Cascade Health Solutions v. Peacehealth

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CASCADE HEALTH SOLUTIONS FKA 
MCKENZIE-WILLIAMETTE HOSPITAL,
an Oregon nonprofit corporation, No. 05-35627
Plaintiff-Appellant, D.C. No.
v.  CV-02-06032-ALH
District of Oregon,
PEACEHEALTH, a Washington State Portland
nonprofit corporation,
Defendant-Appellee.


CASCADE HEALTH SOLUTIONS FKA 
MCKENZIE-WILLIAMETTE HOSPITAL,
an Oregon nonprofit corporation, No. 05-35640
Plaintiff-Appellee, D.C. No.
v.  CV-02-06032-HA
District of Oregon,
PEACEHEALTH, a Washington State Portland
nonprofit corporation,
Defendant-Appellant.


CASCADE HEALTH SOLUTIONS FKA 
MCKENZIE-WILLIAMETTE HOSPITAL,
an Oregon nonprofit corporation, No. 05-36153
Plaintiff-Appellee, D.C. No.
v.  CV-02-06032-HA
District of Oregon,
PEACEHEALTH, a Washington State Portland
nonprofit corporation,
Defendant-Appellant.


3287
3288 CASCADE HEALTH v. PEACEHEALTH

CASCADE HEALTH SOLUTIONS FKA 
MCKENZIE-WILLIAMETTE HOSPITAL, No. 05-36202
an Oregon nonprofit corporation, D.C. No.
Plaintiff-Appellant,
v.  CV-02-06032-HA
District of Oregon,
PEACEHEALTH, a Washington State Portland
nonprofit corporation, ORDER
Defendant-Appellee.

Filed March 20, 2007

Before: Ronald M. Gould, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.

ORDER

The court invites supplemental briefs by any amicus curiae
addressing the following issue raised in this appeal: Whether
a plaintiff who seeks to establish the predatory or anticompe-
titive conduct element of an attempted monopolization claim
under § 2 of the Sherman Act by showing that the defendant
offered bundled discounts to the defendant’s customers must
prove that the defendant’s prices were below an appropriate
measure of the defendant’s costs. If so, what is the appropriate
measure of costs and how should the trial court instruct the
jury on the matter of costs? If not, what standard should the
trial court instruct the jury to use to determine whether the
bundled discounts are predatory or anticompetitive?

Any briefs responding to this order shall be filed no later
than thirty days from the filed date of this order. All briefs
shall comply with the page or type-volume limitations set
forth in Federal Rules of Appellate Procedure 29(d) and
 CASCADE HEALTH v. PEACEHEALTH 3289
32(a)(7). Any person or entity wishing to file a brief as an
amicus curiae in response to this order is granted leave to do
so pursuant to Federal Rule of Appellate Procedure 29(a).
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.