“As a matter of ‘economic reality,’ both Costco and the wholesalers were wholesalers of 5-hour Energy,” the Ninth Circuit panel stated in its ruling. This decision allows the wholesalers to continue pursuing their claim that Costco’s promotional pricing amounted to unfair price discrimination.
5-Hour Energy Unfair Pricing Test : Living Essentials’ Supreme Court Petition
Living Essentials petitioned the Supreme Court, arguing that the Ninth Circuit’s use of the Tri-Valley Packing test in price discrimination cases was flawed. They claimed the wholesalers were not direct competitors of Costco, and the appeals court’s decision misinterpreted the relationship between the plaintiffs and Costco.
The wholesalers countered that Living Essentials’ petition was premature, as the Ninth Circuit’s ruling was not a final order. They also argued that the company was effectively asking the Supreme Court to engage in fact-finding, a role typically reserved for lower courts.
Case Moving Forward
With the Supreme Court’s refusal to intervene, the case will return to the district court for further proceedings. The wholesalers are represented by attorneys Randolph Gaw, Victor Meng, and Mark Poe of Gaw Poe LLP. Living Essentials is represented by a team from The Miller Law Firm and Kellogg Hansen Todd Figel & Frederick PLLC.
