Full opinion text
MEMORANDUM AND ORDER GLASSER, District Judge. INTRODUCTION Pending before the Court are four motions submitted by the designated defendants for summary judgment pursuant to Fed.R.Civ.P. 56 dismissing the representative plaintiffs’ claims under Section 2(a) of the Robinson-Patman Act, 15 U.S.C. § 13(a) (the “Act”). The designated defendants (hereinafter “designated defendants” or “defendants”) seek summary judgment or partial summary judgment on four bases. First, under the Act, plaintiff must allege and prove, among other things, a difference in price charged to two purchasers in contemporaneous sales in interstate commerce by a single defendant seller of commodities of like grade and quality. 15 U.S.C. § 13(a). There is a narrow exception to this principle, the “indirect purchaser” doctrine, whereby sales from a wholesaler whose pricing is controlled by a manufacturer permits a disfavored purchaser to treat the entities as one and the same. Designated defendants move the court to find that representative plaintiffs cannot show that they purchased commodities — brand name prescription drugs (“BNPDs”) — from that “single seller,” and furthermore that the “indirect purchaser” doctrine does not apply (hereinafter the “indirect purchaser motion”). In opposition, the representative plaintiffs argue that, at minimum, the deposition testimony raises a genuine issue of material fact whether the designated defendants set and controlled the prices that the wholesalers charged plaintiffs for the BNPDs they purchased. The representative plaintiffs assert that the only part of the sales price of BNPDs that the wholesalers controlled was the service fee, or markup, which represented the wholesalers’ profit. This markup was paid both by the representative plaintiffs, and the favored purchasers, when they bought BNPDs from wholesalers. Second, a Robinson-Patman violation requires both that favored and disfavored purchasers be in competition with each other and also that they resell products for which they received a favored price. Defendants move for summary judgment with respect to reduced price sales of BNPDs to all for-profit staff-model HMOs (“SMHMOs”), arguing that, as “insurers,” they are not competitors of plaintiffs, nor do they resell BNPDs (hereinafter the “SM-HMO motion”). In opposition, plaintiffs contend that these defendants do compete for customers based upon their BNPD-plan pricing, and also assert that they fill prescriptions for nonmembers of their plans. Third, for liability to attach under the Act, there must be at least two purchasers of a commodity, at different prices, where the two purchasers are in competition with each other. Defendants move for summary judgment with respect to all rebate agreements with legal entities that did not also take title to, resell, or dispense brand name prescription drugs (hereinafter the “non-purchaser motion”). In opposition, plaintiffs dispute the factual description of these entities, and contend that even those entities which did not take title to BNPDs did, nevertheless, exercise “dominion and control” over their distribution and therefore should be held liable. Fourth and finally, as an element of a Robinson-Patman Act claim, plaintiffs must show that they are entitled to damages stemming from antitrust injury defined under the Clayton Act, 15 U.S.C. § 15. Defendants assert that plaintiffs have failed to make this showing. Plaintiffs oppose this assertion, presenting what they claim is evidence of antitrust injury (hereinafter “damages motion”). Having carefully reviewed the papers submitted by the parties, and as set forth below, the Court denies the designated defendants’ motion for summary judgment on the representative plaintiffs’ claims with respect to the “indirect purchaser” doctrine, denies the motion for summary judgment with respect to for-profit staff-model HMOs, grants in part and denies in part defendants’ motion for partial summary judgment with respect to legal entities that receive rebates but do not “purchase” or take title to BNPDs, and grants the defendants’ motion with respect to damages. PRIOR HISTORY The background of this case has been recounted in numerous prior opinions by this Court, by the United States District Court for the Northern District of Illinois, and by the Court of Appeals for the Seventh Circuit. See Drug Mart Pharmacy Corp. v. American Home Products Corp., 378 F.Supp.2d 134 (E.D.N.Y.2005); 296 F.Supp.2d 423 (E.D.N.Y.2003); 288 F.Supp.2d 325 (E.D.N.Y.2003); 2002 WL 31528625 (E.D.N.Y. Aug. 21, 2002). See also 288 F.3d 1028 (7th Cir.2002); 186 F.3d 781 (7th Cir.1999); 123 F.3d 599 (7th Cir.1997); 1999 WL 33889 (N.D.Ill.Jan. 19, 1999); 1996 WL 167350 (N.D.Ill. April 4, 1996); 867 F.Supp. 1338 (N.D.Ill.1994); 1994 WL 240537 (N.D.Ill. May 27, 1994). Familiarity with prior opinions is therefore assumed and only those facts necessary for a resolution of these motions are restated here. Designated plaintiffs are seventeen retail pharmacies from fourteen different states asserting claims against defendants, inter alia, under section 2(a) of the Act, 15 U.S.C. § 13(a), for giving discounts, rebates or other “charge-back” benefits (collectively “discounts”) on BNPDs to health maintenance organizations (“HMOs”), managed care organizations (“MCOs”), pharmacy benefit managers (“PBMs”), and third-party payors (“TPPs”) and mail order pharmacies (collectively, “favored purchasers”), while denying discounts to them. See Defendants’ Local Rule 56.1 Statement (“Defs. Rule 56.1 Statement”) ¶ l. The particular facts and circumstances of these transactions are detailed with the relevant motions herein. INDIRECT PURCHASER MOTION 1. BACKGROUND Defendants Ciba-Geigy Corporation (“Ciba”) and G.D. Searle & Co. (“Searle”) manufacture BNPDs. Id. ¶ 2. During the relevant time period, defendants did not sell BNPDs directly to independent pharmacists, including plaintiffs. Id. ¶¶ 6, 7. Plaintiffs, as independent (non-chain) pharmacists, purchased defendants’ BNPDs from wholesalers. Id. ¶¶ 7, 12. Plaintiffs wanted to purchase BNPDs directly from defendants because they believed it would be cheaper than purchasing BNPDs from wholesalers. See, e.g., Declaration of Evan Glassman executed on February 28, 2005 (“Glassman Deck”) Aff. X 14 ¶¶ 4-6. According to defendants, the “pricing and terms of sale by which” plaintiffs “purchased Ciba and Searle products from wholesalers were the result of arms-length transactions between” plaintiffs and “their respective wholesalers.” Defs. Rule 56.1 Statement ¶ 15. Plaintiffs counter that the “prices [they] paid for BNPDs were not determined by wholesalers, but instead were set and determined by BNPD manufacturers,” including defendants. Plaintiffs’ Rule 56.1 Counter Statement of Disputed Material Facts (“Pis. Rule 56.1 Ctr. Stmt.”) ¶ 15. When read in the light most favorable to them, the deposition and affidavit testimony of several plaintiffs and wholesalers reveal that the independent pharmacists always paid the “list price” for defendants’ BNPDs which they purchased from the wholesalers, and it “was an accepted fact in the industry that drug manufacturers set the prices” that the wholesalers were required to charge plaintiffs upon pain of losing their relationships with the manufacturers. See Glassman Decl. Aff. X 20 ¶ 8; see also id. Aff. X 9 ¶ 8 (“It was an established fact in the industry that wholesalers could not discount below list price to retail pharmacists ... and could not do so because they did not have the authority of the drug manufacturers, no matter what volumes we were willing to buy or lengths we were willing to go in order to secure discounts.”). What could be negotiated between the plaintiffs and wholesalers was a markup (the “markup”) that plaintiffs paid the wholesaler and constituted the profit earned by the wholesaler for acting as an intermediary-seller. See Pis. Rule 56.1 Ctr Stmt. ¶ 15 (citing e.g., Glassman Decl. Dep. X 18 at 97-99). When favored purchasers bought BNPDs from wholesalers, they also paid the markup which was subject to negotiation on a case-by-case basis, but it was “quite small” in comparison to the overall price paid for the BNPDs. See Glassman Decl. Dep. X 32 at 57-59; GX 2 at SE 000012638. The favored purchasers were not required to pay the list prices for the BNPDs they purchased from the wholesalers as a result of, among other things, a “chargeback system” entered into between defendants and the wholesalers. That “chargeback system” was explained by Searle in an internal memorandum as follows: * Searle agrees on a contract pricing with the HMO and the HMO designates one or more of Searle’s authorized wholesalers as the wholesaler(s) from which the HMO will buy its products. * Searle sends the HMO notice of the contract price, but cautions the HMO that the contract price is the price which Searle will charge the HMO’s designated wholesaler for products which the wholesaler re-sells to that HMO. The wholesaler is free to mark-up that price when he re-sells the products to the HMO. Generally, the amount of the wholesale mark-up is quite small. * Searle sends the HMO’s designated wholesaler notice of the contract price. * The wholesaler notifies Searle of the quantity of each product sold to the HMO. The difference between the contract price agreed upon between Searle and the HMO and the wholesaler’s normal purchase price from Searle (i.e., the wholesale acquisition cost) multiplied by the quantity purchased is the amount of the chargeback. The following is a simple calculation of a chargeback: * Wholesale Acquisition Cost (the price paid by the wholesaler to Searle): $10.00 * Contract price negotiated between Searle and HMO: $7.00 * Amount of Chargeback: $3.00. * As you can see, without the charge-back, the wholesaler would lose $3.00 if it sold to the HMO at the contract price of $7.00. The actual price paid by the HMO will probably be slightly more than $7.00, since the wholesaler will add a small mark-up for its profit. Glassman Decl. GX 2 at SE 000012638. Representative testimony of the wholesalers concerning the “control” they exercised regarding the prices they charged independent, retail pharmacists for defendants’ BNPDs was as follows: Q: We talked also earlier a little bit about sales calls and the procedure; do you recall that? A: Yes. Q: All right. When a — dealing first with an independent retailer. A: Okay. Q: Okay? Are one of the terms of the negotiations the cost factor, that is, the cost of the particular drugs that is to be paid by the retailer? A: No. Q: No. That’s never discussed in the negotiations? A: No. Q: Why isn’t that? A: Because it’s not very relevant. We do not — the wholesaler does not establish the price of the drug. Q: Okay. The manufacturer does that? A: The manufacturer does. Q: So in other words, as with all classes of trade, Bergen sells it on what we might call a cost-plus basis? A: That’s correct. Q: Okay. And that cost definition, is that uniform for all customers? A: Yes. Q: So Bergen sells it what we might call its wholesale acquisition costs plus its markup for its wholesale services, correct? A: That’s correct. Glassman Decl. Dep. X15 at 110-11. The parties disagree whether the evidence proffered by plaintiffs, including that discussed above, creates a genuine issue of material fact as to plaintiffs’ section 2(a) Robinson-Patman Act claims. Defendants argue that it is undisputed that the wholesalers charged prices to purchasers of BNPDs which they set without any input from Ciba or Searle, and that the prices charged by wholesalers included both the acquisition cost of BNPDs plus the wholesalers’ markup. It is the wholesalers’ ability to control the markup which defendants view as outcome determinative to their motion. Plaintiffs counter by asserting that the testimony raises a genuine issue of fact whether defendants controlled the prices that the wholesalers charged them for BNPDs because it is the actual prices of BNPDs, and not the markup, which created the pricing disparity which they challenge in this case. According to plaintiffs, the undisputed fact that the wholesalers control the markup is a red-herring. The real question is whether defendants controlled the different prices paid for BNPDs by plaintiffs, on the one hand, and, the favored purchasers, on the other hand, who received substantial discounts through the chargeback system. II. DISCUSSION A. Standard Governing Defendants’ Summary Judgment Motion Federal Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” One of the principal purposes of summary judgment is to “isolate and dispose of factually unsupported claims or defenses ...” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As an initial matter, “the moving party bears the burden of establishing the absence of any genuine issue.” Grabois v. Jones, 89 F.3d 97, 99-100 (2d Cir.1996) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (holding that movant for summary judgment must bear burden of production). See also Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001); Higgins v. Baker, 309 F.Supp. 635 (S.D.N.Y.1969). Without this showing a district court cannot grant summary judgment in favor of a movant, even if the adverse party has not responded. See Anchorage Assocs. v. Virgin Islands Board of Tax Review, 922 F.2d 168, 175 (3d Cir.1990); Neal v. Elec. Arts, Inc., 374 F.Supp.2d 574, 578 (W.D.Mich.2005); 10B Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Procedure and Practice, 395 (1998) (citing “Notes of Advisory Committee on Rules,” 28 U.S.C.A. Rule 56 (1960), as amended (Supp.) (without at least pointing to the basis for granting summary judgment, the Court cannot grant the motion despite the lack of opposing evidentia-ry matter)). While this showing need not require the movant to introduce evidence negating the opponent’s claim, it must “point out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the prima facie case for the absence of a genuine issue of material fact has been presented, the nonmoving party must produce evidence to counter all of the movant’s showings. A genuine issue as to a material fact exists when there is sufficient evidence favoring the nonmoving party such that a jury could return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Therefore, the nonmoving party “may not rest upon the mere allegations or denials” of its pleadings; rather, its response must go beyond the pleadings to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548. When evaluating a motion for summary judgment, “[t]he courts must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). If there remains no genuine issue of material fact then the moving party is entitled to judgment as a matter of law. B. The Indirect Purchaser Claim Under Section 2(a) of the Act Section 2(a) of the Act is designed to protect purchasers from a single seller who establishes a discriminatory pricing policy. A plaintiff must allege and prove that the defendant made two sales of the same commodity to at least two different purchasers at different prices. See Fed. Trade Comm’n v. Morton Salt Co., 334 U.S. 37, 45, 68 S.Ct. 822, 92 L.Ed. 1196 (1948); see also Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 584 (2d Cir.1987) (price discrimination means nothing more than a price differential). In this case, plaintiffs concede that they purchased BNPDs not from defendants, but rather from wholesalers, who have a corporate structure independent from defendants. Plaintiffs argue, nonetheless, that they make out a claim under the Act based on the “indirect purchaser” doctrine, which states that a manufacturer, by utilizing a wholesaler which it controls, cannot evade the price discrimination provisions of the Act. See, e.g., Am. News Co. v. Fed. Trade Comm’n, 300 F.2d 104, 109 (2d Cir.1962), cert. denied, 371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962) (“under § 2(a) ... there need not be privity of contract between seller and an ultimate buyer to establish the buyer as a ... ‘purchaser.’ If the manufacturer deals with a retailer through the intermediary of wholesalers, dealers, or jobbers, the retailer may nevertheless be a ... ‘purchaser’ of the manufacturer if the latter deals directly with the retailers and controls the terms upon which he buys”). Stated differently, one who purchases a manufacturer’s goods through a wholesaler may be deemed to have purchased directly from the manufacturer if the manufacturer deals directly with the wholesaler and controls the terms under which the purchaser buys. See Baim & Blank v. Philco Corp., 148 F.Supp. 541, 543 (E.D.N.Y.1957) (citation omitted). The critical element in determining whether the indirect purchaser doctrine applies is the degree of control the manufacturer exercises over its intermediate buyer, in this ease, the wholesaler. See FLM Collision Parts, Inc. v. Ford Motor Co., 543 F.2d 1019, 1028 (2d Cir.1976), cert. denied, 429 U.S. 1097, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977); see also Barnosky Oils, Inc. v. Union Oil Co. of California, 665 F.2d 74, 84 (6th Cir.1981); Purolator Prods., Inc. v. Fed. Trade Comm’n, 352 F.2d 874, 881 (7th Cir.1965), cert. denied, 389 U.S. 1045, 88 S.Ct. 758, 19 L.Ed.2d 837 (1968) (upholding FTC’s finding that manufacturer engaged in price discrimination through its distribution system); see generally Lefrak v. Arabian Am. Oil Co., 487 F.Supp. 808, 818 (E.D.N.Y.1980) (“The facts before the court clearly indicate that [plaintiff] is not entitled to invoke th[e indirect purchaser] exception. The distributors acted independent of their suppliers, and made contract and pricing decisions according to their individual concerns. This lack of ownership or control is amply supported by the exhibits presented to the court.”). The evidence viewed in the light most favorable to plaintiffs reveals that the defendant manufacturers charged the wholesalers significantly less for BNPDs which they sold to favored purchasers than they did for BNPDs which the wholesalers sold to plaintiffs as a result of the charge-back system. Moreover, defendants exerted economic pressure to ensure that those pricing disparities were passed on to both favored purchasers and plaintiffs. Although the wholesalers were free to negotiate the markup directly with the purchaser, plaintiffs assert that because the markup was such an insignificant component of the total purchase price of the BNPDs (acknowledged by Searle in its own internal memorandum cited above), defendants engaged in price discrimination when they demanded a lower net sales price from the wholesalers for BNPDs sold to the favored purchasers than those sold to plaintiffs. In Susser v. Carvel Corp., 332 F.2d 505 (2d Cir.1964), cert. dismissed, 381 U.S. 125, 85 S.Ct. 1364, 14 L.Ed.2d 284 (1965), the Second Circuit held that an ice cream manufacturer’s practice of recommending a retail price to its franchised dealers was lawful where “the franchise provisions explicitly reserved to the individual dealer the right to set whatever price he desired” and where no attempts to enforce the price structure were shown. Id. at 510. The suggested price sheets were, therefore, provided as a convenience to the dealers and were a “floor,” that is, provided a suggested minimum price level that the dealers could, but did not have to, use in setting price. See id. See also FLM Collision Parts, 543 F.2d at 1028 (affirming FTC’s finding of a violation of the Act but noting that if the court applies the “indirect purchaser” doctrine merely because a manufacturer suggests a price that a dealer or wholesaler could charge a customer, this “would reach the absurd result of extending the [indirect purchaser] doctrine to every resale of goods”); but see Kraft-Phenix Cheese Corp., 25 F.T.C. 537, 546 (1937) (order dismissed complaint on other grounds but explained that retailers buying from wholesalers are considered to be “purchasers” from the manufacturer where the manufacturer promotes sales directly to the retailers and the manufacturer exerts effective control through dissemination of price lists over the prices charged by wholesalers). In contrast to the facts in Susser, here, plaintiffs have come forward with admissible evidence that defendants controlled the price of BNPDs which the wholesalers charged plaintiffs. In short, the evidence viewed in the light most favorable to plaintiffs reveals that defendants required plaintiffs to purchase BNPDs through wholesalers, the wholesalers were not free to set their prices, and defendants coerced them to sell BNPDs to plaintiffs at a higher price than they sold BNPDs to favored purchasers. Because of the chargeback system, this is not a case where defendants sold BNPDs to wholesalers at the same price regardless of the type of customer (independent pharmacist or favored purchaser) who bought BNPDs from the wholesalers. Similarly, defendants’ reliance on FLM Collision Parts is peculiarly inapposite because there the manufacturer “did not attempt through the medium of a suggested price or otherwise to set the prices at which its dealers would sell crash parts to FLM.” 543 F.2d at 1028. The facts presented by plaintiffs reveal that defendants have done what the Second Circuit in FLM Collision Parts intimated they could not do. Defendants did not set a floor below which the wholesalers could not sell BNPDs to either plaintiffs or favored purchasers. Rather, they set up an unequal pricing mechanism which would, at minimum, lead to plaintiffs paying more for BNPDs than the favored purchasers. For the foregoing reasons, defendants’ motion for summary judgment based upon alleged indirect purchases is denied. SM-IIMO MOTION I. INTRODUCTION Pending before the Court is a motion for partial summary judgment submitted by the designated defendants relating to all the representative plaintiffs’ claims under the Robinson-Patman Act, 15 U.S.C. § 13(a) (the “Act”), as to all discounts on rebates to for-profit staff-model health maintenance organizations. Based upon the following analysis, that motion is denied. II. BACKGROUND The current motion examines the validity of §§ 2(a) and 2(d) claims with respect to sales of BNPDs to for-profit HMOs. At issue here is whether or not for-profit staff model health maintenance organizations (hereinafter “SM-HMOs”) are in competition with retail pharmacies for the sale of BNPDs, giving rise to a violation of the Robinson-Patman Act, 15 U.S.C. §§ 13(a) and (d). The organization and manner of operation of HMOs is defined by law. See 42 U.S.C. §§ 300e(a) & (b). The statute states that members of an HMO are to be provided “basic health services for a basic health services payment” which is “(A) ... paid on a periodic basis without regard to the dates health services (within basic health services) are provided; and (B) is fixed without regard to frequency, extent, or kind of health service (within the basic health services) actually furnished.” Id. See also Local Rule 56.1 Reply Statement, (“Pis. 56.1 Rep. Stmt”) ¶ 6. SM-HMOs, like many HMOs, are health care organizations that provide members with an array of health services. See Mincy Aff. ¶ 50. Unlike other types of HMOs, staff-model HMOs offer services provided by salaried employees of the SMHMO itself, as opposed to arrangements with independent providers. See id. ¶ 56; Declaration of Jennifer M. Driscoll in Support of Designated Defendants’ Motion for Partial Summary Judgment, (“Driscoll Deck”) Ex. B-l, Expert Report of Alain C. Enthoven, (“Enthoven Rep”) ¶ 10. Sometimes these services include BNPD-benefit programs. See id. ¶ 11. In return, the SM-HMO collects a fixed-fee for covered services. See Enthoven Rep. ¶¶ 37-40; Mincy Aff. ¶ 50. Often, in addition to paying fixed fees, the consumers which subscribe to these services (“subscribers”) will also make a co-payment for goods or services actually rendered. See Mincy Aff. ¶¶ 64, 67; Enthoven Rep. ¶ 40. The use of a deductible by an HMO is authorized by law. See 42 U.S.C. § 300e(b)(l)(D). Fundamentally, this transaction involves the shifting of risk. Alongside the fixed-fees they receive, SM-HMOs accept the risk that subscribers will consume more health care and/or BNPDs than their payments would otherwise cover. See Entho-ven Rep. ¶ 37. Of course, this is not necessarily a losing proposition for the SM-HMOs, because they may also keep any excess fees that are not used to cover a subscribers’ health care costs. See id. In return, subscribers protect against the risk of high medical care costs in the event they succumb to a covered medical condition. Subscribers reduce variance in health care costs to a fixed-fee, and for accepting this risk, SM-HMOs charge fees that cover the actuary-determined risk and some profit. As a result of this arrangement, SMHMOs are given an incentive to control the cost of health care, including the costs of BNPDs. See Driscoll Deel., Ex. B-l ¶¶ 34, 37; Mincy Aff. ¶ 68. In their briefing papers, the parties offer conflicting descriptions of the operation of several HMOs at issue here. Given the dynamic on-going transformations in the health care industry occurring before, during, and after the relevant time period in this case, it is not surprising that the parties’ descriptions of HMOs vary in some respects. Not all of these differences, however, are material. As best can be discerned, the defendants’ motion is directed at agreements with those SM-HMOs that share a certain set of attributes, enumerated below. Where plaintiffs have asserted factual differences, those differences will be noted. The Court understands that the defendants’ motion is addressed to those SM-HMOs as described above that 1) offer fixed-fee health care services which 2) provide BNPD-ben-efit programs that 3) actually dispense BNPDs to subscribers, and subscribers only. The Court does not apply its conclusions to the variety of other HMO typologies described in the record, including those SM-HMOs that do not operate in-house pharmacies. It also does not consider the relevance of this discussion to IPA-model, group model, or network model HMOs. Given the aforementioned characterization of SM-HMOs, defendants make three independent arguments to justify partial summary judgment. First, they assert that SMHMOs are sufficiently like insurance companies because of their risk-spreading function. As such, they contend that SM-HMOs are “end-user purchasers” under the Kartell line of cases. See Kartell v. Blue Shield of Mass., Inc., 749 F.2d 922 (1st Cir.1984), cert. denied, 471 U.S. 1029, 105 S.Ct. 2040, 85 L.Ed.2d 322 (1985); Defs. Mot. 4. As end-users, they argue, they cannot also be considered competitors of retailers, a necessary element of a Robinson-Patman violation. Second, following the logic of Sano Petroleum Corp. v. American Oil Co., 187 F.Supp. 345 (E.D.N.Y.1960), they contend that SM-HMOs and retail pharmacies are not in competition with each other because the BNPDs purchased by SM-HMOs are merely one input in the overall health care package that SM-HMOs provide their subscribers. Since they compete with other comprehensive health services organizations, they argue, they do not compete with retailers, so the discounts cannot have harmed retail competition. Third, they assert that even if as a matter of law SM-HMOs could be considered competitors of retail pharmacies, plaintiffs have produced no evidence that they compete with SM-HMOs. Plaintiffs generally accept the above characterization of SM-HMOs-one of their proposed experts, David Mincy, avers that he would testify similarly at trial. However, plaintiffs argue in opposition that, as a matter of fact, competition between SM-HMOs and retail pharmacies occurs for subscribers, third-party payor members and cash-paying customers. Plaintiffs dispute the treatment of these agreements as purely insurance contracts because benefit plans are sold separately from health insurance plans, and BNPDs are sometimes sold to non-subscribers. Arguing against defendants’ assertion of end-user treatment for insurers, plaintiffs contend that the case law here is inapplicable because it deals exclusively with Sherman Act cases. See Defs. Mot. 15-16. Plaintiffs also contend that co-payments constitute a “resale” of the product, and therefore SM-HMOs are resellers, not end-users. They further assert that these resales are to plaintiffs’ actual and potential customers, placing them in competition with SM-HMOs. Even if the Court were to consider the sales here under Kartell as direct sales to subscribers, they argue that sales to non-subscribers would push the present case outside of Kartell’s orbit, since the SMHMOs would in effect be reselling to non-insureds. Plaintiffs also dispute the analogy to Sano Petroleum for many of the same reasons they dispute Kartell’s applicability. They distinguish Sano Petroleum by asserting that the question of competition is generally a factual matter, and their evidence shows that there is some competition. III. DISCUSSION A. Claims Under the Robinson-Pat-man Act, 15 U.S.C. § 13 1. Secondary Line Injury Secondary line injury, which plaintiffs claim to have suffered, results from price discrimination between favored and disfavored purchasers. See Texaco Inc. v. Hasbrouck, 496 U.S. 543, 558, n. 15, 110 S.Ct. 2535, 110 L.Ed.2d 492 (1990); see also Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 219 (2d Cir.2004) (“a secondary-line violation occurs where the discriminating seller’s price discrimination injures competition among his customers”). To make out a prima facie case for a § 2(a) secondary-line price discrimination violation, the plaintiff must show: “(1) that seller’s sales were made in interstate commerce; (2) that the seller discriminated in price as between the two purchasers; (3) that the product or commodity sold to the competing purchasers was of the same grade and quality; and (4) that the price discrimination had a prohibited-effect on competition.” George Haug Co. v. Rolls Royce Motor Cars Inc., 148 F.3d 136, 141 (2d Cir.1998) (citing Hasbrouck, 496 U.S. at 556, 110 S.Ct. 2535). Damages are not a part of the prima, fade case. 2. “In Competition” “In order to establish the requisite competitive injury in a secondary-line case, plaintiff must first prove that, as the disfavored purchaser, it was engaged in actual competition with the favored purchaser(s) as of the time of the price differential.” Best Brands Beverage, 842 F.2d at 584 (citing Lupia v. Stella D’Oro Biscuit Co., 586 F.2d 1163, 1170 (7th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979)); Carlo C. Gelardi Corp. v. Miller Brewing Co., 421 F.Supp. 237, 245 (D.N.J.1976). See generally, F. Rowe, Price Discrimination Under the Robinson-Patman Act 173-180 (1962) (explaining that a “competitive nexus between the customers receiving the higher and the lower prices is a basic predicate of any conclusion of adverse effects at the customer level attributable to a seller’s price differentials.”). The plaintiff must also show that the probable effect of the price discrimination would be to allow the favored purchaser to draw sales and profits from the disfavored purchaser. See J. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557, 569-70, 101 S.Ct. 1923, 68 L.Ed.2d 442 (1981) (Powell J., dissenting in part) (citing Enter. Indus., Inc. v. Texas Co., 240 F.2d 457, 458 (2d Cir.1957), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957)). Competition between the favored and disfavored purchasers must occur at the same functional level. See Best Brands Beverage, Inc., 842 F.2d at 585. In other words, as competitors, they must be “... all wholesalers or all retailers, and within the same geographic market.” Id. The Second Circuit has held that “[dieter-mining the presence or absence of functional competition between purchasers of a commodity is simply a factual process which focuses on whether these purchasers were directly competing for resales among the same group of customers.” Haug, 148 F.3d at 141-42; (citing Fed. Trade Comm’n v. Fred Meyer, Inc., 390 U.S. 341, 349, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968)). Since both favored and disfavored purchasers must be competing for customers, the Act is applicable only when the purchasers are also resellers. See, e.g., Lycon Inc. v. Juenke, et al., 250 F.3d 285, 289 (5th Cir.2001), cert. denied, Lycon, Inc. v. EVI Oil Tools, Inc., 534 U.S. 892, 122 S.Ct. 209, 151 L.Ed.2d 148 (2001). Normally, direct sales to end-users are not considered sales “in competition.” See, e.g., S. Bus. Commc’ns v. Matsushita Elec. Corp. of Am., 806 F.Supp. 950, 960 (N.D.Ga.1992) (County which purchased for its own use could not be a purchaser under § 2(a) because it did not compete with plaintiff for resales). For the purchasers of the products to be in competition with each other, they must pass the product on in some form. Generally, a consumer and a retailer cannot compete. See 3 Kintner and Bauer, Federal Antitrust Law 299 (1983) (“... the Act is implicated only when customers pay different prices for goods which they will resell, either in the same ... form as purchased, or as a raw ingredient or input into another product. If the two customers are consumers of the product, they are not ‘competitors ... ’ ”); see also Herbert Hovenkamp, 14 Antitrust Law: An Analysis of Antitrust Principles and Their Application, 89-95 (1999). It thus follows that if a distributor loses customers to a manufacturer’s cheaper direct prices, the Robinson-Patman Act will not offer a remedy. The exceptions prove the rule; when “end-users” begin to resell, or wholesalers begin to compete as resellers, courts have looked through the formal description of economic function to the economic reality of the situation, and found that competition exists. See generally, Hasbrouck, 496 U.S. 543, 110 S.Ct. 2535, 110 L.Ed.2d 492; Caribe BMW, Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 19 F.3d 745 (1st Cir.1994). With these principles in mind, the Court turns to defendants’ motion. B. Defendants’ Arguments 1. Insurers as End-User Purchasers: Is Kartell Applicable? Defendants argue that SM-HMOs purchase BNPDs on behalf of their subscribers, and dispense them as part of a fixed-fee service. They urge the Court to view them as insurers and/ or as procuring agents acting on behalf of subscribers. This treatment would entitle them to summary judgment, they reason, because discounts to end-users (or agents acting on their behalf) are not discounts to “competing purchasers.” Defendants derive this treatment of SM-HMOs as “end-users” from the Kartell line of cases. See 749 F.2d 922. Under this theory, the insurer is considered a purchaser on behalf of end-users. For purposes of either granting the insurers standing to sue for antitrust injury, or providing them with a defense against antitrust conspiracy and price-fixing suits, courts have found that insurers are single “buyers” or “purchasers” for antitrust purposes. See, e.g., Kartell, 749 F.2d at 926 (arguing that “[t]he relevant antitrust facts are that Blue Shield pays the bill and seeks to set the amount of the charge. Those facts ... convince us that Blue Shield’s activities here are like those of a buyer.”); Med. Arts Pharmacy of Stamford, Inc. v. Blue Cross & Blue Shield of Connecticut, Inc., 675 F.2d 502, 505 (2d Cir.1982) (holding that the imposition of price terms on local pharmacies by insurers was subject to the rule of reason, and upholding district court’s finding that “Blue Cross was the purchaser of the prescribed drugs”); Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 881 F.Supp. 1309 (W.D.Wis.1994) (finding that “[f]or antitrust purposes, Blue Cross is treated as a buyer where it pays the bill and seeks to set the amount charged”) (citing Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 216-17, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979)); Brillhart v. Mut. Med. Ins. Inc., 768 F.2d 196, 199 (7th Cir.1985); Michigan State Podiatry Ass’n v. Blue Cross and Blue Shield of Michigan, 671 F.Supp. 1139, 1152 (E.D.Mich.1987); (additional citations omitted); Feldman v. Health Care Serv. Corp., 562 F.Supp. 941 (N.D.Ill.1982) (“Each federal court which has examined the question in the context of the antitrust laws has decided that an insurer paying out pursuant to its policy of insurance is actually a purchaser of goods or services, and that the insured is merely the recipient of the goods or services pursuant to the policy.”). In short, a chorus of judicial opinion has proclaimed that when insurers purchase health services and pharmaceuticals for the benefit of their members, they are treated like purchasers under the antitrust laws. See Kartell, 749 F.2d at 926 (“The same facts convince us that Blue Shield’s activities here are like those of a buyer.”) (emphasis added). In a sense, these courts have viewed the insurer’s role as akin to that of a broker. Id. at 925 (“... from a commercial perspective, Blue Shield in essence ‘buys’ medical services for the account of others ...”). Defendants seek their treatment as end-user purchasers, placing them out of competition with plaintiffs, since direct sales to end-users, even at favorable prices, cannot be construed as sales to competitors. See S. Bus. Commc’ns, 806 F.Supp. at 960. The rationale behind these decisions is that insurers have incentives to control costs in order to compete on price with other insurance companies, and that such competition produces lower prices inuring to the benefit of consumers. See Blue Cross & Blue Shield of Wisconsin, 881 F.Supp. at 1317, 1319. In the Sherman Act context, policy considerations favoring pro-competitive arrangements have encouraged courts to apply the “rule of reason” analysis to these agreements, see Feldman, 562 F.Supp. at 951, since “the antitrust laws are not intended to protect profit margins but consumer welfare.” Id. at 950 (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). Despite this voluminous list of Sherman Act cases, this Court has to yet to find— and the parties have yet to provide — a single related case applying this doctrine to a claim under the Robinson-Patman Act. Defendants ambitiously overstate the law’s incorporation of Sherman Act doctrine in the Robinson-Patman context. Nevertheless, the proposition merits discussion, albeit as a novel application of antitrust law. Having considered the question, the Court finds it injudicious to apply Kartell analysis to the present case and thus declines to so do. The Robinson-Patman and Sherman Acts deal with distinct aspects of competition law. The Sherman Act looks to curb certain forms of illegal monopolies and conspiracies while the Robinson-Patman Act looks to protect smaller competitors by giving them the same access to discounts that would otherwise be reserved for those commanding more buying power. See, e.g., Fred Meyer, 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222; Fed. Trade Comm’n v. Henry Broch & Co., 363 U.S. 166, 80 S.Ct. 1158, 4 L.Ed.2d 1124 (1960); Innomed Labs, LLC v. Alza Corp., No. 01-8095, 2002 WL 31521084 (S.D.N.Y. Nov. 13, 2002), aff'd, 98 Fed.Appx. 51 (2d Cir.2004). It has frequently been noted by commentators that there is a tension between the objectives of the Robinson-Pat-man and Sherman Acts. See, e.g., 14 Hovenkamp, supra, 118-125. Although the Supreme Court has said that the conflict between the two acts should be minimized as much as possible, see Great Atl. & Pac. Tea Co., Inc. v. Fed. Trade Comm’n, 440 U.S. 69, 80-3, 99 S.Ct. 925, 59 L.Ed.2d 153 (1979), the case law does not require the two statutes to operate in perfect harmony. See id. (citing Standard Oil Co. v. Fed. Trade Comm’n, 340 U.S. 231, 249, 71 S.Ct. 240, 95 L.Ed. 239 (1951)). Were the Court to import Sherman Act doctrine wholesale, it would produce a previously nonexistent statutory safe-harbor for the health care industry. Defendants have failed to explain or justify such a radical transformation of the Act which, when read in its entirety, excludes by enumeration such a safe-harbor. More specifically, they have failed to explain why the pro-competitive rationale used to justify “rule of reason” treatment under the Sherman Act should also be applicable to price discrimination claims under Robinson-Pat-man, where the pro-competitive effects of price discrimination are irrelevant, unless they ground one of the enumerated defenses. See 15 U.S.C. § 13(a). The fact that none of the courts which have treated purchasers as insurers contemplated liability under Robinson-Pat-man militates against its application as a matter of law. Those cases considered conspiracy, group buying and tying claims. This case deals with price discrimination between competitors. Defendants’ proposed use of Kartell would employ Sherman Act protections for “buyers” of goods that would not otherwise be given under a Robinson-Patman analysis of whether the parties are in actual, functional competition. See Haug, 148 F.3d at 141-42. Moreover, neither the cited cases nor the elements of claims under these statutes are similar enough to justify this blanket cross-application. The “competing purchaser” element of the Robinson-Pat-man claim to which defendants wish to apply their theory doesn’t exist as an element of the Sherman Act claims under which Kartell, its siblings and progeny were decided. In addition, the language of the Kartell line of cases indicates that those courts limited their holdings to the facts before them. See, e.g., Kartell, 749 F.2d at 926. Were the question whether or not to apply analysis of a claim element shared by both acts, the cross-application might make sense. Here, however, it does not. Furthermore, the defendants’ argument would, in effect, confer exemptions upon for-profit insurers that are explicitly rejected by the Nonprofit Institutions Act (“NIA”). Under the NIA, nonprofit organizations can accept discounts for goods purchased for their “own-use.” See 15 U.S.C. § 13c. The Ninth Circuit has held that it covers nonprofit HMOs that dispense drugs to their patients. See De Modena v. Kaiser Found. Health Plan, Inc., 743 F.2d 1388 (9th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct. 1230, 84 L.Ed.2d 368 (1985). The “own-use” aspect of the NIA has been enforced. The Supreme Court, for example, has found that local governments are not shielded by the NIA when they resell drugs bought at favorable, prices for profit. See Jefferson County Pharm. Assoc., Inc. v. Abbott Lab., 460 U.S. 150, 103 S.Ct. 1011, 74 L.Ed.2d 882 (1983). Defendants’ application of Kartell would permit even for-profit insurance companies to buy goods at discounts without regard to competition — despite the clear language of the statute limiting the benefit to “non-profits.” Second, applying Kartell would muddle the jurisprudence on the “business of insurance” exception under the McCarran-Ferguson Act. See 15 U.S.C. §§ 1012(b), 1013(b). The applicability of McCarran-Ferguson exemption for agreements under the “business of insurance” is not before the Court, so no determination with respect to its applicability is made here. However, if the Court were to read the present cases through Kartell, it would conflate Sherman Act doctrine with the more appropriate discussion under McCar-ran-Ferguson. At the very least, the exemption would parallel that explicitly created by Congress. The Court declines to facilitate this confusion. 2. BNPDs as Inputs: Is Sano Petroleum Applicable? Defendants’ second argument relies upon Sano Petroleum, 187 F.Supp. 345 (E.D.N.Y.1960). In that case, defendant American Oil was a seller of gasoline to a variety of distributors including plaintiffs and Metropolitan, a company which leased trucks and provided gas for them. Metropolitan used the gas exclusively to refuel its fleet of rental trucks. See Sano Petroleum, 187 F.Supp. at 350. Because Metropolitan acquired gas at a discounted price, the gas stations brought a 2(a) price discrimination claim against the seller. The court found that a truck leasing company which bought gas at a discount for the exclusive use of its fleet was not in competition with local gas retailers, and therefore found there to be no “favored purchaser.” The basis for its decision was that the two were not in competition: “it was Metropolitan rental arrangement, rather than the price discrimination afforded Metropolitan by American, that foreclosed the market.” Id. at 357. Defendants assert that Sano Petroleum is apposite here. They contend, in essence, that both the bundling of health care services with BNPDs and the insurance element of BNPD benefit plans use BNPDs as a mere “input” in the package sold. Despite their concession that Haug, a case controlling the Court’s decision of this issue, focuses the inquiry on the question of actual competition, defendants argue that the specific determinations in Sano Petroleum foreclose the inquiry. Sano Petroleum carries some weight as an analogue to the present case. Yet Sano Petroleum’s finding does not relieve the Court of the obligation to review the record in a light most favorable to plaintiffs to see if they have proffered any evidence of “actual competition” as mandated by Haug. That case dealt with a price discrimination claim where the plaintiff was an auto parts dealer and the alleged favored purchaser was a parts and service dealer that also sold cars. The Second Circuit found that the allegations of competition in the pleadings were sufficient to survive a motion to dismiss. See Haug, 148 F.3d at 141-42. That court reasoned that the “presence or absence of functional competition between purchasers of a commodity is simply a factual process which focuses on whether these purchasers were directly competing for resales among the same group of customers.” Id. The court in Haug also noted that even if they were not on the same functional level, evidence could show competition. See id. at 142. This Court is compelled to follow Haug. To the extent that Sano Petroleum implies that, as a matter of law, goods sold in conjunction with other agreements do not compete with similar goods sold separately, Haug overrules it, since Haug treats the question of competition as a factual inquiry. Indeed, in Sano Petroleum the judge found, as a matter of fact, that there was no competition between plaintiff and favored purchasers. See Sano Petroleum, 187 F.Supp. at 347, 357. As long as plaintiffs make a showing that they functionally compete with SM-HMOs, they can survive summary judgment. C. Evidence of Competition To establish actual competition, plaintiffs need only show “competitive contact,” that the favored and disfavored purchasers competed on the same functional level and in the same geographic market. See Best Brands Beverage, 842 F.2d at 584-85. See also Godfrey v. Pulitzer Publ’g Co., 276 F.3d 405, 409-10 (8th Cir.2002). Plaintiffs have proffered evidence of competition sufficient to survive summary judgment. Plaintiffs proffered evidence that a trier of fact could believe, including official reports from Ciba-Geigy indicating that the biggest threat to retail pharmacies comes from the development of HMO in-house pharmaceutical sales. See Ex. MX 51, CG00257794-816, at CGoo257803, CGoo257806. Seen in its best light, the evidence creates a factual dispute regarding SM-HMO competition with retail pharmacies, whether those customers be subscribers or non-subscribers. Plaintiffs also proffer evidence that sales of BNPDs have been made by SMHMOs to “walk-in” customers. Plaintiffs contend that retail pharmacies compete with SM-HMOs for sales to both cash-paying customers and members of other third-party plans. They assert that several SM-HMOs have admitted that although they do not seek-out fee-for-service customers, they would sell them pharmaceuticals. See Ramirez Dep. X28 (Kelsey-Seybold), 224:15-225:22; Reitz Dep. X30 (Columbia Health Plan), 30:10-31:26; Greenwald Dep. X16 (Group Health Plan), 20:1-21. While the evidence does not clearly point to actual competition for cash paying customers, seen in a light most favorable to plaintiffs, it could support the SM-HMO understanding that they competed with retail pharmacies. Defendants assert that the above testimony was, at most, speculation by the deponents. See Defs. 56.1 Rep. Stmt. ¶ 41. But a trier of fact could reasonably read the above and other statements as acknowledgments that a consumer not otherwise a member of a company’s BNPD benefit program had the opportunity, and the choice, of buying through an SM-HMO’s in-house pharmacy or at a retail pharmacy. This would place the pharmacies in competition. At any rate, “the Supreme Court has repeatedly held that section 2(a) does not ‘require that the- dis-criminations must in fact have harmed competition, but only that there is a reasonable possibility that they ‘may’ have such an effect.’ ” Godfrey, 276 F.3d at 410 (citing Com Prods. Ref. Co. v. Fed. Trade Comm’n, 324 U.S. 726, 742, 65 S.Ct. 961, 89 L.Ed. 1320 (1945); Falls City Indus., Inc. v. Vanco Beverage, Inc., 460 U.S. 428, 434-35, 103 S.Ct. 1282, 75 L.Ed.2d 174 (1983); J. Truett Payne, 451 U.S. at 561-62, 101 S.Ct. 1923; Morton Salt, 334 U.S. at 46, 68 S.Ct. 822). Defendants’ motion with respect to SM-HMOs is therefore denied. CONCLUSION Because defendants’ motion is to categorically exclude from Robinson-Pat-man liability those agreements with SMHMOs that purchase BNPDs and dispense them through their in-house pharmacies and plaintiffs have raised an issue of fact with respect to at least some of them, the motion is denied. NON-PURCHASER REBATES MOTION The Court next considers defendants’ motion for partial summary judgment relating to all the representative plaintiffs’ claims under the Robinson-Patman Act, 15 U.S.C. § 13(a) (the “Act”), as to all legal entities which received rebates that do not take title to, resell, or dispense brand name prescription drugs. Having carefully reviewed the papers submitted by the parties, and as set forth below, the Court grants defendants’ motion for summary judgment in part and denies it in part. I. BACKGROUND A. Current Dispute At issue here are agreements that defendant-manufacturers have made with PBMs and TPPs, which manage the drug benefit portion of many healthcare enterprises. Defendants argue that there is no title transfer of BNPDs to PBMs. At most, they conceive of PBMs as purchasing agents for large healthcare and insurance providers and consumers. In moving for partial summary judgment, defendants make two arguments: (1) that the relevant PBMs did not “purchase” the drugs because the rebate agreements did not constitute “sales,” and (2) that no competitive injury resulted from the transactions. In opposition, plaintiffs contend that the agreements between PBMs and manufacturers are, in fact, discounted sales to the PBM. Additionally, plaintiffs ascribe some PBMs to BNPD purchases made by affiliated legal entities such as “mail order pharmacies.” When no such affiliations exist, they argue that the PBMs nevertheless exercise “dominion and control” over the BNPDs and therefore qualify as “purchasers” under the Act. Plaintiffs contend that the evidence raises an arguable factual issue as to whether or not the agreements that form the basis for this motion qualified certain PBMs as “purchasers.” Finally, plaintiffs assert that PBMs, as affiliates of mail order pharmacies, do compete with designated plaintiffs in the BNPD resale market. B. The Agreements Because the transactions at issue are rather complex, some background is warranted. Although the agreements at issue are technically those between manufacturer and PBM, the plaintiffs take a larger view of the interaction of these and other agreements, including those by which title to BNPDs actually pass to retail and mail order pharmacies via wholesalers. It is therefore prudent to review the related agreements between various actors in the distribution and pricing of BNPDs. The first agreement entered into is between the PBM and its client. The PBMs act “for the benefit of the plans or payor with which they have contracted.” Designated Defendant’s Response to Plaintiffs’ Statement of Additional Dispute Material Facts ..., (hereinafter “Def. Rep. 56.1 Stmt.”) ¶ 11. These PBMs “contract with HMOs, employers, insurance companies, and other entities to manage the drug benefit component of health care plans ...” Def. Rep. 56.1 Stmt. ¶ 11. Presumably, this contract is entered into because of the cost reductions that PBMs.can offer; PBMs are able to and have negotiated lower BNPD costs for their clients through the aggregation of buying power and the threat of switching to a. competitor’s product. See id. at ¶¶ 8, 9. The PBM then makes a second agreement with the manufacturer. The gist of this agreement is that the manufacturer agrees to “discount” the prices of its BNPDs for the PBM in return for its agreement to either purchase the manufacturer’s BNPDs either for itself or on behalf of its client. The discounts at issue here are paid in the form of “rebates.” Examples of these transactions, the terms of which are not materially disputed, see Def. Rep. 56.1 Stmt. ¶¶ 16,17, are attached to the Affidavits of Marlene Dubas and Jennifer Driscoll. See Dubas Aff. Ex. AE; Driscoll Aff. Ex. E, F. Generally, the PBM is paid a percentage rebate for every covered prescription filled at a “network pharmacy.” See Ex. B to Dubas Aff. SE000066660. In other words, the rebate payment to the PBM is based upon and triggered by a patient’s actually filling a prescription at a pharmacy. The rebate is then paid to the PBM. In return for the rebate, the PBM provides the manufacturer a host of services, including the development and publication of formularies, see Ex. A to Dubas Aff. SE000066642, and information on participating pharmacies. See id. at SE000066643. It must also “impose penalties to secure the prescribing and dispensing activity in conformity with the direction indicated in the Universal For-mularies.” Id. In short, PBMs provide manufacturers with market information on their products and encourage sales of agreed upon drugs, and in return the manufacturers issue the PBMs a rebate. This is the “quid pro quo” of the second agreement. The third and final agreement is between the PBM and retail pharmacies. “[T]hird party plans and PBMs contract with retail pharmacies to act as participant pharmacies and set the prescription drug reimbursement rates for participating pharmacies.” Designated Plaintiffs’ Local Rule 56.1 Statement of Disputed Material Facts (hereinafter “Pis. 56.1 Stmt.”) ¶ 5. In this agreement, the parties come to terms on the retail price that the pharmacy will charge participants of TPPs’ plans. In return, the pharmacy is admitted as a “participating” or “network” pharmacy. See Driscoll Aff., Ex. F, NOVMDL001369. This status provides the retail pharmacy with access to PBM-controlled clients. Plaintiffs characterize the aforementioned series of transactions as a circuitous means of favoring some purchasers of BNPDs while disfavoring them. Plaintiffs assert that they were resigned to making purchases of BNPDs from wholesalers without the benefit of the rebate. Their argument, in essence, is that even though the rebates are tied to consumer purchases and paid after those purchases are made, they are nothing more than a favorable discount to some buyers. Applying their theory to the legal entities at issue here, they contend that the PBMs are often nothing more than purchasing wings for mail-order pharmacies. By analogy, the argument proceeds, those PBMs which are unaffiliated with any BNPD reseller exercise the same dominion and control over those drugs, and should therefore be considered as purchasers for Robinson-Pat-man purposes. C. Corporate Structure of PBMs During the May 26, 2005 oral argument, both parties described the PBM agreements in three groups, each of which was based on the PBM’s relationships with legal entities that do take title to, distribute, or resell BNPDs. See May 26, 2005 Transcript of Motion (“5-26 Trans.”) 83-123. The first group of agreements are with those PBMs which have no legal affiliation with a company that takes title to, resells or dispenses BNPDs and do not do so themselves. The Court will refer to these as “standalone PBMs.” The second group are those PBMs that have a legal affiliation — most frequently a parent-subsidiary or co-subsidiary relationship — with an entity that does take title to, resell, or distribute BNPDs. The Court will refer to these as “affiliated PBMs.” Finally, the third group of PBMs are those which perform the contracting services described above and which also take title to the drugs, generally through a wholly owned pharmacy. The Court will refer to these as “unified PBMs.” Only the stand-alone and affiliated PBMs are subject to the current motion — the defendants have decided to “punt” on the unified PBMs. See 5-26 Trans. 91. In short, the parties dispute in summary judgment how profound the affiliation between two legal entities must be to trigger the Robinson-Patman Act prohibition against price discrimination. II. DISCUSSION The Court applies the well-recognized standards for summary judgment motions discussed supra, “Indirect Purchaser Motion” U.A., pp. 9-10. A. Elements of a Section 2(a) Robinson-Patman Act Claim To proceed on their Robinson-Patman claims, plaintiffs must make a factual showing as to all material elements, detailed supra “Indirect Purchaser Motion” II.B. pp. 10-14. Here, defendants challenge whether certain agreements make them “purchasers” or whether they can be considered “in competition” with plaintiffs. 1. Purchasers A necessary condition of being a purchaser is that a “sale” be made to the purchaser. See 3 P. Areeda & H. Hoven-kamp, Antitrust Law, 20 (1999) (“Because § 2(a) ... speaks only of price discrimination between two different ‘purchasers,’ it does not cover transactions unless they can reasonably be construed as ‘sales.’ ”). There is no special definition of “sale” to be applied under the Act. Instead, courts have resorted to the general law of sales. See Loren Specialty Mfg. v. Clark Mfg. Co., 241 F.Supp. 493, 498-99 (N.D.Ill.1965), aff'd, 360 F.2d 913 (7th Cir.1966). See also Island Tobacco Co. Ltd. v. R.J. Reynolds Indus. Inc., 513 F.Supp. 726, 733 (D.Haw.1981); Kennedy Theater Ticket Serv. v. Ticketron, Inc., 342 F.Supp. 922, 925 (E.D.Pa.1972) (courts have generally looked to the indicia of sales law and transfer of title). Even though the case law does not clearly define what constitutes a sale, some parameters are apparent. When parties act as intermediaries for a transaction and do not buy and resell the commodities, no sale between them has occurred. See Me