United States v. 2006-04-24 | 04-15595 | AMERISOURCEBERGEN CORP. VDIALYSIST WEST, INC. | precedential…

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., D.C. No. Plaintiffs-Appellants, CV-02-01472-JWS
v. District of
DIALYSIST WEST, INC., an Arizona 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 fol-
lows: on slip opinion page 3046, lines 10-16, the following
sentences are deleted: “AmerisourceBergen contends, how-
ever that the contracts for sale of Epogen and other drugs
4563

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were not separate contracts. Because the Vendor Agreement
signed by Dialysist West permits AmerisourceBergen to
return any goods to Dialysist West for “full credit,” Ameri-
sourceBergen believes it was justified in applying the credit
it held for the counterfeit Epogen purchases against its out-
standing debts.”
The following sentences are added on slip opinion page
3046, at line 10: “AmerisourceBergen concedes that the con-
tracts for sale of Epogen and the other drugs were separate
contracts. But because the Vendor Agreement signed by Dia-
lysist 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.”
4564 AMERISOURCEBERGEN v. DIALYSIST WEST

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PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West.

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