In this case NELF challenged the ability of indirect purchasers to sue for antitrust violations under the state Consumer Protection Act. Indirect purchasers of a product cannot state a claim under the Massachusetts Antitrust Act. In this case of alleged price-fixing, the Superior Court concluded that indirect purchasers may, however, pursue the identical antitrust claim under the Consumer Protection Act, Chapter 93A. In its decision, the Superior Court reasoned that price fixing is an unfair method of competition prohibited by Chapter 93A. Since the Legislature removed the privity requirement for consumer suits in 1979, without making any reference to the Antitrust Act, the Court concluded that the Legislature intended to permit consumers to assert antitrust claims under Chapter 93A.
NELF’s amicus brief argued that the Massachusetts Antitrust Act requires that the Act be construed in accordance with federal antitrust law. A Supreme Court case, Illinois Brick, prohibits indirect purchasers antitrust suits. Illinois Brick’s prohibition of indirect purchaser suits was based on policy considerations: avoiding multiple liability, avoiding the additional complexity that would be injected into already complex antitrust litigation, and encouraging effective enforcement of the antitrust laws. NELF argued that the Massachusetts legislature made the same policy choices in 1978 when it revised the Antitrust Act and incorporated Illinois Brick and thus is was highly unlikely that, without discussion, the legislature made diametrically opposed policy decisions a year later when it amended Chapter 93A. In a recent decision the SJC held that Chapter 93A did permit indirect purchaser suits.