State v. LG Electronics, Inc.

González, J.

¶1 Plaintiffs must file their lawsuits before the applicable statute of limitations runs or their suits will be dismissed as untimely. Historically, sovereigns were not subject to statutes of limitations without their explicit consent. Washington State has consented to some statutes of limitations but not to others. We are asked to decide whether our State has consented to a statute of limitations that would bar this antitrust suit filed by the Washington State attorney general on behalf of the State against more than 20 foreign electronics manufacturing companies. We find it has not and affirm.

Facts

¶2 On May 1, 2012, the State, through the attorney general, filed suit on behalf of itself and as parens patriae1 on behalf of persons residing in the state against a number of foreign electronics manufacturers. Clerk’s Papers (CP) at 1-28. The State alleges that between at least March 1, 1995, through at least November 25, 2007, the defendants violated RCW 19.86.030, which prohibits any “contract, combination ... or conspiracy in restraint of trade or commerce," *6by agreeing to raise prices and agreeing on production levels in the market for CRTs (cathode ray tubes), the dominant display technology used in televisions and computer monitors before the advent of LCD (liquid crystal display) panels and plasma display technologies. Id. at 1, 2, 24, 27. Due to this unlawful conspiracy, the State alleges, Washington consumers and the State of Washington itself paid supracompetitive prices for CRT products. Id. at 14. The complaint seeks “damages, restitution, civil penalties, costs and fees, and injunctive relief.” Id. at 2, 27-28.

¶3 Ten of the defendants filed a motion to dismiss, arguing the claims were time barred because Washington’s Consumer Protection Act (CPA), chapter 19.86 RCW, provides that actions for damages under RCW 19.86.090 must be brought within four years. CP at 29-59 (citing RCW 19.86.120). The State responded that RCW 19.86.120’s statute of limitations did not apply to its claims under RCW 19.86.080. Id. at 46. The State also argued that it was exempt from the statute of limitations under RCW 4.16.160, which provides that “there shall be no limitation to actions brought in the name or for the benefit of the state.” Id. at 48. The trial judge denied the motion to dismiss and certified the matter for discretionary review under RAP 2.3(b)(4).2 Id. at 95-96, 144. The Court of Appeals granted discretionary review of two questions:

“(1) Whether the four-year statute of limitations under RCW 19.86.120 applies to the Washington’s Attorney General’s Complaint brought pursuant to its parens patriae authority under RCW 19.86.080 that seeks actual damages for violations of RCW 19.86.030?
*7“(2) Whether RCW 4.16.160 should be applied to the Washington Attorney General’s parens patriae antitrust lawsuit seeking actual damages and restitution for citizens of Washington?”

State v. LG Elecs., Inc., 185 Wn. App. 123, 130, 340 P.3d 915 (2014) (footnotes omitted).

¶4 The Court of Appeals concluded that the CPA’s four-year statute of limitations did not apply to actions for injunctive relief and restitution brought by the attorney general under RCW 19.86.080 (.080) because it expressly applies only to actions for damages under RCW 19.86.090. Id. at 139. It also concluded the State’s .080 action was “brought for the benefit of the State” and thus exempt from any general statute of limitations under RCW 4.16.160, and affirmed the trial court. Id. at 151. The defendants who moved to dismiss (collectively LG Electronics) successfully petitioned for our review.

Analysis

¶5 Our review is de novo. Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005) (CR 12(b)(6) rulings) (citing Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)); Castro v. Stanwood Sch. Dist. No. 401, 151 Wn.2d 221, 224, 86 P.3d 1166 (2004) (interpretation of a statute) (citing State v. Karp, 69 Wn. App. 369, 372, 848 P.2d 1304 (1993)).

¶6 The CPA authorizes both public and private enforcement of its provisions. RCW 19.86.080, .090. Under .080, the attorney general is authorized to bring an action “in the name of the state, or as parens patriae on behalf of persons residing in the state” for injunctive relief, and the court is authorized to make “additional orders ... as may be necessary to restore to any person in interest any moneys or property . . . which may have been acquired by means of [a prohibited] act.” RCW 19.86.080(1), (2). RCW 19.86.080 directs the court to consider consolidating .080 actions with *8other related actions and to exclude from the amount of monetary relief awarded any amount that duplicates amounts already awarded for the same violation. RCW 19.86.080(3).

¶7 RCW 19.86.090 (.090) authorizes private persons to sue for injunctive relief and “actual damages,” and it provides the court with discretion to increase the award of damages up to three times the actual damages sustained. It also authorizes the State, “[w]henever [it] is injured, directly or indirectly,” by a violation of the act to sue for its “actual damages.” The CPA’s statute of limitations provision bars “claim[s] for damages under RCW 19.86.090” if not commenced within four years. RCW 19.86.120.

¶8 LG Electronics ask us to find that the State’s .080 parens patriae claim for injunctive relief and restitution is barred by RCW 19.86.120, the CPA’s statute of limitations for .090 damages claims. Alternatively, they contend that one of the general statutes of limitations in chapter 4.16 RCW applies: the catchall three-year statute of limitations for actions seeking recovery for “any other injury to the person or rights of another,” RCW 4.16.080(2), or the even broader catchall two-year limitations period for “[a]n action for relief not hereinbefore provided,” RCW 4.16.130. Suppl. Br. of Pet’rs at 13-14. We find that by its plain language, RCW 19.86.120 does not apply to .080 claims. We also find that the State’s action is not subject to the general statutes of limitation because RCW 4.16.160, which codifies the common law nullum tempus3 doctrine, applies. Under the nullum tempus doctrine, statutes of limitations do not run against the State unless the State expressly consents to the limitation on its sovereign powers.4

*9 I. The CPA’s Statute of Limitations Does Not Apply to the State’s .080 Claims

¶9 Reading the CPA as a whole, we conclude that the four-year statute of limitations of RCW 19.86.120 (.120) does not apply to .080 actions. First, by its plain language, .120 applies only to claims for damages under .090, which are distinct from claims under .080. Under the age old rule expressio unius est exclusio alterius, “ ‘[w]here a statute specifically designates the things upon which it operates, there is an inference that the Legislature intended all omissions.’ ” In re Pers. Restraint of Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999) (alteration in original) (quoting Queets Band of Indians v. State, 102 Wn.2d 1, 5, 682 P.2d 909 (1984)); Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wn.2d 94, 98, 459 P.2d 633 (1969).

¶10 Second, we note that legislative history supports the conclusion that the legislature intentionally excluded .080 claims from the limitations period in .120. In its original form, the CPA authorized the State to seek injunctive relief under .080 and authorized damages actions by both private parties and the State under .090. Laws of 1961, ch. 216, §§ 8, 9. The act provided a statute of limitations for “claim [s] for damages under [.090],” but did not reference .080 actions. Laws of 1961, ch. 216, § 12 (codified at RCW 19.86.120). In 1970, the legislature amended .080 to provide the court discretion to award monetary restitution pursuant to a state action for injunctive relief. Laws of 1970, 1st Ex. Sess., ch. 26, § 1. Again in 2007, the legislature amended .080 to add the language “or as parens patriae on behalf of persons *10residing in the state” and to expressly provide that for certain violations of the act, restitution may be awarded to persons in interest regardless of whether they were direct or indirect consumers of goods. Laws of 2007, ch. 66, § 1. Significantly, although the legislature also amended .120 in 1970 in other ways not relevant to this case, it has never amended it to encompass .080 claims. See Laws of 1970, 1st Ex. Sess., ch. 26, § 5. We decline to find that the legislature was absent minded, and instead we follow our long standing precedent that in such circumstances, “ ‘the silence of the Legislature is telling’ and must be given effect.” Hopkins, 137 Wn.2d at 901 (quoting Queets Band of Indians, 102 Wn.2d at 5).

¶11 LG Electronics argues that a four-year limitations period applies because the legislature explicitly directed courts to construe the CPA in harmony with federal antitrust statutes, and that under federal law, claims brought by state attorneys general are subject to a four-year limitations period. 15 U.S.C. §§ 15b, 15c. While the CPA directs courts interpreting the act to “be guided by final decisions of the federal courts . . . interpreting the various federal statutes dealing with the same or similar matters,” RCW 19.86.920, we have declined to follow federal law where the language and structure of the CPA departs from otherwise analogous federal provisions. See, e.g., State v. Black, 100 Wn.2d 793, 799, 802-03, 676 P.2d 963 (1984). While the CPA, like the Clayton Act, 38 Stat. 730 (1914), permits the state attorney general to bring a parens patriae action, the statutory parallel turns perpendicular at that point and so the federal statute dealing with limitations periods is not a helpful guide here. The federal Clayton Act authorizes state attorneys general to sue for treble damages for persons injured in their business or property under 15 U.S.C. § 15c. The Clayton Act’s four-year statute of limitations provision expressly applies to actions brought pursuant to 15 U.S.C. § 15c. In contrast, the Washington Legislature authorized the attorney general to enjoin violations of the act and to *11recover money or property as restitution under .080, and in a separate statutory provision, .090, authorized treble damages claims by private persons for injuries to business and property and by the State for its direct and indirect injuries. The language of this statute of limitations includes only actions brought under .090.

¶12 LG Electronics also urges us to find the four-year limitations period applies because there is “significant overlap” between .080 and .090 claims. Suppl. Br. of Pet’rs at 14-15. Petitioners posit that actions brought under .080 challenge “identical conduct by identical defendants as would an [.]090 damages claim expressly governed by the [.] 120 limitations period” and so under Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 469, 722 P.2d 1295 (1986), “[i]t is anomalous to treat those claims so differently for limitations purposes.” Suppl. Br. of Pet’rs at 15. But in Eastwood, we were asked to decide if the statute of limitations for “libel” and “slander” (defamation claims) encompassed false light invasion of privacy claims, which could be brought by the same plaintiff against the same defendant for the same conduct. 106 Wn.2d at 469. We analyzed the similarities between the elements of false light and defamation claims and concluded that “the theoretical difference between the two torts is that a defamation action is primarily concerned with compensating the injured party for damage to reputation, while an invasion of privacy action is primarily concerned with compensating for injured feelings or mental suffering[, but] [t]he two torts overlap ... when the statement complained of is both false and defamatory.” Id. at 470-71. Thus, we concluded that where the facts in the false light case also give rise to a defamation claim, a plaintiff cannot avoid the two-year limitations period by characterizing it as a false light claim for statute of limitations purposes. Id. at 469. Here, however, RCW 19.86.120 expressly includes only .090 claims, which are qualitatively different from .080 claims, which can be brought only by the attorney general. The statute simply cannot be read to encompass .080 claims, and so Eastwood is not helpful.

*12¶13 We cannot ignore the plain language of the statute or the relevant history that produced it. The legislature has expressly instructed that the State shall not be subject to the policies of preventing stale claims inherent in statutes of limitations because of competing policy considerations regarding the public welfare and the State’s purse. RCW 4.16.160.

II. The State’s .080 Action Is Encompassed by RCW 4.16.160

¶14 At common law, statutes of limitations did not run against the State under the old nullum tempus doctrine. Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 114, 691 P.2d 178 (1984) (quoting United States v. Thompson, 98 U.S. (8 Otto) 486, 489-90, 25 L. Ed. 194 (1878)). The Washington Legislature codified the common law nullum tempus doctrine more than 100 years ago. Id. at 115 (citing Laws of 1903, ch. 24, § 1).

¶15 RCW 4.16.160 provides:

The limitations prescribed in this chapter shall apply to actions brought in the name or for the benefit of any county or other municipality or quasimunicipality of the state, in the same manner as to actions brought by private parties: PROVIDED, That . . . there shall be no limitation to actions brought in the name or for the benefit of the state, and no claim of right predicated upon the lapse of time shall ever be asserted against the state.

(Emphasis added.)

¶16 The nullum tempus doctrine is related to the doctrine of sovereign immunity and the age-old principle that the sovereign’s rules do not bind the sovereign itself unless the sovereign explicitly consented to be bound:

“The common law fixed no time as to the bringing of actions. Limitations derive their authority from statutes. The king was held never to be included, unless expressly named. No laches was imputable to him. These exemptions were founded upon *13considerations of public policy. It was deemed important that, while the sovereign was engrossed by the cares and duties of his office, the public should not suffer by the negligence of his servants. ‘In a representative government, where the people do not and cannot act in a body, where their power is delegated to others, and must of necessity be exercised by them, if exercised at all, the reason for applying these principles is equally cogent.’
“When the colonies achieved their independence, each one took these prerogatives, which had belonged to the crown; and when the national Constitution was adopted, they were imparted to the new government as incidents of the sovereignty thus created. It is an exception equally applicable to all governments.”

Bellevue Sch. Dist. No. 405, 103 Wn.2d at 114 (quoting Thompson, 98 U.S. at 489-90); see State v. Vinther, 176 Wash. 391, 393, 29 P.2d 693 (1934). Thus, unless there is an express provision to the contrary, no statute of limitations applies to actions in the name of or for the benefit of the State. Bellevue Sch. Dist. No. 405, 103 Wn.2d at 120. We find that the attorney general’s .080 action is “in the name of or for the benefit of... the state” for the purposes of RCW 4.16.160.

¶17 We have embraced the common law principle that where the State “is a mere formal plaintiff in a suit, not for the purpose of asserting any public right or protecting any public interest, but merely to form a conduit through which one private person can conduct litigation against another private person,” it is not immune from statutes of limitation under RCW 4.16.160. Vinther, 176 Wash. at 393 (citing United States v. Beebe, 127 U.S. 338, 8 S. Ct. 1083, 32 L. Ed. 121 (1888)); Herrmann v. Cissna, 82 Wn.2d 1, 4-5, 507 P.2d 144 (1973) (quoting Wasteney v. Schott, 58 Ohio St. 410, 415, 51 N.E. 34 (1898)). Thus, we have looked beyond simply whether the action is brought in the name of the State to the character and nature of the action, examining whether an action is for the purpose of protecting the public interest. Vinther, 176 Wash. at 393-96; Herrmann, 82 Wn.2d at 5-6; *14see Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt, & Nichols-Kiewit Constr. Co., 165 Wn.2d 679, 202 P.3d 924 (2009).

¶18 LG Electronics argues that the nature and character of the State’s .080 action is not for the purpose of protecting the public’s interest within the meaning of RCW 4.16.160. They characterize the action as one enforcing a private or individual right because the State seeks monetary restitution for Washington consumers. See Suppl. Br. of Pet’rs at 11. But we have found state action may be exempt from limitations periods even when identifiable individuals may privately benefit from the state action. E.g., Vinther, 176 Wash. at 394-95; Herrmann, 82 Wn.2d at 5; see Wash. State Major League Baseball Stadium, 165 Wn.2d at 697 (“The ... language in RCW 4.16.160 is properly understood to refer to the character or nature of municipal conduct rather than its effect.” (citing Wash. Pub. Power Supply Sys. v. Gen. Elec. Co., 113 Wn.2d 288, 293, 778 P.2d 1047 (1989))).

¶19 In Vinther and Herrmann, we rejected arguments that state actions were subject to limitations periods merely because private individuals would benefit. Instead, we looked primarily to the statutory provisions that authorized the actions to determine whether they were for the benefit of the public generally, even if private individuals might benefit specifically. In Vinther, we considered whether the statute of limitations ran against the State in a suit to recover under workers’ compensation laws. We turned to the workers’ compensation act’s declaration of purpose, which provided, “ ‘The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wage worker.’ ” Vinther, 176 Wash. at 394 (quoting Rem. Rev. Stat. § 7673). We concluded that “the act, as a whole, is the exercise of a governmental function in the fullest sense of the word, *15having its support in the police power of the state.” Id. at 394-95. Thus, the State was not “merely suing in its own name for the benefit of private individuals—the contributors to the accident fund,” but rather was “acting in its sovereign capacity in furtherance of its public policy.” Id. at 393.

¶20 Subsequently, in Herrmann, we considered an action by the insurance commissioner in his capacity as statutory rehabilitator of an insurer against former officers and directors of the defunct insurer for losses due to negligence or fraud. 82 Wn.2d at 1. We found that although the proceeds of the commissioner’s suit “will inure to the benefit of the company and its policyholders,” it was “obvious [ ] [that] the commissioner is not authorized to take over the rehabilitation of insurance companies solely for the benefit of such companies, their shareholders, or policyholders.” Id. at 5. Because “[t]he legislature clearly had in mind, in enacting the insurance code, that such actions on the part of the commissioner would benefit the public generally” we rejected the contention that the suit was brought merely to enforce a private right. Id.

¶21 Here, although consumers may benefit from restitution, the legislature clearly intended for the attorney general’s enforcement under .080 to benefit the public generally. The CPA’s purpose is to “protect the public and foster fair and honest competition,” RCW 19.86.920, and when the attorney general brings a CPA action, “he acts for the benefit of the public,” Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d 88 (1976). “The Attorney General’s responsibility in bringing cases of this kind is to protect the public from the kinds of business practices which are prohibited by the statute; it is not to seek redress for private individuals.” Seaboard Sur. Co. v. Ralph Williams’ Nw. Chrysler Plymouth, Inc., 81 Wn.2d 740, 746, 504 P.2d 1139 (1973). Just like administering workers’ compensation and regulating insurance, safeguarding the public by prohibiting business practices that undermine fair and honest competition is well within the State’s police power.

*16¶22 Petitioners argue there is nothing inherently sovereign about the State’s parens patriae action enforcing antitrust laws. Suppl. Br. of Pet’rs at 8-12. Petitioners rely on a federal case, California v. Frito-Lay, Inc., where the Ninth Circuit concluded that the State of California did not meet federal parens patriae standing requirements (which permit a state to sue in federal court on behalf of its citizens to protect certain quasi-sovereign interests of the state) to sue for treble damages for its citizen-consumers under the federal Clayton Act. 474 F.2d 774, 777-78 (9th Cir. 1973). The petitioners do not argue that the analysis of federal courts under the parens patriae federal standing doctrine is coextensive with our inquiry about the character and nature of the State’s action under state law. Moreover, it appears that federal law as it stands today recognizes that a “state’s interest in preventing harm to its citizens by antitrust violations is, indeed, a prime instance of the interest that the parens patriae can vindicate by obtaining damages and/or an injunction.” In re Ins. Antitrust Litig., 938 F.2d 919, 927 (9th Cir. 1991). In considering state claims brought for violations of the Sherman Act, post-Frito-Lay, the Ninth Circuit concluded it is well established

[t]hat a state as parens patriae may sue to redress a violation of the antitrust laws .... Georgia v. Pennsylvania R.[R.] Co., 324 U.S. 439, 450-51, 65 S.Ct. 716, 89 L.Ed. 1051 (1945) (conspiracy in violation of antitrust laws is a wrong “of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.”)[.] There must, of course, be antitrust injury for an injunction to be granted. Each state here asserts its “quasi-sovereign interest in the health and well-being—both physical and economic—of its residents in general.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607, 102 S. Ct. 3260, 3269, 73 L. Ed. 2d 995 (1982). That interest makes each state “more than a nominal party.” Id.

Id. (citation omitted); see Nevada v. Bank of Am. Corp., 672 F.3d 661, 670-71 (9th Cir. 2012) (finding that the State of Nevada’s parens patriae consumer protection action was not *17removable from the state court under the federal Class Action Fairness Act of 2005, 28 U.S.C. §§ 1711-1715, because the State of Nevada, rather than individual consumers, was the real party in interest, noting that “Nevada brought this suit pursuant to its statutory authority . . . because of its interest in protecting the integrity of mortgage loan servicing. . . . Nevada has been particularly hard-hit by the current mortgage crisis, and has a specific, concrete interest in eliminating any deceptive practices that may have contributed to its cause.” (citing Washington v. Chimei Innolux Corp., 659 F.3d 842 (9th Cir. 2011))). Petitioners provide no support for their argument that the antitrust enforcement function must be exclusively delegated to the State in order for us to find the State’s action arises from its sovereign powers.

¶23 We are not persuaded that by amending .080 in 2007 to provide the attorney general may bring an action in the name of the State, “or as parens patriae on behalf of persons residing in the state,” the legislature intended to distinguish a parens patriae claim from one brought in the name of the State for the purposes of excluding it from RCW 4.16.160. Laws of 2007, ch. 66, § 1; Suppl. Br. of Pet’rs at 4-5. Nor are we convinced that the legislature’s use of the words “on behalf of persons residing in the state” evinces the legislature’s acknowledgment that parens patriae restitution claims benefit particular persons and not the state as a whole. RCW 19.86.080(1) (emphasis added). Not only does reading this intent into the legislature’s word choice strain logic, but to resolve the case on such a basis would be at odds with our approach, which has been to probe the nature and character of the action.

¶24 We find that under the specific provisions of RCW 4.16.160, in the absence of an express statute to the contrary, the attorney general’s suit for injunctive relief and restitution pursuant to .080 is immune from limitations periods. Thus, none of the general statutes of limitations in chapter 4.16 RCW apply.

*18Conclusion

¶25 We hold that when the attorney general enforces antitrust laws under RCW 19.86.080, he or she acts “in the name of or for the benefit of . . . the state” within the meaning of RCW 4.16.160. In the absence of an express statute to the contrary, the State’s action for injunctive relief and restitution pursuant to .080 is exempt from the statute of limitations in RCW 19.86.120 and from the general statutes of limitations in chapter 4.16 RCW. We affirm the courts below and remand to the trial court for further proceedings consistent with this opinion.

Johnson, Owens, Fairhurst, Wiggins, and Yu, JJ., and Hunt, J. Pro Tem., concur.

“Parens patriae,’’ literally “ ‘parent of his or her country,’ ’’ refers traditionally to the role of the state as sovereign. Black’s Law Dictionary 1287 (10th ed. 2014).

RAP 2.3(b)(4) provides discretionary review of a trial court decision may be accepted when

[t]he superior court has certified, or all the parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.

The common law doctrine “ ‘nullum tempus occurrit regí ” means “no time runs against the King.’’ Sigmund D. Schütz, Time to Reconsider Nullum Tempus Occurrit Regi—The Applicability of Statutes of Limitations against the State of Maine in Civil Actions, 55 Me. L. Rev. 373, 374 (2003).

We stress that our opinion is limited to the attorney general’s .080 claims. The attorney general’s complaint broadly requested injunctive relief, damages, resti*9tution, civil penalties, and attorney fees, and the State subsequently specified that it seeks damages on behalf of state agencies that were purchasers of CRT products under .090, restitution for state consumers under .080, and civil penalties under RCW 19.86.140. CP at 2, 27-28; State’s Resp. at 2. The Court of Appeals addressed only whether the State’s .080 claim for injunctive relief and restitution is subject to a statute of limitations and declined to consider whether the .090 and .140 claims were untimely, concluding those issues were beyond the scope of the certified questions it granted for review. LG Elecs., Inc., 185 Wn. App. at 151.