Adams v. Aventis, S.A.

Adams v. Aventis, S.A., 2003 NCBC 7

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF

COUNTY OF CRAVEN JUSTICE

SUPERIOR COURT DIVISION

CASE NO. 01 CVS 2119

JOHN ADAMS d/b/a ADAMS SWINE, et al. )

)

Plaintiffs, )

)

v. )

)

AVENTIS, S.A., et al. )

))

Defendants. )

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS

{1} THIS MATTER is before the Court on defendants’ motion to dismiss for lack of personal

jurisdiction and failure to state a claim upon which relief may be granted. N.C.G.S. § 1A-1, Rule

12(b)(2) and (6). After considering the defendants’ motions, plaintiffs’ replies, defendants’ replies in

support, oral argument held on September 10, 2002, and for the below discussed reasons, the Court

DENIES defendants’ 12(b)(6) motion and certifies this Order for immediate appeal. At oral argument,

the Court deferred ruling on defendants’ 12(b)(2) motion until such time as either the time for appeal

from this order has expired or a North Carolina appellate court rules on the certified interlocutory

appeal.

Stubbs & Perdue, P.A., by Trawick H. Stubbs, Jr., Daniel Hobart, and Jason L. Hendren; Law

Offices of George A. Barton by George A. Barton; for plaintiffs.

Parker, Poe, Adams, & Bernstein, LLP, by William L. Rikard, Jr., for Defendants Aventis, S.A.,

Aventis Animal Nutrition, Inc., and Aventis Cropscience USA, Inc.

Mayer, Brown, Rowe & Maw by Mary K. Mandeville and Robert B. Cordle, for Defendants BASF

AG and BASF Corp.

Robinson, Bradshaw & Hinson, P.A., by Everett J. Bowman and Lawrence B. Moore, III; Baker &

Miller, PLLC by Donald I. Baker and Alice G. Glass; for Defendant Chinook Group Limited.

Hunton and Williams by T. Thomas Cottingham, III and Daniel L. Tedrick for Defendants DCV,

Inc. and Ducoa, LP.

Helms Mulliss & Wicker, PLLC, by Peter J. Covington, William C. Mayberry and Jason D. Evans,

for Defendants F. Hoffman-LaRoche, Ltd., Hoffman-LaRoche, Inc., and Roche Vitamins, Inc.

Mayer, Brown, Rowe & Maw by Michael O. Ware; Rayburn Cooper & Durham, P.A., by James B.

Gatehouse; for Defendants Alusuisse Lonza Group, Ltd., Lonza AG, and Lonza, Inc.

Background

{2} Plaintiffs in this action are indirect purchasers of vitamin products manufactured by defendants.

Plaintiffs filed this action on October 19, 2001, alleging violations of North Carolina’s Unfair and

Deceptive Trade Practices Act (“UDTPA”). N.C.G.S. §§ 75-1, 75-1.1, and 75-2. Plaintiffs claim that

defendants conspired to fix prices and allocate market share, and committed other unlawful practices

designed to inflate the prices of vitamins sold in North Carolina and elsewhere. Defendants have

responded by moving to dismiss under Rule 12(b)(6) based on two grounds: first, that the instant

action is abated by a prior pending class action filed in Mecklenburg County, Nicholson v. F. Hoffman-

La Roche Ltd., No. 99 CVS 3592 (Meck. Co. Sup. Ct. filed March 5, 1999), and a class action pending

in the District of Columbia, Giral v. F. Hoffman-La Roche Ltd., Civil Action No. 98 CA 7467

(District of Columbia Superior Court); and second, that plaintiffs, as indirect purchasers, lack standing

under North Carolina’s antitrust law, N.C.G.S. § 75-16.

{3} Plaintiffs Circle “S” Ranch, Inc., Coharie Hog Farm, Inc., Coharie Mill & Supply Co., Garland

Farm Supply, Inc., J&K Farms, Inc., J.C. Howard Farms, LLC, LL Murphrey, Company, NG Purvis

Farms, Inc., Braswell Milling Company d/b/a Braswell Foods, Eastern Minerals, Inc., and Townsends,

Inc. subsequently settled with and dismissed their claims against Aventis, S.A., Aventis Animal

Nutrition, Inc., Aventis Cropscience USA, Inc., BASF AG, BASF Corp, F. Hoffman-La Roche, Ltd.,

Hoffman-LaRoche, Inc., Roche Vitamins, Inc., Alusuisse Lonza Group, Ltd., Lonza AG, and Lonza,

Inc:

Legal Standard

{4} When ruling on a motion to dismiss under Rule 12(b)(6), the court must determine “whether, as a

matter of law, the allegations of the complaint . . . are sufficient to state a claim upon which relief may

be granted.” Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). In ruling on a

motion to dismiss, the court must treat the allegations in the complaint as true. Hyde v. Abbott

Laboratories, Inc., 123 N.C. App. 572, 574-75, 473 S.E.2d 680, 682 (1996). The court must construe

the complaint liberally and must not dismiss the complaint unless it appears to a legal certainty that

plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.

Id. For purposes of a motion to dismiss, a copy of any written instrument attached as an exhibit to a

pleading is considered part of the pleading. N.C. R. Civ. P. 10(c) (2001). Thus, the Court may

consider exhibits attached to a complaint without converting a motion to dismiss into a motion for

summary judgment. See Praxair, Inc. v. Airgas, Inc., 1999 NCBC 5, at ¶ 6 (No. 98 CVS 8571,

Mecklenburg County Super. Ct. May 26, 1999) (Tennille, J.)); see also Governor’s Club Inc. v.

Governor’s Club Ltd. P’ship, 152 N.C. App. 240, 254, 567 S.E.2d 781, 790 (Aug. 20, 2002) (citing

Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611, rev’d in part on other grounds, 297 N.C. 181,

254 S.E.2d 611 (1979)).

Abatement

{5} According to Clark v. Craven Regional Medical Authority, 326 N.C. 15, 387 S.E.2d 168 (1990), a

prior pending action will abate or end a second filed action under the following circumstances:

The pendency of a prior action between the same parties for the same cause

in a state court of competent jurisdiction works an abatement of a

subsequent action either in the same court or in another court of the state

having like jurisdiction. This is so because the court can dispose of the

entire controversy in the prior action and in consequence the subsequent

action is wholly unnecessary. By abating the second action, a multiplicity of

actions is prevented.

Id. at 21, 387 S.E.2d at 171 (citations omitted). Our Supreme Court stated that abatement is proper

where “the two actions present a substantial identity as to parties, subject matter, issues involved, and

relief demanded[.]” Id. at 21, 387 S.E.2d at 172.

{6} Defendants argue that the instant case should be abated by a prior pending class action filed in

Mecklenburg County, Nicholson v. F. Hoffman-La Roche Ltd., No. 99 CVS 3592 (Meck. Co. Sup. Ct.

filed March 5, 1999), and a class action pending in the District of Columbia, Giral v. F. Hoffman-La

Roche Ltd.,, Civil Action No. 98 CA 7467 (District of Columbia Superior Court). The Giral action

does not abate the instant action because it does not purport to certify a class in North Carolina. The

Giral action applies only to the District of Columbia.

{7} The Nicholson class is defined to include “all persons or entities present in the State of North

Carolina who indirectly purchased vitamins, vitamin premixes, bulk vitamins, and/or other vitamin

products manufactured by any of the defendants or their co-conspirators from January 1, 1989 to the

present.” (Nicholson Compl. ¶36). The Nicholson class has been certified for settlement purposes.

As is their right, plaintiffs in the instant action have opted out of the Nicholson class settlement and

chosen to pursue this individual action. As a general rule, one class action will abate a second class

action. See First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 23-24 (Ala. 1998). Thus, the fact that a

Cumberland County Superior Court Judge abated another class action in light of the pendency of the

Nicholson class action does not support abatement of a suit maintained as an individual action. See

Picos v. Lonza AG., 99-CVS-5035.

Indirect Purchaser

{8} Defendants argue that plaintiffs are indirect purchasers and therefore do not have standing to bring

an action against defendants for antitrust violations. This Court previously has recognized that it is

bound by the holding in Hyde v. Abbott Labs, 123 N.C. App. 572, 473 S.E.2d 680, rev. denied, 344

N.C. 734, 478 S.E.2d 5 (1996), which recognizes indirect purchaser standing in North Carolina.

Bruggers v. Eastman Kodak Co., 2000 NCBC 3, at ¶ 17 (No. 97 CVS 11278, Wake County Super. Ct.

Mar. 17, 2000) (Tennille, J.). In recognizing indirect purchaser standing, this Court stated:

The Hyde decision is the only North Carolina appellate decision dealing

with indirect purchaser standing. That case was settled after the Court of

Appeal’s decision and before review by the North Carolina Supreme Court.

I n Hyde, plaintiffs filed a class action against manufacturers of infant

formula, alleging violations of North Carolina’s antitrust laws. The

purported class consisted of ultimate consumers who purchased infant

formula from parties other than the manufacturer. The defendants filed a

motion to dismiss alleging that plaintiffs were indirect purchasers and

therefore lacked standing to sue under N.C.G.S. § 75-16. The Superior

Court Granted the motion to dismiss, and plaintiffs appealed.

The Court of Appeals reversed the Superior Court and found that under

North Carolina’s antitrust statute, an indirect purchaser may sue a

manufacturer for antitrust violations. The Court of Appeals based this

finding upon a review of the plain language of N.C.G.S. § 75-16. North

Carolina’s antitrust statute provides:

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 done by any other person, firm

or corporation in violation of the provisions of this Chapter,

such person, firm or corporation so injured shall have a right

of action on account of such injury done, and if damages are

assessed in such case judgment shall be rendered in favor of

the plaintiff and against the defendant for treble the amount

fixed by the verdict.

Id. at ¶ 5-6 (internal citations omitted).

{9} The current version of N.C.G.S. § 75-16 was amended in 1969 and again in 1996. The 1969

Amendment changed the first sentence of the statute, which originally read “if the business of any

person, firm or corporation shall be broken up. . . [,]” by adding the phrase “if any person shall be

injured” to the beginning of the provision. (Emphasis added.) In Hyde, our Court of Appeals found the

addition of this language significant in that it evidenced an intent to expand the class of persons with

standing to sue under Chapter 75 and thus provide a recovery “for all consumers,” including indirect

purchasers. Hyde, 123 N.C. App. at 577-78, 473 S.E.2d at 684.

{10} As originally enacted in 1913, the North Carolina antitrust statute was modeled after federal

antitrust law, codified in Section 7 of the Sherman Act. An Act to Declare Illegal Trusts and

Combinations in Restraint of Trade, Ch. 41. § 14, 1913 Sess. Laws 66. Section 7 was recodified as

Section 4 of the Clayton Act. 15 U.S.C. § 15 (1914) (“Clayton Act”). Both federal and state law has

been amended throughout the years; however, the language of the North Carolina statute has remained

similar to the language of the Clayton Act.

{11} Like North Carolina’s antitrust statute, Section 4 of the Clayton Act grants standing to prosecute

private causes of action for alleged violations of federal antitrust laws. In 1968, the Supreme Court

held that defendants in horizontal price-fixing cases would not be permitted to prove that direct

purchaser plaintiffs passed on all or part of the overcharge to their customers unless the direct

purchaser sold pursuant to cost-plus contracts. Hanover Shoe, Inc. v. United Shoe Machinery Corp.,

392 U.W. 481 (1968). This holding allowed direct purchasers to enforce federal antitrust laws

regardless of whether they absorbed or passed on the overcharge.

{12} Eleven years later, the Supreme Court held that if a passing-on defense cannot be raised by

defendants, claims based on such passing on likewise cannot be asserted by indirect purchasers.

Illinois Brick v. Illinois, 431 U.S. 720 (1977). Therefore, under federal law, because an indirect

purchaser cannot establish a legally cognizable injury, only direct purchasers may pursue an

overcharge claim arising from an antitrust violation.

{13} After the Illinois Brick decision, a number of states adopted Illinois Brick repealer statutes which

specifically permitted indirect purchaser standing. See, e.g., Union Carbide Corp. v. Superior Court,

36 Cal. 3d 15, 679 P.2d 14, 17, 201 Cal. Rptr. 580 (Cal. 1984) (observing that "California's 1978

amendment . . . in effect incorporates into the Cartwright Act the view of the dissenting opinion in

Illinois Brick that indirect purchasers are persons 'injured' by illegal overcharges passed on to them in

the chain of distribution"); Comes v. Microsoft Corp., 646 N.W.2d 440, 448 (Iowa 2002) (stating that

nineteen states, the District of Columbia, and Puerto Rico have adopted statutes expressly authorizing

suits by indirect purchasers, and citing statutes from California, Hawaii, Illinois, Kansas, Maryland,

Michigan, Minnesota, New Mexico, New York, South Dakota, Wisconsin, and the District of

Columbia); A&M Supply Co. v. Microsoft Corp., 252 Mich. App. 580, 654 N.W.2d 572, 595 (Mich.

Ct. App. 2002) (holding that Michigan's adoption of an Illinois Brick repealer law incorporating

"directly or indirectly" language to describe the injury allowed suit by direct or indirect purchasers).

{14} In a 1989 challenge to repealer statutes, the Supreme Court held that federal antitrust laws did not

pre-empt state antitrust laws and that state laws permitting indirect purchasers to receive damages were

not in conflict with federal antitrust laws. California v. ARC America Corp., 490 U.S. 93 (1989).

{15} Some states reacted to Illinois Brick by allowing indirect purchaser actions to be brought only by

the State Attorney General. See, e.g., Gaebler v. N.M. Potash Corp., 285 Ill. App. 3d 542, 676 N.E.2d

228, 230, 221 Ill. Dec. 707 (Ill. Ct. App. 1996) (holding that the Illinois Antitrust Act's provision that

"no person other than the Attorney General of this State shall be authorized to maintain a class action

in any court of this State for indirect purchasers asserting claims" precluded private plaintiffs' class

action on behalf of indirect purchasers); Davidson v. Microsoft Corp., 143 Md. App. 43, 792 A.2d 336,

341 (Md. Ct. App. 2002) (noting that the legislature had rejected a bill that would have repealed the

Illinois Brick principle as to all plaintiffs but had, instead, later passed a limited amendment allowing

governments to sue regardless of whether they dealt "directly or indirectly" with the violator); Siena v.

Microsoft, 796 A.2d 461 (R.I. 2002) (noting that the Rhode Island antitrust statute limited the right to

bring damages action on behalf of indirect purchasers to the Attorney General as parens patriae).

{16} In states such as North Carolina where the legislature has not clearly indicated an intent to adopt or

repeal the holding in Illinois Brick, courts have had to look elsewhere in their antitrust statutes for

guidance.

{17} In Major v. Microsoft Corp., 2002 OK CIV APP 120, 60 P.3d 511 (Okla. Ct. App. 2002), the court

found dispositive language in the Oklahoma Antitrust Reform Act (1) describing those persons

entitled to relief under the state statute in almost identical terms as federal law, the Clayton Act, "any

person who is injured in his or her business or property by a violation of the act," and (2) the

controlling section of the Oklahoma Act stating that the provisions of that act "shall be interpreted in a

manner consistent with Federal Antitrust Law 15 U.S.C. § 1 et seq. and the case law applicable

thereto." 60 P.3d at 513. The court interpreted these two sections as requiring it to apply Illinois Brick.

Id.

{18} In Vacco v. Microsoft Corp., 260 Conn. 59, 793 A.2d 1048 (Conn. 2002), the court found

determinative a 1992 amendment to that state's antitrust act directing that the courts be "guided by

interpretations given by the federal courts to federal antitrust statutes." Id. at 1056. After careful

analysis of Illinois Brick and other federal cases relevant to the issues raised in the case before it, the

court determined that allowing only those consumers who purchase directly from the antitrust

defendant to bring suit ensured harmony between the state act and federal statutes. The court

distinguished cases from other states, including Tennessee, on the basis that those state statutes did not

require that their state courts interpret those statutes consistently with federal interpretation. Id. at

1059; see also Siena, 796 A.2d at 461 (explaining that Rhode Island statute required construction in

harmony with judicial interpretations of comparable federal antitrust statutes).

{19} In some states, the courts have had more than one indication of legislative intent or used more than

one factor in their analysis. For example, in Stifflear v. Bristol-Myers Squibb, 931 P.2d 471 (Col. Ct.

App. 1996), the court construed its antitrust statute to preclude direct actions by indirect purchasers

because: (1) the Colorado statute was modeled on the federal statute; (2) the Colorado Supreme Court

had previously held that the state act should be interpreted consistently with federal antitrust law; (3) a

1992 re-enactment directed Colorado courts to use as a guide federal court interpretations of federal

law; and (4) the same re-enactment only partially repealed the indirect purchaser preclusion by giving

standing to governmental entities injured "either directly or indirectly." The court also shared the same

concerns expressed by the Supreme Court in Illinois Brick regarding disincentives to private

enforcement and difficulties in apportioning alleged overcharges. Id. at 476; see also Davidson v.

Microsoft Corp., 143 Md. App. 43, 792 A.2d 336, 341 (Md. Ct. App. 2002) (holding that Illinois Brick

applied in that state because of language in the Maryland statute that directed the courts to "be guided

by federal court interpretations of federal antitrust statutes," because of prior cases using federal

authority in interpreting the Maryland antitrust statute, and based on the legislative history of the act,

including adoption of a right for only governmental indirect purchasers to sue); Elkins v. Microsoft,

817 A.2d 9, 18 (Ver. 2002) (discussing the holdings of various states under their antitrust statutes and

their consumer protection statutes). Sherwood v. Microsoft Corp., 2003 Tenn. App. LEXIS 539 (Tenn.

Ct. App. July 31, 2003) (allowing indirect purchaser actions under Tennessee’s antitrust statute).

{20} Defendants argue that since the Court of Appeals’ decision in Hyde, the North Carolina Antitrust

Act has been amended in a manner that “evinces a clear legislative intent to make North Carolina

antitrust law consistent with federal law.” On June 3, 1996, the General Assembly ratified a bill

entitled An Act to Revise the Statutes Regarding Antitrust Law to Ensure That These Provisions Are

Internally Consistent and Consistent With Federal Antitrust Laws. Act of June 3, 1996, Ch. 550,

Senate Bill 843 (“1996 Amendments”). These Amendments became effective on October 1, 1996.

{21} First, the 1996 Amendments were enacted after Illinois Brick was decided. Had the legislature

desired to enact an Illinois Brick repealer law, this would have been the ideal opportunity. Instead, the

1996 Amendments did not directly address indirect purchaser standing, choosing only to add language

to North Carolina law that mirrors the monopolization language used in the federal Sherman Act. Id.;

N.C.G.S. § 75-2.1 (2001).

{22} Second, the 1996 Amendments were passed after Hyde had been briefed and argued to the Court

of Appeals and were not effective until after the Court of Appeals had reached a decision. Thus the

Court of Appeals did not have the benefit of the Legislature’s confirmation that it is their continued

intent to have North Carolina antitrust law interpreted as consistent with Federal antitrust law.

{23} In 1995, the Section of Antitrust Law of the American Bar Association published a Report of the

Indirect Purchaser Task Force outlining proposed legislative changes to address the “indirect

purchaser problem.” Report of the Indirect Purchaser Task Force: Section of Antitrust Law American

Bar Association, 63 ANTITRUST L.J. 993 (Spring 1995). The report stated that the results of state

Illinois Brick repealer laws are that:

(1) The full amount of the overcharge, trebled, can be recovered by (i) direct

purchasers who sue under federal law; (ii) the customers of those direct

purchasers who sue under state law; and (iii) under most state Illinois

Brick repealers, by indirect purchasers at every other stage of

distribution down the line.

(2) The overcharge that an indirect purchaser can have trebled may be a

multiple of the overcharge to the direct purchaser because indirect

purchasers can claim that their seller's markups on the original

overcharge are also inflated because of that overcharge.

(3) The direct purchaser cases can be prosecuted in federal court and the

indirect purchaser cases can be prosecuted in state court(s). Indeed, the

Supreme Court seemed to encourage that kind of multiple litigation in

ARC America by broadly hinting to federal courts that they utilize

pendent jurisdiction principles for state law indirect purchaser claims.

(4) The results in the direct and indirect purchaser cases need not be

consistent. The overcharge which is treated as the direct purchaser's in

the federal court can be treated as the indirect purchaser's in the state

court. In fact, if indirect purchaser cases are brought in several state

courts, there may be inconsistencies in those decisions.

Thus, defendants in horizontal price-fixing cases face not only the burden

and expense of multiple treble-damage lawsuits, but also enormous potential

liability -- not just three, but multiples of three times the overcharge, if a lay

jury finds liability. Few companies can afford to "roll the dice" on a jury

verdict when the exposure is that high, no matter how innocent they believe

they are.

Additionally, the current law turns judicial economy -- the principal reason

for the decisions in Hanover Shoe and Illinois Brick -- on its head. Federal

and state judicial resources are finite and precious. It makes little sense to

permit, much less encourage, multiple litigation in federal and state courts. It

makes even less sense to permit inconsistent judgments as to who bore the

overcharge.

Id.

{24} It is precisely because any rational corporate defendant would prefer to avoid “rolling the dice” on

a jury that this issue has not been before the North Carolina Supreme Court for review and clarification

of North Carolina’s antitrust statute. Defendants will settle even non-meritorious claims rather than

risk “multiples of three times the overcharge in damages.”

{25} Defendants argue that the rationale behind Illinois Brick should apply in North Carolina and that

given the opportunity to review our antitrust statute, our appellate courts would overrule Hyde in light

of subsequent legislative action. Furthermore, as defendants pointed out in their motion to dismiss, the

Illinois Brick analysis is “fully borne out by the circumstances of this case.” Direct purchaser suits

against these defendants have been filed under federal antitrust law and consolidated in federal multi-

district proceedings in Washington, D.C. In re Vitamin Litigation, MDL No. 1285 (D.D.C. (TFH)).

Counsel for a nationwide class of direct purchasers have sought to recover the full amount of the same

conspiratorial overcharge alleged in this case. As in Bruggers, this case directly raises the issue of

multiple liability, which did not arise in Hyde.

{26} The Court also faces the same unresolved issues it faced in Bruggers, namely apportioning alleged

overcharges among those in the chain of distribution and the risk of multiple liability. Whether

overcharges were passed on to plaintiffs presents difficult evidentiary issues. Plaintiffs purchased

vitamins to feed their livestock and then sold that livestock. Whether the alleged increase in the price

of vitamins was passed on when they sold their livestock presents an exceedingly difficult issue of

proof.

{27} Moreover, as this Court pointed out in Bruggers, “[t]he existence of indirect purchaser standing

spawns additional significant issues which have never been addressed by the appellate courts or the

General Assembly.” Bruggers, 2000 NCBC 3, at ¶ 18. For example, who will bear the burden of

proof in establishing that each plaintiff absorbed any alleged overcharge, rather than passing it on to

his, her or its own customers? What proof will individual plaintiffs need to present with respect to the

origin of the products they consumed or purchased? If the question of allocation of the alleged

increase along the chain of distribution creates conflicts among potential plaintiffs, will the Court be

required to sever those actions?

Interlocutory Appeals

{28} “An order is interlocutory if it does not determine the issues but directs some further proceeding

preliminary to the final decree.” Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338

(1978); Blackwelder v. State Dep't of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983);

Heavener v. Heavener, 73 N.C. App. 331, 326 S.E.2d 78, cert. denied, 313 N.C. 601, 330 S.E.2d 610

(1985). “The rule against interlocutory appeals seeks to prevent fragmentary, premature and

unnecessary appeals by allowing the trial court to bring a case to final judgment before its presentation

to the appellate courts.” CBP Resources Inc. v. Mountaire Farms of North Carolina, Inc. et al., 134

N.C. App. 169, 517 S.E.2d 151 (1999). However, an interlocutory appeal is permissible “if the trial

court’s decision deprives the appellant of a substantial right which would be lost absent immediate

review.” Bartlett v. Jacobs, 124 N.C. App. 521, 523, 477 S.E.2d 693, 695 (1996), disc. rev. denied,

345 N.C. 340, 483 S.E.2d 161 (1997); N.C.G.S. §§ 7A-27 and 1-277 (2002).

{29} The issues present in this case, along with the central issue of indirect purchaser standing, are

eliminated by the federal approach but cannot be avoided if indirect purchaser standing exists.

Furthermore, indirect purchaser standing significantly affects the public interest and involves legal

principles of major significance to the jurisprudence of the state that have not been addressed by the

North Carolina Supreme Court. Our Court of Appeals should have the opportunity to review its

holding in Hyde in light of subsequent legislative changes to N.C.G.S. § 75-16 and federal

interpretation of the federal antitrust laws.

{30} There is no just reason to delay appeal of this order, and immediate appeal will promote judicial

economy. A determination that North Carolina either will or will not allow indirect purchaser standing

may immediately end the litigation, as plaintiffs could consequently no longer have standing.

Conclusion

{31} The decision of the Court of Appeals in the Hyde case is controlling authority in this state on the

question of indirect purchaser standing under N.C.G.S. § 75-16. This court is bound by that decision.

It is difficult to interpret the language of the 1969 amendment to the statute as doing anything other

than establishing indirect purchaser standing. However, this case raises the specific issues of concern

to the United States Supreme Court in Illinois Brick. The General Assembly, in the 1996

Amendments, did not provide any statutory guidance on how to deal with apportionment and pass-

through issues or multiple liability questions. There is no guidance in the appellate decisions because

those issues were not before the court in Hyde.

{32} It is therefore ORDERED, ADJUDGED and DECREED that:

1. Defendants’ motion to dismiss for failure to state a claim upon which relief may be

granted is DENIED.

2. Denial of this motion is suitable for immediate interlocutory appeal or a petition for

discretionary review.

3. A ruling on defendants’ motion to dismiss for lack of personal jurisdiction is deferred

until such time as either the time for appeal from this order has expired or the North

Carolina appellate courts have ruled on the certified interlocutory appeal.

{33} SO ORDERED this the ____ day of August 2003.