Price-Fixing Claims against Indirect Purchasers

In Illinois Brick Co. v. Illinois , ^[25] the Supreme Court , as a matter of pragmatic judicial policy, held that, except in narrowly defined circumstances, only direct purchasers can sue for overcharges resulting from a conspiracy to fix prices in violation of § 1 of the Sherman Act. Shortly after Illinois Brick was decided, several states passed so-called Illinois Brick repealers, which expressly permit indirect purchaser suits under state antitrust laws. In California v. ARC America Corp. , ^[26] the Supreme Court held that those state laws are valid and enforceable. Now, twenty states and the District of Columbia have antitrust statutes which expressly permit indirect purchasers to sue for price-fixing violations.

Courts in other states have held that indirect purchasers can recover price-fixing overcharges under state deceptive and unfair trade practices acts. Typically, these statutes provide causes of action for consumers against persons or firms who engage in unfair methods of competition or unfair and deceptive acts or practices, as those terms are interpreted by the Federal Trade Commission or by federal courts under § 5(a)(1) of the Federal Trade Commission Act. For example, a Florida appellate court held that indirect purchasers who have been damaged by illegal price-fixing have standing ^[27] to bring actions under the Florida Deceptive and Unfair Trade Practices Act. ^[28]

Plaintiffs asserting indirect purchaser claims may prefer to file suit in state court, for a variety of reasons, including more favorable summary judgment standards under state law than under federal law since the Supreme Courts trilogy.

^[25] 431 U.S. 720 (1977)

^[26] 490 U.S. 93 (1989)

^[27] Mack v. Bristol-Meyers Squibb Co., 673 So.2d 100 (Fla. 1st DCA 1996)

^[28] Section 501.201, et seq., Fla. Stat.