Crouch
v. Crompton Corp., 2004 NCBC 7
Morris
v. Visa U.S.A. Inc., 2004 NCBC 7
|
STATE OF NORTH CAROLINA NEW HANOVER COUNTY |
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION |
|
AULEY M. CROUCH, III, on
behalf of himself and all others similarly situated, Plaintiff,
v. CROMPTON CORPORATION,
CROMPTON MANUFACTURING COMPANY, INC., formerly named in North Carolina as
Uniroyal Chemical Company, Inc., UNIROYAL CHEMICAL COMPANY LIMITED, FLEXSYS
NV, FLEXSYS AMERICA LIMITED PARTNERSHIP OF NORTH CAROLINA, BAYER AG, BAYER
CORPORATION, AND RHEIN CHEMIE RHEINAU GMBH, Defendants. |
02 CVS 4375 |
|
STATE
OF NORTH CAROLINA COUNTY
OF HARNETT |
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION |
|
TIMOTHY
J. MORRIS, on behalf of himself and all others similarly situated, Plaintiff, v. VISA
U.S.A. INC. and MASTERCARD INTERNATIONAL, INC., Defendants. |
03 CVS 2514 |
{1} The
above captioned cases are before the Court on motions to dismiss pursuant to
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. They are treated together because they both
present the same legal issues. The
first issue is whether indirect purchasers have standing under N.C.G.S. § 75-16
to sue for violations of the state antitrust laws. The Court holds, as it has before, that the decision of the Court
of Appeals in Hyde v. Abbott Laboratories, Inc., 123 N.C. App. 572, 473
S.E.2d 680 (1996), disc. rev. denied, 344 N.C. 734, 478 S.E.2d 5 (1996),
is controlling, and indirect purchasers do have standing to sue under North
Carolina’s antitrust laws. If indirect
purchasers have standing, the question becomes whether there are applicable
limitations on that standing. The Court
holds that indirect purchaser standing is not limitless; that there are
standing requirements that apply to indirect purchasers. Application of those standards to the
pleadings in each of these cases results in dismissal.
Lea, Rhine & Associates, PLLC by Christopher A.
Chleborowicz and Joel R. Rhine; Lerach Coughlin Stoia Geller Rudman &
Robbins LLP by Robert J. Gralewski, Jr. and Bonny E. Sweeney; The David Danis
Law Firm by Alexander E. Barnett, Michael J. Flannery and James J. Rosemergy
for Plaintiff Crouch.
Moore & Van Allen, PLLC by Joseph W. Eason;
O’Melveny & Myers, LLP by Benjamin G. Bradshaw, Richard
G. Parker and Ian Simmons for
Defendants Crompton Corporation, Crompton Manufacturing Company, Inc. and
Uniroyal Chemical Company Limited.
Womble
Carlyle Sandridge & Rice by Pressley M. Millen; Gibson, Dunn &
Crutcher, LLP by D. Jarrett Arp, James Slear and Daniel G. Swanson; Covington & Burling by Michael J.
Fanelli, William D. Iverson and Vijay Shanker for Defendants Flexsys America,
LP, Flexsys America Limited Partnership of North Carolina, and Flexsys NV.
Helms, Mulliss & Wicker, PLLC by Henry L. Kitchin,
Jr. and Bradley R. Kutrow; Jones Day by Thomas Demitrack, William V. O’Reilly
and J. Andrew Read for Defendants Bayer Corporation and Rhein Chemie
Corporation.
Hardison & Leone, L.L.P. by Kenneth L.
Hardison, Elizabeth A. Leone and Joseph
W. Osman; Susman Godfrey, L.L.P.
by Mark A. Evetts, Drew D. Hansen and Neal S. Manne; Markun Zusman Compton
& David, L.L.P. by Kevin Eng, David S. Markun, Edward S. Zusman; Friedman
& Shube by Noah Shube for Plaintiff Morris.
Ellis &
Winters, LLP by Richard W. Ellis, Stephen C.
Keadey, and Matthew W. Sawchak; Robinson, Bradshaw & Hinson, PA by
Everett J. Bowman, Mark W. Merritt and John R. Wester; Heller Ehrman White
& McAuliffe LLP by Stephen V. Bomse, David M. Goldstein and Rachel M.
Jones; Arnold & Porter LLP by Robert C. Mason for Defendant Visa U.S.A.
Inc.
Womble
Carlyle Sandridge & Rice by Pressley M. Millen; Paul Weiss Rifkind Wharton & Garrison, L.L.P. by Gary R.
Carney, Patricia C. Crowley and Kenneth A. Gallo for Defendant MasterCard
International, Inc.
I.
FACTUAL BACKGROUND IN CROUCH
{2} Plaintiff Crouch is an individual residing in New Hanover County, North Carolina. Plaintiff purchased four B.F. Goodrich tires (Advantage GT model # P195-70R14 90SM+S) for his automobile on October 19, 2002 from Sam’s Club of Wilmington. Plaintiff brings this claim individually and on behalf of all other persons who purchased tires, other than for resale, that were manufactured using the rubber-processing chemicals sold by Defendants since 1994.[1]
{3} Defendant Crompton Corporation (“Crompton”) is a Connecticut corporation with its principal place of business in Greenwich, Connecticut. Crompton is a global marketer and manufacturer of specialty chemicals, polymer products and processing equipment, which includes chemicals used for the processing of rubber and tires. Crompton’s actions have affected commerce within the State of North Carolina.
{4} Defendant Uniroyal Chemical Company Limited (“Uniroyal”) is a Delaware corporation with its principal place of business in Akron, Ohio. It is a wholly-owned subsidiary of Crompton and is responsible either independently or jointly with Crompton Manufacturing Company, Inc. for the manufacture, sale and/or distribution of rubber-processing products as part of its ordinary and customary business. Uniroyal manufactures several rubber-processing products including specialty products for tires and industrial rubber goods. Uniroyal’s actions have affected commerce within the State of North Carolina.
{5} Defendant Crompton Manufacturing Company, Inc., formerly legally named in North Carolina as Uniroyal Chemical Company, Inc. (“Crompton Manufacturing”), is a New Jersey corporation with its principal place of business in Greenwich, Connecticut. It is a wholly-owned subsidiary of Crompton and is responsible either independently or jointly with Uniroyal for the manufacture, sale and/or distribution of rubber-processing products as part of its ordinary and customary business. Crompton Manufacturing’s rubber-processing products include specialty products for tires and industrial rubber goods. Crompton Manufacturing’s actions have affected commerce within the State of North Carolina.
{6} Defendant Flexsys NV is a joint venture between Solutia, a United States company, and Akzo Nobel, a Netherlands company. Flexsys NV has its headquarters in Woluwe, Belgium.
{7} Defendant Flexsys America LP (“Flexsys”) is the United States subsidiary of Flexsys NV. Flexsys is a Delaware corporation with its headquarters located in Akron, Ohio. Flexsys NV is the world’s leading supplier of chemicals to the rubber industry. Flexsys’ actions have affected commerce within the State of North Carolina.
{8} Defendant Flexsys America Limited Partnership of North Carolina (“Flexsys NC”), the legal name in North Carolina of Flexsys America LP, is the United States subsidiary of Flexsys NV. Flexsys NC is a Delaware corporation with its headquarters located in Akron, Ohio.
{9} Defendant Bayer AG is a corporation organized and existing under the law of the Federal Republic of Germany and maintains its principal place of business in Leverkusen, Federal Republic of Germany. Bayer AG is the parent company of Bayer Corporation, the wholly-owned subsidiary that sells and markets rubber-processing chemicals in the United States.
{10} Defendant Bayer Corporation (“Bayer”) is a wholly-owned subsidiary of Bayer AG. Bayer has its principal place of business in Pittsburg, Pennsylvania, and is incorporated under the laws of Pennsylvania. Bayer develops, manufactures, sells and distributes a variety of pharmaceutical and chemical products, including rubber-processing products.
{11} Bayer develops, manufactures, sells and distributes its rubber-processing products through its Fibers, Additives and Rubbers Division. The Division is headquartered in Akron, Ohio. The Division manufactures rubber-processing chemical products which have a variety of differing roles in rubber-processing.
{12} Defendant Rhein Chemie Rheinau GmbH (“Rhein GmbH”) is a business organized under the laws of the Federal Republic of Germany with its principal place of business located in Mannheim, Federal Republic of Germany. Rhein GmbH, a subsidiary or affiliate of Bayer AG, manufactures, sells and distributes the relevant rubber-processing chemicals throughout the global market, including the United States.
{13} Defendant Rhein Chemie Corporation (“Rhein”), a New Jersey corporation and a wholly-owned subsidiary and/or affiliate of Rhein GmbH, is responsible for the manufacture, sale and/or distribution of the relevant rubber-processing products throughout the United States, including North Carolina.
{14} On September 26, 2002, inspectors from the European Commission’s Competition Division, assisted by officials from the Commission’s member states, carried out unannounced inspections at defendants’ European offices. According to a memorandum issued by the Commission on October 10, 2002, the stated purpose of the inspections was to “ascertain whether there is evidence of a cartel agreement and related illegal practices concerning price fixing for rubber chemicals.” (Am. Compl. ¶ 43.) On October 14, 2002, the Associated Press reported that Crompton, Bayer and Flexsys made press releases verifying that their respective companies were under investigation for alleged price collusion in rubber chemicals both by U.S. and European Union authorities.[2] On May 27, 2004, Crompton pled guilty to participating in a conspiracy to suppress and eliminate competition by maintaining and increasing the price of certain rubber chemicals sold in the United States and elsewhere during the period between July 1995 to 2001. The U.S. federal court imposed a fine of $50 million. On May 28, 2004, Crompton pled guilty to one count of conspiring to lessen competition unduly in the sale and marketing of certain rubber chemicals in Canada. The Canadian federal court imposed a sentence requiring Crompton to pay a fine of $7 million. On July 14, 2004, Bayer pled guilty to charges filed by the U.S. Department of Justice in Federal District Court in the Northern District of California and agreed to a $66 million fine for participating in an international conspiracy to fix prices in the rubber chemicals market.
{15} Plaintiff filed this action on November 5, 2002, only thirty days after the European investigation was announced, alleging violations of North Carolina’s Unfair and Deceptive Trade Practices Act (“UDTPA”), including N.C.G.S. §§ 75-1.1, 75-2, 75-5, 75-16, 75-16.1. Plaintiff alleges that defendants “entered into an agreement, arrangement, contract, combination, conspiracy and/or understanding that was intended to and which did have the effect of fixing, raising, stabilizing and maintaining the price for the relevant rubber-processing chemicals.” (Am. Compl. ¶ 40.) Plaintiff alleges that defendants’ “supracompetitive pricing” was reflected in the prices of automobile tires manufactured using these rubber-processing chemicals. (Am. Compl. ¶ 41.) Therefore, plaintiff alleges that consumers who purchased these automobile tires, not directly from defendants but rather from tire retailers, paid more than they would have in the absence of the alleged anticompetitive agreement. (Am. Compl. ¶ 55.) Similar suits have been filed in other jurisdictions that recognize indirect purchaser standing. Plaintiff seeks to represent only persons who purchased tires at retail.
{16} Direct purchasers have filed a nationwide class action lawsuit seeking to recover the alleged overcharge that is the subject of the state litigation. In re Rubber Chemicals Antitrust Litig., Master Docket No. C-03-1496 (N.D. Cal. (Judge Martin J. Jenkins)).
{17} Defendants have responded by moving to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted based upon plaintiff’s lack of standing to sue under North Carolina’s antitrust laws.
{18} The case was assigned to this Court by Order
dated April 19, 2004.
II.
Factual Background in Morris
{19} Plaintiff, Timothy Morris, is a resident of North Carolina. Plaintiff brings this contemplated class action on behalf of all North Carolina consumers who purchased goods from merchants who accepted Visa and/or MasterCard credit cards and debit cards during the four years preceding the filing of the Complaint.
{20} Defendant Visa U.S.A. Inc. (“Visa”) is a Delaware corporation. Visa’s principal place of business is San Francisco, California. Visa transacts business within the State of North Carolina. At all relevant times, Visa was a national bankcard association whose members included more than 6,000 banks.
{21} Defendant MasterCard International, Inc. (“MasterCard”) is a Delaware corporation. MasterCard’s principal place of business is Purchase, New York. MasterCard transacts business within the State of North Carolina. At all relevant times, MasterCard was a national bankcard association whose members included more than 6,000 banks.
{22} In October 1996, Wal-Mart Stores, The Limited, Sears Roebuck, Safeway, Circuit City, the International Mass Retail Association, the National Retail Federation, the Food Marketing Institute, Bernie’s Army-Navy Store, Auto-Lab of Farmington Hills, Burlington Coat Factory Warehouse, Sportstop, Payless Shoesource Shoes, Etc., the Coffee Stop, UCC Kwik Doc, Computer Supplies Unlimited, Denture Specialist, Inc./Geneva White D.M.D., Shark 3 Audio, 53, Inc., and Scrub Shop collectively filed a claim challenging the “Honor All Cards” rules of Visa and MasterCard that require all merchants accepting Visa and MasterCard credit cards to also accept their debit cards. The plaintiffs alleged that this requirement was a tying arrangement violating section 1 of the Sherman Antitrust Act, 15 U.S.C. §1. Plaintiffs further asserted that Visa and MasterCard attempted and conspired to monopolize the debit card market in violation of section 2 of the Sherman Act, 15 U.S.C. §2. Plaintiffs alleged that the defendants’ actions resulted in excessive fees to merchants for the debit card processing services. See In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. 68 (E.D.N.Y. 2000) aff’d, 280 F.3d 124 (2d Cir. 2001), cert. denied, 536 U.S. 917 (2002).
{23} In February 2000, a plaintiff class of approximately four million merchants who have accepted Visa and/or MasterCard credit cards and therefore were required to accept VisaCheck and/or MasterMoney debit cards under the “Honor All Cards” rule was certified. Id. Oral arguments on motions for summary judgment were heard on January 10, 2003. On April 1, 2003, the federal court granted the merchants’ motion for summary judgment in part and denied it in part. The defendants’ motions for summary judgment were denied in their entirety. In addition, MasterCard’s motion for a severance was denied. See In re Visa Check/MasterMoney Antitrust Litig., 2003 U.S. Dist. LEXIS 4965, at *27 (E.D.N.Y. Apr. 1, 2003).
{24} On the day that opening statements were to occur, April 28, 2003, MasterCard agreed to settle with the plaintiff class. In re Visa Check/ MasterMoney Antitrust Litig., 297 F. Supp. 2d 503, 508 (E.D.N.Y. 2003). Visa agreed to settlement two days later, April 30, 2003. On December 19, 2003, the federal court issued an order providing final approval of the settlements. Pursuant to the settlement, merchants who accept Visa and MasterCard credit cards were free to reject Visa and MasterCard debit cards. In addition, Visa and MasterCard will pay more than $3 billion into a settlement fund to be distributed to the merchant class. Id. at 506-08.
{25} Plaintiff filed this action on December 31, 2003, alleging violations of North Carolina’s Unfair and Deceptive Trade Practices Act, N.C.G.S. § 75. Plaintiff asserts consumer antitrust claims that attack the manner in which the “Honor All Cards” rules of the MasterCard and Visa national payment systems are applied to merchants across the country. Plaintiff’s claim in this action is founded upon the same alleged “tying” conduct by Visa and MasterCard that was at issue in the federal merchant class antitrust action. (Compare Compl. ¶¶ 2-6, 27(m), 28-57, with In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. at 71-73.) Plaintiff alleges that consumers paid higher prices for goods sold by the merchants bringing the claim in the federal action. Plaintiff alleges that because merchants were “compelled to pay supracompetitive prices,” merchants, in turn, passed along their extra costs to consumers by raising the price of goods. (Compl. ¶¶ 57-58.)
{26} Defendants have responded by moving to dismiss under Rule 12(b)(6) based on two grounds: first, that plaintiff lacks standing to sue under North Carolina’s antitrust laws; and second, that plaintiff seeks relief that would violate the Commerce Clause of the United States Constitution, which forbids states from regulating interstate commerce that requires uniform national regulation.
{27} The case was assigned to this Court by Order dated May 11, 2004.
III.
LEGAL STANDARD
{28} When ruling on a motion to dismiss under Rule 12(b)(6), the court must determine “whether, as a matter of law, the allegations of the complaint . . . are sufficient to state a claim upon which relief may be granted.” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). In ruling on a motion to dismiss, the court must treat the allegations in the complaint as true. See Hyde v. Abbott Labs., Inc., 123 N.C. App. 572, 575, 473 S.E.2d 680, 682 (1996). The court must construe the complaint liberally and must not dismiss the complaint unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. See id.
IV.
{29} An
understanding of the issues in these two cases necessarily begins with
examination of the standing requirements under federal antitrust law. That examination begins with the study of
two cases, Hanover Shoe Co. v. United Shoe Machinery Corp., 392 U.S. 481
(1968), and Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). The interrelationship of those two cases is
best described by William Landes and Richard Posner in their seminal article: Should
Indirect Purchasers Have Standing to Sue Under the Antitrust Laws? An Economic
Analysis of the Rule of Illinois Brick.
46 U. Chi. L.
Rev. 602, 602-03 (1979) (footnotes omitted).
{30} The rule
governing indirect purchaser standing in federal antitrust cases has not
changed since Illinois Brick.
The fact that there has been no congressional or judicial repeal of the
rule indicates that the policy behind it has proven effective. That policy holds that the direct purchaser
suit is on balance a more effective instrument for enforcement of the antitrust
rule prohibiting price fixing than the indirect purchaser suit.[3] Under the federal scheme, where avoidance of
a double recovery is favored, the federal government has chosen the direct
purchaser suit as the most effective means of enforcing the antitrust laws,
particularly in price fixing cases.
{31} The
choice made in the federal system had the effect of preventing indirect
purchasers who were actually injured by a price fixing scheme from recovering
their damages. It was a policy decision
that was not well received in some states.
There were rational arguments that the decision was wrong from a policy
standpoint. Those arguments were made
effectively by Justice Brennan in a well-reasoned dissent in Illinois Brick. A minority of states chose to alleviate the
problems created for indirect purchasers by Illinois Brick by either
passing statutes (Illinois Brick repealer statutes) or interpreting
their existing statutes as permitting indirect purchaser standing under the
state antitrust law based upon some differentiation in language between the
state and federal statutes. For
example, the District of Columbia passed a statute[4]
which was modeled directly on Justice Brennan’s dissent in Illinois Brick. It specifically provides for indirect
purchaser standing and it adopts the “target area” test for standing mentioned
by Justice Brennan in his dissent.[5] It is a model for states desiring to create
a clear statutory framework for indirect purchaser cases.
{32} The
recognition of indirect purchaser standing by this minority of states created
an unusual situation. In federal price
fixing cases, direct purchasers were permitted to recover the artificially
inflated price and treble damages even though they may have passed on the
artificially inflated price to someone else in the distribution chain. They receive a windfall in some instances;
but that windfall is predicated upon the policies that the federal scheme was
(a) the most effective deterrent, (b) eliminated double recovery, (c)
eliminated extraordinarily difficult damage proof[6]
and (d) was economically rational.[7] When the minority states reacted by
repealing Illinois Brick, they created a situation which (a) restored
the ability of indirect purchasers to recover for injuries actually sustained
as a result of anticompetitive behavior, (b) added a redundant and less
effective deterrent, (c) condoned double recovery (trebled) against violators
and (d) created the potential for extremely difficult damage proof issues.
{33} Not
surprisingly, the state efforts to restore indirect purchasers’ ability to
recover for injuries sustained as a result of antitrust violations were
challenged, primarily on the ground that state statutes were preempted by the
federal scheme. That challenge was
directly rejected by the United States Supreme Court in California v. ARC
America Corp., 490 U.S. 93 (1989).
The Supreme Court held that states may allow an indirect purchaser to
sue under state antitrust laws.
When viewed properly, Illinois Brick
was a decision construing the federal antitrust laws, not a decision defining
the interrelationship between the federal and state antitrust laws. The congressional purposes on which Illinois
Brick was based provide no support for a finding that state indirect
purchaser statutes are pre-empted by federal law.
California v. ARC Am. Corp., 490 U.S. 93, 105-06 (1989).
This Court has previously noted the problems created
by this dual enforcement in Adams v. Aventis, S.A., 2003 NCBC 7, at ¶ 23
(No. 01CVS2119, Craven County Super. Ct. August 26, 2003)(Tennille, J.). The Court stated:
In 1995, the Section of
Antitrust Law of the American Bar Association published a Report of the
Indirect Purchaser Task Force outlining proposed legislative changes to address
the “indirect purchaser problem.” Report
of the Indirect Purchaser Task Force: Section of Antitrust Law American Bar
Association, 63 Antitrust
L.J. 993 (Spring 1995). The report
stated that the results of state Illinois Brick repealer laws are that:
(1) The full amount of the overcharge,
trebled, can be recovered by (i) direct purchasers who sue under federal law;
(ii) the customers of those direct purchasers who sue under state law; and
(iii) under most state Illinois Brick repealers, by indirect purchasers
at every other stage of distribution down the line.
(2) The overcharge that an indirect
purchaser can have trebled may be a multiple of the overcharge to the direct
purchaser because indirect purchasers can claim that their seller's markups on
the original overcharge are also inflated because of that overcharge.
(3) The direct purchaser cases can be
prosecuted in federal court and the indirect purchaser cases can be prosecuted
in state court(s). Indeed, the Supreme
Court seemed to encourage that kind of multiple litigation in ARC America
by broadly hinting to federal courts that they utilize pendent jurisdiction
principles for state law indirect purchaser claims.
(4) The results in the direct and indirect
purchaser cases need not be consistent.
The overcharge which is treated as the direct purchaser's in the federal
court can be treated as the indirect purchaser's in the state court. In fact, if indirect purchaser cases are
brought in several state courts, there may be inconsistencies in those
decisions.
Thus, defendants in horizontal price-fixing cases face not only the burden and expense of multiple treble-damage lawsuits, but also enormous potential liability—not just three, but multiples of three times the overcharge, if a lay jury finds liability. Few companies can afford to “roll the dice” on a jury verdict when the exposure is that high, no matter how innocent they believe they are.
Additionally, the current law
turns judicial economy—the principal reason for the decisions in Hanover
Shoe and Illinois Brick—on its head. Federal and state judicial resources are finite and
precious. It makes little sense to
permit, much less encourage, multiple litigation in federal and state
courts. It makes even less sense to
permit inconsistent judgments as to who bore the overcharge.
2003 NCBC 7, at ¶
23.
{34} Thus,
states may provide indirect purchaser recovery based upon state antitrust laws
even though (1) the result may and almost assuredly will be a double recovery
and (2) a preferable deterrent exists under federal law. It is clear then that the primary rational
for enforcement of the state antitrust laws is to provide a recovery for
indirect purchasers actually injured by antitrust violations. That goal should be kept in mind when
interpreting and applying the statute.
{35} The
inquiry into standing in federal antitrust cases does not end with Hanover
Shoe and Illinois Brick.
Those cases dealt only with apportionment of damages in price fixing
situations.
{36} The
Supreme Court specifically noted that its decision was not directed to
standing. It said:
Because we find Hanover Shoe dispositive here, we do
not address the standing issue, except to note, as did the Court of Appeals
below, that the question of which persons have been injured by an illegal
overcharge for purposes of § 4 is analytically distinct from the question of
which persons have sustained injuries too remote to give them standing to sue
for damages under § 4.
Illinois Brick,
431 U.S. at 728 n.7 (citation omitted).
{37} Since Illinois
Brick, the federal courts have addressed standing in other situations
involving indirect purchasers or persons indirectly injured by alleged
antitrust activity. The leading federal case on standing in situations not
involving price fixing is Associated General Contractors of California, Inc.
v. California State Counsel of Carpenters, 459 U.S. 519 (1983) (“AGC”).[8] In that case, the Unions sought damages
under section 4 of the Clayton Act. [9] They alleged that the employer group
defendant had coerced some of its members to enter into business relationships
with nonunion contractors and subcontractors, thus adversely affecting the
trade of the unionized firms and consequently the unions themselves.
{38} In holding that the Union was not a person injured by reason of a violation of the antitrust laws within the meaning of section 4 of the Clayton Act, the Supreme Court adopted a five factor standing test which it derived in part by looking at the standard applied in common law damage actions when the Clayton Act’s predecessor was originally passed in 1890.
{39} Significantly,
the Supreme Court rejected the argument made by both plaintiffs in these cases
that because the language in the statutes (section 4 of the Clayton Act and
Chapter 75) is broad and unrestricted, it covers any and every arguable injury
flowing from an antitrust violation.[10] In rejecting a limitless interpretation of
the language the Supreme Court said:
A
literal reading of the statute is broad enough to encompass every harm that can
be attributed directly or indirectly to the consequences of an antitrust
violation. Some of our prior cases have
paraphrased the statute in an equally expansive way. But before we hold that the statute is as broad as its words
suggest, we must consider whether Congress intended such an open-ended meaning.
AGC, 459
U.S. at 530 (footnote omitted).
{40} The Court then went on to hold:
As
this Court has observed, the lower federal courts have been “virtually
unanimous in concluding that Congress did not intend the antitrust laws to
provide a remedy in damages for all injuries that might conceivably be traced
to an antitrust violation.” Hawaii v. Standard Oil Co., 405 U.S. 251,
263, n. 14 (1972). Just last
Term we stated:
An antitrust violation may be expected to cause
ripples of harm to flow through the Nation’s economy; but “despite the broad
wording of § 4 there is a point beyond which the wrongdoer should not be held
liable.” [Illinois Brick Co. v.
Illinois, 431 U.S.], at 760 (BRENNAN, J. dissenting). It is reasonable to assume that Congress did
not intend to allow every person tangentially affected by an antitrust
violation to maintain an action to recover threefold damages for the injury to
his business or property. Blue
Shield of Virginia v. McCready, 457 U.S. 465, 476-477 (1982).
Id. at
534-35.
{41} The
Supreme Court found that there was no single bright line test that could be
applied in determining standing.
Rather, it required federal judges to evaluate the plaintiff’s harm, the
alleged wrongdoing by the defendant and the relationship between the two
according to five factors. The five
factors to be used by federal courts in determining standing as set forth in AGC
are: (1) whether the plaintiff is a consumer or competitor in the allegedly
restrained market, (2) whether the injury alleged is direct and a first hand
product of the restraint alleged, (3) whether there exists more directly
injured parties with motivation to sue, (4) whether the damage claims are
speculative and (5) whether the claims (a) risk duplicative recovery and (b)
would require a complex apportionment of damages.
{42} The
holding in AGC has been followed consistently in the federal
courts. See, Pocahontas
Supreme Coal Co. v. Bethlehem Steel Corp., 828 F.2d 211, 219 (4th Cir.
1987) (affirming dismissal because “though there obviously is a causal relation
between the conduct and harm as alleged, it is remote rather than direct”); Eagle
v. Star-Kist Foods, Inc., 812 F.2d 538, 539‑43 (9th Cir. 1987)
(affirming dismissal because plaintiffs “were neither consumers nor competitors
in the relevant market,” who alleged injuries derivative of others who also had
sued defendants); Henke Enters., Inc. v. Hy‑Vee Food Stores, Inc.,
749 F.2d 488, 489‑90 (8th Cir. 1984) (affirming dismissal because
plaintiff “was neither a competitor, participant, nor consumer within the
[allegedly restrained] market” and its alleged injury was “an incidental by‑product
of the conspirators’ claimed anticompetitive action”). Viewed in the broader context of standing
enunciated in AGC, Illinois Brick appears as a per se
disqualification of indirect purchasers in price fixing cases under application
of factors 2, 3 and 5. Illinois
Brick and AGC are logically consistent.
{43} If Hyde
is correct that the North Carolina statute created indirect purchaser standing
and if the courts of this state are required to interpret our antitrust
statutes consistently with federal law[11],
reconciling Illinois Brick and AGC in this state requires that
factor 3 be modified and that the application of factors 2 and 5 be limited by
the statutory recognition of indirect purchaser claims. The courts of this state may not deny
standing based upon Illinois Brick but must still determine standing
based upon relevant factors.
{44} “Standing
is a necessary prerequisite to a court’s proper exercise of subject matter
jurisdiction.” Neuse River Found.,
Inc. v. Smithfield Foods, Inc., 115 N.C. App. 110, 113, 574 S.E.2d 48, 51
(2002) (quoting Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d
875, 878 (2002)). “The term
[‘standing’] refers to whether a party has a sufficient stake in an otherwise justiciable
controversy so as to properly seek adjudication of the matter.” Neuse River Found., 115 N.C. App. at
114, 574 S.E.2d at 51-52 (quoting Sierra Club v. Morton, 405 U.S. 727,
731-32 (1972)). Standing consists of
three elements:
(1) “injury in fact” -- an invasion of a legally
protected interest that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Neuse
River Found., 155 N.C. App. at 114,
574 S.E.2d at 52 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)) (emphasis added).
“The gist of standing is whether there is a
justiciable controversy being litigated among adverse parties with substantial
interest affected so as to bring forth a clear articulation of the issues
before the court.” Street v. Smart
Corp., 157 N.C. App. 303, 305-06, 578 S.E.2d 695, 698 (2003) (quoting
Texfi Industries v. City of Fayetteville, 44 N.C. App. 268, 269-70, 261
S.E.2d 21, 23 (1979), aff’d, 301 N.C. 1, 269 S.E.2d 142 (1980)). “Standing most often turns on whether the
party has alleged ‘injury in fact’ in light of the applicable statutes or
caselaw.” Neuse River Found.,
115 N.C. App. at 114, 574 S.E.2d at 52.
V.
{45} The
federal law and the issue of preemption of state antitrust laws by federal law
being clear, the Court turns to a review of the North Carolina experience in
indirect purchaser cases.
A.
{46} That
review begins with the statute and its history. The only appellate decision interpreting the statute is Hyde
v. Abbott Laboratories, Inc., 123 N.C. App. 572, 473 S.E.2d 680 (1996), disc.
rev. denied, 344 N.C. 734, 478 S.E.2d 5 (1996). As this Court has previously noted:
The
Hyde decision is the only North Carolina appellate decision dealing with
indirect purchaser standing. That case
was settled after the Court of Appeal’s decision and before review by the North
Carolina Supreme Court. In Hyde,
plaintiffs filed a class action against manufacturers of infant formula,
alleging violations of North Carolina’s antitrust laws. 123 N.C. App. at 573, 473 S.E.2d at
681. The purported class consisted of
ultimate consumers who purchased infant formula from parties other than the
manufacturer. Id. at 574, 473
S.E.2d at 681-82. The defendants filed
a motion to dismiss alleging that plaintiffs were indirect purchasers and
therefore lacked standing to sue under N.C.G.S. § 75-16. Id.
The Superior Court granted the motion to dismiss, and plaintiffs
appealed. Id.
The Court of Appeals reversed the Superior Court and found that under North Carolina’s antitrust statute, an indirect purchaser may sue a manufacturer for antitrust violations. The Court of Appeals based this finding upon a review of the plain language of N.C.G.S. § 75-16. North Carolina’s antitrust statute provides:
If any person shall be injured or the business of any person, firm or corporation shall be broken up, destroyed, or injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in favor of the plaintiff and against the defendant for treble the amount fixed by the verdict. N.C.G.S. § 75-16 (1999).
The current version of N.C.G.S. § 75-16 was amended in
1969. Prior to the amendment, the first
sentence of the provision began: “If
the business of any person, firm, or corporation shall be broken up . . .
.” 1913 N.C. Sess. L. 66, 70. The Hyde court found it significant
that, in amending the statute, the legislature decided to add the phrase “if any
person shall be injured” to the beginning of the provision. 123 N.C. App. at 578, 473 S.E.2d at
684. The court found that this
evidenced an intent to expand the class of persons with standing to sue under
Chapter 75, and thus provide a recovery “for all consumers,” including indirect
purchasers. Id. at 577-78, 473
S.E.2d at 684. A review of the
legislative history also leads to the conclusion that the General Assembly
intended to create indirect purchaser standing to sue under the state antitrust
laws when it amended the statute. There
is simply no logical reason for the amendment other than the creation of
indirect purchaser standing.
In holding that indirect purchasers have standing to
sue under North Carolina antitrust law, the Court of Appeals specifically
declined to interpret the statute consistent with federal antitrust law. As originally enacted in 1913, the North
Carolina antitrust statute was modeled after federal antitrust law, codified as
Section 7 of the Sherman Act. See An
Act to Declare Illegal Trusts and Combinations in Restraint of Trade, Ch. 41, §
14, 1913 Sess. Laws 66. Section 7 of
the Sherman Act was recodified as Section 4 of the Clayton Act. Both federal and state law have been amended
throughout the years; however, the language of the North Carolina statute has
remained similar to the language of the Clayton Act.
Bruggers v. Eastman
Kodak Co., 2000 NCBC 3, at ¶¶ 5-8
(No. 97CVS11278, Wake County Super. Ct. March 17, 2000) (Tennille, J.).
{47} This
Court has previously held that unless and until Hyde is overruled by the
Supreme Court or new legislation is passed, this Court is bound by the decision
in Hyde to the extent that it holds that indirect purchasers have
standing under the North Carolina antitrust laws. See, Bruggers, 2000 NCBC 3, at ¶ 17; Adams, 2003
NCBC 7, at ¶ 8; MJM Investigations, Inc. v. Microsoft Corp. (No.
00CVS4073, Wake County Super. Ct.; No. 00CVS1246, Lincoln County Super. Ct.,
N.C. Aug. 2, 2004) (Tennille, J.) (Order Approving Settlement). In Hyde, the Court of Appeals was
only asked to consider the question of whether the statute provided indirect
purchaser standing. It was not called
upon to delineate the scope and breadth of standing under the statute.
{48} Since Hyde
was briefed and argued there have been several developments which might have
impacted the scope, if not the actual outcome, of that decision. Those developments demonstrate that the
landscape upon which these types of claims are viewed has changed significantly
since Hyde was decided.
{49} First, in
June 1996 the General Assembly ratified a bill entitled “An Act to Revise the
Statutes Regarding Antitrust Law to Ensure That These Provisions Are Internally
Consistent and Consistent With Federal Antitrust Laws.” Act of June 3, 1996, ch. 550, 1995 N.C.
Sess. Laws 550 (“1996 amendments”).
That legislative history is important for two reasons. First, if the General Assembly had desired
to change the statute to provide for an Illinois Brick/Hanover Shoe
limitation, it could have done so then.
It did not, and it has done nothing to change the law since the Hyde
decision. Second, and equally
important, the General Assembly signaled a clear intent for the state courts to
follow federal decisional guidance in interpreting and enforcing state
antitrust laws. Clearly, counsel for
the parties did not bring the 1996 amendments to the attention of the Hyde
court.[12] The statutory direction to follow federal
guidance has a bearing on this Court’s decisions in these two cases, requiring
the Court to reconcile the indirect purchaser standing statute with the federal
standing requirements enunciated in AGC.
{50} Second, a
track record is available which provides information not available to the Hyde
court.[13] The track record to date establishes that
state indirect purchaser cases are generally parasitic. They are not self-generating or supporting
but almost always are dependent on some triggering federal action for their
genesis. The track record also
establishes that these cases pose significantly complex proof issues both as to
damages and liability.[14] The track record establishes that they can
in fact result in double recovery.[15] That same track record discloses that these
types of cases are difficult to administer from a settlement standpoint and
that the complexities and administrative costs and difficulties result in
settlements that are something less than sterling from the consumer’s point of
view.[16] None of that information was available to
the court in Hyde. This Court
has previously pointed out the problems with settlement of these kinds of
cases. In approving the Microsoft
indirect purchaser class action settlement, the Court noted:
There is no definitive decision from the North
Carolina Supreme Court ruling upon the issue of indirect purchaser standing in
North Carolina, nor is there a clear legislative history. Accordingly, every plaintiff argues that
there is indirect purchaser standing, and every defendant argues that there is
no standing under North Carolina law.
The stakes are almost always too high for either side to risk trial and
an appeal. Further, numerous issues
flowing from indirect purchaser standing remain unanswered. For example, who has the burden of proof on
pass-through issues, and what must be shown?
How indirect can the purchaser be? Who has the burden of showing that an
indirect purchaser did not pass through the price increase to another consumer? Are there reliable means to determine pass
through and the amount thereof? The
answers to these questions dramatically affect liability and the potential for
recovery. It is no surprise that
neither plaintiffs lawyers nor defendants have wished to incur the expense of
trial and appeal which would be necessarily incurred in getting the answers to
these questions. It is likely that more
than one trial would be required to get all the required answers.
Additionally, there were significant questions
concerning the application of the law of damages and how damages were to be
determined in this case. The federal
case which spawned this and other indirect purchaser cases was not a price
fixing case. It involved anticompetitive
behavior and not price fixing. The cost
of Microsoft products at issue had decreased relatively speaking over the time
in question. While there had been a
determination in the federal action that Microsoft had a monopoly, there was no
finding that it had used that monopoly to artificially increase prices. Proving damages by pass through of
artificially inflated prices would have raised numerous novel questions of
law. Proving damages to indirect
purchasers by anticompetitive actions (which may have included artificially
deflated prices) would raise a whole host of other issues for which there is no
statutory or case law guidance.
In short, the process of trying this case and going
through an appeal and possible retrial meant that the case would not be finally
resolved for at least four or five years.
Final judgment would have been entered some ten years after the alleged
damages were incurred. For reasons
explained more fully below, that time lag was a significant issue.
While there is a possible philosophical argument that
this uncertainty has a salutary effect in promoting settlement of cases, this
court does not believe it is the function of the law to create ambiguity and
uncertainty. If consumers have a cause
of action they should be entitled to full recovery, not a compromise
amount. On the other hand, if no cause
of action exists or damages are limited to direct pass through of artificially
inflated prices, businesses ought not to have to pay for unfounded claims even
if they are compromised. Under the
present system, only the lawyers really benefit from the uncertainty. One of their clients is paying an
unnecessary price.
. . . .
Two factors are critical to the Court’s decision to
approve the terms of this settlement affecting purchasers of Microsoft
products—timing and purchaser identification.
Most indirect purchaser cases involve common problems—how to identify
the class members and distribute small amounts of money to them. This case is no different. Plaintiff’s counsel and Microsoft have
represented to the Court that a means of identifying all consumers who
purchased the software at issue does not exist and cannot be created. Thus, there will be a claim process of some
sort no matter the outcome of settlement or trial. As counsel for one of the interveners has suggested, even in cash
refund cases, the claims process is abysmally ineffective, with only
single-digit percentages of potential beneficiaries making claims. It thus appears to the Court that there will
have to be a claims process no matter the outcome. If the case were tried and some amount awarded for damages to
purchasers of specific products, a mechanism would have to be put in place for
identification of products purchased, claims and payment. If that process were to be put in place
three to five years from now and it covered products purchased in the late
1990s, it is unlikely that the claims process would result in any significant
payout. Most of these technology
products will have been replaced well before any claims process begins. If the funds were not paid out, Microsoft
would get to keep the money. Purchasers
would be required to prove purchases which occurred many years before the claim
process begins. That will be difficult
enough now, and perhaps impossible years from now. Settlement now, while there is some prospect that purchasers will
have records of their purchases, is far more beneficial to the class. Here, most of the purchasers are businesses
that arguably have better records of their purchases. For consumers, the settlement has the benefit of not requiring
proof of purchase for smaller claims.
The combination of the more current claim process and the cy pres component
of the settlement make acceptance of the coupon aspect of the settlement
acceptable, even if it is not the most desirable process. Given the rapid advancements in technology,
it is also likely that computer owners will make purchases of new hardware and
software, making the coupons more valuable than they would be for products not
likely to be replaced.
MJM Investigations, Inc. v. Microsoft Corp. (No. 00CVS4073, Wake County Super. Ct.; No. 00CVS1246, Lincoln County Super. Ct., N.C. Aug. 2, 2004) (Tennille, J.) (Order Approving Settlement).
{51} Third, there
are cases from other indirect purchaser states which provide some guidance with
respect to limitations on standing. The
case law has evolved from interpretations of state statutes to determine if
they provide for indirect purchaser standing (as happened in Hyde) to a
more detailed examination of standing requirements. Not unexpectedly, the far reaches of the claims against Visa and
MasterCard in the various indirect purchaser states have prompted some of that
evolution.
{52} At least
eight other courts have rejected standing for plaintiffs with claims identical
to those presented in the Morris case.
Each of those states recognizes indirect purchaser claims. In South Dakota the court simply dismissed
the case without detailed explanation.[17] In North Dakota the plaintiff’s case was
dismissed with the holding: “As ‘non-purchasers’ of defendants’ debit card
services to merchants, the Court believes that plaintiffs lack standing to sue
for the alleged restraint of trade in such services. Their alleged injury is simply too remote.”[18]
{53} In
Michigan[19] the trial
court applied the five AGC factors directly in dismissing similar
claims, finding that each failed to support standing. Significantly, the Michigan court rejected an argument similar to
that made by plaintiffs in these two cases that the broad language of the state
statute trumped application of the AGC factors. In addition, the court found that plaintiff
was not an indirect purchaser under the statute.
{54} In
Minnesota the courts have also applied AGC factors in determining
standing for indirect purchasers even though Illinois Brick was not
applied to preclude indirect purchaser claims.
In a well-reasoned opinion in the Gutzmiller[20]
case, the court applied factors 1, 4 and 5 under AGC in denying standing
to plaintiffs under the Minnesota statute, which is similar to North Carolina’s
antitrust law.
{55} In New
York, the Commercial Court in Ho[21]
rejected standing for plaintiffs under circumstances identical to the Morris
case. The court applied several of the AGC
factors in determining that the plaintiffs lacked standing under New York
antitrust laws.
{56} In
California the trial judge hearing the consolidated cases against Visa and
MasterCard dismissed all the claims arising under the Cartwright Act, Cal. Bus.
&. Prof. Code § 16720, et seq., applying the AGC factors to
find no standing. The court also held
that plaintiffs were neither direct nor indirect purchasers of card services.[22]
{57} In
Nebraska, the trial court applied the five AGC factors in dismissing the
identical claims by plaintiff.
Specifically, the court held that the plaintiff failed to satisfy
factors 2 and 3 under AGC. The
court also held that the plaintiff was not an indirect purchaser within the
scope of the state statute, which expressly grants standing to indirect
purchasers.[23]
{58} In Maine
the trial court rejected standing for the plaintiffs under an application of
the AGC factors. The court held
that factors 3, 4 and 5 particularly weighed against standing.[24]
{59} In
Superior Court in Buncombe County, North Carolina, Judge Dennis Winner
dismissed the plaintiff’s indirect purchaser claim, which was virtually
identical to the claim in Crouch, stating:
It is the opinion of the undersigned that notwithstanding the enactment of the amendment in 1996, the Hyde decision is still the law of this State with respect to the issue of suit by an indirect purchaser. Nevertheless, this Court believes that the General Assembly never intended that the antitrust laws of this State be used in the manner in which the Plaintiff has attempted in this case, and that this case is therefore distinguishable from the Hyde case. To rule otherwise would put this Court in an impossible position of attempting to determine whether the alleged price-fixing by an oligopoly of an ingredient used to make tires had anything to do with the price paid by the Plaintiff when he bought the tires. This Court believes that without some allegation and proof that the tire manufacturers themselves were an oligopoly and were fixing prices, that it would be impossible to show the price the Plaintiff paid was not set by the normal laws of supply and demand in our open economic system, and that even if it were possible to show that, there would be no way for the Court to, in any fair or just way, determine an amount the Plaintiff was damaged.
Therefore, it is the opinion of this Court that the General Assembly could not have intended that our Antitrust Statue be used by an indirect purchaser of tires against the manufacturers of an ingredient placed in those tires.
Weaver v. Cabot Corp., No. 03CVS04760 (Buncombe County Super. Ct., N.C. Mar. 29, 2004) (Winner, J).
B.
{60} A review
of indirect purchaser cases in North Carolina is informative. The Court does not believe the North
Carolina experience differs substantially from the national experience. State indirect purchaser cases have common
characteristics. They are seldom sui
generis. More commonly they
originate after a federal triggering event.
Those triggering events include a guilty plea to federal price fixing, a
class action suit by direct purchasers, or notice of a settlement of antitrust
claims with private plaintiffs or the Department of Justice. Morris is an excellent example. Sometimes only the announcement in an SEC
filing that there is an investigation underway will trigger suit. The Crouch case is an excellent
example. Almost all of the cases are
brought as class actions.[25] Discovery tracks the federal action
permitting class counsel to piggyback on the work of the government or counsel
for the direct purchasers. Both
plaintiffs and defendants have a vested interest in seeing the federal action
proceed first. Cases are filed in most
if not all states having indirect purchaser standing, frequently by the same
lawyers. The cases are seldom, if ever,
tried. They get settled far short of
trial.[26] Often and not unexpectedly, the settlements
in the various indirect purchaser standing states track each other
closely. The Microsoft case is
an excellent example. Sometimes the
state and federal actions are settled together.[27] The Court is unaware of any case in which
the settlement reflected treble damages.
Rather, most settlements are less than a whole recovery of the alleged
overcharge and are not particularly satisfying from the perspective of the
consumer class member. Cy pres
settlements are not uncommon since the difficulties inherent in distributing
tiny amounts among large numbers of consumers are daunting and expensive. The settlement in Long v. Abbott
Laboratories, 1999 NCBC 10 (No. 97CVS8289, Mecklenburg County Super. Ct.
July 30, 1999)(Tennille, J.) is an excellent example. The North Carolina cases mirror the national characteristics.
{61} This Court has presided over a number of class action settlements involving indirect purchaser claims, beginning with Long v. Abbott Laboratories. That case is instructive for a number of reasons. It was parasitic in the sense that it was filed after a federal direct purchaser antitrust case was filed and discovery consisted of following discovery in the federal case. Similar cases were filed in ten other states by the same counsel appearing in North Carolina. Fortunately for the plaintiffs, a class action settlement of the various state claims was reached prior to trial of the federal action. The federal case was decided adverse to the plaintiffs, and no antitrust violations were found. Since a settlement agreement had been reached, it was enforced. The agreement provided for a settlement fund of approximately $9 million for North Carolina residents of which class counsel sought approximately twenty-five percent.[28] Since the settlement could not be distributed to the class, which consisted of all North Carolinians who purchased a prescription drug at a retail drugstore, a cy