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Related Claims to Consider

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When first thinking about the need and feasibility of having independent businesses, as indirect purchasers file RPA 2(d)/2(e) actions in their nearest federal court (remember, federal courts have exclusive jurisdiction over such lawsuits), I thought that in most cases the action should be limited to the 2d/2e claims. Yet, my experience in drafting complaints over more than 40 years is that at the time that the complaint is being created I (and any other lawyer) tend to think about related claims that could be brought in addition. The purpose in part is to ensure that if the main claim fails for some technical reason there will be additional claims left providing all or part of the relief being sought.

Another reason is that there is a certain economy of scale, in that the additional claims can be made without any significant increase in costs or effort, usually. The one big exception to this is, of course, the 2(a) claim for price discrimination for a direct purchaser (assuming a direct purchaser is willing to sue its supplier for any of various possible claims). Another consideration is that the direct purchaser would probably not be suing its supplier (the manufacturer) unless the direct purchaser has finally been driven out of business.

With this in mind, I (or the local attorney working alone) would at least consider the possibility of adding one or more of the following related claims:

1. Section 2(a) claims of direct purchasers - see discussion above
2. Antitrust claims under state statutes - California has better statutes for this purpose than New York (Section 340 of the New York General Business Law, commonly known as the "Donnelley Act", a little Sherman Act for New York, but not a little RPA Act)
3. Robinson-Patman Act, Section 2(c), that prohibits certain types of commercial bribery and various state laws including California Business and Professional statute that make it illegal for someone to bribe an official or employee of a business, thereby causing the business to incur expenses without receiving the income relating to such expenses [The California statute is found at West's Ann. Cal. Bus. & Prof. Code § 17045]
4. Fraud and misrepresentation
5. Breach of contract - express
6. Breach of contract - implied
7. Breach of contract - implied in law
8. unjust enrichment
9. injunctive relief under state and federal law to prohibit further illegal conduct by the manufacturer
10. Breach of state statutes such as New York's General Business Law Section 349, outlawing fraud in consumer transactions (sometimes construed to give this claim to small businesses)
11. Breach of state statutes such as New York's General Business Law Section 350, outlawing false and deceptive advertising
12. State statutes (in some states, possibly) requiring prices to be the same for all consumers
13. State statutes and case doctrine prohibiting unfair competition - it is possible that some claims against a manufacturer can be made that its activities favoring major retailers are some type of violation of state or federal laws prohibiting unfair competition, particularly when the manufacturer acts in concert (as its agreements with the major retailers should show) with the favored competitors; also, it should be remembered that some state statutes may give a cause of action only to the state attorney general or a department of consumer affairs
14. RICO (federal anti-racketeering statute), although in most instances the use of such statute is not encouraged or suggested. This statute is easier to believe applicable from its wording than judges are willing to apply, and is generally considered overkill and excessive when used by an attorney. Yet, there are situations where its use would seem to be warranted, and I include the statute in this list for such reason.