IN THE SUPREME COURT OF OHIO

MARIA JOHNSON, : Case No. 04-304

:

Appellant, : On Appeal from the

: Hamilton County Court of Appeals,

v. : First Appellate District

:

MICROSOFT CORPORATION, :

:

Appellee. :

______________________________________________________________________________

BRIEF OF AMICI CURIAE

NATIONAL CONSUMERS LEAGUE, CONSUMER ACTION, AND ORGANIZATION FOR COMPETITIVE MARKETS ON BEHALF OF APPELLANT

______________________________________________________________________________

Stanley M. Chesley (0000852) Counsel of Record Paul De Marco (0041153) Robert Heuck II (0051283) WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A. 1513 Fourth & Vine Tower One West Fourth Street Cincinnati, OH 45202 Telephone: (513) 621-0267 Facsimile: (513) 381-2375 E-Mail: chesley@wsbclaw.com demarco@wsbclaw.com heuck@wsbclaw.com	Gregory A. Harrison (0029814) Counsel of Record DINSMORE & SHOHL L.L.P. 1900 Chemed Center 255 East Fifth Street Cincinnati, OH 45202 Phone: (513) 977-8314 Facsimile: (513) 977-8141 E-Mail: greg.harrison@dinslaw.com
Michael R. Barrett (0018159) BARRETT & WEBER, L.P.A. 500 Fourth & Walnut Centre 105 East Fourth Street Cincinnati, OH 45202 Telephone: (513) 721-2120 Facsimile: (513) 721-2139	David B. Tulchin SULLIVAN & CROMWELL L.L.P. 125 Broad Street New York, NY 10004 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
	Continued on next page

W.B. Markovits (0018514) MARKOVITS & GREIWE CO., L.P.A. 119 East Court Street, Suite 500 Cincinnati, OH 45202 Telephone: (513) 977-4774 Facsimile: (513) 621-7086	Thomas A. Burt MICROSOFT CORPORATION One Microsoft Way Redmond, WA 98052 Telephone: (425) 882-8080 Facsimile: (425) 936-7329
COUNSEL FOR APPELLANT	Charles M. Casper MONTGOMERY, McCRACKEN, WALKER & RHOADS, L.L.P. 123 South Broad Street Philadelphia, PA 19109 Telephone: (856) 488-7700 Facsimile: (856) 488-7720
	Steve W. Berman HAGENS BERMAN 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594
	COUNSEL FOR APPELLEE

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES........................................................................................................... v-xi

INTRODUCTION.............................................................................................................................. 1

STATEMENT OF FACTS................................................................................................................. 2

ARGUMENT...................................................................................................................................... 4

Proposition of Law No. I:

Appellant is a person injured by Microsoft’s monopolistic misconduct. The Valentine Act permits “the person injured in the person’s business or property by reason of anything forbidden or declared to be unlawful in [the Act’s] sections, [to] sue therefor in any court having jurisdiction and venue thereof *** ” Appellant is therefore permitted to sue a Valentine Act claim........ 4

A. Federal Law Permits States to Protect Indirect Purchasers................................. 4

B. The National Movement Toward Indirect Purchaser Standing.......................... 10

C. Why Many “Non-Repealer States” Permit Indirect Purchasers

to Pursue Price Fixing and Monopolization Cases Under Their

Antitrust Laws................................................................................................ 13

1. Iowa: Comes v. Microsoft Corporation............................................ 13

2. Arizona: Bunker’s Glass Company v. Pilkington plc, et al............... 19

3. Tennessee: Sherwood v. Microsoft Corporation............................... 24

4. North Carolina: Hyde v. Abbott Laboratories, Inc............................ 26

D. Why the Valentine Act Permits Indirect Purchasers to Pursue

Damage Claims for Price Fixing and Monopolization Violations........................ 29

E. Why Some “Non-Repealer States” Do Not Permit Indirect

Purchasers to Pursue Price Fixing Cases Under Their

Antitrust Laws................................................................................................ 36

F. The State of Ohio’s Interest in Vigorous Indirect Purchaser

Antitrust Enforcement..................................................................................... 38

Proposition of Law No. II:

Appellant is not in privity with Microsoft, but privity between a plaintiff and

defendant is not required to sustain a claim for unjust enrichment. Since Appellant properly alleged unjust enrichment’s elements, her unjust enrichment claim should

be sustained......................................................................................................................... 39

CONCLUSION................................................................................................................................ 47

PROOF OF SERVICE..................................................................................................................... 49

INTRODUCTION

Amicus Curiae National Consumers League is our nation’s oldest consumer organization. It is a private, nonprofit advocacy group representing consumers on marketplace and workplace issues. Its mission is to identify, protect, represent and advance consumers’ economic and social interests, and it provides government, businesses and other organizations with the consumer’s perspective on matters concerning antitrust, child labor, privacy, food safety and medication information.

Amicus Curiae Consumer Action was formed in 1971 and is a national, non-profit 501(c)(3), consumer education and advocacy organization that focuses on serving low and moderate income consumers and people of color’s needs.  Its pricing surveys and publications are designed to educate consumers on making informed marketplace decisions, and its multilingual publications cover many consumer and privacy issues and are distributed through a national network of 7,000 community-based organizations, more than 150 of which serve Ohio’s consumers.

Amicus Curiae Organization for Competitive Markets is the only national organization devoted exclusively to antitrust and trade regulation in agricultural markets. Its membership consists of farmers, ranchers, lawyers, businesspersons and scholars. Its mission is to promote fair, open and competitive markets for farmers, ranchers and rural communities through research, communication, education, publications and conferences.

STATEMENT OF FACTS

Appellant is a Cincinnati consumer who, because of Microsoft’s Windows 98 operating systems market monopoly, overpaid for her personal computer, which contained Windows 98.[1] With an over 90% market share, Microsoft has protected its Windows 98 operating systems market monopoly by erecting and maintaining barriers to prevent competitors’ entrance.[2] But in 1998, the U.S. and several states, including Ohio, filed suit against Microsoft in federal court based largely on the monopolistic conduct alleged in Appellant’s Amended Complaint.[3] In November 1999, the federal court ruled Microsoft had monopoly power in the operating system market and that it had taken anti-competitive actions to maintain its monopoly power.[4] In 2000, after a 76-day bench trial, the federal court concluded Microsoft had violated Ohio’s Valentine Act[5] and the Sherman Antitrust Act,[6] which findings were upheld by the D.C. Circuit Court of Appeals.[7]

While customers who purchased Windows 98 directly from Microsoft had antitrust injury and standing under federal antitrust law, which permits direct purchasers to recover overcharges for antitrust violations,[8] monopoly-priced products’ indirect purchasers are not considered to have suffered antitrust injury and to have federal standing to recover for the illegal overcharges passed on to them.[9] Appellant therefore sued Microsoft in Ohio state court on behalf of herself and other Ohio consumers for, among other things, Microsoft’s Valentine Act violation and for unjust enrichment, alleging that she and other Ohio consumers had overpaid for their Windows 98 operating systems due to Microsoft’s monopoly pricing.[10]

Microsoft moved to dismiss Appellant’s case under Rule 12(B)(6), arguing that because Appellant is an indirect purchaser, she could not invoke the Valentine Act, which allegedly requires consumers to have purchased directly from the monopolist to have antitrust standing (and urging that the trial court adopt a “direct-purchaser” requirement based on Illinois Brick v. Illinois, which interpreted the Clayton Act,[11] not the Valentine Act). Microsoft’s motion also alleged that consumers need to have purchased directly from the defendant to have a sustainable unjust enrichment claim. The trial court granted Microsoft’s motion,[12] the Hamilton County Court of Appeals sustained the trial court’s ruling 2:1[13] and then denied Appellant’s application for reconsideration.[14]

ARGUMENT

Proposition of Law No. I:

Appellant is a person injured by Microsoft’s monopolistic misconduct. The Valentine Act permits “the person injured in the person’s business or property by reason of anything forbidden or declared to be unlawful in [the Act’s] sections, [to] sue therefor in any court having jurisdiction and venue thereof *** .” Appellant is therefore permitted to sue a Valentine Act claim.

A. Federal Law Permits States to Protect Indirect Purchasers.

Enacted in 1890, the Sherman Antitrust Act makes it illegal to “monopolize, or attempt to monopolize *** any part of the trade or commerce among the several States, or with foreign nations *** ”[15] The Clayton Act of 1914 gives the U.S. district courts jurisdiction to “prevent and restrain violations of [the Sherman Act].”[16] Until 1977, both direct and indirect purchasers were permitted to sue under the Act,[17] but in 1968 indirect purchasers’ standing began to erode. In Hanover Shoe, Inc. v. United Shoe Mach. Corp.,[18] a shoe-making machinery manufacturer defended a monopoly claim on the basis that the plaintiff, a shoe manufacturer that had bought its machinery, had passed on the entire monopoly overcharge to the plaintiff’s customers; as a result, the plaintiff had not been injured.[19] But the U.S. Supreme Court held an antitrust defendant could not defend a damages suit on the basis that the plaintiff had shifted the cost of the defendant’s wrongdoing to the plaintiff’s customers.[20]

While Hanover Shoe foreclosed pass-on’s “defensive use” in antitrust cases, the U.S. Supreme Court considered its “offensive use” ten years later in Illinois Brick Co. v. Illinois.[21] In Illinois Brick, plaintiffs bought suit against concrete block manufacturers alleging defendants “had engaged in a combination and conspiracy to fix the prices of concrete block in violation of §1 of the Sherman Act.”[22] But consistent with (yet the reverse situation of) its Hanover Shoe ruling, the Court held indirect purchasers could not maintain an action under the Sherman Act when alleging defendants’ illegal overcharges had been passed-on to them.[23] The Court’s main bases for its decision were that lawsuits involving both direct and indirect purchasers might create the risk of multiple liability for defendants[24] and that such actions would be overly-complicated.[25] With the Court’s ruling, indirect purchasers could no longer sue for damages in federal court for Sherman Act violations.

In reaching its result, the majority (written by Justice White) declined to follow the U.S. Justice Department’s counsel, which had urged the door be left open for indirect purchaser suits.[26] Three dissenting Justices agreed with the Justice Department. Justice Brennan wrote that the majority had ignored antitrust law’s fundamental policy to compensate victims: “[Hanover Shoe’s] same policies of insuring the continued effectiveness of the treble-damages action and preventing wrongdoers from retaining the spoils of their misdeeds favor allowing indirect purchasers to prove that overcharges were passed on to them.[27] *** Lack of precision in apportioning damages between direct and indirect purchasers is thus plainly not a convincing reason for denying indirect purchasers an opportunity to prove their injuries and damages. Moreover, from the deterrence standpoint, it is irrelevant to whom damages are paid, so long as someone redresses the violation. Antitrust violators are equally deterred whether the judgments against them are in favor of direct or indirect purchasers. Hanover Shoe said as much.”[28] Justice Blackmun, another dissenter, wrote that the Court’s opinion adopted “a wooden approach *** entirely inadequate when considered in the light of the objectives of the Sherman and Clayton Acts.”[29]

Illinois Brick immediately generated major controversy as the Court’s concerns about multiple liability and overly complex litigation proved unfounded. Courts realized they were “fully capable of ensuring antitrust defendants are not forced to pay more in damages than amounts to which injured parties are entitled.”[30] They noted the “absence of cases in which *** court[s were] faced with the impossible task of apportioning damages,”[31] and “[t]here are few, if any, reported instances of a defendant paying treble damages to two different classes of purchasers based on a single antitrust violation.”[32] Courts further recognized “[c]omplexity is not a foreign concept in the world of antitrust”[33] and “[t]he day is long past when courts *** will deny relief to a deserving plaintiff merely because of procedural difficulties or problems of apportioning damages.”[34]

Even Congress recognized the Court’s overreaction to the potential for complexity: “The House Report on H.R. 11942 *** concluded that the Court had overstated the problem of complexity in Illinois Brick. The Senate Judiciary Committee, in its report on S. 1874, acknowledged the difficulty of proving pass-on but concluded that this difficulty did not justify ignoring the important rights of indirect purchasers. The Senate Committee also concluded that the courts or the legislature could solve any procedural and judicial management problems. In its report on the Rodino-Kennedy bill, the Senate Committee again rejected the Supreme Court's conclusion that apportioning damages between plaintiffs was too complex a task for courts to handle, based on their performance in the period between Hanover Shoe and Illinois Brick. The Committee observed that judicial functions in a wide variety of cases outside the antitrust area were no less complex than those inherent in pass-on cases.”[35]

But despite its controversy, the Illinois Brick ruling never purported to limit applying state antitrust laws to parties indirectly injured by antitrust violations. The Court expressed this proposition twelve years later in California v. Arc America Corp.[36] where, in an opinion again written by Justice White, the Court unanimously held states had the right to enact and enforce laws permitting indirect purchasers to recover for antitrust violations.[37] Then-Ohio Attorney General, Anthony J. Celebrezze, Jr., joined by 38 other Attorneys General as amici curiae, supported this position that state law should fill in the indirect purchaser void.[38]

In Arc America, plaintiffs, four states, were indirect purchasers of cement and concrete used for state projects.[39] Plaintiffs filed antitrust actions involving this cement and concrete, in part, under their respective states’ antitrust statutes, seeking damages for defendants’ price fixing.[40] The Ninth Circuit Court of Appeals held the four states’ antitrust laws were pre-empted because they conflicted with Illinois Brick’s interpretation of the Sherman Act.[41]

As a starting point, the Court noted Congress has the authority to pre-empt state law.[42] If Congress has not expressly pre-empted an area of state law, it can impliedly do so under two circumstances: “First, when Congress intends that federal law occupy a given field, state law in that field is pre-empted. Second, even if Congress has not occupied the field, state law is nevertheless pre-empted to the extent it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible, or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[43]

The Court then instructed that for the defendants to successfully argue federal law had pre-empted the states’ indirect purchaser laws (meaning only direct purchasers could sue for antitrust violations), they must first overcome the presumption against finding pre-emption of state law in areas traditionally regulated by the states: “When Congress legislates in a field traditionally occupied by the States, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Given the long history of state common-law and statutory remedies against monopolies and unfair business practices, it is plain that this is an area traditionally regulated by the States.”[44] The Court further highlighted that “[a]t the time of the enactment of the Sherman Act, 21 States had already adopted their own antitrust laws,” and that “the Sherman Act itself, in the words of Senator Sherman, ‘does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government.’”[45]

State indirect purchaser statutes, explained the Court, “are consistent with the broad purposes of the federal antitrust laws: deterring anti-competitive conduct and ensuring the compensation of victims of that conduct,”[46] and “nothing in Illinois Brick suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws.”[47] The Court further explained “it is plain that this is an area traditionally regulated by the States,”[48] and that Illinois Brick was limited to construing the application of federal, not state, law: “When viewed properly, Illinois Brick was a decision construing the federal antitrust laws, not a decision defining the interrelationship between the federal and state antitrust laws. The congressional purposes on which Illinois Brick was based provide no support for a finding that state indirect purchaser statutes are pre-empted by federal law.”[49]

The Court concluded, “Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies,”[50] and “the Court of Appeals erred in holding that the state indirect purchaser statutes [were] pre-empted.”[51] With Arc America, it was finally resolved that existing or future state antitrust legislation could provide antitrust remedies to indirect purchasers.

B. The National Movement Toward Indirect Purchaser Standing.

As one court recently commented, “it is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law.”[52] Not surprisingly, then, in Illinois Brick’s wake several states passed so-called Illinois Brick repealer statutes explicitly permitting damage actions by or on behalf of indirect purchasers including ultimate consumers. Presently, twenty-five states and the District of Columbia have repealer statutes.[53] In FTC v. Mylan Labs. (Mylan II),[54] Judge Thomas Hogan explained that fourteen other states, including Ohio, also permit recovery on behalf of consumers, either for restitution or damages, under state consumer protection laws, antitrust indirect-purchaser laws or state unfair trade practices statutes.[55] And although Microsoft may cite Judge Hogan’s first Mylan decision[56] as support for its claim that indirect purchasers lack standing to sue under the Valentine Act,[57] in Mylan II Judge Hogan ruled the Ohio Attorney General can seek restitution for Ohio consumers under the Valentine Act.[58]

Furthermore, Massachusetts,[59] Nebraska,[60] Vermont,[61] Florida,[62] and New Jersey[63] courts have all ruled indirect purchasers may pursue damages claims for antitrust violations under these states’ consumer protection statutes,[64] and non-repealer states Arizona,[65] Iowa,[66] North Carolina[67] and Tennessee[68] - whose antitrust statutes are phrased almost identical to the Valentine Act in terms of allowing all who have been injured to sue - have ruled indirect purchasers have standing pursue damage claims under their state antitrust statutes.

All told, thirty-three states and the District of Columbia, representing well over 70% of our Country’s population,[69] provide some claim for indirect purchasers.[70] And although, according to Judge Hogan in Mylan II, the Ohio Attorney General is already authorized to seek restitution on behalf of Ohio indirect purchasers under the Valentine Act for price fixing violations,[71] the instant question is whether indirect purchasers themselves are authorized to seek damages under the Valentine Act for price fixing violations.

class=Section3>

C. Why Many “Non-Repealer States” Permit Indirect Purchasers to Pursue Price Fixing or Monopolization Cases Under Their Antitrust Laws.

As demonstrated, that a state’s legislature has not enacted “repealer legislation” does not mean its indirect purchasers cannot sue antitrust cases for damages caused by price fixing. This is, in part, because many states’ antitrust laws, like Ohio’s, already provide indirect purchasers standing even absent specific repealer legislation.

1. Iowa: Comes v. Microsoft Corporation

In Comes v. Microsoft Corp.,[72] like here, “[a] group of consumers filed suit alleging Microsoft had maintained or used a monopoly in conjunction with its Windows 98 operating system for the purpose of excluding competition or controlling, fixing, or maintaining prices in violation of the Iowa Competition Law [its antitrust act].”[73] On appeal, the consumers urged the court to find federal law did not control Iowa’s antitrust law and that indirect purchasers could sue under it.[74] Like here, “the only issue [in Comes was] whether the United States Supreme Court case, Illinois Brick, should be followed in interpreting the Iowa Competition Law.”[75]

As a starting point, the Iowa Supreme Court noted the “very broad category of persons [permitted] to maintain a suit in [Iowa] state courts for damages resulting from anticompetitive conduct:”[76] “a person who is injured *** by conduct prohibited under this chapter may bring suit to: *** recover actual damages resulting from conduct prohibited under this chapter.”[77] The court believed Iowa’s antitrust statute was “clear on its face,”[78] and the words “a person” permitted indirect purchasers to sue for violations: “This statute does not restrict the class of persons who may bring suit under the Iowa Competition Law. Nothing in the statute says in order to seek redress for antitrust violations a purchaser must be directly injured. The legislature did not specifically limit standing to direct purchasers, but instead it simply authorized “[a] person who is injured” to sue. Legislative intent is determined by what the legislature said, not by what it did not say or might have said. Therefore, we do not regard our legislature’s failure to explicitly authorize indirect purchasers to maintain a suit for antitrust violations as an expression of its agreement with Illinois Brick. Given the clear, broad language of the state antitrust law, we conclude the Iowa Competition Law creates a cause of action for all consumers, regardless of one’s technical status as a direct or indirect purchaser.”[79]

But despite the statute’s plain meaning, Microsoft urged that Iowa did not permit indirect purchasers redress under its Competition Act because Iowa’s legislature had “mandated that the Iowa Competition Law shall be construed to complement federal law; [t]herefore, *** Iowa is bound by the federal law [i.e., Illinois Brick].”[80] To support this argument, Microsoft relied on the Iowa Competition Law’s “harmonization” provision, which instructs that: “This chapter shall be construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose as this chapter. This construction shall not be made in such a way as to constitute a delegation of state authority to the federal government, but shall be made to achieve uniform application of the state and federal laws prohibiting restraints of economic activity and monopolistic practices.”[81]

But the court found this provision did not require Iowa courts to interpret its Competition Law the same way federal courts have interpreted federal law.[82] The court explained the issue was not one of pre-emption, and “Congress intended federal antitrust laws to supplement, not displace state antitrust remedies.”[83] And because Illinois Brick construed only federal antitrust law, “it did not define the connection, if any, between federal and state antitrust laws.”[84] The court instructed instead that “the ‘concept of federalism assumes power, and duty, of independence in interpreting our own organic law,’”[85] and that “given there is no federal preemption on this issue, we must construe the Iowa Competition Law to encourage the primary goal of antitrust law.”[86]

In construing the harmonization statute, the court did not believe it was aimed at defining who can sue under the Competition Law but was instead intended to achieve the state and federal laws’ uniform application prohibiting monopolistic practices: “The purpose behind both state and federal antitrust law is to apply a uniform standard of conduct so that businesses will know what is acceptable conduct and what is not acceptable conduct. To achieve this uniformity or predictability, we are not required to define who may sue in our state courts in the same way federal courts have defined who may maintain an action in federal court. Rather, our guiding principle in interpreting the Iowa Competition Law is to do so in such way as to prohibit “restraints of economic activity and monopolistic conduct.” Harmonizing our construction and interpretation of state law as to what conduct is governed by the law satisfies the harmonization provision.”[87]

The court also acknowledged the consistency between the policies behind Iowa’s Competition Law and federal antitrust law: “The United States Supreme Court [in Arc America] has held that two statutes, both of which prohibit anticompetitive conduct, are not inconsistent merely because one allows indirect purchasers to sue for damages while the other does not. The federal antitrust statute shows Congress’ concern with the protection of competition, not competitors. The goal of federal antitrust law is to prohibit restraint of economic activity and monopolistic practices. Our state antitrust law promotes the same consumer protection policies as does federal antitrust law by “assuring customers the benefits of price competition.” In order for us to agree with Microsoft that the harmonization statute requires us to prohibit suits by indirect consumers, we must accept the fact that real victims--those who purchase goods and pay the overcharge--cannot recover. This result would overwhelmingly defeat the purpose of the Iowa Competition Law. Consumers in this state are best protected by permitting all injured purchasers to bring suit against those who violate our antitrust laws.”[88]

Importantly, the court also considered the legislature’s purpose and intent at the time the Iowa Competition Law was enacted: “The Iowa legislature passed the current Iowa Competition Law one year before the decision in Illinois Brick. Consequently, it was impossible for the legislature to have adopted a judicial construction that did not exist at that time. The legislature did not have the opportunity to discuss Illinois Brick and accept or reject its law before passing the Iowa Competition Law.”[89] And because Iowa “took its cues” from federal law when creating its Competition Law, it was significant that “[p]rior to Illinois Brick, most federal courts construed section four of the Clayton Act to allow suits by indirect purchasers,”[90] and that “even the United States Supreme Court prior to Illinois Brick consistently recognized Congress’ intent in enacting section four of the Clayton Act was to protect all victims of antitrust infringements.”[91]

Mindful of this chronology, the court appreciated that “[w]hen the Iowa legislature enacted the Iowa Competition Law, it did so considering the federal law prior to Illinois Brick which allowed indirect purchasers to bring antitrust suits.”[92] The federal law’s status before Illinois Brick formed still further support for the court’s conclusion that “the Iowa legislature intended indirect purchasers to have standing under the Iowa Competition Law.”[93]

Finally, the court realized the Illinois Brick Court was primarily concerned with policy considerations such as multiple liability and complexity of litigation that “have not materialized,” [94] and which “have little, if any, applicability to antitrust suits in state court.”[95] The court observed “[t]here are few, if any, reported instances of a defendant paying treble damages to two different classes of purchasers based on a single antitrust violation,”[96] and “courts are fully capable of ensuring antitrust defendants are not forced to pay more in damages than amounts to which the injured parties are entitled.”[97]

The court likewise explained “[c]omplexity is not a foreign concept in the world of antitrust,” [98] and “there is an absence of cases in which [courts have been] faced with the impossible task of apportioning damages.”[99] The court acknowledged even Congress’ belief that the Illinois Brick Court had overstated the potential for complex litigation.[100] “We should not defeat the ends of justice simply because the litigation may be complicated,”[101] reasoned the court, and difficulty proving pass-on damages did not justify ignoring indirect purchasers’ rights since courts can resolve any management problems that might arise during litigation.[102]

With these considerations in mind, as well as the Illinois Brick Court’s concession that “the ultimate effect of allowing only direct purchaser suits is that the person ‘actually injured’ -- the indirect purchaser who paid the overcharge -- will have no redress,”[103] the Comes court held Iowa’s “antitrust law contemplates all injured consumers are authorized to bring suit to enforce our antitrust laws,”[104] and that the Class had stated a claim upon which relief could be granted.[105]

2. Arizona: Bunker’s Glass Company v. Pilkington plc, et al.

Bunker’s Glass Co. v. Pilkington plc.[106] involved two consolidated class action antitrust cases brought by indirect purchasers’ against various flat glass manufacturers and tobacco manufacturers.[107] The Arizona Court of Appeals reversed both trial courts’ orders dismissing the indirect purchasers’ antitrust claims,[108] and the Arizona Supreme Court “granted Defendants’ petitions for review to resolve whether indirect purchasers may sue under the Arizona Antitrust Act.”[109]

The court began its discussion by noting the “case turn[ed] upon the interpretation of a provision of the Arizona Antitrust Act that permits a ‘person’ to sue to redress an antitrust injury.”[110] Considering the Act’s “plain language,”[111] the court “define[d] ‘person’ as including ‘an individual’”[112] and observed that “[n]othing in this language restrict[ed] the right of action to direct purchasers injured by violations of the Arizona Antitrust Act or preclude[d] indirect purchasers from suing.”[113] “By defining the term ‘person’ to include an ‘individual,’” explained the court, “the legislature signaled its intent to allow indirect purchasers to sue, because individuals are rarely direct purchasers.”[114]

Defendants, however, argued strict adherence to Illinois Brick precluded plaintiffs from pursuing their antitrust claims.[115] The court disagreed, noting first that Arizona’s Antitrust Act was enacted “three years before Illinois Brick was decided,”[116] and that Arizona courts are instructed they “may use as a guide interpretations given by the federal courts to comparable federal antitrust statutes.”[117]

Employing Arizona’s liberal “federal guidance clause,”[118] the court disagreed it “direct[ed] the court to follow the Supreme Court’s holding in Illinois Brick.”[119] The court did “not read the federal guidance clause as manifesting a legislative intent to rigidly follow federal precedent on every issue of antitrust law regardless of whether differing concerns and interests exist in the state and federal systems.”[120] Instead, the word “may” made applying Illinois Brick “permissive rather than mandatory.”[121] The court reiterated the guidance clause “evince[d] no specific legislative intent to prohibit indirect purchaser actions because the guidance clause was [also] enacted before Illinois Brick was decided,”[122] and the only “specific case law regarding indirect purchasers [the legislature could have had] in mind when it included the guidance clause *** would have been *** [cases] permitting indirect purchaser suits [since that] was the prevailing rule nationwide before the Court decided Illinois Brick.”[123]

The court further noted the Arizona Attorney General had historically interpreted the Act as providing claims to indirect purchasers and had, pursuant to Arc America, “brought several actions on behalf of the state and its agencies for harm incurred as an indirect purchaser.”[124] “These actions,” the court believed, “reflect[ed] the state policy of accepting the benefits of indirect purchaser lawsuits and protecting Arizona taxpayers in their role as indirect purchasers.”[125]

Citing Comes, the court agreed the guidance clause’s goal was “uniformity in the standard of conduct required, [and] not necessarily in procedural matters such as who may bring an action for injuries caused by violations of the standard of conduct.”[126] The court also confirmed that Arc America held “allowing state laws to protect indirect purchasers would not interfere with the federal antitrust policy examined in Illinois Brick *** .”[127]

The defendants next suggested that allowing indirect purchaser lawsuits was to “involve the court in ‘judicial activism’”[128] and argued the only valid way to avoid applying Illinois Brick was by specific repealer statute.[129] But the court did “not view [its] rejection of Illinois Brick as judicial activism because the legislature [had] specifically granted the right of action to indirect purchasers in §44-1408 [of the Arizona Antitrust Act].”[130] Accordingly, the court “simply reject[ed a] judicial interpretation of the parallel federal act that would prohibit suits by indirect purchasers despite the statutory language granting such a right of action,”[131] explaining: “The Arizona statute broadly grants a right of action to any “person” injured in business or property by the anti-competitive acts of another. The Plaintiffs certainly fall within the definition of persons. The complaints, which must be taken as true for purposes of a motion to dismiss, allege that the Defendants’ illegal activity injured them in their business or property. So why do the Plaintiffs not have a right of action according to Defendants? Because the Supreme Court in Illinois Brick judicially limited the comparable federal statute. In the absence of the federal guidance clause, Arizona’s statutory language would plainly include indirect purchasers. Viewed against this background, Illinois Brick repealer statutes do not expand the right-of-action statutes, they simply reject a judicially imposed limitation on the right to sue originally granted by statute. By refusing to construe the federal guidance clause as requiring that Arizona courts follow Illinois Brick’s limitation on the scope of the right of action granted by the legislature, the court is simply choosing to follow the expressed legislative intent that persons injured in their businesses or property by anti-competitive activity have a right of action. The court defers to the legislature, not the federal courts, to create exceptions to the rule.”[132]

The defendants also sought to “use the Illinois Brick repealer statutes as the standard for uniformity, asserting that uniformity mandates that the court leave it to the legislature to depart from federal law.”[133] The court believed this argument “elevate[d] form over substance,”[134] instead explaining that “[t]he law in most of the states that have considered the issue provides that indirect purchasers may bring a private action,”[135] and that “[t]he importance of uniformity lies in the rule of law, not in how that law came into effect.”[136]

Finally, considering defendants’ “multiple liability” argument, the court explained the risk of multiple liability “is not, however, a problem that our trial courts are incompetent to handle,”[137] and “the solution to the double-recovery problem [is better left] to the courts.”[138] As for “complexity,” the court believed “[t]he complexity of proving damages through multiple levels of sales is a daunting task, but one to which [its] courts [were] equal”[139] and it “[could not] say *** that damages to indirect purchasers are too speculative because they are difficult to prove.”[140] Instead, “experience has shown that the courts can manage the complexity of indirect purchaser recovery in antitrust cases,”[141] and neither the court nor defendants could “provide examples of cases of unresolvable complexity.”[142] The court explained “recent developments in multistate litigation show that plaintiff may be able to produce satisfactory proof of damages,”[143] and “[a]llowing the courts to attempt to achieve justice in the antitrust realm comports with the longstanding policy of this state to protect consumers and deter anti-competitive behavior.”[144]

Accordingly, the court affirmed the courts of appeals’ decisions and remanded both cases to their respective trial courts for further proceedings.[145]

3. Tennessee: Sherwood v. Microsoft Corporation

Sherwood v. Microsoft Corp.[146] involved the identical consumer claim as alleged here and in Comes. This time, Microsoft argued indirect purchasers had no claim under the Tennessee Trade Practices Act (Tennessee’s antitrust act).[147]

As expected, the court began by considering Illinois Brick and noting its application to standing under federal antitrust law: “It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law.”[148]

The court acknowledged Tennessee had not adopted an Illinois Brick repealer statute, and the Tennessee General Assembly had sought to pass such legislation three times.[149] But the court also recognized “proposed legislation, not enacted, ha[d] no consequence whatever upon the interpretation of an existing statute.”[150]

The court then turned its attention to the Act’s language and the broad class of claimants to which it applied: “the law provides a civil remedy to ‘Any person who is injured or damaged by such arrangement.’”[151] Relying partly on Comes, the court took the term “any person” to “reflect[] an intention to protect and provide a remedy to individuals who are the ultimate consumers.”[152]

As further support for its conclusion, the court considered the Sherman and Tennessee Acts’ purposes: “While the purpose of the federal antitrust statutes is to protect competition and commerce, the state act’s purposes are to protect both commerce and the consuming public. It is clear that the legislature intended that consumers, or ultimate purchasers, of goods be provided a remedy for any injury, including higher prices, sustained due to the prohibited anticompetitive conduct. There is no basis to presume that the legislature intended to protect only those consumers who purchased directly from the violator. There is clear intent to the contrary. We hold that indirect purchasers are “persons” who may bring an action for an injury caused by violation of the TTPA.”[153]

The court also “weighed the policy concerns raised by the Court in Illinois Brick,”[154] agreeing that allowing indirect purchasers to sue “would not pose a risk of deterring lawsuits because of apportionment of recovery”[155] because indirect purchasers would sue under state antitrust laws in state court and direct purchasers would sue under federal antitrust laws in federal court,[156] and that courts find “concerns over complexity and apportionment less worrisome or inapplicable in the cases before them and [are] sympathetic to the arguments that indirect purchasers usually suffer the real loss.”[157]

Accordingly, and consistent with its earlier ruling in Blake v. Abbott Labs., Inc.[158] where the court had also held indirect purchasers had standing to sue for damages under the Tennessee Antitrust Act,[159] the court “conclude[d] that indirect purchasers such as Plaintiffs herein may sue for injury caused them by violation of the TTPA.”[160]

4. North Carolina: Hyde v. Abbott Laboratories, Inc.

In Hyde v. Abbott Labs., Inc.,[161] plaintiffs, who were indirect purchasers from defendants, filed a class action alleging defendants had violated North Carolina’s antitrust laws by fixing infant formula wholesale prices.[162] According to the North Carolina Antitrust Act: “If any person shall be injured or the business of any person, firm or corporation shall be broken up, destroyed or injured by reason of any act or thing *** in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action *** .”[163]

Defendants argued that although the Act applied to “persons,” the “General Assembly somehow intended to exclude a large class of persons -- indirect purchasers -- from recovery for non-business injuries *** .”[164] But the court instead emphasized the General Assembly had chosen to include the phrase “any person” in the Act and that by doing so, “the General Assembly intended to provide a recovery for all consumers.”[165]

And while defendants argued the court should interpret the Act consistent with Illinois Brick, the court noted that under North Carolina case law, “[f]ederal case law interpretations of the federal antitrust laws [were merely] persuasive authority in construing [its] own antitrust statutes.”[166] Even the Bunker’s court recognized and “found instructive” [167] that North Carolina, and Tennessee, lacked “federal guidance clause[s]”[168] and had, accordingly, “rejected judicial attempts to constrict the range of persons injured by illegal activity who may maintain a state-law-based antitrust cause of action in state court.”[169]

Like in Comes and Bunker’s, the court also explained the most recent substantive change to the North Carolina Antitrust Act occurred in 1969, but that Illinois Brick was not decided until 1977. “It follows,” explained the court, “that [the] General Assembly could not have intended to adopt a judicial construction of [the Antitrust Act] which did not exist at the time of the revision.”[170] After all, “[i]t is a familiar canon of statutory construction that when a legislature borrows from the statutes of another legislative body, the provisions of that legislation should be construed as they were in the other jurisdiction at the time of their adoption.”[171] Accordingly, the court “consider[ed] as persuasive authority federal cases interpreting the federal antitrust laws as they existed in 1969.”[172]

Defendants next argued the “General Assembly’s failure to explicitly amend [the Act] to allow indirect purchaser standing to sue for violations of our antitrust laws demonstrates that the General Assembly accepted the Illinois Brick rule.”[173] But the court disagreed, citing Blake v. Abbott and explaining “the intent of the General Assembly may only be discerned by its actions, and not its failure to act.”[174] As a result, the lack of “indirect purchaser” language in the Act was “of no consequence.”[175]

Finally, the court agreed that the Illinois Brick Court’s concerns about multiple liability and complexity were groundless;[176] according to Arc America, Illinois Brick was “concerned solely with the construction of federal antitrust laws, and not at all with state courts’ state antitrust laws constructions;”[177] Arc America held “no federal policy against states imposing liability in addition to that imposed by federal law”[178] existed; both direct and indirect purchasers have sufficient incentive to sue for antitrust violations;[179] and North Carolina’s state courts “are free to interpret [their] antitrust laws in a manner [they] believe to be most consistent with the purposes behind [them].”[180] Accordingly, the court held indirect purchasers had standing under the North Carolina Antitrust Act to sue for price fixing violations.[181]

D. Why the Valentine Act Permits Indirect Purchasers to Pursue Damage Claims for Price Fixing Violations.[182]

While textually quite different from the Sherman Act, Ohio courts have held the Valentine Act was “patterned after”[183] the Sherman Act. This Court, however, has also recognized the Valentine Act has “broader and stronger terms” than the Sherman Act.[184]

The Valentine Act reads: “[T]he person injured in the person’s business or property by another person by reason of anything forbidden or declared to be unlawful in those sections, may sue therefor in any court having jurisdiction and venue thereof, without respect to the amount in controversy, and recover treble the damages sustained by the person and the person’s costs of suit *** .”[185]

“It is well accepted that the cornerstone of statutory construction and interpretation is legislative intention.”[186] To determine this, “it is a cardinal rule of statutory construction that a court must first look to the language of the statute itself.”[187] “[A] statute which is unambiguous and definite on its face is to be applied as written and not construed,”[188] for “[i]f the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.”[189]

The Valentine Act refers to “the person” as its subject not once but four times and makes no distinction between direct or indirect persons. Not only is the word “person” unambiguous,[190] but this Court has also explained that “individuals would clearly be ‘persons’ under the [Valentine] statute.”[191] The victims to whom the Act applies - persons - are not “susceptible of more than one reasonable interpretation,”[192] and “where the words of [a] statute are unambiguous,”[193] it must be applied as written and no further interpretation is necessary.[194] The Act’s application to persons without limitations (both direct and indirect purchasers) is further enhanced when realizing the Act was intended to apply to “injury resulting to the public or the economy.”[195]

The Act’s plain wording does not exclude any class of “person injured,” nor does it require, or even suggest, a person must have been directly injured. Instead, the Act’s plain language is all-inclusive. When considering this identical issue, the Comes, Bunker’s, Sherwood and Hyde courts, whose states antitrust statutes contain similar “person” language, all concluded this term was unambiguous, all-inclusive and meant indirect purchasers, and they all applied their states’ antitrust acts to them.[196]

Nevertheless, Microsoft has argued that Ohio courts are directed to construe the Valentine Act in accordance with federal judicial construction of the Sherman Act and Section 4 of the Clayton Act.” But despite Microsoft’s suggestion, the Valentine Act is not a mirror image of the Sherman Act, and Ohio courts are not required to slavishly follow federal court decisions interpreting it. The Valentine Act contains no harmonization section, and no Ohio case law exists advancing Microsoft’s proposition.

To the contrary, and as expressed in Microsoft’s own citation supporting its position, the Valentine Act was merely “patterned after the Sherman Antitrust Act.”[197] Courts are therefore only instructed to interpret the Valentine Act “in light of federal judicial construction of the Sherman Act,”[198] and “[w]hen a state statute is modeled on parallel federal statutes, judicial interpretations of those federal provisions may be considered as persuasive authority in determining the meaning of comparable Ohio laws.”[199]

As this Court has explained, “[a] comparison of the two enactments shows that the Ohio law is in much broader and stronger terms than the federal enactment.”[200] After all, “Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies.”[201] According to this Court, the Valentine Act is a distinct and more potent statute than the Sherman Act, and any suggestion that Illinois Brick automatically controls Ohio citizens’ legal rights under Ohio law is untrue. And this theme was echoed in Pinney Dock & Transp. Co. v. Penn Cent. Corp.,[202] where the Sixth Circuit Court of Appeals noted “Congress[’] *** aware[ness of] state antitrust laws *** and [its choice] not to preempt them”[203] in holding the Valentine Act’s statute of limitations was not pre-empted by the Sherman Act’s statute of limitations.[204]

The phrase “in light of” is also a far cry from the term “shall,” which is, for instance, used in Iowa’s harmonization statute.[205] But even when considering Iowa’s stricter language, the Comes court believed its harmonization statute was aimed not at defining who can sue under its antitrust act but instead was intended to achieve a uniform application of the state and federal laws prohibiting non-competitive practices.[206] Since state and federal laws regarding similar issues can and do coexist and oftentimes complement each other by advancing a common purpose, to the extent this court may believe harmonization is required, harmonization of the sort proposed by Comes (and Bunker’s) comports with the Act’s application to individuals and its goal to protect the public.[207]

And not to be forgotten is that all Illinois Brick did was to instruct that indirect purchasers could not pursue price fixing claims under the federal antitrust laws. Illinois Brick said nothing as to whether indirect purchasers could sue under state antitrust laws. Instead, Arc America addressed this issue and held indirect purchasers could pursue state antitrust claims, and that doing so did not conflict with prevailing federal law. How, then, can preventing indirect purchasers from suing under the Valentine Act be consistent with federal law? It can’t. Construing the Valentine Act as permitting indirect purchasers to pursue price fixing claims is actually consistent with federal law.

But if this Court nonetheless considers the term “person” to be ambiguous, it must then interpret the Valentine Act.[208] When doing so, this Court is to “determin[e] the intent of the General Assembly [considering] the legislative history,”[209] to “read [the statute] in the light of the attendant circumstances and conditions, and to construe[ them] as they were intended to be understood, when they were passed.”[210]

Like the Comes, Bunker’s and Hyde courts noted of their states’ antitrust statutes, the Valentine Act was passed on April 19, 1898 and took effect on July 1 of that same year - long before Illinois Brick was ever decided.[211] Even in its original form, the Act provided a claim to “persons” injured by antitrust violations,[212] and it referred to this injured “person” three separate times.[213] Given Illinois Brick’s nonexistence at the time the Valentine Act was enacted, and given that indirect purchasers could freely pursue federal antitrust claims at that time, the General Assembly’s intent could not have been preclude indirect purchasers from pursuing price fixing or monopolization claims. Authority suggesting such preclusion would not exist for almost another one hundred years. Because the General Assembly did not specifically limit standing to direct purchasers in its 1898 antitrust legislation (nor ever has, for that matter), the term “person” cannot be taken to preclude indirect purchasers but must instead be read to include them.

Moreover, in observing the Valentine Act had been interpreted “in light of” federal case law under the Sherman Act, this Court in C.K. relied on its holding in List that “when the Valentine Act was enacted in Ohio the Ohio Legislature adopted the judicial construction already placed upon the federal act by the federal courts *** .”[214] Again, the federal courts’ direct purchaser requirement was not adopted until Illinois Brick in 1977. And when the General Assembly last amended the Valentine Act in 1976, even then it could not have intended to incorporate Illinois Brick’s direct purchaser requirement, because Illinois Brick had still not been decided. Since the General Assembly adopted the federal courts’ Sherman Act construction when it both enacted and last amended the Valentine Act (as it was required to do), the Valentine Act’s construction had to be that which existed in 1898 when the Valentine Act was passed or, more conservatively, in 1976 when it was most recently amended; namely, a construction allowing indirect purchaser claims.

In granting Microsoft’s Motion to Dismiss, the Appellate majority also relied on its earlier unreported Acme Wrecking Co., Inc. v. O’Rourke Const. Co. decision[215] to extend this Court’s C.K. holding concerning the Valentine and Sherman Acts’ interrelationship to find a comparable interrelationship between the Valentine and Clayton Act. But again, while the Valentine Act was adopted in 1898, eight years after Congress enacted the Sherman Act in 1890, the Clayton Act was not enacted until 1914 – eighteen years after the Valentine Act had already become law. While the General Assembly clearly had the prior Sherman Act in mind (which enunciated certain newly-proscribed conduct) when it adopted the Valentine Act, it could not have had the Clayton Act in mind (which created civil claims for Sherman Act violations). Thus, unlike the Sherman Act, the General Assembly could not have even considered the Clayton Act when it passed the Valentine Act. So while it may make sense to read the Valentine Act “in light of” the Sherman Act, the same cannot be said with respect to the Clayton Act, but neither the Acme Wrecking court nor the Appellate majority ever considered this important distinction.

And as recognized by the Comes, Bunker’s, Sherwood, and Hyde courts, the policy concerns contemplated by the Illinois Brick Court have never come to pass. Indeed, while none of these state courts’ “complexity” discussions ever discussed who comprised the class, importantly, Appellant’s claim relates not to every level indirect purchaser, but instead only to end-users.[216] As a result, any complexity concerns contemplated by this Court or Microsoft (which are generally considered an insufficient basis to deny indirect purchasers’ claims anyway) are even more remote since pass-on of damages to class members at multiple distribution levels is not an issue. But were this Court to nonetheless consider these issues complex, as the Bunker’s court explained of Arizona’s courts, Ohio’s courts “are [equally] up to the task of ascertaining damages and protecting [Ohio’s] citizens.”[217]

E. Why Some “Non-Repealer States” Do Not Permit Indirect Purchasers to Pursue Price Fixing or Monopolization Cases Under Their Antitrust Laws.

The decisions holding that indirect purchasers lack standing to pursue price fixing claims under certain states’ antitrust and/or consumer fraud statutes can all be distinguished.

In Vacco v. Microsoft Corp.,[218] the Connecticut Supreme Court held that under the Connecticut Antitrust Act indirect purchasers lacked standing to sue for price fixing damages. But the court’s reason was that Connecticut’s “legislature intended to ‘[give] Connecticut an [antitrust] law similar to the existing federal [antitrust] law in every respect.”[219] Specifically, and unlike Ohio, the Connecticut Legislature had enacted a specific section within its antitrust act requiring that its courts “be guided by interpretations given by the federal courts to federal antitrust statutes.”[220] Interestingly, the court contrasted its state’s legislative scheme with North Carolina and Tennessee’s, neither of which “require their state courts to follow federal court interpretations of federal antitrust statutes in construing their respective state statutes.”[221] Like North Carolina and Tennessee, Ohio does not have a harmonization statute either, so Vacco does not weaken Appellant’s position.[222]

In Abbott Labs., Inc. v. Segura,[223] the Texas Supreme Court denied plaintiff’s effort to sue a consumer fraud claim because the Texas Antitrust Act does not recognize claims for indirect purchasers. But the reason the Texas court ruled against indirect purchaser standing, even for consumer fraud, was because, like Connecticut but unlike Ohio, the Texas Antitrust Act also contains a specific section “mandat[ing] that Texas antitrust law be harmonized with federal antitrust law.”[224]

Like Segura, Kieffer v. Mylan Labs., Inc.[225] involved plaintiff’s efforts to sue an indirect purchaser class action claim under New Jersey’s consumer fraud act. But again, the court’s basis for denying plaintiff standing was that New Jersey’s antitrust act, again unlike Ohio’s, contains a harmonization clause[226] requiring that it “shall be construed in harmony with ruling judicial interpretations of comparable Federal antitrust statutes *** .”[227] And whether the New Jersey Antitrust Act’s harmonization statute even denies all relief to indirect purchasers is the subject of some controversy as demonstrated by Cement Masons Local Union No. 699,[228] where another New Jersey trial court denied a defendant’s motion to dismiss an indirect purchaser’s consumer fraud claim.[229]

And finally, Blewitt v. Abbott Labs.,[230] involved another indirect purchaser’s effort to assert a consumer fraud claim. But unlike the instant case, while “Blewitt attack[ed] the Illinois Brick rationale, [she] fail[ed] to supply a compelling reason based on Washington law to reject it.”[231] And although Washington’s consumer fraud act also contains a harmonization clause,[232] the court was not overly troubled by its holding since the attorney general was not precluded from bringing suit,[233] which meant “indirect purchaser[s were] not entirely without a remedy.”[234]

F. The State of Ohio’s Interest in Vigorous Indirect Purchaser Antitrust Enforcement.

Given the Valentine Act’s applicability to indirect purchasers, the Ohio Attorney General’s office, not surprisingly, aggressively pursues indirect purchaser price fixing cases under the Act on behalf of consumers as parens patriae. These efforts were demonstrated in the Mylan cases, and they were most recently showcased in the Attorney General’s indirect purchaser case and settlement against sorbates (a food additive) manufacturers for a lengthy price fixing conspiracy.[235] The Ohio Attorney General also recently sued and settled a price fixing case against vitamins manufacturers on behalf of indirect state agency purchasers.[236] By bringing these lawsuits, Ohio’s executive branch, like the Bunker’s court recognized of Arizona, has evinced a “state policy of accepting the benefits of indirect purchaser lawsuits and protecting [Ohio] taxpayers in their role as indirect purchasers.”[237] Thus, the Ohio General Assembly in adopting clear language permitting all to assert claims, and the executive branch in implementing the statute have indicated that public policy in Ohio is to permit indirect purchasers to assert claims under the Act.

Proposition of Law No. II:

Appellant is not in privity with Microsoft, but privity between a plaintiff and defendant is not required to sustain a claim for unjust enrichment. Since Appellant properly alleged unjust enrichment’s elements, her unjust enrichment claim should be sustained.

In Hambleton v. R.G. Barry Corp.,[238] this Court “observed that liability in quasi-contract ‘arises out of the obligation cast by law upon a person in receipt of benefits which he is not justly entitled to retain ***.’”[239] This Court then listed the elements of quasi-contract, or unjust enrichment, which Appellant has pleaded in her Amended Complaint:[240] “(1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment (‘unjust enrichment’).”[241] After all, “the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.”[242]

An unjust enrichment claim is only available when no contract exists because “[c]ontracts implied in law are not true contracts [, and] the relation springing therefrom is not in a strict sense contractual but quasi-contractual or constructively contractual,”[243] By its very nature, then, privity - or, as Microsoft describes it, a direct relationship - between the parties would destroy an unjust enrichment claim since “[t]he application of this doctrine [unjust enrichment] does not require privity between the parties,”[244] and Microsoft can cite no Ohio authority advancing this so-called “fourth” requirement. In fact, no state requires privity when pursuing an unjust enrichment claim.[245]

That Microsoft’s authority may involve situations where the plaintiffs and defendants had an arguably more direct relationship than here (which is questionable as Microsoft squarely contemplated Appellant and the Class as its monopoly pricing scheme’s ultimate victims) does not equate to a requirement that an unjust enrichment claim necessarily fails unless a “more direct” relationship exists. To rule this way would be to read a new element into an unjust enrichment claim. Given this quasi-contractual remedy’s nature and the necessary lack of privity that goes along with it, Microsoft’s proposed privity/directness requirement would largely turn an unjust enrichment claim into a breach of contract claim.

To demonstrate this point, in Liberty Mut. Insur. Co. v. Industrial Comm’n of Ohio,[246] Liberty Mutual insured Caldwell Tanks under Mississippi’s private workers’ compensation system. Caldwell’s employee, John Houston, was injured on the job, he filed a workers’ compensation claim and Liberty Mutual paid his claim.[247] Mr. Houston later returned to Ohio and filed a workers’ compensation claim here.[248] The Ohio Industrial Commission ultimately found he was entitled to Ohio benefits, not the Mississippi benefits paid by Liberty Mutual.[249] Accordingly, Liberty Mutual sued the Ohio Industrial Commission for reimbursement of the amount it had paid Mr. Houston.[250]

This Court explained, “[a]n action in unjust enrichment will lie ‘ *** when a party retains money or benefits which in justice and equity belong to another,’”[251] and believed “the commission [had been] unjustly enriched when an employer or its insurer pays benefits under the laws of another state where such benefits are later determined to be the responsibility of the commission.”[252] Accordingly, absent privity - or any “direct relationship” - between Liberty Mutual and the Ohio Industrial Commission, the Commission was required to reimburse Liberty Mutual for the Commission’s unjust enrichment.[253]

Like the instant case, In re Cardizem CD Antitrust Litig.[254] also concerned, along with antitrust claims, class action unjust enrichment claims, this time under various states’ laws.[255] Cardizem involved claims by Cardizem CD indirect purchasers (consumers) that defendants had conspired to prevent generic competition for Cardizem CD.[256] Like here, defendants moved to dismiss plaintiffs’ complaint arguing plaintiffs could not state a common law unjust enrichment claim because “they do not and cannot allege that they bestowed a benefit directly on Defendants; [and] they do not and cannot allege that privity exists between Plaintiffs and Defendants *** .”[257]

In denying defendants’ motion to dismiss, Judge Nancy Edmunds first observed the propriety of plaintiffs’ alternative pleading: “The authority Defendants rely upon fails to support their position that the success of Plaintiffs’ common law unjust enrichment claims necessarily depends upon the success of their statutory claims. To the contrary, the courts often award equitable remedies under common law claims for unjust enrichment in circumstances where claims based upon contract or other state law violations prove unsuccessful. *** Rather than allegations and proof of the elements necessary for its antitrust claims, Plaintiffs’ common law claims for unjust enrichment depend upon allegations and proof that ‘the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that the defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.’”[258]

Judge Edmunds then meticulously instructed that defendants’ purported privity and directness requirements were not necessary to sustain plaintiffs’ unjust enrichment claim: “Likewise unpersuasive are Defendants’ arguments that Plaintiff[s] must allege, as an essential element of their unjust enrichment claims, facts showing that they directly conferred a benefit on both HMRI and Andrx and facts showing that privity exists between Plaintiffs and Defendants. The decisions Defendants rely upon do not support the argument that either privity or a directly conferred benefit is an essential element of an unjust enrichment claim under the state common laws at issue here.

“As to the lack of privity, the decisions Defendants rely upon do not support its position and at least one refutes, rather than supports, the argument that privity between parties is required to state a common law claim for unjust enrichment. See Paschall’s Inc., 407 S.W.2d at 154 (observing that “it is well established that want of privity between parties is no obstacle to recovery”). See also Schiff v. Am. Ass’n of Retired Persons, 697 A.2d 1193, 1194 (D.C. App.1997) (“There can be no claim for unjust enrichment when an express contract exists between the parties.”).

“Similarly, the authority Defendants[] rely upon fail[s] to support their broad claim that Plaintiffs cannot state a common law claim for unjust enrichment unless they allege facts showing that they conferred a benefit directly upon each of the Defendants. Rather, careful examination of the cited authority shows that the courts dismiss such claims only where the plaintiffs fail to allege facts showing that they have bestowed some sort of benefit upon the defendant that the defendant ought not keep in equity and good conscience. See Rapaport v. United States Dep’t of Treasury, 313 U.S.App.D.C., 59 F.3d 212 218 (D.C. Cir.1995) (where the court observed that unjust enrichment cannot be found where the plaintiff has failed to show that the defendant has been enriched or why that enrichment is unjust). ‘The fundamental characteristic of unjust enrichment is ‘that the defendant has been unjustly enriched by receiving something *** that properly belongs to the plaintiff [, thereby] forcing restoration to the plaintiff.’’ Id. at 217 (quoting Dobbs, Law of Remedies §4.1(2)). As the Rapaport Court observed, the typical elements of a cause of action for unjust enrichment are: ‘(1) the plaintiff conferred a benefit upon the defendant; (2) the defendant accepted and retained the benefit; and (3) it would be unjust for the defendant not to pay the plaintiff the value of the benefit.’ Id. Plaintiffs here have alleged that they conferred a benefit, in the form of overpayments and increased profits, on Defendants, that Defendants accepted that benefit and that it would be unjust under the alleged circumstances for Defendants to retain that benefit.

“Contrary to Defendants’ argument, there is no additional requirement that a benefit flow solely from Plaintiffs to Defendants. The courts do not define ‘benefit’ as narrowly as Defendants urge. As the Alabama Supreme Court observed, ‘whenever one person adds to the other’s advantage in any form, whether by increasing his holdings or saving him from expense or loss, he has conferred a benefit upon the other.’ Opelika Production Credit Ass’n, Inc. v. Lamb, 361 So.2d 95, 99 (1978) (citing Restatement, Restitution, §1(b); Sullivan, “The Concept of Benefit in the Law of Quasi-Contract,” 64 Geo.L.J. 1 (1975)). Whether or not the benefit is directly conferred on the defendant is not the critical inquiry; rather, the plaintiff must show that his detriment and the defendant’s benefit are related and flow from the challenged conduct. Id. Defendants’ arguments, that the connection between Plaintiffs alleged overpayments for Cardizem CD and the benefits Defendants obtained as a result of those overpayments is too tenuous, raise factual questions and refute Defendants’ claim that Plaintiffs can prove no set of facts allowing it to state a common law claim for unjust enrichment.”[259]

Microsoft benefited from Appellant and the Class’ overpayments because without this end-use, consumer market, its monopoly would have been pointless. No direct, or “1-step removed” benefit is required to sustain an unjust enrichment claim and no cases cited by Microsoft have ruled as a matter of law that a direct benefit is required to sustain an unjust enrichment claim. Indeed, such a situation would describe a direct purchaser relationship to which the Sherman Act would apply instead.

And to the extent this Court believes a direct benefit is required, “direct” in this sense would not necessarily mean “1-step removed” from the seller. Instead, Microsoft can be described as having “directly benefited” from Appellant and the Class’ overpayments because these overpayments were the “direct result” of Microsoft’s monopoly, and these overpayments created the pool of money that ultimately made its way “directly” into Microsoft’s pockets.

CONCLUSION

Microsoft’s abuse of its monopoly requires that it be held accountable to its scheme’s ultimate and deliberate victims – Ohio consumers. This Court’s general suggestion that the Valentine Act be interpreted “in light of” federal law by no means requires it to invoke Illinois Brick and to exterminate Appellant’s antitrust claim. Given the Act’s clear language, there is no need for interpretation, and the Act should be applied as written. After all, unless given a clear mandate to do otherwise (which has never been given), this Court should consider Ohio’s consumers’ rights and the Ohio and federal antitrust laws’ similar purposes and complementary natures to reach a just and fair decision.

Among Comes, Bunker’s, Sherwood and Hyde, all of Microsoft’s arguments against indirect purchaser standing, and more, have been presented, considered and rejected. That Appellant’s antitrust theory may seem novel here is merely the product of it never having been pursued in Ohio, yet her claim’s lack of previous enforcement should not be taken to mean Ohio indirect purchasers have no remedy under the Valentine Act. Ohio’s consumers, like those in Iowa, Arizona, Tennessee and North Carolina, have actually had this antitrust remedy all along, and now, finally and appropriately, they are enforcing it.

Appellant has also properly pleaded her unjust enrichment claim. Its elements are straightforward, and by pleading it she proposes no end-run around her antitrust claim but rather merely alleges an alternative theory – one that is not only appropriate but also has been accepted by other courts.

Microsoft is on the cusp of committing the perfect crime, one for which its ultimate Ohio victims will receive no compensation. But Ohio law permits these victims – Ohio’s consumers - a remedy. Ohio’s antitrust and unjust enrichment laws were enacted to address situations such as this, which, when coupled with considerations of natural justice and society’s unwillingness to permit criminals to profit from their crimes, implore the need, indeed the necessity, to reverse the lower courts’ rulings granting Microsoft’s Motion to Dismiss.

Dated: July 19, 2004 Respectfully submitted,

By: ___________________________________

Daniel R. Karon (0069304)

WEINSTEIN KITCHENOFF SCARLATO

KARON & GOLDMAN LTD.

55 Public Square, Suite 1500

Cleveland, Ohio 44113-1998

Telephone: (216) 622-1851

Facsimile: (216) 622-1852

Attorneys for Amici Curiae National Consumers League, Consumer Action, and Organization for Competitive Markets

---

[1] Supplement at p.2, &2; p.3, &7. (All record cites are to paragraphs in the Amended Complaint, field with Appellant’s brief as the Supplement, or to the Appendix, also filed with Appellant’s brief.)

[2] Id. at pp.8-17, &&23-45.

[3] See United States v. Microsoft (C.A.D.C.2001), 253 F.3d 34, 47 (per curiam) (“[S]uit against Microsoft, charging the company with *** unlawfully maintaining a monopoly in the operating system market through anticompetitive terms in its licensing and software developer agreements.”).

[4] Supp. at p. 18, &47.

[5] R.C. §§ 1331.01 and 1331.02.

[6] Section 2, Title 15, U.S.Code.

[7] See New York v. Microsoft Corp. (D.D.C.2002), 209 F.Supp.2d 132, 139, 141 (discussing procedural history).

[8] Section 15, Title 15, U.S.Code; Illinois Brick v. Illinois (1977), 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (discussed infra).

[9] Id.

[10] Supp. at pp.19-20, &&52-55.

[11] Section 15, Title 15, U.S.Code.

[12] Appendix at p.4.

[13] Id. at p.6.

[14] Id. at p.26.

[15] 15 U.S.C. §2.

[16] Id. at §4.

[17] Before Illinois Brick, six of the seven federal courts of appeals that considered this issue held indirect purchasers could recover damages for antitrust violations. See, for example, In re Western Liquid Asphalt Cases (C.A.9, 1973), 487 F.2d 191 and West Virginia v. Chas. Pfizer & Co. (C.A.2, 1971), 440 F.2d 1079.

[18] (1968) 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231.

[19] Id. at 487-88.

[20] Id. at 494.

[21] (1977) 431 U.S. 720, 726, 97 S.Ct. 2061, 2064-65, 52 L.Ed.2d 707, 713 (“Having decided [in Hanover Shoe] that in general a pass-on theory may not be used defensively by an antitrust violator against a direct purchaser plaintiff, we must now decide whether that theory may be used offensively by an indirect purchaser plaintiff against an alleged violator.”).

[22] Id. at 726-27.

[23] Id. at 728.

[24] Id. at 730.

[25] Id. at 731-32.

[26] Brief for the United States as Amicus Curiae, passim, Illinois Brick Co. v. Illinois, No. 76-404 (1977). (Attached as Exhibit A.)

[27] Illinois Brick, 431 U.S. at 753.

[28] Id., 431 U.S. at 759-60.

[29] Id. at 766.

[30] Comes v. Microsoft Corp. (2002), 646 N.E.2d 440, 449-50 (Iowa); accord Hyde v. Abbott Labs., Inc. (1996), 123 N.C.App. 572, 584, 473 S.E.2d 680.

[31] Comes, 646 N.W.2d at 451.

[32] Id. at 449 (quoting Hyde, 123 N.C.App. at 583).

[33] Id. at 451.

[34] Id.; accord Bunker’s Glass Co. v. Pilkington Libbey-Owens-Ford Co., Inc. (Ariz.Ct.App. 2002), 202 Ariz. 481, 492 (citing In re Western Liquid Asphalt Cases (C.A.9, 1973), 487 F.2d 191, 201), appeal docketed, No. CV-02-0140-PR. Many commentators have also criticized Illinois Brick for its bad public policy. See Bauer, The Stealth Assault on Antitrust Enforcement: Raising the Barriers for Antitrust Injury and Standing, 62 U.Pitt.L.Rev. 437 passim (2001); O’Connor, Is the Illinois Brick Wall Crumbling?, 15 Antitrust ABA 34, 34-35, 37-38 (2001), Blair & Harrison, Reexamining the Role of Illinois Brick in Modern Antitrust Standing Analysis, 68 Geo.Wash.L.Rev.1 passim (1999).

[35] Kassis, The Indirect Purchaser’s Right to Sue Under Section 4 of the Clayton Act: Another Congressional Response to Illinois Brick, 32 Am.U.L.Rev.1087, 1116 (1983).

[36] (1989) 490 U.S. 93, 109 S.Ct. 1661, 104 2d 86.

[37] Id. at 101-02; see also Comes, 646 N.W.2d at 444 (“[Arc America] held nothing in the Sherman Act or in Illinois Brick prevents the states from allowing indirect purchasers to bring antitrust actions, even if this results in multiple recoveries.”).

[38] Arc Am., 490 U.S. at 95. See also Brief of Thirty-Five States and the District of Columbia as Amici Curiae in Support of Appellants, No. 87-1862 (1987).

[39] Id. at 96.

[40] Id. (plaintiffs’ “claims under these state indirect purchaser statutes are the focus of this case”).

[41] In re Cement & Concrete Antitrust Litig. (C.A. 9, 1987), 817 F.2d 1435, 1446-47.

[42] 490 U.S. at 100.

[43] Id. at 100-101.

[44] Id at 101 (internal citations omitted).

[45] Id. at n.4.

[46] Id. at 102; see also In re Brand Name Prescription Drugs Antitrust Litig. (C.A. 7, 1997), 123 F.3d 599, 611 (“Antitrust law *** is a field in which Congress has not sought to replace state with federal law.”).

[47] Id. at 103.

[48] Id. at 101.

[49] Id. at 105-06 (emphasis added).

[50] Id. at 102.

[51] Id. at 101.

[52] Sherwood v. Microsoft Corp. (July 31, 2003), 2003 Tenn.App.LEXIS 539, at *80 (emphasis added); see also Mack v. Bristol-Myers Squibb Co. (Fla.Dist.Ct.App. 1996), 673 So.2d 100, 108 (“[I]ssues such as whether deterrence, compensation, or efficient judicial administration should be promoted by antitrust laws and whether and to what extent these goals can or should be harmonized are fundamental policy decisions for the legislature of each state.” (internal footnote omitted)).

[53] Ala.Code §6-5-60; Alaska Stat. §45.50.577; Ark.Stat.Ann. §4-75-315; Cal.Bus.& Prof.Code §16750; Colo.Rev.Stat. §6-4-1114; D.C.Code Ann. §28-4509; Haw.Rev.Stat. §480-13; Idaho Code §48-113; Ill.Rev.Stat., Chapter 740, para. 10/7; Kan.Stat.Ann. §50-161; 10 Me.Rev.Stat. §1104; Md.Commercial Law Code Ann. §11-209; Mich.Stat.Ann. §445.778; Minn.Stat.Ann. §325D.57; Miss.CodeAnn. §75-21-9; Neb.Rev.Stat. §59-821; Nev.Rev.Stat. §598A.160; N.M.Stat.Ann. §57-1-3; N.Y.Gen.Bus.Law §340; N.D.Cent.Code §51-08.1-08; Or.Rev.Stat. §646.780; R.I.Gen.Laws §6-36-12; S.D.Codified Laws §37-1-33; Vt.Stat.Ann., Title 9, §2465; W.Va.Code St.R. §§142-9-1, 142-9-2; and Wis.Stat.Ann. §133.18.

[54] (D.D.C. 1999), 99 F.Supp.2d 1, 10-11.

[55] Id. at passim (Illinois Brick did not preclude state attorneys general in Alaska, Arkansas, Connecticut, Florida, Kentucky, Louisiana, Maine, North Carolina, Ohio, Oklahoma, South Carolina, Utah, Vermont and West Virginia from pursing claims for restitution on behalf of indirect purchasers resulting from price fixing under these states’ consumer protection laws. Washington’s claim for damages for indirect purchasers was limited to state governmental entity purchasers.).

[56] FTC v. Mylan Labs., Inc. (D.D.C. 1999), 62 F.Supp.2d 25.

[57] Defendants’ Motion to Dismiss at p.7.

[58] Mylan II, 99 F.Supp.2d at 8 (“[In t]his *** action brought by the Ohio Attorney General pursuant to his or her powers under Ohio Rev. Code Ann. §109.81 and §1331.01 et seq. [the Valentine Act] *** [t]he Court *** finds that the Ohio Attorney General is authorized to seek restitution on behalf of indirect purchasers.”).

[59] Ciardi v. F. Hoffman-La Roche, Ltd. (2002), 436 Mass. 53, 63, 762 N.E.2d 303.

[60] Arthur v. Microsoft Corp. (2004), 267 Neb. 586 [7].

[61] Elkins v. Microsoft Corp. (Vt. 2002), 817 A.2d 9, 20 (noting also that indirect purchasers can sue under Vermont’s antitrust statute (id. at 18-19)).

[62] Mack, 673 So.2d at 110.

[63] Cement Masons Local Union No. 699 v. Mylan Labs., Inc. (Apr. 18, 2000), No. 431-99, slip op. at 10-11 (Super. Ct. N.J.) (order denying motion to dismiss consumer fraud claim on behalf of consumer indirect purchasers).

[64] Washington’s consumer fraud act also permits its attorney general to sue for consumers’ antitrust damages as parens patriae. Wash.Rev.Code §19.86.080.

[65] Bunkers, 202 Ariz. at 492.

[66] Comes, 646 Iowa at 451.

[67] Hyde, 123 N.C.App. at 584.

[68] Sherwood, Tenn.App.LEXIS, at *115; Blake v. Abbott Labs., Inc. (Mar. 27, 1996), No. 03AO1-9509-CV-00307, Tenn.App.LEXIS 184, at *19.

[69] O’Connor, 15 Antitrust at 35. For additional discussion on number of indirect states, see also Greene, O’Connor & Hubbard, State Antitrust Law and Enforcement (2001), 1252 PLI/Corp 1129, 11-12.

[70] Of the eleven states remaining, Indiana, Missouri, Hew Hampshire, Texas, Virginia and Washington’s antitrust or consumer protection acts contain “harmonization” statutes, which these states’ courts, when considered, have interpreted to deny indirect purchaser standing pursuant to Illinois Brick; Delaware and Pennsylvania’s antitrust acts do not permit private claims; and Georgia, Montana and Wyoming do not have antitrust acts.

[71] Mylan II, 99 F.Supp.2d at 8.

[72] (Iowa 2002) 646 N.W.2d 440.

[73] Id. at 441.

[74] Id.

[75] Id. at 442.

[76] Id. at 443.

[77] Id. (emphasis added); see also Iowa Code §553.12.

[78] 646 N.W.2d at 445.

[79] Id. (emphasis in original; internal citations and footnote omitted).

[80] Id. at 445-46.

[81] Id. at 446; see also Iowa Code §553.2.

[82] Id.

[83] Id. (citing Emergency One, Inc. v. Waterous Co. (W.D.Wis.1998), 23 F.Supp.2d 959, 967).

[84] Id.

[85] Id. (citing Pool v. Superior Court (1984), 139 Ariz. 98, 677 P.2d 261).

[86] Id.

[87] Id. (emphasis added).

[88] Id. at 447 (internal citations omitted).

[89] Id. (emphasis added).

[90] Id.

[91] Id. at 446-47. See also Radovich v. National Football League (1958), 352 U.S. 445, 454, 77 S.Ct. 390, 395, 1 L.Ed.2d 456, 464 (Plaintiff sued under §4 of Clayton Act alleging defendants had conspired to monopolize professional football. Court found antitrust laws protected victims, as well as public, and courts should not burden private litigants with additional requirements); Mandeville Island Farms, Inc. v. American Crystal Sugar Co. (1948), 334 U.S. 219, 236, 68 S.Ct. 996, 1006, 92 L.Ed. 1328, 1340 (Sugar beet growers sued sugar refiners and distributors under Sherman Act for price fixing. Court found statute did not confine its protection to consumers, purchasers, competitors or sellers but was comprehensive in its terms and coverage, “protecting all who are made victims of the forbidden practices.”); Bigelow v. RKO Radio Pictures, Inc. (1946), 327 U.S. 251, 264-66, 66 S.Ct. 574, 579-80, 90 L.Ed. 652, 660-61 (in Sherman and Clayton Acts action for monopolistic practices in exhibiting motion pictures, Court found requiring plaintiff to demonstrate specific damages would induce more grievous wrongdoing.).

[92] Comes, 646 N.W.2d at 448.

[93] Id.

[94] Id. at 449.

[95] Id.

[96] Id.

[97] Id. at 449-50.

[98] Id. at 451.

[99] Id.

[100] Id. (citing Kassis, 32 Am.U.L.Rev. at 1116 (“The House Report on H.R. 11942, *** concluded that the Court had overstated the problem of complexity in Illinois Brick[, and t]he Senate Judiciary Committee, in its report on S. 1874, acknowledged the difficulty of proving pass-on but concluded that this difficulty did not justify ignoring the important rights of indirect purchasers.”)).

[101] Id.

[102] Id.

[103] Id. at 450 (citing Illinois Brick, 431 U.S. at 746).

[104] Id. at 451.

[105] Id.

[106] (Ariz., Aug. 25, 2003), No. CV-02-0140-PR, slip op. (Attached as Exhibit B.)

[107] Id. at 6-7.

[108] Id. at 7. See also Bunker’s Glass Co. v. Pilkington plc (Ariz.Ct.App. 2002), 202 Ariz. 481, 47 P.3d 1119 and Gray v. Philip Morris, Inc. et al. (Ariz.Ct.App., May 7, 2002), No. 2 CA-CV 2001-0121, slip op. (Attached as Exhibit C).

[109] Bunker’s, No. CV-02-0140-PR at 7.

[110] Id. at 8. See also Ariz.Rev.Stat. §44-1408.

[111] Id.

[112] Id.

[113] Id.

[114] Id.

[115] Id. 8-9.

[116] Id. at 9 (emphasis added).

[117] Id. at 9-10 (emphasis added).

[118] Id. at 9.

[119] Id. at 10.

[120] Id.

[121] Id.

[122] Id. at 11 (emphasis added).

[123] Id. at 11-12.

[124] Id. at 12.

[125] Id. at 13.

[126] Id. at 18.

[127] Id. at 20 (emphasis added).

[128] Id. at 21.

[129] Id.

[130] Id.

[131] Id.

[132] Id. at 21-22 (emphasis added; internal citations omitted).

[133] Id. at 22.

[134] Id.

[135] Id. (emphasis added).

[136] Id.

[137] Id. at 25.

[138] Id.

[139] Id. at 26.

[140] Id. See also Mantell, Denial of a Forum to Indirect-Purchaser Victims of Price Fixing Conspiracies: A Legal and Economic Analysis of Illinois Brick, 2 Pace L.Rev. 153, 204-10 (1982) (presenting formula for calculating damages and arguing the suggested difficulties for such calculations are exaggerated) (attached as Exhibit D); Harris & Sullivan, Passing on the Monopoly Overcharge: A Comprehensive Policy Analysis, 128 U.Pa.L.Rev. 269, 315 (1979) (suggesting “reasonable estimation of passing on which will closely approximate the truth in the majority of cases requires no mystical powers or elaborate, extensive economic analysis”). Defendants’ Indirect Purchaser Master Settlement Agreement also demonstrates that damages are not too complex to compute and allocate.

[141] Id. at 27.

[142] Id.

[143] Id. See also In re S.D. Microsoft Antitrust Litig. (S.D. 2003), N.W.2d 668, 679, cited by Bunker’s, where the court noted virtually all courts considering indirect purchasers’ claims against Microsoft have upheld class certification based on plaintiffs’ testimony regarding proving pass-on damages.

[144] Bunker’s, No. CV-02-0140-PR at 31.

[145] Id. at 32.

[146] (July 31, 2003), No. M2000-01850-COA-R9-CV, 2003 Tenn.App.LEXIS 539.

[147] Id. at *2.

[148] Id. at *81.

[149] Id. at *85.

[150] Id. See also Jo Ann Forman, Inc. v. National Council on Compensation Ins., Inc. (Tenn.Ct.App. 1999), 13 S.W.3d 365, 373 (court was bound by Tennessee case law concerning definition of the term “article” in the TTPA and was not permitted to broaden this term to cover plaintiffs’ claim despite three failed legislative attempts to broaden it).

[151] Sherwood, 2003 Tenn.App.LEXIS at *96 (emphasis added); see also Tenn.Code.Ann. §47-25-106.

[152] Id. at *92, 96.

[153] Id. at *96-97.

[154] Id. at *99.

[155] Id.

[156] One need merely observe the federal-direct purchaser Vitamins case and myriad state-indirect purchaser Vitamins cases to see this concept demonstrated. See infra nn. 11 & 13.

[157] Sherwood, 2003 Tenn.App.LEXIS at *99.

[158] (Mar. 27, 1996), No. 03A01-9509-CV-00307, 1996 Tenn.App.LEXIS 184.

[159] Id. at *10.

[160] Sherwood, 2003 Tenn.App.LEXIS at *101.

[161] (1996), 123 N.C.App. 572.

[162] Id. at 573.

[163] Id. at 577 (emphasis in original). See also N.C. Gen. Stat. 75-16.

[164] Id.

[165] Id. at 578.

[166] Id.

[167] Bunker’s, No. CV-02-0140-PR at 10-11.

[168] Id.

[169] Id. at 11.

[170] Hyde, 123 N.C.App. at 578.

[171] Id. (emphasis added) (citing Shannon v. United States (1994), 512 U.S. 573, 581, 114 S.Ct. 2419, 2425, 129 L.Ed.2d 459, 467; Carolene Prods. Co. v. United States (1944), 323 U.S. 18, 26, 65 S.Ct. 1, 5, 89 L.Ed. 15, 21).

[172] Id. (listing the federal cases pre-Illinois Brick where indirect purchasers were granted standing to sue under the Clayton Act for Sherman Act violations).

[173] Id. at 582.

[174] Id.

[175] Id.

[176] Id. at 582-83.

[177] Id. at 583.

[178] Id.

[179] Id.

[180] Id.

[181] Id. at 584.

[182] No Ohio court has addressed, at least in any published decision, the limitations, if any, on standing imposed under the Clayton Act as set forth in Illinois Brick. See ABA Section of Antitrust Law, State Antitrust Practice and Statutes, §37-16 (1999). (Attached as Exhibit E.) Accordingly, Plaintiffs analyze this issue along the same lines as other courts that have considered it.

[183] List v. Burley Tobacco Growers’ Co-op. Ass’n (1925), 114 Ohio St. 361, 369, 151 N.E. 471.

[184] Id. (emphasis added).

[185] Ohio Rev. Code Ann. §1331.08 (emphasis added).

[186] State v. Jordan (2000), 89 Ohio St.3d 488, 492, 733 N.E.2d 601.

[187] Id.

[188] State v. Wemer (1995), 112 Ohio App.3d 100, 103, 677 N.E.2d 1258.

[189] Jordan , 89 Ohio St.3d at 492.

[190] See Webster’s Ninth New Collegiate Dictionary (1991) 877, defining “person” as “HUMAN, INDIVIDUAL.”

[191] Thaxton v. Medina City Bd. of Educ. (1986), 21 Ohio St.3d 56, 57, 488 N.E.2d 136 (emphasis added).

[192] Jordan, 89 Ohio St.3d at 492.

[193] Id.

[194] Id.; see also State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Educ. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (“If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.”).

[195] State v. Zayre of Ohio, Inc. (1974), 41 Ohio Misc. 117, 123, 324 N.E.2d 186 (Cuyahoga Cty.). See also Webster’s Ninth New Collegiate Dictionary (1991) 952, defining “public” as “a group of people having common interests or characteristics” (emphasis added).

[196] Comes, 646 N.E.2d at 445; Bunker’s, No. CV-02-0140-PR at 32; Sherwood, 2003 Tenn.App.LEXIS at *92, 96; Hyde, 123 N.C.App. at 578. See also Elkins, 817 A.2d at 13 (holding that “any person” means indirect purchasers for purposes of Vermont’s consumer fraud act).

[197] C.K. & J.K., Inc. v. Fairview Shopping Center Corp. (1980), 63 Ohio St.2d 201, 204, 407 N.E.2d 507 (emphasis added).

[198] Id. (emphasis added).

[199] State v. Moore (1994), 99 Ohio App.3d 748, 753, 651 N.E.2d 1319 (emphasis added).

[200] List, 114 Ohio St. at 369.

[201] Arc Am., 490 U.S. 102. See also Ash v. Board of Review, Ohio Bureau of Employment Servs. (1986), 26 Ohio St.3d 158, 162, 497 N.E.2d 724 (“Federal law preempts state regulation when Congress intends to displace state law, which intention may be inferred from a federal scheme so pervasive as to leave no room for states to supplement it.” (internal citation omitted)).

[202] (C.A.6, 1988), 838 F.2d 1445.

[203] Pinney Dock, 838 F.2d at 1482.

[204] Id.

[205] Iowa Code §553.2. See also Illinois (Ill. Rev. Stat. ch. 740, para 10/11), Michigan (Mich. Stat. Ann. §445.784) and Nevada’s (Nev. Rev. Stat. §598A.050) harmonization statutes, which all instruct that their courts “shall” construe their antitrust acts in harmony with federal law, yet all are repealer states.)

[206] Comes, 646 N.W.2d at 446.

[207] See Bunker’s, 202 Ariz. at 487-88 (Arizona courts instructed that they “may” use federal court interpretations as guide in construing antitrust laws and that federal laws “may be used as a ‘guide’”).

[208] Jordan, 89 Ohio St.3d at 492.

[209] Id.

[210] Miller v. Fairley (1943), 141 Ohio St. 327, 334, 48 N.E.2d 417 (citing United States v. Union Pac. R.R. Co. (1875), 91 U.S. 72, 23 L.Ed. 224 and Schuyler County v. Thomas (1878), 98 U.S. 169, 25 L. Ed. 88).

[211] Ohio S. Bill 336 (1898), 93 v. 143-146.

[212] Id. at §11.

[213] Id. (in keeping with the times, following its first reference to “person,” the Act thereafter referred to “his” and him.”)

[214] List, 63 Ohio St. at 370 (emphasis added).

[215] (1^st Dist. Mar. 2, 1995) No. C-930856, 1995 Ohio App.LEXIS 745.

[216] Supp. at p.5, &&12-13.

[217] Bunker’s, No. CV-02-0140-PR at 29.

[218] (2002) 260 Conn. 59, 793 A.2d 1048.

[219] Id. at 77.

[220] Conn. Gen. Stat. §35-44b.

[221] Vacco, 260 Conn. at 77.

[222] By making this argument, Amici do not concede that were the Valentine Act to contain a “harmonization clause,” this clause would require this Court to adopt Illinois Brick’s direct purchaser requirement.

[223] (Tex. 1995), 907 S.W.2d 503.

[224] Id. at 505. See also Tex.Bus.& Com.Code §15.04.

[225] (N.J.Super.Ct., Sept. 9, 1999), No. BER-L-365-99-EM, 1999 WL 1567726.

[226] Id. at *3.

[227] N.J. Stat. §56:9-18.

[228] Cement Masons Local Union No. 699 v. Mylan Labs., Inc. (Super.Ct.N.J., Apr. 18, 2000), No. 431-99, slip op. at 10-11 (order denying motion to dismiss consumer fraud claim on behalf of consumer indirect purchasers). (Attached as Exhibit F.)

[229] Id. at 11. See also Comes, 646 N.W.2d at 446 (permitting indirect purchaser standing under Competition Law even in light of harmonization provision).

[230] (1997) 86 Wn.App. 782, 938 P.2d 842.

[231] Id. at 787.

[232] Id. at 783.

[233] Id. at 790. See also Wash. Rev. Code. §19.86.080.

[234] Blewitt, 86 Wn. App. at 790.

[235] See State of Ohio ex rel. Betty D. Montgomery v. Daicel Chem. Indus., Ltd., Case No. 02CVH-10-12064, State of Ohio’s Distribution Plan (dated January 14, 2004) and Final Judgment Entry (dated Feb. 13, 2004). (Attached as Exhibit G.)

[236] State of . . . Ohio . . . v. Hoffman-La-Roche, Inc. (D.D.C. Aug. 3, 2001), No. CIV. A. 01 1583, 2001 WL 1230932 (D.D.C.).

[237] Bunker’s, No. CV-02-0140-PR at 13.

[238] (1984), 12 Ohio St.3d 179, 465 N.E.2d 1298.

[239] Id. at 183 (citing Hummel v. Hummel (1938), 133 Ohio St. 520, 525, 14 N.E.2d 923).

[240] Supp. at p.9, &&49-50.

[241] Id.

[242] Hummel v. Hummel (1983), 133 Ohio St. 520, 526, 14 N.E.2d 923 (emphasis in original).

[243] Id. at 525.

[244] Pioneer Bank v. Flynn (Sept. 9, 1981), 12^th Dist. No. CA79-04-0039, 1981 Ohio App.LEXIS 14532, at *5 (emphasis added) (citing Indian Hill v. Atkins (1950), 153 Ohio St. 562, 93 N.E.2d 22). See also In re Estate of York (June 18, 2001), No. CA2000-04-040, 12^th Dist. 2001 Ohio App.LEXIS 2685, at *18-19 (“In order for unjust enrichment to apply, privity between parties is not required.”); Steel Quest, Inc. v. City Mark Constr. Servs., Inc. (Oct. 31, 1997), 1^st Dist. No. C-960994, 1997 Ohio App.LEXIS 4769, at *6 (“[W]e hold that an unpaid supplier or subcontractor not in privity of contract with a general contractor may pursue a theory of unjust enrichment against the general contractor the same as it could be pursued against a property owner.”).

[245] See, e.g., Montgomery v. Montgomery (1954), 261 Ala. 416, 419, 74 So.2d 254 (“A suit for money had and received is in the nature of an equitable action and is maintainable whenever one person has money which ex aequo et bono belongs to another. No privity of contract is necessary between the parties.”); Fite v. Fite (1941), 233 Ark. 469, 474, 345 S.W.2d 362 (“An action for money had and received can be maintained whenever one man has received or obtained possession of the money of another, which he ought, in equity and good conscience, to pay over. This proposition is elementary. There need be no privity between the parties, or any promise to pay, other than that which results or is implied from one man’s having another’s money, which he has no right conscientiously to retain.”) (emphasis in original); Salzman v. Bachrach (Colo. 2000), 996 P.2d 1263, 1265 (“Unjust enrichment is a form of quasi-contract or a contract implied in law. As such, it is an equitable remedy and does not depend on any contract, oral or written. The theory does not require any promise or privity between the parties. Rather, it is a judicially created remedy designed to avoid benefit to one to the unfair detriment of another.”); Galvagna v. Marty Miller Constr. (Sept. 19, 1997), No. 96L-01-015, 1997 Del.Super.LEXIS 458, at *10 (quantum meruit claim sustained despite lack of privity between the parties); First State Bank of Fort Meade v. Singletary (1936), 124 Fla. 770, 772, 169 So. 407 (“When the fact is proved that one has money received from another, if the recipient cannot show a legal and equitable ground for retaining it, the law creates the privity and promise necessary to sustain the action for money had and received.” ); Brown v. Judd (1906), 17 Haw. 601, 603 (“The obligation, when there is no privity, is sometimes called a quasi contract but strictly speaking is not a contract at all, for it may arise not only without the assent of the person obligated but even against his express repudiation of any obligation.”); Sobel v. Franks (1994), 261 Ill.App.3d 670, 683, 633 N.E.2d 820 (“[T]here is no duty or privity requirement when bringing a claim for unjust enrichment.”); State v. Mutual Life Ins. Co. (1910), 175 Ind. 59, 75, 93 N.E. 213 (“In an action for money had and received there need be no privity of contract proved.”); Alpen v. Chapman (Iowa 1970), 179 N.W.2d 585, 588 (“There need be no privity of contract alleged or proved, other than such as arises out of the fact that the defendant has received the plaintiff’s money, which in equity and good conscience he ought not to retain.”); Vandervoort v. Levy (La.Ct.App. 1981), 396 So.2d 480, 484-85 (“As noted previously, the absence of a contract is one of the prerequisites to recovery in unjust enrichment. Rather than serving to preclude Allain’s recovery, the lack of privity is an essential element of the actio de in rem verso.”); McDonald v. American Nat’l Bank (1901), 25 Mont. 456, 483, 65 P. 896 (“No privity of contract between the parties is necessary to sustain the action, except that which results from the possession by the defendant of the money which in equity belongs to the plaintiff.”); Siebler Heating & Air Conditioning, Inc. v. Jenson (1982), 212 Neb. 830, 832-33, 326 N.W.2d 182 (“For a quasi-contract neither promise nor privity, real or imagined, is necessary.”); Knapp v. Hobbs (1871), 50 N.H. 476, 487 (“[T]here need be no other privity of contract in order to support this action than that which results from one man’s receiving another’s money which he has no right conscientiously to retain.”); Edwin J. Dobson, Jr., Inc. v. Rutgers, State Univ. (1978), 157 N.J.Super. 357, 427, 384 A.2d 1121 (“Dobson, even on this claim, asserted no claim against Briscoe, not even on unjust enrichment which does not require ‘privity of contract.’”); Manufacturers Hanover Transp. Co. v. Chemical Bank (1990), 160 A.D.2d 113, 117, 559 N.Y.S.2d 704 (For an unjust enrichment claim, “[i]t does not matter whether the benefit is directly or indirectly conveyed.”); Madden v. Watts (1900), 59 S.C. 81, 86 (“[I]n order to maintain this action there need be no privity between the parties, nor any promise to pay other than what arises and is implied from the fact that the defendant has money in his hands belonging to the plaintiff that he has no right conscientiously to retain. In such case the equitable principle on which the action is founded implies the promise.”); Paschall’s v. Dozier (1966), 219 Tenn. 45, 54, 405 S.W.2d 150 (“It is well established that want of privity between parties is no obstacle to recovery under quasi contract.”); Miekow v. Faykus (Tex.Ct.App. 1956), 297 S.W.2d 260, 264 (“For a quasi contract neither promise nor privity, real or imagined, is necessary. In quasi contracts the obligation arises, not from consent of the parties, as in the case of contracts, express or implied in fact, but from the law of natural immutable justice and equity.”) (emphasis in original); E.E. Lyons Constr. Co. v. TRM Dev. Corp. (1991), 25 Va. Cir. 352, 354 (“Virginia law appears to follow the majority approach and will allow recovery on a quantum meruit claim by a subcontractor against an owner with whom he lacks contractual privity provided the essential elements of quasi contract are established.”).

[246] (1988), 40 Ohio St.3d 109, 532 N.E.2d 124.

[247] Id.

[248] Id.

[249] Id.

[250] Id.

[251] Id. at 110-111.

[252] Id. at 111.

[253] Id. The Commission was “also obligated to credit payments” to Liberty Mutual according to Ohio Rev. Code Ann. §4123.54 (id. (emphasis added)), but this statute was merely a second basis for reimbursement.

[254] (E.D.Mich. 2001), 105 F.Supp.2d 618.

[255] Id. at 668.

[256] Id. at 623.

[257] Id. at 669.

[258] Id.

[259] Id. at 670-71. See also Cox v. Microsoft Corp. (June 8, 2004), No. 2922, 2004 N.Y.App.Div.LEXIS 7794, *3 (“[P]laintiffs’ allegations that Microsoft’s deceptive practices caused them to pay artificially inflated prices for its products state a cause of action for unjust enrichment.”).