Hyde v. Abbott Laboratories, Inc.

• Decision Date: 20 August 1996
• Docket Number: No. COA95-1147,COA95-1147
• Citation: 123 N.C.App. 572,473 S.E.2d 680
• Court: North Carolina Court of Appeals
• Parties: , 1996-2 Trade Cases P 71,532 Suzanne HYDE and Lynn Meeks, Plaintiffs-Appellants, v. ABBOTT LABORATORIES, INC., Bristol-Myers Squibb Co., and Mead Johnson & Co., Defendants-Appellees.

Page 680

473 S.E.2d 680

123 N.C.App. 572, 1996-2 Trade Cases P 71,532

Suzanne HYDE and Lynn Meeks, Plaintiffs-Appellants, v. ABBOTT LABORATORIES, INC., Bristol-Myers Squibb Co., and Mead Johnson & Co., Defendants-Appellees.

No. COA95-1147.

Court of Appeals of North Carolina.

Aug. 20, 1996.

Hunter & Large, P.L.L.C. by Raymond D. Large, Jr. and Diane E. Sherrill, Sylva, and Heins Mills & Olson, P.L.C. by Kent M. Williams, Minneapolis, MN, for plaintiffs-appellants.

Smith Helms Mullis & Moore, L.L.P. by Larry B. Sitton, James G. Exum, Jr. and Richard A. Coughlin, Greensboro, for defendants-appellees Bristol-Myers Squibb Company, and Mead Johnson & Company.

Petree Stockton, L.L.P. by John T. Allred, Charlotte, for defendant-appellant Abbott Laboratories, Inc.

WYNN, Judge.

In November of 1994, plaintiffs Suzanne Hyde and Lynn Meeks filed a class action lawsuit on behalf of themselves and others similarly situated (hereinafter plaintiffs), seeking damages from defendants for alleged violations of North Carolina's antitrust laws--N.C. Gen.Stat. § 75-1 et. seq. (1994).

Plaintiffs alleged that between 1980 and 1992, defendants violated several of the antitrust laws of this state by "engaging in a continuing conspiracy to fix the wholesale price of infant formula sold within the United States, including North Carolina." Plaintiffs further alleged that the above illegal conspiracy caused an increase in wholesale prices paid by the parties who purchased the infant formula directly from the manufacturer (hereinafter direct purchasers) above that which the direct purchasers would have paid absent any conspiracy.

Plaintiffs, who are North Carolina residents, are indirect purchasers from the defendant manufacturers because they purchased infant formula through parties other than the manufacturer. Plaintiffs contended that they paid higher prices than they would have paid but for the alleged illegal conduct.

In February of 1995, defendants moved to dismiss plaintiffs' complaint under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (1990), alleging that plaintiffs, as indirect purchasers, lacked standing to bring this action under N.C.G.S. § 75-16. In an amended order filed 27 July 1995, Superior Court Judge Janet Marlene Hyatt agreed, and granted defendants' motion to dismiss. From this order, plaintiffs appealed.

Prior to oral arguments before this Court, plaintiffs and defendant Abbott Laboratories entered into a tentative settlement agreement which must be approved by the superior court under N.C.R. Civ. P. Rule 23(c) (1996). As a result, plaintiffs and defendant Abbott Laboratories jointly moved for dismissal of the appeal against Abbott Laboratories. We granted that motion. Accordingly, this appeal proceeds against the remaining defendants, Bristol-Myers Squibb and Mead Johnson (hereinafter defendants).

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As an initial matter, we note that the record on appeal does not clearly indicate whether the proposed record on appeal was served on 7 September 1995 or 11 October 1995. If service was accomplished on the later date, the proposed record was not timely served and the appeal is subject to dismissal. Brooks v. Jones, 121 N.C.App. 529, 530, 466 S.E.2d 344, 345 (1996); Wilson v. Bellamy, 105 N.C.App. 446, 457, 414 S.E.2d 347, 353, disc. review denied, 331 N.C. 558, 418 S.E.2d 668 (1992). The burden is on an appellant to establish that a record on appeal has been timely filed as required by the appellate rules. However, because there is a discrepancy in the record as to the date of service and given the great public importance of the issues in this case, we elect to treat the earlier date as the correct date of service. N.C.R.App. P. 2 (1996); Wilson, 105 N.C.App. at 457, 414 S.E.2d at 353.

On appeal, plaintiffs contend that the trial court erred by dismissing their complaint under N.C.R. Civ. P. 12(b)(6) on the grounds that indirect purchasers lack standing under N.C.G.S. § 75-16. We agree, and therefore reverse the order of the trial court.

A Rule 12(b)(6) motion to dismiss presents the question "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 the motion to dismiss, the allegations of the complaint must be treated as true. Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979). In ruling upon a Rule 12(b)(6) motion, the complaint is to be liberally construed, and should not be dismissed "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." Davis v. Messer, 119 N.C.App. 44, 51, 457 S.E.2d 902, 906-07, disc. review denied, 341 N.C. 647, 462 S.E.2d 508 (1995).

N.C.G.S. § 75-16 governs the determination of standing for redress of Chapter 75 violations. Cf. La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C.App. 480, 485, 350 S.E.2d 889, 892 (1986), cert. denied and appeal dismissed, 319 N.C. 459, 354 S.E.2d 888 (1987). That section provides:

75-16. Civil action by person injured; treble damages.

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.

Section 75-16 is similar to section 4 of the federal Clayton Act. Marshall v. Miller, 302 N.C. 539, 542, 276 S.E.2d 397, 399 (1981). Section 4 of the Clayton Act states Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.

15 U.S.C. § 15 (1991).

In Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707, reh'g denied, 434 U.S. 881, 98 S.Ct. 243, 54 L.Ed.2d 164 (1977), the United States Supreme Court held that indirect purchasers, such as plaintiffs in the instant case, are not injured in their business within the meaning of section 4 of the Clayton Act, and thus, with certain exceptions, lack standing to pursue a claim under the federal antitrust laws. Id. at 728-29, 97 S.Ct. at 2065-66, 52 L.Ed.2d at 714. The Court found this holding to be required by Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968).

Illinois Brick held that direct purchasers suffer the entire injury which follows from a violation of the federal antitrust laws, and are the only private parties allowed to sue for federal antitrust violations. Illinois Brick, 431 U.S. at 728-29, 97 S.Ct. at 2065-66, 52 L.Ed.2d at 714. Consequently, the plaintiffs in the instant case could not pursue their claim under the federal antitrust laws unless they could demonstrate that their facts fit within an exception to Illinois Brick. Plaintiffs conceded this point at oral argument.

However, in California v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989), the United States Supreme Court held that a state may, consistent with the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, § 2, allow an indirect purchaser to sue under the state's own antitrust laws. Id. at 105-06, 109 S.Ct. at 1667, 104 L.Ed.2d at 97. The issue in this case is whether N.C.G.S. § 75-16 allows such a suit by an indirect purchaser. We hold that it does.

In construing a statute, "our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished." Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). "Legislative purpose is first ascertained from the plain words of the statute." Id. "Our task is to determine whether the intent of the Legislature will be more fully served [if we construe this section in the manner argued by plaintiffs]." Marshall, 302 N.C. at 543, 276 S.E.2d at 400.

Plaintiffs contend that by enacting N.C.G.S. § 75-16 the legislature intended to grant standing to a consumer purchasing indirectly from a manufacturer or service provider to sue that manufacturer or service provider for a violation of Chapter 75, and that we should interpret this section to allow an indirect purchaser standing to sue for such violations.

Prior to a 1969 revision, N.C.G.S. § 75-16 began: "If the business of any person, firm or corporation shall be broken up, destroyed or injured ...." (emphasis supplied). In 1969, the General Assembly amended this section. The first sentence now begins:

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 ... in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action....

(emphasis supplied). "Changes made by the legislature to statutory structure and language are indicative of a change in legislative intent and therefore provide some weight in our analysis." Electric Supply Co., 328 N.C. at 656, 403 S.E.2d at 295.

In enacting the 1969 revisions, the General Assembly intended to "enable a person injured by deceptive acts or practices to recover treble damages from a wrongdoer." Hardy v. Toler, 24 N.C.App. 625, 630-31, 211 S.E.2d 809, 813, modified on other grounds, 288 N.C. 303, 218 S.E.2d 342 (1975); see also Marshall, 302 N.C. at 543, 276 S.E.2d at 400 (holding that by enacting ...