Kensington Antitrust Advisors Group

 The Third Circuit held that because it is not a direct purchaser, a Pennsylvania hospital lacks standing to represent a class of purchasers accusing Amgen Inc. of violating federal antitrust laws by tying pharmaceutical rebates to purchases of its anemia drug Aranesp. Hospital Warren General filed its putative class action in September 2009, alleging Amgen improperly tied its discounts and rebates on white blood cell growth factor products Neupogen and Neulasta to purchases of red blood cell growth factor product Aranesp. Warren General contended that even though Aranesp had a higher price per dose than Procrit, it had to purchase Aranesp or end up paying more for Neupogen and Neulasta than Medicare would reimburse. The hospital does not qualify as a direct purchaser of the drugs, the court of appeal said, because it acquired them through distributor AmerisourceBergen Corp. The Third Circuit rejected Warren General’s arguments that its relationship with Amgen qualified it as a direct purchaser. Even if it had some direct interactions with Amgen, Warren General was not a direct purchaser because it (1) placed orders for the Amgen drugs through AmerisourceBergen, (2) received deliveries of the drugs directly from AmerisourceBergen, and (3) paid the distributor directly for the pharmaceuticals.