Ninth Circuit Panel Overturns Sutter Health’s Win in $400M Antitrust Suit
America ı By Rochdi Rais
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"Because Sutter's systemwide contracting was the mechanism by which Sutter allegedly imposed its anticompetitive contract terms, these admissions are highly relevant to plaintiffs' theory of the case," Judge Koh wrote.
Those memos and testimony also could've "undermined Sutter's alternative explanations for its behavior at trial," she said.
The majority also agreed with the purchasers that omitting the word "purpose" from the jury instructions was a legal error that "was not harmless." The move was at odds with both the text of the Cartwright Act, as well as the California Supreme Court's "longstanding interpretation thereof," it said.
And Sutter hasn't demonstrated otherwise, the majority held.
"On harmless error review, Sutter has the burden to prove that it is 'more probable than not' that the jury would have reached the same result if properly instructed," Judge Koh wrote. "Sutter cannot do so."
Judge Koh also addressed Judge Bumatay's contention in his dissent that their finding is new.
"Our dissenting colleague is mistaken: our decision today announces no new legal rule but rather reflects the widespread consensus that consideration of anticompetitive purpose is an essential aspect of the rule of reason analysis under both the Cartwright Act and the Sherman Act," she said.
Judge Koh said Judge Bumatay "latches on" to decisions interpreting antitrust law finding that anticompetitive purpose "is but one factor that a trier of fact may consider, not that it is required to do so." But in doing so, Judge Bumatay "fundamentally mischaracterizes the district court's error," she said.
"The trier of fact is not required to rely on any one factor, but it must have the option of considering that factor, which is only possible if properly instructed that the factor exists," the judge wrote. "Here, the jury was not instructed that it could consider anticompetitive purpose."
In his dissent, Judge Bumatay opened by quoting the soap opera "Days of Our Lives."
"As sands in the hourglass, so are the days of our lives," he wrote, adding that in soaps "it can be difficult to keep up with the latest twists and turns in their characters' lives." Yet to catch up on characters' present lives, it would be "nearly impossible" to watch every episode over the last 10 years, he said.
"So to appreciate what's happening in the soap opera now, it's more practical to focus on the most recent episodes," Judge Bumatay said.
Likewise, in antitrust litigation like the Sutter case, "we rely on the district court's discretion to fashion reasonable limits for admissible historical evidence," he said.
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