THE VACCINE CENTER, LLC V. GLAXOSMITHKLINE LLC, No. 14-17207 (9th Cir. 2017)
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 03 2017 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK THE VACCINE CENTER, LLC, DBA The Vaccine Center and Travel Medicine Clinic, a Nevada limited liability company, No. U.S. COURT OF APPEALS 14-17207 D.C. No. 2:12-cv-01849-JCM-NJK Plaintiff-Appellant, MEMORANDUM* v. GLAXOSMITHKLINE LLC, a Delaware limited liability company; SOUTHERN NEVADA HEALTH DISTRICT, Defendants-Appellees. Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted December 12, 2016 San Francisco, California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. page 2 Before: KOZINSKI and N.R. SMITH, Circuit Judges, and GLEASON,** District Judge. The Nonprofit Institutions Act exempts non-profits from liability under the Robinson-Patman Act when they purchase supplies for their “own use.” 15 U.S.C. § 13c. The Supreme Court has interpreted “own use” to mean that which promotes the entity’s “intended institutional operation.” Abbott Labs. v. Portland Retail Druggists Ass’n, Inc., 425 U.S. 1, 14 (1976). The Southern Nevada Health District’s intended institutional operation is broad: County law empowers it “[t]o take whatever action that is necessary to control communicable diseases,” Clark Cty., Nev., Code § 3.08.070(b). But even activities that conform to an “extraordinar[il]y broad institutional function” can satisfy the “own use” provision. De Modena v. Kaiser Found. Health Plan, Inc., 743 F.2d 1388, 1393 (9th Cir. 1984). Because the vaccine sales and marketing activities of the Southern Nevada Health District conformed to the intended institutional operation of such a district, the Health District purchased the discounted vaccines for its “own use.” The district court thus properly held that defendants were exempt from RobinsonPatman liability. ** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. page 3 AFFIRMED.
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