Formula for success: standing of indirect purchasers under the Florida Deceptive and Unfair Trade Practices Act.
During the 1980s, the three dominant U.S. manufacturers of infant formula--Abbott Laboratories, Bristol-Myers Squibb Bristol-Myers Squibb (NYSE: BMY), colloquially referred to as BMS, is a pharmaceutical corporation, formed by a 1989 merger between pharmaceutical companies Bristol-Myers Company, founded in 1887 by William McLaren Bristol and John Ripley Myers in Clinton, NY (both were Company, and American Home For the American mortgage lender, see .
The American Home is a center of intercultural exchange located in Vladimir, Russia. The home is designed to model a typical American suburban home and its main focus is the ESL school that provides lessons for Russian students. Products Corporation--raised their prices repeatedly, in lockstep lock·step
1. A way of marching in which the marchers follow each other as closely as possible.
2. A standardized procedure that is closely, often mindlessly followed.
Noun 1. , and at a rate far exceeding the rate of increase in the cost of the product's ingredients. The three manufacturers were sued in federal court for price-fixing under the Sherman Act by a nationwide class of retail grocery and drug stores which purchased infant formula Infant formula is an artificial substitute for human breast milk. Formulas are designed for infant consumption, and are usually based on either cow milk or soy milk. Use of infant formula has been decreasing in industrial countries for over forty years as a result of antenatal directly from the defendants, and by several substantial retail grocery chains which chose to pursue similar claims outside the class.(1) Under the Supreme Court's decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), only "direct purchasers" like the retailers in the infant formula case have standing to sue an antitrust defendant for price-fixing under federal law, even when it is clear that those direct purchasers have passed on the economic effects of an unlawfully inflated price to consumers.
In Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100 (Fla. 1st DCA (1) (Document Content Architecture) IBM file formats for text documents. DCA/RFT (Revisable-Form Text) is the primary format and can be edited. DCA/FFT (Final-Form Text) has been formatted for a particular output device and cannot be changed. 1996), the First District Court of Appeal accepted an argument that has been advanced repeatedly in recent years as a means of avoiding the sometimes harsh effect of Illinois Brick: while indirect purchasers may lack standing to sue for price-fixing under either federal or state(2) antitrust law antitrust law
Any law restricting business practices that are considered unfair or monopolistic. Among U.S. laws, the best known is the Sherman Antitrust Act of 1890, which declared illegal “every contract, combination…or conspiracy in restraint of trade or , they can sue to recover damages for the same conduct under state deceptive and unfair trade practices laws. In Florida, the statute of GLOUCESTER, STATUTE OF. An English statute, passed 6 Edw. I., A. D., 1278; so called, because it was passed at Gloucester. There were other statutes made at Gloucester, which do not bear this name. See stat. 2 Rich. II.
MARLEBRIDGE, STATUTE OF. choice for indirect purchasers is the Florida Deceptive and Unfair Trade Practices Act (DTPA DTPA diethylenetriamine pentaacetic acid; see pentetic acid.
diethylenetriamine penta-acetic acid. ), F.S. [sections] 501.201, et seq et seq. (et seek) n. abbreviation for the Latin phrase et sequentes meaning "and the following." It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated, as in "the rules of the road are found in Vehicle Code . The Mack case holds that consumers have standing to sue for price-fixing under DTPA despite their lack of standing to sue under either federal or state antitrust law.(3)
Faced with an indirect purchaser lawsuit for price-fixing under state unfair trade practices law, defendants typically have resorted to the argument that such a case is "really" or "in substance" an antitrust case Noun 1. antitrust case - a legal action brought against parties who are charged with limiting free competition in the market place
action at law, legal action, action - a judicial proceeding brought by one party against another; one party prosecutes another for a and should be governed by the standing rules developed in antitrust law. What never has been satisfactorily explained is why a price-fixing case should be categorized as "really" an antitrust case when the conduct it challenges is a violation of both antitrust law and a broader body of consumer-protection law.(4) As the First DCA put it in Mack, the question before the appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. was as follows:
[W]hether a consumer-purchaser's standing to sue for price-fixing under the Florida DTPA is governed (i) by the language of the Florida DTPA, which expressly authorizes a consumer to bring an action for damages for violation of DTPA, or (ii) by a policy adopted from Illinois Brick that would bar an indirect purchaser from bringing an action under the Florida DTPA based upon a claim which is in substance an antitrust action to encourage efficient private antitrust enforcement by direct purchasers and to avoid conflict between the Florida DTPA and the Florida Antitrust Act Antitrust Act: see Clayton Antitrust Act; Sherman Antitrust Act. .
Mack, 673 So. 2d at 103.
For reasons discussed below, the First DCA chose to follow the language of DTPA rather than the judge-made standing rule of Illinois Brick.
Hanover Shoe and Illinois Brick
The status of indirect purchasers and the issue of "passing on" first came to the U.S. Supreme Court in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968). In Hanover Shoe, the defendant was alleged to have monopolized the market for shoe manufacturing equipment through various anticompetitive an·ti·com·pet·i·tive
That discourages competition among businesses: anticompetitive foreign trade restrictions. acts. When sued by one of its customers, a shoe manufacturer, United Shoe Machinery defended itself by alleging that the plaintiff simply had passed on the illegally inflated price of the defendant's shoe machinery to the plaintiff's own customers and therefore had suffered no injury from the defendant's acts. The Supreme Court rejected this "passing on" defense, finding that recognition of such a defense would require "additional long and complicated proceedings" to determine how much of an illegal overcharge was absorbed by the direct purchaser and how much was passed on to indirect purchasers, and would dilute the economic incentive of direct purchasers to enforce the antitrust laws antitrust laws n. acts adopted by Congress to outlaw or restrict business practices considered to be monopolistic or which restrain interstate commerce. The Sherman Antitrust Act of 1890 declared illegal "every contract, combination.... . Id. at 493-94. The Court recognized that the ultimate burden of anticompetitive conduct at the manufacturing level may be borne by consumers, each of whom has only a "tiny stake in a lawsuit and little interest in attempting a class action." Id. at 494. The Court concluded that the remedial purposes of the antitrust laws would best be served by adopting a presumption that monopolistic overcharges are borne entirely by the direct purchaser.
In Illinois Brick, the Court was faced with the offensive use of a "passing on" claim, and so could not justify the presumption recognized in Hanover Shoe based solely on a remedial or pro-enforcement view of the antitrust laws. The State of Illinois brought a civil antitrust action for price-fixing against several manufacturers of concrete block used in construction projects. The block was incorporated into masonry structures by masonry contractors; those structures were then purchased by general contractors and incorporated into government buildings purchased by the state. The state alleged that the prices it paid for such buildings were unlawfully inflated by the concrete block manufacturers' price-fixing conspiracy.
All parties and the Supreme Court agreed that whatever pass-on rule was finally adopted "should apply equally to plaintiffs and defendants--that an indirect purchaser should not be allowed to use a pass-on theory to recover damages from a defendant unless the defendant would be allowed to use a pass-on defense in a suit by a direct purchaser." Illinois Brick, 431 U.S. at 729. The Court was thus faced with a choice between overruling o·ver·rule
tr.v. o·ver·ruled, o·ver·rul·ing, o·ver·rules
a. To disallow the action or arguments of, especially by virtue of higher authority: Hanover Shoe and barring the state's price-fixing claim. It chose the latter. The Court noted pessimistically that permitting antitrust suits by indirect purchasers "would transform treble-damages actions into massive efforts to apportion ap·por·tion
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" the recovery among all potential plaintiffs that could have absorbed part of the overcharge--from direct purchasers to middlemen to ultimate consumers." Id. at 737. Aside from the perceived problems of apportioning ap·por·tion
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" damages, the Court expressed a concern that permitting indirect purchasers to sue would diminish the effectiveness of private antitrust actions by increasing the costs of recovery and reducing the award to each injured party Noun 1. injured party - someone injured or killed in an accident
victim - an unfortunate person who suffers from some adverse circumstance . Id. at 745. While acknowledging that the direct purchaser rule "denies recovery to those indirect purchasers who may have been actually injured by antitrust violations," id. at 746, the Court was willing to pay that price to achieve the goals of simplicity and efficiency in private antitrust litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. .
Since the Supreme Court's decisions in Hanover Shoe and Illinois Brick, a number of states have enacted legislation or produced judicial rulings which allow indirect purchasers to sue for antitrust violations under state antitrust statutes. In California v. ARC America Corp., 490 U.S. 93 (1989), the Court held that such standing rules are not preempted by federal law.
In ARC America, several states which were plaintiffs in a price-fixing case against concrete and cement manufacturers sought distributions from a settlement fund on behalf of indirect purchasers whose claims were recognized under state antitrust law. The district court and the court of appeals ruled that the Illinois Brick and Hanover Shoe prohibition on indirect purchaser claims preempted state indirect purchaser laws, thus preventing the states from sharing in the settlement fund to the extent they were not direct purchasers.
The Supreme Court reversed, holding that the federal bar's use of the "passing-on" theory announced in Hanover Shoe and Illinois Brick does not preempt pre·empt or pre-empt
v. pre·empt·ed, pre·empt·ing, pre·empts
1. To appropriate, seize, or take for oneself before others. See Synonyms at appropriate.
a. state antitrust statutes that create private remedies for indirect purchasers. ARC America, 490 U.S. at 103. There is no federal policy against providing antitrust remedies to indirect purchasers, although no such remedy exists under federal law. According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. the Court, such state antitrust remedies would not overly complicate federal antitrust suits, id. at 103, and would not reduce the direct purchasers' incentive to sue under federal law. Id. at 104. While a defendant might be subject to multiple liability if indirect purchaser claims were recognized under state law, the Supreme Court held that federal law did not forbid such a result and thus allowed states to make their own choice unimpeded unimpeded
not stopped or disrupted by anything
Adj. 1. unimpeded - not slowed or prevented; "a time of unimpeded growth"; "an unimpeded sweep of meadows and hills afforded a peaceful setting" by federal law. Id. at 105.
First DCA's Decision in Mack
Given the Florida Legislature's command to give "due consideration and great weight" to federal case law in interpreting state antitrust law, F.S. [sections] 542.32, Florida courts have generally denied standing to indirect purchasers who sue under the Florida Antitrust Act. In Mack, the First DCA held that the rule of Illinois Brick does not apply to suits brought under the DTPA. The decision rests on several related considerations.
First, the DTPA evidences an unmistakable legislative intent to afford standing to consumers. The purpose of the act is "[t]o protect the consuming public . . . from those who engage in unfair methods of competition, or unconscionable Unusually harsh and shocking to the conscience; that which is so grossly unfair that a court will proscribe it.
When a court uses the word unconscionable to describe conduct, it means that the conduct does not conform to the dictates of conscience. , deceptive, or unfair acts or practices in the conduct of any trade or commerce." F.S. [sections] 501.202(2). The Florida Legislature The Florida Legislature is the state legislature of the U.S. state of Florida. The Florida Constitution mandates a bicameral state legislature with an upper house Florida Senate of 40 members and a lower Florida House of Representatives of 120 members. decreed that its provisions "shall be construed liberally to promote [such] policies." F.S. [sections] 501.202. The act creates an express right of action in favor of any "consumer" who suffers a loss as a result of a violation of the act, F.S. [sections] 501.211(2), and its substantive provisions expressly proscribe pro·scribe
tr.v. pro·scribed, pro·scrib·ing, pro·scribes
1. To denounce or condemn.
2. To prohibit; forbid. See Synonyms at forbid.
a. To banish or outlaw (a person). "unfair methods of competition," including any such methods targeted by the Federal Trade Commission in rules promulgated prom·ul·gate
tr.v. prom·ul·gat·ed, prom·ul·gat·ing, prom·ul·gates
1. To make known (a decree, for example) by public declaration; announce officially. See Synonyms at announce.
2. under [sections] 5 of the FTC FTC
See Federal Trade Commission (FTC). Act. F.S. [subsections] 501.203(3), 501.204(1).(5) Traditional antitrust violations such as price-fixing also constitute unfair methods of competition under the FTC Act.(6) These propositions lead to the conclusion that consumers who can prove they have been injured by a violation of the federal antitrust laws are proper parties to maintain an action under the Florida DTPA.
Second, the First DCA was unpersuaded by the argument that, in light of the act's direction to follow federal case law interpreting the FTC Act, F.S. [sections] 501.204(2), Florida courts interpreting the DTPA should follow the rule of Illinois Brick. The court of appeal recognized that the legislature's reference to federal law developed under the FTC Act was a reference to the substantive issue of what conduct constitutes an "unfair method of competition" under the DTPA rather than a reference to the procedural issue of who has standing to sue. Indeed, although the court's opinion in Mack does not mention it, there are no rules of standing in cases brought under [sections] 5 of the FTC Act, because there is no private right of action for violations of the FTC Act.(7) The Federal Trade Commission is the only entity with standing to enforce the FTC Act. Standing rules in federal antitrust cases Although many in the computer field might equate "antitrust" with the long-running Microsoft trial (1998-2004), the U.S. government sued IBM three times in its history for antitrust violations. have been developed by interpreting [sections] 4 of the Clayton Act A federal law enacted in 1914 as an amendment to the Sherman Anti-Trust Act (15 U.S.C.A. § 1 et seq. ), prohibiting undue restriction of trade and commerce by designated methods.
The Clayton Act (15 U.S.C.A. § 12 et seq. , 15 U.S.C. [sections] 15(a)--a statute not mentioned in the DTPA.
Third, the court of appeal noted with approval the Supreme Court's holding in ARC America that Illinois Brick does not preclude the states from adopting more generous rules of standing under state antitrust law. If Illinois Brick does not preempt a state indirect-purchaser antitrust statute, as the Supreme Court held in ARC America, then it certainly cannot preclude a state from affording indirect purchasers a remedy for price-fixing under state deceptive trade practices law.
Fourth, the court of appeal rejected the contention that its decision to recognize indirect-purchaser standing would nullify nul·li·fy
tr.v. nul·li·fied, nul·li·fy·ing, nul·li·fies
1. To make null; invalidate.
2. To counteract the force or effectiveness of. the Florida Legislature's decision not to enact an Illinois Brick repealer as part of the Florida Antitrust Act. As the opinion in Mack points out, recognition of indirect-purchaser standing under the DTPA has no effect on state antitrust law, which remains tied by legislative direction to federal law. Ultimately, the court found that any apparent inconsistency between state antitrust law and the DTPA could not override the clear expressions of legislative intent embedded in the DTPA.
Finally, the Mack court observed that permitting indirect purchasers to sue for price-fixing under Florida's DTPA would not contravene con·tra·vene
tr.v. con·tra·vened, con·tra·ven·ing, con·tra·venes
1. To act or be counter to; violate: contravene a direct order.
2. any legislative or judicial policies underlying state antitrust law. As the U.S. Supreme Court held in ARC America, there is no antitrust policy which forbids indirect purchasers from suing price-fixers who are remote from them in the distribution chain. Recognition of indirect-purchaser standing under the DTPA no more conflicts with the denial of indirect-purchaser standing under state antitrust law than recognition of indirect-purchaser standing under state antitrust law would conflict with denial of such standing under federal law.
Indirect Purchaser Cases From Other States
Three decisions from other states--all of them infant formula cases--address an indirect purchaser's standing to sue for price-fixing under state consumer protection laws consumer protection laws n. almost all states and the federal government have enacted laws and set up agencies to protect the consumer (the retail purchasers of goods and services) from inferior, adulterated, hazardous and deceptively advertised products, and .
In Boos v. Abbott Laboratories Abbott Laboratories (NYSE: ABT) is a diversified pharmaceuticals and health care company. It has over 65,000 employees and operates in 130 countries. The corporate headquarters are in Abbott Park, Illinois, a neighborhood of North Chicago, Illinois. , 925 F. Supp. 49 (D. Mass. 1996), an indirect purchaser of infant formula sued for price-fixing under Massachusetts' antitrust and unfair competition statutes. Although the state antitrust act did not expressly cover an indirect purchaser's standing to sue, it did require courts to construe construe v. to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal meanings. that law in harmony with judicial interpretations of comparable federal antitrust statutes. Id. at 51, 56. The court ruled that, since Illinois Brick precludes federal indirect purchaser antitrust claims, Massachusetts' antitrust law similarly does not allow such claims.
The district court recognized that whether an indirect purchaser has standing under state consumer protection law is a more difficult question. Several factors militated in favor of recognizing such standing. In 1979, two years after Illinois Brick was decided, Massachusetts' consumer protection law was amended to eliminate the requirement of privity A close, direct, or successive relationship; having a mutual interest or right.
Privity refers to a connection or bond between parties to a particular transaction. Privity of contract is the relationship that exists between two or more parties to an agreement. between the consumer claimant and the defendant. Id. at 55. That amendment thus expanded the category of potential claimants to include indirect purchasers. Id. Moreover, although the state antitrust statute required by its terms that it be harmonized har·mo·nize
v. har·mo·nized, har·mo·niz·ing, har·mo·niz·es
1. To bring or come into agreement or harmony. See Synonyms at agree.
2. Music To provide harmony for (a melody). with federal antitrust law, the consumer protection statute contained no such restriction. Id. at 57. Because the issue was one of first impression under Massachusetts law, the district court certified the issue to the state's highest court.
In Abbott Laboratories, Inc. v. Segura, 907 S.W.2d 503 (Tex. 1995), a divided Texas Supreme Court barred indirect purchasers from suing under the state's consumer protection act for antitrust violations.
The majority opinion in Segura "is not based on any determination of standing under the [Texas consumer protection act]." Segura, 907 S.W. 2d at 507. Rather, it is based on the view that permitting an indirect purchaser claim for an antitrust violation under the Texas consumer protection law would constitute "an end run around the [Illinois Brick] policies allowing only direct purchasers to recover under the [Texas] Antitrust Act." Id. at 506. A concurring opinion Noun 1. concurring opinion - an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning
judgement, legal opinion, opinion, judgment - the legal document stating the reasons for a judicial decision; sidestepped the Illinois Brick issue and ruled on the merits on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers that there was insufficient evidence insufficient evidence n. a finding (decision) by a trial judge or an appeals court that the prosecution in a criminal case or a plaintiff in a lawsuit has not proved the case because the attorney did not present enough convincing evidence. that defendants' conduct constituted a violation of the Texas consumer protection law. Id. at 509-10. Another concurring opinion joined in the dismissal of the indirect purchasers' claims on the grounds that antitrust claims are not "cognizable The adjective "cognizable" has two distinct (and unrelated) applications within the field of law. A cognizable claim or controversy is one that meets the basic criteria of viability for being tried or adjudicated before a particular tribunal. " under the Texas consumer protection act. Id. at 511; see also id. at 512-13.
The dissenters dissenters: see nonconformists. in Segura would have upheld the standing of the indirect purchasers to sue for damages under the consumer protection law based on antitrust violations. They reasoned that the state antitrust and consumer protection statutes did not conflict by their terms, Segura, 907 S.W.2d at 514; that the remedies in the two statutory schemes were cumulative, id. at 514-15; and that permitting indirect purchaser claims promoted the state's interest in protecting consumers against unfair trade practices. Id.
Finally, in Blake v. Abbott Laboratories, Inc., 1996 WL 134947 (Tenn. App. 1996), a consumer sued the infant formula companies for price-fixing and monopolization mo·nop·o·lize
tr.v. mo·nop·o·lized, mo·nop·o·liz·ing, mo·nop·o·liz·es
1. To acquire or maintain a monopoly of.
2. To dominate by excluding others: monopolized the conversation. in violation of state antitrust and consumer protection statutes. The trial court dismissed the complaint for failure to state a claim Within a judicial forum, the failure to present sufficient facts which, if taken as true, would indicate that any violation of law occurred or that the claimant is entitled to a legal remedy.
Failure to state a claim is frequently raised as a defense in civil litigation. , but the court of appeals reversed, reasoning that price-fixing is an unfair trade practice which can be challenged by indirect purchasers both under state antitrust law and under the cumulative remedies of the state consumer protection statute.
The antitrust laws are designed to maintain competitive markets and thereby prevent economic injury to firms and individuals who buy from or sell into those markets. When the antitrust laws are violated, the reduction in competition and the resulting increase in market prices injure not only those who purchase directly from the violators, but also those who pay inflated prices for goods and services In economics, economic output is divided into physical goods and intangible services. Consumption of goods and services is assumed to produce utility (unless the "good" is a "bad"). It is often used when referring to a Goods and Services Tax. farther down the distribution chain.(8) There are sound reasons underlying the U.S. Supreme Court's decision in Illinois Brick, but--as the Supreme Court held in ARC America--those reasons do not preclude a state legislature from adopting a contrary rule in cases governed by state law. As the First DCA recognized in Mack, the Florida Legislature adopted such a rule when it enacted the DTPA.
Mack is now Florida law. Until another district court of appeal or the Florida Supreme Court decides the issue differently, it is binding on trial courts throughout the state(9) as well as on federal courts deciding cases that arise under Florida law.(10) In light of the First DCA's decision, Florida law now affords to indirect purchasers a remedy for price-fixing which they lack under traditional antitrust law.
(1) In re Infant Formula Antitrust Litigation, MDL MDL - (Originally "Muddle"). C. Reeve, Carl Hewitt and Gerald Sussman, Dynamic Modeling Group, MIT ca. 1971. Intended as a successor to Lisp, and a possible base for Planner-70. Basically LISP 1.5 with data types and arrays. Docket A written list of judicial proceedings set down for trial in a court.
To enter the dates of judicial proceedings scheduled for trial in a book kept by a court. No. 878 (N.D. Fla.). The authors' firm represented a group of direct purchasers in MDL 878.
(2) The state antitrust statutes of many states, including Florida, direct state judges to follow federal case law in construing state antitrust law. FLA. STAT. [sections] 542.32. In Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100 (Fla. 1st D.C.A. 1996), the trial court held that indirect purchasers lack standing to sue under the Florida Antitrust Act of 1980, FLA. STAT. ch. 542, and that ruling was not appealed. Mack, 673 So. 2d at 103.
(3) Recognizing the potential significance of its ruling, the First DCA certified its holding to the Florida Supreme Court as involving a question of great public importance. The parties subsequently settled the case, and we are advised that Bristol-Myers' appeal to the Florida Supreme Court will be dismissed.
(4) It is not uncommon for the same conduct to give rise to at least two different causes of action under state law. For example, a misrepresentation misrepresentation
In law, any false or misleading expression of fact, usually with the intent to deceive or defraud. It most commonly occurs in insurance and real-estate contracts. False advertising may also constitute misrepresentation. in connection with the sale of securities may constitute common law fraud and a violation of FLA. STAT. [sections] 517.301.An insurance company's bad faith failure to pay an insured's claim may be actionable under FLA. STAT. [sections] 624.155 and also constitute a breach of its common law duty of good faith and fair dealing. Misappropriation misappropriation n. the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate, or by any of a trade secret may be actionable under FLA. STAT. [sections] 688.004 and also constitute common law breach of contract or breach of fiduciary duty. The unauthorized use of a trademark may constitute infringement under FLA. STAT. [sections] 495.131 and dilution under [sections] 495.151. Theft may be actionable under FLA. STAT. [sections] 812.014 (theft, robbery and related crimes) as well as FLA. STAT. [sections] 772.111 (civil remedies for criminal practices).
(5) The 1993 amendments eliminated the limiting definitions of "supplier" and "consumer transaction" that had restricted the scope of the act. See FLA. STAT. [sections] 501.203(1), (3) (1973). Those amendments also expanded the substantive provisions of the act to include violations of any rules or standards promulgated under the Federal Trade Commission Act, 15 U.S.C. [sections] 41, et seq., and any laws, rules, or statutes proscribing unfair methods of competition. FLA. STAT. [subsections] 501.203(3), 501.204(2).
(6) See Federal Trade Comm'n v. Indiana Fed'n of Dentists, 476 U.S. 447, 454-55 (1986); Federal Trade Comm'n v. Cement Institute, 333 U.S. 683, 693-94 (1948).
(7) See., e.g., Fulton v. Hecht, 580 F.2d 1243, 1249 n.2 (5th Cir. 1978), cert. denied, 440 U.S. 981 (1979).
(8) In the simplest case, where the supply and demand curves are linear, each has an elasticity of one and there is a single set of intermediaries between the price-fixers (or monopolist) and consumers, 50 percent of an illegal overcharge will be passed on to the ultimate consumer. Such an overcharge has the same economic effect as an industry-wide tax on the intermediaries, which both raises prices and reduces output. The situation can be depicted graphically as follows:
In this example, a monopolistic overcharge imposed at the manufacturing level shifts the intermediaries' supply curve from S to [S.sup.1] and thereby shifts the equilibrium point from A to B. If the size of the overcharge is $1, then, under the simplified conditions described above, the equilibrium point will move up $.50 in price and down .5 units in quantity. See generally Harris & Sullivan, Passing on the Monopoly Overcharge: A Comprehensive Policy Analysis, 128 U. PA. L. REV. 269 (1979).
(9) See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (absent interdistrict conflict, decisions of district courts of appeal bind all Florida trial courts).
(10) See Twiss v. Kury, 25 F.3d 1551, 1557 (11th Cir. 1994) (absent some indication that state supreme court would decide issue differently, federal courts are required to follow decisions of state intermediate appellate courts).
William J. Blechman is a shareholder with Kenny Nachwalter Seymour Arnold Critchlow & Spector, PA., in Miami, where he has a trial practice concentrated in antitrust, government false claims litigation, and other complex commercial cases. He received his B.A., cum laude, from Harvard College and his J.D., cumlaude, from the University of Miami This article is about the university in Coral Gables, Florida. For the university in Oxford, Ohio, see Miami University.
The University of Miami (also known as Miami of Florida, UM, or just The U . He formerly clerked for U.S. District Judge Jose Gonzalez.
Scott E. Perwin is a shareholder with Kenny Nachwalter Seymour Arnold Critchlow & Spector, P.A., in Miami, where he concentrates in antitrust litigation. He received his B.A., magna cum laude, from Harvard College, an M.A. from Princeton University, and his J.D. with distinction from Stanford University.
This article is submitted on behalf of the Business Law Section, Philip B. Schwartz, chair, and Mindy Mora MORA, In civil law. This term, in mora, is used to denote that a party to a contract, who is obliged to do anything, has neglected to perform it, and is in default. Story on Bailm. Sec. 123, 259; Jones on Bailm. 70; Poth. Pret a Usage, c. 2, Sec. 2, art. 2, n. , editor.