Appendix A. Survey Of State Indirect Purchaser Jurisprudence and Legislation

Indirect purchaser claims are creatures of state law, which varies
from jurisdiction to jurisdiction. This Handbook has described
generally the ways in which state law varies. This Appendix provides
information on each of the 50 states, the District of Columbia, Guam,
Puerto Rico, and the U.S. Virgin Islands.
In recent years, litigation on behalf of indirect purchasers under
state law appears to have been concentrated largely in multi-party,
multistate, multidistrict litigation. In those cases, federal district
courts have sought to discern the treatment to be given to indirect
purchaser claims, often in the absence of controlling and definitive
state court case law. Thus, the decisions reached, and reported here,
must be regarded as less than definitive. The district courts’ Erie
predictions are sometimes inconsistent; some are based only on the
failure of a party to meet its burden or to present a sufficiently
persuasive argument. The decisions may prove helpful as starting
points for future research, but practitioners should be aware of their
provisional nature.
Much of the recent jurisprudence deals as well with the defense
argument that a state’s decision not to follow Illinois Brick does not
end the discussion, in that an indirect purchaser may still lack
antitrust standing under the multifactor test explained in Associated
General Contractors of California v. California State Council of
Carpenter s (AGC).1 The decisions have varied from state to state,
depending on the rendering courts’ interpretations of “repealer”
legislation and/or statutes providing for harmonization of the
interpretations of state and federal antitrust and consumer protection
1. 459 U.S. 519 (1983). There are five factors: (1) whether plaintiffs’
injury is of a kind that the antitrust laws were intended to redress, (2)
whether there is a causal connection between the antitrust violation
and the harm alleged, and whether the defendant intended to cause
that harm, (3) whether the injury or direct or speculative, (4) whether
there are more direct victims of the alleged violations, and (5) the
potential for duplicative recovery or co mplex apportionment of
damages. Id. at 537-45.
398 Indirect P urchaser Litigation Ha ndbook
Several courts have recently dealt with efforts to raise indirect
purchaser claims cast as claims for damages under state unfair trade
practice laws and for unjust enrichment.2
A. Alabama
Alabama’s statutory rule, which predates Illinois Brick, expressly
grants standing to any person who has been injured “by an unlawful
trust, combine or monopoly, or its effect, direct or indirect” to sue to
recover “the sum of $500 and all actual damages.”3 The effect of this
provision seems limited by case law declaring that Alabama antitrust
law is concerned only with intrastate activityactivities that occur
within the geographic boundaries of this state.4 This appears to
preclude application of those laws to activity that crosses state
Alabama has a class certification rule that is substantially similar
to Federal Rule of Civil Procedure 23,5 but its court and legislature
have grappled with the certification process in addressing the race to
2. One court, declining to dismiss indirect purchaser claims brought
under the rubric of unjust enrichment for lack of sufficient analysis of
the controlling law, noted that such claims generally afford relief
only in the absence of an adequate remedy at law. Such claims should
not, therefore, lie in states where antitrust or trade regulation law
affords a remedy. See In re Flash Memory Antitrust Litig., 643 F.
Supp. 2d 1133, 1163 (N.D. Cal. 2009) (denying, without prejudice,
motions to dismiss indirect purchasers’ unjust enrichmen t claims
asserted under the laws of Arizona, Florida, Ma ssachusetts,
Minnesota, New Hampshire, North Carolina, and Tennessee); see
also In re Intel Corp . Microprocessor Antitrust Litig., 496 F. Supp.
2d 404, 420 -22 (D. Del. 2007) (dismissing unjust enrichment claims,
noting that under RESTATEMENT OF RESTITUTION § 107(1) such a
claim can be invoked only where the parties have not entered into a
3. ALA. CODE § 6-5-60(a); In re Chicken Antitrust Litig. Am. Poultry,
669 F.2d 228, 239 n.18 (5th Cir. 1982).
4. See In re New Motor Vehicles Can. Export Antitrust Litig., 800 F.
Supp. 2d 328, 380-81 (D. Me. 2011); Archer Daniels Midland Co. v.
Seven Up Bottling Co., 746 So. 2d 966, 989 -90 (Ala. 1999) and
Abbott Labs. v. D urrett, 746 So. 2d 316, 339 (Ala. 1 999) (two
dissenting justices concluded that the statute should be interpreted to
afford a cause of action for anticompetitive activities outside the
state’s borders that resulted in damage as the result of purchases and
sales made within the state); see also Griffiths v. Blue Cross & Blue
Shield, 147 F. Supp. 2d 1203, 220 (N.D. Ala. 2001) (“[I]f the
restraint itself can be characterized as crossing state borders, then it
would be outside the regulation of the Alabama antitrust statutes.”).
5. See Ala. R. Civ. P. 23.
Appendix A 399
the courthouse by class action plaintiffs. The court of appeals
authorized ex parte conditional class certification in the court in
which the first claim was filed to allow it to retain sole jurisdiction
over the claim.6 More recently, the state supreme court declared that
practice to be improper and required that class certification cannot be
had without notice to the defendant. It also declared that an Alabama
court cannot hear a class action claim if there is a prior-filed action in
another court involving substantially identical class allegations.7
The state legislature also added requirements to the class
certification procedure, requiring judges to establish a discovery
schedule for the class certification issue, similar to the process under
Federal Rule of Civil Procedure 16, and giving parties a right to
request an evidentiary hearing on class certification.8 The statute also
codified the requirement for a “rigorous analysis” of the elements of
class certification.9 Thus, when certifying a class, a judge must
identify each of the four prerequisite elements of Rule 23(a) and the
additional element in Rule 23(b), explaining in detail how the
proponents of class certification have proven each element.10 This
rigorous analysis has resulted in denial of certification for most
proposed classes of indirect purchasers.11
B. Alaska
The Alaska Restraint of Trade and Monopolies Act12 was
amended in 2003 to allow monetary relief for indirect purchasers, but
such claims can only be brought by the state’s attorney general.13
6. Ex parte Voyager Guar. Ins., 669 So . 2d 198 (Ala. Civ. App. 1995).
7. Ex parte AmSouth Bank, 735 So. 2d 1151, 1154 (1999) (court issued
mandamus to stay a second -filed state court class action pending a
decision on certification in a first -filed class action pending in federal
court, saying that the state court should refuse to exercise jurisdiction
“once it i s apprised of the fact that another court has assumed
jurisdiction of substantially the same case”) cited with approval by
Ex Pa rte J.E. Estes Wood Co., 42 So. 3 d 104 (Ala. 2010); Ex par te
Prudential Ins. Co. of Am., 721 So. 2d 1135 (Ala. 19 98); Ex parte
First Nat’l Bank, 717 So. 2d 342 (Ala. 1997).
8. ALA. CODE § 6-5-641(b), (c).
9 Id. § 6-5-641(e).
10. Gen. Motors Acceptance Corp. v. City of Red Ba y, 825 So. 2d 746
(Ala. 2002).
11. William Page, The Limits o f State Indirect Purcha ser Suits: Class
Certification in the Shadow of Illinois Brick, 67 ANTITRUST L.J. 1, 24
(1999) (citing cases that show Alabama courts ta ke a “skeptical
view” toward class certification of indirect purchasers).
12. ALASKA STAT. § 45.50.562-598.
13. Id. § 45.50.577(i).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT