Amerisourcebergen Corp. v. Dialysist West, Inc.

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

AMERISOURCEBERGEN CORPORATION,  a New Jersey corporation, dba Bergen Brunswig Corporation, aka BBC; AMERISOURCEBERGEN DRUG CORPORATION; MEDICAL INITIATIVES, INC., aka Oncology Supply; ASD No. 04-15595 SPECIALTY HEALTHCARE, INC., Plaintiffs-Appellants, D.C. No.

CV-02-01472-JWS

v.

DIALYSIST WEST, INC., an Arizona  District of Arizona, Phoenix

corporation, ORDER Defendant-Appellee, AMENDING v. OPINION AMERX INC., a Florida corporation; CSG DISTRIBUTORS, a Tennessee company; PREMIER MEDICAL DISTRIBUTORS, INC., Third-party-Defendants.



Filed April 24, 2006

Before: Jerome Farris, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

ORDER

The opinion filed on March 22, 2006 is amended as follows : on slip opinion page 3046, lines 10-16, the following sentences are deleted: “AmerisourceBergen contends, however that the contracts for sale of Epogen and other drugs 4564 AMERISOURCEBERGEN v. DIALYSIST WEST were not separate contracts. Because the Vendor Agreement signed by Dialysist West permits AmerisourceBergen to return any goods to Dialysist West for “full credit,” Amerisource Bergen believes it was justified in applying the credit it held for the counterfeit Epogen purchases against its outstanding debts.”

The following sentences are added on slip opinion page 3046, at line 10: “AmerisourceBergen concedes that the contracts for sale of Epogen and the other drugs were separate contracts. But because the Vendor Agreement signed by Dialysist West permits AmerisourceBergen to return any goods to Dialysist West for “full credit,” AmerisourceBergen believes it was justified in applying the credit it held for the counterfeit Epogen purchases against its outstanding debts.”

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The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2006 Thomson/West.