Dunlap v. Colorado Springs Cablevision, Inc.

Justice VOLLACK

dissenting:

The majority holds that consumers of Colorado Springs Cablevision, Inc. (Cablevision), have standing to bring an action for damages under the Unfair Practices Act (the Act), §§ 6-2-101 to -117, 2 C.R.S. (1973 & 1991 Supp.). The majority bases its holding on the premise that consumers may suffer injuries that the Unfair Practices Act is designed to prevent. I disagree. The Unfair Practices Act proscribes sales below cost and discriminatory sales when done with the intent to injure or destroy competitors.1 §§ 6-2-103(1), 6-2-105(1), 2 C.R.S. (1973). As such, consumers can never be appropriate parties to bring suits under the Unfair Practices Act.

I.

From 1966 through 1985, Cablevision exclusively provided cable television service in Colorado Springs. In the fall of 1985, Cablevision charged approximately $25 a month for cable services. At that time, Colorado Springs Citizens Cable, Inc. (Citizens Cable), began to offer cable services in a portion of northern Colorado Springs. Cablevision in turn reduced its monthly fee by $10 in the same portion of Colorado Springs serviced by Citizens Cable.

*1298On January 13, 1988, five consumers commenced an action for damages against Cablevision, contending that Cablevision’s bifurcated rate system violated the Unfair Practices Act. None of the five consumers lived in northern Colorado Springs. The consumers contended that they were forced to overpay for a service. The consumers did not contend, however, that Cablevision increased their rates when dropping rates in northern Colorado Springs.

The district court ruled that the consumers did not have standing to sue Cablevision because the Unfair Practices Act did not contemplate their injury. The district court found, conversely, that the Unfair Practices Act forbids discriminatory and below-cost pricing, and only applies to primary competitors. The district court concluded that the Act is not intended “to protect consumers who complain they pay too much.”

The consumers appealed. The court of appeals agreed with the district court’s finding that the consumers complained of an injury that the Unfair Practices Act was not designed to prevent. We granted cer-tiorari solely to determine whether the consumers have standing to sue Cablevision under the Unfair Practices Act. I find that they do not.

II.

Analysis of standing to sue under a statute, as the majority notes, generally involves a two-part inquiry into whether a claimant has alleged an actual injury and whether that injury is to a legally protected or cognizable interest. Maj. op. at 1289 (citing O’Bryant v. Public Utils. Comm’n, 778 P.2d 648, 652 (Colo.1989); Colorado Gen. Assembly v. Lamm, 700 P.2d 508, 516 (Colo.1985); Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977)). The second part of the standing inquiry, which is not met in this case, is satisfied when a claimant demonstrates that the injury alleged is of the type that the statute was enacted to prevent. Maj. op. at 1290; see Wimberly, 194 Colo. at 168, 570 P.2d at 538; see also Romer v. Colorado Gen. Assembly, 810 P.2d 215, 218 (Colo.1991) (“The requirement that the injury be to a legally protected interest ‘is grounded on prudential considerations of judicial self-restraint.’ ”). Thus, under Colorado law, the second part of standing analysis requires resort to statutory construction to determine whether the statute in question protects against the alleged injury.2 A careful review of the Unfair Practices Act demonstrates that it was not enacted to protect consumers. The Act limits its protection to competitors.'

A.

When construing statutes, our primary task is to give effect to the intent of the General Assembly. Farmer’s Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991). When interpreting comprehensive legislative schemes, we must give meaning to all portions thereof and construe statutory provisions to further legislative intent. A.B. Hirschfeld Press, Inc. v. City and County of Denver, 806 P.2d 917 (Colo.1991). We so construe statutes in order “to give consistent, harmonious and sensible effect to all [their] parts,” and to avoid absurd constructions. Walgreen v. Charnes, 819 P.2d 1039, 1043 (Colo.1991); see City of Ouray v. Olin, 761 P.2d 784 (Colo.1988).

*1299The majority looks only to the language in section 6-2-111(1) to conclude that “nothing in the context of the statutory scheme ... indieate[s] that the term ‘person’ as used in section 6-2-111(1) should be limited to exclude individual consumers from bringing suit under the statute.” Maj. op. at 1292. Section 6-2-111(1) states that “[a]ny person, firm, private corporation, municipal corporation, public corporation, or trade association may maintain an action to enjoin a continuance of any act in violation of sections 6-2-103 to 6-2-108 or 6-2-110.”

In so stating, the majority only focuses on one word and fails to consider the remaining provisions of the section, as modified by the Act in which it is located. The comprehensive statutory scheme, however, must be considered. When evaluated in its entirety, the Unfair Practices Act only authorizes suits brought by competitors.

B.

The Unfair Practices Act was first enacted in 1937. Act approved May 6, 1937, ch. 261, sec. 10, 1937 Colo.Sess.Laws 1280-87. From 1937 through 1969, the Act proscribed sales below cost and price discrimination when done with the intent to destroy competition or injure competitors. See §§ 55-2-1 to -3, 2 C.R.S. (1963); §§ 55-2-1 to -3, 2 C.R.S. (1953). Since its first version, the Act has authorized suits brought by “any person” to enforce its provisions. Ch. 261, sec. 10, 1937 Colo.Sess.Laws 1285. The Act has never expressly protected consumers from sales below cost or price discrimination. See §§ 6-2-101 to -117, 2 C.R.S. (1973 & 1991 Supp.); §§ 55-2-1 to - 3, 2 C.R.S. (1963); §§ 55-2-1 to -3, 2 C.R.S. (1953).

Similar legislation to the Colorado Unfair Practices Act, including its deceptively sweeping authorization to bring suit, was simultaneously adopted in a majority of states. Homer Clark, Statutory Restrictions on Selling Below Cost, 11 Vand. L.Rev. 105 (1957). At least one commentator has offered insight into the broad nature of these provisions:

A minor but illuminating feature of the sales below cost statutes is the provision that any person may sue to enjoin a violation. This makes every citizen a prosecutor, to the extent that he is willing to spend money on litigation. It was probably intended to make it possible for trade organizations to police the statute. It has led to some strange judicial decisions, such as the holding that a plaintiff may enjoin a breach of the statute even though he himself has been selling goods below cost_ In other words enforcement by private lawsuits is totally inappropriate and ineffective.

Id. at 125-26 (citations omitted).

The Colorado Unfair Practices Act currently prohibits two distinct activities: discriminatory sales and sales below cost. §§ 6-2-103, 6-2-105, 2 C.R.S. (1973). The two distinct activities are proscribed only insofar as they are done with the intent to destroy competition or injure competitors. §§ 6-2-103(1), 6-2-105(1), 2 C.R.S. (1973).

These proscriptions apply to “any person, partnership, firm, corporation, joint stock company, or other association engaged in business in this state.” § 6-2-105(1). The word “person” is followed by a list of terms that describe entities engaged in business.3 No reference is made to consumers or customers of such business entities. “Any person” thus means “any person ... engaged in business in this state.”4 § 6-2-105(1).

The Act gives both discretionary and mandatory enforcement authority to the Colorado Attorney General. § 6-2-111, 2 C.R.S. (1973). If the attorney general receives a statement setting forth facts sufficient to constitute a prima facie violation of any proscription in the Act, the attorney *1300general must seek injunctive relief. § 6-2-111(3), 2 C.R.S. (1973).

Placing section 6-2-111(1) in the context of the entire Act, I am compelled to conclude, as the majority concedes, that the language of section 6-2-111(1) is confined to primary-line competition.5 Maj. op. at 1296. This conclusion compels the interpretation that only competitors can bring actions under the Unfair Practices Act. The majority’s construction gives the language “any person” an absurd construction insofar as the proscriptions are clearly limited to entities engaged in business. §§ 6-2-103(1), 6-2-105(1), 2 C.R.S. (1973). The General Assembly clearly intended for “any person” to be construed as any person in the posture of a competitor when it borrowed the standard drafting terminology used by other states enacting similar legislation during the Depression.

III.

The majority finds “it significant that section 4(a) of the Clayton Act has been interpreted to permit consumer standing to bring suits for antitrust violations." Maj. op. at 1292. Section 4(a) of the Clayton Act provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor.” § 4(a), 15 U.S.C. § 15(a) (1991 Supp.). Any similarity between this provision and section 6-2-111(1) is illusory. Unlike section 6-2-111(1), section 4(a) of the Clayton Act addresses all federal antitrust violations, not just two distinct kinds of anticompetitive behavior. The federal test for standing that accompanies this statutory provision is far more complicated than the two-part inquiry applied under section 6-2-lll(l).6 Not only do federal courts follow a five-factor test, federal standing analysis also differs depending on the remedy sought.7 Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111 n. 6, 107 S.Ct. 484, 490 n. 6, 93 L.Ed.2d 427 (1986).

I do not dispute that direct purchasers may be entitled to bring actions under federal antitrust laws. See California v. ARC America Corp., 490 U.S. 93, 103, 109 S.Ct. 1661, 1666, 104 L.Ed.2d 86 (1988) (holding that direct purchasers can recover for monopoly overcharges under the Clayton Act). Federal antitrust laws do not, however, preempt state laws in this area. Id. at 102, 109 S.Ct. at 1665. The Supreme Court has recognized that it would be inappropriate for congressional policies to define. “what federal law allows States to do under their own antitrust law.” Id. at 103, 109 S.Ct. at 1666. This court is thus free to construe Colorado’s prohibitions on sales below cost and discriminatory sales in accordance with the intent of the Colorado General Assembly.

IV.

The majority construes the language “any person” to mean literally that any person can bring an action under the Unfair Practices Act. The Act, taken as a whole, does not yield to this construction. Accordingly, I find that the consumers do *1301not have standing under the Act and therefore I dissent.

I am authorized to say that Chief Justice ROVIRA and Justice KIRSHBAUM join in this dissent.

. The Act also proscribes secret rebates or refunds when extended to injure competitors. § 6-2-108, 2 C.R.S. (1973).

. Standing analysis under federal law, with respect to claims brought pursuant to the federal antitrust act, the Clayton Act, is far more complex. The United States Supreme Court has distinguished between constitutional standing and "antitrust standing". Southaven Land Co. v. Malone & Hyde, Inc., 715 F.2d 1079, 1084-85 (6th Cir.1983) (citing Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983)). The Supreme Court found that generally harm to antitrust plaintiffs satisfies the constitutional requirement of actual injury. Id. Federal courts must, however, "make a further determination whether the plaintiff is a proper party to bring a private antitrust action.” Id.

Accordingly, the Supreme Court enumerated a five-factor test for federal courts to use when analyzing standing. Id. Among the factors that federal courts must consider is whether a more direct victim of the alleged antitrust violation exists. Id.

. Section 6-2-103(1) similarly applies to "any person, firm, or corporation doing business in the state of Colorado and engaged in the production, manufacture, distribution, or sale of any commodity, product, or service, or output of a service trade."

. Under § 6-2-103(1), “any person” also means "any person ... doing business in the state of Colorado.”

. At least one other court has held that private persons cannot bring suit under a similar statutory scheme. Sivers Constr. Co. v. United States Steel Corp., 272 Or. 608, 538 P.2d 932, 934 (1975).

. See supra note 2. The federal test involves analysis of the following five factors: (1) the causal connection between the antitrust violation and harm to the plaintiff and whether that harm was intended to be caused; (2) the nature of the plaintiffs alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (3) the directness or indirectness of the injury, and the related inquiry of whether the damages are speculative; (4) the potential for duplicative recovery or complex apportionment of damages; and (5) the existence of more direct victims of the alleged antitrust violation. Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 537-45, 103 S.Ct. 897, 908-12, 74 L.Ed.2d 723 (1983).

. Federal standing analysis is directed by whether the antitrust plaintiff seeks treble damages or injunctive relief. Actions for treble damages present additional concerns, such as the potential for multiple lawsuits and double recovery, the difficulty of apportioning damages, and the existence of other parties sustaining more direct harm as a result of the anticompetitive behavior. Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111 n. 6, 107 S.Ct. 484, 490 n. 6, 93 L.Ed.2d 427 (1986).