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No private remedy for damages exists in Pennsylvania for antitrust violations, a Philadelphia Common Pleas Court judge has ruled, dismissing several claims of charges surrounding alleged vitamin price-fixing in a class action complaint. “In light of the history of antitrust common law in Pennsylvania, the lack of any precedent recognizing a private cause of action for damages sustained as a result of antitrust activities and the unsuccessful legislative attempts to create such a cause of action, this court feels that it is not the place of a court of common pleas to allow a plaintiff to proceed on the claim at issue,” Judge Stephen E. Levin wrote in XF Enterprises Inc. v. BASF Corp. Edward W. Madeira of Philadelphia’s Pepper Hamilton attorney defended the case and said the decision is significant because he said he thinks this is the first time a Pennsylvania judicial opinion asserts that there is no private cause of action for monetary recovery for an alleged antitrust violation. Timothy C. Russell of Philadelphia-based Spector Gadon & Rosen filed the suit on behalf of the potential class members. Russell did not return a call seeking comment. The case accuses 18 vitamin manufacturers and distributors of defrauding and misleading customers by fixing and controlling vitamin prices. The vitamins at issue include vitamins A, B complex, C, D, E, H and several others used commonly to fortify foods and as an additive in animal feeds. In May 1999, the U.S. Department of Justice announced that a number of companies, including affiliates of two of the defendant companies in the Philadelphia case, had pleaded guilty to price-fixing. Madeira said plaintiff company XF Enterprises Inc. had opted out of the federal litigation. The suit, which has not yet been certified as a class action, alleges five counts against the vitamin companies, including violation of Pennsylvania antitrust laws, violation of the Unfair Trade Practices and Consumer Protection Law, civil conspiracy, fraud and negligent misrepresentation. The potential class consists of people or entities who purchased vitamins directly from the vitamin companies or their “co-conspirators” from Jan. 1, 1988, to the present. The defendant vitamin companies filed preliminary objections to all five counts in the complaint. Defendants argued that the court should dismiss the claim for violation of Pennsylvania’s antitrust laws because no court has recognized such a claim. While the plaintiffs agreed that there has yet to be a case where a plaintiff has recovered money from an antitrust violation claim, the reason for that, they said, is that “the right case has not yet presented itself.” “No court to date has held that a private remedy is available for damages under Pennsylvania’s common law on antitrust violations,” Levin wrote. “The federal Sherman Act, a codification of the common law of antitrust, additionally provides for liability damages. Pennsylvania has no legislation which provides for these damages.” Levin sided with the defendants and said he could not create a claim where the Legislature has not drafted one into law. “Without legislation similar to the [federal] Sherman Act’s, Pennsylvania common law lacks the damage provision necessary to give Pennsylvanians the cause of action which plaintiff seeks here,” Levin wrote. “The legislators of our state have not passed such an act, however, it is not for lack of effort,” Levin wrote. “There have been 13 antitrust bills introduced in the General Assembly since 1987. Any one of these bills, if made law, would have provided the private right of action which plaintiffs now suggest this court should recognize.” Accordingly, the court granted the objection to the antitrust violation claim. Defendants next argued that the civil conspiracy claim should be dismissed as well, because if the court were to find no cause of action for an alleged antitrust violation, the court could not find conspiracy to commit said violation. The potential class representative countered that if no cause of action for damages existed, there could at least be a cause of action for an injunction. The court, however, disagreed. “The injunction is an equitable remedy which should not support any cause of action beyond the equitable relief which it may provide,” Levin wrote. “To allow the plaintiff to use a claim of civil conspiracy as a means of collecting damages which are not allowable by Pennsylvania’s antitrust law, as discussed above, is clearly not a proper use of the conspiracy claim and can only lead to mischief.” The court noted that the plaintiff filed a praecipe to dismiss the UTPCPL claim. Levin denied the defendants’ objections to the fraud and negligent misrepresentation claims.

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