Opinion
Misc. No. 99-0197 (TFH), MDL 1285.
December 8, 2004
MEMORANDUM OPINION
Pending before the Court are Certain Defendants' Motions to Dismiss or For Judgment on the Pleadings of Southeast Milk, Inc. in this matter. After careful consideration of these motions and all briefs filed by the parties in opposition or support, the oral argument held on November 19, 2004, and the entire record herein, the Court will grant the Defendants' motions to dismiss Southeast Milk, Inc.'s claims for the reasons stated below.
I. BACKGROUND
Previous opinions by this and other courts have described the general history of this multidistrict litigation, see, e.g., In re Vitamins Antitrust Litig., 320 F. Supp. 2d 1, 4-6 (D.D.C. 2004), but a description of the relevant procedural background regarding Southeast Milk, Inc. ("Southeast Milk") is warranted.
Southeast Milk is a Florida-based diary cooperative that was an indirect purchaser of vitamin products during the alleged price fixing conspiracy period. In 1999, Southeast Milk was a member of class action cases commenced on behalf of Florida indirect purchasers against alleged vitamins products conspiracy. The class action relevant to this instant motion that involved Florida state law claims is Garofolo v. F. Hoffmann-LaRoche, Ltd., No. 99-010358 (Fl. Cir. Ct. filed June 10, 1999).
The Garofolo class settled with its defendants, and the Florida court granted approval of the settlement on May 24, 2001. Southeast Milk filed a notice to opt out of theGarofolo class on December 6, 2001. However, on May 17, 2002, Southeast Milk filed a motion to participate in the class settlement. The Florida court gave final approval to the settlement on May 24, 2002, and denied Southeast Milk's request to participate on June 9, 2002.
Garofolo v. F. Hoffmann-LaRoche, Ltd., No. 99-010358 (Fl. Cir. Ct. May 24, 2001) (order granting preliminary approval of settlement).
Southeast Milk, Inc.'s Mot. to Participate in the Proposed Class Settlement After the Deadline That Was Set by the Publication Notice, Garofolo v. F. Hoffmann-LaRoche, Ltd., No. 99-010358 (Fl. Cir. Ct. filed May 17, 2002).
Garofolo v. F. Hoffmann-LaRoche, Ltd., No. 99-010358 (Fl. Cir. Ct. May 24, 2002) (order approving settlement and final judgment).
Garofolo v. F. Hoffmann-LaRoche, Ltd., No. 99-010358 (Fl. Cir. Ct. June 19, 2002) (order denying motion to participate).
Over sixteen months later, Southeast Milk filed a complaint in a Florida state court on December 1, 2003, asserting its claims under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") and the Florida Antitrust Act. Subsequently, the Defendants had this matter removed to the United States District Court for the Middle District of Florida, Orlando Division, based on diversity jurisdiction, with a notice of removal filed in that federal court on January 16, 2004. Subsequently, this case was transferred to this Court pursuant to a March 2004 Conditional Transfer Order from the Judicial Panel on Multidistrict Litigation.
II. ANALYSIS
Defendants posit two arguments in their motion. First, they argue that both causes of action should be dismissed as time barred based on the applicable Florida statutes of limitation. Second, they argue that the Florida Antitrust Act claim also should be dismissed because Southeast Milk lacks standing to bring such a claim as an indirect purchaser of the products in question.
A. Statutes of limitations
Florida has a four-year limitation on actions "founded on statutory liability," Fla. Stat. Ann. § 95.11(3)(f) (2004), which applies to claims under FDUTPA. In addition, the Florida Antitrust Act includes a four-year limitation period. § 542.26(1). The parties do not dispute that, because Southeast Milk alleges no relevant act after March 1999, its claims filed more than four years later in December 2003 would be time barred unless Defendants were estopped from making this line of argument or the limitation periods were tolled.
1. Whether equitable estoppel applies
Southeast Milk argues that Defendants should be equitably estopped from arguing that the claims are time barred given their concealment of the conspiracy for approximately ten years through various wrongful acts, causing Southeast Milk to be unable to discover through reasonable due diligence the existence of the claims until recently. Opp. at 3-4. In other words, Southeast Milk believes that the doctrine of equitable estoppel saves its claims due to Defendants' fraudulent concealment of their illegal actions. Defendants present two arguments in response: (1) Florida case law does not accept tolling for reason of fraudulent concealment; and (2) Southeast Milk had inquiry notice of the misconduct between 1997 and 1999.
Defendant's first argument is unconvincing. They argue that section 95.051 of the Florida Statutes provides an exclusive list of methods to toll a limitation period. Because "fraudulent concealment" is not included, it is not an accepted reason for tolling under Florida law. Mem. at 4. This statute states in relevant part:
(1) The running of the time under any statute of limitations except §§ 95.281, 95.35, and 95.36 is tolled by:
(a) Absence from the state of the person to be sued.
(b) Use by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.
(c) Concealment in the state of the person to be sued so that process cannot be served on him or her.
(d) The adjudicated incapacity, before the cause of action accrued, of the person entitled to sue. . . .
(e) Voluntary payments by the alleged father of the child in paternity actions during the time of the payments.
(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.
(g) The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.
(h) The minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue; except with respect to the statute of limitations for a claim for medical malpractice as provided in § 95.11. . . .
(2) No disability or other reason shall toll the running of any statute of limitations except those specified in this section, § 95.091, the Florida Probate Code, or the Florida Guardianship Law.
§ 95.051 (emphasis added).
However, Defendants' view of Florida law does not account for the recent Florida Supreme Court decisions of Major League Baseball v. Morsani, 790 So.2d 1071 (Fla. 2001) and Florida Dep't of Health Rehab. Servs. v. S.A.P., 835 So.2d 1091 (Fla. 2002), which recently found that equitable estoppel is available despite not appearing on section 95.051's list. In these opinions, the Florida Supreme Court explained that the doctrine of equitable estoppel, which is "based on principles of fair play and essential justice when one party lulls another party into a disadvantageous legal position . . .[,] presupposes a legal shortcoming in a party's case that is directly attributable to the opposing party's misconduct." Major League Baseball, 790 So.2d at 1076-77. Thus, the "doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct." Id. at 1077. Such a doctrine is available despite the restrictive text of section 95.051 because that language "limits its reach to conditions that actually `toll' the statute of limitations" while "[e]quitable estoppel, on the other hand, does not `toll' anything." Id. Rather, "equitable estoppel `estops' or bars a party from asserting something (e.g., a fact, a rule of law, or a defense) that he or she otherwise would be entitled to assert." Id. In other words, because equitable estoppel does not toll a statute of limitation — it prevents a defendant from asserting such a defense in the first place — the tolling rules of section 95.051 are irrelevant.
Indeed, the S.A.P. court specifically answered whether the concept of fraudulent concealment could constitute a reason to equitable estop a statute of limitations defense. That court was faced with a certified question from a Florida court below regarding whether "the doctrine of fraudulent concealment appl[ies] to toll the statute of limitations in a negligence action[.]" 835 So.2d at 1093 (emphasis added). Reaffirming theMajor League Baseball holding, the S.A.P. court found that the defendant's fraudulent concealment triggered the doctrine of equitable estoppel, an acceptable reason to disregard the limitations period under Florida law despite section 95.051.Id. at 1097. Thus, equitable estoppel is a doctrine available to Southeast Milk, including for reasons of alleged fraudulent concealment by the Defendants.
While this Court previously agreed with the argument posited by Defendants regarding the availability of fraudulent concealment in Florida, In re Vitamins Antitrust Litig., No. 99-197(TFH), 2000 WL 33975412, at *5 (D.D.C. Oct. 26, 2000) ("Because fraudulent concealment is not included among the tolling provisions recognized in § 95.051 . . . [plaintiff's] damages under their FDUTPA claims are limited to those accruing within the four-year limitations period, namely July 29, 1995."), this proclamation on Florida law came before the Florida Supreme Court's decisions in Major League Baseball and S.A.P. changed the landscape of Florida law regarding this issue.
However, despite the availability of this doctrine in Florida law, Southeast Milk's claims may not be saved by it. The Defendants argue that, even in cases where fraudulent concealment exists, "the toll of fraudulent concealment is lifted when the plaintiff has access to sufficient facts to be on notice to investigate the claim." Mem. at 5. According to Defendants, this "inquiry notice" standard prevails in jurisdictions that recognize fraudulent concealment. Applying this standard to this case, Defendants claim that Southeast Milk had inquiry notice for years before it filed suit that should have prompted it to investigate and discover the alleged antitrust violations.
While there appears to be no Florida decision directly discussing the existence or application of this "inquiry notice" standard in connection with the equitable estoppel of a limitation period, this limitation applies in some form in those jurisdictions that accept the fraudulent concealment concept.See, e.g., Sterlin v. Biomune Sys., 154 F.3d 1191, 1199-1200 (10th Cir. 1988) ("Cases from other circuits [and this one] generally apply an inquiry notice standard coupled with some form of reasonable diligence requirement in determining whether a plaintiff's securities claims are timely filed.") (footnote omitted); Application of Fraudulent Concealment Doctrine to Statute of Limitations in Antitrust Case ( 15 U.S.C.A. § 15B), 72 A.L.R. Fed. 430 (2004) (explaining that, in federal antitrust case law, plaintiff's failure to discover rights cannot result from lack of due diligence on his part). In addition, Florida's case law regarding the accrual of an action supports this point: "As a general rule, a statute of limitations begins to run when there has been notice of an invasion of legal rights or a person has been put on notice of his right to a cause of action."Kelley v. School Bd. of Seminole County, 435 So.2d 804, 806 (Fla. 1983) (emphasis added). Thus, Florida courts would not apply the doctrine of equitable estoppel to the portion of the limitation periods occurring after Southeast Milk was "on notice" regarding its causes of action.
While the inquiry into whether Southeast Milk was on inquiry notice regarding its claims against Defendants is a factual determination and the allegations of the complaint are accepted as true for the purposes of these motions with all reasonable inferences drawn in Southeast Milk's favor, Croixland Props. Ltd. P'ship v. Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999), there can be no reasonable assertion that Southeast Milk was not on "inquiry notice" of the vitamins conspiracy and resulting damages for many years during the relevant time period. The vitamins conspiracy has involved numerous guilty pleas and civil lawsuits that spawned widespread media coverage for many years. Southeast Milk had notice about their claims as early as 1997 and 1998, when numerous Vitamins cases were filed and received significant media coverage. Id. at
In addition to the facts alleged in the complaint and any documents either attached to or incorporated in the complaint, this Court may consider matters of which it can take judicial notice. E.g., EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
6. In addition, the cumulative effect of the following events certainly gave Southeast Milk inquiry notice in 1999 at the latest:
• On March 2, 1999, the Department of Justice announced in a press release that Lonza AG and several executives from Chinook Group Inc. and DuCoa L.P. (companies that are all Defendants sued by Southeast Milk) "agreed to plead guilty and cooperate in the government's ongoing investigation of illegal collusive practices in the international vitamin industry."
• On May 20, 1999, the Department of Justice announced in a press release that F. Hoffmann-La Roche Ltd. and BASF A.G., both Defendants sued by Southeast Milk, had pled guilty and agreed to pay criminal fines for their roles in the "worldwide conspiracy to raise and fix prices and allocate market shares for certain vitamins sold in the United States and elsewhere." The criminal fine of F. Hoffmann-La Roche Ltd. was the largest in United States history.
• On September 9, 1999, the Department of Justice announced in a press release the guilty pleas and criminal fines of Takeda Chemical Industries Ltd., Eisai Co. Ltd., and Daiichi Pharmaceutical Co. Ltd. — all Defendants sued by Southeast Milk — for their roles in the same worldwide vitamins conspiracy.
• On September 29, 1999, the Department of Justice announced in a press release the guilty plea and criminal fine of Chinook Group Limited, another Defendant sued by Southeast Milk, for its role in the same conspiracy.
• The class plaintiffs before this Court entered into two historic settlements with various Defendants (including many sued by Southeast Milk) on November 3, 1999.
• Throughout 1999, numerous complaints and other papers were filed with this Court, and several status conferences were held involving many parties and their counsel (including many of the defendants sued by Southeast Milk).
• Throughout 1999, over 40 class actions were filed in at least fifteen states, including the Garofolo class action in Southeast Milk's state of Florida.
Press Release, Department of Justice, Five Executives, One Company Charged with Price Fixing and Agree to Cooperate in Investigation of Worldwide Vitamins Price Fixing Controversy (Mar. 2, 1999), available at http://www.usdoj.gov/atr/public/press_releases/1999/2266.htm.
Press Release, Department of Justice, F. Hoffmann-La Roche and BASF Agree To Pay Record Criminal Fines for Participating in International Vitamin Cartel (May 20, 1999), available at http://www.usdoj.gov/atr/public/press_releases/1999/2450.htm.
Press Release, Department of Justice, Three Japanese Companies Agree to Plead Guilty, Pay Criminal Fines, For Participating in International Vitamin Cartel (Sept. 9, 1999), available at http://www.usdoj.gov/atr/public/press_releases/1999/3659.htm.
Press Release, Department of Justice, Canadian Vitamin Company Agrees to Plead Guilty For Role in International Vitamin Cartel (Sept. 29, 1999), available at http://www.usdoj.gov/atr/public/press_releases/1999/3726.htm.
Thus, in light of this Court's unique position to review the history and media coverage of this conspiracy and the resulting record of the massive multidistrict litigation before it, this Court finds that Southeast Milk, a corporation with sophisticated legal counsel, clearly had adequate inquiry notice regarding its claims against Defendants before December 1999 ( i.e., more than four years before it filed its complaint in December 2003). Thus, any alleged fraudulent concealment is irrelevant because Southeast Milk's inquiry notice throughout 1999 would still allow Defendants to argue that the four-year limitation period ended at least before Southeast Milk filed its complaint. In other words, the doctrine of equitable estoppel does not save Southeast Milk's claims.
Indeed, Southeast Milk displayed in December 2001 (at the latest) its actual notice of its claims when it opted out of the Garfolo class, and it still did not file a complaint for more than two years.
2. Whether class tolling applies
Southeast Milk also argues that the limitation period was tolled because "the commencement of a class action tolls the applicable statute of limitation for the claims asserted on behalf of all members of the defined class," a rule "established" by the Supreme Court in America Pipe Construction Co. v. Utah, 414 U.S. 538 (1974). Opp. at 6. In response, the Defendants argue that Florida law does not recognize class tolling based on a Florida federal district court ruling inSenger Brothers Nursery, Inc. v. E.I. DuPont de Nemours Co., 184 F.R.D. 674 (M.D. Fla. 1999). Reply at 2.
Under the class tolling doctrine, "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." America Pipe, 414 U.S. at 554. The Supreme Court found such a rule "most consistent with federal class action procedure," stressing that "[a] contrary rule . . . would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure." Id. at 554, 553. Further, the Court concluded that the class tolling concept did not compete with the purposes behind statutes of limitation:
The policies of ensuring essential fairness to defendants and of barring a plaintiff who has slept on his rights, are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.Id. at 554-55 (citation and quotation marks omitted). Thus, given that the policy reason behind a limitation period is not implicated once a class action is filed, there appears to be little reason to require a limitation period in such a circumstance.
The Senger Brothers court was presented with the question of whether a limitation period was tolled by a class action that had included the plaintiff before that court. The Florida court determined that "Florida law does not allow the tolling of statute of limitations for any other reason that those specifically enumerated in Florida Statute § 95.051." Senger Brothers, 184 F.R.D. at 684. Because that statute's text, quoted supra Part II.A.1, does not include class tolling, the court determined that class tolling was unavailable under Florida law for the claims at issue. Id. TheSenger Brothers court stressed that the "Florida Supreme Court stated that only in limited situations, which are specifically enumerated by Florida Statute § 95.051, are statutes of limitation tolled," and cited the high court's decision inFulton County Adm'r v. Sullivan, 22 Fla. L. Weekly S578 (Fla. Sept. 25, 1997), for that proposition. Id. Regarding American Pipe, the Senger Brothers court distinguished that case as applying only to federal cases, making it irrelevant given that Florida law and section 95.051 controlled the dispute. Id. at 682.
Southeast Milk correctly notes that the Florida Supreme Court jurisprudence used in Senger Brothers as the foundation of this decision has shifted dramatically. First, the opinion in Fulton County that was the authority for the Senger Brothers holding regarding section 95.051 was withdrawn and replaced by another opinion that says nothing about that statutory section. In addition, after the Senger and Fulton County decisions, the Florida Supreme Court weighed in regarding this statute as described above, supra Part II.A.1, finding that one method of disregarding limitation periods — equitable estoppel — was available despite not being included in section 95.051's list.Major League Baseball, 790 So.2d at 1080; S.A.P., 835 So.2d at 1097.
Indeed, even if Fulton County had not been withdrawn, its holding would have no force. The original Fulton County decision found that the equitable estoppel doctrine was unavailable due to section 95.051, In re Vitamins Antitrust Litig., 2000 WL 33975412, at *4, and the Florida Supreme Court has since repeatedly approved of this doctrine in spite of Florida's restrictive tolling statute. See supra Part II.A.1.
However, while equitable estoppel is now clearly available, the Florida Supreme Court limited the applicability of these rulings. As described above, the Major League Baseball decision determined that the doctrine of equitable estoppel was available despite section 95.051 because that statute "limits its reach to conditions that actually `toll' the statute of limitations" while "[e]quitable estoppel, on the other hand, does not `toll' anything." 790 So.2d at 1077. Thus, the court distinguished equitable estoppel, which "`estops' or bars a party from asserting something," id., from the "`tolling' language in section 95.051 [that] has been routinely and consistently interpreted as suspending the running of the statute of limitations time clock until the identified condition is settled." Id. at 1076 (emphasis in original). Indeed, both this and the S.A.P. court made this distinction even more clear by stressing that "the doctrines of tolling and equitable estoppel ` are as different as apples and oranges,'" meaning that "the tolling proscription in section 95.051 is inapplicable to equitable estoppel." S.A.P., 835 So.2d at 1096 (emphasis added); accord Major League Baseball, 790 So.2d at 1077. Thus, while holding that the tolling restrictions of section 95.051 do not apply to the doctrine of equitable estoppel, the Florida Supreme Court confirmed that the strict language of this statute still restricts the methods of tolling a statute of limitation to those provided in its exclusive list. Florida Stat. Ann. § 95.051(2) ("No disability or other reason shall toll the running of any statute of limitations except those specified in this section, § 95.091, the Florida Probate Code, or the Florida Guardianship Law."). As such, the changes in Florida law due to Major League Baseball and S.A.P. did not disturb the holding of Senger Brothers — Florida only recognizes those tolling reasons listed in section 95.051 and therefore does not recognize class tolling.
In addition, after noting that "[t]he preclusive effect of the statutes of limitation can be deflected by various legal theories, including the doctrine of equitable estoppel," the court stressed that "[e]quitable estoppel differs from other legal theories that may operate upon the statutes of limitation in that equitable estoppel presupposes an act of wrongdoing — such as fraud and concealment — that prejudices a party's case."S.A.P., 835 So.2d at 1096, 1097 (emphasis added).
The parties spend much time arguing whether the Eleventh Circuit's statement in Raie v. Cheminova, Inc., 336 F.3d 1278, 1282 (11th Cir. 2003), that "[t]here is no dispute that American Pipe has been followed in Florida courts" is supportive of class tolling in Florida. While Southeast Milk claims that this statement means that Florida courts follow American Pipe, Surreply at 2, the Defendants argue that the court was instead "describing the contentions of the parties" — the lack of any dispute on this point given the defendant's better arguments regarding computing the limitation period. Reply at 4-5. Despite the parties' attempts to color the Raie statements through characterizations of the briefs in that appeal, it is impossible to determine exactly what the court meant by this statement. Thus, Raie should not be used as authority regarding Florida's acceptance of class tolling.
Southeast Milk urges this Court not to disregard the nationwide legal trend approving of American Pipe, stating that a contrary decision "would make Florida the first state in the history of the United States to reject the American Pipe class action tolling rule, notwithstanding the fact that every other state appellate court which has ever considered this issue has adhered to the American Pipe tolling rule." Surreply at 4. Indeed, Southeast Milk cites decisions from 22 states that approve of class tolling, and Defendants have not cited any state decisions disapproving of American Pipe. However, Defendants have noted that these other states do not have a restrictive tolling statute comparable to Florida's section 95.051. This Court has found no such comparable statute in those states, nor could Southeast Milk point to any such statute. Thus, despite their persuasive reasoning for adopting the American Pipe rule, these other courts were not restricted by a statute like section 95.051. As the Major League Baseball court noted, "statutes of limitation . . . are a creature of modern statute," 790 So.2d at 1077, and this Court cannot ignore the unambiguous statute of Florida's legislature regarding the tolling of statutes of limitation and the highest court's reading of it. Thus, despite the nationwide trend and the common sense reasons to adopt the rule, this Court finds that class tolling is unavailable to Southeast Milk given Florida's restrictive statute.
Indeed, it is noteworthy that since the Sedger Brothers court's unequivocal rejection of class tolling in its 1999 decision based primarily on the restrictive language of section 95.051, the Florida legislature has not reacted to this decision to adjust its exhaustive list to include class tolling in those five years since the decision.
With the American Pipe Court finding that class tolling was "most consistent with federal class action procedure," in the absence of § 95.051, 414 U.S. at 553, Florida courts would likely adopt class tolling as most consistent with its own version of the class action rules. E.g., City of Pompano Beach v. Florida Dept. of Agriculture, No. 00-18394(08) CACE, 2002 WL 1558217, at *2 (Fl. Cir. Ct. Jan. 24, 2002) ("Florida courts routinely follow federal case law interpreting Rule 23.").
Further, the policies behind class tolling and statutes of limitation are in harmony. A defendant cannot be surprised by a plaintiffs' claims in light of a class lawsuit that included the same plaintiff and the same claims. American Pipe, 414 U.S. at 554-55 (citation omitted) ("The policies of ensuring essential fairness to defendants and of barring a plaintiff who `has slept on his rights,' are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants. . . ."). Indeed, a similar harmony was important to the Major League Baseball court: "[A] main purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims. . . . Logic dictates that a defendant cannot be taken by surprise by the late filing of a suit when the defendant's own actions are responsible for the tardiness of the filing." 790 So.2d at 1078.
3. Whether the class action constitutes an "arbitral proceeding"
In its final pleading, Southeast Milk introduces a new argument that the class action filed in 1999 also tolled the Florida statute of limitations pursuant to section 95.051(g) of the Florida Statutes, which tolls the statute of limitations during "[t]he pendency of any arbitral proceedings pertaining to a dispute that is the subject of the action." Southeast Milk claims that the dictionary meaning of the phrase "arbitral proceedings" includes judicial proceedings, and thus includes the Garofolo class action.
This argument lacks merit. The Florida Jurisprudence encyclopedia indicates that this phrase refers only to arbitrations. First, the applicable passage on this provision prominently refers to negotiations, which points to alternative dispute resolution rather than judicial proceedings themselves. 35 Fl. Jur. 2d Limitations and Laches § 90 ("Although statutes of limitation are generally not tolled because the parties are in the process of negotiation and the plaintiff wishes to wait for a settlement, a statutory tolling provision suspends the running of any limitation period during the pendency of an arbitral proceeding. . . . Negotiations between the parties may give rise to estoppel to assert the statute of limitations as a defense [in certain situations.]") (emphasis added) (footnote removed). In addition, the reader is referred to the volume on "Arbitration and Award" "[f]or [a] general discussion of the procedure governing arbitration proceedings" and to another source for discussion regarding "[w]hich statute of limitations applies to efforts to compel arbitration of a dispute." Id. (emphasis added). There is no indication from this source that an "arbitral proceeding" means all legal proceedings, as urged by Southeast Milk. Given this reading of the statute by a source focusing on Florida law, Southeast Milk's definition of this phrase is incorrect. Thus, because the parties have not engaged in any arbitration proceedings, this section does not prevent Southeast Milk's claims from being time barred.
B. Standing under Florida Antitrust Act
The Defendants argue that the Florida Antitrust Act does not provide damages remedy to indirect purchasers like Southeast Milk. Mem. at 7-8. In light of the United States Supreme Court's decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which found that federal antitrust law does not provide for indirect claims, the Defendants believe that Florida's antitrust law mirrors this federal determination. The Defendants point to the intermediate Florida appellate court decision in Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100 (Fla.Dist.Ct.App. 1996), to support the position that the Florida legislature did not intend to contradict the Illinois Brick rule in the Florida Antitrust Act.
Mack decided that indirect purchaser claims were allowed under FDUTPA. In making this decision, the Mack court made the following statement regarding the Florida Antitrust Act:
We have not overlooked the argument . . . that this ruling [allowing indirect purchaser claims under FDUTPA] in effect will create an Illinois Brick repealer to the Florida Antitrust Act, which the Florida Legislature has declined to adopt. However, we disagree that the ruling in the instant case is a repealer in disguise or that it will eviscerate Florida's antitrust law. Florida's antitrust law, permitting treble damage recovery by direct purchasers injured by price-fixing, remains intact and undisturbed by this ruling.Id. at 108 (emphasis added). This statement makes clear that the Florida legislature has not adopted a "repealer" of Illinois Brick, and thus does not intend for indirect purchasers to have standing under the state's antitrust act. Given its recognition that the Illinois Brick rule is in force in Florida, the court felt the need to stress that the allowance of indirect purchaser claims under FDUTPA does not itself repeal the Illinois Brick rule and leaves intact the Florida Antitrust Act's allowance of suits "by direct purchasers." Id.
Later in the same decision, the Mack court made additional comments that lend further credence to this interpretation of Florida's antitrust law. In its analysis regarding whether the FDUTPA and the Florida Antitrust Act would conflict if the former allowed for indirect purchaser suits, the court stated the following:
Applying these maxims to this case, we find that there is no plain inconsistency or repugnancy between the Florida DTPA and Antitrust Act which must be harmonized. We believe that [the United States Supreme Court in] ARC America establishes that two statutes, both of which prohibit anticompetitive conduct, are not inconsistent merely because one allows indirect purchasers to sue for damages and the other does not. Permitting indirect purchasers to sue under the Florida DTPA effectuates the consumer protection policies of the Florida DTPA, but is not adverse to the purposes of the Antitrust Act.Id. at 110 (emphasis added). This passage makes clear that, while the FDUTPA "allows indirect purchasers to sue for damages," the Antitrust Act ("the other") does not provide for such claims.Id.
In addition, another Florida trial court decision appears to support this reading of the Mack court's statements:
The trial court [in Mack] dismissed the plaintiff's claim under Florida's antitrust statute on the ground that Florida antitrust law paralleled federal antitrust law and incorporated the federal bar against indirect purchaser suits as articulated in Illinois Brick. . . . While the Supreme Court later ruled in California v. ARC America Corp. that states could exempt their antitrust laws from Illinois Brick, Florida has not so amended its Antitrust Act.In re Florida Microsoft Antitrust Litig., No. 99-27340, 2002 WL 31423620, at *2 (Fl. Cir. Ct. Aug. 26, 2002) (emphasis added) (citations omitted).
Southeast Milk argues that the statements in Mack are dicta, and came prior to the six appellate court decisions from other states that reversed trial court decisions denying indirect purchasers standing to sue under antitrust and consumer protection laws. Opp. at 9 n. 3. Nonetheless, the pronouncements in Mack and Microsoft are the only Florida judicial statements on this issue, and cannot simply be brushed aside by this Court. In addition, Southeast Milk's argument that the Florida Antitrust Act's language indicates that indirect purchasers have standing because it provides relief for "[a]ny person" injured by a violation of the act is not persuasive. Again, Florida courts have provided their interpretation of their legislature's intent behind the Florida Antitrust Act, and this Court will not secondguess their reading of the legislation. Further, given that the Florida Antitrust Act gives "great weight" to the judicial construction of "comparable federal antitrust statutes," Fla. Stat. § 542.32, it is reasonable for the Florida courts to conclude that theIllinois Brick determination on indirect purchasers' standing accurately reflects the standing rules of Florida's antitrust law as well. Thus, this Court will follow Mack, and the Florida Antitrust Act claim shall be dismissed outright.
In any event, the legislative history of the Florida Antitrust Act clearly supports the notion that the legislature did not intend for an Illinois Brick "repealer" or for indirect purchasers to have standing:
Section 542.22(2) at page 4, line 18-23 of the original bill is deleted from the committee substitute. This section provided that the fact that plaintiff had not dealt directly with the defendant would not bar or limit recovery. This language could have been interpreted as an attempt to overrule the United States Supreme Court's holding in Illinois Brick Co. v. State of Illinois, 431 U.S. 720 (1977) (which prevents certain indirect purchasers from recover[ing] treble damages from a defendant based on a claim of price fixing under the federal anti-trust statute.)
Staff of Fla. H.R. Comm. on Commerce, Bill Analysis: Staff and Summary Analysis of Comm. Substitute to H.B. 701, at 6 (rev. Apr. 18, 1980); accord Statement of Substantial Changes Contained in S.B. 400, Fla. Sen. Comm. on Commerce (1980) ("Deletes the section providing that the fact that a plaintiff had not dealt directly with the defendant would not bar or limit recovery.").
CONCLUSION
For the foregoing reasons, the Court will grant the motions to dismiss Southeast Milk's claims.