State v. LG Electronics, Inc.
State v. LG Electronics, Inc.
Opinion of the Court
¶1 Resolution of this matter, which comes before us on discretionary review, requires us to ascertain the legislature’s intent in enacting and amending certain
I
¶3 On May 1, 2012, the Attorney General,
¶4 Upon receiving service of process, 10 of the defendants (hereinafter Petitioners
¶6 On March 28,2013, King County Superior Court Judge Richard Eadie denied the Petitioners’ motion to dismiss.
¶7 Thereafter, pursuant to RAP 2.3(b)(4),
(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[11] for violations of RCW 19.86.030?
(2) Whether RCW 4.16.160 should be applied to the Washington Attorney General’s parens patriae antitrust lawsuit seeking actual damages[12] and restitution for citizens of Washington?
¶9 Separately, the Attorney General, in response to a trial court order dismissing his claims for lack of personal jurisdiction over certain defendants, filed a notice of appeal in this court.
II
¶10 As to the first question for which discretionary review was granted, the Petitioners insist that, under any potentially applicable statute of limitation, the Attorney General’s parens patriae claim brought pursuant to RCW 19.86.080 was untimely filed. They misperceive the appropriate inquiry — our mandate was not so unconstrained. Instead, our narrow task is to determine whether a specific statute of limitation, RCW 19.86.120, applies to the Attorney General’s parens patriae claim. In resolving the first certified question, we hold that the legislature did not intend for RCW 19.86.120 to be applied to parens patriae claims brought by the Attorney General and, consequently, that the parens patriae claim in this matter is not time barred by operation of RCW 19.86.120.
¶12 Familiar interpretive principles guide our construction of legislative enactments. “Our primary duty in interpreting a statute is to discern and implement legislative intent.” Johnson, 159 Wn. App. at 946 (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1,9, 43 P.3d 4 (2002)). If a “statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Campbell & Gwinn, 146 Wn.2d at 9-10. “The plain meaning of a statute may be discerned ‘from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.’ ” State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting Campbell & Gwinn, 146 Wn.2d at 11). While we may, in seeking to perceive the plain meaning of a statute, examine “ ‘the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole,’ ” we “ ‘must not add words where the legislature has chosen not to include them,’ ” and “must ‘construe statutes such that all of the language is given effect.’ ” Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009); Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)).
¶13 The CPA, which was modeled on the federal antitrust statutes, is meant “to complement the body of
¶14 Nevertheless, in enacting the CPA, our legislature made clear its intent for Washington courts to be guided by federal court and Federal Trade Commission
It is the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts and final orders of the federal trade commission interpreting the various federal statutes dealing with the same or similar matters and that in deciding whether conduct restrains or monopolizes trade or commerce or may substantially lessen competition, determination of the relevant market or effective area of competition shall not be limited by the boundaries of the state of Washington. To this end this act shall be liberally construed that its beneficial purposes may be served.
RCW 19.86.920.
f 15 While not bound by these interpretations, “in practice Washington courts have uniformly followed federal precedent in matters described under the Consumer Protection Act.” Blewett, 86 Wn. App. at 787; accord State v. Ralph Williams’ Nw. Chrysler Plymouth, Inc., 82 Wn.2d 265, 271, 510 P.2d 233 (1973) (“Although we are not conclusively bound by the relevant federal cases, we find their reasoning persuasive.”); State v. Black, 100 Wn.2d 793, 676 P.2d 963 (1984) (where the CPA provision being construed had been taken verbatim from its federal analog, our Supreme Court relied on federal court interpretations to reach its conclusion). Washington courts have followed federal precedent in order “to minimize conflict between the enforcement of state and federal antitrust laws and to avoid subjecting Washington businesses to divergent regulatory approaches to the same conduct.” Blewett, 86 Wn. App. at 788. Consequently, “departure from federal law ... must be for a reason rooted in our own statutes or case law and not in the general policy arguments that this court would weigh if the issue came before us as a matter of first impression.” Blewett, 86 Wn. App. at 788.
¶16 In this matter, the Attorney General alleged that the defendants violated RCW 19.86.030, which provides that “[e]very contract, combination, in the form of trust or
¶17 The first provision, RCW 19.86.080, authorizes the Attorney General to bring an action in the name of the State or as parens patriae on behalf of Washington residents.
¶18 Similarly, federal law authorizes state attorneys general to bring suit as parens patriae on behalf of persons residing in their state. 15 U.S.C. § 15c. However, while RCW 19.86.080 permits an award of restitution on behalf of both
¶19 The second provision, RCW 19.86.090, authorizes both certain persons
¶20 The CPA’s sole statute of limitation is found in RCW 19.86.120. Only claims for damages brought pursuant to RCW 19.86.090 are expressly made subject to this limitation period. See RCW 19.86.120 (“Any 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.” (emphasis added)). Similarly, federal law contains a four-year statutory limitation period. See 15 U.S.C. § 15b. However, while RCW 19.86.120 does not purport to make subject to its four-year limitation period parens patriae claims brought by the Attorney General pursuant to RCW 19.86.080, 15 U.S.C § 15b does, in fact, expressly make its four-year limitation period applicable to parens patriae claims brought by state attorneys general pursuant to 15 U.S.C. § 15c.
¶21 The description of the aforesaid CPA provisions reflects their current status. Each provision, however, has been amended at least once. In order to place in context the content of and the interrelationship between these provisions, a brief account of the manner in which the legislature has molded the provisions since the enactment of the CPA bears mentioning.
¶22 In 1961, as part of the bill that created the CPA, the legislature authorized the Attorney General to bring, pursuant to RCW 19.86.080, an action in the name of the State, seeking to enjoin certain behavior. Laws of 1961, ch. 216, § 8. The legislature also authorized certain persons and the State to bring an action for injunctive relief and damages pursuant to RCW 19.86.090. Laws of 1961, ch. 216, § 9. While actions seeking damages were made subject to a
¶23 In 1970, RCW 19.86.080 was amended so as to give courts discretion to award restitution when necessary “to restore to any person in interest any moneys or property ... acquired by means of any act herein prohibited or declared to be unlawful.” Laws of 1970, ch. 26, § 1. While both RCW 19.86.090 and RCW 19.86.120 were also amended at this time, the limitation period in RCW 19.86.120 was not expressly extended to encompass actions brought pursuant to RCW 19.86.080. Laws of 1970, ch. 26, §§ 1, 5. Since 1970, RCW 19.86.120 has not been amended.
¶24 Not long after these 1970 amendments, our Supreme Court announced that actions brought by the Attorney General pursuant to the CPA were for the public benefit. See, e.g., Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d 88 (1976). As a result, the court concluded that, even in the event that private individuals were to receive restitution as a result of an action brought by the Attorney General pursuant to RCW 19.86.080, such actions nonetheless were meant to benefit the public. Seaboard Sur Co. v. Ralph Williams’Nw. Chrysler Plymouth, Inc., 81 Wn.2d 740, 746, 504 P.2d 1139 (1973) (“The Attorney General’s responsibility in bringing cases [pursuant to RCW 19.86.080] is to protect the public .... Where relief is provided for private individuals by way of restitution, it is only incidental to and in aid of the relief asked on behalf of the public.”); see also Ralph Williams’, 82 Wn.2d at 277 (“Suits for injunctive relief and restitution enforce the laws of the particular jurisdiction in the public interest by restoring the status quo.”).
¶25 In 2007, the legislature amended both RCW 19.86.080 and RCW 19.86.090.
¶26 We turn, now, to our task of ascertaining the legislature’s intent. Specifically, we were asked to determine whether the legislature intended for the four-year limitation period in RCW 19.86.120 to apply to parens patriae claims brought by the Attorney General pursuant to RCW 19.86.080. We hold that this was not the legislature’s intent.
¶27 We begin with the words in RCW 19.86.120, which suggest that the legislature intended its four-year limitation period to apply only to damages claims brought pursuant to RCW 19.86.090. See RCW 19.86.120 (“Any 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.” (emphasis added)). Conventional wisdom holds that when the legislature expresses one thing in a statute, “ [o] missions are deemed to be exclusions.” In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002). Here, the legislature expressly made claims for damages under RCW 19.86.090 subject to the four-year limitation period; it did not mention claims brought pursuant to RCW 19.86.080. Moreover, despite its willingness to
¶28 Nonetheless, the Petitioners maintain that — the text of RCW 19.86.120 notwithstanding — the legislature did, in fact, intend to make parens patriae claims subject to RCW 19.86.120. This unspoken intent, they posit, may be ascertained by considering analogous federal antitrust provisions, understanding the animating purposes of RCW 19.86.120, and observing the structure and context of the CPA as a whole.
¶30 In any event, even had the Petitioners cited to relevant federal precedent, we would still have reason rooted in the CPA to depart from it. There is a noteworthy difference between the manner in which the United States Congress and our legislature have chosen to regulate anticompetitive behavior. When our legislature authorized the Attorney General to bring parens patriae claims on behalf of both direct and indirect purchasers, it unmistakably departed from federal law. The effect of this departure was to ensure that when the Attorney General exercises his authority as parens patriae pursuant to the CPA, the
|31 The Petitioners do not dispute that it was our legislature’s intent to surpass the protections afforded by federal law. Rather, they insist that although our legislature departed from federal law vis-á-vis the “purchaser proximity” restrictions, it nevertheless intended to retain the temporal restrictions imposed by federal law. Because, however, the legislature did not expressly impose these temporal restrictions, the Petitioners have been forced to maintain, in effect, that our legislature was absent minded in failing to expressly subject parens patriae claims to the four-year limitation period in RCW 19.86.120.
f 32 We do not presume that the legislature acted in a negligent fashion when it authorized the bringing of parens patriae claims on behalf of direct and indirect purchasers, yet did not expressly subject such claims to the four-year limitation period in RCW 19.86.120. Instead, in recognition of the fact that a departure from both the “purchaser proximity” and temporal restrictions imposed by federal law is consistent with the general goal of outstripping the protections afforded by federal law, we conclude that the legislature’s silence with regard to temporal restrictions reveals an intent to keep parens patriae claims unbridled by RCW 19.86.120.
f 33 The Petitioners next assert that, in order to realize the purposes of RCW 19.86.120, the four-year limitation period must be applied to the Attorney General’s parens patriae claim. If the limitation period is not applied, they warn, a class action lawsuit brought by direct purchasers represented by private counsel would be subject to the four-year limitation period, whereas the identical class
¶34 It is true that, in many instances, the justifications for statutory limitation periods are consistent with those identified by the Petitioners. Yet, rather than identifying specific purposes animating RCW 19.86.120, the Petitioners treat these conventional justifications as unassailable proof that, in order to vindicate the purposes of RCW 19.86.120, its limitation period must be applied to the Attorney General’s parens patriae claim. Given that the legislature, in amending RCW 19.86.080 so as to authorize parens patriae claims,
¶35 The Petitioners next assert that “absurd results” and “discord within the CPA” would follow from treating an identical class of direct purchasers differently depending on whether suit was filed pursuant to RCW 19.86.080 or RCW 19.86.090. However, the Petitioners overlook the significance of the distinct relief available under RCW 19.86.080 and 19.86.090. A class action would seek injunctive relief and actual damages, whereas a suit brought by the Attorney General as parens patriae on behalf of the same class would seek injunctive relief and, at the discretion of the
¶36 At the outset, it is important to note that individuals desirous of restitution are subject to both the discretion of the Attorney General and the court. Indeed, under RCW 19.86.080, individuals must rely on the Attorney General to file suit on their behalf, and then must rely on the court to exercise its discretion and award restitution. In contrast, under RCW 19.86.090, individuals may bring suit if they wish and courts are not given discretion to refuse to award damages — if proved — for a successful claim. In view of the passive role for individuals, it is reasonable to conclude that the legislature’s primary objective in creating RCW 19.86-.080 was not to ensure that those individuals harmed by anticompetitive behavior were made whole. Instead, as our Supreme Court has recognized, claims brought pursuant to RCW 19.86.080 were intended to redound primarily to the benefit of the public.
¶37 “Suits for injunctive relief and restitution enforce the laws of the particular jurisdiction in the public interest by restoring the status quo.” Ralph Williams’, 82 Wn.2d at 277. Hence, our Supreme Court has “recognized that when the Attorney General brings an action under [the CPA], he acts for the benefit of the public.” Lightfoot, 86 Wn.2d at 334. Even if, as a result of such an action by the Attorney General, “relief is provided for private individuals by way of restitution,” our Supreme Court has characterized such relief as “only incidental to and in aid of the relief asked on behalf of the public.” Seaboard, 81 Wn.2d at 746 (emphasis added); cf. Ralph Williams’, 82 Wn.2d at 277 (“Aid to individuals is not absolutely prohibited under our law but is only improper where public money is used solely for private purposes.”).
¶39 Nevertheless, the Petitioners assert that “an infinite limitations period” for RCW 19.86.080 claims “is inconsistent with [its] directive that courts reviewing such claims ‘consider consolidation or coordination with other related actions, to the extent practicable, to avoid duplicate recovery.’ ” Pet’rs’ Opening Br. at 37 (quoting RCW 19.86.080(3)). It bears repeating that our only concern in resolving the first certified question is whether RCW 19.86.120 applies to parens patriae claims brought pursuant to RCW 19.86-.080. To that end, we conclude that the directive identified by the Petitioners reveals only that the legislature envisioned the possibility that claims based on RCW 19.86.080 and 19.86.090 could be brought within the same time period. However, the phrasing does not, under any reasonable construction, suggest that the legislature understood or intended that all claims would necessarily be brought during the same four-year limitation period.
¶40 In sum, we hold that the legislature, as evidenced by the plain meaning of RCW 19.86.120, did not intend for its four-year limitation period to apply to parens patriae claims brought by the Attorney General on behalf of Washington residents pursuant to RCW 19.86.080.
¶41 With regard to the second question for which discretionary review was granted, the Petitioners contend that the trial court erred by holding that RCW 4.16.160 exempts the Attorney General’s parens patriae claim from any otherwise applicable statute of limitation. This is so, they maintain, because — given that the enforcement of the CPA is not solely delegated to the Attorney General — the Attorney General’s parens patriae action does not constitute an inherently sovereign duty and power. We disagree.
¶42 RCW 4.16.160 exempts certain claims “brought in the name or for the benefit of the state” from otherwise applicable statutory limitation periods.
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, except as provided in RCW 4.16.310, 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 ....
RCW 4.16.160 (emphasis added).
¶43 Parens patriae authority, which, like the exemption in RCW 4.16.160, was borrowed from English law, is itself a defining feature of sovereignty. As the English constitutional system “developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the ‘royal prerogative’ ” and which “were said to be exercised by the King in his capacity as ‘father of the
¶44 While the United States rejected England’s King, it retained his paternal privilege, albeit in the form of a legislative prerogative inherent in the power of every state. Snapp, 458 U.S. at 600; Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 57, 10 S. Ct. 792,34 L. Ed. 478 (1890). Each state was permitted to exercise its parens patriae authority for, among other things, “ ‘the prevention of injury to those who cannot protect themselves.’ ” Snapp, 458 U.S. at 600 (quoting Latter-Day Saints, 136 U.S. at 57). Washington has embraced the exercise of parens patriae authority, in certain scenarios, as both a power and duty of the State. See, e.g., In re Dependency ofB.R., 157 Wn. App. 853, 864, 239 P.3d 1120 (2010) (“ ‘[W]hen parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child.’ ” (alteration in original) (quoting In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980))).
¶45 In this matter, the Attorney General brought an action as parens patriae on behalf of Washington residents. Therefore, in determining the effect, if any, of RCW 4.16.160 on the Attorney General’s claim, we must consider whether the character or nature of the action is such that it involves a duty and power inherent in the notion of sovereignty. The
¶46 The Petitioners disagree. They assert that, as a prerequisite to concluding that the parens patriae action is inherently sovereign, we must find that the enforcement of the CPA has been exclusively delegated to the Attorney General. In arguing that such a delegation has not occurred, the Petitioners contend that, because the legislature envisioned private plaintiffs acting “as private attorneys general,” Scott, 160 Wn.2d at 853, it believed that private plaintiffs are “equally capable”
¶47 The Petitioners misconstrue our Supreme Court’s treatment of RCW 4.16.160. The Petitioners’ primary contention, which is that the Attorney General’s parens patriae action is not brought for the benefit of the State because the enforcement of the CPA has not been exclusively delegated to him, finds no support in the decisions of Washington appellate courts. While the decisions relied on by the Petitioners have involved some examination of the nature of the underlying activity from which the cause of action arose, none have announced (or otherwise indicated) that
¶48 In the decisions relied on by the Petitioners, our Supreme Court was obliged to examine the nature of the underlying activity in order to determine whether the resulting actions — which were premised on the underlying activity but did not, ostensibly, exhibit the familiar trappings of sovereignty — were inherently sovereign for purposes of RCW 4.16.160. See MLB, 165 Wn.2d 679 (after concluding that the legislature delegated its sovereign function of providing for public recreation to a municipal corporation for the purpose of building a professional baseball stadium, the court held that a subsequent breach of contract action was brought for the benefit of the State); WPPSS, 113 Wn.2d 288 (after concluding that the legislature had not delegated sovereign authority to a municipal corporation charged with delivering electricity within the State, the court held that a contract action brought by the corporation was not for the benefit of the State); Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 691 P.2d 178 (1984) (after concluding that the legislature delegated to a school district its sovereign function of providing for public education for the purpose of building and maintaining a school, the court held that a subsequent breach of contract action was brought for the benefit of the State); cf. Herrmann v. Cissna, 82 Wn.2d 1, 507 P.2d 144 (1973) (after concluding that the insurance commissioner was an officer of the State, the court held that an action brought by the commissioner for breach of fiduciary duties against former officers and directors of a defunct insurer was brought for the benefit of the public).
IV
¶50 The Petitioners seek consideration of issues for which discretionary review was not granted. They contend that because the Attorney General’s claim for damages pursuant to RCW 19.86.090 is subject to the four-year statute of limitation within RCW 19.86.120, and because the Attorney General’s claim for civil penalties pursuant to RCW 19.86.140 is not subject to the exemption contained in RCW 4.16.160, we must hold that both of these claims were untimely filed. However, because these issues are beyond the scope of the certified questions for which review was granted, we decline to reach them.
¶51 “This court determines the scope of discretionary review"Emily Lane Homeowners Ass’n v. Colonial Dev., LLC, 139 Wn. App. 315, 318, 160 P.3d 1073 (2007), aff’d in part, rev’d in part sub nom. Chadwick Farms Owners Ass’n v. FHC, LLC, 166 Wn.2d 178, 207 P.3d 1251 (2009); RAP 2.3(e). While RAP 2.3(e) vests discretion in appellate courts to delimit the scope of discretionary review, we have been
¶52 In Barnhart, we explained our reasons for demurring when urged to consider issues for which discretionary review was not granted.
The city contends that we should affirm despite the commission of constitutional error because Barnhart failed to exercise peremptory challenges and failed to show anything other than harmless error. However, discretionary review of those issues was neither sought nor granted, and the city did not seek to modify the order granting discretionary review. In addition, the city acknowledged at oral argument that it had not raised these contentions in the courts below.
Further, it would be imprudent for us to address those complex issues for the first time on discretionary review without the benefit of full development of the issues and complete briefing.
156 Wn. App. at 538 n.2.
¶54 Affirmed.
Spearman, C.J., and Cox, J., concur.
Review granted at 183 Wn.2d 1001 (2015).
Ch. 19.86 RCW;
Literally, “ ‘parent of his or her country.’ ” Black’s Law Dictionary 1287 (10th ed. 2014).
At the time that the complaint was filed, the Attorney General of Washington was Robert M. McKenna. The current Attorney General is Robert W. Ferguson.
These entities were scattered across four continents and 10 different countries, including South Korea, Taiwan, China, Japan, Malaysia, Singapore, the United States of America, Mexico, Brazil, and the Netherlands.
A “cathode ray tube” is a display technology used in televisions, computer monitors, and other specialized applications. According to the Attorney General, CRTs, until recently, represented the “dominant technology for manufacturing televisions and computer monitors.”
The Attorney General defined CRT products as “CRTs and products containing CRTs, such as televisions and computer monitors.”
Koninklijke Philips Electronics NV; Philips Electronics North America Corporation; Toshiba Corporation; Toshiba America Electronic Components, Inc.; LG Electronics, Inc.; LG Electronics U.S.A., Inc.; Hitachi, Ltd.; Hitachi Displays, Ltd.; Hitachi Electronic Devices (USA) Inc.; and Hitachi Asia, Ltd.
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted ....
(b) Considerations Governing Acceptance of Review. Except as provided in section (d), discretionary review may be accepted only in the following circumstances:
(4) The superior court has certified, or that all parties to 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.
These questions were identical to those that had been proposed by the Petitioners.
11 We consider only whether the limitation period applies to the cause of action brought by the Attorney General in his capacity as parens patriae.
12 The formulation of this second question could be construed as an invitation to consider whether RCW 4.16.160 exempts the Attorney General’s claim for actual damages pursuant to RCW 19.86.090 from the four-year limitation period set forth in RCW 19.86.120. To the extent that this invitation was, in fact, extended, we decline to accept it.
Five of the Petitioners in this matter were found not to be subject to the Attorney General’s attempt to exercise personal jurisdiction over them: Koninklijke Philips Electronics NV; Hitachi Displays, Ltd.; Hitachi Asia, Ltd.; Hitachi Electronic Devices (USA), Inc.; and LG Electronics, Inc.
15 U.S.C. §§ 1-7.
Examples of this expansion include the Clayton Act of 1914 (codified as amended at 15 U.S.C. §§ 12-27) and the Federal Trade Commission Act of 1914 (codified as amended at 15 U.S.C. §§ 41-58).
Commenting on the interplay between state and federal law, the California Supreme Court observed, “[T]he coordination of federal and state antitrust enforcement has become a prime example of‘cooperative federalism.’ ” Younger v. Jensen, 26 Cal. 3d 397, 405, 605 P.2d 813, 161 Cal. Rptr. 905 (1980).
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1.
Washington’s legislature was not alone in creating this type of claim. Many other states have authorized their attorneys general to bring a claim as parens patriae on behalf of their residents seeking damages or restitution. Jonathan T. Tomlin & Dale J. Giali, Federalism and the Indirect Purchaser Mess, 11 Geo. Mason L. Rev. 157, 163 (2002).
Indirect purchasers are those who are not “immediate buyers” from the antitrust defendant. Kansas v. UtiliCorp United, Inc., 497 U.S. 199,207,110 S. Ct. 2807, 111 L. Ed. 2d 169 (1990).
Two exceptions to this prohibition have been recognized: the “cost-plus” exception and the “control” exception. See, e.g., In re Wyo. Tight Sands Antitrust Cases, 866 F.2d 1286, 1290 (10th Cir. 1989). Neither exception is at issue herein.
The United States Supreme Court has held squarely that the “indirect purchaser rule” of Illinois Brick does not preempt state law. ARC, 490 U.S. at 101.
“Person” includes “the counties, municipalities, and all political subdivisions of this state.” RCW 19.86.090.
“Person” includes “corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.” 15 U.S.C. § 12.
“Any person, firm, corporation, or association” may also seek injunctive relief pursuant to federal law. 15 U.S.C. § 26.
As noted, supra note 20, exceptions to this rule exist.
Many states have, unlike Washington, enacted legislation that allows indirect purchasers to recover actual damages pursuant to state antitrust statutes. Tomlin & Giali, supra, at 161.
These amendments were, at least in part, in response to the following observation made by this court in Blewett: although “a private plaintiff must ‘be
RCW 19.86.090 was amended twice between 1970 and 2007, and again following the 2007 amendment. Laws of 1983, ch. 288, § 3; Laws of 1987, ch. 202, § 187; Laws of 2009, ch. 371, § 1. However, given that the content of these amendments have no impact on our analysis, we do not further dwell on them.
As an initial matter, the Petitioners argue that two Washington cases, Imperato v. Wenatchee Valley College, 160 Wn. App. 353, 247 P.3d 816 (2011), and Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 722 P.2d 1295 (1986), establish that “there is no basis to conclude that the legislature intended to give [the Attorney General] an infinite period of time in which to file” his parens patriae claim. Pet’rs’ Opening Br. at 29-31. As we explained, our inquiry as to the first certified question is not whether the legislature intended to establish an infinite period of time in which the Attorney General may file a parens patriae claim. Instead, we must discern whether the legislature intended RCW 19.86.120 to apply to parens patriae claims brought pursuant to RCW 19.86.080. Neither case cited by the Petitioners is useful in seeking to discern the legislature’s intent.
In Imperato, the plaintiff filed an unfair labor practices claim in superior court and argued that because the six-month statute of limitation otherwise applicable to his claim explicitly applied only when the claim was filed before the Public Employees Relations Commission (PERC), the six-month limitation period did not bar his claim. 160 Wn. App. at 360-62. The issue before Division Three was whether the plaintiff could avoid the statute of limitation by filing his complaint in superior court instead of before PERC. Given that, in resolving this issue, Division Three sought to discern whether the legislature intended for a statute of limitation to apply for the same claim but in a different venue, the precedential value of its decision is limited to its observation that “[w]hen interpreting a statute, a court’s fundamental objective is to ascertain and carry out the legislature’s intent.” Imperato, 160 Wn. App. at 361.
In Eastwood, our Supreme Court considered whether a false light invasion of privacy claim was governed by the two-year statute of limitation for libel and slander or the three-year statute of limitation for injury to the person or rights of another. 106 Wn.2d at 469. In concluding that the two-year limitation period applicable to libel and slander applied, the court was “persuaded that because of
While this could be construed as an argument that the indirect purchaser rule of Illinois Brick preempts the CPA, the Petitioners do not purport to be maintaining such a position and, in any event, that position has been rejected by the United States Supreme Court. ARC, 490 U.S. at 101.
It is apparent, given our recent observation that “modern economic structures” will, in at least some cases, make it “unreasonable to expect” that antitrust defendants “would target Washington consumers directly” that these augmented protections are more than just a gloss on the federal regulatory regime. AU Optronics, 180 Wn. App. at 928.
It is clear that, in amending RCW 19.86.080 in 2007, the legislature considered the CPA’s structure. This is evidenced, in part, by its added directive that courts consider consolidation or coordination with other related actions to avoid duplicate recovery.
“[Restitution] differs in its goal or principle from damages.” 1 Dan B. Dobbs, Dobbs Law op Remedies §4.1(1), at 555 (2d ed. 1993). Whereas “[Restitution measures the remedy by the defendant’s gain and seeks to force disgorgement of that gain,” damages “measures the remedy by the plaintiff’s loss and seeks to provide compensation for that loss.” 1 Dobbs, supra, § 4.1(1), at 555.
Initially, the Petitioners argue that this exemption applies only to limitations prescribed within chapter 4.16 RCW. This is so, they assert, because the prefatory clause restricts application of the exemption to that of “limitations prescribed in this chapter.” Pet’rs’ Opening Br. at 16. Thus, they argue, it has no application with regard to a cause of action subject to a statute of limitation set forth in a different chapter of the RCW. They are incorrect.
The prefatory clause applies the limitations on actions brought by private parties in chapter 4.16 RCW to actions brought in the name or for the benefit of certain political subdivisions of the State. The State itself, acting through the Attorney General, does not, however, fall within the enumerated political subdivisions. Consistent with this observation, our Supreme Court has applied the exemption set forth in the proviso to a limitation period prescribed in a different chapter of the RCW in an action brought by the State. See State v. Miller, 32 Wn.2d 149, 156, 201 P.2d 136 (1948) (applying the provision now codified at RCW 4.16.160 to exempt a certain cause of action from application of a statute of limitations located in a different code chapter).
Conversely, it is our understanding that when the State seeks damages pursuant to RCW 19.86.090, it is acting not in a sovereign capacity but, rather, as a consumer. Counsel for the Attorney General, during oral argument, conceded that, when the State seeks to recover actual damages, it is not exercising a sovereign function. Counsel also conceded that the CPA does not authorize the State to act as parens patriae on behalf of itself.
Not only is it speculative to suggest that the legislature perceived private plaintiffs to be “equally capable” of furthering the purposes of the CPA, it is irrelevant to the resolution of this issue.
The Petitioners also cite to our decision in State v. Pacific Health Center, Inc., 135 Wn. App. 149, 157 n.7, 143 P.3d 618 (2006). They argue that a footnote contained in the procedural history demonstrates that a limitation period has previously been applied to a RCW 19.86.080 restitution claim. This footnote, which describes a trial court’s ruling, states, “The [trial] court found appellants had committed 9,426 separate violations within the statute of limitations’ allowable period on the State’s claim.” Pac. Health, 135 Wn. App. at 157 n.7. Given that, at
Citing to Lunsford, the Petitioners argue that because the additional issues are arguably related to issues raised in the trial court, we should consider them for the first time “on appeal.” Pet’rs’ Reply Br. at 25. To the contrary, this matter comes before us on discretionary review, not on appeal. Thus, Lunsford is inapposite.
The Petitioners contend, without supporting citation, that because a commissioner of this court, “[d]uring the hearing on this motion, . . . discussed the applicability of” ROW 19.86.120 to claims brought pursuant to ROW 19.86.090, her subsequent grant of discretionary review, which “is simply silent on this issue,” creates an “ambiguity in [her] order” that “renders Plaintiff’s authorities inapposite.” Pet’rs’ Reply Br. at 24. We are unpersuaded by this unsupported contention.
Reference
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- The State of Washington v. LG Electronics, Inc.
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- Published