# State v. LG Elecs., Inc.

> Washington Supreme Court · July 14, 2016

URL: https://www.frixlaw.com/law-library/cases/4015781

## Case

- **Court:** Washington Supreme Court
- **Decided:** July 14, 2016
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4015781

## How later opinions describe it (automated extraction)

- holding the defendant could assert a statute oflimitations defense against the State, notwithstanding the exemptions of RCW 4.16.160, because the State's echeat claim was derivative of the underlying private individual's claim against the defendant

## Opinion text

, FILE"'.
IN CLERKS OFFICE
IUI'REME COUR'f, STAlE OF WASIIIIIIrnlll
DATE JUL 1 4 2016
·m~'n<j. Supreme Court Cieri<

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, )
)
Respondent, ) No. 91263-7
)
v. )
)
LG ELECTRONICS, INC.; LG )
ELECTRONICA U.S.A., INC.; )
KONINKLIJKE PHILIPS )
ELECTRONICS N.V. A/KIA ROYAL )
PHILIPS ELECTRONICS NORTH )
AMERJCA CORPORATION; TOSHIBA )
CORPORATION; TOSHIBA AMERICA ) En Bane
ELECTRONIC COMPONENTS, INC.; )
HITACHI, LTD.; HITACHI DISPLAYS, )
LTD.; HITACHI ELECTRONIC DEVICES)
(USA), INC.; and HITACHI ASIA, LTD., )
)
Petitioners, )
)
and )
)
PHILIPS ELECTRONICS INDUSTRIES )
(TAIWAN), LTD.; SAMSUNG SDI CO., )
LTD. F/K/A SAMSUNG DISPLAY )
DEVICE CO., LTD.; SAMSUNG SDI ) Filed JUL 1 11 2016
AMERJCA, INC.; SAMSUNG SDI )
MEXICO S.A. DE C.V.; SAMSUNG SDI )
BRASIL LTDA.; SI-IENZHEN SAMSUNG)
SDI CO., LTD.; TIANJIN SAMSUNG SDI )
CO., LTD.; SAMSUNG SDI (MALAYSIA))
State v. LG Electronics, Inc., et al., No. 91263-7

SDN. BHD.; MT PICTURE DISPLAY CO.,)
LTD.; PANASONIC CORPORATION )
F!KIA MATSUSHITA ELECTRIC )
INDUSTRIAL CO., LTD.; PANASONIC )
CORPORATION OF NORTH AMERICA; )
CHUNGHWA PICTURE TUBES LTD.; )
CPTF OPTRONICS CO. LTD.; and )
CHUNGHWA PICTURE TUBES )
(MALAYSIA) SDN. BHD., )
)
Defendants. )
________________________ )

GONZALEZ, I.-Plaintiffs must file their lawsuits before the applicable

statute of limitations runs or their suits will be dismissed as untimely.

Historically, sovereigns were not subject to statutes oflimitations without

their explicit consent. Washington State has consented to some statutes of

limitations but not to others. We are asked to decide whether our State has

consented to a statute oflimitations that would bar this antitrust suit filed by

the Washington State attorney general on behalf of the State against more

than 20 foreign electronics manufacturing companies. We find it has not

and affirm.

FACTS

On May 1, 2012, the State, through the attorney general, filed suit on

behalf of itself and as parens patriae 1 on behalf of persons residing in the

1"Parens patriae," literally '"parent of his or her country,"' refers traditionally to the role
of the state as sovereign. BLACK'S LAW DICTIONARY 1287 (10th ed. 2014).
2
State v. LG Electronics, Inc., et al., No. 91263-7

state against a number of foreign electronics manufacturers. Clerk's Papers

(CP) at 1-28. The State alleges that between at least March 1, 1995, through

at least November 25, 2007, the defendants violated RCW 19.86.030, which

prohibits any "contract, combination ... or conspiracy in restraint of trade or

commerce," by agreeing to raise prices and agreeing on production levels in

the market for CRTs (cathode ray tubes), the dominant display technology

used in televisions and computer monitors before the advent of LCD (liquid

crystal display) panels and plasma display technologies. Id. at 1, 2, 24, 27.

Due to this unlawful conspiracy, the State alleges, Washington consumers

and the State of Washington itself paid supracompetitive prices for CRT

products. Id. at 14. The complaint seeks "damages, restitution, civil

penalties, costs and fees, and injunctive relief." Id. at 2, 27-28.

Ten of the defendants filed a motion to dismiss, arguing the claims

were time barred because Washington's Consumer Protection Act (CPA),

chapter 19.86 RCW, provides that actions for damages under RCW

19.86.090 must be brought within four years. CP at 29-59 (citing RCW

19.86.120). The State responded that RCW 19.86.120's statute of

limitations did not apply to its claims under RCW 19.86.080. Id. at 46. The

State also argued that it was exempt from the statute oflimitations under

RCW 4.16.160, which provides that "there shall be no limitation to actions

3
State v. LG Electronics, Inc., eta/., No. 91263-7

brought in the name or for the benefit of the state." Id. at 48. The trial judge

denied the motion to dismiss and certified the matter for discretionary

review under RAP 2.3(b)(4). 2 Id. at 95-96, 144. The Court of Appeals

granted discretionary review oftwo questions:

"(!)Whether the four-year statute oflimitations under RCW
19.86.120 applies to the Washington's Attorney General's Complaint
brought pursuant to its parens patriae authority under RCW
19.86.080 that seeks actual damages for violations ofRCW
19.86.030?

"(2) Whether RCW 4.16.160 should be applied to the
Washington Attorney General's parens patriae antitrust lawsuit
seeking actual damages and restitution for citizens of Washington?"

State v. LG Elecs., Inc., 185 Wn. App. 123, 130, 340 P.3d 915 (2014)

(footnotes omitted).

The Court of Appeals concluded that the CPA's four-year statute of

limitations did not apply to actions for injunctive relief and restitution

brought by the attorney general under RCW 19.86.080 (.080) because it

expressly applies only to actions for damages under RCW 19.86.090. Id. at

139. It also concluded the State's .080 action was "brought for the benefit of

'RAP 2.3(b )(4) provides discretionary review of a trial court decision may be accepted
when

[t]he superior court has certified, or all the parties to the litigation have stipulated,
that the order involves a controlling questioning of law as to which there is
substantial ground for a difference of opinion and that immediate review of the
order may materially advance the ultimate termination of the litigation.
4
State v. LG Electronics, Inc., et al., No. 91263-7

the State" and thus exempt from any general statute of limitations under

RCW 4.16.160, and affirmed the trial court. !d. at 151. The defendants who

moved to dismiss (collectively LG Electronics) successfully petitioned for

our rev1ew.

ANALYSIS

Our review is de novo. Burton v. Lehman, 153 Wn.2d 416,422, 103

P.3d 1230 (2005) (CR 12(b)(6) rulings) (citing Tenore v. AT & T Wireless

Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)); Castro v. Stanwood

Sch. Dist., 151 Wn.2d 221,224, 86 P.3d 1166 (2004) (interpretation of a

statute) (citing State v. Karp, 69 Wash. App. 369, 372, 848 P.2d 1304

(1993)).

The CPA authorizes both public and private enforcement of its

provisions. RCW 19.86.080, .090. Under .080, the attorney general is

authorized to bring an action "in the name of the state, or as parens patriae

on behalf of persons residing in the state" for injunctive relief, and the court

is authorized to make "additional orders ... as may be necessary to restore

to any person in interest any moneys or property ... which may have been

acquired by means of[ a prohibited] act." RCW 19.86.080(1), (2). RCW

19.86.080 directs the court to consider consolidating .080 actions with other

related actions and to exclude from the amount of monetary relief awarded

5
State v. LG Electronics, Inc., et al., No. 91263-7

any amount that duplicates amounts already awarded for the same violation.

RCW 19.86.080(3).

RCW 19.86.090 (.090) authorizes private persons to sue for injunctive

relief and "actual damages," and it provides the court with discretion to

increase the award of damages up to three times the actual damages

sustained. It also authorizes the State, "[w]henever [it] is injured, directly or

indirectly," by a violation of the act to sue for its "actual damages." The

CPA's statute oflimitations provision bars "claim[s] for damages under

RCW 19.86.090" if not commenced within four years. RCW 19.86.120.

LG Electronics ask us to find that the State's .080 parens patriae claim

for injunctive relief and restitution is barred by RCW 19.86.120, the CPA's

statute of limitations for .090 damages claims. Alternatively, they contend

that one of the general statutes of limitations in chapter 4.16 RCW applies:

the catchall three-year statute oflimitations for actions seeking recovery for

"any other injury to the person or rights of another," RCW 4.16.080(2), or

the even broader catchall two-year limitations period for "[a]n action for

relief not hereinbefore provided," RCW 4.16.130. Suppl. Br. ofPet'rs at 13-

14. We find that by its plain language, RCW 19.86.120 does not apply to

.080 claims. We also find that the State's action is not subject to the general

statutes of limitation because RCW 4.16.160, which codifies the connnon

6
State v. LG Electronics, Inc., et al., No. 91263-7

law nullum tempus 3 doctrine, applies. Under the nullum tempus doctrine,

statutes of limitations do not run against the State unless the State expressly

consents to the limitation on its sovereign powers. 4

I. The CPA 's Statute ofLimitations Does Not Apply to the State's
.080 Claims

Reading the CPA as a whole, we conclude that the four-year statute of

limitations ofRCW 19.86.120 (.120) does not apply to .080 actions. First,

by its plain language, .120 applies only to claims for damages under .090,

which are distinct from claims under .080. Under the age old rule expressio

unius est exclusio alterius, "' [w ]here a statute specifically designates the

things upon which it operates, there is an inference that the Legislature

intended all omissions."' In re Pers. Restraint ofHopkins, 13 7 Wn.2d 897,

901, 976 P.2d 616 (1999) (alteration in original) (quoting Queets Band of

Indians v. State, 102 Wn.2d 1, 5, 682 P.2d 909 (1984)); Wash. Nat. Gas Co.

3 The common law doctrine '"nullum tempus occurrit regi'" means "no time runs against
the King." Sigmtmd D. Schutz, Time to Reconsider Nu!lum Tempus Occurrit Regi-The
Applicability of Statutes ofLimitations against the State ofMaine in Civil Actions, 55 ME.
L. REV. 373, 374 (2003).
4 We stress that our opinion is limited to the attorney general's .080 claims. The attorney

general's complaint broadly requested injunctive relief, damages, restitution, civil
penalties, and attorney fees, and the State subsequently specified that it seeks damages on
behalf of state agencies that were purchasers of CRT products under .090, restitution for
state consmners under .080, and civil penalties under RCW 19.86.140. CP at 2, 27-28;
State's Resp. at 2. The Court of Appeals addressed only whether the State's .080 claim
for injunctive relief and restitution is subject to a statute oflimitations and declined to
consider whether the .090 and .140 claims were tmtimely, concluding those issues were
beyond the scope of the certified questions it granted for review. LG Elecs., Inc., 185
Wn. App. at 151.
7
State v. LG Electronics, Inc., et al., No. 91263-7

v. Pub. Uti!. Dist. No. I of Snohomish County, 77 Wn.2d 94, 98,459 P.2d

633 (1969).

Second, we note that legislative history supports the conclusion that

the legislature intentionally excluded .080 claims from the limitations period

in .120. In its original form, the CPA authorized the State to seek injunctive

relief under .080 and authorized damages actions by both private parties and

the State under .090. LAWS OF 1961, ch. 216, §§ 8, 9. The act provided a

statute of limitations for "claim[s] for damages under [.090]," but did not

reference .080 actions. LAWS OF 1961, ch. 216, § 12 (codified at RCW

19.86.120). In 1970, the legislature amended .080 to provide the court

discretion to award monetary restitution pursuant to a state action for

injunctive relief. LAws OF 1970, 1st Ex. Sess., ch. 26, § 1. Again in 2007,

the legislature amended .080 to add the language "or as parens patriae on

behalf of persons residing in the state" and to expressly provide that for

certain violations of the act, restitution may be awarded to persons in interest

regardless of whether they were direct or indirect consumers of goods.

LAWS OF 2007, ch. 66, § 1. Significantly, although the legislature also

amended .120 in 1970 in other ways not relevant to this case, it has never

amended it to encompass .080 claims. See LAWS OF 1970, 1st Ex. Sess., ch.

26, § 5. We decline to find that the legislature was absent minded, and

8
State v. LG Electronics, Inc., et al., No. 91263-7

instead we follow our long standing precedent that in such circumstances,

"'the silence of the Legislature is telling' and must be given effect."

Hopkins, 137 Wn.2d at 901 (quoting Queets Band ofIndians, 102 Wn.2d at

5).

LG Electronics argues that a four-year limitations period applies

because the legislature explicitly directed courts to construe the CPA in

harmony with federal antitrust statutes, and under federal law, claims

brought by state attorneys general are subject to a four-year limitations

period. 15 U.S.C. §§ 15b, 15c. While the CPA directs courts interpreting

the act to "be guided by final decisions of the federal courts ... interpreting

the various federal statutes dealing with the same or similar matters," RCW

19.86.920, we have declined to follow federal law where the language and

structure ofthe CPA departs from otherwise analogous federal provisions.

See, e.g., State v. Black, 100 Wn.2d 793, 799, 802-03, 676 P.2d 963 (1984).

While the CPA, like the Clayton Act, 38 Stat. 730 (1914), permits the state

attorney general to bring a parens patriae action, the statutory parallel turns

perpendicular at that point and so the federal statute dealing with limitations

periods is not a helpful guide here. The federal Clayton Act authorizes state

attorneys general to sue for treble damages for persons injured in their

business or property under 15 U.S.C. § 15c. The Clayton Act's four-year

9
State v. LG Electronics, Inc., eta!., No. 91263-7

statute oflimitations provision expressly applies to actions brought pursuant

to 15 U.S.C. § 15c. In contrast, the Washington Legislature authorized the

attorney general to enjoin violations of the act and to recover money or

property as restitution under .080, and in a separate statutory provision, .090,

authorized treble damages claims by private persons for injuries to business

and property and by the State for its direct and indirect injuries. The

language ofthis statute oflimitations includes only actions brought under

.090.

LG Electronics also urges us to find the four-year limitations period

applies because there is "significant overlap" between .080 and .090 claims.

Suppl. Br. ofPet'rs at 14-15. Petitioners posit that actions brought under

.080 challenge "identical conduct by identical defendants as would an [.]090

damages claim expressly governed by the [.] 120 limitations period" and so

under Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 469, 722

P.2d 1295 (1986), "[i]t is anomalous to treat those claims so differently for

limitations purposes." !d. at 15. But in Eastwood we were asked to decide

if the statute of limitations for "libel" and "slander" (defamation claims)

encompassed false light invasion of privacy claims, which could be brought

by the same plaintiff against the same defendant for the same conduct. 106

Wn.2d at 469. We analyzed the similarities between the elements offalse

10
State v. LG Electronics, Inc., et al., No. 91263-7

light and defamation claims and concluded that "the theoretical difference

between the two torts is that a defamation action is primarily concerned with

compensating the injured party for damage to reputation, while an invasion

of privacy action is primarily concerned with compensating for injured

feelings or mental suffering[, but] [t]he two torts overlap ... when the

statement complained of is both false and defamatory." !d. at 470-71. Thus,

we concluded that where the facts in the false light case also give rise to a

defamation claim, a plaintiff cannot avoid the two-year limitations period by

characterizing it as a false light claim for statute oflimitations purposes. !d.

at 469. Here, however, RCW 19.86.120 expressly includes .090 claims

only, which are qualitatively different from .080 claims, which can be

brought only by the attorney general. The statute simply cannot be read to

encompass .080 claims, and so Eastwood is not helpful.

We cannot ignore the plain language of the statute or the relevant

history that produced it. The legislature has expressly instructed that the

State shall not be subject to the policies of preventing stale claims inherent

in statutes oflimitations because of competing policy considerations

regarding the public welfare and the State's purse. RCW 4.16.160.

1L The State's .080 Action Is Encompassed by RCW 4.16.160

At common law, statutes oflimitations did not run against the State

11
State v. LG Electronics, Inc., eta!., No. 91263-7

under the old nullum tempus doctrine. Bellevue Sch. Dist. No. 405 v. Brazier

Constr. Co., 103 Wn.2d 111, 114,691 P.2d 178 (1984) (quoting United

States v. Thompson, 98 U.S. (8 Otto) 486, 489-90, 25 L. Ed. 194 (1878)).

The Washington Legislature codified the common law nullum tempus

doctrine more than 100 years ago. !d. at 115 (citing LAWS OF 1903, ch. 24, §

1). RCW 4.16.160 provides:

The limitations prescribed in this chapter shall apply to actions
brought in the name or for the benefit of any county or other
municipality or quasimunicipality of the state, in the same manner as
to actions brought by private parties: PROVIDED, That . .. there shall
be no limitation to actions brought in the name or for the benefit of
the state, and no claim of right predicated upon the lapse of time shall
ever be asserted against the state.

(Emphasis added.)

The nullum tempus doctrine is related to the doctrine of sovereign

immunity and the age-old principle that the sovereign's rules do not bind the

sovereign itself unless the sovereign explicitly consented to be bound:

"The common law fixed no time as to the bringing of actions.
Limitations derive their authority from statutes. The king was held
never to be included, unless expressly named. No laches was
imputable to him. These exemptions were founded upon
considerations of public policy. It was deemed important that, while
the sovereign was engrossed by the cares and duties of his office, the
public should not suffer by the negligence of his servants. 'In a
representative government, where the people do not and cannot act in
a body, where their power is delegated to others, and must of
necessity be exercised by them, if exercised at all, the reason for
applying these principles is equally cogent.'

12
State v. LG Electronics, Inc., et al., No. 91263-7

"When the colonies achieved their independence, each one took
these prerogatives, which had belonged to the crown; and when the
national Constitution was adopted, they were imparted to the new
govermnent as incidents of the sovereignty thus created. It is an
exception equally applicable to all governments."

Bellevue Sch. Dist. No. 405, 103 Wn.2d at 114 (quoting Thompson, 98 U.S.

at 489-90); see State v. Vinther, 176 Wash. 391, 393, 29 P.2d 693 (1934).

Thus, unless there is an express provision to the contrary, no statute of

limitations applies to actions in the name of or for the benefit of the State.

Bellevue Sch. Dist. No. 405, 103 Wn.2d at 120. We find that the attorney

general's .080 action is "in the name of or for the benefit of the state" for the

purposes ofRCW 4.16.160.

We have embraced the common law principle that where the State "is

a mere formal plaintiff in a suit, not for the purpose of asserting any public

right or protecting any public interest, but merely to form a conduit through

which one private person can conduct litigation against another private

person," it is not immune from statutes oflimitation under RCW 4.16.160.

Vinther, 176 Wash. at 393 (citing United States v. Beebe, 127 U.S. 338, 8 S.

Ct. 1083, 32 L. Ed. 121 (1888)); Herrmann v. Cissna, 82 Wn.2d 1, 4-5, 507

P.2d 144 (1973) (quoting Wasteney v. Schott, 58 Ohio St. 410, 51 N.E. 34

(1898)). Thus, we have looked beyond simply whether the action is brought

in the name ofthe State to the character and nature of the action, examining

13
State v. LG Electronics, Inc., et al., No. 91263-7

whether an action is for the purpose of protecting the public interest.

Vinther, 176 Wash. at 393-96; Herrmann, 82 Wn.2d at 5-6; see Wash. State

Major League Baseball Stadium Pub. Facilities Dist. v. Huber, Hunt, &

Nichols-Kiewit Constr. Co., 165 Wn.2d 679, 202 P.3d 924 (2009).

LG Electronics argues that the nature and character of the State's .080

action is not for the purpose of protecting the public's interest within the

meaning ofRCW 4.16.160. They characterize the action as one enforcing a

private or individual right because the State seeks monetary restitution for

Washington consumers. See Suppl. Br. ofPet'rs at 11. But we have found

state action may be exempt from limitations periods even when identifiable

individuals may privately benefit from the state action. E.g., Vinther, 176

Wash. at 394-95; Herrmann, 82 Wn.2d at 5; see Wash. State Major League

Baseball Stadium, 165 Wn.2d at 697 ("The ... language in RCW 4.16.160 is

properly understood to refer to the character or nature of municipal conduct

rather than its effect." (citing Wash. Pub. Power Supply Sys. v. Gen. Elec.

Co., 113 Wn.2d 288, 293, 778 P.2d 1047 (1989))).

In Vinther and Herrmann, we rejected arguments that state actions

were subject to limitations periods merely because private individuals would

benefit. Instead, we looked primarily to the statutory provisions that

authorized the actions to determine whether they were for the benefit of the

14
State v. LG Electronics, Inc., et al., No. 91263-7

public generally, even if private individuals might benefit specifically. In

Vinther we considered whether the statute oflimitations ran against the State

in a suit to recover under workers' compensation laws. We turned to the

workers' compensation act's declaration of purpose, which provided, "'The

remedy of the workman has been uncertain, slow, and inadequate. Injuries in

such works, formerly occasional, have become frequent and inevitable. The

welfare of the state depends upon its industries, and even more upon the

welfare of its wage worker."' Vinther, 176 Wash. at 394 (quoting Rem.

Rev. Stat. § 7673). We concluded that "the act, as a whole, is the exercise of

a governmental function in the fullest sense of the word, having its support

in the police power of the state." Id. at 394-95. Thus the State was not

"merely suing in its own name for the benefit of private individuals-the

contributors to the accident fund," but rather was "acting in its sovereign

capacity in furtherance of its public policy." Id. at 393.

Subsequently, in Herrmann, we considered an action by the insurance

commissioner in his capacity as statutory rehabilitator of an insurer against

former officers and directors of the defunct insurer for losses due to

negligence or fraud. 82 Wn.2d at 1. We found that although the proceeds of

the commissioner's suit "will inure to the benefit of the company and its

policyholders," it was "obvious [] [that] the commissioner is not authorized

15
State v. LG Electronics, Inc., et al., No. 91263-7

to take over the rehabilitation of insurance companies solely for the benefit

of such companies, their shareholders, or policyholders." !d. at 5. Because

"[t]he legislature clearly had in mind, in enacting the insurance code, that

such actions on the part of the commissioner would benefit the public

generally," we rejected the contention that the suit was brought merely to

enforce a private right. !d.

Here, although consumers may benefit from restitution, the legislature

clearly intended for the attorney general's enforcement under .080 to benefit

the public generally. The CPA's purpose is to "protect the public and foster

fair and honest competition," RCW 19.86.920, and when the attorney

general brings a CPA action, "he acts for the benefit of the public," Lightfoot

v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d 88 (1976). "The Attorney

General's responsibility in bringing cases of this kind is to protect the public

from the kinds of business practices which are prohibited by the statute; it is

not to seek redress for private individuals." Seaboard Sur. Co. v. Ralph

Williams' Nw. Chrysler Plymouth, Inc., 81 Wn.2d 740, 746, 504 P.2d 1139

(1973). Just like administering workers' compensation and regulating

insurance, safeguarding the public by prohibiting business practices that

undermine fair and honest competition is well within the State's police

power.

16
State v. LG Electronics, Inc., et al., No. 91263-7

Petitioners argue there is nothing inherently sovereign about the

State's parens patriae action enforcing antitrust laws. Suppl. Br. ofPet'rs at

8-12. Petitioners rely on a federal case, California v. Frito-Lay, Inc., where

the Ninth Circuit concluded that the State of California did not meet federal

parens patriae standing requirements (which permit a state to sue in federal

court on behalf of its citizens to protect certain quasi -sovereign interests of

the state) to sue for treble damages for its citizen-consumers under the

federal Clayton Act. 474 F.2d 774, 777-78 (9th Cir. 1973). The petitioners

do not argue that the analysis of federal courts under the parens patriae

federal standing doctrine is coextensive with our inquiry about the character

and nature ofthe State's action under state law. Moreover, it appears that

federal law as it stands today recognizes that a "state's interest in preventing

harn1 to its citizens by antitrust violations is, indeed, a prime instance of the

interest that the parens patriae can vindicate by obtaining damages and/or an

injunction." In reIns. Antitrust Litig., 938 F.2d 919, 927 (9th Cir. 1991). In

considering state claims brought for violations of the Sherman Act, post-

Frito-Lay, the Ninth Circuit concluded it is well established

[t]hat a state as parens patriae may sue to redress a violation of
the antitrust laws ... Georgia v. Pennsylvania R. [R.] Co., 324 U.S.
439,450-51,65 S. Ct. 716, L. Ed. 1051 (1945) (conspiracy in
violation of antitrust laws is a wrong "of grave public concern in
which Georgia has an interest apart from that of particular individuals
who may be affected.") There must, of course, be antitrust injury for
17
State v. LG Electronics, Inc., et al., No. 91263-7

an injunction to be granted. Each state here asserts its "quasi-
sovereign interest in the health and well-being-both physical and
economic-of its residents in general." Alfred v. Snapp & Son, Inc. v.
Puerto Rico, 458 U.S. 592, 607, 102 S.Ct. 3260, 3269, 73 L.Ed.2d
995 (1982). That interest makes each state "more than a nominal
party." Jd.

Id. (citation omitted); see Nevada v. Bank ofAm. Corp., 672 F.3d 661, 670-

71 (9th Cir. 2012) (finding that the State ofNevada's parens patriae

consumer protection action was not removable from the state court under the

federal Class Action Fairness Act of2005, 28 U.S.C. §§ 1711-1715, because

the State of Nevada, rather than individual consumers, was the real party in

interest, noting that "Nevada brought this suit pursuant to its statutory

authority ... because of its interest in protecting the integrity of mortgage

loan servicing .... Nevada has been particularly hard-hit by the current

mortgage crisis, and has a specific, concrete interest in eliminating any

deceptive practices that may have contributed to its cause.") (citing Wash. v.

Chimei Innolux Corp., 659 F.3d 842 (9th Cir. 2011)). Petitioners provide no

support for their argument that the antitrust enforcement function must be

exclusively delegated to the State in order for us to find the State's action

arises from its sovereign powers.

We are not persuaded that by amending .080 in 2007 to provide the

attorney general may bring an action in the name of the State, "or as parens

patriae on behalf of persons residing in the state," the legislature intended to

18
State v. LG Electronics, Inc., et al., No. 91263-7

distinguish a parens patriae claim from one brought in the name of the State

for the purposes of excluding it from RCW 4.16.160. LAWS OF 2007, ch. 66

§ 1; Suppl. Br. ofPet'r at 4-5. Nor are we convinced that the legislature's

use of the words "on behalf ofpersons residing in the state" evinces the

legislature's acknowledgment that parens patriae restitution claims benefit

particular persons and not the state as a whole. RCW 19.86.080(1)

(emphasis added). Not only does reading this intent into the legislature's

word choice strain logic, but to resolve the case on such a basis would be at

odds with our approach which has been to probe the nature and character of

the action.

We find that under the specific provisions ofRCW 4.16.160, in the

absence of an express statute to the contrary, the attorney general's suit for

injunctive relief and restitution pursuant to .080 is immune from limitations

periods. Thus none of the general statutes of limitations in chapter 4.16

RCWapply.

CONCLUSION

We hold that when the attorney general enforces antitrust laws tmder

RCW 19.86.080, he or she acts "in the name of or for the benefit of the

state" within the meaning ofRCW 4.16.160. In the absence of an express

statute to the contrary, the State's action for injunctive relief and restitution

19
State v. LG Electronics, Inc., et al., No. 91263-7

pursuant to .080 is exempt from the statute oflimitations in RCW 19.86.120

and from the general statutes of limitations in chapter 4.16 RCW. We affirm

the courts below and remand to the trial court for further proceedings

consistent with this opinion.

20
State v. LG Electronics, Inc., et al., No. 91263-7

WE CONCUR:

fj~~,
_L :r{Jr/f"
I
I
-- '

21
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

No. 91263-7

GORDON McCLOUD, J. (concurring in part and dissenting in part)-The

Washington State Attorney General's Office filed this parens patriae action on May

1, 2012, over 17 years after the alleged CRT 1 price-fixing conspiracy began and over

four years after he learned about it. Clerk's Papers (CP) at 2, 26, 32 n.1, 58. He

filed it for the benefit of certain private parties: the millions of Washington residents

who indirectly purchased products (like televisions) with CRT components inside.

The complaint also references a handful of residents who directly purchased CRTs

unincorporated into a useable consumer product. CP at 1-2. The handful of direct

purchasers for whose benefit the State filed could not have brought this action

themselves: their claims for damages under RCW 19.86.090 were likely time barred

by RCW 19.86.120' s four-year statute of limitations. The main beneficiaries of this

action-the indirect purchasers-could not have filed this action for themselves

1CRTs (cathode ray tubes) are a form of display technology that was widely used in
televisions and computer monitors until the introduction of liquid crystal display (LCD)
and light-emitting diode (LED) displays.
1
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

either: their claims would face not only RCW 19.86.120's four-year time bar but

also the Consumer Protection Act's (CPA), chapter 19.86 RCW, bar on private

indirect purchaser claims. 2 In this case, we consider whether the State can

circumvent this statutory framework by bringing these otherwise time barred and

unauthorized indirect claims through a parens patriae action under RCW 19.86.080.

The statutory scheme compels us to answer no. I therefore respectfully dissent.

INTRODUCTION

Of the 24 jurisdictions that have authorized their attorneys general to bring

parens patriae actions, 3 18 jurisdictions expressly require that these claims be

commenced within four years of accrual. 4 Washington, Connecticut, Oregon, and

2 Compare RCW 19.86.080(3) (permitting the State to file claims on behalf of
private indirect purchasers), with RCW 19.86.090 (denying indirect purchasers the same
private right of action).

3 See 15 U.S.C. § 15c(a)(1); ALASKA STAT.§ 45.50.577(b); ARK. CODE ANN.§ 4-
75-315(b); CAL. Bus. & PROF. CODE§ 16760(a)(1); COLO. REV. STAT.§ 6-4-111(3)(a);
CONN. GEN. STAT. § 35-32; DEL. CODE ANN. tit. 6, § 2108(b); D.C. CODE§ 28-4507(b);
FLA. STAT. § 542.22(2); I-IAW. REV. STAT.§ 480-14(b); IDAHO CODE§ 48-108(2); 740 ILL.
COMP. STAT. 10 /7; Mo. CODE ANN., Commercial Law§ 11-209(b)(5); MASS. GEN. LAWS
ch. 93, § 9; NEV. REV. STAT.§ 598A.160(1); N.H. REV. STAT. ANN.§ 356:4-a(II); OKLA.
STAT. tit. 79, § 205(A)(1); OR. REV. STAT.§ 646.775(1)(a); 6 R.I. GEN. LAWS§ 6-36-12(a);
S.D. CODIFIED LAWS §§ 37-1-32, 37-1-14.2; UTAH CODE ANN. § 76-10-3108(1); VA.
CODE ANN.§ 59.1-9.15(d); RCW 19.86.080; W.VA. CODE§ 47-18-17(a).

4See 15 U.S.C. § 15b; ALASKA STAT. § 45.50.588; CAL. Bus & PROF. CODE §
16750.1; COLO. REV. STAT.§ 6-4-118(1); DEL. CODE ANN. tit. 6 § 2111; D.C. CODE§ 28-
4511(b); FLA. STAT. § 542.56(1); IDAHO CODE§ 48-115(1); 740 ILL. COMP. STAT. 10 /7;
MD. CODE ANN., Commercial Law§ 11-209(d)(l); MASS. GEN. LAWS ch. 93, § 13; NEV.

2
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

Virginia, however, lack such express time limits for parens patriae actions. The

certified questions 5 in this case ask us to determine whether parens patriae actions

brought under RCW 19.86.080 are subject to the same four-year statute of

limitations (of RCW 19.86.120) as private direct purchaser claims brought under

RCW 19.86.090, or are instead exempt from general statutes of limitations by

application ofRCW 4.16.160. See CP at 145.

I agree with the majority's conclusion that RCW 19.86.120's time bar is

inapplicable to RCW 19.86.080 claims. But I disagree with the majority's

conclusion that the legislature gave the attorney general the authority to circumvent

all statutes oflimitations by authorizing him or her to sue "as parens patriae on behalf

of persons residing in the state." RCW 19.86.080(1) (emphasis added). On the

contrary, it is well settled that the State cannot avoid statutory time bars by lending

REV. STAT. § 598A.220(2); N.H. REV. STAT. ANN. § 356:12(1); OKLA. STAT. tit. 79, §
205(C); 6 R.I. GEN. LAWS§ 6-36-23; S.D. CODIFIED LAWS§ 37-1-14.4; UTAH CODE ANN.
§ 76-10-3117(1); W.VA. CODE§ 47-18-11. But see ARK. CODE ANN.§ 4-75-320 (five
years); I-IA W. REV. STAT. § 480-14(b) (eight years).

5 The trial court certified two questions: "(1) Whether the four-year statute of
limitations under RCW 19.86.120 applies to the Washington[] Attorney General's
Complaint brought pursuant to its parens patriae authority under RCW 19.86.080 that
seeks actual damages for violations ofRCW 19.86.030? [and] (2) Whether RCW 4.16.160
should be applied to the Washington Attorney General's parens patriae antitrust lawsuit
seeking actual damages and restitution for citizens of Washington?" CP at 145. Notably,
the certified questions do not ask us to determine what statute of limitations would apply
in the instance we find, as I do, that neither RCW 19.86.120 nor RCW 4.16.160 apply.
3
State v. LG Elecs., Inc. eta!., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

its name to otherwise time-barred private claims. RCW 4.16.160, which exempts

the State from time limits on certain claims, is therefore limited to actions brought

"in the name or for the benefit of the state." This parens patriae action does not fall

into either category. It was brought under RCW 19.86.080, and that statute states

that parens patriae actions are not brought "in the name of the state" or "for the

benefit of the state," but to vindicate individual claims "on behalf of persons residing

in the state." I therefore agree with the majority's answer to the first certified

question: RCW 19.86.120's four-year time bar does not apply here. But I disagree

with its answer to the second certified question. I would hold that RCW 4.16.160's

exemption does not apply here, either.

ANALYSIS

Statutory interpretation is a question of law reviewed de novo. Jametsky v.

Olsen, 179 Wn.2d 756, 761-62, 317 P.3d 1003 (2014). "In construing a statute, our

paramount duty is to ascertain and give effect to the intent ofthe Legislature." Wash.

Pub. Power Supply Sys. v. Gen. Elec. Co., 113 Wn.2d 288,292,778 P.2d 1047

(1989) (citing Addleman v. Bd. of Prison Terms & Paroles, 107 Wn.2d 503, 509,

730 P.2d 1327 (1986)).

Where possible, we must give effect to the plain meaning of a statute as an

expression of legislative intent. Jametsky, 179 Wn.2d at 762. "[W]e do not look at

4
State v. LG Elecs., Inc. eta!., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

[the] words alone, but 'all [of] the terms and provisions of the act in relation to the

subject of the legislation, the nature of the act, [and] the general object to be

accomplished and consequences that would result from construing the particular

statute in one way or another."' BAC Home Loans Servicing, LP v. Fulbright, 180

Wn.2d 754, 766, 328 P.3d 895 (2014) (second and third alterations in original)

(internal quotation marks omitted) (quoting Burns v. City ofSeattle, 161 Wn.2d 129,

146, 164 P.3d 475 (2007)). We interpret a statute to give effect to all its language

and to leave no portion meaningless or superfluous. Citizens All. for Prop. Rights

Legal Fund v. San Juan County, 184 Wn.2d 428, 440, 359 P.3d 753 (2015). If we

find after examination that a statute is subject to more than one reasonable

interpretation, then we may use statutory construction, legislative history, and

relevant case law to help discern legislative intent. Jametsky, 179 Wn.2d at 762.

A. The Legislature Amended RCW 19.86.080 in 2007 To Allow the
Attorney General To Bring Parens Patriae Claims "On Behalf of
Persons Residing in the State"

The two certified questions before us involve the scope of the attorney

general's authority to bring parens patriae actions "on behalf of' others under RCW

19 .86.080(1 ). Some background regarding the development of parens patriae claims

is therefore necessary to interpret the key statutes at issue here.

5
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

RCW 19.86.080 was originally enacted in 1961. It authorized the attorney

general "to bring an action in the name of the state against any person to restrain and

prevent the doing of any act herein prohibited or declared to be unlawful" under the

CPA. LAWS OF 1961, ch. 216, § 8. Notably, at that time, the attorney general lacked

statutory parens patriae authority.

In 2007, the legislature amended the statute to allow the attorney general to

bring actions "in the name of the state, or as parens patriae on behalf of persons

residing in the state." LAWS OF 2007, ch. 66, § 1(1) (underlined language added by

2007 amendment). The legislature also authorized the trial court to "make such

additional orders or judgments as may be necessary to restore to any person in

interest any moneys or property, real or personal, which may have been acquired,

regardless of whether such person purchased or transacted for goods or services

directly with the defendant or indirectly through resellers." LAWS OF 2007, ch. 66,

§ 1(3). 6

The 2007 amendments served an important purpose. They were introduced

in the legislature at the behest of the attorney general. History of Bill: SB 5228,

app .leg. wa.govI dlrlbillsummary/default.aspx ?year=2007 &bill=5228

[https://perma.cc/19XB2-CHXQ]. That year, he was involved in a multistate action

6
This court's answers to the certified questions do not compel a trial court to award
restitution. RCW 19.86.080(3) leaves that decision to the discretion of the trial court.
6
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

against manufacturers of dynamic random access memory (DRAM), seeking

damages on behalf of indirect purchasers of DRAM products. State v. Infineon

Techs. AG, 531 F. Supp. 2d 1124 (N.D. Cal. 2007). The defendants moved to

dismiss these indirect purchaser claims on the ground that the statute precluded the

attorney general from seeking relief on behalf of indirect purchasers. I d. at 1140,

1151-54 (citing as the basis for this argument the United States Supreme Court's

decision in Illinois Brick Co. v. Illinois, 431 U.S. 720, 728, 97 S. Ct. 2061, 52 L. Ed.

2d 707 (1977), which held indirect purchaser claims were too attenuated to proceed

under federal antitrust law). The 2007 amendments addressed this argument: for the

first time, the legislature provided the attorney general with express statutory

authority to pursue claims on behalf of indirect purchasers under Washington law.

See, e.g., WASH. STATE HOUSE OF REPRESENTATIVES, OFFICE PROGRAM RESEARCH,

JUDICIARY COMM., SSB 5228, at 2, lawfilesext.leg.wa.gov/biennium/2007-

08/Pdf/Bill%20Reports/House/5228-S.HBA%2007 .pdf [https://perma.cc/7AD3-

GMMF] (H.R. REP. SSB 5228).

Notably, the legislature did not authorize indirect purchasers to bring private

claims under RCW 19.86.090 themselves. Private actions under RCW 19.86.090

therefore remained limited to direct purchasers only.

7
State v. LG Elecs., Inc. eta!., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

The legislature also declined to amend RCW 19.86.120's four-year statute of

limitations to include the attorney general's newly authorized indirect purchaser

claims. This absence of an express statute of limitations for RCW 19.86.080(1)

claims forms the basis of the two certified questions before us.

B. Question ]-Whether the four-year statute of limitations under RCW
19.86.120 applies to the Washington Attorney General's Complaint
brought pursuant to its parens patriae authority under RCW 19.86.080
that seeks actual damages for violations ofRCW 19. 86. 030?

I agree with the majority's conclusion that RCW 19.86.120's plain language

excludes RCW 19.86.080 claims. RCW 19.86.120 provides, in pertinent pa1i, that

"[a]ny action to enforce a claim for damages under RCW 19.86.090 shall be forever

barred unless commenced within four years after the cause of action accrues." RCW

19.86.120 is silent as to whether it applies to claims brought under RCW 19.86.080.

'"Where a statue specifically designates the things or classes of things upon which

it operates, an inference arises in law that all things or classes of things omitted from

it were intentionally omitted by the legislature under the maxim expression unis est

exclusion alterius-specific inclusions exclude implication. "'7 The legislature's

omission ofRCW 19.86.080 claims from RCW 19.86.120 indicates its intent that

RCW 19.86.120's time bar does not apply to RCW 19.86.080 claims.

7 EllensburgCement Prods., Inc. v. Kittitas County, 179 Wn.2d 737, 750, 317 P.3d
1037 (2014) (internal quotation marks omitted) (quoting Landmark Dev., Inc. v. City of
Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (1999)).
8
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

C. Question 2-Whether RCW 4.16.160 should be applied to the
Washington Attorney General's parens patriae antitrust lawsuit
seeking actual damages and restitution for citizens of Washington?

Although I agree with the majority that RCW 19.86.120 does not apply to

parens patriae actions brought under RCW 19.86.080, I do not agree that these

actions are exempt from all other statutes oflimitations by virtue ofRCW 4.16.160.

1. The Exemption from Statutory Time Limits in RCW 4.16.160 Is
Limited to Actions "Brought in the Name or For the Benefit of the
State"
Chapter 4.16 RCW prescribes general time limits within which civil actions

must be commenced. See RCW 4.16.005. Of particular interest here are two catchall

provisions, RCW 4.16.080(2) and RCW 4.16.130. RCW 4.16.080(2) requires

actions seeking recovery for "any other injury to the person or rights" to be filed

within three years, and RCW 4.16.130 requires "an action for relief not [otherwise]

provided for" to be filed within two years. RCW 4.16.160, however, exempts from

these time limits those "actions brought in the name or for the benefit of the state."

Notwithstanding that broad language, "RCW 4.16.160 ... has never been

literally followed." U.S. Oil & Ref Co. v. Dep 't of Ecology, 96 Wn.2d 85, 89, 633

P.2d 1329 (1981) (holding RCW 4.16.160 inapplicable to a claim by the State for

penalties/forfeitures because it is limited to remedial claims). Throughout the years,

we have recognized many situations in which RCW 4.16.160's exemption from time

bars does not apply. Id.
9
State v. LG Elecs., Inc. eta!., No. 91263-7
(Gordon McCloud, .T., concurring in par1Jdissenting in part)

Relevant to this case is the "well-founded" rule that the State cannot use RCW

4.16.160 to revive time-barred private actions. State v. Vinther, 176 Wash. 391, 393,

29 P.2d 693 (1934). As we have repeatedly explained, RCW 4.16.160 does not

apply "when the state is a mere formal plaintiff in a suit, [acting] not for the purpose

of asserting any public right or protecting any public interest, but merely to form a

conduit through which one private person can conduct litigation against another

private person." !d.; see also Hermann v. Cissna, 82 Wn.2d 1, 5, 507 P.2d 144

(1973).

For that reason, in actions brought by the State, our inquiry has focused on

"whether the state ... is acting in its sovereign capacity in furtherance of its public

policy, or merely suing in its own name for the benefit of private individuals." 8

8 In contrast, when the action involves a municipal act, "The principal test for
determining whether a municipal act involves a sovereign or proprietary function is
whether the act is for the common good or whether it is for the specific benefit or profit of
the corporate entity." Wash. State Major League Baseball Stadium Pub. Facilities Dist. v.
Huber, Hunt & Nichols-Kiewit Constr. Co., 165 Wn.2d 679, 687, 202 P.3d 924 (2009)
(citing Okeson v. City of Seattle, 150 Wn.2d 540, 550, 79 P.3d 1279 (2003)). We have
applied the exemptions of RCW 4.16.160 in cases where the municipality engages in
traditional state functions such as taxation, building schools, and maintaining public
recreational spaces as opposed to engaging in conduct traditionally left to the private sector.
Compare id. at 690-94 (constructing public baseball stadium); Bellevue Sch. Dist. No. 405
v. Brazier Constr. Co., 103 Wn.2d 111, 115-16,691 P.2d 178 (1984) (building schools);
Allis-Chambers Corp. v. City ofN. Bonneville, 113 Wn.2d 108, 112, 775 P.2d 953 (1989)
(collecting business and occupation taxes); City ofTacoma v. Hyster Co., 93 Wn.2d 815,
821, 613 P.2d 784 (1980) (same); Commercial Waterway Dist. No. 1 of King County v.
King County, 10 Wn.2d 474, 478-80, 117 P.2d 189 (1941) (purchasing property as part of
tax collecting duties); Gustaveson v. Dwyer, 78 Wash. 336, 337, 139 P. 194 (1914) (same),

10
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

Vinther, 176 Wash. at 393. The State undoubtedly acts in its sovereign capacity in

furtherance of public policy when it seeks to ensure the proper operation of the

government or to collect taxes and fees. See State ex rel. Carroll v. Bastian, 66

Wn.2d 546, 546-49, 403 P.2d 896 (1965) (unraveling an invalidly incorporated

municipality); State v. Miller, 32 Wn.2d 149, 151-56, 201 P.2d 136 (1948)

(preventing nepotism in governmental operations); State v. City of Aberdeen, 34

Wash. 61, 62-70, 74 P. 1022 (1904) (collecting liquor license fees).

However, when the State seeks to collect on private claims against private

entities for the benefit of private parties, the result is less clear as to whether such

cases are "for the benefit of the state" under RCW 4.16.160. This is because there

is always some conceivable public benefit (such as general deterrence) when the

State enforces its laws, regardless of whether the lawsuit is brought on its own

behalf or on behalf of others. Our decisions therefore look to the legislative intent

concerning each statute to determine whether it was designed primarily to further a

stated public policy or instead to secure private recovery. See Hermann, 80 Wn.2d

at 5-6 (policy of protecting public from deceptive insurance practices); Vinther, 176

aff'd on different grounds, 83 Wash. 303, 304-06, 145 P. 458 (1915), with Wash. Pub.
Power Supply Sys., 113 Wn.2d at 299-300 (operating electricity plant); Wash. State Major
League Baseball, 165 Wn.2d at 688-89 (operating water system (citing City ofMoses Lake
v. United States, 430 F. Supp. 2d 1164, 1171-78 (E.D. Wash. 2006))).
11
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

Wash. at 394 (policy of protecting health of state workforce through workers

compensation accident fund). Legislative intent is key.

11. The Legislature Expressly Excluded Parens Patriae Actions from the
Reach ofRCW 4.16.160's Exemption
We do not need to look any further than the plain language ofRCW 19.86.080

to determine whether the legislature intended parens patriae actions primarily to

further a public policy "for the benefit of the state," rather than primarily to secure

private recovery. The legislature has said it is for the latter purpose, not the former.

This is clear from the statute's language. RCW 19.86.080(1) authorizes the

attorney general to bring actions "in the name of the state, or as parens patriae."

(Emphasis added.) The legislature thus clearly distinguished the first type of

action-one brought in the name of the State-from the second type-one brought

by the State not in its own "name" but as "parens patriae." The legislature also

specified the beneficiaries of such parens patriae actions, and it's not the State: RCW

19.86.080(1) says that such parens patriae actions are brought "on behalf of persons

residing in the state" and that any recovery must go to these persons in interest whose

money or property were unlawfully acquired. RCW 19.86.080(3).

This distinctive language is more than just sep1antics. It reflects the

legislature's intent, as expressed in bill reports, that the parens patriae vehicle would

"allow[] the state to bring legal actions or seek remedies on behalf of individuals in

12
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

order to protect them from harm." H.R. REP. SSB 5228, supra, at 2 (emphasis

added). From this, it is clear that the legislature authorized the attorney general to

bring parens patriae actions under RCW 19.86.080 to protect individuals, not the

general public.

Because these actions are brought on behalf of and for the protection of

specific individuals, it logically follows that the legislature did not intend such

actions to be exempt from any time bar under RCW 4.16.160, especially when this

court has repeatedly said RCW 4.16.160 does not apply to actions where the State

acts as a mere conduit for private claims. See Hermann, 82 Wn.2d at 5; Vinther, 176

Wash. at 393; see also Pac. Nw. Bell Tel. Co. v. Dep 't of Revenue, 78 Wn.2d 961,

966, 481 P.2d 556 (1971) (holding the defendant could assert a statute oflimitations

defense against the State, notwithstanding the exemptions of RCW 4.16.160,

because the State's echeat claim was derivative of the underlying private

individual's claim against the defendant).

The majority relies on the CPA's general policy statement to support a

contrary conclusion. Majority at 16. But we have explicit, plain statutory language

in RCW 19.86.080 that applies specifically to parens patriae claims. 9 That specific

9
In light of the limited number of jurisdictions without an express statute of
limitation provision, the Superior Court of Connecticut's decision in Connecticut v.
Mobilia, Inc., No. 65134, 1983 WL 14950, at *1-2 (Super. Ct. Conn. June 3, 1983)

13
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

legislative directive controls over the more general policy statement. Of even more

concern is the unlikely results the majority's opinion produces. Under that opinion,

direct purchasers must bring their claims within four years; yet the attorney general

can revive these dead claims and even bring the far more attenuated indirect

purchaser claims at any time in perpetuity. The plain language ofRCW 19.86.080

avoids this irrational result.

Contrary to the majority's opinion, Hermann and Vinther do not compel a

different result. Majority at 14-16. They engaged in the same analysis that I use

here, namely, they asked whether the claims brought by the State were primarily to

benefit the State or primarily to benefit the individuals. Although they ruled that

those actions were primarily to benefit the State, they did so based on the language

and policies of the specific statutes at issue there. That language and those policies

showed that the main point of those statutes was to benefit the State. See Hermann,

82 Wn.2d at 5-7 (analyzing the legislative policy and statutory framework to

determine whether the legislature intended actions by the insurance commissioner

to be for the benefit of the general public); Vinther, 176 Wash. at 393-95 (analyzing

the legislative policy and statutory framework to determine whether the legislature

intended actions brought by the State pursuant to the Workers' Compensation Act,

(unpublished) appears to be the only analogous case, and it suffers from the same
interpretive flaw.
14
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

Title 51 RCW, to be in furtherance of some public policy rather than for the benefit

of private individuals). Not so here. As discussed above, RCW 19.86.080(1)

classifies parens patriae actions as brought "on behalf of persons residing in the

state" and distinguished them from actions brought "in the name of the state" or "for

the benefit of the state." RCW 4.16.160. This language resolves the issue addressed

in Hermann and Vinther, which was whether the legislature intended the action to

be one "for the benefit of the state" under RCW 4.16.160.

Thus, the legislative record and plain language ofRCW 19.86.080 shows that

the legislature did not intend to exempt parens patriae actions under RCW 19.86.080

from statutory time limitations. No further analysis is required.

111. We Have Never Characterized Parens Patriae Actions under RCW
19.86.080 as Actions for the Benefit of the State
The majority also quotes Seaboard Surety Co. v. Ralph Williams' Northwest

Chrysler Plymouth, Inc., 81 Wn.2d 740, 746, 504 P.2d 1139 (1973), in support of its

assertion that all RCW 19.86.080 claims are for the benefit of the state. Majority at

16. But that's not what Seaboard Surety said.

Seaboard Surety was decided in 1973, well before the legislature amended

RCW 19.86.080 in 2007 to include parens patriae actions. At that time, the attorney

general could sue only "in the name of the state" for injunctive relief, and not as

parens patriae for "persons residing in the state." Compare LAws OF 1970, 1st Ex.

15
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

Sess., ch. 26, § 1, with LAws OF 2007, ch. 66, § 1. This distinction was critical to

Seaboard Surety's reasoning. See Seaboard Sur., 81 Wn.2d at 746. The court

concluded that injunctive relief was the main focus of the attorney general's action

because at that time, the attorney general could bring only actions for injunctive

relief. Although the statute allows the trial court to award individual damages, a

claim for such damages could be sought only "incidental" to a suit for injunctive

relief and an award for damages was uncertain because it was subject to the court's

discretion. See id.; see also Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d

88 (1976) (quoting Seaboard Surety for same description); State v. Ralph Williams'

N.W Chrysler Plymouth, Inc., 82 Wn.2d 265,276, 510 P.2d 233 (1973) (quoting

same).

The statute is different now. The legislature altered this framework in 2007

when it authorized the attorney general to bring actions "as parens patriae on behalf

of persons residing in the state." LAWS OF 2007, ch. 66, § 1.

tv. The State Has Nothing to Gain from This Parens Patriae Action

Finally, even if the majority were correct that the legislature intended parens

patriae actions to further the CPA's goal "to protect the public and foster fair and

honest competition," RCW 19.86.920, it goes too far by concluding that this is the

16
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

main goal of every parens patriae case. Majority at 19-20. I would still find RCW

4.16.160 does not apply to the State's parens patriae claims in this case.

Just because a particular type of action can in some instances trigger the

exemptions ofRCW 4.16.160 does not mean that it always does. Whether it does

in a particular case depends on the governmental interest at stake. See United States

v. Beebe, 127 U.S. 338, 342, 8 S. Ct. 1083,32 L. Ed. 121 (1888) (recognizing that

in some instances, an action by the government to set aside a land patent could

involve a cognizable public interest). Beebe is a good example of when the State's

interest in a particular action is too attenuated to be considered for the benefit of the

government. See Hermann, 82 Wn.2d at 8; Vinther, 176 Wash. at 393.

In Beebe, the Supreme Court held that the government's action to set aside a

land patent was not exempt from the statutory time bar applicable to private claims,

even though the action was brought by the government. The reason was that the

government in that instance had no interest in the suit, had nothing to gain from the

relief prayed for, and had nothing to lose if the relief were denied. 127 U.S. at 346.

The government's lack of interest in the case was further shown by the fact that the

government was not involved in the management of the case. Id. at 347.

Here, as in Beebe, the State has no interest in the outcome of this case. There

is no ongoing public harm to correct because the underlying conspiracy became

17
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

technologically obsolete in 2007. The State has nothing to gain from the restitution

sought and nothing to lose if such relief were denied because it sought relief solely

"on behalf of persons residing in the state" and any restitution award must go to the

person in interest whose money or property was unlawfully acquired. RCW

19.86.080(1), (3).

Even if the State were to retain some of the moneys awarded as a result of

escheat, that would not alter the analysis: the State's escheat claim is derivative of

the underlying private claims and therefore subject to the same statute of limitations

as those private claims. See Dep 't of Revenue v. Puget Sound Power & Light Co.,

103 Wn.2d 501, 507, 694 P.2d 7 (1985) (not exempting the State's escheat claim for

abandoned utility deposits and dividends); Pac. Nw. Bell Tel.,78 Wn.2d at 966 (not

exempting the State's escheat claim for unclaimed property ). 10

CONCLUSION

RCW 19.86.080 expressly states that parens patriae actions brought under

RCW 19.86.080 are commenced on "behalf of persons residing in the state" to

protect them from harm. They are not brought "in the name of' or "for the benefit

10
Again, Hermann does not compel a different result. Unlike in Hermann, where
the State had an interest in protecting the integrity of the existing insurance system through
deterrence of potentially repetitive behavior, 82 Wn.2d at 7, here, there is no potential for
the alleged conspiracy to reoccur as CRTs are old technology.

18
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

of the state." The legislative reports concerning that statute's 2007 amendment

support this conclusion. I would therefore answer the certified questions as follows:

Neither RCW 19.86.120 nor RCW 4.16.160 apply to parens patriae actions brought

pursuant to RCW 19.86.080.

19
State v. LG Elecs., Inc. et al., No. 91263-7
(Gordon McCloud, J., concurring in part/dissenting in part)

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4015781. Public record. Not legal advice.