Cascade Health, et al v. Peacehealth, No. 05-35627 (9th Cir. 2008)

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CASCADE HEALTH SOLUTIONS FKA MCKENZIE-WILLIAMETTE HOSPITAL, an Oregon nonprofit corporation, Plaintiff-Appellant, v. PEACEHEALTH, a Washington State nonprofit corporation, Defendant-Appellee. CASCADE HEALTH SOLUTIONS FKA MCKENZIE-WILLIAMETTE HOSPITAL, an Oregon nonprofit corporation, Plaintiff-Appellee, v. PEACEHEALTH, a Washington State nonprofit corporation, Defendant-Appellant. CASCADE HEALTH SOLUTIONS FKA MCKENZIE-WILLIAMETTE HOSPITAL, an Oregon nonprofit corporation, Plaintiff-Appellee, v. PEACEHEALTH, a Washington State nonprofit corporation, Defendant-Appellant. 3287 ï£¼ ï£½ No. 05-35627 D.C. No. CV-02-06032-ALH District of Oregon, Portland ï£¾ ï£¼ ï£½ No. 05-35640 D.C. No. CV-02-06032-HA District of Oregon, Portland ï£¾ ï£¼ ï£½ ï£¾ No. 05-36153 D.C. No. CV-02-06032-HA District of Oregon, Portland 3288 CASCADE HEALTH v. PEACEHEALTH CASCADE HEALTH SOLUTIONS FKA MCKENZIE-WILLIAMETTE HOSPITAL, an Oregon nonprofit corporation, Plaintiff-Appellant, v. PEACEHEALTH, a Washington State nonprofit corporation, Defendant-Appellee. ï£¼ ï£½ ï£¾ No. 05-36202 D.C. No. CV-02-06032-HA District of Oregon, Portland ORDER 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 anticompetitive 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.

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