, Inc.
(PBS). On April 29 HHN advised physicians who were PBS providers that
their agreements with PBS were being assigned to HHN. This prompted the
Coalition to communicate with its members about the assignment, and the
HMA, Hawaii Federation of Physicians and Dentists, and the Coalition to
issue an "Alert." The June 15 "Alert" informed members that their
organizations had tried without success to enter a dialogue with HHN about
"serious problems" with its PPA; that HHN had acquired PBS but may not
have notified all PBS physicians that their PPAs had been assigned to HHN;
and that they had met with the Insurance Commissioner, who expressed
concerns about the number of corporate entities involved in HHN's health
plan and the accuracy of the participating provider listings that HHN may
be using to recruit members. The "Alert" reported that
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"[t]he Insurance Commissioner suggested that it might be wise for
physicians to wait until these issues can be clarified and resolved before
signing up as a participating provider with HHN. If physicians have
concerns about the possibility that their PBS Participating Agreement has
been assigned to HHN, they could also call HHN to clarify the
situation."
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The Insurance Commissioner reviewed and commented upon a draft before
the "Alert" was distributed.
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On July 10, the HMA sent counsel for the St. Francis Plan a marked-up
copy of the HHN provider agreement noting suggested changes. These
suggestions were consistent with the modifications that HMSA had
previously made to its PPA. Representatives of the HMA and HHN met several
times in July 1998. The discussions centered on HHN's credentialing
procedures; whether doctors were required to use only HHN's list of
hospitals in all situations; the one day notice for inspection of records;
the termination of doctors without cause; the indemnification provision;
the quality of HHN's utilization management program; whether doctors
should be allowed to provide HHN with information regarding their costs so
HHN could consider those costs when revising the fee schedule; and the
lack of an appeal process for doctors regarding reimbursement. HHN was
unwilling to make any changes.
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Overall, some 510 physicians signed up for the St. Francis Plan.
Seventy physicians, as well as a large IPA and Queens Medical Center, the
largest hospital in Hawaii, executed PPAs after the HMA "Alert." Fewer
than a dozen withdrew at any time. Nevertheless, HHN abandoned its
marketing efforts in Hawaii and filed this action. The district court
granted summary judgment on all claims, and this timely appeal followed.*fn4
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II.
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The material facts are largely undisputed. "Although antitrust cases
are sometimes difficult to resolve on summary judgment because of their
factual complexity, summary judgment is still appropriate in certain
cases." County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th
Cir. 2001) (citing Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.
1991)). Summary judgment is only disfavored in " 'complex antitrust
litigation where motive and intent are important, proof is largely in the
hands of the alleged conspirators, and relevant information is controlled
by hostile witnesses.' " See MetroNet Serv. Corp. v. US West
Communications, 2003 WL 21181644 at *8 (9th Cir. May 21, 2003) (quoting
Toscano v. Prof'l Golfers' Ass'n, 258 F.3d 978, 982 (9th Cir. 2001)). This
is not such a case.
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A.
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HHN argues that the district court erroneously held that it is lawful
for physician associations to negotiate with health plans on behalf of
their competing physician members. It faults the court for having found
that HHN flunked the Monsanto v. Spray-Rite test*fn5 because HHN failed to produce evidence that: (1) the
organizations held discussions or negotiations that concerned the HHN fee
schedule; (2) the organizations threatened retaliation against member
physicians who signed the HHN PPA; or (3) member physicians had explicitly
agreed among themselves and with the organizations to boycott HHN. HHN
submits that there is no authority that allows professional associations
to restrain competition as long as they avoid a short-list of
anticompetitive acts. Instead, it urges us to follow the Third Circuit's
decision in Pennsylvania Dental Ass'n v. Medical Service Ass'n of
Pennsylvania, 815 F.2d 270 (3d Cir. 1987), which reversed a summary
judgment in favor of organized dentists who engaged in concerted activity
to modify Blue Shield's cost containment efforts.
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The HMA does not dispute that the Coalition and the Federation agreed
to discuss the HHN contract with HHN and jointly sent out the "Alert."
However, it does maintain that the agreement was not unlawful. In the
HMA's view, all that remains without evidence of a boycott or of price
fixing is the fact of joint negotiations and communications. It contends
that these activities fall within the safe harbor of United States v. A.
Lanoy Alston, D.M.D., P.C., 974 F.2d 1206 (9th Cir. 1992), where we
applied a per se analysis and upheld the conviction of dentists who had
agreed on higher co-payment fees to be paid by prepaid dental plans, but
recognized that other kinds of collective activity involving the
relationship between health care providers and plans may be legitimate.
The HMA also argues that it was entitled to express its opinions and to
share information about health care plans, whether or not its opinions
carried weight and regardless of market effects.
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We start with HHN's "short-list" argument. HHN is undoubtedly correct
that acts other than negotiating about fees, threatening retaliation or
coercing members not to become a plan provider, and agreeing to boycott
HHN may run afoul of the antitrust laws. We do not understand the district
court to have held otherwise. HHN's complaint alleged a conspiracy to
negotiate fees and to boycott HHN to support a price fixing arrangement
among physicians in Hawaii, and it was toward these allegations that the
organizations' motion for summary judgment was directed and to which the
district court responded by holding that HHN failed to produce evidence of
conduct that amounts to price fixing or an agreement to boycott for the
purpose of price fixing. HHN effectively conceded this in the district
court. While its argument on appeal still has boycott and price-fixing
overtones, its focus is on the joint negotiation itself.
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[1] HHN asserts that such an arrangement is per se unlawful, but we
disagree. Per se categories are not to be expanded indiscriminately to new
factual situations. See, e.g., FTC v. Ind. Fed'n of Dentists, 476 U.S.
447, 458-59 (1986); Am. Ad Mgmt., Inc. v. GTE Corp., 92 F.3d 781, 784-85
(9th Cir. 1996). The HMA and the Coalition's joint efforts to modify
non-fee terms of HHN's PPA is not in a class of restraints previously held
to be per se unreasonable, see Ind. Fed'n of Dentists, 476 U.S. at 457-58,
nor is it a practice that " 'facially appears to be one that would always
or almost always tend to restrict competition and decrease output.' "
Paladin Assocs., Inc. v. Mont. Power Co., 2003 WL 21058236, at *3 (9th
Cir. May 13, 2003) (quoting N.W. Wholesale Stationers, Inc. v. Pac.
Stationery and Printing Co., 472 U.S. 284, 289-90 (1985). As we observed
in Alston, the arena in which healthcare providers deal with plans is a
complex and evolving one that may in some circumstances justify collective
action:
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Medical plans serve, effectively, as the bargaining agents for large
groups of consumers; they use the clout of their consumer base to drive
down health care service fees. Uniform fee schedules - anathema in a
normal, competitive market - are standard operating procedure when medical
plans are involved. In light of these departures from a normal competitive
market, individual health care providers are entitled to take some joint
action (short of price fixing or a group boycott) to level the bargaining
imbalance created by the plans and provide meaningful input into the
setting of the fee schedules. Thus health care providers might pool cost
data in justifying a request for an increased fee schedule. Providers
might also band together to negotiate various other aspects of their
relationship with the plans such as payment procedures, the type of
documentation they must provide, the method of referring patients and the
mechanism for adjusting disputes. Such concerted actions, which would not
implicate the per se rule, must be carefully distinguished from efforts to
dictate terms by explicit or implicit threats of mass withdrawals from the
plans.
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Alston, 974 F.2d at 1214 (citations omitted).
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The record here is quite unlike Pennsylvania Dental Ass'n. In
Pennsylvania Dental Ass'n, concerted action by organized dentists to
encourage dentists to withdraw from Blue Shield to force Blue Shield to
change the upper limit on charges by participating dentists was manifest.
Members of several local dental associations passed resolutions
recommending withdrawal; written pledges to try to withdraw from
participation were circulated among dentists; officials of the
Pennsylvania Dental Association threatened Blue Shield that more
resignations would take place unless it modified the cost containment
efforts to which the organized dentists objected; and, when Blue Shield
held firm, more resolutions were passed and mass withdrawals occurred. 815
F.2d at 272-73. This "abundance of direct evidence of concerted action,"
id. at 272, made the case an easy one for the Third Circuit. As the court
said, finding a violation of Section 1 followed a fortiori from FTC v.
Indiana Federation of Dentists, 476 U.S. 447 (1986). Id. at 275. In
Indiana Federation, there was a horizontal agreement among participating
dentists to withhold the forwarding of xrays to insurance companies along
with their customers' claim forms. Ind. Fed'n of Dentists, 476 U.S. at
455. The Supreme Court held that this refusal to compete with respect to
the package of services offered to customers could not be sustained. Id.
at 459; see also Alston, 974 F.2d at 1207-08 (fifty dentists met to
discuss the fees they were receiving under certain health plans and sent
letters requesting higher fees); Arizona v. Maricopa County Med. Soc'y,
457 U.S. 332, 335-36 (1982) (doctors agreed by majority vote to set
maximum fees they could claim for certain health services provided to
policyholders of specified health plans).
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[2] HHN contends that there is similar, direct evidence that the HMA,
the Coalition and QPG were members of a combination (the Consortium) whose
purpose was to accomplish by joint action what physicians could not
accomplish as competitors. This evidence consists of a declaration by
Jonathan Won, the HMA's former executive director, that the Coalition
organizations joined together to bring HMSA to the bargaining table and
collectively to negotiate terms of physician provider agreements with
managed health care organizations. However, this alone does not show a
fee-setting motive or any other unlawful objective. Won also opined that
at one point during the HMSA negotiations, an HMA communication gave a
false impression to physicians that the provider contract could be signed;
and he declared that when the HMA speaks, its physician members listen and
a substantial number take whatever action that the HMA recommends. Again,
this is not direct evidence of anything unlawful; at most it shows that
the HMA is influential. As the Seventh Circuit explained in Schachar v.
American Academy of Ophthalmology, Inc., 870 F.2d 397, 399 (7th Cir.
1989), "[a]n organization's towering reputation does not reduce its
freedom to speak out." There, the Academy had criticized radial keratotomy
as "experimental" and called on the profession to use caution until more
research was done. Id. at 398. The court rejected ophthalmologists' claim
that this amounted to a restraint of trade because the communication did
not constrain anyone to follow the advice. Id. Much the same can be said
of what the HMA and Coaltion did in this case.
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[3] Finally, HHN posits that the organizations' conduct is not lawful
under Alston, and that per se analysis may be appropriate, where joint
negotiations are accompanied by threats of mass withdrawals. It argues
that such threats are implicit in the communications to physicians on the
status of the negotiations. We disagree that any such inference can
reasonably be drawn from the communications in this case. The "Alert" is
the only communique that arguably comes close; it conveyed a suggestion
from the Insurance Commissioner that physicians wait before signing up
with HHN until issues about the number and interrelationship of corporate
entities involved in HHN, and the accuracy of the provider listings for
PBS, were resolved. These concerns had nothing to do with price, or any
other element of competition so far as the record discloses. The
communications appear to have had little, if any, impact; no more than ten
out of 500 physicians withdrew from the St. Francis Plan after the
"Alert," and seventy signed HHN provider agreements after the "Alert" was
issued. Nor is there any evidence that physician decisions about
participating in, or withdrawing from, the St. Francis Plan were not
wholly independent. The HMA had no authority to negotiate for individual
physician members and physicians were not bound by anything that the HMA
or Coalition said or did. In these circumstances there is no need to
decide how far Alston extends, or whether it would ever be appropriate to
invoke the per se rule if threats of mass withdrawal were made to leverage
a change in terms. Suffice it to say here that there is no support in this
record for finding that the organizations' communications implicitly or
explicitly contained such threats.
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[4] HHN likewise submits that the organizations' agreement to
negotiate in tandem and communicate with physicians in detail exceeds the
bounds of the procompetitive exchange of information sanctioned in Maple
Flooring Manufacturers' Ass'n v. United States, 268 U.S. 563 (1925), or
Alston. However, the record is similar to Maple Flooring in that neither
case contained evidence of agreement among the association members fixing
prices or of anticompetitive effect. In Maple Flooring this left the
gathering and dissemination of information as to the cost and price of
flooring, which the Supreme Court had no difficulty holding was not within
the purview of the antitrust laws. Maple Flooring, 268 U.S. at 583-84. As
the Court explained, it is not the combination as such, or the circulation
of information as such, that matters, but the ability to infer from the
circumstances of a case that "concerted action had resulted or would
necessarily result in tending arbitrarily to lessen production or increase
prices." Id. at 585.
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B.
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[5] Even if the per se analysis should not be applied, HHN argues that
the district court wrongly decided disputed issues of fact which, if
resolved in its favor, would show an unreasonable restraint of trade under
the rule of reason.*fn6 It relies on evidence that the Consortium's purpose
was to increase physicians' bargaining power with managed care health
plans, that the organizations' negotiations were accompanied by
communications to physicians, and that the Consortium understood that
these communications facilitated joint action by physicians who supported
the negotiations. However, these facts alone do not show anticompetitive
intent for reasons we have already explained. We are not impressed with
HHN's suggestion that these negotiations and communications were a
"facilitating practice" of the sort condemned as an unreasonable restraint
of trade in American Column & Lumber Co. v. United States, 257 U.S.
377 (1921). In American Column & Lumber there was an elaborate plan
among competitors for the exchange of current price and sales information,
market forecasts, significant suggestions as to future prices and
production, and meetings, all facilitated by an association that
administered the plan. Id. at 394-96. Nothing approaching this order of
magnitude occurred here. There were no communications about specific fees
or reimbursement levels; neither the HMA nor the Coalition asked to review
or revise the fee schedule; and so far as the record discloses, no one
complained that HHN's fees were too low. The HMA did suggest that
participating physicians individually be given thirty days to comment on
proposed changes in reimbursement methodology, and it asked for a "fair
and reasonable" standard to govern reimbursement rates. But nothing in the
record indicates that either request had the purpose or effect of
unreasonably affecting an element of competition.
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[6] Neither is HHN's argument persuasive that injury to competition is
evident from the Consortium's successful negotiation with HMSA to change
physician oversight and cost control measures. HHN submits that physician
oversight is the core economic term of a managed care plan. The HMA and
the Coalition used the "Alert" to make sure that terms they disliked in
the HMSA PPA were not part of any other health plan in Hawaii. Thus, HHN
would have us conclude, their concerted action to change those terms is
price-fixing by any other name and therefore patently anticompetitive.
However, there is no basis in the record for reaching this conclusion. It
may well be that modifying the terms challenged by the HMA and the
Coalition has economic consequence, but economic consequence is not the
same thing as anticompetitive effect. Without more than appears in this
record, we cannot say that the anticompetitive effect of modifying the
marked-up provisions is immediately obvious.
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Finally, HHN dismisses patient welfare as a justification for the
organizations' conduct, pointing out that the Supreme Court rejected a
"quality of care" explanation for the Federation's position in Indiana
Federation of Dentists and noted that insurers do not lack incentives to
consider both the welfare of the patient and minimization of costs. 476
U.S. at 463.
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While true, both the Coalition and the HMA have an interest in
informing their members of developments in managed health care, and their
members have an interest in receiving that information. Disseminating
information that fosters rational business decisions is pro-competitive.
See, e.g., Maple Flooring Ass'n, 268 U.S. at 582-83. Events in this case,
for example, were influenced by the failure of the PBS plan. However, HHN
suggests that the nature of the information communicated would have been
different - and less anticompetitive - if the organizations' true
objective had been solely to educate physicians on managed care provider
contracts. In that case, HHN supposes, the HMA and Coalition would simply
have discussed plan provisions in general, not the specifics of a
particular PPA. Perhaps so, but a reasonable restraint (assuming there is
a restraint) does not become unreasonable just because the least
restrictive means were not used.
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[7] In sum, the record shows no price-fixing agreement and none to
boycott, or threaten to boycott, the St. Francis Plan for the purpose of
affecting fees or reimbursement. It shows only that the HMA and Coalition
jointly negotiated with payors and communicated with providers about plan
provisions. QPG had no role in the HHN negotiations at all. No one was
bound by what the organizations did, and their negotiations and
communications had essentially no impact. In these circumstances, we
conclude that no unreasonable restraint of trade exists.
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III.
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[8] HHN's state antitrust claims fail for the same reasons as their
federal claims because Hawaii antitrust statutes are interpreted "in
accordance with judicial interpretations of similar federal antitrust
statutes." See HAW. REV. STAT. § 480-3 (WESTLAW through 2002 Sess.).
Argument was not developed on its other state law claims, including
tortious interference with prospective economic advantage and tortious
interference with contracts, and so those issues are deemed abandoned. See
Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.
1988).
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AFFIRMED.
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Opinion Footnotes |
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*fn1 We sometimes refer to these parties collectively as
"organizations" but will identify them by name where appropriate. Unless
context requires otherwise, we will also refer to IHM and HHN together as
HHN. Those named individually include Dr. Leonard Howard, a retired Kaiser
physician, who was president of the HMA at the time, Dr. Arleen
Jouxson-Meyers and Dr. Peter Locatelli, respectively president and vice
president of the Coalition, and Dr. Lockwood Young and Dr. John Drouilhet,
who were members of QPG's executive board.
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*fn2 A participating provider agreement is a physician's
contract with a health plan. It establishes the doctor's rights and
responsibilities in providing medical services to insured patients. The
PPA will often include the terms of the plan's utilization management and
quality assurance programs that establish the process doctors must follow
to be reimbursed for patient care they provide under a managed care
program.
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*fn3 Other concerns related to HHN's credentialing
procedures for doctors; the provision requiring doctors to take full
responsibility for medical decisions even though HHN's agreement limited
their range of options; the provision allowing for inspection of a
doctor's records on one day's notice; the provision allowing termination
of doctors without cause; the lack of a comment period regarding
amendments to the agreement; and an indemnification
provision.
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*fn4 The American Medical Association filed a brief as
amicus curiae in support of the HMA, the Coalition, QPG, and the
individual physicians who defend the district court's
ruling.
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*fn5 Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752
(1984). In Monsanto, the Court considered the standard of proof required
to find a vertical price-fixing conspiracy in violation of Section 1 of
the Sherman Act. It held that "the antitrust plaintiff should present
direct or circumstantial evidence that reasonably tends to prove that the
manufacturer and others 'had a conscious commitment to a common scheme
designed to achieve an unlawful objective.' " Id. at 764 (quoting Edward
J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.
1980)).
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*fn6 "The rule of reason weighs legitimate justifications
for a restraint against any anticompetitive effects. We review all the
facts, including the precise harms alleged to the competitive markets, and
the legitimate justifications provided for the challenged practice, and we
determine whether the anticompetitive aspects of the challenged practice
outweigh its procompetitive effects." Palidin, 2003 WL 21058236 at
*5.
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