Mack v. Bristol-Myers Squibb Co., BRISTOL-MYERS

CourtCourt of Appeal of Florida (US)
Writing for the CourtVAN NORTWICK
Citation673 So.2d 100
Parties1996-1 Trade Cases P 71,401, 21 Fla. L. Weekly D1110 Patricia MACK, on behalf of herself and all others similarly situated, Appellant, v.SQUIBB CO. and Mead Johnson & Co., Appellees.
Decision Date07 May 1996
Docket NumberNo. 95-653,BRISTOL-MYERS

Page 100

673 So.2d 100
1996-1 Trade Cases P 71,401, 21 Fla. L. Weekly D1110
Patricia MACK, on behalf of herself and all others similarly situated, Appellant,
v.
BRISTOL-MYERS SQUIBB CO. and Mead Johnson & Co., Appellees.
No. 95-653.
District Court of Appeal of Florida,
First District.
May 7, 1996.

Page 101

DeWitt M. Lovelace, Destin; Michael D. Hausfeld, Daniel A. Small and Lillian S. Hagen of Cohen, Milstein, Hausfeld & Toll, Washington, DC; Samuel D. Heins, Daniel E. Gustafson and Kent M. Williams of Heins Mills & Olson, P.L.C., Minneapolis, MN; Howard J. Sedran and Johnathan Shub of Levin, Fishbein, Sedran & Berman, Philadelphia, PA; Don Barrett, Lexington, MS; Gordon Ball, Knoxville, TN, for Appellant.

Robert A. Butterworth, Attorney General; Patricia A. Conners, Assistant Attorney General; Mark S. Fistos, Assistant Attorney General, Tallahassee, for Amicus Curiae.

Harry R. Detwiler of Alford & Detwiler, Tallahassee; Douglas D. Broadwater and Max R. Shulman of Cravath, Swaine & Moore, New York City; Bill L. Bryant, Jr. and Donna Blanton of Katz, Kutter, Haigler, Alderman, Marks, Bryant & Yon, Tallahassee; Frank Cicero, Jr., J. Andrew Langan and Wendy L. Bloom, Chicago, IL, for Appellees.

VAN NORTWICK, Judge.

Patricia Mack appeals an order dismissing with prejudice her class action suit against appellees, Abbott Laboratories, Inc., 1 Bristol-Myers Squibb Co., and Mead Johnson & Co., pharmaceutical companies that manufacture and sell infant formula, on the grounds that she, and the others in her class, are indirect purchasers who lack standing to bring a suit under the Florida Deceptive and Unfair Trade Practices Act (the Florida DTPA), Chapter 501, Part II, Florida Statutes (1993). She contends, and we agree, that the circuit court erred in dismissing her claim because standing for the instant action is expressly provided by subsections 501.211(2) and 501.204(1) of the Florida DTPA. Accordingly, we reverse and remand for further proceedings. We also certify to

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the Florida Supreme Court a question of great public importance.

Factual and Procedural Background

Mack, a resident of Okaloosa County, purchased for her child infant formula manufactured and distributed by one or more of the appellees. In her class action suit, Mack claims that the appellees, by conspiring to cause retail prices of infant formula to be raised, fixed, maintained and stabilized at artificially high and non-competitive levels, have overcharged Florida consumers for infant formula. She filed a two-count action seeking to recover damages under the Florida Antitrust Act, Chapter 542, Florida Statutes (1993), and under the Florida DTPA. Regarding her Florida DTPA claim, Mack alleges that she and the class members acquired infant formula for family and household purposes and are consumers within the meaning of section 501.211, Florida Statutes (1993) and that:

For over twelve years, defendants have engaged in, and have conspired amongst themselves to engage in, unfair methods of competition and unfair acts or practices in violation of section 501.204 of DTPA in the sale and marketing of infant formula to thousands of Florida consumers at excessively high prices.

She claims that, as a result of these acts, she and the other members of the class have suffered damages.

The trial court's order dismissing her complaint with prejudice states, in pertinent part, as follows:

1. Because the Complaint alleges that Plaintiff and the rest of the putative class are indirect purchasers of infant formula, it fails to state a cause of action under the Florida Antitrust Act, Chapter 542, Florida Statutes (1993). The intent of the Florida legislature in enacting the Antitrust Act was that "due consideration and great weight be given to the interpretations of the federal courts relating to comparable federal antitrust statutes." § 542.32, Fla.Stat. (1993)....

The United States Supreme Court has held that indirect purchasers lack standing under Section 4 of the Clayton Act, 15 U.S.C. § 15, to recover damages for violations of the federal antitrust laws. Illinois Brick Co. v. Illinois, 431 U.S. 720, 728-729 [97 S.Ct. 2061, 2065-2066, 52 L.Ed.2d 707] (1977); Kansas and Missouri v. Utilicorp United, Inc., 497 U.S. 199 [110 S.Ct. 2807, 111 L.Ed.2d 169] (1990). Consistent with the above stated intent of the Florida legislature, the standing requirements for a private cause of action under the Florida Antitrust Act parallel the standing requirements of Section 4 of the Clayton Act. Accordingly, Florida adheres to the "direct purchaser" rule enunciated in Illinois Brick, and Plaintiff and the putative class lack standing under Chapter 542.

2. The complaint also fails to state a cause of action under the Florida Deceptive and Unfair Trade Practices Act ("DTPA"), Chapter 501, Part II, Florida Statutes (1993). Plaintiff's DTPA claim is based on the same price-fixing conspiracy alleged in her Florida Antitrust Act claim. Since under the Florida Antitrust Act indirect purchasers do not suffer cognizable injury as a result of alleged price-fixing conspiracies, they are barred from asserting claims under the DTPA based upon such conspiracies. The Florida legislature could not have intended that indirect purchasers could seek relief under the DTPA for alleged violations of Chapter 542 when Chapter 542 itself does not allow such relief.

It is not that indirect purchasers can never sue under the DTPA but where a DTPA claim is based on an alleged antitrust violation--as it is here--the direct purchaser rule does apply. Other standing rules apply to DTPA claims derived from other statutes. However, those standing rules are not implicated in this case. Only the direct purchaser rule is involved here.

Granting indirect purchasers standing under the DTPA to assert price-fixing claims that they lack standing to assert under the Florida Antitrust Act would create an irreconcilable conflict between the two statutes. Indirect purchasers would be able to avoid the standing requirements of the Antitrust Act simply by relabeling their claims as DTPA claims.

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The Florida Supreme Court has declared that "[c]ourts should avoid a construction which places in conflict statu[t]es which cover the same general field"; rather, where two statutes "relat[e] to the same purpose" they should be construed in harmony. City of Boca Raton v. Gidman, 440 So.2d 1277, 1282 (Fla.1983); see also, Scates v. State, 603 So.2d 504, 506 (Fla.1992) ("In general, statutes relating to the same subject and having the same purpose should be construed consistently"). The Florida Antitrust Act and the DTPA relate to the same purpose--i.e., they both are meant to protect the marketplace and to proscribe unfair methods of competition. The DTPA should, therefore, be construed harmoniously and consistently with the Florida legislature's clear intent to allow only direct purchasers to sue for alleged price-fixing conspiracies. Any other result would eviscerate the direct purchaser rule of the Florida Antitrust Act.

Accordingly, Plaintiff and the putative class have no standing to sue under the DTPA. 2

Mack does not challenge the trial court's conclusion that under Illinois Brick Company v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), she and the others in her class, all of whom are indirect purchasers, cannot bring a Florida antitrust claim. However, she does contend that, as consumers, the class members have standing to bring a claim for redress from the complained-of conduct under the plain language of DTPA.

While this case may ultimately involve complex litigation, the issue before us is relatively straightforward. We view our consideration here as essentially determining whether a consumer-purchaser's standing to sue for price-fixing under the Florida DTPA is governed (i) by the language of the Florida DTPA, which expressly authorizes a consumer to bring an action for damages for violation of DTPA, or (ii) by a policy adopted from Illinois Brick that would bar an indirect purchaser from bringing an action under the Florida DTPA based upon a claim which is in substance an antitrust action to encourage efficient private antitrust enforcement by direct purchasers and to avoid conflict between the Florida DTPA and the Florida Antitrust Act. The Illinois Brick policy reasons persuaded the trial court to deny standing to Mack and the class. For the reasons that follow, we believe that the plain language of our consumer protection statute, in which the legislature has expressly permitted a consumer to recover for price-fixing, must control. Therefore, we hold that the instant cause of action under the Florida DTPA is not barred on the grounds that Mack and the class lack standing to sue.

The Florida DTPA

The Florida DTPA expresses a primary policy "[t]o protect the consuming public ... from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce," section 501.202(2), Florida Statutes (1993), and, as a rule of construction, provides that the act "shall be construed liberally to promote [such] policies...." § 501.202, Fla.Stat. (1993).

Under the Florida DTPA a "consumer" is defined to include "an individual," like Mack and her class members. § 501.203(7), Fla.Stat. (1993). A consumer, like Mack, who has suffered a loss as a result of a "violation of this part," may bring an action for damages. § 501.211(2), Fla.Stat. (1993). The Florida DTPA defines "violation of this part" in subsection 501.203(3), as follows:

(3) "Violation of this part" means any violation of this act and may be based upon any of the following:

(a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15 U.S.C. s. 41 et seq. or this act;

(b) The standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts;

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(c) Any law,...

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55 practice notes
  • In re Microsoft Corp. Antitrust Litigation, No. MDL 1332.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 12 January 2001
    ...Nevertheless, this policy has not been universally adopted. See, e.g., Vt. Stat. Ann. tit. 9, § 2465; Mack v. Bristol-Myers Squibb Co., 673 So.2d 100 (Fla.Dist.Ct.App.1996). In my judgment, Microsoft paints with too broad a brush in seeking to extend this policy to states that have not affi......
  • In re Digital Music Antitrust Litigation, No. 06 MDL No. 1780 (LAP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 October 2008
    ...law, also fall within the purview of the [Washington D.C. Consumer Protection Procedures Act]."); Mack v. Bristol-Myers Squibb Co., 673 So.2d 100, 104 (Fla. Ct.App. 1 Dist.1996) ("Thus, the acts proscribed by subsection 501.204(1) include antitrust violations."); Triple 7, Inc. v. Intervet,......
  • State of Fla., Office of Atty. v. Tenet Healthcare, No. 05-20591-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 29 August 2005
    ...method of competition or an unconscionable, unfair or deceptive act or practice under federal law." Mack v. Bristol-Myers Squibb Co., 673 So.2d 100, 105 (Fla. 1st DCA 1996). Because the legislature did not define what is an unfair or deceptive act, a practice which "offends established publ......
  • Jones v. Micron Tech. Inc., Case No. 18-cv-02518-JSW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 3 September 2019
    ...a claim under DUTPA. In re Flonase Antitrust Litig. , 692 F. Supp. 2d 524, 544 (E.D. Pa. 2010) (citing Mack v. Bristol–Myers Squibb Co. , 673 So. 2d 100, 103, 107–08 (Fla. Dist. Ct. App. 1996) (reversing trial court's dismissal of indirect purchaser plaintiffs' DUTPA claim)). Florida law re......
  • Request a trial to view additional results
54 cases
  • In re Microsoft Corp. Antitrust Litigation, No. MDL 1332.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 12 January 2001
    ...Nevertheless, this policy has not been universally adopted. See, e.g., Vt. Stat. Ann. tit. 9, § 2465; Mack v. Bristol-Myers Squibb Co., 673 So.2d 100 (Fla.Dist.Ct.App.1996). In my judgment, Microsoft paints with too broad a brush in seeking to extend this policy to states that have not affi......
  • In re Digital Music Antitrust Litigation, No. 06 MDL No. 1780 (LAP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 9 October 2008
    ...law, also fall within the purview of the [Washington D.C. Consumer Protection Procedures Act]."); Mack v. Bristol-Myers Squibb Co., 673 So.2d 100, 104 (Fla. Ct.App. 1 Dist.1996) ("Thus, the acts proscribed by subsection 501.204(1) include antitrust violations."); Triple 7, Inc. v. Intervet,......
  • State of Fla., Office of Atty. v. Tenet Healthcare, No. 05-20591-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 29 August 2005
    ...method of competition or an unconscionable, unfair or deceptive act or practice under federal law." Mack v. Bristol-Myers Squibb Co., 673 So.2d 100, 105 (Fla. 1st DCA 1996). Because the legislature did not define what is an unfair or deceptive act, a practice which "offends established publ......
  • Jones v. Micron Tech. Inc., Case No. 18-cv-02518-JSW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 3 September 2019
    ...a claim under DUTPA. In re Flonase Antitrust Litig. , 692 F. Supp. 2d 524, 544 (E.D. Pa. 2010) (citing Mack v. Bristol–Myers Squibb Co. , 673 So. 2d 100, 103, 107–08 (Fla. Dist. Ct. App. 1996) (reversing trial court's dismissal of indirect purchaser plaintiffs' DUTPA claim)). Florida law re......
  • Request a trial to view additional results
1 books & journal articles
  • The Pass-on Problem in Indirect Purchaser Class Litigation
    • United States
    • Antitrust Bulletin Nbr. 44-1, March 1999
    • 1 March 1999
    ...are not preempted byfederal law notwithstanding the federal bar of indirect purchaser suits.IISee, e.g.,Mackv. Bristol-Meyers Squibb Co., 673 So. 2d 100(Fla. App. 1996) (permitting such suits under the state unfair trade prac-tices statute but prohibiting them under the state antitrust stat......

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