Bunker's Glass Co. v. Pilkington PlC, 1 CA-CV 01-0046.

• Citation: 202 Ariz. 481,47 P.3d 1119
• Decision Date: 28 March 2002
• Docket Number: No. 1 CA-CV 01-0046.,1 CA-CV 01-0046.
• Parties: BUNKER'S GLASS COMPANY, an Arizona corporation, on Behalf of Themselves and All Others Similarly Situated, Plaintiff-Appellant, v. PILKINGTON PLC, a foreign corporation, Pilkington Libbey-Owens-Ford Co. Inc., a foreign corporation, PPG Industries, Inc., a foreign corporation, Ford Motor Co., a foreign corporation, Guardian Industries Corporation, a foreign corporation, and AFG Industries, Inc., a foreign corporation, Defendants-Appellees.
• Court: Court of Appeals of Arizona

47 P.3d 1119

202 Ariz. 481

BUNKER'S GLASS COMPANY, an Arizona corporation, on Behalf of Themselves and All Others Similarly Situated, Plaintiff-Appellant, v. PILKINGTON PLC, a foreign corporation, Pilkington Libbey-Owens-Ford Co. Inc., a foreign corporation, PPG Industries, Inc., a foreign corporation, Ford Motor Co., a foreign corporation, Guardian Industries Corporation, a foreign corporation, and AFG Industries, Inc., a foreign corporation, Defendants-Appellees.

No. -0046.

Court of Appeals of Arizona, Division 1, Department A.

March 28, 2002.

As Corrected June 28, 2002.

Davis, McKee & Forshey, P.C. By Jeffrey A. McKee, Phoenix, and Law Offices of George A. Barton, P.C. By George A. Barton, Kansas City, Missouri, and Law Office of Thomas H. Brill By Thomas H. Brill, Leawood, Kansas, Attorneys for Plaintiff-Appellant.

Karp, Heurlin & Weiss, P.C. By Bruce Heurlin, Tucson, Attorneys for Defendants-Appellees Pilkington plc and Guardian Industries Corp.

Pepper Hamilton LLP By Laurence Z. Shiekman, Philadelphia, Pennsylvania, Attorneys for Defendants-Appellees Pilkington plc and Pilkington Libbey-Owens-Ford Company.

Arnold & Porter By Alexander E. Bennett, Washington, DC, Attorneys for Defendant-Appellee Guardian Industries Corp.

Bryan Cave LLP By Lawrence G.D. Scarborough, Kelly A. O'Connor, Phoenix, and Cravath, Swaine & Moore By Paul M. Dodyk, New York, New York, Attorneys for Defendant-Appellee PPG Industries, Inc.

Snell & Wilmer, LLP By Daniel J. McAuliffe, Phoenix, and O'Melveny & Myers By John H. Beisner, Neil K. Gilman, Washington, DC, Attorneys for Defendant-Appellee Ford Motor Company.

Squire, Sanders & Dempsey, L.L.P. By Donald A. Wall, Phoenix Attorneys for Defendant-Appellee AFG Industries, Inc.

Janet Napolitano, Arizona Attorney General By Timothy A. Nelson, Special Counsel, David D. Weinzweig, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae State of Arizona.

Goodwin Raup P.C. By Rudolph J. Gerber, Brian Michael Goodwin, Marty Harper, Lori V. Berke, Kelly J. Flood, Phoenix, Attorneys for Amicus Curiae Charles I. Friedman, P.C.

OPINION

WEISBERG, Judge.

¶ 1 In this appeal, we consider whether an indirect purchaser of goods may bring an action to recover damages resulting from the alleged price-fixing by the manufacturers of those goods. For the reasons that follow, we hold that such an action is allowed under Arizona law.

BACKGROUND

¶ 2 Flat glass production is a multibillion dollar industry in the United States. In re Flat Glass Antitrust Litig., 191 F.R.D. 472, 475 (W.D.Pa.1999). The appellees are the principal manufacturers of all flat glass products sold in the United States, including Arizona.

¶ 3 "Flat glass" refers to glass products manufactured through the float process¹ and includes glass that is transparent, opaque, translucent, or reinforced. Id. at 475 n. 6. Fabricated flat glass is used primarily for glass windows and doors in residential and commercial structures and for automobile windshields and windows. Id. at 476.

¶ 4 Appellant Bunker's Glass is a business located in Maricopa County that regularly purchased flat glass products from wholesale distributors. Thus, Bunker's Glass purchased these products indirectly from appellees.

¶ 5 In February 2000, Bunker's Glass filed an antitrust class action complaint against appellees on behalf of itself and all other commercial indirect purchasers of flat glass products in Arizona. In its complaint, brought under Arizona's Antitrust Act, Arizona Revised Statutes ("A.R.S.") sections 44-1402, -1403, -1408 (1994) and related statutes, it alleged that beginning in August 1991 and continuing for at least four years, appellees entered into a conspiracy to fix the prices of flat glass products sold in the United States, including Arizona.

¶ 6 Bunker's Glass further alleged that as a result of such combination and conspiracy: (1) appellees sold flat glass products to direct purchasers of the products at artificially high and noncompetitive levels; (2) competition for the sale of flat glass products in Arizona was restrained; (3) the artificially high prices for flat glass products were passed on by distributors and wholesalers to Bunker's Glass and other indirect commercial purchasers in Arizona; and (4) Arizona purchasers were damaged in their businesses by having to pay artificially high prices for flat glass products.

¶ 7 Appellees moved to dismiss the complaint, arguing that indirect purchasers lacked standing to recover damages from flat glass manufacturers. They asserted that the rule announced in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), in which the United States Supreme Court held that indirect purchasers of a product could not sue under federal antitrust laws for damages caused by price-fixing, should be followed in Arizona. The trial court agreed and granted appellees' motion to dismiss.²

¶ 8 Bunker's Glass timely appealed from the judgment dismissing its complaint. We have jurisdiction under A.R.S. § 12-2101(B) (1994).

DISCUSSION

A. Standard of Review

¶ 9 In reviewing the trial court's dismissal of a complaint for failure to state a claim, we consider the facts alleged in the complaint to be true and will not affirm the dismissal unless we conclude as a matter of law that the plaintiff would not be entitled to relief under any interpretation of the facts. Fid. Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). We review the legal issues de novo. Transp. Ins. Co. v. Bruining, 186 Ariz. 224, 226, 921 P.2d 24, 26 (1996). To the extent that our review involves questions of statutory construction, we are not bound by the trial court's conclusion and need accord it no deference. Babe's Cabaret v. City of Scottsdale, 197 Ariz. 98, 101, ¶ 6, 3 P.3d 1018, 1021 (App.1999); Tobel v. Ariz. Dep't of Pub. Safety, 189 Ariz. 168, 173-74, 939 P.2d 801, 806-07 (App.1997).

B. Indirect Purchaser Standing

1. Arizona's antitrust laws

¶ 10 In determining whether Arizona law permits an indirect purchaser to recover for antitrust violations, we first look to the language of the relevant statutes because, when interpreting a statute, we primarily examine its language and give effect to its terms according to their ordinary meanings unless the legislature has provided a specific definition or the context indicates that a term carries a special meaning. Wells Fargo Credit Corp. v. Tolliver, 183 Ariz. 343, 345, 903 P.2d 1101, 1103 (App.1995). If it is clear and unambiguous, we give effect to the statutory language without resorting to other forms of statutory construction. Id.

¶ 11 Arizona law provides that "[a] contract, combination or conspiracy between two or more persons in restraint of, or to monopolize, trade or commerce, any part of which is within this state, is unlawful." A.R.S. § 44-1402. Private actions to seek damages for violation of this statute may be brought under A.R.S. § 44-1408(B), which provides:

A person threatened with injury or injured in his business or property by a violation of this article may bring an action for appropriate injunctive or other equitable relief, damages sustained and, as determined by the court, taxable costs and reasonable attorney's fees. If the trier of fact finds that the violation is flagrant, it shall increase recovery to an amount not in excess of three times the damages sustained.

A "person" for the purposes of this statute is defined as "an individual, corporation, business trust, partnership, association or any other legal entity." A.R.S. § 44-1401 (1994).

¶ 12 Although, as Bunker's Glass points out, nothing in § 44-1408(B) or any other Arizona antitrust statute indicates that a "person" is limited to one who purchases directly from an alleged antitrust law violator, neither does its language preclude such an interpretation. Nevertheless, the use of the term "person" to include "an individual" supports the view that the legislature intended by this language to extend standing in antitrust cases to individuals who are ultimate users of a product, because the direct purchaser from a manufacturer typically is a business entity that sells the product to another intermediate entity or to an end-user consumer. It is contrary to the common meanings of "person" and "individual" to presume that, even though § 44-1408(B) allows individuals to bring antitrust actions, it does not apply to those individual consumers who are indirect purchasers of a product and confers standing only on intermediate entities like brokerage houses and retail establishments that purchase directly from manufacturers. To adopt such a view would severely limit the application of those terms.³

¶ 13 We also must interpret our state's antitrust law in light of its history, legislative intent, relevant Arizona constitutional provisions, and public policy concerns. We determine the legislature's intent by reading the statute as a whole and by considering its context, subject matter, historical background, consequences, and effects. State v. Seyrafi, 201 Ariz. 147, 150, ¶ 13, 32 P.3d 430, 433 (App.2001).

¶ 14 From the time it became a state, Arizona has included an antitrust statute among its laws. See 1912 Ariz. Sess. Laws, ch. 73, §§ 1-11. Also, Arizona's Constitution prohibits any manner of monopolies, trusts, or price-fixing and declares that the legislature must adopt laws to further this constitutional purpose of banning anti-competitive conduct within this state:

Monopolies and trusts shall never be allowed in this State and no incorporated company, co-partnership or association of persons in this State shall directly or indirectly combine or make any contract, with any incorporated company, foreign or domestic, through their stockholders or the trustees or assigns of such stockholders or with any co-partnership or association of persons, or, in any manner whatever, to fix the prices, limit the production, or

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