Litigation

The Pass-On Defense: My Bad

By Bruce Nye

    In a post day before yesterday, I noted that the Court of Appeal in Clayworth v. Pfizer, Inc. (July 25, 2008) ___ Cal.App.4th ___ (A116798) had held that the "pass-on defense" barred the plaintiffs' Cartwright Act suit because, while the alleged violation resulted in increased prices to the plaintiffs, they passed these increased prices along to their own customers.  I observed, and asked, "The pass-on defense might prevent the plaintiffs from recovering as damages the price increases.  But why couldn't they recover other damages, such as lost profits?  What am I missing here?"

    As Kimberly Kracovic points out in her comment, what I was "missing here" was the fourth sentence of the opinion, where the Court noted that "plaintiffs . . . admitted that they sought no other damages, such as lost or delayed sales, aside from the claimed overcharges" (Slip Op., p. 1).  In other words, they couldn't recover other damages, such as lost profits, because they waived them.

    So as the header above says, my bad.  Perhaps a little more care in reading the opinion might be in order.  At least the first page . . . . .

Full post as published by CalBizLit on August 14, 2008 (boomark / email).