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AMERISOURCEBERGEN CORP. v. DIALYSIST WEST, INC.

No. 04-15595.

465 F.3d 946 (2006)

AMERISOURCEBERGEN CORPORATION, a New Jersey corporation, dba Bergen Brunswig Corporation, aka BBC; Amerisourcebergen Drug Corporation; Medical Initiatives, Inc., aka Oncology Supply; ASD Specialty Healthcare, Inc., Plaintiffs-Appellants, v. DIALYSIST WEST, INC., an Arizona corporation, Defendant-Appellee, v. Amerx Inc., a Florida corporation; CSG Distributors, a Tennessee company; Premier Medical Distributors, Inc., Third-party-Defendants.

United States Court of Appeals, Ninth Circuit.

Filed March 22, 2006.

Amended April 24, 2006.

Second Amendment October 6, 2006.

Attorney(s) appearing for the Case

Morton R. Branzburg and Andrew O. Schiff, Klehr, Harrison, Harvey, Branzburg, & Ellers LLP, Philadelphia, PA, for the plaintiffs-appellants.

Dan L. Bagatell and Joel W. Nomkin, Perkins Coie Brown & Bain P.A., Phoenix, AZ, for the defendant-appellee.

Before JEROME FARRIS, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

AMENDED OPINION

FARRIS, Circuit Judge.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

On August 2, 2002, AmerisourceBergen Corporation1 brought suit against Dialysist West, Inc. alleging that Dialysist West breached a sales agreement concerning the sale of the drug Epogen S40. Following its determination that 50% to 100% of the Epogen it purchased from Dialysist West was counterfeit, AmerisourceBergen withheld...

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