State Ex Rel. Edmisten v. J. C. Penney Co.

233 S.E.2d 895, 292 N.C. 311, 1977 N.C. LEXIS 1092

Opinions

COPELAND, Justice.

The question before the court on this appeal is whether the activities of merchants attempting to collect funds allegedly owed them were intended to be, and constitutionally can be, subject to G.S. 75-1.1.

* The burden of proof on this issue falls upon the defendant who seeks to exempt himself from the statute’s embrace. G.S. 75-1.1 (d).

The statute, enacted by the legislature in 1969, provides in relevant part:

“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” G.S. 75-1.1 (a). (Emphasis supplied.)

Initially, the most striking aspect of the statutory language is its resemblance to Section 5(a)(1) of the Federal Trade Commission Act (hereinafter FTC Act) which provides as follows:

“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” 15 USC § 45(a) (1). (Emphasis supplied.)

The similarity in language was apparently not accidental. See Aycock, Antitrust and Unfair Trade Practice Law in North Carolina — Federal Law Compared, 50 N.C. L. Rev. 199, 246 (1972) [hereinafter cited as Aycock] ; Morgan, The People’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest Intra. L. Rev. 1, 18 (1969) [hereinafter cited as Morgan] ; Comment, Consumer Protection and Unfair Competition in North Carolina — The 1969 Legislation, 48 N.C. L. Rev. 896 (1970) [hereinafter cited as Comment]. Consequently, we have said that the federal decisions construing the FTC Act, may furnish some guidance to the meaning of G.S. 75-1.1. Hardy v. Toler, 288 N.C. 303, 218 S.E. 2d 342 (1975).

No protracted analysis of dictionary and judicial definitions is needed to arrive at the conclusion that at least one definition of the word “commerce,” which appears in both acts, is expansive enough to encompass all business activities, including the collection of debts. Indeed, the Federal Trade Commission (hereinafter FTC) and the federal courts construing the FTC Act have so held. See, e.g., Spiegel, Inc. v. FTC, 540 F. 2d 287 (7th Cir. 1976) ; Floersheim v. FTC, 411 F. 2d 874 (9th Cir. 1969), cert. denied, 396 U.S. 1002, 24 L.Ed. 2d 494, 90 S.Ct. 551; Slough v. FTC, 396 F. 2d 870 (5th Cir. 1968), cert. denied, 393 U.S. 980, 21 L.Ed. 2d 440, 89 S.Ct. 448; In re Floersheim, 316 F. 2d 423 (9th Cir. 1963); Mohr v. FTC, 272 F. 2d 401 (9th Cir. 1959), cert. denied, 362 U.S. 920, 4 L.Ed. 2d 739, 80 S.Ct. 672; William H. Wise Co. v. FTC, 246 F. 2d 702 (D.C. Cir. 1957), cert. denied, 355 U.S. 856, 2 L.Ed. 2d 64, 78 S.Ct. 84; Dejay Stores v. FTC, 200 F. 2d 865 (2d Cir. 1952); Bernstein v. FTC, 200 F. 2d 404 (9th Cir. 1952); Bennett v. FTC, 200 F. 2d 362 (D.C. Cir. 1952) ; Rothschild v. FTC, 200 F. 2d 39 (7th Cir. 1952), cert. denied, 345 U.S. 941, 97 L.Ed. 1367, 73 S.Ct. 832; Silverman v. FTC, 145 F. 2d 751 (9th Cir. 1944) (all of the cases cited involved abuses in the collection of credit accounts by creditors, collection agencies, or companies selling “skip tracing” forms to creditors or collection agents).

“Commerce” under federal decisions “is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms. . . .” Welton v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347, 349 (1876) ; accord, Adair v. United States, 208 U.S. 161, 177, 52 L.Ed. 436, 443, 28 S.Ct. 277, 281 (1908); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90, 6 L.Ed. 23, 68 (1824). The federal courts have properly assigned the broadest possible definition to the word “commerce,” since in defining the word, they define the limits of federal power to regulate activities under the commerce clause. U. S. Const, art. 1, § 8, cl. 3.

The federal court decisions, however, are not controlling in construing the North Carolina Act. See Horton v. Gulledge, 277 N.C. 353, 177 S.E. 2d 885 (1970). Unlike other state trade regulation statutes, G.S. 75-1.1 does not require or direct reference to the FTC Act for its interpretation. See Ariz. Rev. Stat. Ann. § 44-1522B (West 1967) ; Conn. Gen. Stat. Ann. § 42-110b (b) and (c) (West Cum. Supp. 1977) ; Fla. Stat. Ann. § 501.204(2) (West Cum. Supp. 1977) ; Idaho Code § 48-604, -618 (Cum. Supp. 1976) ; Ill. Ann. Stat. ch. 121 1/2, § 262 (Smith-Hurd Cum. Supp. 1977); Me. Rev. Stat. Ann. tit. 5, § 207 (West Supp. 1973) ; Mass. Gen. Laws Ann. ch. 93A, § 2 (b) and (c) (West 1972); Mont. Rev. Codes Ann. § 85-403 (Cum. Supp. 1975); N.M. Stat. Ann. § 49-15-3 (Supp. 1975) ; S.C. Code § 66-71.1 (b) (Cum. Supp. 1975) ; Tex. Bus. & Com. Code Ann. tit. 2, §§ 17.46(c), 17.49(b) (Vernon Cum. Supp. 1976-77); Vt. Stat. Ann. tit. 9, § 2453 (b) and (c) (1970). Moreover, by modifying the language borrowed from the federal act, the North Carolina legislature must have intended to alter its meaning to some extent.

“[W]ords used in the statute must be given their natural or ordinary meaning.” Seminary, Inc. v. Wake County, 251 N.C. 775, 782, 112 S.E. 2d 528, 533 (1960). By inserting the word “trade” in G.S. 75-1.1, which has a narrower meaning than the word “commerce,” we believe the legislature signaled its intent to limit the otherwise broad definition of “commerce” obtained under federal decisions. Debt collection activities are “not trade in the ordinary sense” although they could be considered “a species of commerce.” Bernstein v. FTC, supra, 200 F. 2d at 405. The use of the word “trade” interchangeably with the word “commerce” indicates that a narrower definition of commerce which comprehends an exchange of some type was intended.

Just as in one sense the word “trade” has a limiting effect on the word “commerce,” in another sense the word “commerce” enlarges the meaning of the word “trade.” The two words, when used in conjunction, “include practically every business occupation carried on for subsistence or profit, and into which the elements of bargain and sale, barter, exchange, or traffic, enter.” Black’s Law Dictionary (4th Ed. 1968). Thus, a host of occupations would be covered by G.S. 75-1.1 that would not be subject to a statute which relied exclusively on the word “trade.” See Comment, supra, 48 N.C. L. Rev. at 905-6.

We believe the unfair and deceptive acts and practices forbidden by G.S. 75-1.1 (a) are those involved in the bargain, sale, barter, exchange or traffic. We are reinforced in this view by G.S. 75-1.1 (b), a declaration of legislative intent having no counterpart in the federal act. G.S. 75-1.1 (b) states:

“The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State; to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.” (Emphasis supplied.)

The General Assembly, thus, is concerned with openness and fairness in those activities which characterize a party as a “seller.” Debt collection is not an activity necessarily typical of nor unique to sellers. It is rather an activity descriptive of creditors. An individual or a company may conduct the activities of both seller and creditor, as does J. C. Penney Co., but it is only those activities surrounding the “sale” that are regulated by G.S. 75-1.1.

Also, bolstering our view of the legislature’s intent is G.S. 75-15.1, a companion enforcement provision to G.S. 75-1.1. G.S. 75-15.1 provides that:

“In any suit instituted by the Attorney General to enjoin a practice alleged to violate G.S. 75-1.1, the presiding judge may, upon a final determination of the cause, order the restoration of any moneys or property and the cancellation of any contract obtained by the defendant as a result of such violation. (Emphasis added.)

Inherent in this remedy is the intent to prohibit only unfair and deceptive practices affecting sales. If the legislature had intended to cover the acts alleged in this suit, we believe it would have provided for the rescission of contracts not only where the contract is obtained as a result of a violation, but also where a violation occurs which is unrelated to the contract’s formation.

Another factor bearing on our decision in this case is contemporary literature on the subject. Strictly speaking, North Carolina has no documented legislative history. However, the then Attorney General, Robert Morgan, was instrumental in the enactment of G.S. 75-1.1, Aycock, supra, 50 N.C. L. Rev. at 207, and his views on the effect of the statute were expressed in a contemporaneous article. Morgan, supra, 6 Wake Forest Intra. L. Rev. at 18. The entire tone of the article suggests that the Attorney General was concerned about “consumer fraud” in securing passage of the new legislation. He catalogued those practices which he envisioned would be covered by G.S. 75-1.1 as follows:

“Cases involving unfair or deceptive practices include false advertising, misnaming and misrepresentation, misleading trade or products names, simulation of well known products or trade names, ‘free’ goods, deceptive nondisclosure (such as failure to reveal abridgement, condensation or title change of books and literary articles), false disparagement of competing products, misrepresentation of business status or connections, misuse of the term ‘guarantee,’ misuse of ‘seals of approval,’ fraudulent sales schemes, deceptive pricing and lottery merchandising.” Morgan, swpra, 6 Wake Forest Intra. L. Rev. at 20.

While Attorney General Morgan’s list was obviously not intended to be all inclusive, we think it significant not only that debt collection practices were not included, but also that no unfair or deceptive practices unrelated to the sale were mentioned. Likewise, other contemporary commentators failed to address practices unrelated to the sale in their discussions of the scope of G.S. 75-1.1. See Aycock, supra, 50 N.C. L. Rev. 199; Comment, supra, 48 N.C. L. Rev. 896. Thus, it appears most likely that either the legislature did not intend to cover debt collection practices in G.S. 75-1.1, or that it did not consider the question of the statute’s application to this area. For policy reasons discussed infra, we believe the subject deserves careful consideration by the legislature and a clear statement of intent before these practices are regulated under G.S. 75-1.1.

We note also that the North Carolina Legislature has in the past specifically exempted the collection activities of certain creditors, including this defendant, from specific regulation. G.S. 66-41 to -49 provides for the licensing and regulation of collection agencies. Under the act, “collection agency” does not include “ [r] egular employees of a single creditor.” G.S. § 66-42. In addition, the General Assembly, in enacting detailed legislation to govern retail installment sales, left debt collection activities unregulated. Retail Installment Sales Act, G.S. 25A-1 to -45. Under such circumstances we think it inappropriate, in the absence of a clear legislative mandate, for this Court to extend regulation to debt collection activities by a broad reading of the very general language of G.S. 75-1.1.

The State and the defendant both call our attention to various rules of construction that they deem controlling. Defendant contends the statute is penal in nature and, thus, must be strictly construed. Chadwick v. Salter, 254 N.C. 389, 119 S.E. 2d 158 (1961). The State, on the other hand, insists the statute is remedial and must, therefore, be broadly construed. Morris v. Staton, 44 N.C. 464 (1853). We find neither of these views persuasive.

“[T]he distinction between a remedial and penal statute necessarily lies in the fact that the latter is prosecuted for the sole purpose of punishment, and to deter others from acting in a like manner. A remedial statute, of course, is for the purpose of adjusting the rights of the parties as between themselves in respect to the wrong alleged.” 3 Sutherland, Statutes and Statutory Construction § 60.03 (4th Ed. C. D. Sands, 1974), citing, School Dist. of Omaha v. Adams, 147 Neb. 1060, 26 N.W. 2d (1947) [hereinafter cited as Sutherland].

While the FTC Act has been held to be remedial, Sears, Roebuck & Co. v. FTC, 258 F. 307, 311 (7th Cir. 1919), the North Carolina statute appears to be a hybrid. See Sutherland, supra at § 60.04. It is not criminal, G.S. 75-7. But a statute which imposes treble damages can hardly be said to be designed exclusively “for the purpose of adjusting the rights of the parties as between themselves.” See Hardy v. Toler, supra at 312, 218 S.E. 2d at 348 (Huskins, J., concurring).

Another state supreme court has held, in construing statutory language identical to that of G.S. 75-1.1 (a), that only acts or practices “designed to effect a sale” are covered. Johnston v. Beneficial Management Corp., 85 Wash. 2d 637, 538 P. 2d 510 (1975). The State’s brief cites us to two trial courts that reached a contrary result in construing state statutes having language distinguishable from that of G.S. 75-1.1. Garland v. Mobil Oil Corp., 340 F. Supp. 1095 (N.D. Ill. 1972) ; Liggins v. May Co., 44 Ohio Misc. 81, 337 N.E. 2d 816 (1975).

While the federal court decisions extending the FTC Act to debt collection activities appear proper in the context of the federal regulatory scheme, we question the appropriateness of such an extension under the North Carolina framework, which is in many ways unique. By choosing to incorporate G.S. 75-1.1 into Chapter 75 of the General Statutes, the State’s general antitrust laws section, the General Assembly provided the new provision with characteristics of enforcement and procedure unparalleled by either the FTC Act or the consumer protection acts of other states. Comment, supra, 48 N.C. L. Rev. at 899-90. Under the FTC Act a private party may not bring an action against an alleged violator. The Federal Trade Commission alone is charged with enforcement responsibility. Holloway v. Bristol-Myers Corp., 485 F. 2d 986 (D.C. Cir. 1973). By contrast, North Carolina statutes not only provide a private right of action to a person claiming an injury as a result of a violation of G.S. 75-1.1, but the successful claimant is entitled to treble damages and may be awarded attorney’s fees. G.S. 75-16, -16.1. Presumably, a class action is also permissible under our statutes. As noted previously, in a suit by the Attorney General to enforce G.S. 75-1.1, the court may order restoration of money or property and cancellation of contracts obtained as a result of the violation. G.S. 75-15.1. The FTC was not given the power to seek these remedies until adoption of the Magnuson-Moss Act of 1974 and then, only under limited circumstances. 15 U.S.C. § 57b.

Our holding that debt collection activities are not within the purview of G.S. 75-1.1 dispenses with the need to resolve constitutional challenges to the statute raised by this defendant. Obviously if we have not properly interpreted G.S. 75-1.1, our General Assembly may amend the statute.

The Court of Appeals is

Reversed.

Ironically, this suit would not have arisen had the successors to Mr. James Cash Penney followed the teachings of the company’s founder concerning the acceptance of cash sales only! As time passed, competition apparently required that credit be extended for sales made. J. Penney, Fifty Years with the Golden Rule 52, 102 (1950).