Wal-Mart Stores, Inc. v. American Drugs, Inc.

891 S.W.2d 30, 319 Ark. 214, 1995 Ark. LEXIS 1, 1995 WL 9764

• Court: Supreme Court of Arkansas
• Decided: January 9, 1995
• Docket: 94-235
• Status: Published

Opinions

Robert L. Brown, Justice.

Appellant Wal-Mart Stores, Inc. appeals from an order of the chancery court enjoining it from engaging in below-cost sales and assessing damages against it for violation of the Arkansas Unfair Practices Act. Wal-Mart argues on appeal: (1) that the chancery court erred as a matter of law in finding that it sold products below cost for the purpose of injuring competitors and destroying competition; (2) that the chancery court erred in considering individual articles to determine cost and profit rather than the entire product lines, or “market basket;” and (3) that the chancery court’s interpretation of the Arkansas Unfair Trade Practices Act violates the Arkansas Constitution and the United States Constitution. We agree with Wal-Mart on the first point raised, and we reverse and dismiss.

This case deals with the Conway Wal-Mart store located in Faulkner County. The appellees in this case, American Drugs, Inc., Tim Benton d/b/a Mayflower Family Pharmacy,¹ and Jim Hendrickson d/b/a Baker Drug, brought suit in circuit court against Wal-Mart for violation of the Arkansas Unfair Practices Act, codified at Ark. Code Ann. § 4-75-201, etseq. (Repl. 1991). Specifically, they contended that Wal-Mart was selling individual items below cost for the purpose of injuring competitors and destroying competition in violation of § 4-75-209(a)(l) of the Act. They sought injunctive relief and damages. The appellee drug stores moved for summary judgment, and Wal-Mart did likewise. The matter was transferred to chancery court, and that court found that a violation of the Act had occurred due to below-cost sales. It then enjoined Wal-Mart from selling articles below cost at the Conway store and further found that the appellees had been damaged in the amount of $42,407 (American Drug), $33,767 (Baker Drug), and $20,295 (Mayflower Family Pharmacy). The chancery court trebled the damages as a penalty.

In its order granting relief to the appellee drug stores, the chancery court made these findings of fact:

• that retail sales of pharmaceuticals and health and beauty aids had expanded during a period of strong commercial growth in Faulkner County and had almost doubled from 1988 to 1990 — from $5,184,000 in 1988 to $9,897,000 in 1990;

• that the number of pharmacies in Faulkner County had also increased from five in 1967 to twelve in 1981 to fourteen in 1992 and that Conway Wal-Mart began selling prescription drugs in 1987;

• that other large outlets for the same products in Faulkner County and additional competitors of the appellee drug stores were Kroger, Flarvest Foods, and Fred’s;

• that the prices for the relevant product lines at issue were slightly higher in the Little Rock Wal-Mart stores and substantially lower in the Clinton and Flippin WalMart stores;

• that Wal-Mart determined the “everyday price” for its products at its headquarters in Bentonville, that store managers could not raise the price for a product above that set price, but that store managers could lower prices after monitoring prices charged by competitors in the market area without regard to the cost to WalMart of individual items;

• that the lowered price “is frequently below Wal-Mart’s cost of acquiring some of these products in highly competitive markets,” and that this had occurred at the Conway Wal-Mart;

• that the store had advertised individual items for sale below Wal-Mart’s acquisition cost;

• that Conway Wal-Mart had displayed a “scorecard” at the front of its store comparing its prices on certain items with local retailers like the appellee drug stores;

• that Wal-Mart’s stated policy in this regard was to “meet or beat” retail prices of competitors, to maintain “low-price” leadership in the local marketplace, and to “attract a disproportionate number of customers into a store to increase traffic;”

• that by generating traffic, Wal-Mart could engender sales of other items which would offset losses from sales of below cost items; and

• that Conway Wal-Mart’s overall product line for pharmaceuticals and health and beauty aids was sold above cost, and its pharmacy was profitable.

The chancery court then stated: “[T]here is no direct evidence that the purpose of Wal-Mart’s pricing policy or Conway Wal-Mart’s implementation of the policy is to injure competitors or to destroy competition. However, such purposes may be inferred from the stated policy, the effects of the stated policy and other circumstantial evidence.” The court found that the appellee drug stores had lost sales to Conway Wal-Mart due to the below-cost policy, and that the growth in sales and profits for those drug stores had substantially decreased.

Though not included in the chancery court’s findings, there was also testimony from the owner of Baker Drug that its gross profits were $324,000 in 1988 and $341,000 in 1992. The owner of Mayflower Family Pharmacy testified that his net profits had been reduced since 1990 when the store realized $120,000 in net profits but that for the first six months of 1993, net profits for the store were about $40,000. According to certified public accountant Stephen Humphries, who testified for Wal-Mart, American Drugs showed an increase in drug sales from 1987 to 1990, then in the 1991-1992 period the sales were “flat,” but in “annualizing” the sales for. 1993, the sales increased again.

The crux of the court’s order follows:

The Court finds that purpose to injure competitors and destroy competition cannot be inferred from below cost advertising and sales alone. There must be other proof of intent or purpose. A person’s purpose or intent, being a state of mind, ordinarily cannot be proven by direct evidence, but may be inferred from other circumstances. Alford v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991).

The Court finds from the following circumstances that Conway Wal-Mart advertised and sold pharmaceutical and health and beauty products below cost for the purpose of injuring competitors and destroying competition:

1. The number and frequency of below cost sales.

2. The extent of below costs sales.

3. Wal-Mart’s stated pricing policy — “meet or beat the competition without regard to cost.”

4. Wal-Mart’s stated purpose of below cost sales — to attract a disproportionate number of customers to WalMart.

5. The in-store price comparison of products sold by competitors, including Plaintiffs.

6. The disparity in prices between Faulkner County prices of the relevant product-lines and other markets with more and less competition.

The chancery court then granted the injunction against below-cost sales. The chancellor also assessed treble damages as a penalty as described above. See M.L. Sigmon Forest Products, Inc. v. Scroggins, 250 Ark. 385, 465 S.W.2d 673 (1971).

All parties agree that this case turns on the interpretation of § 4-75-209(a)(l) of the Arkansas Unfair Practices Act, which reads in part:

It shall be unlawful for any . . . corporation . . . engaged in business within this state, to sell, offer for sale, or advertise for sale any article or product ... at less than cost thereof to the vendor ... for the purpose of injuring competitors and destroying competition.

As the chancery court correctly pointed out, this statute is penal in nature and must be strictly construed in favor of those upon whom the burden of the penalty is sought to be imposed, in this case Wal-Mart. See Beam Bros. Contractors v. Monsanto Co., Inc., 259 Ark. 253, 532 S.W.2d 175 (1976); Davis v. Fowler, 230 Ark. 39, 320 S.W.2d 938 (1959). The chancery court also was correct in stating that for a violation to occur under § 4-75-209(a)(l), below-cost sales must be made for the purpose of destroying competition. The court found an inference of this purpose predicated on the aforementioned six circumstances.

In analyzing the six factors which led to the chancery court’s inference of specific intent, the first four circumstances relate to below-cost sales. However, § 4-75-209(a)(l) is clear that mere proof of below-cost sales is not sufficient to prove a violation of the Act. The chancery court agreed with this but found an intent to destroy competition based on the extent, frequency, and number of those sales. Despite this finding, the court fails to present details of Wal-Mart’s practice regarding specific articles which led to a violation of § 4-75-209(a)(l). The individual items sold below cost, the frequency of those sales, the duration of those sales, and the extent of such sales are not revealed in the chancery court’s opinion. And that is a critical point in this case.

We do know from the testimony of Michael .Bess, the pharmacist at Conway Wal-Mart, that he did not consider the appellee drug stores to be competitors for prescription drugs and pharmaceuticals. Bess, who was called as a principal witness by the appellee drug stores, testified that the appellees were not the competition but that Fred’s, Kroger, and Aleo were because those were the chain stores. Bess was responsible for 2,500 items in the pharmacy. Of those items, he routinely determined the 100 most popular articles, checked Fred’s and Kroger and Aleo to ascertain their prices on the maintenance drugs, which were the repeat prescriptions, and then tried to beat those prices. Included within the 100 items would generally be 30 to 40 maintenance drags like Dilantin or Tagamet, which were placed on a competition list. When asked how many drugs on the competition list were sold below cost, he answered: “Very few. It depends on the competition price.” He did add that on one day — March 24, 1990 — the items on the competition list represented 29 percent of his business and that on that day there was a loss in total sales of those items. He concluded, however, that this could have been attributable to multiple sales of one or two below-cost items. The chancery court did find that the pharmacy at Conway Wal-Mart was profitable as a whole.

We discern no proof in the record of this case that Wal-Mart specifically intended to destroy competition with regard to any one article like Crest Toothpaste or Bayer Aspirin or Dilantin by selling below cost for a sustained period of time. What is evidenced is that Wal-Mart regularly would sell varying items below cost as loss leaders to entice people into its store and increase traffic. The loss-leader items would change on a regular basis. That strategy of selling below the competitors’ price and even below Wal-Mart’s own cost, which Wal-Mart admits to, is markedly different from a sustained effort to destroy competition in one article by selling below cost over a prolonged period of time. Our statute — § 4-75-209(a)(l) — does not make loss leaders illegal, and for that reason the chancery court erred in inferring a purpose to destroy competition from a loss-leader strategy.

We observe further that if the chancery court’s statutory interpretation was correct, any business using the loss-leader approach to attract customers on a regular basis would be in violation of the Act. That kind of expansive interpretation runs directly counter to our oft-stated policy of strict construction of penal statutes in favor of those upon whom the burden will fall. See Beam Bros. Contractors v. Monsanto Co., Inc., supra. Our statute plainly does not contemplate a prima facie case of predation based on loss-leader sales, and we are not willing to invalidate, and indeed render illegal, the technique of using loss-leader products or services without a clear directive from the General Assembly that that is now the public policy of the State of Arkansas.

The chancery court also referenced two additional circumstances which it determined contributed to an inference of purposeful intent:

1. The in-store price comparison of products sold by competitors, including Plaintiffs.

2. The disparity in prices between Faulkner County prices of the relevant product-lines and other markets with more and less competition.

There is certainly no fault in comparative pricing. On the contrary, that tactic appears to foster, and encourage competition which is one of the purposes of the Arkansas Unfair Practices Act. See Ark. Code Ann. § 4-75-202 (Repl. 1991). Nor is the fact that Wal-Mart stores in other localities varied the prices of their products in response to local competition sufficient to prove that Conway Wal-Mart intended to destroy competition in Faulkner County.

Admittedly, there is a point where competitive pricing ends and predatory pricing begins. The Eighth Circuit Court of Appeals has discussed the difficulty in distinguishing the two in the context of the Sherman Act:

The difficulty, of course, is distinguishing highly competitive pricing from predatory pricing. A firm that cuts its prices or substantially reduces its profit margin is not necessarily engaging in predatory pricing. It may simply be responding to new competition, or to a downturn in market demand. Indeed, there is a real danger in mislabeling such practices as predatory, because consumers generally benefit from the low prices resulting from aggressive price competition. See e.g., Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 231 (1st Cir. 1983).

Morgan v. Ponder, 892 F.2d 1355, 1358-1359 (8th Cir. 1989).

There is also a distinct danger in inferring, first, specific predatory intent and, secondly, purposeful destruction of competition from sales below cost. That involves a double inference, as the Eighth Circuit Court of Appeals has recognized. See Henry v. Chloride, 809 F.2d 1334, 1344 (8th Cir. 1987). There is no question that double inferences stretch a circumstantial case to its limits. But the Idaho Supreme Court has also recognized additional problems with too heavy a reliance on inferences to determine specific intent in an antitrust case:

Nevertheless, a finding that a defendant has engaged in a particular predatory or illegal act, such as selling below cost, is not the equivalent of finding specific intent, but is merely a basis from which such intent may be inferred. Isolated or occasional instances of selling below cost, while predatory or illegal in nature, do not necessarily indicate a specific intent to monopolize. To hold otherwise would render the requirement of specific intent a nullity. As one court has stated in the same context, “Too heavy a reliance on circumstantial evidence incurs the risk of reducing almost to the point of extinction the existence of the requirement.” William Inglis & Sons Baking Co. v. I.T.T. Continental Baking Co., 668 F.2d at 1027. The existence of specific intent must, therefore, be determined by weighing all of the circumstances in the particular case, including the nature of the conduct, its consistency and duration, the conditions of the market, and characteristics of the defendant. William Inglis & Sons Baking Co. v. I.T.T. Continental Baking Co., supra.

Pope v. Intermountain Gas Co., 646 P.2d 988, 997 (Idaho 1982).

In the case before us, the loss-leader strategy employed by Conway Wal-Mart is readily justifiable as a tool to foster competition and to gain a competitive edge as opposed to simply being viewed as a stratagem to eliminate rivals altogether. We are further sensitive to the ultimate purpose of the Arkansas Unfair Practices Act — to foster competition and to protect the public against the destruction of competition and the creation and perpetuation of monopolies. Ark. Code Ann. § 4-75-202 (Repl. 1991). Certainly legitimate competition in the market place can, and often does, result in economic injury to competitors. A competitor that has been injured by legitimate competitive pricing, though, should not be permitted to use the Arkansas Act as a fountain for recouping its losses. See Henry v. Chloride, supra, 809 F.2d at 1341 (dictum). In short, the circumstances of this case are not sufficiently egregious to prove that Conway WalMart crossed the line with regard to predatory prices and purposeful destruction of competition.

There are two other points that militate against the chancery court’s construction and application of the Act. The appellee drug stores are far from destroyed. They all continued into 1993 making a profit. Though the Act renders a specific intent to destroy competition as the violation and does not mandate either the actual destruction of competition or even the likelihood of that happening as elements of the unfair practice, it seems only logical that the continued profitability of appellee drug stores and the existence of robust competition in Faulkner County have some bearing on the matter. There is no serious suggestion that the appellees have stopped selling any article as a result of Wal-Mart’s practices or that one or more of the appellees is even considering doing so. There is simply enhanced competition in the area, and the appellees are not making the profits they once did. Other large drug outlets in the vicinity have entered the competitive fray, including Fred’s, Kroger, and Harvest Foods. Faulkner County appears far from a dire situation where no competition exists in pharmaceuticals; indeed, competition there appears to be thriving.

Secondly, we are mindful of the factors during the Depression that were the catalyst for the enactment of Act 253 of 1937, now codified as § 4-75-209(a)(l) of the Arkansas Unfair Practices Act. Those factors are expressed in the Act’s Emergency Clause:

This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health and safety, within the meaning of section 1 of Article V of the Constitution, and shall therefore go into immediate effect. The facts constituting the necessity are as follows:

, The sale at less than cost of goods obtained at forced, bankrupted, close out, and other sales outside of the ordinary channels of trade is destroying healthy competition and thereby forestalling recovery. If such practices are not immediately stopped many more businesses will be forced into bankruptcy, this (sic) increasing the prevailing condition of depression. In order to prevent such occurrences it is necessary that this act go into effect immediately.

Those forced sales “outside of the ordinary channels of trade” gave rise to the Act — not loss-leader programs using varying articles with the admitted purpose to abet competition and “beat out” competitors. That is far different from a sustained below-cost effort over a substantial period of time directed at either a single article for sale or at multiple articles for sale for the purpose of gaining a monopoly in particular products. While the original intent of the Act does not decide this matter, it is certainly a factor to be considered in the overall mix.

If the policy of this State is to render illegal the loss-leader tactic or to recognize a prima facie case of purposeful intent to destroy competition by below-cost sales in disparate articles that are changed on a regular basis, that policy should be clearly announced by the General Assembly in appropriate legislation. We hold that the Arkansas Unfair Practices Act, and specifically § 4-75-209(a)(l), does not provide a sufficient statutory basis for the chancery court’s inference of a specific intent to destroy competition based on the facts before us. We further hold that the chancery court erred as a matter of law in concluding that purposeful intent to destroy could be inferred under these facts. Because we decide this matter on the first point, there is no need to address the other points raised by this appeal.

Reversed and dismissed.

Dudley and Corbin, JJ., not participating. Special Justices Walter Niblock, A. Watson Bell, and Barbara P. Bonds, dissent.

1 This appellee is also referred to in the record as Mayflower Family Drug Center.