McCarthy v. Recordex Service, Inc. ( 1996 )


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  •                                                                                                                            Opinions of the United
    1996 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-4-1996
    McCarthy v. Recordex Svcs. Inc
    Precedential or Non-Precedential:
    Docket 95-1005
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    http://digitalcommons.law.villanova.edu/thirdcircuit_1996/191
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    1
    1
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ----------
    No. 95-1005
    ----------
    MARY RUTH MCCARTHY; GUY COLVILLE; EDWARD ORMSBY;
    CARMEN TOMASETTI; JOSEPH HOFFMAN,
    Appellants
    v.
    RECORDEX SERVICE, INC.; COPYRIGHT, INC.; SMART CORP., National
    Headquarters Medical Records Copying; MEDFAX INCORPORATED;
    HOSPITAL CORRESPONDENCE COPIERS; MERCY HEALTH CORPORATION OF
    SOUTHEASTERN PENNSYLVANIA, Misericordia Hospital Division;
    METHODIST HOSPITAL; THE GRADUATE HOSPITAL; HAHNEMANN
    UNIVERSITY HOSPITAL; THE LOWER BUCKS HOSPITAL
    ----------
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil No. 93-cv-00281)
    ----------
    Argued Monday, January 22, 1996
    BEFORE:   STAPLETON, COWEN and GARTH, Circuit Judges
    ----------
    (Opinion filed April 4, 1996)
    ----------
    Stephen R. Bolden (Argued)
    Richard C. Ferroni
    Fell & Spalding
    100 South Broad Street
    2230 Land Title Building
    Philadelphia, PA 19110
    2
    Attorneys for Appellants
    2
    Leslie M. Gerstein
    Law Offices of Nancy D. Wasser
    One Penn Center at Suburban Station
    1617 J.F.K. Boulevard
    Suite 1100
    Philadelphia, PA 19103-1811
    Attorney for Appellees
    Recordex Services, Inc.,
    Copyright, Inc. and Medfax, Inc.
    David H. Marion
    David Zalesne
    Montgomery, McCracken, Walker & Rhoads
    Three Parkway, 20th Floor
    Philadelphia, PA 19102
    Attorneys for Appellee Smart Corporation
    Christopher W. Mattson
    Katherine B. Kravitz
    Barley, Snyder, Senft & Cohen
    126 East King Street
    Lancaster, PA 17602
    Attorneys for Appellee Hospital
    Correspondence Copiers, Inc.
    Alan M. Lieberman
    Schnader, Harrison, Segal & Lewis
    1600 Market Street
    Suite 3600
    Philadelphia, PA 19103
    Attorney for Appellee Mercy Health
    Corporation of Southeastern                                         Pennsylvania,
    Misericordia Hospital                               Division
    Edward C. Mengel, Jr.
    White & Williams
    One Liberty Place
    1650 Market Street
    Suite 1800
    Philadelphia, PA 19103
    Attorneys for Appellee Methodist
    Hospital
    3
    Anthony E. Creato
    Mesirov, Gelman, Jaffe, Cramer
    & Jamieson
    1735 Market Street
    37th Floor
    Philadelphia, PA 19103-7598
    Attorney for Appellee The Graduate
    Hospital
    Michael T. Scott (Argued)
    Martin H. Karo
    Reed, Smith, Shaw & McClay
    1650 Market Street
    2500 One Liberty Place
    Philadelphia, PA 19103-7301
    Attorneys for Appellee
    Hahnemann University Hospital
    Jonathan B. Sprague
    Kathleen Chancler
    Post & Schell
    1800 JFK Boulevard
    19th Floor
    Philadelphia, PA 19103
    Attorneys for Appellee
    The Lower Bucks Hospital
    ----------
    OPINION OF THE COURT
    ----------
    GARTH, Circuit Judge:
    The instant appeal requires us to decide whether the plaintiff-clients, w
    attorneys purchased photocopies of the clients' hospital records for the purpose of
    prosecuting their clients' personal injury and medical malpractice claims, have sta
    to bring an antitrust action against the sellers of the photocopies.   We hold that
    clients lack standing to bring a treble-damages claim because they are not "direct
    purchasers," as required by Illinois Brick Co. v. Illinois, 
    431 U.S. 720
    (1977). Ho
    4
    we also hold that these clients are not barred from seeking injunctive relief under
    section 16 of the Clayton Act.
    I.
    Plaintiffs Mary Ruth McCarthy,0 Guy Colville, Edward Ormsby, Carmen Tomasetti0
    Joseph Hoffman filed a three-count complaint, on January 19, 1993, against five hos
    (the "Hospital defendants")0 and five copy-service companies (the "Copy Service
    defendants").0   The complaint asserted violations of the Sherman Antitrust Act, 15 U
    §§ 1 and 2 (count I);0 violations of the Racketeering, Influence, and Corrupt Organ
    tions Act (RICO), 18 U.S.C. §§ 1433 and 1962 (count II); and violations of the civi
    rights laws, 42 U.S.C. § 1983 (count III).   The complaint and amended complaint sou
    injunctive relief, money damages, class certification and attorneys' fees. In essen
    plaintiffs allege that the Hospital Defendants and the Copy Service Defendants cons
    0
    McCarthy died subsequent to the institution of this litigation. A personal
    representative has been named for her but has not been formally substituted on the
    as of the date of this appeal.
    0
    Tomasetti died after commencing this action. No personal representative has been n
    as of the date of this appeal.
    0
    The Hospital Defendants are Mercy Health Corporation of Southeastern Pennsylvania,
    Misericordia Hospital Division ("Misericordia"); Methodist Hospital ("Methodist");
    Graduate Hospital ("Graduate"); Hahnemann University Hospital ("Hahnemann"); and th
    Bucks Hospital ("Lower Bucks"). They are all hospital corporations that operate hos
    in the Commonwealth of Pennsylvania.
    0
    The Copy Service Defendants are Recordex Services, Inc. ("Recordex"), CopyRight, In
    ("CopyRight"), Smart Corporation ("Smart"), Medfax, Inc. ("MedFax"), and Hospital
    Correspondence, Copiers ("HCC"). They are all corporations doing business in the
    Commonwealth of Pennsylvania, who have entered into contracts with one of the Hospi
    Defendants to perform copying services in response to requests for copies of hospit
    records.
    0
    Count I specifically alleges that the defendants engaged in a "contract combinatio
    conspiracy in restraint of trade effecting [sic] interstate commerce"; and that "th
    defendants possess a monopoly in the relevant market for the performance of copying
    services of hospital patient records, and have willfully maintained that power in o
    illegally extract unlawful prices for the performance of said copy services." Comp
    at ¶ 52.
    5
    to charge excessive prices for photocopies of medical records requested by patients
    former patients.
    Each of the named plaintiffs, at some time within four years before filing the
    instant action, were patients at hospitals owned by the Hospital Defendants.   Each
    plaintiff had retained either Matty & Ferroni ("M&F"), a New Jersey law firm, or Fe
    Spalding ("F&S), a Philadelphia firm, to file a personal injury or medical malpract
    claim on his or her behalf.   In each case, after the particular plaintiff had signe
    medical consent form authorizing the appropriate hospital to release his or her med
    records, the plaintiff's attorney requested photocopies of the client's hospital re
    The copy service company, in each case, billed the attorney directly.0
    Each of the five plaintiffs had entered into a contingent-fee agreement with e
    M&F or F&S.   With the exception of McCarthy, none of the plaintiffs were obligated
    the relevant retainer agreement to reimburse the law firm for costs, including the
    photocopying expenses at issue, unless a monetary recovery in favor of the particul
    client was obtained.0 McCarthy's agreement with F&S, on the other hand, provided th
    0
    Tomasetti retained M&F, which requested copies of patient records from Hahnemann;
    Recordex provided the photocopying services and charged M&F $44.40. Hoffman retain
    which requested copies of records from Lower Bucks; MedFax performed the photocopyi
    charged M&F $19.22. Both Tomasetti and Hoffman settled their cases and reimbursed
    of their settlement proceeds for the photocopying costs.
    Colville retained M&F, which requested copies from Methodist; Smart, which per
    the photocopying, charged M&F $25.49. Ormsby also retained M&F, which requested co
    from Graduate; HCC photocopied the records, charging M&F $38.40. At the time this
    was filed, neither Colville nor Ormsby had reached a settlement, and neither had
    reimbursed M&F for the copying expenses incurred. Ormsby has apparently discontinu
    personal injury claim. App. at 536.
    McCarthy retained F&S, which requested copies of her medical records from
    Misericordia. CopyRight, which was responsible for providing copying services rela
    requests for Misericordia patient records, billed F&S $540. F&S refused to pay the
    but eventually obtained the copies from opposing counsel. App. at 517-20, 525.
    0
    The four plaintiffs other than McCarthy entered into contingent fee agreements wit
    Under these agreements, the law firm would receive its fee (33-1/3% for Tomasetti a
    for each of the other three plaintiffs) only if it successfully litigated or settle
    case. Under Colville's contract, M&F would be entitled to 40% of the recovery plus
    reimbursement of any costs. The other three contracts only awarded M&F a percentag
    6
    "[t]he absence of a recovery shall not relieve [McCarthy] from the obligation of pa
    court costs and other proper litigation and investigative costs."0    App. 498.   Howe
    Stephen R. Bolden, a partner at F&S, admitted in an affidavit that despite the cont
    language, in actual practice, the firm never sought reimbursement for advanced cost
    representation of the client did not lead to a recovery:
    Although under the express language in this Contingent Fee Agreement, Fell &
    Spalding is contractually entitled to seek reimbursement from a client even
    where a representation of that client has not led to the recovery of funds; as
    matter of actual practice, where Fell & Spalding has been unsuccessful in
    obtaining a recovery of funds by way of settlement or otherwise . . . Fell &
    Spalding has not sought reimbursement for the costs incurred in copying a
    client's hospital records . . . .
    App. 526.0
    Each of the Hospital Defendants had entered into a contract with one of the Co
    Service Defendants, granting the Copy Service Defendant the exclusive right to phot
    hospital records requested by patients or other members of the public entitled to s
    records.     Under the contract, the copy-service company agreed to photocopy any medi
    the recovery (i.e. M&F would have to cover its costs out of its percentage share of
    settlement or award).
    None of the fee agreements entitled M&F to reimbursement of costs if the clien
    failed to recover. Colville's contract provided: "If there is no recovery there w
    no charge for services rendered." App. 414. Likewise, Hoffman's agreement stated:
    no monies are recovered there will be no fee for services rendered." App. 433. Or
    agreement similarly read: "If there is no recovery, there are no charges for any f
    App. 455. Finally, Tomasetti's contingent fee agreement provided: "If no monies a
    recovered attorney to have no claim for services rendered. -- Attorney to advance a
    costs necessary, & to be reimbursed at settlement." App. 470.
    0
    If McCarthy prevailed, F&S would receive a 1/3 contingent fee (calculated based on
    amount of the award or settlement before deducting expenses) plus litigation expens
    0
    Richard C. Ferroni, a partner at M&F, similarly stated in an affidavit that
    [h]e had not, nor has his firm, ever sought reimbursement for costs (including
    costs of obtaining copies of a client's hospital records) from a client where
    there has not been a recovery in the action in which he or his firm has
    represented the client and the Contingent Fee Agreement does not address costs
    although clients are advised they are responsible for costs regardless of
    outcome.
    App. 536.
    7
    records requested by patients or other requestors.      The sole remuneration received
    Copy Service Defendants derived from the copying charges paid by the requestors.      A
    685, 692, 694, 698, 701.
    Patients or their attorneys were charged $1 per page for copies of medical rec
    In addition, they also typically paid a retrieval fee, which was remitted to the ho
    an "administrative" or "basic" fee (i.e. a flat fee unrelated to the number of copi
    which was retained by the copy-service company; and postage and handling fees.
    Certain "favored" requestors were charged a reduced rate0 or no fee at all.0     T
    Hospital Defendants set the schedule of charges, designating the requestors who wou
    would not be charged.   Typically, sixty percent or more of the requests for hospita
    records were nonbillable.
    Plaintiffs claim that the practice of subsidizing certain requestors while cha
    patients or their agents an inflated fee violated a Pennsylvania regulation, which
    provides in relevant part:
    Patients or patient designees shall be given access to or a copy of their
    medical records, or both . . . . Upon the death of a patient, the hospital sha
    provide, upon request, to the executor of the decedent's estate or, in the
    absence of an executor, the next of kin responsible for the disposition of the
    remains, access to all medical records of the deceased patient. The patient o
    the patient's next of kin may be charged for the cost of reproducing the copie
    however, the charges shall be reasonably related to the cost of making the cop
    28 Pa. Code § 115.29 (emphasis added).
    After plaintiffs filed an amended complaint, the defendants moved to dismiss p
    to Federal Rule of Civil Procedure 12(b)(6).       The district court, by order dated Au
    1993, denied defendants' motion to dismiss counts I (antitrust) and II (RICO) but g
    the motion to dismiss count III (civil rights).
    0
    For example, Medicare copy requests were billed at seven cents per page; and the
    Workmen's Compensation Appeal Board paid a ten dollar flat fee per request regardle
    the number of pages actually copied.
    0
    For example, other hospitals, physician's offices, Blue Cross and Blue Shield, the
    Veteran's Administration and social service agencies received copies for free. The
    military and certain HMOs also received free copies.
    8
    Subsequently, on April 4, 1994, plaintiffs moved to certify the case as a clas
    action.    On November 18, 1994, in a Memorandum and Order, the district court denied
    plaintiffs' motion for class certification.
    On April 1, 1994, defendant Hahnemann filed a motion for partial summary judgm
    count I (the antitrust claim), which was eventually joined by all of the defendants
    Smart.    The district court denied the motion for partial summary judgment in an ord
    dated May 5, 1994.
    Subsequently, Hahnemann moved for reconsideration.     On July 8, 1994, the distr
    court granted Hahnemann's motion for reconsideration and granted summary judgment o
    I in favor of all defendants, holding that the plaintiffs lacked standing because t
    were not "direct purchasers" of the hospital records, within the meaning of Illinoi
    Co. v. Illinois, 
    431 U.S. 720
    (1977).
    On December 12, 1994, all of the defendants joined in a motion for summary jud
    on the remaining RICO claim, on the theory that antitrust standing principles appli
    equally in the RICO context.    On December 29, 1994, the district court granted summ
    judgment to all defendants on count II, thus disposing of all three counts of the
    complaint.    Plaintiffs timely filed the instant appeal.
    II.
    The district court had jurisdiction over plaintiffs' antitrust and RICO claims
    15 U.S.C. § 15; 18 U.S.C. § 1964; and 28 U.S.C. § 1331.     We have appellate jurisdic
    over the district court's grant of summary judgment in favor of defendants under 28
    § 1291.
    The issue of antitrust standing is a legal issue, over which we exercise plena
    review.    In re Lower Lake Erie Iron Ore Antitrust Litig., 
    998 F.2d 1144
    , 1164 (3d C
    1993), cert. dismissed, 
    114 S. Ct. 625
    , 652, and cert. denied, 
    114 S. Ct. 921
    (1994
    also exercise plenary review of a district court's grant of summary judgment, apply
    9
    same standards applied by the district court.      Rosen v. Bezner, 
    996 F.2d 1527
    , 1530
    Cir. 1993); Koshatka v. Philadelphia Newspapers, Inc., 
    762 F.2d 329
    , 333 (3d Cir. 1
    Summary judgment is proper only where "there is no genuine issue as to any mat
    fact and . . . the moving party is entitled to judgment as a matter of law."      Fed.
    P. 56(c). The moving party bears the burden of proving that no genuine dispute exis
    to any material fact.   Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    Moreover, any inferences to be drawn must be viewed in the light most favorable to
    party opposing summary judgment.    
    Id. at 247;
    Matsushita Elec. Indus. Co. v. Zenith
    Corp., 
    475 U.S. 574
    , 587 (1986).
    III.
    A.
    Almost twenty years ago, the Supreme Court articulated the so-called "direct
    purchaser" rule, an antitrust standing doctrine that barred downstream indirect pur
    from bringing an antitrust claim.   See Illinois Brick Co. v. Illinois, 
    431 U.S. 720
    (1977).   Recognizing that allowing an indirect purchaser to assert an antitrust cla
    the portion of an overcharge "passed on" to the indirect purchaser would create an
    intractable problem of tracing and apportioning damages between different purchaser
    the chain of distribution, the Court chose to avoid this morass by enunciating a br
    line rule that only the purchaser immediately downstream from the alleged monopolis
    bring an antitrust action.   
    Id. Almost a
    decade before Illinois Brick, the Supreme Court laid the foundation f
    "direct purchaser" standing requirement in Hanover Shoe, Inc. v. United Shoe Machin
    Corp., 
    392 U.S. 481
    (1968), which rejected a "pass-on" defense proffered by an anti
    defendant who claimed that the plaintiff was not entitled to treble damages for cos
    "passed on" to its customers.   
    Id. at 487-89.
        In Hanover Shoe, the plaintiff shoe
    manufacturer, Hanover Shoe, Inc., brought suit under section 4 of the Clayton Act a
    10
    United Shoe Machinery Corp. (USMC), a manufacturer and distributor of shoe machiner
    alleging that USMC had monopolized the shoe machinery industry by refusing to sell
    equipment and requiring users to lease the equipment instead.        
    Id. at 486-87.
      USMC
    that Hanover Shoe had been able to recoup its losses by charging its customers more
    the shoes and thus did not suffer any cognizable injury because it had passed on th
    allegedly illegal overcharge to its customers. 
    Id. at 487-88.
    The Court rejected USMC's pass-on theory, explaining that entertaining such a
    would raise difficult proof issues as to the amount of the overcharge passed on and
    whether, absent the overcharge, Hanover Shoe could have raised its prices.        
    Id. at The
    Court also expressed concern that downstream buyers would have only "a tiny sta
    lawsuit" and thus little incentive to prosecute a private antitrust claim.        
    Id. at The
    Court reasoned that allowing a pass-on defense would diminish private antitrust
    enforcement and thereby increase the likelihood that violators of antitrust laws wo
    escape liability.     
    Id. In Illinois
    Brick, the Supreme Court addressed the corollary to the problem th
    faced in Hanover Shoe:      offensive use of the pass-on theory by indirect purchasers
    recover treble damages for injuries "passed on" to them by intermediaries in the
    distribution chain.    Illinois Brick involved a suit brought by the State of Illinoi
    700 local governmental entities against a group of concrete block manufacturers, wh
    allegedly engaged in a price-fixing 
    conspiracy. 431 U.S. at 726-27
    .   The State and
    local municipalities had hired general contractors for several large construction p
    in the Chicago area.    
    Id. at 726.
         The general contractors, in turn, had subcontrac
    masonry work to certain masonry contractors who had purchased the allegedly overpri
    blocks from the conspirators.      
    Id. The State
    of Illinois and the local government
    entities were thus indirect purchasers of concrete block, two levels down the distr
    chain from the manufacturers.      
    Id. 11 Illinois
    and the other governmental entities claimed that part or all of the
    overcharge had been passed on by the subcontractors and general contractors.     
    Id. a As
    a result, according to the plaintiffs, they had overpaid for the concrete block
    than three million dollars.   
    Id. The Court
    dismissed the claim, holding that indir
    purchasers may not sue for antitrust damages. 
    Id. at 736.
    The Court in Illinois Brick explained that the outcome was dictated by Hanover
    and that principles of judicial consistency compelled the Court to prohibit the off
    use of a pass-on theory where it had disallowed the defensive use of the pass-on do
    in a similar factual situation.     
    Id. at 730.
    The Court further explicated that perm
    the latter while disallowing the former would create a risk of multiple liability:
    one-sided application of Hanover Shoe substantially increases the possibility of
    inconsistent adjudications--and therefore of unwarranted multiple liability for the
    defendant--by presuming that one plaintiff (the direct purchaser) is entitled to fu
    recovery while preventing the defendant from using that presumption against the oth
    plaintiff . . . ."   
    Id. The State
    posited that the danger of duplicative recovery could be avoided by
    apportioning the damages attributable to the concrete-block manufacturers' wrongful
    conduct.   The Court, however, rejected the State's argument that indirect purchaser
    should be allowed to recover the fraction of the overcharge "passed on" to them,
    explaining:
    Permitting the use of pass-on theories . . . essentially would transform
    treble-damages actions into massive efforts to apportion the recovery among al
    potential plaintiffs that would have absorbed part of the overcharge--from
    direct purchasers to middlemen to ultimate consumers. However appealing this
    attempt to allocate the overcharge might seem in theory, it would add whole ne
    dimensions of complexity to treble-damages suits and seriously undermine their
    effectiveness.
    
    Id. at 737.
    12
    Subsequently, in Kansas v. Utilicorp United, Inc., 
    497 U.S. 199
    (1990), the Co
    reaffirmed its commitment to the "direct purchaser" rule, refusing to carve out an
    exception to Illinois Brick for situations where the full cost of the product (and
    one hundred percent of any overcharge) had been passed on to the indirect purchaser
    at 216.   In Utilicorp, the States of Kansas and Missouri, acting as parens patriae,
    brought an antitrust action on behalf of their residents, claiming that a pipeline
    and five gas producers had conspired to inflate the price of the natural gas that t
    supplied to public utilities.   
    Id. at 204.
      These utilities, according the States,
    passed on the full amount of the overcharge to their residential and commercial cus
    
    Id. Kansas and
    Missouri argued that the concerns voiced in Illinois Brick, namely
    difficulties of apportionment, the risk of multiple recovery and the diminution of
    incentives for private antitrust enforcement, were absent because regulated public
    utilities pass on one hundred percent of their costs to consumers, who are the ones
    actually suffer antitrust injury.    The Court forcefully rejected that argument, opi
    that "[a]lthough the rationales of Hanover Shoe and Illinois Brick may not apply wi
    equal force in all instances, we find it inconsistent with precedent and imprudent
    event to create an exception for regulated public utilities."    
    Id. at 208.
    We have applied Illinois Brick's antitrust standing principle on several occas
    For example, in Mid-West Paper Products Co. v. Continental Group, Inc., 
    596 F.2d 57
    Cir. 1979), we relied on Illinois Brick in holding that indirect purchasers of cons
    bags could not maintain a treble-damages suit against the manufacturers of such bag
    at 575.   In Mid-West Paper, the defendants manufactured so-called consumer bags--si
    multilayered paper bags used for packaging pet foods, coffee, cookies, chemicals an
    like.   
    Id. The plaintiff-grocery
    stores purchased either empty consumer bags (whic
    used to package their own products) from middlemen and wholesalers or products that
    pre-packaged in consumer bags for resale to their customers. 
    Id. at 575-76.
       After
    13
    reviewing the teachings of Illinois Brick, we determined that the "direct purchaser
    barred the treble-damages claims of all of the plaintiffs (except Mid-West Paper Pr
    Company, which had purchased consumer bags directly from a subsidiary of one of the
    defendants).     
    Id. at 575.
    Similarly, in Merican, Inc. v. Caterpillar Tractor Co., 
    713 F.2d 958
    (3d Cir.
    cert. denied, 
    465 U.S. 1024
    (1984), non-factory-authorized dealers, who had purchas
    electrical generators from authorized dealers for resale in foreign markets, allege
    Caterpillar, the manufacturer of these electrical generators, had illegally imposed
    penalty on its dealers to prevent or discourage the dealers from selling Caterpilla
    products to independent marketers.       
    Id. at 960.
      The district court held that the
    plaintiffs had standing under Illinois Brick because the nonfactory-authorized deal
    were the "direct target[s] of an unlawful conspiracy."       
    Id. at 962.
      We reversed, h
    that an indirect purchaser, even if a "direct target" of an antitrust conspiracy, l
    standing under Illinois Brick. 
    Id. at 966.
    Likewise, in Link v. Mercedes-Benz, Inc., 
    788 F.2d 918
    (3d Cir. 1986), Mercede
    repair customers claimed that Mercedes dealers, who were required to purchase parts
    exclusively from Mercedes at artificially inflated prices, had passed on those cost
    retail customers.       
    Id. at 928-30.
      Citing Illinois Brick, we held that retail custo
    were indirect purchasers and therefore lacked antitrust standing.       
    Id. at 930.
    Most recently, in Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp
    F.2d 425 (3d Cir. 1993), we held that only the direct purchaser of an aircraft, and
    downstream buyer or assignee, had standing to pursue an antitrust claim.        
    Id. at 43
    emphasized that "any exception to the direct purchaser rule would be inappropriate
    case for the same reasons that the Supreme Court held an exception would be inappro
    in Utilicorp."    
    Id. B. 14
         Plaintiffs argue that the Supreme Court has receded from Illinois Brick's "dir
    purchaser" rule.   Specifically, plaintiffs contend that the "direct purchaser" requ
    has been displaced by the multi-factor approach to antitrust standing outlined in
    Associated General Contractors v. California State Council of Carpenters, 459 U.S.
    (1983) [hereinafter "AGC"].
    In AGC, the plaintiff-unions, representing California construction workers, su
    association of employers with whom the unions had entered into collective bargainin
    agreements. 
    Id. at 522-24.
       The complaint alleged that the association and its memb
    coerced certain landowners and other contractors to hire non-union labor.   
    Id. In determining
    whether the plaintiff-unions had standing to sue under section
    the Clayton Act, the AGC Court employed a five-part analytical framework, which
    encompassed the following considerations:   (1) the causal connection between the an
    violation and the harm to the plaintiff (including whether the defendant intended t
    that harm), 
    id. at 537;
    (2) whether the "nature" of the plaintiff's alleged injury
    the type that the antitrust laws were intended to forestall," 
    id. at 538;
    (3) the
    directness or indirectness of the asserted injury, 
    id. at 541;
    (4) the existence of
    direct victims of the alleged injury (i.e. whether the plaintiff is the party most
    to seek redress of the antitrust violation), 
    id. at 542;
    and (5) the potential for
    duplicative recovery or complex apportionment of damages, 
    id. at 543-44.
       The AGC f
    factor framework was an attempt by the Court to synthesize and clarify the confusin
    collection of the then-extant antitrust-standing rules.0
    0
    Prior to AGC, the courts of appeals applied a variety of different tests to determi
    standing under section 4 of the Clayton Act: (1) the "direct injury" test, see Chr
    Corp. v. Fedders Corp., 
    643 F.2d 1229
    , 1233 (6th Cir.), cert. denied, 
    454 U.S. 893
    Loeb v. Eastman Kodak, 
    183 F. 704
    , 709 (3d Cir. 1910); (2) the "zone of interests"
    see Malamud v. Sinclair Oil Corp., 
    521 F.2d 1142
    , 1151-1152 (6th Cir. 1975); and (3
    "target area" test, see Pan-Islamic Trade Corp. v. Exxon Corp., 
    632 F.2d 539
    , 546-4
    Cir. 1980), cert. denied, 
    454 U.S. 927
    (1981); Calderone Enters. Corp. v. United Ar
    Theatre Circuit, Inc., 
    454 F.2d 1292
    , 1295 (2d Cir. 1971), cert. denied, 
    406 U.S. 9
    (1972). Recognizing that these alternative formulations for assessing antitrust st
    often led to contradictory and inconsistent results, the Supreme Court in AGC attem
    15
    Contrary to plaintiffs' intimation, however, the AGC Court neither overruled I
    Brick nor limited its application. Indeed, the AGC Court cited Illinois Brick with
    approval.   See 
    id. at 544-45.
      Moreover, factors four and five in the AGC framework
    Illinois Brick's concerns.   In our view, AGC incorporates, rather than repudiates,
    principles of Illinois Brick.0
    Plaintiffs assert, however, that the absolute bar of the "direct purchaser" ru
    been supplanted by AGC's balancing approach.    In support of this contention, plaint
    cite to certain passages from our opinion in In re Lower Lake Erie Iron Ore Antitru
    Litigation, 
    998 F.2d 1144
    (3d Cir. 1993), cert. dismissed, 
    114 S. Ct. 625
    , 652, and
    denied, 
    114 S. Ct. 921
    (1994), wherein we adumbrated that "indirect purchaser statu
    [not necessarily] the death knell of [an antitrust] claim . . . ."    
    Id. at 1168.
      I
    Lake Erie, several steel companies, dock companies and trucking companies filed civ
    actions in federal district court, alleging that the defendant railroad companies s
    the lower Lake Erie industrial region had conspired to monopolize the transportatio
    handling of iron ore in the region.   
    Id. at 1151,
    1152.
    articulate a unified set of factors that could be applied generally in determining
    antitrust standing.
    0
    Of course, AGC and Illinois Brick address two analytically distinct aspects of anti
    standing. See 
    Merican, 713 F.2d at 963-65
    (noting that "the Supreme Court has reco
    two types of limitations on the availability of the section 4 remedy which the cour
    consider when examining whether a treble damage action may be maintained"). The AG
    was concerned primarily with the issue of whether a particular plaintiff's injury w
    remote from an antitrust injury to warrant providing that plaintiff a section 4 rem
    
    Id. at 964.
    This inquiry, akin to the determination of "proximate cause" in the
    negligence context, is subtle and resists the use of hard-and-fast "black letter" r
    See 
    id. In contrast,
    Illinois Brick dealt with the issue of whether a plaintiff who is
    to trace an injury to an antitrust violation falls "within the group of 'private at
    general' that Congress created to enforce the antitrust laws under section 4." 
    Id. 963. Illinois
    Brick focuses exclusively on the risk of duplicative recovery and th
    potential for overly-complex damages and apportionment calculations. 
    Id. at 963-64
    Because there would always be a risk of duplicative recovery, as well as the potent
    complex apportionment computations, if indirect purchasers were allowed to bring an
    claims, the "direct purchaser" rule, unlike the AGC standard, is a bright-line rule
    16
    In a bifurcated trial, the liability jury found against Bessemer and Lake Erie
    Railroad Company (BL&E), the sole remaining defendant,0 and in favor of all plaintif
    one; and the damages jury awarded all but one claim for damages.      
    Id. at 1151.
      On
    we applied AGC and affirmed the district court's denial of BL&E's motion to dismiss
    lack of standing and the district court's denial of BL&E's motion for judgment n.o.
    Plaintiffs here contend that Lower Lake Erie requires that we set aside the di
    court's grant of summary judgment and remand for a determination of standing pursua
    the AGC factors.     We disagree.
    Lower Lake Erie is fully distinguishable.    In Lower Lake Erie, we found that t
    plaintiffs' claims did not involve "the particular kind of double recovery Illinois
    sought to prevent."     
    Id. at 1169.
    By contrast, all of the policy concerns expressed in Illinois Brick are implic
    the present case.     First, there is considerable risk that the Hospital defendants a
    Service defendants would be exposed to multiple liability. Although plaintiffs' att
    here have chosen not to sue the defendants directly, it is probable that lawyers wh
    themselves purchase photocopies of their clients' hospital records would bring treb
    damage claims against the Hospital defendants and the Copy Service defendants in th
    future.     Indeed, both the district court and this court inquired as to why the inst
    complaint had not been amended to substitute the attorneys as plaintiffs.       No satis
    answer was given.     Hence, if we were to deny the defendants the protection of the "
    purchaser" rule, they could potentially be held liable to both the clients and the
    attorneys representing the clients.
    Furthermore, this lawsuit involves apportionment problems perhaps more complex
    those implicated in Illinois Brick. Because the costs of the photocopies are only p
    on to the client, if the costs are passed on at all, on a contingent basis, the dis
    0
    The other defendants all settled before trial.
    17
    court would be faced with complex statistical calculations as to the percentage of
    photocopying costs borne by the attorneys as compared to the costs borne by their c
    In addition, the district court would have to ascertain the degree to which conting
    fees charged to successful plaintiffs includes a recoupment of photocopying costs n
    charged to losing plaintiffs.
    Under these circumstances, plaintiffs cannot escape the absolute bar of the "d
    purchaser" rule.   In order to survive summary judgment, plaintiffs must establish t
    clients, and not their attorneys, are the direct purchasers of the hospital-record
    photocopies.   On this record, no such proof exists.
    C.
    Plaintiffs argue that they, and not their lawyers, are the direct purchasers o
    hospital record photocopies.0 Plaintiffs contend that their attorneys merely acted a
    their agents in purchasing the photocopies.   Citing In re Toilet Seat Antitrust
    Litigation, 1977-2 Trade Cases ¶ 61,601 (E.D. Mich. 1977), plaintiffs posit that pu
    made by an agent on behalf of the agent's principal do not come within the scope of
    "direct purchaser" rule.
    0
    Plaintiffs first contend that their attorneys cannot be considered part of the cha
    distribution because they do not make a profit from, or charge separately for, the
    photocopies. We are not persuaded for at least two reasons. First, in order for a
    consumer to be considered an indirect purchaser of an item, it is not necessary tha
    consumer incur a separate charge for that item; it is only necessary that the consu
    have purchased the item through a middleman. For example, a homeowner who hires a
    housepainter who charges by the hour and does not invoice the homeowner separately
    cost of materials cannot be considered the "direct purchaser" of the paint used by
    housepainter.
    Second, attorneys do profit, albeit indirectly, from their purchase of their c
    hospital record photocopies. That is, they earn a contingent fee at the end of a
    successful action. Moreover, even if the attorneys failed to profit (or even if the
    suffered a loss) on the transaction, this fact does not transform their clients int
    direct purchasers. For example, in the previous hypothetical, the homeowner would
    be considered an indirect purchaser even if the housepainter had charged a fee
    insufficient to recoup the costs of the paint job or if the housepainter had charge
    fee at all.
    18
    We are unpersuaded by plaintiffs' argument and find In re Toilet Seat Antitrus
    Litigation, the single case relied upon by the plaintiffs in support of their agenc
    theory, to be inapposite.   That case involved an alleged conspiracy by toilet seat
    manufacturers to fix the price of wood-flour toilet seats. See In re Toilet Seat An
    Litig., 
    387 F. Supp. 1342
    , 1343 (J.P.M.L. 1975).   One of the plaintiffs, Harvey Lum
    Company, purchased toilet seats through a purchasing agent, Biddle Purchasing Compa
    which actually placed the order for the toilet seats at a price approved by Harvey.
    Biddle received a flat monthly fee, unrelated to the quantity of toilets ordered, a
    no inventory.    In re Toilet Seat Antitrust Litigation, 1977-2 Trade Cases ¶ 61,601,
    72,496.   The district court concluded that under these limited circumstances, Harve
    direct purchaser of the toilet seats and had standing to bring an antitrust claim.0
    at 72,496-97.
    In the present case, in contrast, none of the plaintiffs retained their lawyer
    act as mere purchasing agents whose sole objective and function was to buy photocop
    the clients.    Rather, each client hired his or her attorney to file a lawsuit on hi
    her behalf and to protect the client's legal interests.   Moreover, a fair reading o
    record reveals that the lawyers purchased the photocopies for their own use in
    representing their clients.   The attorneys, and not the clients, were undeniably th
    direct purchasers of the photocopies.
    Furthermore, the fact that the costs of the photocopies were passed on to the
    on a dollar for dollar basis (at least where the attorney obtained a recovery on be
    0
    The district court relied on the dictum in footnote 16 of Illinois Brick, which st
    "Another situation in which market forces have been superseded and the pass-on defe
    might be permitted is where the direct purchaser is owned or controlled by its cust
    Illinois 
    Brick, 431 U.S. at 736
    n.16 (citing Perkins v. Standard Oil Co., 
    395 U.S. 648
    (1969) and In re Western Liquid Asphalt Cases, 
    487 F.2d 191
    , 197, 199 (9th Cir.
    cert. denied, 
    415 U.S. 919
    (1974)). Because Harvey "controlled" Biddle's actions
    regarding purchases made on Harvey's behalf, the district court "view[ed] the relat
    between Harvey and Biddle as falling within the above exception." In re Toilet Seat
    Antitrust Litigation, 1977-2 Trade Cases ¶ 61,601, at 72,497.
    19
    the client) is not dispositive.0   Indeed, the subcontractors in Illinois Brick and
    utility companies in Utilicorp passed on their costs to the plaintiffs in those res
    cases; yet the Supreme Court deemed this fact insufficient to confer standing to th
    indirect-purchaser plaintiffs in those cases.
    Plaintiffs attempt to distinguish these precedents by characterizing the middl
    those cases as "independent contractors."   Plaintiffs take the position that the at
    in the present case, in contrast, are agents and not independent contractors.
    It is, of course, beyond cavil that the attorney-client relationship is an age
    principal relationship.   However, attorneys are also independent contractors as wel
    agents. See Restatement (2d) Agency § 14N (1958) ("One who contracts to act on beha
    another and subject to the other's control except with respect to his physical cond
    an agent and also an independent contractor."); 
    id. § 14N
    comment a ("[M]ost of the
    persons known as agents, that is, brokers, factors, attorneys, collection agencies,
    selling agencies are independent contractors . . . .") (emphasis added); 41 Am. Jur
    Independent Contractors § 4 (1995) ("[F]or example, attorneys at law . . . and othe
    similar persons . . . are agents, although as to their physical activities they are
    independent contractors . . . .") (emphasis added); see also Commonwealth v. Minds
    Mining Corp., 
    60 A.2d 14
    , 20 (Pa. 1948) (adopting Restatement definitions of indepe
    contractor).
    An agent may be either an independent contractor or a servant (or employee in
    day parlance).   See Restatement (2d) Agency § 2 comment b (1958) ("An agent who is
    servant is, therefore, an independent contractor when he contracts to act on accoun
    the principal.").   Therefore, the relevant inquiry here is not whether a principal-
    0
    Plaintiffs are no more direct purchasers of the hospital record photocopies at iss
    than a passenger in a taxicab would be considered a direct purchaser of the gasolin
    by the taxicab to carry the passenger to his destination. Moreover, even if a sepa
    charge for gasoline were assessed, the taxi passenger still could not be considered
    direct purchaser in any sense.
    20
    relationship exists between clients and their attorneys, but whether attorneys are
    independent contractors or mere employees.   Although there are a number of factors
    relevant to this inquiry, see Restatement (2d) of Agency § 220 (1958), the most imp
    factor is the degree of control exercised by the principal:
    The legal distinction between an employee and an independent contractor is so
    well established as to require little, if any, discussion. The characteristic
    of the former relationship is that the master not only controls the result of
    the work but has the right to direct the way in which it shall be done, wherea
    the characteristic of the latter is that the person engaged in the work has th
    exclusive control of the manner of performing it, being responsible only for t
    result.
    Feller v. New Amsterdam Cas. Co., 
    70 A.2d 299
    , 300 (1950).   See also Moon Area Sch.
    v. Garzony, 
    560 A.2d 1361
    , 1367 (Pa. 1989); Hammermill Paper Co. v. Rust Eng'g Co.,
    A.2d 389, 392 (Pa. 1968).
    It is clear that attorneys exercise "exclusive control of the manner of perfor
    [their legal work], being responsible [to the client] only for the result."   Feller
    A.2d at 300.
    Furthermore, plaintiffs here are not even directly liable for the cost of the
    photocopies.   Except for McCarthy, plaintiffs are liable only if their attorneys su
    in achieving a recovery on their behalf.   Indeed, three of the contingent-fee agree
    do not impose a separate charge for litigation costs; rather, the attorneys are rei
    out of their percentage share of the settlement or award.
    In McCarthy's case, although the retainer agreement does indicate that she is
    responsible for costs irrespective of the outcome, her attorney acknowledged that i
    actual practice, his law firm never charged clients unless the firm obtained a reco
    Furthermore, McCarthy faces another insurmountable obstacle:   her attorney never pa
    photocopying charges but rather obtained the needed copies from opposing counsel.
    Therefore, McCarthy (and indeed, even her attorney) cannot show any injury -- much
    antitrust injury.
    21
    Based on these undisputed facts, we must conclude that the clients are not dir
    purchasers.0   And unless an exception to the "direct purchaser" principle applies h
    the plaintiffs have no standing to assert their antitrust claim under count I.
    D.
    Plaintiffs argue, in the alternative, that Illinois Brick does not apply here
    they fall within the "co-conspirator" exception to the direct purchaser rule.    Citi
    
    Link, 788 F.2d at 918
    , and In re Brand Name Prescription Drugs Litigation, 867 F. S
    1338 (N.D. Ill. 1994), plaintiffs advance the proposition that indirect buyers have
    standing to bring an antitrust claim against defendants who are co-conspirators in
    vertical antitrust conspiracy.   To the extent that these cases recognize a co-consp
    exception, however, we hold that plaintiffs have failed to establish the applicabil
    such an exception to the facts at hand.
    Preliminarily, we reject plaintiffs' reading of Link as establishing an except
    Illinois Brick where the middlemen, from whom the plaintiffs made purchases, partic
    0
    The attorneys are the real parties in interest. Indeed, as noted previously, the
    district court offered the plaintiffs' attorneys an opportunity to substitute thems
    as the plaintiffs of record. Although the defendants did not object to the distric
    court's proposal, the attorneys for the plaintiffs declined the court's offer, choo
    instead to appeal the district court's adverse ruling as to standing.
    We acknowledge that generally an attorney is to be considered the agent of the
    client, and as such, would not be held personally liable for expenditures made for
    disclosed principal. See Messenger Publishing Co. v. Walkinshaw, 
    157 A. 18
    (Pa. Su
    Ct. 1931). However, the Pennsylvania Supreme Court has yet to address this subject
    there is a wealth of authority that an attorney ordering goods or services in conne
    with litigation, as is the case here, ordinarily be treated as a principal and henc
    be liable for such expenses.
    Even the lower courts in Pennsylvania, whose decisions are not binding on us,
    had difficulty with this issue. See Pessano v. Eyre, 
    13 Pa. Super. 157
    (1900). Bu
    neither the cases revealed by the parties' research nor those revealed by our own r
    have discussed this issue in the context of a federal antitrust action, such as we
    here. In none of those cases was the Illinois Brick direct purchaser rule at issue
    are satisfied that in the instant antitrust context, the attorney-appellants do not
    standing to prosecute this action.
    22
    in a vertical antitrust conspiracy.   To the contrary, in Link, we expressly refused
    adopt such an exception where the alleged co-conspirators immediately upstream were
    also joined as codefendants:
    Alternatively, appellants argue that this court should carve out a narrow
    exception to Illinois Brick in vertical conspiracies where the intervening
    parties in the distribution process are named as co-conspirators (a so-called
    "co-conspirator exception"). We decline to recognize this exception where, as
    here, the alleged co-conspirators are not also joined as co-defendants.
    
    Link, 788 F.2d at 931
    (citations omitted) (emphasis added).
    Similarly, in Brand Name, although the district court did allow the plaintiff
    retailers of pharmaceutical drugs to sue both the manufacturers and the wholesalers
    did so on the basis that the plaintiffs had alleged that the parties immediately up
    (i.e. the wholesalers) had colluded with the manufacturers to fix prices.    The plai
    had not alleged that overcharges were passed on but rather that the wholesalers, as
    of a price-fixing conspiracy, had directly imposed an overcharge on the plaintiff
    retailers.   See Brand 
    Name, 867 F. Supp. at 1344
    .
    Most significantly, the district court in Brand Name emphasized that the reaso
    had not granted summary judgment in favor of the manufacturer-defendants was becaus
    plaintiffs ha[d] named [as defendants] a large percentage of all possible [wholesal
    had allegedly participated in the conspiracy]." 
    Id. at 1346.
      The district court de
    to "penalize[] [the plaintiffs] for the failure to join every single [w]holesaler
    [involved in the alleged conspiracy] . . . ."     
    Id. Plaintiffs here
    posit that they have joined all of the co-conspirators in the
    conspiracy (i.e. the Hospital defendants and the Copy Service defendants).    Reasoni
    they have thereby satisfied the requirements of the co-conspirator exception, plain
    argue that they should therefore be accorded standing to bring an antitrust claim e
    though they are not direct purchasers.   We cannot agree.
    23
    Plaintiffs misconstrue Brand Name and Link, and misconceive the nature of the
    conspirator exception.   In order to fall within the exception, plaintiffs here woul
    to allege that the intermediaries immediately upstream, that is, the attorneys, col
    with the defendants to overcharge plaintiffs for the photocopies.    Moreover, plaint
    would be obliged to join the lawyers as defendants, which they have not done.    In s
    co-conspirator exception does not apply here.
    E.
    Plaintiffs also suggest that the present case falls within the "pre-existing c
    plus contract" exception to the direct purchaser rule.   This exception arises from
    in Hanover Shoe:
    We recognize that there might be situations--for instance, when an overcharged
    buyer has a pre-existing "cost-plus" contract, thus making it easy to prove th
    he has not been damaged--where the considerations requiring that the passing-o
    defense not be permitted in this case would not be present.
    Hanover 
    Shoe, 392 U.S. at 494
    .
    The vitality of the "pre-existing cost-plus contract" exception is doubtful, h
    in light of Utilicorp.   The Supreme Court, in that case, expressly refused to recog
    exception to Illinois Brick even where one hundred percent of the cost increases ha
    passed through to indirect purchasers. 
    Utilicorp, 497 U.S. at 216
    .
    Moreover, even if this exception survived Utilicorp, plaintiffs have failed to
    that they meet the prerequisites of this exception.   Specifically, plaintiffs have
    to show the existence of a pre-existing agreement to purchase a fixed quantity of
    photocopies from the attorneys.   See Mid-West 
    Paper, 596 F.2d at 580
    .   In addition,
    discussed earlier, plaintiffs have failed to demonstrate that they must pay the ful
    of the copies since their liability for litigation costs is only contingent in natu
    24
    In sum, plaintiffs have failed to establish that any exception to the direct
    purchaser rule obtains.   Thus, we hold that plaintiffs lack standing to pursue thei
    antitrust claim (count I).
    IV.
    Significantly, antitrust standing principles apply equally to allegations of R
    violations.    See Holmes v. Sec. Investor Protection Corp., 
    503 U.S. 258
    , 270 (1992)
    precepts taught by Illinois Brick and Utilicorp apply to RICO claims, thereby denyi
    standing to indirect victims.   Wooten v. Loshbough, 
    951 F.2d 768
    , 770 (7th Cir. 199
    County of Oakland v. City of Detroit, 
    866 F.2d 839
    , 851 (6th Cir. 1989), cert. deni
    U.S. 1003 (1990); Carter v. Berger, 
    777 F.2d 1173
    , 1176 (7th Cir. 1985); Terre Du L
    Ass'n v. Terre Du Lac, Inc., 
    772 F.2d 467
    , 473 (8th Cir. 1985), cert. denied, 475 U
    1082 (1986); Daley's Dump Truck Serv., Inc. v. Kiewit Pac. Co., 
    759 F. Supp. 1498
    ,
    (W.D. Wash. 1991), aff'd sub. nom., Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d
    (9th Cir. 1992), cert. denied, 
    113 S. Ct. 1644
    (1993).    Indeed, plaintiffs have con
    that, if they lacked antitrust standing, they also lacked RICO standing. See Plaint
    Motion to Secure Certification (Nov. 29, 1994), at 3-4 (App. at 1168-69).
    Hence, the central and dispositive issue is whether plaintiffs are "direct
    purchasers."   If so, they are entitled to pursue both their antitrust and RICO clai
    not, and insofar as damages are concerned, the district court properly granted summ
    judgment in favor of the defendants.
    25
    V.
    Finally, plaintiffs argue that even if they lack standing to recover damages u
    section 4 of the Clayton Act,0 they may still seek injunctive relief under section 1
    the Act.0
    Standing analysis under section 16 is not identical to that for section 4.   Se
    Cargill, Inc. v. Monfort of Colorado, Inc., 
    479 U.S. 104
    , 111 n.6 (1986).   "Section
    been applied more expansively, both because its language is less restrictive than t
    § 4 . . . and because the injunctive remedy is a more flexible and adaptable tool f
    enforcing the antitrust laws than the damage remedy . . . ."   Schoenkopf v. Brown &
    Williamson Tobacco Corp., 
    637 F.2d 205
    , 210 (3d Cir. 1980).    Most importantly, "bec
    standing under § 16 raises no threat of multiple lawsuits or duplicative recoveries
    the concerns voiced in Illinois Brick], some of the factors other than antitrust in
    that are appropriate to a determination of standing under § 4 are not relevant unde
    16."   
    Cargill, 479 U.S. at 111
    n.6.
    In Mid-West Paper, we expressly rejected the contention that the direct purcha
    rule bars injunctive relief under section 16 as well as a treble damages suit under
    section 4. We explained that
    in contrast to the treble damage action, a claim for injunctive relief does no
    present the countervailing considerations--such as the risk of duplicative or
    ruinous recoveries and the spectre of a trial burdened with complex and
    0
    Section 4 of the Clayton Act allows for recovery of treble damages in a private an
    action:
    [A]ny person who shall be injured in his business or property by reason of
    anything forbidden in the antitrust laws may sue therefor . . . and shall
    recover threefold the damages by him sustained, and the cost of suit, includin
    a reasonable attorney's fee.
    15 U.S.C. § 15(a).
    0
    Section 16 provides in relevant part:
    Any person . . . shall be entitled to sue for and have injunctive relief . . .
    against threatened loss or damage by a violation of the antitrust laws.
    15 U.S.C. § 26.
    26
    conjectural economic analyses--that the Supreme Court emphasized when limiting
    the availability of treble damages.
    Mid-West 
    Paper, 596 F.2d at 590
    .    See also 
    Merican, 713 F.2d at 962
    n.6; In re Beef
    Antitrust Litig., 
    600 F.2d 1148
    , 1167 (5th Cir. 1979), cert. denied, 
    449 U.S. 905
    (
    We cautioned that
    the rule of standing urged by the defendants, which would completely bar
    indirect purchasers from seeking injunctive relief, would leave a serious gap
    the antitrust enforcement scheme, as the fate of these injured parties, and of
    the competitive economy in an entire industry, would be made dependent upon th
    willingness of the government and the direct purchasers to assume the burdens
    a lengthy lawsuit.
    Mid-West 
    Paper, 596 F.2d at 593-94
    .
    Although plaintiffs need not satisfy Illinois Brick's "direct purchaser" requi
    in order to seek injunctive relief, they must still make a threshold showing of
    entitlement to injunctive relief.     That is, plaintiffs must show: (1) threatened lo
    injury cognizable in equity; (2) proximately resulting from the alleged antitrust
    violation.    City of Rohnert Park v. Harris, 
    601 F.2d 1040
    , 1044 (9th Cir. 1979), ce
    denied, 
    445 U.S. 961
    (1980); Central Nat'l Bank v. Rainbolt, 
    720 F.2d 1183
    , 1186 (1
    Cir. 1983).    Because the district court never considered whether plaintiffs would b
    entitled to injunctive relief under section 16, separate and apart from the Illinoi
    standing rule, we will remand to allow the district court to undertake such an anal
    VI.
    For the foregoing reasons, we will affirm the district court's grant of summar
    judgment in favor of the defendants on plaintiffs' treble-damages claim (count I) a
    claim (count II),0 but we will reverse as to plaintiffs' claim for
    0
    Count III, the civil rights claim, was dismissed by the district court and is not o
    appeal before us.
    27
    injunctive relief and remand for further proceedings consistent with this opinion.0
    MARY RUTH MCCARTHY, ET AL. V. RECORDEX SERVICE, INC., ET AL.
    NO. 95-1005
    STAPLETON, J., Concurring in part and dissenting in part:
    As the court acknowledges, it is "beyond cavil that the attorney-client relati
    is an agent-principal relationship." (Majority Op. at 25.)   Nevertheless, the court
    declares that the "attorneys [in this case], and not the clients, were undeniably t
    direct purchasers of the photocopies."    (Majority Op. at 24.) The first of these
    inconsistent propositions is clearly correct; it necessarily follows that the secon
    not.    Because the photocopies were purchased from the defendant copy services by th
    attorneys, as agents for their disclosed client-principals, it is the clients, and
    attorneys, who purchased them. For this reason, I would reverse the judgment of the
    district court and remand for further proceedings on all of the plaintiffs' claims.
    I.
    In part III-B, the court concludes that: (1) the Supreme Court in Associated G
    Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S.
    (1983) [hereinafter AGC], neither overruled Illinois Brick Co. v. Illinois, 431 U.S
    (1977), nor limited its application; (2) "AGC incorporates, rather than repudiates,
    0
    Although the injunctive relief issue was only perfunctorily briefed and discussed,
    seriously question whether the issue can be successfully pursued. We note, for ins
    that plaintiffs apparently have obtained all of the medical records relevant to the
    particular personal injury claims, and there is little, if any, likelihood that pla
    will request additional copies of those records from the defendants. Moreover, it i
    highly doubtful that additional hospital records pertaining to plaintiffs' personal
    claims will be generated. Nevertheless, because our precedents require that a clai
    an injunction under section 16 be treated differently than a claim for treble damag
    under section 4, it is appropriate that the district court, rather than this Court,
    consider the merits of the claim for injunctive relief in the first instance.
    28
    principles of Illinois Brick," (Majority Op. at 19;) (3) AGC and Illinois Brick add
    two distinct aspects of antitrust standing; and (4) in order to escape summary judg
    the plaintiffs must establish that they and not their attorneys are the direct purc
    of the photocopies.   I agree.
    Whether the plaintiffs are direct purchasers of the copies, however, depends o
    whether the attorneys are agents for the plaintiffs with respect to the purchase of
    copies.   If the attorneys bought the copies as agents for the plaintiffs, then the
    plaintiffs are the direct purchasers of the copies.    If, on the other hand, the att
    purchased the copies on their own behalves, then the plaintiffs are indirect purcha
    the copies.   When the applicable law is applied to the facts reflected in the summa
    judgment record, the conclusion is inescapable that the attorneys purchased the cop
    their clients and that the clients are the direct purchasers.
    A.
    In Pennsylvania, the elements of agency are "the manifestation by the principa
    the agent shall act for him, the agent's acceptance of the undertaking and the
    understanding of the parties that the principal is to be in control of the undertak
    Scott v. Purcell, 
    415 A.2d 56
    , 60 (Pa. 1980) (quoting Restatement (Second) of Agenc
    Comment b (1958)). When a lawyer undertakes to represent a client, he consents to t
    client's having control of the representation even though he may be expected to exe
    professional judgment with respect to the means of pursuing the objectives of the
    representation. Pennsylvania Rules of Professional Conduct 1.2(a).    For this reason
    attorney-client relationship, as the court acknowledges, is generally regarded as a
    agency relationship. As a principal, the client is bound by the actions of the atto
    the course of the representation.    As an agent, the attorney, like other agents, is
    fiduciary and owes to his client-principal a duty of care, obedience, and loyalty.
    Restatement (Second) of Agency §§ 377-398; e.g., Pennsylvania Rules of Professional
    Conduct 1.1, 1.2, 1.3, 1.15.     In particular, an attorney who obtains tangible prope
    29
    the course of carrying out the agency owes to his client-principal a duty to exerci
    reasonable care in its protection, to use it only in accordance with the directions
    principal and for his benefit, and to surrender it upon demand on the termination o
    agency.   
    Id. § 422;
    Pennsylvania Rules of Professional Conduct 1.15, 1.16(d).   Whil
    attorney may have a lien to secure any unpaid compensation, it is only a lien and a
    tangible property obtained or created in the course of the representation belongs t
    client-principal.   Pennsylvania Rules of Professional Conduct 1.16(d).
    The record here reflects typical attorney-client relationships between the pla
    and their attorneys.   The attorneys agreed to represent the plaintiffs in their per
    injury suits and thus to obtain on their behalf the goods and services necessary to
    prosecute those suits.0   Although the attorneys, as permitted by Pennsylvania's Rul
    Professional Conduct,0 are advancing to their clients the expenses associated with
    litigating their cases, this does not, in my view, alter the relationship between t
    attorneys and their clients or between the clients and third parties with whom the
    attorneys deal on the clients' behalf.   By contrast, nothing in the record suggests
    the attorneys are purchasing the records on their own behalves in the hope of makin
    profit on resales to their clients.
    The attorneys' role as agent is controlling here because, unless otherwise agr
    agent for a disclosed principal is not a party to a contract that the agent enters
    0
    Of course, it is understood that an attorney obtains goods used generally in his
    practice, such as office supplies, on his own behalf. Office supplies are analogou
    the paint purchased by a housepainter or the gasoline purchased by a taxicab driver
    court's hypotheticals. (See Majority Op. at 22 n.15; 24 n.17.)
    0
    Pennsylvania's Rules of Professional Conduct 1.8(e) provides:
    (e) A lawyer shall not provide financial assistance to a client in
    connection with pending or contemplated litigation, except that:
    (1) a lawyer may advance court costs and expenses of litigation, the
    repayment of which may be contingent on the outcome of the matter; and
    (2) a lawyer representing an indigent client may pay court costs and
    expenses of litigation on behalf of the client.
    30
    behalf of the principal.    Restatement (Second) of Agency § 320 (followed in Revere
    Inc. v. Blumberg, 
    246 A.2d 407
    , 409 (Pa. 1968)). Thus, unless it is agreed that suc
    agent is to be a party to a contract, the contract is, in effect, a contract betwee
    principal and the third party.   Restatement (Second) of Agency §292 (followed in Hi
    Apartments, Inc. v. NYCE Crete Co., 
    352 A.2d 148
    , 154 (Pa. Super. Ct. 1975)).
    Accordingly, where, as here, an attorney purchases photocopies of records and it is
    understood by the seller that they are being purchased on behalf of his client, the
    and not the attorney is the purchaser. My review of Pennsylvania case law convinces
    that Pennsylvania subscribes to these basic principles of agency in the context of
    attorney-client relationship.
    In Moore v. Porter, 13 Serg. & R. 100 (Pa. 1825), the Supreme Court of Pennsyl
    addressed the remedies available to a prothonotary to collect fees incurred by liti
    The court held that "[t]he party for whom the services are done, is responsible for
    fees, and to him is the [prothonotary] to look. . . .   The fees are not chargeable
    attorney of the party for whom the services are done, unless he has become security
    the costs."   
    Id. at 101.
    Pessano v. Eyre, 
    13 Pa. Super. 157
    (1900), involved a suit by an expert witnes
    against the attorney that hired him in pursuit of his client's claim.    The superior
    held that "[i]f . . . there was no express direct undertaking on the part of the
    [attorney] to pay what was due to the [expert witness], that is the end of the matt
    because the expert witness could not collect from the attorney.    
    Id. at 163.
      The a
    would be liable to the expert witness only if the attorney "ma[de] himself liable b
    special promise."   Id.0
    0
    The court concludes that in Pessano v. Eyre, 
    13 Pa. Super. 157
    (1900), the super
    court "had difficulty with this issue." (Majority Op. at 27 n.18.) I am not sure o
    difficulty the court speaks. On the contrary, the superior court in Pessano plainl
    articulates the principle that while an agent is not generally liable on a contract
    on behalf of a disclosed principal, "even where the agency is known, an agent . . .
    render himself liable by an express undertaking." Pennsylvania R. Co. v. Gallagher
    31
    In Messenger Publishing Co. v. Walkinshaw, 
    157 A. 18
    (Pa. Super. Ct. 1931), th
    superior court held that where an attorney orders copies of "a paper book used on a
    from a publishing company, the attorney does so in his capacity as an agent for his
    client. As the court explained:
    When an attorney has been acting for the defendant up to judgment and the clie
    with him in the taking of an appeal and the attorney orders the printing of th
    paper-books required by the rules of the appellate court, it is to be presumed
    he is acting under authority from his client. At least, the ordering of the p
    books is within the scope of the attorney's authority.
    
    Id. at 19
    (quoting Huntzinger v. Devlin, 80 Pa. Super. Ct. 187 (1922)).    Thus, the
    publishing company, the court held, could not collect from the attorney.
    Based on Moore, Pessano, Walkinshaw, and Huntzinger, I conclude that in Pennsy
    "when an attorney contracts with a third party for the benefit of a client for good
    services to be used in connection with the attorney's representation of a particula
    client and the third party is aware of these facts, the attorney is not liable on t
    contract unless he either expressly or impliedly assumes some type of special liabi
    Eppler, Guerin & Turner, Inc. v. Kasmir, 
    685 S.W.2d 737
    , 738 (Tex. Ct. App. 1985).0
    Numerous jurisdictions agree.   See Christensen, O'Connor, Garrison & Havelka v. Sta
    Washington, Department of Revenue, 
    649 P.2d 839
    , 843 (Wash. 1982); Hasbrouck v. Krs
    P.2d 1197, 1198 (Mont. 1975); In re May, 
    261 N.E.2d 109
    , 110 (N.Y. 1970); Kates v.
    Millheiser, 
    569 So. 2d 1357
    , 1357 (Fla. Dist. Ct. App. 1990); Free v. Wilmar J. Helr
    
    688 P.2d 117
    , 119-20 (Or. Ct. App. 1984); Weeden Engineering Corp. v. Hale, 435 So.
    A.2d 401, 402 (Pa. Super. Ct. 1953). In the record in this case, there is no evide
    an express undertaking of liability by the attorneys. Moreover, the fact that the
    attorney may commit himself to be responsible to the seller for the purchase price
    not mean that the client is not also responsible or that any property purchased in
    sale on behalf of the client does not belong to the client.
    0
    The court intimates that Pennsylvania case law may be inapposite because no
    Pennsylvania case discusses the agency issue in a federal antitrust context and non
    address the direct purchaser rule. (See Majority Op. at 27 n.18.) In my view, thi
    distinction is not significant because the agency status of the attorneys is purely
    question of state law. The court does not suggest a reason why the agency question
    turn out differently in the federal antitrust context, and I perceive none.
    32
    1158, 1160 (La. Ct. App. 1983); Petrando v. Barry, 
    124 N.E.2d 85
    , 87 (Ill. Ct. App.
    7A C.J.S. Attorney and Client § 140 (1980) ("In the absence of assumption of person
    liability, an attorney is generally not liable for work done by third persons in
    connection with his representation of a client.").
    Under this case law, the plaintiff-clients, and not their attorneys, are respo
    for the purchase price of the photocopies.   Moreover, the record reflects that they
    had to pay in the past0 and will continue to have to pay in the future0 the prices t
    copy services choose to charge. Assuming that an antitrust violation has affected t
    prices that the copy services charge, I fail to understand how there could be a mor
    direct causal relationship between that violation and the plaintiffs' alleged injur
    B.
    The court concludes that because the attorneys are independent contractors wit
    respect to the purchase of the copies, the attorneys, rather than the plaintiffs, a
    direct purchasers of the copies.   The issue of whether the attorneys are independen
    contractors is simply not relevant here, however. Independent contractor status is
    relevant only to determine the extent of a principal's tort liability to third part
    According to the law of respondeat superior, where B acts for the benefit of A and
    a tort and injures C, if B is an independent contractor, then C cannot recover from
    regardless of whether B is A's agent.   If, on the other hand, B is a servant of A,
    can recover from A regardless of whether B is A's agent.   Thus, even if it be true
    the plaintiffs' attorneys are independent contractors, all this tells us is that th
    plaintiffs are not responsible to third parties for torts committed by the attorney
    0
    As the court acknowledges in footnote 6, plaintiffs Thomasetti and Hoffman have
    their attorneys' advances.
    0
    Even if one credits the testimony that F&S chooses not to press its contract rig
    reimbursement in unsuccessful cases, it is clear that the clients will wind up payi
    purchase price of the photocopies in all successful cases.
    33
    tells us nothing about whether the attorneys, as their agents, purchased the copies
    their behalves.   See Restatement (Second) of Agency §§ 2, 219-220.
    II.
    Because antitrust standing principles apply equally to allegations of RICO
    violations, I would conclude, for the foregoing reasons, that the plaintiffs may go
    forward on their RICO damage claims.   Because I agree with the court that the plain
    have standing to prosecute their claim for injunctive relief under Section 16 of th
    Clayton Act, I would remand for further proceedings on all of plaintiffs' claims.
    34