Direct Purchasers Research Articles

Trends in prices of checkpoint inhibitors in the US, 2016-2023.

11075 Background: Checkpoint inhibitors have revolutionized the treatment of several cancers since the first Food and Drug Administration (FDA) approval in 2014. Yet the cost of these drugs remains high, with implications for patient access and healthcare sustainability. We assessed pricing trends for drugs targeting program death-ligand 1 (PD-L1) or programmed cell death protein 1 (PD-1) from 2016-2023. Methods: This study included 6 PD-L1 or PD-1 inhibitors approved through 2019. Quarterly Medicare Part B spending limits, which are based on the average sales prices of drugs from manufacturers to wholesalers or direct purchasers, were collected from public files. To directly compare drugs, prices were converted to prices per month (28 days), based on the FDA-labeled dosage and frequency for metastatic non-small cell lung cancer (NSCLC), a common cancer for which each drug was approved. Prices were adjusted to 2023 dollars using the consumer price index for all urban consumers. Results: In 2016, monthly prices for pembrolizumab ($15,604) and nivolumab ($15,814) were similar. Prices for these 2 drugs and avelumab, approved in 2017, remained within 5% of each other throughout the study period. Three other drugs (cemiplimab, atezolizumab, and durvalumab) were approved from 2016-2018 and had prices 3%-20% lower than the other 3 drugs (Table). Inflation-adjusted prices for all drugs remained stable from 2016-2019 and decreased from 2020-2023, corresponding with a period of higher inflation. In 2023, monthly prices for the 6 drugs ranged from $11,961 (durvalumab) to $15,043 (pembrolizumab). From 2016-2023, inflation-adjusted prices decreased, by an average of 0.7% (pembrolizumab) to 4.8% (cemiplimab) per year. Conclusions: Although the FDA approved 6 mechanistically similar PD-1 or PD-L1 inhibitors from 2014-2018, prices remained generally unchanged during those years and through 2023, with slight declines in real prices attributable to post-COVID consumer inflation. Competition among these brand-name cancer drugs did not meaningfully affect prices. Regulators should investigate why price competition has not emerged, and policymakers should grant more opportunities to negotiate lower prices for patients and the health care system, as is being rolled out this year in Medicare following passage of the Inflation Reduction Act. [Table: see text]

Digital books and the far right

ABSTRACT Books are a recognized but insufficiently researched means for dissemination of ideologies, including by far-right violent extremists. Considering that the far-right are early and effective adopters of new communication technology, this article explores how digital publication and circulation of books can both enable and direct a known potential pathway to radicalization to extremism: the ‘intellectual quest’. This article explores the publication history and commercial circulation of novels by self-identified American neo-Nazis William L. Pierce and Harold A. Covington, which have been linked to planning and acts of violence both in the U.S.A. and elsewhere, and how commercial algorithms direct potential purchasers to ideologically adjacent material. We argue that digital book publishing and circulation have particular affordances for articulating, amplifying and normalizing violent extremist ideologies.

Differentiating between direct and indirect procurement: roles, skills, and Industry 4.0

The distinction between direct and indirect material procurement is widely understood in practice but only faintly described in research. To manage both, specific purchasing strategies, processes, tools, and skills are needed. With the increasing attention to purchasing competencies and the influence of digitalisation within the purchasing field, this research sheds light on the management of both commodity types, focusing on the difference in skills needed. This research takes an explorative approach by using a world café study with 81 procurement professionals to assess future purchasing skills. Results show that the responsibility for innovation buying is expected to increase for direct purchasers, a wave of internationalisation and the associated need for cultural, communication and flexibility and agility skills is expected for indirect purchasers. This research contributes by structuring previously unstructured phenomena within the human-centric profession by addressing specific purchasing roles and changing skill requirements within the field's current digital transformation.

The Moderating Effects of Eco-Friendliness between Logistics Service Quality and Customer Satisfaction in Cross-Border e-Commerce: Evidence from Overseas Direct Purchasers in Korea

The present study attempted to investigate whether the logistics service quality influences customer status and intention to reuse in the context of cross-border e-commerce. In addition, we explored whether the eco-friendly logistics service plays a moderating role in each quality variable during the logistics service process. By classifying logistics service quality into delivery service quality, return logistics service, delivery stability, and delivery information service, we conducted a survey and obtained a total of 781 responses in Korea, a semi-developed country. The responses were statistically analyzed. Based on this analysis, we concluded that the logistics service quality positively influences customer satisfaction and intention to reuse in the context of overseas direct purchases. Among the dimensions of logistics service quality, the most significant factor was delivery stability. Second, delivery service quality, delivery stability, and delivery information service positively influence the intention to reuse in cross-border e-commerce. Third, the satisfaction of products and/or services of a cross-border e-commerce firm has a high impact on repurchase. Finally, we found that the eco-friendly logistics service positively moderates the relationship between return logistics and satisfaction and the relationship between delivery quality and customer satiation. We concluded this manuscript with a discussion of managerial implications and academic contributions.

The US Debate on the Indirect Purchaser’s Claim to Damages in Competition Law Cases: Lessons for South Africa

A debate that has dominated American competition law jurisprudence relates to whether indirect purchasers should be prevented from claiming damages in private enforcement cases or whether both direct and indirect purchasers should be given the opportunity to claim civil damages. While there may be practical considerations impacting the extent to which those who have been indirectly harmed by cartels can reasonably expect to claim damages, an overly restrictive approach that would only consider direct purchasers may mean that some who might have a valid claim are effectively denied access to justice. None of the courts in the bread price-fixing cases or other subsequent competition law damages cases in the South African courts dealt with the essential question, which is whether or not all participants in the supply chain, regardless of their role as end consumers (indirect purchasers) or purchasers of inputs (direct purchasers), should be allowed to sue an upstream cartel for damages? In this article I analyse the seminal cases which prompted this debate in the United States and, I argue that in South Africa, the implications of not allowing an indirect purchaser to claim damages has a negative impact on the end consumers’ case. I advocate for allowing both indirect and direct purchasers to claim damages, and for the defendant to raise a passing-on of the overcharge defence in response.

Comparative analysis between the English, Dutch and French approaches to passing-on in competition cases

Several legal topics regarding cartel damages litigation have drawn special attention over the last few years, including the passing-on defence. ‘Passing-on’ in competition cases is where overcharges caused by a cartel, which affect the customers of the cartelists (direct purchasers), are passed-on by these purchasers to buyers further down the supply chain (indirect purchasers). Cartel members regularly invoke this defence as a (partial) shield against a claim for damages. The EU Damages Directive contains two important presumptions in connection to passed-on damages. This article undertakes a comparative analysis of how the courts in the Netherlands, France and England and Wales apply these presumptions in practice in their case law.

Large self-insured employers lack power to effectively negotiate hospital prices.

Self-insured employers cover more people than Medicare, Medicaid, or direct purchasers of private insurance.This study examined the ability of self-insured employers to negotiate hospital prices and the relationship between hospital prices and employer market power in the United States. Repeated cross-section analysis of commercial claims. We used the US Census Bureau County Business Patterns data to estimate employer market power at the metropolitan statistical area (MSA)-year level and used the Truven Health MarketScan commercial claims to estimate mean hospital prices and price ratios at the MSA-year level (2010-2016). We calculated descriptive statistics for employer market power, mean hospitalization prices, and a case mix-adjusted price ratio measure during the study period and analyzed the 10 most concentrated labor markets. We estimated MSA-year-level ordinary least squares regressions of hospitalization price and the price ratio measure on employer market power. Large self-insured employers had concentrated market power in very few MSAs in 2016. The mean value of our employer market power measure was 62 for 2016, compared with the mean value of 5410 for hospital market power in the United States. Regression analyses find a slight relationship: A 1-point increase in employer market power was associated with a $6.61 decrease in the hospitalization price (mean = $20,813), but this result becomes statistically insignificant once the models control for hospital wages. Employer market power is low in most MSAs. Self-insured employers may consider building purchase alliances with state and local government employee groups to enhance their market power and lower negotiated prices for hospital services.

The Best of Both Worlds: Compensation via Price-Caps for Passed-On Overcharges

AbstractWe present a market-based compensation approach to antitrust litigation and other cases of price overcharges. Instead of lump-sum compensation, paid either directly or through coupons, defendants are required to lower their prices for a certain designated period, i.e. price-cap compensation (PCC). We show why previous criticism of PCC was misguided. And, in sharp contrast to the common view in the literature, implementing PCC may have many substantive and procedural advantages. Importantly, although PCC is implemented vis-à-vis direct purchasers only, it reconciles the U.S. and European Union legal approaches and solves the challenge of passed-on damages to indirect purchasers.

The Indirect Purchaser Rule and Private Enforcement of Antitrust Law: A Reassessment

Abstract Despite broad statutory language authorizing “any person” injured by an antitrust law violation to sue for damages, the Supreme Court of the United States has construed that language to bar antitrust damages claims by indirect purchasers, such as consumers two or more steps removed from antitrust violators. The Court and some scholars have justified the indirect purchaser rule on the ground that assigning direct purchasers exclusive rights to recover antitrust damages increases the likelihood of suit. But this article presents new evidence that the rule reduced private antitrust litigation by twenty percent. It argues that the rule should be abandoned, consistent with the statutory text.

Supply Chains and Antitrust Governance

Antitrust regulations are meant to promote fair competition in the market, but balancing administrative and legal costs with enforcement can be difficult when multilayered supply chains are involved. The canonical example of this challenge is the landmark Illinois Brick ruling, which limits antitrust damages to only the direct purchasers of a product; for instance, consumers can file antitrust claims against colluding retailers but not against colluding manufacturers—only retailers can file claims against manufacturers. This controversial ruling was meant to reduce legal costs, but it can clearly lead to missed enforcement opportunities. In this paper, we demonstrate how the Illinois Brick ruling interacts with contracts adopted in the supply chain, and we show that otherwise equivalent supply chain arrangements can have markedly different effects. In particular, we find that wholesale price, minimum order quantity, revenue sharing, and quantity discount contracts lead retailers to take legal action against manufacturers in the event of collusive behavior. However, the wholesale price plus fixed fee contract structure (also known as a two-part tariff or slotting fee contract) facilitates collusion among the manufacturers with retailers compensated by the fixed fee and not filing the antitrust litigation. We further demonstrate that collusion is more likely under high demand uncertainty and high competition at the retail level but is less likely under high competition at the manufacturer level. Our paper helps public enforcers identify market conditions conducive to antitrust violations. This paper was accepted by Vishal Gaur, operations management.

App Stores, Aftermarkets & Antitrust

App stores have become the subject of controversy and criticism within antitrust. For instance, app developers such as Spotify and Epic Games (creator of Fortnite) allege that Apple’s 30 percent cut of all sales in the App Store violates the antitrust laws and is indicative of monopoly power. The idea is that iPhone users are locked into Apple’s walled garden iOS platform, which frees Apple to engage in misconduct in the App Store “aftermarket” to the detriment of users and app developers. This Article challenges the recent economic and legal characterizations of app stores and the nature of the alleged harm. First, this Article builds an accessible, economic framework to illustrate how app stores do not represent the same type of aftermarkets that were condemned in the Supreme Court’s landmark Kodak case. Importantly, the differences between Kodak-like aftermarkets and app store aftermarkets raise serious questions whether the digital revival of the aftermarket doctrine conforms with the economic realities of these markets. Second, the complexity of the commercial relationships found in app stores has raised questions regarding who has standing to seek antitrust damages in this type of market setting. This Article provides an overview of the development of the current doctrine of antitrust standing—focusing on Illinois Brick and Apple v. Pepper. Further, this Article contends that Justice Kavanaugh’s opinion in Pepper, which gave iPhone users the right to sue Apple over the 30 percent commission, was right for the wrong reason. Instead, Justice Gorsuch’s dissent offers a much more economically sound approach to antitrust standing—as his “proximate cause” standard does not artificially focus on identifying the “direct purchaser,” which is unnecessarily limiting for more complex commercial relationships. As the number of antitrust claims against various app stores proliferate, the consequences of faulty characterizations of app stores will only grow.

2020 Antitrust Annual Report: Class Action Filings in Federal Court

The 2020 Private Antitrust Enforcement Report provides various empirical analyses of antitrust class actions litigated in federal court from 2009 through 2020. It addresses various topics, including the number of antitrust class action complaints filed each year, the amount of time on average to reach a settlement, the mean and median recoveries, the attorneys' fees and costs awarded, the total settlement amounts in each year and overall, the law firms that represented plaintiffs and defendants in antitrust class action settlements, and the cumulative totals for claims administrators involved in the settlement process. The Report also distinguishing private antitrust enforcement by particular industries, by type of claim—conspiracy claims (under Section 1 of the Sherman Act) as opposed to claims based on unilateral conduct (Section 2 of the Sherman Act)—and by type of plaintiff—whether claims were brought on behalf of direct or indirect purchasers. The plan is to provide similar information on an annual basis. We hope that these reports will prove of interest to the academy and the public and private sectors, and that the data they analyze will offer a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions, as well as for actions related to enforcement of the antitrust laws through private class actions.

Circuit Split Cracks the Foundation of the Indirect Purchaser Rule: The Co-Conspirator Exception's Circuit Split Exposes Need to Overturn Illinois Brick but Keep Hanover Shoe

Illinois Brick v. Illinois’s indirect purchaser rule must be overturned, but the rule’s defensive counterpart—Hanover Shoe v. United Shoe Machinery’s pass-on defense prohibition—must remain good law. The current circuit split regarding the scope of the indirect purchaser rule’s co-conspirator exception has exposed a crack in the reasoning behind the indirect purchaser rule that cannot be ignored. In any vertical antitrust conspiracy, members of the first non-conspiring level of the distribution chain are the party directly injured by the conspiracy and are therefore the direct purchasers of all of the conspirators. Under the Supreme Court’s 2019 holding in Apple v. Pepper this means they must, regardless of what type of vertical conspiracy exists, have standing to collect damages from all the conspirators under Section 4 of the Clayton Antitrust Act. Therefore, the price-fixing-only interpretation of the co-conspirator exception is meritless. The alternative, all-vertical-conspiracies interpretation of the co-conspirator exception, requires extensive use of pass-on analysis. The indirect purchaser rule was the Supreme Court’s attempt to best balance competing antitrust principles. The Court believed that eliminating pass-on analysis, as well as compulsory joinder, was necessary to effectively deter would-be antitrust violators. The Court sacrificed compensation for victims in favor of deterrence and avoiding duplicative liability. In light of the practical realities posed by the all-vertical-conspiracies interpretation of the co-conspirator exception, the balance struck by the Illinois Brick majority must be reevaluated. In doing this reevaluation, this Comment considers whether any of three possible alternatives would better balance competing antitrust principles than the current state of the law, ultimately concluding that the Supreme Court must overturn Illinois Brick but keep Hanover Shoe. Doing so will best serve Section 4 of the Clayton Antitrust Act’s interest in compensating injured victims and deterring antitrust violators. While this solution will allow for duplicative recoveries, the benefits it brings to Section 4’s competing interests far outweigh the costs.

2019 Antitrust Annual Report: Class Action Filings in Federal Court

Last year, we provided an empirical analysis of private antitrust class action lawsuits and their resolutions in federal court from 2013 through 2018 (the 2018 Private Antitrust Enforcement Report). This Report (the 2019 Private Antitrust Enforcement Report) expands on that analysis significantly. It extends the period under consideration to include the years 2009 through 2019 and addresses new issues. To be sure, in part it revisits the same topics, including the number of antitrust class action complaints that are filed each year, the amount of time they took on average to reach a settlement, the mean and median recoveries, the attorneys' fees and costs awarded, and the total settlement amounts in each year and overall. The 2019 Private Antitrust Enforcement Report also analyzes the law firms that represented plaintiffs and defendants in antitrust class action settlements, describes cumulative results, and tabulates cumulative totals for claims administrators involved in the settlement process. The report also addresses new issues, such as distinguishing private antitrust enforcement by particular industries, by type of claim—conspiracy claims (under Section 1 of the Sherman Act) as opposed to claims based on unilateral conduct (Section 2 of the Sherman Act)—and by type of plaintiff—whether claims were brought on behalf of direct or indirect purchasers. The plan is to continue providing similar information on an annual basis. We hope that these reports will prove of interest to the academy and the public and private sectors, and that the data they analyze will provide a firmer empirical basis than would otherwise be possible for private decisions and for public policy discussions and actions related to enforcement of the antitrust laws through private class actions.

Relations between Circular Economic “Principles” and Organic Food Purchasing Behavior in Hungary

Because of the climate change and emerging need for an environmentally sustainable production system, circular economic characteristics have come to the front in many studies. There are many challenges in this shift toward a circular value chain. Still, it is unquestionable that the analysis of consumers’ behaviour is crucial, because without their engagement, circular systems cannot work correctly. This article aimed to explore the circular characteristics of consumers’ attitude towards food purchasing in Hungary. Factor and cluster analyses were applied for market segmentation. The question to be answered was the following: “Are there any segments in the Hungarian food market that can be aimed at by different marketing tools to promote circular systems?” The hypothesis was that well-defined segments can be separated, garnering more engagement in the circular value chain in Hungary. We could separate two clusters, in which the members’ opinions were in line with the circular economic characteristics. Summing up the features of the different clusters, we can state that the members in cluster 1 (“Information-dependent”) and cluster 3 (“Direct purchasers”) were in the most local dimension; their attitude was the most adequate for the circular economic values. The “Information-dependent” consumer in particular was remarkable from the aspect of this investigation. This study showed that highly educated young people, who are very conscious consumers and live on good incomes, may be the target group for circular innovation. These young consumers usually buy organic food, are confident internet and software users, live in cities, and follow a healthy lifestyle. Finding the right marketing tools to integrate these consumers into more sustainable circular systems effectively and to be committed to the concepts of circular consumption is an essential mission in the future. Collecting from different databases and continuously analysing consumer feedback can be a huge step towards in achieving sustainable consumption and avoiding food waste. The significance of this analysis was that we found a defined segment that represents propensity towards accepting circular economy values and can be the target group of policies integrating circular systems.

Changes in List Prices, Net Prices, and Discounts for Branded Drugs in the US, 2007-2018

Most studies that have examined drug prices have focused on list prices, without accounting for manufacturer rebates and other discounts, which have substantially increased in the last decade. To describe changes in list prices, net prices, and discounts for branded pharmaceutical products for which US sales are reported by publicly traded companies, and to determine the extent to which list price increases were offset by increases in discounts. Retrospective descriptive study using 2007-2018 pricing data from the investment firm SSR Health for branded products available before January 2007 with US sales reported by publicly traded companies (n = 602 drugs). Net prices were estimated by compiling company-reported sales for each product and number of units sold in the US. Calendar year. Outcomes included list and net prices and discounts in Medicaid and other payers. List prices represent manufacturers' price to wholesalers or direct purchasers but do not account for discounts. Net prices represent revenue per unit of the product after all manufacturer concessions are accounted for (including rebates, coupon cards, and any other discount). Means of outcomes were calculated each year for the overall sample and 6 therapeutic classes, weighting each product by utilization and adjusting for inflation. From 2007 to 2018, list prices increased by 159% (95% CI, 137%-181%), or 9.1% per year, while net prices increased by 60% (95% CI, 36%-84%), or 4.5% per year, with stable net prices between 2015 and 2018. Discounts increased from 40% to 76% in Medicaid and from 23% to 51% for other payers. Increases in discounts offset 62% of list price increases. There was large variability across classes. Multiple sclerosis treatments (n = 4) had the greatest increases in list (439%) and net (157%) prices. List prices of lipid-lowering agents (n = 11) increased by 278% and net prices by 95%. List prices of tumor necrosis factor inhibitors (n = 3) increased by 166% and net prices by 73%. List prices of insulins (n = 7) increased by 262%, and net prices by 51%. List prices of noninsulin antidiabetic agents (n = 10) increased by 165%, and net prices decreased by 1%. List price increases were lowest (59%) for antineoplastic agents (n = 44), but discounts only offset 41% of list price increases, leading to 35% increase in net prices. In this analysis of branded drugs in the US from 2007 to 2018, mean increases in list and net prices were substantial, although discounts offset an estimated 62% of list price increases with substantial variation across classes.

Unintended Consequences: Abolishing the Direct Purchaser Rule as a Threat to Private Antitrust Enforcement

Proposals to abandon the direct purchaser rule under federal antitrust law—and to allow indirect purchasers to bring claims for damages—sound as if they would enhance private antitrust enforcement. That presumably is why they have been attractive to some progressives. After all, expanding who may sue could only increase recoveries, promoting the goals of compensation and deterrence, right? Wrong. Enter the rule of unintended consequences. What is easily missed is that federal class certification doctrine has become entwined with the direct purchaser rule. Overturning Illinois Brick—allowing indirect purchasers to sue for damages under federal law—could well overturn Hanover Shoe—permitting a pass-on defense. Courts have imposed standards to certify a class that are strict and often might not be met without Hanover Shoe. As a result, repealing the direct purchaser rule could make certifying direct purchaser classes much harder, on the whole undermining private enforcement of antitrust laws. This Article argues for either keeping the direct purchaser rule or taking a subtler approach--repealing Illinois Brick while retaining Hanover Shoe.

Apple v Pepper: the unintended fallout in Europe

In Apple v. Pepper, the US Supreme Court held that iPhone users were direct purchasers of apps from Apple, which, according to precedent set by Illinois Brick v. Illinois, made them the proper plaintiffs to sue Apple for antitrust damages. The damages were the result of Apple’s alleged monopolization of the app distribution aftermarket through imposing a supra-competitive 30 percent commission fee to the price of each downloaded app. The case was closely watched because the Court’s decision controlled whether plaintiffs could proceed with the substantive issues in their complaint, namely whether Apple is a monopolist and whether it has monopolized the app distribution market. The decision was positively received by the public, for it gave standing to consumers against big tech, but scholarly commentary has been more reserved and even critical. This note adds to the ongoing debate on the case by showing how the Court’s decision, whose effects are seemingly confined in US antitrust law, can have an impact on EU competition law and its enforcement. The two ways by which the case can have an unanticipated fallout in Europe relate to the Court’s implicit rejection of indirect purchasers’ right to claim damages, and the Court’s implicit designation of Apple as an intermediary instead of an agent of app developers.

What’s Next in Apple v. Pepper? The Indirect Purchaser Rule and the Economics of Pass-Through

In Apple v. Pepper, the Supreme Court issued a narrow 5-4 decision holding that iPhone users who purchased apps from the Apple App Store were direct purchasers. Justice Brett Kavanaugh, writing for the majority, held that the iPhone users had standing under Illinois Brick to sue Apple for alleged monopolization under Section 2 of the Sherman Act. The dissent, written by Justice Gorsuch, concluded that the iPhone users were direct purchasers of distribution services provided by Apple, and thus relied on a pass-on theory to recover damages from Apple. On remand, the plaintiffs will have to show that they were harmed by Apple's ad valorem royalty rate. Our analysis demonstrates that the plaintiffs are unlikely to prevail because they have not been harmed by Apple's ad valorem rate. We also explain that the Supreme Court correctly accepted the plaintiff's alleged market definition at the motion to dismiss stage, and therefore did not abandon its ruling in American Express.

Apple v. Pepper: Rationalizing Antitrust's Indirect Purchaser Rule

In Apple v. Pepper the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s iStore could sue Apple for antitrust damages because they were “direct purchasers.” The decision reflects some bizarre complexities that have resulted from the Supreme Court’s 1977 decision in Illinois Brick, which held that only direct purchasers could sue for overcharge injuries under the federal antitrust laws. The indirect purchaser rule was problematic from the beginning. First, it was plainly inconsistent with the antitrust damages statute, which gives an action to “any person who shall be injured in his business or property” by an antitrust violation. Second, the Court exaggerated the difficulty of “tracing” indirect purchaser damages. By using the most common “yardstick” methods of estimating damages, an expert can compute indirect purchaser damages by engaging in two relatively simple horizontal comparisons. Third, if we were going to give the overcharge to a single set of buyers it should be the end users, not the direct purchasers. End users bear most of the brunt of an unlawful overcharge. Further, they are the only persons in the distribution chain who are unable to pass anything on. In fact, intermediaries, including direct purchasers, typically are not injured by the “overcharge” at all. Their injury results from loss of sales volume that the cartel imposes. Thus the correct damages rule in indirect purchaser cases is lost profit damages for intermediaries, including the direct purchaser, and overcharge damages for the end user. The Supreme Court’s Daubert decision, which came fifteen years after Illinois Brick, should be the controlling mechanism for evaluating expert models rather than anything as blunt, categorical, and frankly wrong as the indirect purchaser rule. Daubert rulings, which are generally not subject to jury control, should provide judges with an adequate mechanism for ensuring that expert damages reports are based on reliable and relevant assumptions, methodologies, and data. Antitrust damage formulations, even for indirect purchasers, need be no more complex or speculative than damages for a large number of business violations, including such things as patent infringement and breach of contract. The Apple dissenters adopted a distinctively noneconomic approach that dispensed entirely with analysis of pass-on. They reasoned that only the direct purchaser had an injury that was “proximately caused” by the defendant’s antitrust violation. This view harkens back to a nineteenth century tort law concept that was widely used by courts to limit tort liability, particularly in railroad cases. Under this rule only a single entity could be said to have an injury that was proximately caused by the defendant’s conduct. That rule was properly abandoned in tort cases and should be laid to rest. It makes even less sense in antitrust cases. In an effort to identify some conception of “proximity” it typically awards damages to those who were injured the least, or in some cases not at all.