State v. LG Electronics, Inc.

Gordon McCloud, J.

¶26 (concurring in part and dissenting in part) — The Washington State attorney general filed this parens patriae action on May 1, 2012, over 17 years after the alleged CRT5 price-fixing conspiracy began and over four years after he learned about it. Clerk’s Papers (CP) at 2, 26, 32 n.1, 58. He filed it for the benefit of certain private parties: the millions of Washington residents who indirectly purchased products (like televisions) with CRT components inside. The complaint also references a handful of residents who directly purchased CRTs unincorporated into a useable consumer product. CP at 1-2. The handful of direct purchasers for whose benefit the State filed could not have brought this action themselves: their claims for damages under RCW 19.86.090 were likely time barred by RCW 19.86.120’s four-year statute of limitations. The main beneficiaries of this action—the indirect purchasers—could not have filed this action for themselves either: their claims would face not only RCW 19.86.120’s four-year time bar but *19also the Consumer Protection Act’s (CPA), chapter 19.86 RCW, bar on private indirect purchaser claims.6 In this case, we consider whether the State can circumvent this statutory framework by bringing these otherwise time barred and unauthorized indirect claims through a parens patriae action under RCW 19.86.080. The statutory scheme compels us to answer no. I therefore respectfully dissent.

Introduction

¶27 Of the 24 jurisdictions that have authorized their attorneys general to bring parens patriae actions,7 18 jurisdictions expressly require that these claims be commenced within four years of accrual.8 Washington, Connecticut, Oregon, and Virginia, however, lack such express time limits for parens patriae actions. The certified questions9 in this case ask us to determine whether parens *20patriae actions brought under RCW 19.86.080 are subject to the same four-year statute of limitations (of RCW 19.86.120) as private direct purchaser claims brought under RCW 19.86.090, or are instead exempt from general statutes of limitations by application of RCW 4.16.160. See CP at 145.

¶28 I agree with the majority’s conclusion that RCW 19.86.120’s time bar is inapplicable to RCW 19.86.080 claims. But I disagree with the majority’s conclusion that the legislature gave the attorney general the authority to circumvent all statutes of limitations by authorizing him or her to sue “as parens patriae on behalf of persons residing in the state!’ RCW 19.86.080(1) (emphasis added). On the contrary, it is well settled that the State cannot avoid statutory time bars by lending its name to otherwise time-barred private claims. RCW 4.16.160, which exempts the State from time limits on certain claims, is therefore limited to actions brought “in the name or for the benefit of... the state.” This parens patriae action does not fall into either category. It was brought under RCW 19.86.080, and that statute states that parens patriae actions are not brought “in the name of the state” or “for the benefit of the state,” but to vindicate individual claims “on behalf of persons residing in the state.” I therefore agree with the majority’s answer to the first certified question: RCW 19.86.120’s four-year time bar does not apply here. But I disagree with its answer to the second certified question. I would hold that RCW 4.16.160’s exemption does not apply here, either.

Analysis

¶29 Statutory interpretation is a question of law reviewed de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761-62, *21317 P.3d 1003 (2014). “In construing a statute, our paramount duty is to ascertain and give effect to the intent of the Legislature.” Wash. Pub. Power Supply Sys. v. Gen. Elec. Co., 113 Wn.2d 288, 292, 778 P.2d 1047 (1989) (citing Addleman v. Bd. of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986)).

¶30 Where possible, we must give effect to the plain meaning of a statute as an expression of legislative intent. Jametsky, 179 Wn.2d at 762. “[W]e do not look at [the] words alone, but ‘all [of] the terms and provisions of the act in relation to the subject of the legislation, the nature of the act, [and] the general object to be accomplished and consequences that would result from construing the particular statute in one way or another.’ ” BAC Home Loans Servicing, LP v. Fulbright, 180 Wn.2d 754, 766, 328 P.3d 895 (2014) (second and third alterations in original) (internal quotation marks omitted) (quoting Burns v. City of Seattle, 161 Wn.2d 129, 146, 164 P.3d 475 (2007)). We interpret a statute to give effect to all its language and to leave no portion meaningless or superfluous. Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 440, 359 P.3d 753 (2015). If we find after examination that a statute is subject to more than one reasonable interpretation, then we may use statutory construction, legislative history, and relevant case law to help discern legislative intent. Jametsky, 179 Wn.2d at 762.

A. The Legislature Amended RCW 19.86.080 in 2007 To Allow the Attorney General To Bring Parens Patriae Claims “On Behalf of Persons Residing in the State”

¶31 The two certified questions before us involve the scope of the attorney general’s authority to bring parens patriae actions “on behalf of” others under RCW 19.86.080(1). Some background regarding the development of parens patriae claims is therefore necessary to interpret the key statutes at issue here.

¶32 RCW 19.86.080 was originally enacted in 1961. It authorized the attorney general “to bring an action in the *22name of the state against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful” under the CPA. Laws of 1961, ch. 216, § 8. Notably, at that time, the attorney general lacked statutory parens patriae authority.

¶33 In 2007, the legislature amended the statute to allow the attorney general to bring actions “in the name of the state, or as parens patriae on behalf of persons residing in the state.” Laws of 2007, ch. 66, § 1(1) (underlined language added by 2007 amendment). The legislature also authorized the trial court to “make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired, regardless of whether such person purchased or transacted for goods or services directly with the defendant or indirectly through resellers.” Laws of 2007, ch. 66, § 1(3).10

¶34 The 2007 amendments served an important purpose. They were introduced in the legislature at the behest of the attorney general. History of Bill: SB 5228, http://app.leg.wa.gov/dlr/billsummary/default.aspx?year=2007&bill=5228 [https://perma.cc/9XB2-CHXQ]. That year, he was involved in a multistate action against manufacturers of dynamic random access memory (DRAM), seeking damages on behalf of indirect purchasers of DRAM products. State v. Infineon Techs. AG, 531 F. Supp. 2d 1124 (N.D. Cal. 2007). The defendants moved to dismiss these indirect purchaser claims on the ground that the statute precluded the attorney general from seeking relief on behalf of indirect purchasers. Id. at 1140, 1151-54 (citing as the basis for this argument the United States Supreme Court’s decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, 728, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977), which held indirect purchaser claims were too *23attenuated to proceed under federal antitrust law). The 2007 amendments addressed this argument: for the first time, the legislature provided the attorney general with express statutory authority to pursue claims on behalf of indirect purchasers under Washington law. See, e.g., Wash. State House of Representatives, Office Program Research, Judiciary Comm., SSB 5228, at 2 (H.R. Rep. SSB 5228), http://lawfilesext.leg.wa.gov/biennium/2007-08/Pdf/Bill%20Reports/House/5228-S.HBA%2007.pdf [https://perma.cc/7AD3-GMMF].

¶35 Notably, the legislature did not authorize indirect purchasers to bring private claims under RCW 19.86.090 themselves. Private actions under RCW 19.86.090 therefore remained limited to direct purchasers only.

¶36 The legislature also declined to amend RCW 19.86.120’s four-year statute of limitations to include the attorney general’s newly authorized indirect purchaser claims. This absence of an express statute of limitations for RCW 19.86.080(1) claims forms the basis of the two certified questions before us.

B. Question 1—Whether the four-year statute of limitations under RCW 19.86.120 applies to the Washington 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?

¶37 I agree with the majority’s conclusion that RCW 19.86.120’s plain language excludes RCW 19.86.080 claims. RCW 19.86.120 provides, in pertinent part, that “[a]ny action to enforce a claim for damages under RCW 19.86.090 shall be forever barred unless commenced within four years after the cause of action accrues.” RCW 19.86.120 is silent as to whether it applies to claims brought under RCW 19.86.080. “ ‘Where a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things *24omitted from it were intentionally omitted by the legislature under the maxim expression unius est exclusio alterius—specific inclusions exclude implication.’"11 The legislature’s omission of RCW 19.86.080 claims from RCW 19.86.120 indicates its intent that RCW 19.86.120’s time bar does not apply to RCW 19.86.080 claims.

C. Question 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?

¶38 Although I agree with the majority that RCW 19.86.120 does not apply to parens patriae actions brought under RCW 19.86.080, I do not agree that these actions are exempt from all other statutes of limitations by virtue of RCW 4.16.160.

i. The Exemption from Statutory Time Limits in RCW 4.16.160 Is Limited to Actions “Brought in the Name or for the Benefit of the State”

¶39 Chapter 4.16 RCW prescribes general time limits within which civil actions must be commenced. See RCW 4.16.005. Of particular interest here are two catchall provisions, RCW 4.16.080(2) and RCW 4.16.130. RCW 4.16.080(2) requires actions seeking recovery for “any other injury to the person or rights” to be filed within three years, and RCW 4.16.130 requires “[a]n action for relief not [otherwise] provided for” to be filed within two years. RCW 4.16.160, however, exempts from these time limits those “actions brought in the name or for the benefit of the state.”

¶40 Notwithstanding that broad language, “RCW 4.16.160 . . . has never been literally followed.” U.S. Oil & Ref. Co. v. Dep’t of Ecology, 96 Wn.2d 85, 89, 633 P.2d 1329 (1981) (holding RCW 4.16.160 inapplicable to a claim by the *25State for penalties/forfeitures because it is limited to remedial claims). Throughout the years, we have recognized many situations in which RCW 4.16.160’s exemption from time bars does not apply. Id.

¶41 Relevant to this case is the “well-founded” rule that the State cannot use RCW 4.16.160 to revive time-barred private actions. State v. Vinther, 176 Wash. 391, 393, 29 P.2d 693 (1934). As we have repeatedly explained, RCW 4.16.160 does not apply “when the state is a mere formal plaintiff in a suit, [acting] 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.” Id.; see also Herrmann v. Cissna, 82 Wn.2d 1, 5, 507 P.2d 144 (1973).

¶42 For that reason, in actions brought by the State, our inquiry has focused on “whether the state ... is acting in its sovereign capacity in furtherance of its public policy, or merely suing in its own name for the benefit of private individuals.”12 Vinther, 176 Wash. at 393. The State undoubtedly acts in its sovereign capacity in furtherance of public policy when it seeks to ensure the proper operation of *26the government or to collect taxes and fees. See State ex rel. Carroll v. Bastian, 66 Wn.2d 546, 546-49, 403 P.2d 896 (1965) (unraveling an invalidly incorporated municipality); State v. Miller, 32 Wn.2d 149, 151-56, 201 P.2d 136 (1948) (preventing nepotism in governmental operations); State v. City of Aberdeen, 34 Wash. 61, 62-70, 74 P. 1022 (1904) (collecting liquor license fees).

¶43 However, when the State seeks to collect on private claims against private entities for the benefit of private parties, the result is less clear as to whether such cases are “for the benefit of the state” under RCW 4.16.160. This is because there is always some conceivable public benefit (such as general deterrence) when the State enforces its laws, regardless of whether the lawsuit is brought on its own behalf or on behalf of others. Our decisions therefore look to the legislative intent concerning each statute to determine whether it was designed primarily to further a stated public policy or instead to secure private recovery. See Herrmann, 82 Wn.2d at 5-6 (policy of protecting public from deceptive insurance practices); Vinther, 176 Wash. at 394 (policy of protecting health of state workforce through workers compensation accident fund). Legislative intent is key.

ii. The Legislature Expressly Excluded Parens Pat-riae Actions from the Reach of RCW 4.16.160’s Exemption

¶44 We do not need to look any further than the plain language of RCW 19.86.080 to determine whether the legislature intended parens patriae actions primarily to further a public policy “for the benefit of the state,” rather than primarily to secure private recovery. The legislature has said it is for the latter purpose, not the former.

¶45 This is clear from the statute’s language. RCW 19.86.080(1) authorizes the attorney general to bring actions “in the name of the state, or as parens patriae.” (Emphasis added.) The legislature thus clearly distinguished *27the first type of action—one brought in the name of the State—from the second type—one brought by the State not in its own “name” but as “parens patriae.” The legislature also specified the beneficiaries of such parens patriae actions, and it’s not the State: RCW 19.86.080(1) says that such parens patriae actions are brought “on behalf of persons residing in the state” and that any recovery must go to these persons in interest whose money or property were unlawfully acquired. RCW 19.86.080(3).

¶46 This distinctive language is more than just semantics. It reflects the legislature’s intent, as expressed in bill reports, that the parens patriae vehicle would “allow! ] the state to bring legal actions or seek remedies on behalf of individuals in order to protect them from harm.” H.R. Rep. SSB 5228, supra, at 2 (emphasis added). From this, it is clear that the legislature authorized the attorney general to bring parens patriae actions under RCW 19.86.080 to protect individuals, not the general public.

¶47 Because these actions are brought on behalf of and for the protection of specific individuals, it logically follows that the legislature did not intend such actions to be exempt from any time bar under RCW 4.16.160, especially when this court has repeatedly said RCW 4.16.160 does not apply to actions where the State acts as a mere conduit for private claims. See Herrmann, 82 Wn.2d at 5; Vinther, 176 Wash. at 393; see also Pac. Nw. Bell Tel. Co. v. Dep’t of Revenue, 78 Wn.2d 961, 966, 481 P.2d 556 (1971) (holding the defendant could assert a statute of limitations defense against the State, notwithstanding the exemptions of RCW 4.16.160, because the State’s echeat claim was derivative of the underlying private individual’s claim against the defendant).

¶48 The majority relies on the CPA’s general policy statement to support a contrary conclusion. Majority at 15. But we have explicit, plain statutory language in RCW 19.86.080 that applies specifically to parens patriae *28claims.13 That specific legislative directive controls over the more general policy statement. Of even more concern is the unlikely results the majority’s opinion produces. Under that opinion, direct purchasers must bring their claims within four years; yet the attorney general can revive these dead claims and even bring the far more attenuated indirect purchaser claims at any time in perpetuity. The plain language of RCW 19.86.080 avoids this irrational result.

¶49 Contrary to the majority’s opinion, Herrmann and Vinther do not compel a different result. Majority at 14-15. They engaged in the same analysis that I use here, namely, they asked whether the claims brought by the State were primarily to benefit the State or primarily to benefit the individuals. Although they ruled that those actions were primarily to benefit the State, they did so based on the language and policies of the specific statutes at issue there. That language and those policies showed that the main point of those statutes was to benefit the State. See Herrmann, 82 Wn.2d at 5-7 (analyzing the legislative policy and statutory framework to determine whether the legislature intended actions by the insurance commissioner to be for the benefit of the general public); Vinther, 176 Wash. at 393-95 (analyzing the legislative policy and statutory framework to determine whether the legislature intended actions brought by the State pursuant to the Workers’ Compensation Act, Title 51 RCW, to be in furtherance of some public policy rather than for the benefit of private individuals). Not so here. As discussed above, RCW 19.86.080(1) classifies parens patriae actions as brought “on behalf of persons residing in the state” and distinguished them from actions brought “in the name of the state” or “for the benefit of. . . the state.” RCW 4.16.160. This language resolves the issue addressed in Herrmann and Vinther, *29which was whether the legislature intended the action to be one “for the benefit of. . . the state” under RCW 4.16.160.

¶50 Thus, the legislative record and plain language of RCW 19.86.080 shows that the legislature did not intend to exempt parens patriae actions under RCW 19.86.080 from statutory time limitations. No further analysis is required.

iii. We Have Never Characterized Parens Patriae Actions under RCW 19.86.080 as Actions for the Benefit of the State

¶51 The majority also quotes Seaboard Surety Co. v. Ralph Williams’ Northwest Chrysler Plymouth, Inc., 81 Wn.2d 740, 746, 504 P.2d 1139 (1973), in support of its assertion that all RCW 19.86.080 claims are for the benefit of the state. Majority at 15. But that’s not what Seaboard Surety said.

¶52 Seaboard Surety was decided in 1973, well before the legislature amended RCW 19.86.080 in 2007 to include parens patriae actions. At that time, the attorney general could sue only “in the name of the state” for injunctive relief, and not as parens patriae for “persons residing in the state.” Compare Laws of 1970, 1st Ex. Sess., ch. 26, § 1, with Laws of 2007, ch. 66, § 1. This distinction was critical to Seaboard Surety’s reasoning. See Seaboard Sur., 81 Wn.2d at 746. The court concluded that injunctive relief was the main focus of the attorney general’s action because at that time, the attorney general could bring only actions for injunctive relief. Although the statute allows the trial court to award individual damages, a claim for such damages could be sought only “incidental” to a suit for injunctive relief and an award for damages was uncertain because it was subject to the court’s discretion. See id.; see also Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d 88 (1976) (quoting Seaboard Surety for same description); State v. Ralph Williams’ N.W. Chrysler Plymouth, Inc., 82 Wn.2d 265, 276, 510 P.2d 233 (1973) (quoting same).

¶53 The statute is different now. The legislature altered this framework in 2007 when it authorized the attorney *30general to bring actions “as parens patriae on behalf of persons residing in the state.” Laws of 2007, ch. 66, § 1.

iv. The State Has Nothing To Gain from This Parens Patriae Action

¶54 Finally, even if the majority were correct that the legislature intended parens patriae actions to further the CPA’s goal “to protect the public and foster fair and honest competition,” RCW 19.86.920, it goes too far by concluding that this is the main goal of every parens patriae case. Majority at 17-18. I would still find RCW 4.16.160 does not apply to the State’s parens patriae claims in this case.

¶55 Just because a particular type of action can in some instances trigger the exemptions of RCW 4.16.160 does not mean that it always does. Whether it does in a particular case depends on the governmental interest at stake. See United States v. Beebe, 127 U.S. 338, 342, 8 S. Ct. 1083, 32 L. Ed. 121 (1888) (recognizing that in some instances, an action by the government to set aside a land patent could involve a cognizable public interest). Beebe is a good example of when the State’s interest in a particular action is too attenuated to be considered for the benefit of the government. See Herrmann, 82 Wn.2d at 8; Vinther, 176 Wash. at 393.

¶56 In Beebe, the Supreme Court held that the government’s action to set aside a land patent was not exempt from the statutory time bar applicable to private claims, even though the action was brought by the government. The reason was that the government in that instance had no interest in the suit, had nothing to gain from the relief prayed for, and had nothing to lose if the relief were denied. 127 U.S. at 346. The government’s lack of interest in the case was further shown by the fact that the government was not involved in the management of the case. Id. at 347.

¶57 Here, as in Beebe, the State has no interest in the outcome of this case. There is no ongoing public harm to correct because the underlying conspiracy became techno*31logically obsolete in 2007. The State has nothing to gain from the restitution sought and nothing to lose if such relief were denied because it sought relief solely “on behalf of persons residing in the state” and any restitution award must go to the person in interest whose money or property was unlawfully acquired. RCW 19.86.080(1), (3).

¶58 Even if the State were to retain some of the moneys awarded as a result of escheat, that would not alter the analysis: the State’s escheat claim is derivative of the underlying private claims and therefore subject to the same statute of limitations as those private claims. See Dep’t of Revenue v. Puget Sound Power & Light Co., 103 Wn.2d 501, 507, 694 P.2d 7 (1985) (not exempting the State’s escheat claim for abandoned utility deposits and dividends); Pac. Nw. Bell Tel., 78 Wn.2d at 966 (not exempting the State’s escheat claim for unclaimed property).14

Conclusion

¶59 RCW 19.86.080 expressly states that parens patriae actions brought under RCW 19.86.080 are commenced on “behalf of persons residing in the state” to protect them from harm. They are not brought “in the name of” or “for the benefit of the state.” The legislative reports concerning that statute’s 2007 amendment support this conclusion. I would therefore answer the certified questions as follows: Neither RCW 19.86.120 nor RCW 4.16.160 apply to parens patriae actions brought pursuant to RCW 19.86.080.

Madsen, C.J., concurs with Gordon McCloud, J.

CRTs (cathode ray tubes) are a form of display technology that was widely used in televisions and computer monitors until the introduction of LCD (liquid crystal display) and LED (light-emitting diode) displays.

Compare RCW 19.86.080(3) (permitting the State to file claims on behalf of private indirect purchasers), with RCW 19.86.090 (denying indirect purchasers the same private right of action).

See 15 U.S.C. § 15c(a)(1); Alaska Stat. § 45.50.577(b); Ark. Code Ann. § 4-75-315(b); Cal. Bus. & Prof. Code § 16760(a)(1); Colo. Rev. Stat. § 6-4-111(3)(a); Conn. Gen. Stat. § 35-32; Del. Code Ann. tit. 6, § 2108(b); D.C. Code § 28-4507(b); Fla. Stat. § 542.22(2); Haw. Rev. Stat. § 480-14(b); Idaho Code § 48-108(2); 740 Ill. Comp. Stat. 10/7; Md. Code Ann., Commercial Law § 11-209(b)(5); Mass. Gen. Laws ch. 93, § 9; Nev. Rev. Stat. § 598A.160(1); N.H. Rev. Stat. Ann. § 356:4-a(II); Okla. Stat. tit. 79, § 205(A)(1); Or. Rev. Stat. § 646.775(1)(a); 6 R.I. Gen. Laws § 6-36-12(a); S.D. Codified Laws §§ 37-1-32, 37-1-14.2; Utah Code Ann. § 76-10-3108(1); Va. Code Ann. § 59.1-9.15(d); RCW 19.86.080; W. Va. Code § 47-18-17(a).

See 15 U.S.C. § 15b; Alaska Stat. § 45.50.588; Cal. Bus & Prof. Code § 16750.1; Colo. Rev. Stat. § 6-4-118(1); Del. Code Ann. tit. 6 § 2111; D.C. Code § 28-4511(b); Fla. Stat. § 542.56(1); Idaho Code § 48-115(1); 740 Ill. Comp. Stat. 10/7; Md. Code Ann., Commercial Law § 11-209(d)(1); Mass. Gen. Laws ch. 93, § 13; Nev. Rev. Stat. § 598A.220(2); N.H. Rev. Stat. Ann. § 356:12(I); Okla. Stat. tit. 79, § 205(C); 6 R.I. Gen. Laws § 6-36-23; S.D. Codified Laws § 37-1-14.4; Utah Code Ann. § 76-10-3117(1); W. Va. Code § 47-18-11. But see Ark. Code Ann. § 4-75-320 (five years); Haw. Rev. Stat. § 480-14(b) (eight years).

The trial court certified two questions: “(1) Whether the four-year statute of limitations under RCW 19.86.120 applies to the Washington! 1 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? [and] (2) Whether RCW 4.16.160 should be applied to the Washington Attorney General’s parens *20patriae antitrust lawsuit seeking actual damages and restitution for citizens of Washington?” CP at 145. Notably, the certified questions do not ask us to determine what statute of limitations would apply in the instance we find, as I do, that neither RCW 19.86.120 nor RCW 4.16.160 apply.

This court’s answers to the certified questions do not compel a trial court to award restitution. RCW 19.86.080(3) leaves that decision to the discretion of the trial court.

Ellensburg Cement Prods., Inc. v. Kittitas County, 179 Wn.2d 737, 750, 317 P.3d 1037 (2014) (internal quotation marks omitted) (quoting Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (1999)).

In contrast, when the action involves a municipal act, “[t]he principal test for determining whether a municipal act involves a sovereign or proprietary function is whether the act is for the common good or whether it is for the specific benefit or profit of the corporate entity.” Wash. State Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 165 Wn.2d 679, 687, 202 P.3d 924 (2009) (citing Okeson v. City of Seattle, 150 Wn.2d 540, 550, 78 P.3d 1279 (2003)). We have applied the exemptions of RCW 4.16.160 in cases where the municipality engages in traditional state functions such as taxation, building schools, and maintaining public recreational spaces as opposed to engaging in conduct traditionally left to the private sector. Compare id. at 690-94 (constructing public baseball stadium), and Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 115-16, 691 P.2d 178 (1984) (building schools), and Allis-Chalmers Corp. v. City of N. Bonneville, 113 Wn.2d 108, 112, 775 P.2d 953 (1989) (collecting business and occupation taxes), and City of Tacoma v. Hyster Co., 93 Wn.2d 815, 821, 613 P.2d 784 (1980) (same), and Commercial Waterway Dist. No. 1 of King County v. King County, 10 Wn.2d 474, 478-80, 117 P.2d 189 (1941) (purchasing property as part of tax collecting duties), and Gustaveson v. Dwyer, 78 Wash. 336, 337, 139 P. 194 (1914) (same), aff’d on different grounds, 83 Wash. 303, 304-06, 145 P. 458 (1915), with Wash. Pub. Power Supply Sys., 113 Wn.2d at 299-300 (operating electricity plant), and Wash. State Major League Baseball, 165 Wn.2d at 688-89 (operating water system (citing City of Moses Lake v. United States, 430 F. Supp. 2d 1164, 1171-78 (E.D. Wash. 2006))).

In light of the limited number of jurisdictions without an express statute of limitation provision, the Superior Court of Connecticut’s decision in Connecticut v. Mobilia, Inc., No. 65134, 1983 WL 14950, at *1-2 (Super. Ct. Conn. June 3, 1983) (unpublished) appears to be the only analogous case, and it suffers from the same interpretive flaw.

Again, Herrmann does not compel a different result. Unlike in Herrmann, where the State had an interest in protecting the integrity of the existing insurance system through deterrence of potentially repetitive behavior, 82 Wn.2d at 7, here, there is no potential for the alleged conspiracy to reoccur as CRTs are old technology.