Appeal from the United States District Courtfor the District of OregonMalcolm F. Marsh, District Judge, PresidingArgued and SubmittedMay 3, 1999--Portland, OregonFiled July 14, 1999Before: William C. Canby, Jr., Thomas G. Nelson,Circuit Judges, and Jeremy Fogel, District Judge.1Opinion by Judge T.G. Nelson
______________________COUNSEL Steve D. Larson and Scott A. Shorr, Stoll Stoll Berne Lokting& Shlachter, Portland, Oregon, and Michael Spencer, Mill-berg, Weiss, Bershad, Hynes & Lerach, New York, NewYork, for the plaintiffs-appellants.Herbert M. Wachtell, Wachtell, Lipton, Rosen & Katz, NewYork, New York, for the defendants-appellees.Michael D. Reynolds, Assistant Attorney General, Salem,Oregon, for amicus curiae State of Oregon.Carl R. Schenker, Jr., O'Melveny & Myers, Washington,D.C., for amicus curiae Product Liability Advisory Council.Jan S. Amundson, National Association of Manufacturers,Washington, D.C., for amicus curiae National Association ofManufacturers.
_____________________________OPINION T.G. NELSON, Circuit Judge:The plaintiffs in this action are six Oregon-based employeehealth and welfare benefit trust plans created to provide com-prehensive health care benefits to their participants, who arethousands of union and public-sector workers employed undervarious collective bargaining agreements. Plaintiffs filed suitagainst defendants--eight tobacco companies, three non-profit public relations/lobbying/research councils and onepublic relations firm--under federal RICO, Oregon RICO,federal and state antitrust laws, and other Oregon state laws.Plaintiffs seek to recover the costs they have incurred treatingtheir participants' and beneficiaries' smoking-related ill-nesses. The district court granted judgment on the pleadingsin favor of defendants, concluding that plaintiffs had failed tostate a claim upon which relief could be granted. We havejurisdiction under 28 U.S.C. S 1291. We affirm.I.Plaintiffs are five health and welfare trust funds that pro-vide health care benefits to their participants and beneficia-ries. These funds are formed and operated as legal trusts witheach trust's mission being to pay for health care benefits forparticipating workers, retirees and their families.In their complaint, plaintiffs allege the following: In theearly 1950's, scientific studies linking smoking to health riskssurfaced. Defendants concluded that an awareness of thehealth risks associated with smoking could result in regulationof the tobacco industry and threaten the industry's profitabil-ity. To prevent this from happening, defendants began a pub-lic relations campaign to persuade the public that the industrywould research the health risks from tobacco and make a can-did disclosure of the results. Defendants, however, enteredinto a conspiracy to do just the opposite.Plaintiffs' complaint cites many examples of this allegedpublic relations campaign that was being waged at the sametime that defendants were allegedly engaged in a covertscheme to defraud the public (including plaintiffs) as to thehealth risks of smoking. Defendants allegedly sought to con-ceal the scientific evidence about smoking risks and to main-tain the powerful "lie" that the link between smoking anddisease was an "open controversy." Defendants' alleged mis-conduct covered not only the general smoking-disease link,but also the degree of the health risk, the addictiveness ofsmoking, the feasibility of safer cigarettes, the actual safety oflow-tar and filtered cigarettes, and the suppression of compar-ative safety information about different product designs.Defendants also allegedly sought to impair the developmentand implementation of smoking cessation programs, andfought efforts to ban smoking in the workplace.Plaintiffs also allege that defendants conspired to restrainintercompany competition in making and marketing safer cig-arettes or alternative products. Defendants allegedly stoppedadvertising differences in product safety, fixed the qualitylevel of products allowed in the market, suppressed productinformation, and policed their agreement not to let any manu-facturer introduce and market tobacco products that weresafer or less hazardous. Plaintiffs allege that this conduct pre-sents a classic case of horizontal conspiracy to fix productquality and that, as a result, cigarettes are perhaps the onlyproduct that has not gotten any safer in the last forty-fiveyears. Finally, plaintiffs allege that defendants targeted teensmokers to replace the adult smokers that died.As to damages, plaintiffs allege that defendants' wrongdo-ing injured them in two causal chains. First, defendants'alleged manipulation of information and suppression of prod-ucts prevented plaintiffs from obtaining accurate informationand safer products in operating their health funds, which inturn prevented plaintiffs from taking action to reduce smokingrates among their participants. This reduction in smokingrates would have led to a reduction in smoking-related diseaseamong the funds' participants which would have in turn ledto lowering plaintiffs' expenditures. Second, plaintiffs allegethat defendants' wrongful fraud and concealment of informa-tion, suppression of safer products, targeting of children andmanipulation of nicotine resulted in more smoking, less quit-ting, and smoking of more hazardous cigarettes among thefunds' participants, which in turn resulted in higher incidenceof disease and higher expenditures for medical bills by plain-tiffs.Plaintiffs allege that, but for defendants' conduct, plaintiffswould have undertaken stronger anti-smoking measures.Plaintiffs further allege that they have borne the brunt ofsmoking-related health care costs and that plaintiffs simplyseek to replenish trust assets by recovering from defendantsthe injuries that plaintiffs have suffered as a result of defen-dants' misconduct.Plaintiffs have asserted the following claims for relief: fed-eral RICO, Oregon RICO, federal and state antitrust, Ore-gon's Unfair Trade Practices Act ("UTPA"), fraudulentmisrepresentation and concealment, unjust enrichment, negli-gent breach of a special assumed duty and civil conspiracy.Plaintiffs seek damages as well as equitable and injunctiverelief.Defendants moved the district court for judgment on thepleadings on each of plaintiffs' claims or, alternatively, fordismissal for failure to join necessary parties. The districtcourt granted defendants' motion, finding plaintiffs failed tostate a claim on which relief could be granted. See OregonLaborers-Employers Health & Welfare Trust Fund v. PhilipMorris, Inc., 17 F. Supp. 2d 1170 (D. Or. 1998).The district court held (1) that plaintiffs did not meet thestanding or proximate cause requirements necessary to main-tain either a federal or state antitrust claim; (2) that plaintiffs'injuries were entirely dependent upon injuries sustained bytheir participants and were thus too far removed from thechallenged harmful conduct to support either a federal or stateRICO claim;2 (3) that plaintiffs did not meet the standingrequirement of Oregon UTPA because they were not"consumers of defendants' products"; (4) that plaintiffs didnot meet the proximate cause requirements to maintain aclaim for fraud; (5) that the theories of unjust enrichment andindemnity were inapplicable; (6) that plaintiffs failed to allegethe elements necessary to maintain a claim for breach of anassumed duty;3 and (7) that plaintiffs' claim for civil conspir-acy was entirely dependent on the underlying claims for fraudand UTPA violations and must therefore also fail.II.We review de novo a district court's grant of judgment onthe pleadings for failure to state a claim. Nelson v. City ofIrvine, 143 F.3d 1196, 1200 (9th Cir. 1998)."A judgment onthe pleadings is properly granted when, taking all the allega-tions in the pleading as true, the moving party is entitled tojudgment as a matter of law." Id.III.A. RICO and Antitrust Claims for Damages[1] The requirements for standing to maintain a civil actionunder RICO and the antitrust laws are similar.4 See Holmes v.Securities Investor Protection Corp.,
503 U.S. 258
, 268(1992). Both provide a private right of action for damagesonly to those individuals "injured in [their ] business or prop-erty by reason of" a violation of the law's substantive provi-sions. 18 U.S.C. S 1964(c) (RICO); 15 U.S.C.S 15(a)(antitrust). Both also require that the alleged violation of thelaw be a "proximate cause" of the injury suffered. SeeHolmes,
503 U.S. at 268
(RICO); Blue Shield v. McCready,
457 U.S. 465, 477
(1982) (antitrust). As the Court explainedin Holmes: Here we use "proximate cause" to label generi- cally the judicial tools used to limit a person's responsibility for the consequences of that person's own acts. At bottom, the notion of proximate cause reflects ideas of what justice demands, or of what is administratively possible and convenient. Accord- ingly, among the many shapes this concept took at common law was a demand for some direct relation between the injury asserted and the injurious conduct alleged.
503 U.S. at 268
(citations and quotations omitted) (emphasisadded).[2] A direct relationship between the injury and the allegedwrongdoing, although not the "sole requirement " of RICOand antitrust proximate causation, "has been one of its centralelements." Id. at 269 (citing Associated Gen. Contractors v.California State Council of Carpenters ("AGC") , 459 U.S.519, 540 (1983)). "Thus, a plaintiff who complained of harmflowing merely from the misfortunes visited upon a third per-son by the defendant's acts was generally said to stand at tooremote a distance to recover." Id. at 268-69.[3] To determine whether an injury is "too remote" to allowrecovery under RICO and the antitrust laws, the Court appliesthe following three-factor "remoteness" test: (1) whether thereare more direct victims of the alleged wrongful conduct whocan be counted on to vindicate the law as private attorneysgeneral; (2) whether it will be difficult to ascertain the amountof the plaintiff's damages attributable to defendant's wrongfulconduct; and (3) whether the courts will have to adopt compli-cated rules apportioning damages to obviate the risk of multi-ple recoveries. See id. at 269-70 (RICO); AGC, 459 U.S. at545 (antitrust).[4] Plaintiffs in the present case assert that they have suf-fered both "direct" injury and "indirect " injury. They claim a"direct" injury based on what they call a "one-link" causationchain. As defendants point out, however, all of plaintiffs'claims rely on alleged injury to smokers--without any injuryto smokers, plaintiffs would not have incurred the additionalexpenses in paying for the medical expenses of those smok-ers. Thus, there is no "direct" link between the alleged mis-conduct of defendants and the alleged damage to plaintiffs.See Laborers Local 17 Health & Benefit Fund v. Philip Mor-ris, Inc., 172 F.3d 223, 233 (2d Cir. 1999) (holding thatbecause trust funds' damages "are entirely derivative of theharm suffered by plan participants as a result of using tobaccoproducts," the damages were "indirect" and did not"proximately cause the injuries alleged" by the trusts); seealso Steamfitters Local Union No. 420 Welfare Fund v. PhilipMorris, Inc., 171 F.3d 912, 928 (3d Cir. 1999) (holding thatit did not matter whether plaintiffs' injuries were "direct" or"indirect" because "the plaintiffs' direct claim comes nocloser than their indirect claim to meeting the proximate causerequirement for antitrust standing").Two circuit courts have addressed the issue of a health trustfund's standing to bring antitrust and RICO actions. Both theSecond and the Third Circuits have held that a trust fund'sclaims are "too remote" to allow recovery and that the actionsare therefore barred. See Laborers Local 17, 172 F.3d 223(addressing only RICO); Steamfitters, 171 F.3d 912 (address-ing RICO and antitrust).[5] Because we determine that the "remoteness" test weighsin favor of barring plaintiffs' action, we agree with the Sec-ond and the Third Circuits and hold that plaintiffs' RICO andantitrust claims are "too remote" from defendants' allegedwrongdoing to allow recovery. These claims are thereforebarred.1. Existence of More Direct Victims of Alleged Wrongful ConductPlaintiffs argue that their "standing is confirmed" becauseonly they, and not smokers, "can allege injury to business orproperty for the RICO and antitrust claims at issue here."[6] Plaintiffs are correct that individuals that suffer personalinjury cannot claim medical expenses as "injury to businessor property," and that the smokers are therefore barred fromasserting RICO or antitrust claims. See Berg v. First State Ins.Co., 915 F.2d 460, 464 (9th Cir. 1990) (holding that personalinjury is not "injury to business or property " and is thereforenot compensable under RICO). This inability does not, how-ever, necessarily lead to the conclusion that plaintiffs musttherefore have standing.[7] First, "Congress did not intend the antitrust laws to pro-vide a remedy in damages for all injuries that might conceiv-ably be traced to an antitrust violation." AGC, 459 U.S. at534. Some injuries caused by an antitrust violation may thusbe left unremedied for lack of a proper plaintiff. As we recog-nized in Exhibitors' Serv., Inc. v. American Multi-Cinema,Inc., 788 F.2d 574, 580 n.7 (9th Cir. 1986):"The fact thatinjury has occurred and that other claims have failed does notpermit this court to expand the coverage of [antitrust law]."[8] Second, there is an identifiable group of persons--smokers--whose self-interest will motivate them to seekrecovery of the damages caused by defendants' allegedwrongful conduct. Although the smokers cannot "vindicatethe public interest in antitrust [or RICO] enforcement," seeAGC,
459 U.S. at 542
, they can "remedy the harm done bydefendants' alleged misconduct. Moreover, these actions [bythe smokers] will promote `the general interest in deterringinjurious conduct,' which Holmes noted as the objective ofthis policy factor." Laborers Local 17, 172 F.3d at 235 (quot-ing Holmes,
503 U.S. at 269
).[9] The existence of the smokers, who are more direct vic-tims of the alleged wrongful conduct and who can be countedon to vindicate the injury caused by defendants' allegedwrongful conduct, weighs heavily in favor of barring plain-tiffs' actions.2. Difficulty in Ascertaining Damages Attributable to Defendants' Alleged Wrongful Conduct[10] Although the actual damages attributable to medicalpayments made by plaintiffs due to smoking-related injurieswould be as easy to ascertain in the present case as in a directaction by the smokers, the other damages that plaintiffs allegewould be very difficult to ascertain. As the Third Circuitstated: The Funds' alleged damages are said to arise from the fact that the tobacco companies prevented the Funds from providing smoking-cessation or safer smoking information to their participants, some of whom would have allegedly quit smoking or begun smoking safer products, reducing their smoking- related illnesses, and thereby lowering the Funds' costs for reimbursing smokers' health care expendi- tures. In order to calculate the damages--i.e., the costs not lowered due to the antitrust conspiracy-- the Funds must demonstrate how many smokers would have stopped smoking if provided with smoking-cessation information, how many would have begun smoking less dangerous products, how much healthier these smokers would have been if they had taken these actions, and the savings the Funds would have realized by paying out fewer claims for smoking-related illnesses. It is apparent why the Funds argue that they can demonstrate all of this through aggregation and sta- tistical modeling: it would be impossible for them to do so otherwise. Yet we do not believe that aggrega- tion and statistical modeling are sufficient to get the Funds over the hurdle of the AGC factor focusing on whether the "damages claim is . . . highly speculative."Steamfitters, 171 F.3d at 929.[11] The Second Circuit similarly found the damages claimof the trust funds to be highly speculative: It will be virtually impossible for plaintiffs to prove with any certainty: (1) the effect any smoking cessa- tion programs or incentives would have had on the number of smokers among the plan beneficiaries; (2) the countereffect that the tobacco companies' direct fraud would have had on the smokers, despite the best efforts of the Funds; and (3) other reasons why individual smokers would continue smoking, even after having been informed of the dangers of smok- ing and having been offered smoking cessation pro- grams. On a fundamental level, these difficulties of proving damages stem from the agency of the indi- vidual smokers in deciding whether, and how fre- quently, to smoke. In this light, the direct injury test can be seen as wisely limiting standing to sue to those situations where the chain of causation leading to damages is not complicated by the intervening agency of third parties (here, the smokers) from whom the plaintiffs' injuries derive. These concerns become particularly pointed in a case, like the present one, where the injuries are alleged to derive not simply from defendants' affir- mative misconduct but also from plaintiffs' fraudu- lently induced inaction. That is, it is often easier to ascertain the damages that flow from actual, affirma- tive conduct, than to speculate what damages arose from a party's failure to act. In the latter situation, as in the case at hand, it becomes difficult to distinguish among the multitude of factors that might have affected the damages. Here, for example, plaintiffs' alleged damages might have derived from inefficien- cies in the Funds' own management, as well as from non-smoking related health problems suffered by the smokers, and it would be the sheerest sort of specu- lation to determine how these damages might have been lessened had the Funds adopted the measures defendants allegedly induced them not to adopt.Laborers Local 17, 172 F.3d at 233-34.[12] The difficulty of ascertaining the damages attributableto defendants' alleged wrongful conduct and the complexityinvolved in calculating these damages weigh heavily, if notdispositively, in favor of barring plaintiffs' actions.3. Potential for Duplicative Recovery or Complex Apportionment of Damages[13] This third and final factor also weighs in favor of bar-ring plaintiffs' actions. It is quite likely that if there are notcases by smokers already pending in Oregon, there will likelybe many filed as has been seen in other states. Although thesmokers cannot recover under either RICO or the antitrustlaws, they can seek recovery under other state law theories forpersonal injury and the associated medical costs--the samedamages that plaintiffs seek to recover. Moreover, althoughthere may be some protection from multiple recovery in statelaw, this safeguard would not cure the ultimate problem--thatthe courts would be forced "to adopt complicated rules appor-tioning damages among plaintiffs at different levels of injuryfrom the violative acts, to obviate the risk of multiplerecoveries." See Holmes,
503 U.S. at 269
(citing AGC, 459U.S. at 543-44); Laborers Local 17, 172 F.3d at 230.[14] All three factors of the "remoteness" test weigh infavor of barring plaintiffs' claims. We therefore hold thatplaintiffs lack standing to bring either a RICO or an antitrustclaim for damages.5B. RICO and Antitrust Claims for Equitable ReliefIn addition to damages, plaintiffs seek equitable reliefunder RICO and the antitrust laws.1. Antitrust[15] Standing analysis for equitable relief under the anti-trust laws is not the same as standing analysis for damages.See Cargill, Inc. v. Monfort of Colorado, Inc.,
479 U.S. 104
,110-11 & nn. 5-6 (1986). As the Court explained in Cargill: [T]he fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one. Thus, because standing[for damages] raises no threat of multiple lawsuits or duplicative recoveries, some of the factors other than antitrust injury that are appropriate to a determina- tion of standing [for damages] are not relevant [to a determination of standing for equitable relief].Id. at 111 n.6 (citation and quotation omitted) (emphasisadded).[16] Thus, plaintiffs may not have to meet all three factorsin the "remoteness" test to maintain an action for antitrustinjunctive relief. Plaintiffs do, however, still have to showantitrust injury--either real or threatened. See id. at 111-13.This requirement "ensures that the harm claimed by the plain-tiff corresponds to the rationale for finding a violation of theantitrust laws in the first place." ARCO v. USA Petroleum Co.,
495 U.S. 328, 342
(1990).[17] An "antitrust injury" is an injury of "the type that theantitrust statute was intended to forestall." AGC, 459 U.S. at540. "The antitrust laws . . . were enacted for the protectionof competition, not competitors." Brunswick Corp. v. PuebloBowl-O-Mat, Inc.,
429 U.S. 477, 488
(1977) (quotation omit-ted). "The requirement that the alleged injury be related toanti-competitive behavior requires, as a corollary, that theinjured party be a participant in the same market as thealleged malefactors." Bhan v. NME Hosps., Inc., 772 F.2d1467, 1470 (9th Cir. 1985). "In other words, the party allegingthe injury must be either a consumer of the alleged violator'sgoods or services or a competitor of the alleged violator in therestrained market." Eagle v. Star-Kist Foods, Inc., 812 F.2d538, 540 (9th Cir. 1987).[18] In their complaint, plaintiffs define the antitrust marketat issue as the market for cigarettes and tobacco products.Plaintiffs are neither consumers nor competitors in that mar-ket. They are not, therefore, "participants in the same market"as defendants, and they have thus not suffered "antitrustinjury." See Bhan, 772 F.2d at 1470; see also Steamfitters,171 F.3d at 926.Plaintiffs' reliance on McCready to argue that "there is no`consumer' or market participant requirement, " is misplaced.The plaintiff in McCready filed an antitrust action againstBlue Shield, claiming that Blue Shield's "practice of refusingto reimburse subscribers for psychotherapy performed by psy-chologists, while providing reimbursement for comparabletreatment by psychiatrists, was in furtherance of an unlawfulconspiracy to restrain competition in the psychotherapymarket."
457 U.S. at 467
. The Court held that the plaintiff, asa subscriber who had employed the services of a psychologistand thus a consumer of psychotherapy services, had standingto maintain the antitrust action. See
457 U.S. at 480
-81, 484-85. The Court did not hold that there is no "consumer" or"market participant" requirement.The present case is distinguishable from McCready in sev-eral aspects. First, the plaintiff in McCready was a consumerin the relevant market of "psychotherapeutic services." See
457 U.S. at 483
. In contrast, it is undisputed that plaintiffs inthe present case are neither "consumers" nor "competitors" inthe relevant market of cigarettes and tobacco products.Second, the Court has explained that the broad language itused in McCready6 was simply a paraphrase of the antitrustlaws and "added nothing to the even broader language that thestatute itself contains." See AGC,
459 U.S. at 529
& n.19. Inso explaining, the Court noted that the actual plaintiff inMcCready was directly harmed by the defendants' unlawfulconduct. See id.In contrast, plaintiffs' own argument in the present casereveals that they were not directly harmed by defendants'allegedly unlawful conduct, but rather that any harm they suf-fered is derivative of the harm suffered by smokers.7 As theThird Circuit stated: It is true that, drawing on the language from McCready, we have sometimes expressed the injury requirement in terms of the harm being "inextricably intertwined" with the defendant's wrongdoing. The simple invocation of this phrase, however, will not allow a plaintiff to avoid the fundamental require- ment for antitrust standing that he or she have suf- fered an injury of the type--almost exclusively suffered by consumers or competitors--that the anti- trust laws were intended to prevent.Steamfitters, 171 F.3d at 926 n.8 (citations omitted).[19] Plaintiffs have failed to allege an injury of the typethat the antitrust laws were intended to prevent. Plaintiffs areneither consumers nor competitors in the relevant market ofcigarettes and tobacco products. To the extent they have suf-fered injury, their claims are entirely derivative of the injuriessuffered by smokers. Their injuries are not of a nature toestablish standing for equitable relief under the antitrust laws.2. RICO[20] "[I]njunctive relief is not available to a private partyin a civil RICO action." Religious Tech. Ctr. v. Wollersheim,796 F.2d 1076, 1084 (9th Cir. 1986).C. State Law Claims1. Unfair Trade Practices Act[21] The UTPA grants standing to "any person who suffersany ascertainable loss of money" resulting from a violation ofthe law. Or. Rev. Stat. S 646.638(1). Damages predicatedupon "personal injury" are not recoverable under the UTPA.See Gross-Haentjens v. Leckenby, 589 P.2d 1209, 1211 (Or.Ct. App. 1979) (holding the UTPA does not cover personalinjuries). Plaintiffs' damages--expenses to treat smokers'personal injuries--are clearly predicated upon "personalinjury" and are therefore unrecoverable under the UTPA.[22] Moreover, "the UTPA is to be construed consistentlywith its consumer protective purposes." Cullen v. InvestmentStrategies, Inc., 911 P.2d 936, 941 (Or. Ct. App. 1996); seealso Raudebaugh v. Action Pest Control, 650 P.2d 1006,1008-09 (Or. Ct. App. 1982) (noting that the purpose ofUTPA is to "provide a viable remedy for consumers " and if"there is an ascertainable loss to a consumer, that consumerhas a cause of action" under UTPA). This emphasis on directprotection of consumers suggests that the UTPA, like theother statutes that we have discussed, is not intended to pro-vide a cause of action to a non-consumer that is wholly deriv-ative of injury to consumers.2. Fraud[23] The Oregon Supreme Court recognizes the prevailingrule "that a plaintiff may not recover for economic loss result-ing from negligent infliction of bodily harm to a thirdperson," Ore-Ida Foods, Inc. v. Indian Head Cattle Co., 627P.2d 469, 473 (Or. 1981), and has extended this rule to lossresulting from fraudulent misrepresentation. See Oksenholt v.Lederle Lab., 656 P.2d 293, 299 (Or. 1982) (holding thatclaim for indemnity is a claim for recovery for economic lossthat results from physical harm to a third person and is barredin both a negligence and fraudulent misrepresentation actionunder Ore-Ida).[24] In the present case, plaintiffs seek only to recovermedical costs paid on behalf of their beneficiaries. This is aclassic claim for indemnity, with plaintiffs attempting torecover for the economic loss they have suffered as a resultof the physical harm suffered by third parties--the smokers.Under Ore-Ida and Oksenholt, this claim for damages isbarred.[25] Moreover, for the same reasons that proximate causedid not exist for plaintiffs' RICO and antitrust claims, proxi-mate cause is lacking for their fraud claim. See Oskenholt,656 P.2d at 299 ("Damages properly recoverable in an actionfor intentional misrepresentation are those which are a directand necessary result of defendant's acts or omissions.").3. Unjust Enrichment[26] Under Oregon law, to state a cause of action for unjustenrichment, plaintiffs must show that they conferred a"benefit" on defendants and that it would be unjust for defen-dants to retain that benefit. See L.S. Henriksen Constr., Inc. v.Shea, 961 P.2d 295, 296-97 (Or. Ct. App. 1998).[27] Plaintiffs allege that they conferred a "benefit" ondefendants by paying the medical bills of the smokers. Plain-tiffs do not, however, allege that defendants had any legalobligation to pay the medical expenses of the smokers. With-out a legal obligation on the part of defendants to pay, thepayment by plaintiffs did not "benefit" defendants.[28] Moreover, because plaintiffs had an independent obli-gation to pay the smokers' medical expenses, they cannotmaintain an action for unjust enrichment against defendantsjust because defendants were incidentally benefitted. SeeRestatement of Restitution S 106 (1936) ("A person who,incidentally to the performance of his own duty . . . has con-ferred a benefit upon another, is not thereby entitled tocontribution.").4. Civil Conspiracy[29] Plaintiffs' claim for civil conspiracy is entirely depen-dent on their underlying claims for fraud and violations ofUTPA. Because these underlying claims fail, plaintiffs' civilconspiracy claim must also fail.IV.As the district court stated: However compelling [plaintiffs'] charges may be, there are very sound judicial policy reasons for limit- ing legal actions to those parties most directly injured by the harmful conduct. These policies are not new and have lengthy historical roots in our jurisprudence. To allow plaintiffs to maintain actions that are entirely dependent upon the harm suffered by others threatens chaos for the judicial system, especially where others may (and have) filed their own actions and are capable of recovering a full range of damages, including the medical costs sought here.17 F. Supp. 2d at 1183.The district court's grant of judgment on the pleadings infavor of defendants is AFFIRMED. the end
___________________________FOOTNOTES 2 The district court held that plaintiffs also lacked standing under OregonRICO because they failed to allege that defendants have been convictedof mail or wire fraud as required under Oregon RICO. 17 F. Supp. 2d at1179 (citing Or. Rev. Stat. S 166.725(7)(a)(A)). Plaintiffs have notappealed the district court's dismissal of their Oregon RICO claim. Thisclaim is therefore waived.3 Plaintiffs have not appealed the dismissal of their claim for breach ofan assumed duty. This claim is therefore waived.4 Plaintiffs assert claims under both federal and state antitrust laws. TheOregon antitrust statutes are almost identical to the federal antitrust stat-utes. Compare 15 U.S.C. SS 1, 2 with Or. Rev. Stat. SS 646.725, 646.730.In fact, Oregon courts look to federal antitrust decisions for "persuasive"guidance in interpreting the state antitrust laws. See Willamete DentalGroup, P.C. v. Oregon Dental Serv. Corp., 882 P.2d 637, 640 (Or. Ct.App. 1994) (citing Or. Rev. Stat. S 646.715(2)). The district court and theparties have treated the state and federal antitrust claims as one and thesame for purposes of standing analysis. We do the same.5 Plaintiffs' argument that their standing to bring RICO and antitrustactions is "confirmed" by state and common law rules governing proxi-mate cause, as well as trust law, ignores the test set out by the SupremeCourt for analyzing standing in RICO and antitrust cases. This argumentalso ignores the fact that there is an alternative route for the trusts torecover the damages alleged in the present action--via subrogation in anon-RICO, non-antitrust action. See Laborers Local 17, 172 F.3d at 235.6 In McCready, the Court stated: "As we have recognized, `[t]he statutedoes not confine its protection to consumers, or to purchasers, or to com-petitors, or to sellers. . . . The Act is comprehensive in its terms and cover-age, protecting all who are made victims of the forbidden practices bywhomever they may be perpetrated."
457 U.S. at 472
.7 Plaintiffs argue that their injuries are "inextricably intertwined withthat of market participants (smokers deprived of a choice of a safer prod-uct) in that the Trust paid the bills resulting from the restraint."