Protection Corp, 503 U.S. 258, 269, 117 L. Ed. 2d 532, 112 S. Ct. 1311 (1992); see also 998 F.2d at 1166.
SKB first offers a general argument that in order to have standing, an antitrust plaintiff needs to be a competitor or consumer within the market in which the antitrust injury allegedly occurred. See Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519, 539, 74 L. Ed. 2d 723, 103 S. Ct. 897 (1983). SKB asserts that B & P lacks standing because B & P is not a direct competitor of the consultant pharmacists who sell Engerix-B to nursing homes, but is instead a form of advertising agency that received orders and then passed them on to a pharmaceutical supplier, General Injectables and Vaccines, Inc., ("GIV"). In making this argument, SKB rests in part on B & P's admission that it competed with advertising agencies, not the pharmacists. See Pittinos Dep. Ex. B 104. SKB also cites B & P's concession that it could have provided other telemarketing services for SKB even after SKB terminated B & P's contract for marketing Engerix-B. See Pittinos Dep. Ex. B 320-321. SKB also relies on S.D. Collectibles v. Plough, Inc., 952 F.2d 211 (8th Cir. 1991), in which a manufacturer's representative whose rights were terminated by that manufacturer in favor of another company was found to be neither a competitor nor a consumer for the purpose of antitrust standing. See 952 F.2d at 213-14.
The court finds this combination of factual admission and legal authority to be persuasive. As a telemarketing company soliciting orders for SKB products, B & P was not in the same market as the consultant pharmacists and cannot be considered a competitor of these pharmacists or SKB. As a result, any harm it has suffered as a result of SKB's actions is due to any breach of the alleged contracts at issue here, rather than antitrust injury.
In light of this characterization of B & P's status, B & P does not fulfill the specific components of the Third Circuit's five-part test. Even if we assume that an antitrust violation of some kind has occurred, with regard to factors (1), (2), and (3), B & P's injury stems from an alleged breach of contract and not antitrust injury, so these factors cannot be met. For example, plaintiff claims contract damages for its alleged antitrust injury, i.e., a seven percent commission, and the type of injury it has suffered cannot be said to be of the kind that the antitrust laws were designed to protect.
The injury here is not sufficiently direct to be considered adequate for standing purposes. At best, plaintiff was a broker working for a commission that took no risk of loss on the sales of Engerix-B. The plaintiff offers a conclusory expert opinion, but it does not change the problems inherent in the underlying facts. If SKB had breached an employment contract with a sales employee to pacify the anticompetitive complaints of the pharmacists, it would be extremely difficult to visualize such an employee's antitrust injury. If GIV had hired B & P and SKB terminated its relationship with GIV to pacify the anticompetititve complaints of the consulting pharmacists, it would also be difficult for B & P to assert antitrust injury. B & P faces similar obstacles here in establishing that its injury is sufficiently direct to suffice for antitrust standing purposes. See Bodie-Rickett and Associates v. Mars, Inc., 957 F.2d 287 (6th Cir. 1992) (terminating a brokers' contract due to a reorganization of the customer company not an antitrust violation); see also L&M Beverage Co., Inc. v. Anheuser-Busch, Inc., 1988 U.S. Dist. LEXIS 9223, Civ. A. No 85-6937, 1987 WL 16682, *2 (E.D. Pa.).
As for factor (4), GIV or the nursing homes involved would serve as more direct alleged antitrust victims in this case than B & P; GIV may have lost revenues as a result of the end of the arrangement between B & P and SKB, and the nursing homes may have lost access to lower prices for Engerix-B. With regard to factor (5), allowing for B&P to have standing for an antitrust case when its case is, at its core, a contract case, has the potential to result in a duplicative recovery or complexity in apportioning damages. It is complex to differentiate damages between GIV and B & P; any attempt to do so would implicate the factual core of this dispute and pose a high potential for duplicative recovery, as GIV's damages could arguably include all or a portion of the contract damages claimed by the plaintiff. As a result, this case demonstrates the concern voiced in Illinois Brick that overlapping parties not compete for the same pool of alleged illegal profits from antitrust activity. See Illinois Brick Co. v Illinois, 431 U.S. 720, 742-45, 52 L. Ed. 2d 707, 97 S. Ct. 2061 (1977); In re Lower Lake Erie Iron Ore Antitrust Litigation, 998 F.2d 1144, 1169 (3d Cir. 1993). In sum, there may be a possible antitrust suit on these facts, but B & P is not the proper plaintiff to bring that suit.
Counts II, III, and IV, state law claims with no independent jurisdictional basis, are dismissed without prejudice for plaintiff to pursue in state court. The court declines to exercise supplemental jurisdiction over the state law claims.
BY THE COURT:
MARVIN KATZ, J.