(If that were true, Cavin and Lioce would be guilty of violating the RPA because they would have knowingly obtained and received wholesale pricing discounts from Canon USA that other authorized Canon retail dealers did not. See 15 U.S.C. § 13(f).) Cavin and Lioce aim to significantly expand the scope of discovery by contending that their Counterclaims provide them with reason to engage in expansive discovery covering years of transactions between Canon USA and Cavin and Lioce’s principal intrabrand competitors, competitive injury may arise from evidence that a favored competitor received a significant price reduction over a substantial period of time.”

If such allegations are made, and such allegations are tied plausibly to the plaintiff’s losses, then a court may “infer” that the “probable” effect of the price discrimination (if proven) was to “substantially” reduce, “or to injure, destroy, or prevent competition.” See 15 U.S.C. § 13(a); Corn Products Refining Co. v. FTC, 324 U.S. 726, 738 (1945) (RPA does not “prohibit discriminations having ‘the mere possibility’ of [adverse] consequences,” but reaches only those that “probably have the defined effect on competition.”).

Plaintiffs’ pleading deficiency accordingly requires dismissal of Count III. The Robinson-Patman Act of 1936 (the “RPA”), codified as part of the Clayton Act at 15 U.S.C. § 13, prohibits anticompetitive price discrimination. The Act provides, in relevant part: It shall be unlawful for any person engaged in commerce . . . to discriminate in price between different purchasers of commodities of like grade and quality, . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them . . . .” 15 U.S.C. § 13(a). To establish a claim under the RPA, each Plaintiff must prove the following four elements: (1) that Southside’s sales of gasoline to that Plaintiff was made in interstate commerce; (2) that the gasoline sold to each Plaintiff was of the same grade and quality as that sold to an identified competitor; (3) that Southside discriminated in price as between an identified competing buyer and the particular Plaintiff; and (4) that the discrimination had a prohibited effect on competition.

The section requires an “intermediary” either (1) to be “acting in fact for or in behalf” of a party to a transaction or (2) “to be subject to the direct or indirect control” of a party to the transaction. 15 U.S.C. § 13(c). An intermediary acts “in fact for or in behalf of” a party when the intermediary acts primarily for the benefit of the party rather than primarily for her own benefit; it is not sufficient for an intermediary to act incidentally for the benefit of the party.

Complaint ¶¶ 23- 24. In Texaco, Inc. v. Hasbrouck, 496 U.S. 543, 566-67 (1990), the Supreme Court construed Section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a), as providing a remedy where the oil company discriminated in price between wholesale buyers and retail customers, where the discrimination had a prohibitive 21 Case 1:04-cv-00940-RWR Document 31 Filed 11/19/04 Page 30 of 48 effect on competition.14 Any contention that natural gas is not a commodity has been rejected in Yeager’s Fuel, Inc., et al. v. Pennsylvania Power & Light Company, et al., 953 F. Supp. 617 (E.D. Pa. 1997), based on numerous precedents.15 V. THE FILED RATE DOCTRINE DOES NOT PROVIDE ANTITRUST IMMUNITY TO DEFENDANTS.

P’ship, 940 F.2d 1272, 1274 (9th Cir. 1991); Union City Barge Line, Inc. v. Union 8 Section 2(c) of the Robinson-Patman Act provides as follows: It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control of any party to such transaction other than the person by whom such compensation is so granted or paid. 15 U.S.C. § 13(c) (emphasis added). Case 1:04-cv-00332-EGS Document 21 Filed 06/14/2004 Page 53 of 63 Case 4:07-cv-00815 Document 21 Filed in TXSD on 06/14/2004 Page 53 of 63 39 Carbide Corp., 823 F.2d 129, 140-41 (5th Cir. 1987); Freeman v. Chicago Title & Trust Co., 505 F.2d 527, 529-31 (7th Cir. 1974) (per curiam).

Case 3:12-cv-00871-SMY-PMF Document 23 Filed 11/16/12 Page 10 of 23 Page ID #223 6 By their express terms, Sections 2 and 3 of the Clayton Act cover only goods, not services. 15 U.S.C. § 13(a) (“It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . .”) (emphasis added); 15 U.S.C. § 14 (proscribing tying and exclusive dealing with respect to “goods, wares, merchandise, machinery, supplies, or other commodities”); see also 14 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 2314 (3d ed. 2012).

Merck’s copay subsidy programs violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962 (c) and (d), and the Robinson-Patman Act, 15 U.S.C. § 13(c), and constitute tortious interference with contractual relations. Plaintiffs Plumbers and Pipefitters Local 572 Health and Welfare Fund (Plumbers) and United Food and Commercial Workers International Union Local 464A Health and Welfare Fund (Workers) seek to recover on behalf of themselves and a class of private TPPs injured as a result of these violations.1 1 While the facts recited in the two plaintiffs’ complaints are largely the same, they assert different claims.

The ability to fix prices, which is naturally attendant to the monopoly power, remains per se illegal. 15 U.S.C. § 13(a); NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 133 (1998) (citing cases finding § 13(a) violations). The Registry is strictly forbidden from providing a competitor with better terms, even if that competitor offers a substantially different or improved book search service, than are made available to Google.

.................................................................. 4 Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1985) .............................................................................................. 4, 5 Sparling v. Daou (In re Daou Sys.), 411 F.3d 1006 (9th Cir. 2005) ............................................................................................ 5, 8 TSC Indus. v. Northway, 426 U.S. 438 (U.S. 1976)........................................................................................................ 9 Vess v. Ciba-Geigy Corp., 317 F.3d 1097 (9th Cir. 2003) ................................................................................................ 4 STATUTES 15 U.S.C. § 10(b) ................................................................................................................ 1, 7, 10 15 U.S.C. § 13(a) .......................................................................................................................... 1 15 U.S.C. § 13(b) .......................................................................................................................... 1 15 U.S.C. § 14(a) .......................................................................................................................... 1 15 U.S.C. § 17(a) ...................................................................................................................... 1, 7 15 U.S.C. § 7243............................................................................................................... 2, 11, 12 28 U.S.C. § 2462....................................................................................................................... 2, 9 RULES Fed. R. Civ. P. 12(b)(6)............................................................................................................... 12 Fed. R. Civ. P. 12(f).................................................................................................................... 12 Fed. R. Civ. P.