Bunker's Glass Co. v. PILKINGTON, PLC

McGREGOR, Vice Chief Justice,

dissenting.

¶ 42 I respectfully dissent. I depart from the majority opinion on two central points. First, I would follow the legislature’s expressed intent in adopting the Arizona Antitrust Act and interpret Arizona Revised Statutes (A.R.S.) section 44-1408.B consistently with comparable federal law. Second, I disagree with the majority’s characterization of the question whether the plaintiffs can bring their actions as involving simply a procedural question of standing. I regard the question as one of substantive law: Did the plaintiffs suffer an antitrust injury as defined by the Arizona Antitrust Act? I believe they did not.

A.

¶ 43 When we construe a statute, our goal is to interpret it in a manner that effectuates the legislature’s intent in adopting the statute. Hohokam Irrigation & Drainage Dist. v. Ariz. Pub. Serv. Co., 204 Ariz. 394, 398 ¶ 15, 64 P.3d 836, 840 (2003). Often, deciphering legislative intent presents a considerable challenge. In this instance, however, the legislature made our task of discerning its goal simpler by including an express *21statement of intent. When the Arizona Legislature adopted the Arizona Antitrust Act, it could scarcely have more clearly announced that it valued uniformity in antitrust law, both among states and between state and federal governments. The legislature revealed its preference for uniformity first by patterning its legislation after the Uniform State Antitrust Act, 7C U.L.A. 351 (2000) (Uniform Act). The drafters of section 8 of the Uniform Act, which Arizona codified at A.R.S. section 44-1408.B, intended to adopt “[t]he private right of action for injury to business or property by reason of a violation of the Act found in section 4 of the Clayton Act____” Unif. State Antitrust Act § 8 cmt., 7C U.L.A. 366 (2000). The drafters of the Uniform Act further emphasized the importance of uniformity between federal and state antitrust law by stating that “[sjince the [Uniform] Act parallels the federal antitrust structure in its basic prohibitions, the following of federal antitrust precedent should be encouraged.” Id. at 352. Hence, Arizona’s decision to adopt the Uniform Act, in itself, revealed an intent that Arizona develop a body of antitrust law consistent with federal precedent.

¶ 44 But the legislature did not stop with that step. To emphasize the importance the legislature placed upon uniformity, and presumably to make certain that the courts understood the legislative intent to achieve uniformity, the legislature adopted section 44r-1412, which states:

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states that enact it. It is the intent of the legislature that in construing this article, the courts may use as a guide interpretations given by the federal courts to comparable federal antitrust statutes.

¶ 45 The first sentence of section 44-1412 establishes a goal of uniformity among those states that adopted the Uniform Act. That goal proved impossible to meet. Since its publication in 1973, only three other states have adopted the Uniform Act: Delaware, Michigan and North Dakota. While these three jurisdictions are referred to as “Uniform Act states”, none of them adhere to the original Uniform Act civil cause of action language. Delaware substantially amended the section and allows only the state to bring an action for anti-competitive conduct. Del. Code Ann. tit. 6, § 2108(b) (1999). The legislatures in both Michigan and North Dakota enacted so-called Illinois Brick repealer statutes that broadened the scope of antitrust injury to include indirect purchasers. Mich. Comp. Laws § 445.778(2) (2001); N.D. Cent. Code § 51-08.1-08(3) (1999). Because so few states adopted the Uniform Act and even those that did modified it, the legislature’s goal of uniformity became impossible to meet by looking to other Uniform Act jurisdictions.

¶46 The legislature, however, enhanced Arizona’s opportunity to achieve uniformity in the field of antitrust law by adding a federal guidance clause as the second sentence to A.R.S. section 44-1412. The majority discounts the importance of the guidance clause, largely relying upon the fact that the legislature used permissive rather than mandatory language. Op. ¶ 9.1 think the legislative language deserves greater deference: I regard the clause as directive language that we should follow absent compelling arguments to the contrary. The majority’s approach, which rejects federal law, gives no deference to the legislature’s direction and thus deprives the guidance clause of effect. Quite obviously, this court can look to federal law for guidance without obtaining permission from the legislature. See, e.g., Higdon v. Evergreen Int'l Airlines, Inc., 138 Ariz. 163, 165 n. 3, 166, 673 P.2d 907, 909 n. 3, 910 (1983) (applying a federal court interpretation of a Title VII exemption to construe a similar provision in the Arizona Civil Rights Act and the Equal Pay Act); Beaman v. Westward Ho Hotel Co., 89 Ariz. 1, 5-6, 357 P.2d 327, 329-30 (1960) (applying a federal court interpretation defining “wages” under the Federal Unemployment Tax Act to define the same term under A’izona law). When the legislature added the guidance clause, therefore, it must have meant something more. I understand the “something more” to involve an expression of the legislature’s preference for uniformity, and there*22fore predictability, in the area of antitrust law.

¶ 47 Were we to follow the guidance clause and look to federal law for guidance in this instance, the plaintiffs could not proceed; federal law clearly bars their claims. The federal courts have interpreted a comparable federal antitrust statute. The language of section 44-1408.B is almost identical to its federal counterpart, section 4 of the Clayton Act. Section 4 provides, as does section 44-1408, that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States....” 15 U.S.C. § 15(a) (2000). In Illinois Brick Co. v. Illinois, the Supreme Court held that, for purposes of section 4 of the Clayton Act, an indirect purchaser of goods is not a person injured by a manufacturer’s anti-competitive conduct, even though that conduct leads to goods being purchased by the indirect purchaser at a higher price than would exist but for the antitrust violation. 431 U.S. 720, 729, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). “[T]he overcharged direct purchaser, and. not others in the chain of manufacture or distribution, is the party ‘injured in his business or property.’” Id. (emphasis added).

¶ 48 In this instance, then, we can fulfill the legislature’s desire for a uniform approach in cases involving alleged antitrust injury by drawing from the federal experience. Instead, the majority has adopted an approach that ensures non-uniformity between state and federal law, without defining any compelling reason for doing so.

¶ 49 The majority does not explain why we should now depart from our prior practice of interpreting Arizona’s antitrust statutes consistently with comparable federal statutes. See All Am. Sch. Supply Co. v. Slavens, 128 Ariz. 261, 262, 625 P.2d 324-25 (1981) (adopting federal courts’ interpretation of antitrust violation and describing federal decisions as dispositive); Pasco Indus., Inc. v. Talco Recycling, Inc., 195 Ariz. 50, 57 ¶ 25, 985 P.2d 535, 542 (App.1998) (adopting a federal court interpretation of “monopoly power” as used in section 2 of the Sherman Act); Wedgewood Inv. Corp. v. Int’l Harvester Co., 126 Ariz. 157, 160, 613 P.2d 620, 623 (App.1979) (“The Arizona legislature clearly intended to strive for uniformity between federal and state antitrust laws.”). Indeed, today’s decision becomes the first Arizona Antitrust Act case in which we do not look to federal law to resolve a question of the appropriate interpretation of a state antitrust statute.

¶ 50 The impact of today’s departure from our long-standing practice remains unclear. Apparently we now will interpret some provisions of the Arizona Antitrust Act consistently with federal law and, in other instances, disregard federal law, as we do today. The majority does not tell businesses, litigants, or courts how to discern which rule applies to any particular antitrust issue, a result that creates unnecessary and harmful uncertainty.10

¶ 51 The majority relies, in part, on the Supreme Court’s decision in California v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989), to justify its decision to ignore the federal guidance clause. Op. ¶21. In that case, the Court held that federal antitrust law and Illinois Brick do not preempt state antitrust law. Id. at 106, 109 S.Ct. 1661. Accordingly, a state can permit indirect purchaser suits without concern for federal antitrust policy.11 ARC America, however, does not address the question at issue. I agree that a state can decide to permit indirect purchaser actions even though federal law does not. The question for us is whether the Arizona Legis*23lature intended to permit actions not allowed under comparable federal antitrust law. ARC America, therefore, provides no guidance in this action.

B.

¶ 52 My second area of disagreement with today’s opinion results from the majority’s decision to characterize the issue whether an indirect purchaser can bring an action under section 44-1408.B as raising simply a question of standing. Op. ¶¶ 17-22. According to the majority, the federal guidance clause distinguishes between substantive and procedural matters of federal law, and indicates only that the legislature prefers uniformity among the former but not among the latter. Id. ¶ 20. Leaving aside the question whether the legislature intended to make any such distinction, I disagree that the legal issue before us is whether section 44-1408.B confers “standing” to sue upon an indirect purchaser. The question, rather, is whether an indirect purchaser has suffered an antitrust injury for the purposes of section 44-1408.B. That issue presents a question of substantive law.

¶ 53 In Illinois Brick, the Supreme Court explicitly described the distinction between-those questions that the majority fails to recognize: “[T]he question of which persons have been injured by an illegal overcharge for purposes of § 4 [of the Clayton Act] is analytically distinct from the question of which persons have sustained injuries too remote to give them standing to sue for damages under § 4.”12 431 U.S. at 728 n. 7, 97 S.Ct. 2061. The central question for us, which the Court answered in Illinois Bnck, is not whether the plaintiffs have “standing,” but whether they suffered an injury contemplated by antitrust law. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535 n. 31, 545, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (holding that a labor union could not pursue an antitrust claim against the association defendant because it did not suffer an antitrust injury under section 4 of the Clayton Act). Therefore, even if, as the majority avers, the guidance clause reflects a legislative intent to develop Arizona’s substantive antitrust law in a manner consistent with federal law, we should conclude that these indirect purchaser actions cannot proceed because the plaintiffs did not suffer an antitrust injury under the Arizona Antitrust Act.

C.

¶ 54 The majority further justifies its decision to depart from our past practice of following federal antitrust law by concluding that permitting indirect purchaser actions furthers sound public policy. The majority may be right, but that decision is one that should be made by the legislature, rather than by this court. As the majority notes, twenty-three of the twenty-five states that opted to permit indirect purchaser actions did so by enacting statutes, see Op. ¶ 15 n.4, presumably after legislative debate and hearings. As a result of their deliberations, some of those states limited the circumstances under which indirect purchaser actions may proceed. For instance, not all states permit private party actions; several permit only the state to bring an action on behalf of indirect purchasers. Id. Today, without public hearings or debate, Arizona joins the tiny minority of states that have judicially interpreted antitrust statutes similar to section 44-1408.B as permitting indirect purchaser actions, thereby foreclosing consideration as to the parameters of indirect purchaser actions.

¶ 55 Nearly three decades have passed since the Illinois Brick decision. During all those years, the legislature took no action to expand the scope of section 44-1408.B to permit indirect purchaser actions or to indicate that this court should ignore its federal guidance clause. I fully concur with the majority that the question decided here in*24volves important questions of public policy. I would leave this matter of public policy to the legislature.

. The majority also concludes that, if the federal guidance clause signals that the legislature intended that we follow federal law at all, it could only have intended to follow the law as it existed when Arizona adopted the Arizona Antitrust Act. Op. ¶ 11. I discern no basis for concluding that the legislature intended to adopt an antitrust law frozen in time as of 1974. I think it more likely that the legislature intended that the federal guidance clause act as a fluid provision to keep Arizona law consistent with developing federal antitrust law.

. The Court pointed out that Arizona’s statutory cause of action "generally follows” mirrored section 4 of the Clayton Act and that the language could be construed as either permitting or prohibiting indirect purchaser suits. ARC America, 490 U.S. at 98 n. 3, 109 S.Ct. 1661.

. The Court reaffirmed this principle in Blue Shield of Va. v. McCready, in which the Court proceeded with a standing analysis only after holding that a health care plan subscriber suffered an antitrust injury at the hands of her insurance company. 457 U.S. 465, 483-84, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982) (holding that insurer’s practice of reimbursing members for psychiatrist treatment but not psychologist treatment constituted an antitrust violation in which members were directly injured because they were unable to obtain their treatment of choice).