{¶ 26} As the majority correctly points out, there was no direct-purchaser requirement for standing to bring a Valentine Act claim prior to Illinois Brick.
{¶ 27} The weight of the authority does indeed provide that the Ohio Valentine Act is to be interpreted consistently with federal antitrust law. But that does not mean that we must follow the federal courts blindly when interpreting Ohio law. Illinois Brick interpreted thefederal antitrust laws as precluding any claims by indirect purchasers. And the federal antitrust laws were intended to supplement, not displace, state antitrust remedies.14
{¶ 28} After Illinois Brick, which drastically changed federal antitrust law, many states reenacted their own laws to specifically reject the Illinois Brick doctrine. Ohio did not — but reading much of anything into legislative inaction is dangerous. When our Valentine Act was passed, indirect purchasers had standing *Page 639 to sue. Why a federal interpretation of a federal law should change Ohio law escapes me.
{¶ 29} Twenty-seven other jurisdictions do allow for some indirect-purchaser actions. And Arizona, Iowa, North Carolina, and Tennessee courts have all upheld indirect-purchaser actions despite their legislatures' failure to enact repealer statutes.15 Ohio should follow their lead.
{¶ 30} The Valentine Act was adopted long before Illinois Brick. It allowed for indirect-purchaser actions. Now, the majority notes that Ohio can pass legislation to repeal the direct-purchaser requirement. But Ohio should not have to enact a new statute every time a federal court rules on a new antitrust case. What was the law prior to Illinois Brick should continue to be the law. Ohio should allow indirect-purchaser actions under the Valentine Act.
{¶ 31} The language of the Valentine Act is broad in granting standing to anyone "injured in the person's business or property by reason of anything forbidden or declared to be unlawful * * *."16 The Valentine Act prohibits a trust from fixing prices "to the public or consumer" in any manner.17 Trusts also cannot contract to fix prices to preclude unrestricted competition "among themselves, purchasers, or consumers * * *."18 And no person shall enter into a combination, contract, or agreement with the intent to fix the price or lessen the production or sale "of an article of service, use, or consumption * * *."19 This language shows a clear intent to allow consumers to proceed under Valentine. And consumers are usually indirect purchasers.
{¶ 32} The four jurisdictions without repealer statutes that have found indirect-purchaser claims to be valid have based their decisions on similar statutory language.20 The similarity to the Clayton Act did not give them pause other than *Page 640 to assert their judicial rights to interpret their own state statutes. We, too, should not stumble on similarities in the language.
{¶ 33} Illinois Brick dramatically changed the landscape of federal antitrust litigation. It effectively eliminated a remedy for the one party who was most likely to be injured by antitrust violations — the consumer.21 To suggest that Ohio should continue to apply an ongoing parallel federal-state construction here undermines Ohio courts' authority and robs consumers of their day in court.
{¶ 34} I am also not convinced of Illinois Brick's rejection of the industry-specific approach, which the majority now adopts. The EULAs are contracts between Microsoft and the end user — no more, no less. There may not be a direct exchange of money, but the license is the product. Allowing Microsoft to escape antitrust liability simply because it has figured out a way to insert a buffer of retailers, OEMs, and EULAs between it and its consumers creates an industry-specific exception to justice.
{¶ 35} Microsoft is in direct privity with its end users. Perhaps if Microsoft were willing to forego any and all suits arising out of these EULAs, then the end users would simply be indirect purchasers. But Microsoft uses the OEMs or retailers to get PCs into the users' homes and businesses. It then uses that direct contact with all consumers to force an EULA on all end users before they can use the computers that they purchased from somebody other than Microsoft. And Microsoft accomplishes all of this without suffering any of the ordinary legal consequences. Standard Oil never had it so easy.
{¶ 36} Therefore, I respectfully dissent.
14 California v. ARC America Corp. (1989), 490 U.S. 93,109 S.Ct. 1661.
15 Bunker's Glass Co. v. Pilkington (Ariz. 2003), 75 P.3d 99; Comesv. Microsoft Corp. (Iowa 2002), 646 N.W.2d 440; Hyde v. Abbott Labs,Inc. (N.C.App. 1996), 473 S.E.2d 680; and Sherwood v. Microsoft Corp. (July 31, 2003), Tenn. App. No. M2000-01850-COA-R9-CV.
16 R.C. 1331.08.
17 R.C. 1331.01(B)(4).
18 R.C. 1331.01(B)(5).
19 R.C. 1331.02.
20 See Bunker's Glass Co. v. Pilkington (Ariz. 2003), 75 P.3d 99;Comes v. Microsoft Corp. (Iowa 2002), 646 N.W.2d 440; Hyde v. AbbottLabs, Inc. (N.C.App. 1996), 473 S.E.2d 680; and Sherwood v. MicrosoftCorp. (July 31, 2003), Tenn. App. No. M2000-01850-COA-R9-CV.
21 See id.