Jefferson County Pharmaceutical Association, Inc. v. Abbott Laboratories
656 F.2d 92
5th Cir.
1981
Check Treatment

*2 VANCE, JOHNSON, Before FRANK M. CLARK, Jr. and A. THOMAS Circuit Judges.

PER CURIAM: AFFIRMED the basis of the district court’s Opinion Memorandum dated De- 1, 1978, copy appears cember of which appendix an hereto.

AFFIRMED. Tucker, Jr., Bessemer, Ala., Joe L. Allen CLARK, Judge, THOMAS A. Circuit dis- Howell, Montgomery, Ala., W. plaintiff- senting: appellant. respectfully dissent. majority The Nachman, Jr., M. Montgomery, Roland sanctions the defendant drug wholesale Ala., Murry Alley, Atchison, L. Michael companies’ violations of the Robinson-Pat- Collins, Ala., Robert Birmingham, M. Act, Further, man 13.1 Bristol-Myers. permits decision the six states circuit Ala., Manley, Birmingham, Duncan Y. unfairly compete and their Ward, Rhodes, Robert F. Richard S. Chica- private enterprises by their citi- 111., go, for Abbott Lab. goods. zens in sale the retail A state’s Kimball, Walthall, Betsy Birming- gives R. Lee size great purchasing power ham, Ala., Klingsberg, thus competitive advantage David New York an awesome City, for Pfizer. over business. To this advantage adds the of a license to make use North, Ray, James L. E. Alston Edwin A. price pur- discrimination in its wholesale Strickland, Mills, William H. J. John Cole- chases. man, Jr., Mabry Rogers, E. Linda A. Fried- man, Ala., Birmingham, Spain, Joseph H. The admits that this is a close Somerville, New City, Jr., York William G. case. It reaches its conclusion creating Ala., Birmingham, G. D. Searle. not contained in the statute. 1. The Robinson-Patman ch. 49 Stat. involved in such merce, are in discrimination com- provisions amended certain where such commodities sold for Clayton use, consumption ch. 38 Stat. 730 or resale within the United product ..., amended codified at 15 U.S.C. States and where the effect of pertinent (a) provisions of subsection are as substantially discrimination to lessen follows: monopoly or tend to create a in commerce, (a) any any persons injure, destroy, line of or shall be unlawful for en- commerce, gaged prevent competition any person of such or the course who commerce, directly indirectly, grants knowingly either or either the bene- receives price pur- discrimination, discriminate between different fit of such or with customers grade chasers of commodities of like of either of them.... quality, any either or where . ”.2 district line of commerce .. congressional scheme contrary to This is complaint by the filed court dismissed condi- response to economic was a which County Pharmaceutical Associa- Jefferson passed. Act was when the existing tions tion, drug alleged defendant which congres- Further, result contradicts selling hospital companies hearings clearly reflected sional intent *3 them, than at lower wholesale consideration. was under the Act when resold the state were such commodities follow the does not Lastly, the decision retail, these hospital pharmacies at and that Court, of precedent the guiding competition lessened substantially sales v. Portland Retail Laboratories Abbott drug the among retail businesses in the Assn., subsequently, county. As will be discussed 1305, 47 governments not the and are federal state creating to the Instead of purchasing for by the when covered statute statute, policy underly- I follow the would this consumption. has taken that, laws. I would hold ing the antitrust non-coverage governments purposes of the Robinson-Patman for the exemption. It then and has called it an Act, outside tradi- when a state moves exemption permits resale reasons activity into sphere of and retail com- tional lessening competi- consequently, a private enterprise, it should be petition with reasoning me unfathom- tion. To this is in the same manner as its precisely treated valid, the argument Even if this able. competitors. Today’s decision subverts the Drug- Supreme Court in Portland Retail the Robinson-Patman Act. policy behind gists clearly per- that such announced businessmen, suddenly subjects who have consumption may purchases for not mitted phar- in competition themselves with found be to the sale at retail to consum- extended Alabama, by the macies owned State enterprises. competition ers with in competi- effects unfair the unfortunate Congress When had under consideration remedy. a affording without them tion some members Robinson-Patman only inequitable, result not it is in This is the effect of such question raised language major direct conflict with legislation upon purchases governments. thrust of the Act. hearings Congressional members unlawful for the The statute makes it wanted to make certain that the federal drug companies “to defendant wholesale government not be would limited act price pur- discriminate in between different assumed, purchasing goods. Congress when of commodities .. . where such chasers hearings as evidenced at the on the use, consumption are sold commodities for government competition is not in ., resale . effect purchasing goods . and where the when it is for its own substantially Any be less- consumption.3 discrimination similar construction to competition monopoly state-supported or tend create a be inferred in ac- en favor delivered, 13(a). procures them one at U.S.C. Division time, a Now, $13.18. would that discount testimony in 3. This is illustrated before be barred this bill? Judiciary Teegar- H. B. House Committee why MR. I do TEEGARDEN. not see den, the Act. author of should, contrary unless discount a to the especially enlighten- questioning Part of the is is, present bill be barred—that ing: present by that law—would be barred bill. bill, your judg- MR. Would in LLOYD. this that, my Aside from answer would be this: ment, prevent granting of discounts to competi- The Federal Government is not in the United States Government? buyers tion with other from these concerns. present MR. Clayton TEEGARDEN. Not unless applied a Therefore discrimination—it is so problem so. as that Act does So far law, universally in interstate commerce in concerned, is which MR. it is from that no different discrimination, a the railroad law—to have Clayton present under Act. exists position there must a relative between the instance, For the Government LLOYD. parties consti- discrimination which fan, gets huge discounts. that electric Take injury against other. tutes an to one as go ordinary for instance. You store in think the answer is to be found that. price $35. and the list is The Procurement therefore, tivities, completely would hold true so resale is a different animal from long functioning purchase consumption. as the as a con- a state In instant competitor.4 government competition rather as a sumer private enterprise. Therefore ra- Thus, Congress construed the Act as not majority’s behind “governmen- tionale covering purchases con- exemption” inapplicable.5 tal However, sumption. purchase a for retail words, price other, they In if makes a to a other seller A not each then price sphere. retailer York a in New different are in a different Francisco, things a aside, San all retailer in other present facts of the situation not case of no discrimination could discrimination, predicate which to there, predicated because the two are the nature of the case. I do not see that that sphere the same at all. becomes different *4 by is The Federal Government saved the present bill from what it under is the section distinction, same not of but of func- location Act, Clayton prohib- 2 of the for that bill also They competition any- are tion. not in generally its discrimination in the same terms buy. [Emphasis one else would added.] who that this it does. But differs in the breadth of Laboratories, al., Appellees Brief of Abbott et exceptions. the is That the difference 66, quoting Hearings the Before House Com- between the two bills. Judiciary mittee on the on Bills to Amend the Appellees Laboratories, al., Brief of Abbott et Act, Sess., Clayton Cong., 74th 1st 208-09 quoting Hearings, supra (em- note at 209 (hereinafter Hearings). cited as phases added). exchange noteworthy This is all the more for Indeed, author of the the majority’s complete failure to rationalize its expressly Act of the advised members House today’s opinion conclusion with The decision. anti-competitive purchasing Committee that court, upon majority of the lower relies, which the hospitals municipal and resale would be distinguish does not this discussion. pressed explain covered Act. When to testimony quoted, just From the the conclusion liability government how far state and local inescapable is Act’s author believed Act, Teegarden would extend under the offered hospital competition by retail state instru- only testimony to be found consider- subject anti-price directly mentalities would be to the ation of the Act that is relevant to the provisions discrimination of the Robinson-Pat- we decide: man Act. compet- MR. eliminate HANCOCK. It would only part The court’s lower reliance on of Tee- line, not, bidding along itive all would it garden’s testimony, apparent ignorance its goods in classes that would covered quoted, testimony just puz- of the is therefore this bill? zling. appellant Counsel for association competitive MR. TEEGARDEN. You mean argument, informed us at oral bidding on Government orders? Hancock, Rep. this discussion with which Government, State, so city, MR. HANCOCK. us, clearly bears on the issue before was not municipality. by appellees to No; cited the lower court and was MR. TEEGARDEN. I think not. appellant it, not known to the ing at the time of hear- you MR. If do MICHENER. it did would court, it, you? before the lower and indeed the low- not want would contrary expres- No; er “[n]o court concluded that MR. I would not it. TEEGARDEN. want opinion during legislative history certainly competitive sion of does not eliminate else, bidding anywhere the Act has been cited to the Id. I I court.” and do not see how might explain note this the lower it would with the Government. important very failure MR. court’s testimony. to discuss this HANCOCK. You would have to bid city, county, exactly anybody majority’s the else; The the same as failure correct quantity, price, opinion’s quali- same this omission in their discussion of same same ty? history, however, legislative the complete mystery. is to me a MR. TEEGARDEN. No. they they MR. HANCOCK. Would or could exempted city hospital cheaper they 5. The federal from sell to a liability anticompetitive privately-owned hospital, for retail activities on would to a sovereign immunity. principle Teegar- this bill? den in a letter to the commented Committee MR. I have to answer TEEGARDEN. would Clayton proposed analysis, way. as it that the was to be In the final it would bill, depend upon questions amended the Robinson-Patman does not numerous of fact in a particular hospitals the United States within 13’s use of case. If the two are include other, say “purchaser.” being with each should the word That sovereign principles then that the fact that well-established one immu- city sovereign’s they nity narrowly expo- does not save it from the bill. If limit the an intend an for states acting Nonprofit Institutions Act,6 to the Robinson-Patman should competitors, have amendment as provides exemption from the Robinson hospitals on the role the state concentrated organizations non-profit Patman playing merely on their status and not use. own making their as of the state. interpret Recently, Court laws, Generally, “the anti-trust Rob Act as not Nonprofit Institutions ed the particular are to be con inson-Patman hospitals when applying privately-owned liberally, exceptions are strued and the “intended institu operating outside their strictly,” “the Act be construed Since Drug Retail Portland operation.” tional remedial, broadly it is to be construed gists, at 1314 purposes,” “implied therefore effectuate indistinguishable from present case is immunity Only is not favored.”8 anti-trust Druggists except Portland Retail overriding public policy,” City of La “some hospitals question are fact Co., Light v. Louisiana Power & fayette In Port by the Alabama. owned State 1123, 1128, 389, 397, 98 S.Ct. 55 L.Ed.2d land Retail Supreme Court (1978) (plurality opinion), is sufficient antitrust behind the looked presumption against im overrule hospitals question acted laws. When consumers, munity application anti competitors instead laws,9 and in the instant trust case the Nonprofit ruled that no Institutions *5 applied. Congress policy.10 did majority has shown no such Since suit, 11, precluding altogether Druggists, the it in 7. Portland Retail 425 U.S. at 96

sure ambiguity. Teegarden’s in of letter read event part: S.Ct. at 1313. prevent competitive bid- Id., 2. Would the bill 425 U.S. at 1313. 96 S.Ct. at ding government purchases on below trade price levels? majority distinguish 9. The seeks to lan- by This was member of raised a City ground guage Lafayette, in of on the hearing. is committee at the The answer the case was decided on the basis of the Sher- principle found in the of construc- and not man Act the Robinson-Patman tion that a statute will not be construed argument Congress Act. The runs that used its any way rights, prerog- in limit or restrict powers under the Commerce Clause to con- atives, sovereign privileges of unless enacting stitutional maximum in the Sherman expressly provides principle inherited so —a powers while it did not use its full by jurisprudence American from the common Clayton/Robinson-Patman extent in the Act. (Dollar Savings law. v. United States Bank argument comparison spurious. This A of 80; (1874), United 19 Wall. 22 L.Ed. language used in statutes the two demon- (1874), States v. Herron 20 Wall. 22 only significant strates that difference be- 275; case, Magdalen College L.Ed. 74; 11 Coke tween them is the to which the extent activities Allen, 333; King v. Maxwell on East complained of must interstate affect commerce. Statutes, (Eng.), Interpretation p. of 6th Ed. generally Corp. Copp Paving See Gulf Oil 244-251). Co., Inc., Laboratories, al., Appellees Brief of Abbott et There is no difference in terms of quoting Hearings, supra at 250. note scope regulat- who or of what activities my knowledge, it been Never to has City Lafayette, ed. of Cf. U.S. sovereign principle to be a im- understood munity of (comparing scope § S.Ct. at 1127-8 of 8 sovereign of that one avail itself of Clayton another, Act). immunity especially the Sherman Act Thus, 4 of the § from suit of delegated regarding exercising power no the latter is there is basis for hold- when a ing City Lafayette anything to it the former. This rationale is therefore less as compelling of no relevance to activities otherwise state here. prohibited Act. only policy argument sup- 10. The advanced Nonprofit 6. The Institutions ch. today’s paramount port of result is the state’s (1938), § Stat. 446 is codified at 15 U.S.C. 13c procuring things it needs in interest or- provides as follows: to do what it wants at the lowest cost. der Nothing [15], in section of this title 13 ... policy 13’s focus That is undisturbed apply supplies for shall of their advantages competing the relative retailers. by schools, colleges, their own use ties, universi- reasoning case, my adopted If had in this libraries, been churches, public hospitals, and this interest would not be threatened. profit. charitable institutions not majority, unconvincing consumer, Therefore the its of a apply; the Act does not reasoning, ignored leg- if, clear but as in the instant it is that of a history islative but also behind competitor, subjected the state should be principles the Act and the basic antitrust regime. the Robinson-Patman One need interpretation. law today look at the result to see how blatantly policies behind Act have regard- A brief be comment should made Therefore, disregarded. been ing the dissent. argument federalism used support partially opinion. Any League reliance on National Cities Usery, (1976), completely misplaced. operations may

Whatever implicat- state be action,

ed complained what can way no characterized a traditional function or as an incident of complaint

state sovereignty. alleges hospitals these have state ventured

beyond (and their institutional function operations might

whatever thereto), begun

incident have instead to

compete drugs. sale of retail This effectively distinguishes present case MEMORANDUM OF OPINION Usery, from regu- which concerned federal lation of Abbott essential attributes state sover- Laboratories v. Portland Retail eignty.11 Thus, Ass’n, no there is substance to the Tenth argument Amendment has been held that 15 U.S.C. advanced. 13c exempt did not Robinson- *6 Patman Price Discrimination Therefore, disagree I with both the con- 13, drug purchases by nonprofit hospitals clusion majority of the to affirm the district dispensed by which were later hospital court and with the reasons used (1) staff, pharmacies employees, and stu- majority reaching its conclusion. The hospital (other dents than for the governments takes the that fact as personal use of or of themselves their de- consumers are excluded calls (2) customers, pendents), (3) “walk-in” or such an exemption, exclusion an and then patients. as refills to former concludes basic permits question in presented motions to sell in at retail dismiss, Instead, established whether a violation of businesses. I premised would unambiguous look to the Robinson-Patman Act language can policies the Act by hospitals and at the op- clear behind the when made antitrust laws. look at agency the role of erated or subdivision of a purchase: the state when it makes a if it is state. only recently compliance

11. The re- States’ with federal law would Usery directly impair ability minded us of of the the limits doctrine. their “to structure inte- gral operations succeed, congres- areas traditional func- [I]n order to a claim that tions.” power legislation sional commerce is invalid Virginia Mining Regula reasoning League Hodel v. Surface and of National Assn., Inc.,-U.S.-,-, satisfy require- tion Cities must each of three 101 S.Ct. First, 2352, 2366, showing (1981) (sustaining ments. be a there must con regulates-the challenged stitutionality Mining statute “States of Surface Control and Second, regula- 1977). as States.”... federal Reclamation Act of indisput- tions say must address matters that are requirements hardly Needless to these can ably sovereignty.”... “attributes of state be considered satisfied in the instant case. third, apparent And it must be 98 Buchwald,

Condominium, 533 F.2d Inc. v. denied, (CA5 1976), local cert. complaint 934 alleged in It is (1977); injured by 571 Bur vir- 51 L.Ed.2d have been 97 S.Ct. pharmacies retail Condominium, being charged by drug leigh Inc. v. Buch House of lower tue wald, op- (CA5 1977), competing pharmacies 546 F.2d 57 cert. de manufacturers county hospi- nied, with the 53 L.Ed.2d conjunction 97 S.Ct. erated clinics of the hospitals (1977); Agricultural and Ex with the Pacific Coast tal and university. Growers, the state College of v. port Medical Ass’n Sunkist to which denied, trade association plaintiff 1975), (CA9 cert. F.2d 1196 —a pharmacies have its member the claims of 48 L.Ed.2d seeking injunctive relief assigned been —is acknowledging that anti While drug against fifteen damages treble and assigned, g., validly e. trust claims can be against governmen- manufacturers Co., Copper Liquor, Adolph Coors Inc. “favored” operate the tal bodies which 1975), (CA5 defendants assert that F.2d 934 purposes of the motions to For pharmacies. plaintiff should here be treated as a dismiss,1 the alle- be assumed that it must the rule “agent” mere for collection under and, correct complaint are gations of the Co., in Archie v. Oil stated Shell moreover, govern- at least some of curiam, (E.D.La.1953), per aff’d F.Supp. 542 beyond the ex- purchases would be mental denied, (CA5 1954), 210 F.2d 653 cert. Laboratories, emption in Abbott described 99 L.Ed. 665 U.S. supra. Independent League of In Cf. California I. Casualty v. Aetna surance Producers preliminary question A is whether Co., (N.D.Cal.1959). Surety F.Supp. plaintiff association can maintain the action case,2 however, stage At this there right either in its own capacity in its assignments alleged no reason to hold assignee, a matter not raised in Abbott respect either to the dam ineffective Laboratories, supra. age injunctive claims or to the claims damages of treble The award Agricultural Pacific Coast Ex relief. See Corp. injured parties, Brunswick limited to Growers, Inc., 526 port Ass’n v. Sunkist Pueblo-Bowl-O-Mat, Inc., 429 1975), denied, (CA9 cert. F.2d 1196 (1977); 50 L.Ed.2d (1976); 48 L.Ed.2d injury to the establishment fact of is critical Practice, 3A Moore’s Federal 17.09[1. 1]. H — action, v. Bluebird the cause of Alabama noted, moreover, that even if It should be 1978). Here, Co., (CA5 Body 573 F.2d 309 parties as to the real defendants’ assertions *7 injuries are not those the claimed upheld, the court in interest should be later itself, they nor are such as association 17(a) provide under F.R.Civ.P. Rule equal in common and would be shared joinder or substitution of opportunity membership. degree by plaintiff’s entire assignors. plaintiff’s Seldin, 422 Worth v. U.S. S.Ct. (1975). appears therefore 45 L.Ed.2d 343 II. plaintiff cannot maintain this ac that damages of the defendants —the Board right either for or One3 tion in its own University Buckley of Trustees of the of Alabama— injunctive relief. Towers See provided virtue of the fact that the various manufacturers has 1. One of the defendant pro assignors summary judgment a rata entitled thereunder to on the alterna- are moved for plaintiffs recoveries in the action. distribution of tive basis that it made no sales to assignors is dis- and members. This issue Cooper IV, whether The Green 3. It is not clear infra. cussed Part immunity Hospital under the Elev- also asserts copy is that it is Amendment. What is clear is a of one enth to defendant’s brief 2. Attached period immunity appears neither for the assignments, suffi- entitled to such to be of the cient as an which county operated by Legal assignment commis- when it was for collection. Mercy Hospital assignments nor for sioners under the name well be consideration for the light construction in the of Tenth Amend- implications. ment no appellate it is immune from action There are asserts court directly point. decisions on ques- Eleventh The by virtue of the Amendment. In tion is a close one. agrees. part applicable The status Board under major support Four considerations constitutional, legislative, and deci plaintiff’s position governmental remarkably sional law is subject similar (1) are to the Act. Gov Giles, analyzed Jagnandan v. agencies not, F.2d merely by ernmental are rea (CA5 1976) denied, status, cert. exempt U.S. son from the anti Lafayette 53 L.Ed.2d 1083 trust laws. v. The Louisiana Power Light Co., against claims & the Board must therefore be (2) equivalent against treated as The to claims Robinson-Pat- liberally, man Act is to be State itself. Cf. Hander construed Jancinto San exceptions (CA5 strictly thereto College, Junior construed 1975). F.2d 273 implied exemptions therefrom disfavored. Nor has there been a waiver of that Abbott Laboratories v. Portland Retail sued; immunity, implied consent Ass’n, engaged for the state in the activities com- (1976). (3) The plained operation of—whether viewed as language “persons” “purchasers” — —is university, providing hospital serv- sufficiently governmental broad cover ices, purchasing goods or as en- —before 12, 13(a, f). bodies. 15 (4) U.S.C. §§ An legislation and, actment of the federal explicit exemption provided for certain moreover, legislation no contains clear purchases. plaintiff 13c. The expression of intent state conduct be argues that rulings holding trial court Rob subject to the pro- remedies therein inapplicable governmental inson-Patman Transportation, vided. See Intracoastal purchasers appellate not have received ap County, (CA5 Inc. v. Decatur 482 F.2d 361 proval and effectively are overruled 1973). Supreme later on decisions related The immunity, constitutional questions. Curiously, plaintiff in its damages, bars the claims for and not brief makes a concession that Robinson-Pat- request prospective injunctive relief gov man would violated if favored urged plaintiff. which also See purchasers give ernmental away were to Jordan, Edelman v. purchased items.4 (1974); Jagnandan argue, As the defendants both Abbott Giles, supra. Accordingly, the Eleventh Laboratories and Louisiana Power can be provide Amendment does not a basis for distinguished judice. the case sub against dismissal of all the claims made Court Abbott Laboratories was Board. concerned sales non-governmental III. hospitals and, indeed, without noted criti- gov- central issue whether sales to cism that the trial court had dismissed subject pro- ernmental governmental counts based sales hos- scriptions of the Robinson-Patman Price *8 pitals “for failure to state claim.” a 425 Act, 15 Discrimination 13. 4, U.S.C. Wheth- 2, § at U.S. n. S.Ct. 96 at 1309. Louisiana involving scope er considered as Power, hand, on the other involved claims implied exemption or an Act from the Act, legisla- under the Sherman Anti-trust essentially statutory Congress one of “exercising tion which was period provi- agency being it has been mental “for its own use” under (1975), 13c, sions of being Alabama Code §§ 22-21-70 et or as outside the “com- seq. “competition” merce” and standards of 15 13, meeting implied exemp- U.S.C. or as some plaintiff It is 4. unclear whether would consider tion in the law. govem- the nonremunerative distribution

Robinson-Patman, cite the defendants in- prior terpretations expressed to that effect power.” its constitutional full extent of to enactment chief draftsman and 398, at Cf. at 98 1129. Gulf 435 U.S. S.Ct. period following over a Co., reiterated Paving 419 Copp U.S. Corp. Oil v. sponsor, by by its chief other four decades 392, (1974) 186, 42 95 S.Ct. officials, commentators, and (Robinson-Patman scope restricted in more have addressed the all courts that Moreover, Sherman). activities Moreover, say, the question. defendants challenged Power had been in Louisiana by Congress pro- continued declination volitionally by municipali- undertaken purchases in for inclusion of such vide ties, any independent oí state directive or interpre- virtually face of these unanimous ques- policy, present case whereas provided at twice although least tations goods by acquisition of tioned conduct — so, judi- against a argues with a call to do governmental at the favorable bodies most at late expansion cial date. prices not state available —involves Co., Inc., Corp. Copp Paving Oil v. See Gulf mandates.5 policy, but state 186,199-201, 392, 400-401, 419 U.S. 95 S.Ct. Kuhn, (1974); Flood however, 42 378 v. 407 place may, be a mistake It 258, 2099, 32 L.Ed.2d 92 S.Ct. 728 U.S. upon great emphasis these distinctions. Af- Co., 470, (1972); v. Ruberoid FTC all, language used ter the breadth 805-806, 478-79, 72 L.Ed. 96 1081 S.Ct. opinions of both Abbott Laborato- Bros., Inc., (1952); v. Bunte 312 FTC supports hardly and Louisiana Power ries 351-52, 581-582, 86 61 S.Ct. L.Ed. exemption notion of broad for state and Indeed, opinion of the During subdivisions. consideration the House Judi- legislation, Power at two ciary proposed Louisiana footnotes of the Committee seemingly rejected Teegarden by Representa- such an and H. B. —described as the apparent approval cited with earlier deci- tive Patman author bill —ex- require plained bidding it would not subjected governmental sions which had cities and counties on the same basis as to prohibiting to other federal statutes bodies that, private purchasers again absent preferential treatment.7

express provisions, prevent would not contending governmental bidding governmental In pur- competitive pur- beyond price chases are the intended reach of below trade levels.8 See Hear- chases 41-16-20, decisions, (1975), 7. The Union Pacific R. 41- referenced §§ 5. See Code Alabama States, Applicability of similar restrictions Co. v. United 16-21. county hospitals (1941), under Article counties L.Ed. California Chapter States, 41 of the Alabama Code 16 of Title United (1975) (1975) (1944), may perhaps Alabama Code is less clear. Cf. themselves be L.Ed. applicable (bid legislation made may some distinguished 22-21-190 laws § county because the federal in argued hospitals). volved, be that the Shipping It Act of the Elkins Act and the require not to that lower very respectively, instru related governmental purchasers given than to govern- of commerce and mentalities and facilities transportation. purchasers, but A cited Ohio Hel third price purchaser buy of- lowest mental vering, L.Ed. is, fered; certainly so. and this activity (distribu (1934), involved a state perhaps significance state bid laws that the falling beverages) clearly out of alcoholic tion exceptions for sales made violation contain governmental parameters of side the traditional Law but not of the Sherman Anti-trust functions. contrary See Ala- to Robinson-Patman. those 41-16-25, 41-16-55. §§ bama Code principles reliance on But his construction, Teegarden’s Mr. statements could 6. See 435 U.S. at n. premised fact (treating understood as creating exemp- 15 U.S.C. § 13c as typically governmental municipal operations); tion for certain service *9 potential upon competition. 19, (viewing 435 U.S. have a effect n. 98 S.Ct. 1131 governmental the Elkins exemption from which a rejected, had earlier been as similar Robinson-Patman).

101 Sachs v. Corp., Brown-Forman Distillers 134 F.Supp. (S.D.N.Y.1955), per 9 aff’d curiam House of the Judici- ings Before Committee opinion, on basis of district 234 F.2d Clayton Act, Bilis to Amend the 74th ary on (CA denied, 1956), 959 2 cert. 352 U.S. (1935). 1st 250 No con- Cong., Sess. 160; Lanes, 77 during Logan 1 expression opinion legis- L.Ed.2d trary has Inc. history Corp., of the Act been cited to v. lative Brunswick Civil Action No. (unpublished opinion, Idaho, May the court. 4-66-5 D. has twice ex- 26, 1966), Patman Representative grounds, aff’d on other 378 F.2d the Act which he opinion that pressed the (CA9 1967), denied, 212 cert. gov- apply to sales to did not co-sponsored (1967); Port Patman, The institutions. See ernmental land Retail Ass’n v. Abbott Lab 168; (1938), p. Pat- Act oratories, Civil No. (unpub Action 71-543 Robinson-Pat- man, Complete Guide to the D.Ore., opinion, September 11, 1972), lished (1963), p. 30. Act man issues, remanded (CA on other F.2d 486 similarly concluded that texts have Other 1974), issues, other remanded on governmental agencies beyond sales Also scope of the Robinson-Patman Act. See Corp. Sperry see v. Rand Nassau Research Rowe, Under the Price Discrimination Rob- Associates, Development & 83-84; (1962), pp. 3 Von inson-Patman F.Supp. (E.D.N.Y.1957) any (disclaiming Kalinowski, Reg- Antitrust Laws and Trade ruling governmen- that denied existence of Cavitch, 24.06[2]; 5A ulation Busi- exemption); Rangen, tal Sterling Inc. v. 105D.01[8][b, Organizations, ness c]. Sons, Inc., & (CA9 Nelson 351 F.2d 851 Attorney General of the United 1965) (any governmental exemption ap not States, responsibilities who has in the en- plicable merely ultimate because consumer forcement the outset government); Engineer be a Pacific was position implied taken the that there ing Corp., & Production Co. Kerr-McGee governmental exemption. Op. Att’y See 38 175,054 1974-1 (D.Utah CCH Trade Cases (1936) (citing long-standing prac- Gen. 539 1974) (governmental exemption applica predecessor prin- tice under the statute and merely ble ultimate because consumer construction). ciples This view government); would be a Mountain View Attorney by was reaffirmed General Ken- Laboratories, Pharmacy v. Abbott Civil Ac- nedy Report 1962 in his in Executive tion (unpublished order, No. C-77-0094 D. Bidding 10936 on Identical Order Public Utah, 15, 1977) (consent August by plain- by Comptrol- Procurement and in 1973 prejudice tiffs to dismiss with of Robinson- States, ler of the United General 1973-2 govern- Patman claims on sales to based 74,642. Trade CCH Cases Similar deci- H agencies). mental respect sions to state During period govern- accord that by Attorneys in 1937 reached General of mental scope were outside the Minnesota and Wisconsin Act, legislation the Robinson-Patman Attorney was General of Carolina.9 North bring twice introduced to the Act to Every judicial amend question on the decision coverage. those within its transactions See inappli has held Robinson-Patman Act Cong., governmental (1951); H.R. 1st purchases. cable to 82nd Sess. Review ing appellate Cong., H.R. 83rd 1st disapproved courts have never Sess. rulings. proposed were not Corp.

such General Products amendments enacted Shale Co., Congress. F.Supp. There is no indication that Struck Construction Con- (W.D.Ky.1941), grounds, gressional way aff’d on other inaction was denied, (CA6 1942), premised upon legislation F.2d 425 that such cert. a belief (1943); impose coverage. unnecessary 87 L.Ed. was Contrary considering only latter conclusions were reached in 1937 however Attorney proscribed California whether General of there could be discrimina- Attorney Georgia, factory. tion in General sales a state *10 exemption that, passed when it non-profit institu- by purchases certain significance to for what question is keyA belief —as stat- Nonprofit tions, so in the Congress of The did enactment give to the which in in his text of 52 Stat. Patman Representative Institutions ed certain exempted Robinson-Patman ourchas- governmental year same —that universities, “schools, colleges, purchases scope of beyond the already es were libraries, churches, and hospitals, public Act. for institutions charitable of dis at the outset As stated argued 13c. It can be profit.” 15 U.S.C. § cussion, of applicability question as to pur- that such intended Congress that governmental purchas to Robinson-Patman hospitals as satis- and chases universities balance, On however— is a one. es close explicit ex- of this requirements fied the which must while of disfavor and aware scope of the emption to be outside implied of limitations on meet claims argued Or it can be Act. Robinson-Patman from, of, implied exemptions scope or of to treat was intended that the amendment agrees private court here by non-profit insti- antitrust laws —the purchases such defendants; requirements governmental of namely, that tutions as satisfied those like manner as explicit exemption in are, regard to without purchases of governmental institutions reason 13c, reach of the beyond the intended exemption. existing implicit The an Price Discrimination interpreta- accept the latter is inclined to hospi respect purchases to at least with probably tion more correct. as governmental traditional tals other point sparse At during legislative purposes. no history is mention made of intent support can Additional for this conclusion proposed govern- amendment affect found the Tenth Amendment and be types mental institutions listed. The Usery, League of Cities National reports Committee, Judiciary of the House Reports Cong., 75th 3rd Sess. League, In National Court (1938), described the bill as for the one explicit attempt by federal held institutions”, “eleemosynary provisions extend the commonly term referring as understood to states and Fair Labor Standards by private charitable bodies supported gifts, political beyond to be their subdivisions rather than Society taxes. Cf. The for the authority by the Commerce conferred Propagation the Gospel Foreign Parts Clause, applied to “areas least Haven, (8 Wheat) New governmental functions.” traditional L.Ed. support In of the need Overruling at 2474. for legislation, report included a letter Wirtz, Maryland v. from an voluntary nonprofit association of held hospitals, explaining how institutions this constitutional limitation would relieved burdens that otherwise would be wages respect paid apply likewise federal, borne by municipal state and bod- hospitals employees governmental hardly ies. likely Congress It is schools. 426 U.S. at 96 S.Ct. at 2475. have intended to eleemosynary treat insti- Na- considerations discussed in favorably tutions more than similar facili- rejection League, resulting in of a tional ties operated by governmental bodies. Nor specifying prices federal statute minimum appear does likely Congress by en- paid governmental bodies labor to be acting 15 U.S.C. 13c treat intended to comparable required insti- governmental hospitals, li- tutions, cogent when appear to no less favorably braries and schools more deciding those federal statute governmental for other whether another traditional uses, fire, streets, police, prison, such as for interpreted specify minimum should poorhouse, etc. rational answer by governmental paid to be bodies *11 JONES, comparable required Plaintiff-Appellee, goods to that Robert P. private institutions.10 MILES, Miles, J. Merrell D. Herschell Jew Miles, Miles, Larry el Franklin Earl W. IV. Tanner, Miles and H. Frank Defendants- Burroughs Well- One of the Appellants. defendants — moved for come Co.—has alternative No. 80-7544. summary judgment. the affi asserts United States Court Appeals, deposition davit of its Adminis Sales Fifth Circuit. Manager that it has made no sales tration Unit B assignors any or to plaintiff’s pharmacies, confining Aug. the defendant its 1981. indepen area rather local

sales in this Rehearing Denied Oct. 1981. (and govern the federal dent wholesalers ment) requirements toas the terms without of resale. These matters conditions plaintiff,

stand uncontroverted actively oppose the

which does not motion. Burroughs

Under circumstances liability plaintiff even

have no if governmental exemption

there were no Hiram

from Robinson-Patman. See Walk Inc.,

er, Tropical, Inc. & 407 F.2d 4 v. A S denied,

(CA5 1969), cert. 396 U.S. (1969); A

S.Ct. & M

Stores, Walker, Hiram Inc. v. F.2d (CA5 1970). Brick Cf. Illinois Co. v.

Illinois,

L.Ed.2d 707 December, day 1st

This the Pointer, C. Jr.

/s/ Sam Judge

United States District support 10. The does not its decision decisions reached, here base well result here explicated the “state action” doctrine as where state has declared desire Brown, governmental purchases in Parker v. be on the basis of (1943); Virginia 87 L.Ed. 315 Goldfarb v. State the lowest available. Whether some ex- Bar, 2004, 44 pansion might principle Parker be al- (1975); Lafayette Power respect Louisiana & lowed with to the state here Light Co., time; involved for, need not answered at appears indicated, That doctrine the court has concluded as a involving poli- to situations a “state .govern- limited matter of construction that cy regulation displace mental are outside the reach monopoly public service.” 435 Robinson-Patman Act. rationale, S.Ct. at 1136. The of those