State Bills Would Expand Antitrust Standing for Indirect Purchasers, Attorneys General

This posting was written by Jeffrey May, editor of CCH Trade Regulation Reporter.

New Hampshire and Washington have started their new legislative sessions by considering proposals to expand the right to bring actions under their antitrust laws.

New Hampshire Senate Bill No. 52, introduced on January 4, would amend the state combination and monopolies law so that "Any person injured in his business or property by reason of a violation of this chapter may recover ... regardless of whether that person dealt directly or indirectly with the defendant."

If approved, the legislation would overturn a decision of the New Hampshire Supreme Court (2002-1 Trade Cases ¶73,659) that indirect purchasers lack standing under the state antitrust law. State subdivisions or agencies also would be permitted to recover damages regardless of whether they dealt directly or indirectly with the defendant.

In addition, the New Hampshire bill would amend the law to authorize the state attorney general "to bring an action for violations of this chapter as parens patriae on behalf of natural persons residing in the state. Whether the injured persons dealt directly or indirectly with the defendant shall not bar this action or otherwise limit recovery." Treble damages would also be recoverable.

Meanwhile, legislation has been introduced in the State of Washington that would permit the state attorney general to bring an action as parens patriae on behalf of state residents alleging state antitrust law violations.

The Washington measure (House Bill No. 1177, Senate Bill No. 5228), would allow courts to compensate victims of anticompetitive activity whether or not they were direct or indirect purchasers from the defendant. Political subdivisions would be specifically authorized to sue where their injuries were direct or indirect. The proposal was introduced in the House on January 12 and introduced in the Senate on January 15.

Sales Below Cost Law

In other antitrust legislative news, Colorado is considering a bill to repeal provisions of the Colorado Unfair Practices Act that prohibit below-cost sales. House Bill No. 1070 was introduced on January 10. The bill's sponsor, Rep. Kevin Lundberg, said that the legislation was intended to "remove those provisions that currently prevent [grocery retailer] King Soopers from giving a ten-cent discount on gas, and Wal-Mart and Target offering the same $4 prescription drug prices they do in most other states."