Third-party consumer cause of action found viable under Massachusettts little FTC Act, without repealer law. AAI thanked for consulting advice

Feb 26 2002
Testimony and Interventions

The AAI frequently provides advice to consumer and public interest groups that have questions about antitrust. Here is a letter we received recently.

Professor Lande - You may remember that we previously corresponded concerning a case raising the question whether indirect purchasers could sue for antitrust injury in Massachusetts. I write to tell you that the Supreme Judicial Court has issued a decision in the case. See Ciardi v. F. Hoffmann-LaRoche Ltd., 2002 Mass. LEXIS 74. In a 4-3 decision, the Court agreed with us that indirect purchasers have a cause of action under the Massachusetts little-FTC Act, even though they have no cause of action under the Massachusetts Antitrust Act. The Court went on to say that upon a finding of liability at trial, even if plaintiffs could not establish actual damages, they would be entitled to statutory damages of $25 per person. In a case such as this, where actual damages (even if proved) are not large, that decision is very significant. The decision is interesting because the Court notes that a substantial majority of states have responded to Illinois Brick by passing indirect purchaser statutes; and because the dissent acknowledges that the Illinois Brick decision has received much criticism. Thank you for your help earlier on.

Ed Rapacki Ellis & Rapacki LLP Boston, MA 02114