Stifflear v. Bristol-Myers Squibb Co.
| Decision Date | 02 May 1996 |
| Docket Number | BRISTOL-MYERS,No. 95CA0201,95CA0201 |
| Citation | 931 P.2d 471 |
| Parties | 1996-1 Trade Cases P 71,399 Julie A. STIFFLEAR, Plaintiff-Appellant, v.SQUIBB COMPANY and Mead Johnson & Company, Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
Poulson, Odell & Peterson, LLC, Alan B. Cameron, Scott M. Campbell, Denver; Cohen, Milstein, Hausfeld & Toll, Daniel A. Small, Washington, DC, for Plaintiff-Appellant.
Holme, Roberts & Owen, LLC, Charles J. Kall, Bruce F. Black, Denver, for Defendants-Appellees.
Opinion by Justice QUINN. *
In this action under the Colorado Antitrust Act, plaintiff, Julie A. Stifflear, a class representative of indirect purchasers of infant formula in Colorado--i.e., purchasers of infant formula from retailers--appeals the district court's dismissal of her complaint pursuant to C.R.C.P. 12(b)(5) for failing to state a claim for relief. We affirm the judgment of dismissal.
The facts are undisputed. Plaintiff is a resident of Colorado and during the period from January 1, 1980, to December 31, 1992, purchased infant formula indirectly from one or both of the defendants, Bristol-Myers Squibb Company and Mead Johnson & Company. Defendants are pharmaceutical companies that manufacture and sell infant formula nationwide to wholesalers and distributors, which in turn sell the products to others in the chain of distribution.
Plaintiff brought this antitrust action on behalf of herself and others similarly situated. She alleged that between 1980 and 1992 defendants engaged in a continuing combination, conspiracy, and agreement to fix the wholesale prices of infant formula sold within the United States, that such conduct constituted a restraint of trade or commerce in violation of the Colorado Antitrust Act, and that she paid more for infant formula than she would have paid but for the defendants' illegal conduct. Plaintiff sought damages and injunctive relief against the defendants.
Defendants filed a motion to dismiss for failure to state a claim on the basis that indirect purchasers lacked standing under both the 1957 Colorado Antitrust Act (the 1957 Act) and the 1992 reenactment of the Act (the 1992 Act) that became effective on July 1, 1992. Defendants contended that indirect purchasers lacked standing to assert a judicially cognizable claim under the 1957 and 1992 Acts because the Colorado General Assembly intended that the standing requirements for private causes of action under those Acts be the same as the standing requirements for private causes of action under § 4 of the Clayton Act, 15 U.S.C. § 15 (1914).
The trial court dismissed the complaint with prejudice for lack of standing. The court determined that the General Assembly intended the 1957 Act to be construed in accordance with federal law and that, because the General Assembly carved out a limited standing exception only for governmental and public entities under the 1992 Act, the plaintiff lacked standing to bring an action against the defendants for acts committed prior to July 1, 1992. The trial court also determined that the so-called "void contract provisions" of the 1957 and 1992 Acts, which void any contracts made in violation of the Acts, did not provide an independent ground for indirect purchaser standing.
On this appeal, the plaintiff does not challenge the trial court's ruling that the "void contract provisions" do not accord standing to indirect purchasers and also concedes that the 1992 Act precludes an indirect purchaser claim by a private indirect purchaser at retail. Plaintiff, however, does contend that federal antitrust law creates no impediment to an indirect purchaser claim under state law and that the 1957 Act does accord standing to the plaintiff and the class she represents to sue the defendants for antitrust violations. We reject this contention.
The question of standing is really an inquiry into whether the statutory provision "on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief." State Board for Community Colleges v. Olson, 687 P.2d 429, 434 (Colo.1984) (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343, 355 (1975)). Resolution of the standing issue involves two considerations: (1) whether the party seeking judicial relief has alleged an actual injury from the challenged action; and (2) whether the injury is to a legally protected or cognizable interest. O'Bryant v. Public Utilities Commission, 778 P.2d 648 (Colo.1989); Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980).
Although the "actual injury" component of standing need not consist of a direct pecuniary loss, O'Bryant v. Public Utilities Commission, supra, there is no question here that the plaintiff has alleged a direct pecuniary loss by being required to pay more for infant formula than she would have paid but for the defendants' allegedly illegal conduct. The critical inquiry for purposes of the standing issue is whether the plaintiff's asserted injury is to an interest legally protected or cognizable under the 1957 Act. In answering that question, we must determine whether the Colorado Antitrust Act reflects a legislative purpose to confer on an indirect purchaser a right to judicial redress for alleged violations of the Act.
Section 6-4-101 of the 1957 Act contains the "illegal restraint of trade" proscription and states:
Every contract or combination in the nature of a trust or conspiracy in restraint of trade or commerce is declared illegal. Every combination, conspiracy, trust, pool, agreement, or contract intended to restrain or prevent competition in the supply or price of any article or commodity constituting a subject of trade or commerce in this state, or every combination, conspiracy, trust, pool, agreement, or contract which controls in any manner the price of any such article or commodity, fixes the price thereof, or limits or fixes the amount or quantity thereof to be manufactured, produced, or sold in this state, or monopolizes or attempts to monopolize any part of the trade or commerce in this state, is declared an illegal restraint of trade.
Colo. Sess. Laws 1957, ch. 142, § 55-4-1 at 369.
Section 6-4-102 of the 1957 Act prohibits any person, corporation, or association from entering into a contract, agreement, or conspiracy to engage in any conduct or restraint of trade declared unlawful under the Act, or to conspire or combine with any other person, corporation, or association to monopolize any part of the trade or commerce in the state. Colo. Sess. Laws 1957, ch. 142, § 55-4-2 at 369.
Section 6-4-108 of the 1957 Act renders the person, corporation, or association engaging in unlawful conduct liable "to any person transacting or doing business in this state for any damages he may sustain by reason of the doing of anything declared unlawful in this article." Colo. Sess. Laws 1957, ch. 142, § 55-4-8 at 371.
In 1992, the General Assembly repealed and reenacted the Antitrust Act and adopted the following standing provision in § 6-4-111(2), C.R.S. (1992 Repl.Vol. 2):
The attorney general may bring a civil action on behalf of any governmental or public entity, with the written consent of such entity, injured, either directly or indirectly, in its business or property by reason of any violation of this article and, if successful, shall recover any actual damages sustained by such entity. (emphasis added)
The 1992 Act also provides in § 6-4-111(3)(a), C.R.S. (1992 Repl.Vol. 2), that the attorney general may bring a civil action as parens patriae on behalf of natural persons residing within the state who are injured in their business or property by reason of any violation of the Act and, if successful, shall recover any actual damages sustained by such natural persons. Section 6-4-111(3)(a), however, does not include the language "injured, either directly or indirectly" that was incorporated in § 6-4-111(2).
In 1992, the General Assembly also amended the damages provision previously contained in § 6-4-108 of the 1957 Act by providing in § 6-4-114(1), C.R.S. (1992 Repl.Vol. 2), as follows:
Any person injured in its business or property by reason of any violation of this article may sue therefor and, if successful, shall recover any actual damages sustained by such person.
Although the Colorado Supreme Court has not addressed the issue of an indirect purchaser's standing under the Colorado Antitrust Act, it has provided a conceptual framework for construing the act. In People v. North Avenue Furniture & Appliance, Inc., 645 P.2d 1291 (Colo.1982), the supreme court considered the scope of the "labor exemption" of the 1957 Act and held that the exemption was not intended to immunize carpet installers from prosecution for price-fixing in violation of the act. In the course of its opinion, the supreme court noted that the Colorado Antitrust Act was modeled on Wisconsin's statute which, in turn, was based on relevant portions of the Sherman Act of 1890, 15 U.S.C. § 1 (1976), and the Clayton Act of 1914, 15 U.S.C. § 17 (1976). In light of the federal sources of the 1957 Act and the fact that Wisconsin judicial precedent had consistently construed the Wisconsin antitrust statute in accordance with federal case law, the supreme court in People v. North Avenue Furniture & Appliance, Inc., supra, 645 P.2d at 1295-96, held that the 1957 Act should be interpreted consistently with federal antitrust law:
Given the substantial similarity in text and purpose present in the federal and state antitrust statutes, we believe that federal decisions construing the Sherman and Clayton Acts, although not necessarily controlling on our interpretation of the Colorado law, are nevertheless entitled to careful scrutiny in determining the scope of the state antitrust statute.
Similarly, in People v. Colorado Springs Board of Realtors, 692 P.2d 1055 (Colo.1984),...
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Table of cases
...Co.,568 F. Supp. 2d 546 (D.N.J. 2018), 171 Stern v. Imasco Ltd.,O.J. No. 4235 (S.C.J. 1999), 380 Stifflear v. Bristol-Myers Squibb Co.,931 P.2d 471 (Colo. App. 1996), 30, 408, 409 Strang v. Visa U.S.A., Inc., 2005 WL 1403769 (Wis. Cir. Ct. 2005), 66, 442 Stricklin v. Devaughn, DG ex rel., 5......