Walgreen Co v. Johnson & Johnson ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1730
_____________
WALGREEN CO; KROGER CO,
Appellants
v.
JOHNSON & JOHNSON; JANSSEN BIOTECH INC.
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-02357)
District Judge: Hon. J. Curtis Joyner
_______________
Argued
November 12, 2019
Before: JORDAN, SCIRICA, and RENDELL, Circuit
Judges.
(Filed February 21, 2020)
_______________
Anna T. Neill
Scott E. Perwin [ARGUED]
Michael A. Ponzoli
Lauren C. Ravkind
Kenny Nachwalter
1441 Brickell Avenue
Four Seasons Tower, Ste. 1100
Miami, FL 33131
Counsel for Appellants
William F. Cavanaugh, Jr. [ARGUED]
George A. LoBiondo
Adeel A. Mangi
Patterson Belknap Webb & Tyler
1133 Avenue of the Americas
New York, NY 10036
Thomas O. Barnett
Ashley E. Bass
Covington & Burling
850 10th Street, NW
One City Center
Washington, DC 20001
Leslie E. John
Burt M. Rublin
Ballard Spahr
1735 Market Street -51st Floor
Philadelphia, PA 19103
Counsel for Appellees
2
Eric L. Bloom
Monica L. Kiley
Hangley Aronchick Segal Pudlin & Schiller
2805 Old Post Road – Suite 100
Harrisburg, PA 17110
Barry L. Refsin
Hangley Aronchick Segal Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
Counsel for Amicus Appellants
CVS Pharmacy Inc. and Rite Aid Corp
Moira E. Cain-Mannix
Brian C. Hill
Marcus & Shapira
301 Grant Street
One Oxford Centre – 35th Floor
Pittsburgh, PA 15219
Counsel for Amicus Appellant
Giant Eagle Inc.
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
This case raises the question of whether an assignment
of federal antitrust claims is barred by a contract provision
proscribing the assignment of any “rights or obligations under”
that contract. The District Court answered in the affirmative
3
and granted summary judgment against the appellants, who all
want to assert antitrust claims they purportedly obtained by
assignment from a party bound by the anti-assignment clause.
We conclude that the District Court erred. The antitrust claims
are a product of federal statute and thus are extrinsic to, and
not rights “under,” a commercial agreement. Accordingly, we
will reverse the grant of summary judgment and remand for
further proceedings.
I. BACKGROUND
Appellants Walgreen Co. and the Kroger Co. (which,
for convenience, we refer to collectively and in the singular as
“Walgreen”) operate retail pharmacies throughout the United
States. One of the many pharmaceuticals that Walgreen
dispenses to the public is Remicade, a biologic drug used to
treat various autoimmune diseases. Remicade is marketed and
manufactured by Appellees Johnson & Johnson and Janssen
Biotech, Inc. (which, again, for convenience we refer to
collectively and in the singular as “Janssen”). Janssen does not
sell Remicade directly to Walgreen. Instead, Walgreen
procures Remicade from two wholesale distributors:
AmerisourceBergen and Cardinal Health (once more,
collectively and in the singular “Wholesaler”). Wholesaler
acquires Remicade pursuant to a Distribution Agreement with
JOM Pharmaceutical Services, Inc. (“JOM”), a Janssen
affiliate. 1 Only Wholesaler and JOM are identified as parties
1
Although JOM entered into a separate Distribution
Agreement with each of AmerisourceBergen and Cardinal
Health, those agreements are identical in all material respects.
Consequently, and for the sake of simplicity, we refer only to
a single Distribution Agreement.
4
to the Distribution Agreement. It is undisputed that New
Jersey law governs the Distribution Agreement.
This appeal pertains to the scope of the anti-assignment
language in Section 4.4 (the “Anti-Assignment Provision”) of
the Distribution Agreement. In relevant part, the Anti-
Assignment Provision states that “neither party may assign,
directly or indirectly, this agreement or any of its rights or
obligations under this agreement … without the prior written
consent of the other party…. Any purported assignment in
violation of this section will be void.” (JA at 102 (emphasis
added).)
In January 2018, Wholesaler assigned to Walgreen “all
of its rights, title and interest in and to” its claims against
Janssen “under the antitrust laws of the United States or of any
State arising out of or relating to [Wholesaler]’s purchase of
Remicade[.]” 2 (JA at 217.) Less than six months later,
2
Specifically, AmerisourceBergen assigned its rights to
Walgreen Co. and Cardinal Health assigned its rights to Kroger
Co. Because the assignments are worded slightly differently
but are identical in all material respects, for the sake of
simplicity, we refer only to a single assignment.
The parties dedicated a significant portion of their
briefing to disputing the question of whether federal common
law or New Jersey law governs the “validity” of Wholesaler’s
assignment to Walgreen. (See, e.g., Opening Br. at 13-26;
Answering Br. at 9-14, 17-22). However, that dispute is
contingent on the assignment at issue falling within the scope
of the Anti-Assignment Provision. As discussed infra, we hold
that the assignment does not convey “rights under” the
Distribution Agreement, and, thus, is not subject to the Anti-
5
Walgreen exercised the rights Wholesaler had assigned to it
and filed suit against Janssen, asserting various federal antitrust
claims relating to Remicade. At bottom, Walgreen alleges that
Janssen used its size and bargaining power in the broader
pharmaceutical market to enter into exclusive contracts and
anticompetitive bundling agreements with health insurers that
suppressed generic competition to Remicade, which in turn
allowed Janssen to sell Remicade at supracompetitive prices.
Janssen moved to dismiss Walgreen’s complaint on the
ground that the Anti-Assignment Provision invalidated
Wholesaler’s purported assignment of its antitrust claims to
Walgreen. It is undisputed that, if the Anti-Assignment
Provision prevents the assignment, then, under the Supreme
Court’s seminal decision in Illinois Brick Co. v. Illinois, 431
U.S. 720 (1977), Walgreen, an “indirect” Remicade purchaser,
would lack antitrust standing to assert claims against Janssen
relating to Remicade. 3 To take account of the potentially
Assignment Provision. Accordingly, we do not reach the
parties’ subsidiary choice-of-law arguments pertaining to the
assignment’s “validity.”
3
In Illinois Brick, the Supreme Court created a “direct
purchaser” rule for antitrust claims, “providing that only
entities that purchase goods directly from alleged antitrust
violators have statutory standing to bring a lawsuit for
damages[.]” Wallach v. Eaton Corp., 837 F.3d 356, 365 (3d
Cir. 2016). “The rule of Illinois Brick was founded on the
difficulty of analyzing pricing decisions, the risk of multiple
liability for defendants, and the weakening of private antitrust
enforcement that might result from splitting damages for
overcharges among direct and indirect purchasers.”
6
dispositive Distribution Agreement, the District Court
converted Janssen’s motion to dismiss into a motion for
summary judgment.
After full briefing, on March 25, 2019, the District
Court granted the motion for summary judgment and entered
judgment in Janssen’s favor on all counts. In reaching its
decision, the Court concluded that Janssen was a party to the
Distribution Agreement with standing to enforce its terms, and
that, under New Jersey law, the Anti-Assignment Provision
precluded Wholesaler from assigning its federal antitrust
claims against Janssen to Walgreen, thus depriving Walgreen
of antitrust standing. This timely appeal followed.
II. DISCUSSION 4
Walgreen presses a number of arguments in opposition
to the District Court’s dismissal of its claims, but we need only
Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp.,
995 F.2d 425, 439 (3d Cir. 1993). Because only Wholesaler,
and not Walgreen, purchased Remicade directly from Janssen,
the alleged antitrust violator, Walgreen is an “indirect
purchaser” under Illinois Brick.
4
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1337. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291. “It is well established that we employ a
plenary standard in reviewing orders entered on motions for
summary judgment, applying the same standard as the district
court.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014).
7
address one: whether Wholesaler’s assignment to Walgreen of
its antitrust claims against Janssen was barred by the Anti-
Assignment Provision. 5 Because the answer to that question is
no, we will reverse and remand for further proceedings.
The facts of this case are in all material respects the
same as those of Hartig Drug Company Inc. v. Senju
Pharmaceutical Company Ltd., 836 F.3d 261 (3d Cir. 2016).
In Hartig, an indirect purchaser of medicated eyedrops asserted
antitrust claims against the eyedrops’ manufacturer pursuant to
an assignment of antitrust claims from a “direct purchaser”
distributor. Id. at 264. The district court granted the defendant
manufacturer’s motion to dismiss the indirect-purchaser
plaintiff’s claims on the ground that “an anti-assignment clause
in a distribution agreement between [the manufacturer] and
[the distributor] barred any assignment of antitrust claims from
[the distributor] to [the indirect purchaser], leaving [the
indirect purchaser] without standing to sue and divesting the
Court of subject matter jurisdiction.” Id. We vacated and
remanded, holding that the district court erred both in
concluding that the anti-assignment clause implicated that
court’s subject matter jurisdiction and in considering the terms
of the distribution agreement, which was neither integral to nor
attached to the indirect-purchaser plaintiff’s complaint. Id. at
269, 273-74.
5
Walgreen disputes whether Janssen, as a matter of law,
actually is a party to the Distribution Agreement with
concomitant rights to enforce the Anti-Assignment Provision.
Because we conclude that the Anti-Assignment Provision does
not reach Wholesaler’s assignment of its antitrust claims to
Walgreen, we need not, and do not resolve Janssen’s disputed
party status.
8
Given that the district court might have occasion to
again interpret the distribution agreement on remand,
considerations of judicial economy prompted us to note our
“doubt about the Court’s interpretation of the [distribution
agreement] as barring the assignment of antitrust causes of
action[.]” Id. at 274. In that regard, we observed, albeit in
dictum, that “[b]ecause [the wholesaler]’s antitrust causes of
action arise by statute, there is a serious argument that they do
not fall within the [distribution agreement]’s plain language
limiting assignment of ‘rights and obligations hereunder’—
that is, they arise by operation of an extrinsic legal regime
rather than by contract.” Id. at 275 n.17.
That observation in Hartig provides the appropriate rule
of decision here: the statutory federal antitrust claims asserted
in Walgreen’s complaint are extrinsic to, and not “rights
under,” the Distribution Agreement. Applied to the Anti-
Assignment Provision, the scope of which is limited to
Wholesaler’s “rights under” the Distribution Agreement, it
becomes evident that the provision has no bearing on
Wholesaler’s antitrust claims, which rely only on statutory
rights and do not implicate any substantive right under the
Distribution Agreement. Accordingly, the Anti-Assignment
Provision does not invalidate Wholesaler’s assignment of
antitrust claims to Walgreen or otherwise present a bar to
Walgreen’s standing to assert those antitrust claims against
Janssen. Our holding here is consistent with the substantial
weight of decisions on this issue, which do not bind us but
nevertheless are persuasive. 6
6
See, e.g., In re Opana ER Antritrust Litig., No. 14-C-
10150, 2016 WL 738596, at *5 (N.D. Ill. Feb. 25, 2016) (“Even
9
Janssen raises three arguments in opposition to the
holding we adopt today: (i) New Jersey law, which governs the
Distribution Agreement, recognizes statutory causes of action
as “rights under” an agreement; (ii) the term “rights under” an
agreement “encompasses any rights engendered by virtue of
the relationship the agreement established” and thus includes
under a broad reading of the non-assignment provisions, the
prohibition on assigning ‘this Agreement’ or ‘delegat[ing]’ any
‘duties or responsibilities’ would only serve to limit the parties’
ability to assign their rights and obligations under the
[agreement]. The Court does not read this language to include
statutorily-based antitrust claims, because such claims are not
based on any substantive right or duty found in the
[agreement]s themselves.”) (alteration in original); United
Food & Commercial Workers Local 1776 & Participating
Employers Health & Welfare Fund v. Teikoku Pharma USA,
Inc., No. 14-MD-02521-WHO, 2015 WL 4397396, at *6 (N.D.
Cal. July 17, 2015) (“The [distribution agreements]’ non-
assignment clauses are limited to the assignment of duties and
obligations under the [distribution agreements] themselves and
do not include causes of action sounding in antitrust arising
from those agreements.”); In re TFT-LCD (Flat Panel)
Antitrust Litig., No. C 11-00711 SI, 2011 WL 3475408, at *4
(N.D. Cal. Aug. 9, 2011), reconsidered in-part on other
grounds, No. C 11-00711 SI, 2011 WL 5573930 (N.D. Cal.
Nov. 16, 2011) (“Here, the anti-assignment clauses are limited
to each party’s rights and obligations under the contracts….
[L]itigation over antitrust claims cannot be seen as a ‘right or
duty’ contemplated by the contract. The State has not brought
the assigned claims based on any substantive right or duty
found in the contract itself.”).
10
Walgreen’s antitrust claims, which ultimately flow from the
Distribution Agreement; and (iii) the rationale of Hartig has
been “eclipsed” by our subsequent decisions in Wallach v.
Eaton Corp., 837 F.3d 356 (3d Cir. 2016), and American
Orthopedic & Sports Medicine v. Independence Blue Cross
Blue Shield, 890 F.3d 445 (3d Cir. 2018). (Answering Br. at
22-30 (internal quotation marks omitted).) Each of those
arguments falls short.
Regarding the application of New Jersey law to the
Anti-Assignment Provision, Janssen correctly notes that
neither Hartig nor any of the antitrust cases interpreting the
scope of anti-assignment clauses that Walgreen cites (and
which we find persuasive) applied New Jersey law. But that
fact is not dispositive. Janssen cites no case, let alone a case
applying New Jersey law, in which any court has found that
federal antitrust claims fall within the scope of an anti-
assignment clause prohibiting the assignment of “rights under”
an agreement. Nor does Janssen identify any particular feature
of New Jersey law that suggests it would diverge from the
weight of authority on this issue. 7 To the contrary, the New
Jersey cases that Janssen does cite, in which anti-assignment
7
Courts that have considered the scope of anti-
assignment clauses in the antitrust context often have looked
to Section 322 of the Restatement (Second) of Contracts as part
of their analysis. In re Opana ER Antritrust Litig., 2016 WL
738596, at *5; In re TFT-LCD (Flat Panel) Antitrust Litig.,
2011 WL 4345316, at *3. New Jersey courts similarly look to
the Restatement when analyzing anti-assignment clauses.
Owen v. CNA Ins./Cont’l Cas. Co., 771 A.2d 1208, 1218 (N.J.
2001).
11
clauses were held to foreclose statutory causes of action, are
readily distinguishable. In each of those cases, unlike the
antitrust claims at issue here, the statutory claims that were
precluded by an anti-assignment provision all flowed from an
underlying breach of one or more provisions of the contract
containing the anti-assignment provision. See Somerset
Orthopedic Assocs., P.A. v. Horizon Blue Cross & Blue Shield
of New Jersey, 785 A.2d 457, 459–60 (N.J. App. Div. 2001)
(out-of-network physician’s claims for payment pursuant to
terms of benefit plan foreclosed by plan’s anti-assignment
language); Chee Li v. BMW of N. Am., LLC, No. L-3014-13,
2017 WL 2625965, at *3 (N.J. Super. Ct. App. Div. June 19,
2017) (claim under federal warranty statute foreclosed by anti-
assignment provision where cause of action stemmed from car
dealer’s purported refusal to honor warranty and the anti-
assignment provision specifically included “the right to pursue
the remedy under the [ ] warranty.” (alteration in original)). 8
8
Janssen also cites Prospect Medical, P.C. v. Horizon
Blue Cross Blue Shield of New Jersey, Inc., No. L-8681-09,
2011 WL 3629180, at *5 (N.J. Super. Ct. App. Div. Aug. 19,
2011), asserting that in that case a “clause prohibiting
insurance policyholders from assigning benefits under their
insurance plan to healthcare providers barred providers’ claims
against insurer under state Consumer Fraud Act and RICO
statute.” (Answering Br. at 23.) However, that misstates
Prospect Medical’s holding. The court in Prospect Medical
held that no claims were properly dismissed pursuant to the
anti-assignment clause because there was an outstanding issue
of fact as to whether the insurer had waived its right to invoke
that clause. Prospect Medical, 2011 WL 3629180, at *5. The
court dismissed the Consumer Fraud Act and RICO claims
12
At most, those cases suggest that, when a dispute ultimately
centers on the vindication of contractual rights, a valid anti-
assignment clause can prevent an assignee from enforcing
those contractual rights through non-contractual means,
including related statutory causes of action. However, none of
those cases, directly or indirectly, stands for the proposition
that, under New Jersey law, a statutory claim that is separate
from any contractual right constitutes a “right” under that
agreement.
In an unpersuasive attempt to overcome that reality,
Janssen next argues that Wholesaler’s antitrust claims are
“rights under” the Distribution Agreement because that term
“encompasses any rights ‘engendered by virtue of the
relationship the agreement established,’” and Wholesaler could
not have purchased Remicade and accrued standing to assert
antitrust claims but for the Distribution Agreement.
(Answering Br. at 24-26 (quoting Am. Fin. Capital Corp. v.
Princeton Elecs. Prods., No. CIV. A. 95-4568, 1996 WL
131145, at *9 (E.D. Pa. Mar. 20, 1996)).) But that argument is
derived from plainly inapposite case law, namely cases from
the arbitration context that address the question of when claims
“arise out of” or “arise under” an agreement. See Scherk v.
Alberto-Culver Co., 417 U.S. 506, 508 (1974) (addressing
arbitration clause covering “any controversy or claim (that)
shall arise out of this agreement or the breach thereof”); Am.
Fin. Capital Corp., 1996 WL 131145, at *7, *9 (holding scope
of arbitration clause mandating arbitration of “any disputes
arising under” agreement covered claims “engendered by
virtue of the relationship the agreement established or
based on pleading failures that were entirely independent of the
anti-assignment clause. Id.
13
otherwise addressable by reference to the duties and
obligations set out in the agreement.”). 9 The terms “arise out
of” and “arise under” are facially broader, more encompassing,
and ultimately distinct from, the concept of “rights under” an
agreement.
Moreover, Janssen’s argument substantially overstates
the degree to which Walgreen’s antitrust claims are derived
from the Distribution Agreement. Through its antitrust claims,
Walgreen is not attempting to invoke any substantive right
specified in the Distribution Agreement. Although the
9
Janssen’s reliance on equally distinguishable case law
from the forum selection and choice-of-law contexts, which
similarly fail to address the question of whether a statutory
claim is a “right under” an agreement, is also misplaced. See
Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 624
(4th Cir. 1999) (common law fraud claim within scope of
choice-of-law provision covering “[t]his Agreement and the
rights and obligations of the parties hereunder … including all
matters of construction, validity and performance.” (alteration
in original)); Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d
108, 121 (D.D.C. 2008) (analyzing scope of forum selection
clause encompassing any claim which “arises out of” the
agreement); Rini Wine Co. v. Guild Wineries & Distilleries,
604 F. Supp. 1055, 1057–59 (N.D. Ohio 1985) (forum
selection clause applicable to “any action entered under the
[distributor] agreement” encompassed antitrust claims where
“[t]he incident from which this dispute arises is indeed the
termination of the distributor agreement,” and “Plaintiff has
chosen to explain defendant’s conduct as an ‘unlawful
combination and conspiracy’ in violation of federal and state
antitrust laws in its complaint.”).
14
Distribution Agreement contains a provision requiring the
parties to comply with applicable law, even if Walgreen was
asserting a claim under that provision, which it is not, the
“existence of a boilerplate duty to abide by applicable law does
not manifest the requisite intent to expand the scope of the non-
assignment provision[] beyond [its] plain language[,]” In re
Opana, 2016 WL 738596, at *5, particularly where, as here,
the Distribution Agreement “do[es] not specifically mention
antitrust law or the assignment of legal claims[,]” United Food,
2015 WL 4397396, at *6. Similarly, the fact that the
Distribution Agreement set the price that Wholesaler paid for
Remicade does not bring Walgreen’s antitrust claims within
the Anti-Assignment Provision’s scope. The mere existence of
a fact that is relevant to both the antitrust claims at issue and
the Distribution Agreement does not transform those claims
into “rights under” the Distribution Agreement. Cf. CardioNet,
Inc. v. Cigna Health Corp., 751 F.3d 165, 173, 175 (3d Cir.
2014) (holding “factual connections between the Agreement
and the factual underpinnings of the Complaint do not render
these claims arbitrable,” where arbitration clause broadly
required arbitration of disputes “regarding the performance or
interpretation of the Agreement”).
Finally, we disagree with Janssen’s assertion that the
“persuasive force” of our reasoning in Hartig has been
“eclipsed” by our decisions in Wallach and American
Orthopedic. (Answering Br. at 27-29.) Wallach did not
involve a contractual anti-assignment provision. Instead, we
addressed the entirely distinct question of whether the
assignment of antitrust claims must be supported by
consideration. Wallach, 837 F.3d at 361. In that context, we
maintained our prior recognition that both contractual rights
and non-contractual causes of action are assignable, and that
15
the argument that non-contractual causes of action cannot be
assigned rests “on an antiquated distinction between
contractual rights and choses in action that no longer has a
significant effect on the common law.” Id. at 369. Nowhere
did we hold, or even suggest, that statutory antitrust claims are
rights under a contract. 10
Janssen’s reliance on American Orthopedic also lacks
merit. Although American Orthopedic did involve an anti-
assignment clause in an ERISA benefit plan, only the clause’s
validity, not its scope, was at issue. Am. Orthopedic, 890 F.3d
at 449-53. To the extent we opined indirectly on the clause’s
scope by affirming the district court’s holding that the clause
foreclosed an assignee plaintiff’s ERISA claims, Janssen’s
attempt to extrapolate that ERISA-centric conclusion beyond
its proper context to the antitrust facts of this case is not
persuasive. American Orthopedic, like the other case law
Janssen cites, is inapposite because the statutory ERISA claims
foreclosed by the anti-assignment clause flowed directly from
an underlying breach of a contractual right, 11 which right could
10
We likely would not have had occasion to do so even
if the scope of the assignment in that case was at issue. The
assignment in Wallach conveyed all antitrust causes of action
“arising out of or relating to” purchases of certain vehicles.
Wallach, 837 F.3d at 371 n.17. That language is very different
from, and appreciably broader than, the disputed portion of the
Anti-Assignment Provision here.
11
Indeed, we have recognized that “[c]laims for benefits
based on the terms of an ERISA plan are contractual in nature
and are governed by federal common law contract principles.”
16
not be assigned. No such concern exists here, as Walgreen is
seeking to enforce a purely statutory right, not a substantive
right originating from the Distribution Agreement. 12
Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 75 (3d
Cir. 2011).
12
Janssen also overstates both the holding in City of
Hope National Medical Center v. HealthPlus, Inc., 156 F.3d
223 (1st Cir. 1998), and the extent to which we adopted the
reasoning of that case in American Orthopedic. Contrary to
Janssen’s assertion, the First Circuit did not “expressly reject[]
the argument that an anti-assignment clause prohibiting
assignments of rights or benefits does not extend to statutory
causes of action arising [out of] the denial benefits.”
(Answering Br. at 28 (second alteration in original and internal
quotation marks omitted).) Rather, the First Circuit simply
held that the Eighth Circuit’s analysis of an anti-assignment
clause that prohibited the assignment of “rights or benefits
under” an ERISA plan and related trust was inapplicable to the
much broader anti-assignment clause at issue in the matter
before it (and much broader than the Anti-Assignment
Provision here), which provided that “[a]ll entitlements of a
member to receive covered rights are personal and may not be
assigned.” City of Hope, 156 F.3d at 229 (citing Lutheran
Med. Ctr. v. Contractors, Laborers, Teamsters, & Engineers
Health & Welfare Plan, 25 F.3d 616, 619 (8th Cir.1994)).
Moreover, while it is accurate that we cited City of Hope in
American Orthopedic, we did so only as support for the
proposition that anti-assignment clauses in ERISA plans are
permissible. Am. Orthopedic, 890 F.3d at 453.
17
In short, we observed in Hartig that there was a serious
argument that statutory antitrust claims were not “rights under”
an agreement. We now come down clearly on this question:
statutory antitrust claims are not “rights under” a contract, such
as the Distribution Agreement. Janssen’s arguments
attempting to avoid or undermine that conclusion are
unconvincing.
III. CONCLUSION
For the foregoing reasons, we will reverse the decision
of the District Court and remand for further proceedings.
18