IN THE SUPREME COURT OF MISSISSIPPI NO. 2013-CA-01869-SCT GEORGIA PACIFIC CORPORATION

v. COOK TIMBER COMPANY , INC.

DATE OF JUDGMENT: 04/16/2013 TRIAL JUDGE: HON. SAMAC S. RICHARDSON TRIAL COURT ATTORNEYS: JOSEPH E. ROBERTS, JR. RANCE N. ULMER EUGENE COURSEY TULLOS THOMAS L. TULLOS ANN RUSSELL CHANDLER JAMES H. HEIDELBERG JOE SAM OW EN STEPHEN W ALKER BURROW COURT FROM W HICH APPEALED: JASPER COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JAMES H. HEIDELBERG STEPHEN W ALKER BURROW JOE SAM OW EN ATTORNEYS FOR APPELLEE: JOSEPH E. ROBERTS, JR. RANCE N. ULMER EUGENE COURSEY TULLOS THOMAS L. TULLOS NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: AFFIRMED IN PART, REVERSED IN PART AND REMANDED - 03/03/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. DICKINSON, PRESIDING JUSTICE, FOR THE COURT:¶1. Cook Ti mb e r C o mp a n y s u e d G e o r g i a P a c if i c Corporation, claim ing breach of
contract and antitrust violations, both u nilaterally and through a conspiracy w ith o ther m arket participants. 1 The circuit judge granted Georgia Pacif ic a d irected verdict on Cook Tim ber’s conspiracy and breach-of

- c o n t r a c t claim s, but the jury returned a v erdict f o r Cook Tim

ber

on its unilateral a ntitrust claim

. Because Cook Tim ber f a iled to present suf

f icient evidence
to support its unilateral antitrust claim s, we reverse the jury ’s verdict on that claim

. W e also

a f f irm the circuit judge’s decision to grant Georgia Pacif ic a directed verdict on the conspiracy claim

. But we reverse the directed verdict on C ook Tim ber’s breach-of

-contract claim , and we rem and f

or a new trial on that claim

. FACTS AND PROCEDURAL HISTORY ¶2. Cook Tim

ber , a l o g g i n g c o mp a n y based i n Bay Springs, Mississippi, h as been in operation since 1 983. Georgia Pacif ic is a national wood-processing com pany with several
f acilities in Mississippi. In southeast Mississippi, Georgia Pacif ic operated the Leaf

River Group. Th i s g r o u p consisted of f ive m i lls, including the Tay lorsville Ply wood Plant, Tay lorsville C h i p M i l l , Bay Springs Sawm ill, N ew Augusta Sawm ill, a nd the Leaf River Pulp Mill. ¶3. In 1983, Cook Tim ber entered into a c o n t r a c t w i t h G e o rgia P acif ic, and f rom then until 2000, Cook Tim

ber worked e xclusively with Georgia Pacif ic. Eighty t o ninety percent of Co o k T i mb e r’s wood was hauled to the Tay lorsville Ply wood Plant and Bay Springs
Sawm ill. The rem a inder was hauled to the Leaf River Pulp Mill. In March 2000, Georgia

1 T h is case i n v o lv es ad d i tio n al p lain tif f s a n d d ef e n d an ts, b u t all p arties ag reed o n ly C o o k T i m

b er an d G eo r g ia P acif

ic w o u ld p ro ceed to trial.

2Pacif

i c notif ied Cook Tim

ber by letter that its L eaf R iver P ulp Mill no longer would receive
any pine pulpwood deliveries f rom Cook Tim

ber. Cook Tim

ber then f iled this suit. ¶4. Af ter the c i r c u i t j udge granted a directed verdict on Cook Tim ber’s breach-of

-contract and conspiracy claim s, the jury returned a verdict f or both actual and punitive dam ages against Georgia Pacif

ic. Georgia Pacif

i c appealed, arguing that the circuit court had erred by a d mitting the testim ony of Cook Tim ber’s expert witness, Dr. W illiam Shughart; that Cook T im ber had presented insuf

f icient e vidence to prove its unilateral antitrust claim ; that the circuit court had im

properly in s t r u c t ed the jury on the e l em ents of Cook Tim ber’s unilateral antitrust claim ; and that the circuit court had erred by perm i tting the jury to consider p unitive d am ages f o r the antitrust v iolation. Cook Tim b er cross-appeale d the directed verdicts on its breach-of -contract and conspiracy

claim s. ¶5. W e f

ind t hat Cook Tim

ber f ailed to prove that Georgia Pacif ic c om m itted unilateral antitrust violations. W e also af f irm the circuit c o u r t ’ s d irected verdict on the conspiracy claim

. But we f

ind that Cook Tim

ber presented suf

f icie n t e v i d e n ce t o survive a directed verdict on its breach-of

- c o n t r a ct claim , and w e reverse and rem and f o r a new trial on that claim

. ANALYSIS Cook Tim ber’s Section 75-21-3 Claim ¶6. Cook Tim

ber’s three claim s center on Georgia Pacif i c’s ef f orts to cut the cost it p ay s tim ber suppliers f

or w ood. Each claim rests on a distinct leg a l theory

. T he circuit judge

3allowed t he jury to consider only one of th e t h r ee legal theories. T hat claim was brought

under Mississippi Code Section 75-21-3. ¶7. There is an i m

portant d i f

f e r e n c e b e t ween Cook Tim ber’s claim under Mississippi Code Section 75-21-3—on w hich the jury based its verdict—and Mississippi Code Section
75-21-1—on which the circuit judge granted a directed verdict. Both statutes provide what

can be c haracterized broadly a s a n t i t rust regulations. Section 75-21-1, which regulates actions by

trusts or com

bines, states:
A trust or com

bine is a com

bination, contract, understanding or agreem ent, expressed or im

p lied, b etween two or m ore persons, corporations o r f i rm s or association of persons or between any one or m ore of either with one or m ore of the others [ when used to engage in c ertain prohibited business practices.] 2 ¶8. Section 75-21-3, on the other hand, r egulates the c ondu c t o f “ [ a ] n y c o r poration, dom estic or f

oreign, or individual, partnership, or association of persons w hatsoever, who, with i ntent to accom

plish t he results herein prohibited or without such intent, shall” engage i n c e r t a in p rohibited business practices. 3 In other w ords, Section 75-21-1 prohibi t s
agreem ents between m arket participants to engage in the prohibited practices, w hile Section
75-21-3 prohibits u nilateral action by a m arket particip a n t t o e n gage i n the p rohibited practices. ¶9. W i th re g a r d t o Section 7 5-21-3, on which the jury based its verdict, Cook Tim ber
f ailed to present suf

f i cient evidence. That section states:

2 Miss. Code Ann. § 75-21-1 (Rev. 2009).

3 Miss. Code Ann. § 75-21-3 (Rev. 2009). 4Any corporation, dom est i c o r fo r e ign, or individual, partnership, or association

of persons whatsoever, who, with intent to accom plish the results h erein prohibited or without such intent, s h a l l accom plish such results t o a degree inim ical to public welf

are, and shall thus: (a) Restrain or attem

p t t o restrain the f

reedom of trade or production; (b) Or shall m onopolize or attem pt to m onopolize the production, c ontrol or sale of any com m odity , or the prosecution, m anagem ent or control of any kind, class or description of

business; (c) O r shall engross[ ,] f orestall or attem

pt to engross o r f orestall any

com m o dity ; (d) Or s hall destroy or attem pt to destroy com

petition in the m a nuf acture or sal e of a c o m m odity , by selling or of f ering the s am e f

or sale at a lower price a t one place in the state than another o r buy ing or of f e ring to buy a com m odity at a higher price at one place in the state t han another, dif

f erences o f f

reight and other nece s sary expenses of

sale and delivery

considered; (e) Or shall destroy or attem pt t o d e s t roy com

petition by ren d ering any s ervice or m anipulating, handling or storing any com m odity f o r a less price in one locality than in another, the dif

f e rences in the necessary expenses of carry ing on the business considered, shall be deem ed a n d held a trust and com bine within the m eaning an d purpose of t h i s section, and shall be liable to the pains, penalties, f

ines, f orf eitures, judgm ents, and r ecoveries d e n ounced against trusts a nd com bines and shall b e proceeded against in m anner and f orm herein p rovided, as in case of

other trusts and com

bines.
It shall b e suf

f ic i e n t t o m a ke out a prim a f acie case of a violation of subdivision (e) of this section t o s h o w l ower charge f or the service therein m ention e d i n o n e locality than a nother, or to show a higher p rice paid f or a

5com m odity in one lo c a l i ty than another, dif f e r ences of f

reight and other necessary expenses of operating business considered. 4 ¶10. Cook Tim

b er’s case essentially boiled down to f i ve p ieces of evidence: (1) ref erences
to Georgia Pacif

ic’s “Project Hawker” price-reduction ef f ort, (2) Georgia Pacif

i c’s decision
to purchase tim

ber o nly f rom suppliers who provided the m ost consistent prices, (3) Georgia Pacif i c’s decision to s tockpile its tim ber inventory s o it could r ef use to purchase t im

ber when prices were too high, (4) Georgia Pacif ic’s decision to publish the prices it p aid f or tim ber, and (5) Georgia Pacif

i c’s contractual right to c ull wood not m eeting its q uality s pecif

ications. This evidence, even when viewed in the light m ost f avorable to the verdict, does n ot support it. ¶11. Conduct that violates Section 75-21-3 m u st f all under at least one of subsections (a) through (e). 5 Clearly , subsections (d) and (e) are inapplicable because both address dif f erential pric i n g between localities i n the state, and Cook Tim b er d oes not allege that Georgia Pacif

ic engaged in this practice. 6 ¶12. Sub s ection (b) prohibits a m arket participant f rom “m onopoliz[ ing] or attem pt[ ing]
to m o nopolize the production, contr o l o r sale o f a ny com m odity , or the prosecution,

m anagem ent or control of any kind, class or description of business.” 7 Monopoly is def ined

as “1. [ c]ontrol or adv a n t a g e obtained by one supplier or producer over the com m ercial

4 Id

. 5 Id

. 6 Id

. 7 Id

. 6m arket within a given region. 2. The m arket condition existing when only one econom ic

entity produces a particular product or provides a p articular service.” 8 No evidence supports

a conclusion that Georgia Pacif i c m onopolized or attem

pted to m o nopolize i ts industry

. In f act, this case does not involve claim s a bout Georgia Pacif

ic’s i ndustry itself

, but rather f

rom whom it decided to purchase raw m aterial. And the existence of com p etitors f orm s the basis of som e o f Cook Tim

ber’s claim s. ¶13. This leaves subsections (a) and ( c )

. S u b s e c t i o n ( a ) p r o h ibits a business f rom “[ r]estrain[ ing] or attem

pt[ ing] to r estrain the f

reedom of trade or production.” 9 W ith regard
to the restraint-of

-trade provision, this Court has said that “ o u r a n t i-trust statute was only intende d t o e mb r a ce within its p r ovisions those c o ntracts in r estraint of trade which were invalid as against public p olicy bef ore the enactm ent of s aid statute.” 1 0 No authority supports the view t hat, bef

ore t hi s s t atute’s adoption, businesses were prohibited f r om seeking to purchase m aterial f

or the lowest possible cost. Also, it m ust be alleged “that the sales there involved a s constituting a violation of a provision of t he anti-trust statute were m ade f or the
purpose of

destroy ing c om

petition.” 11 N othing in the record suggests that Georgia Pacif ic

8 M o n o p o ly , B lack ’s L aw D ictio n ary 8 6 2 (ab r. 9 th ed .).

9 M iss. C o d e A n n . § 7 5 -2 1 -3 (a) (R ev . 2 0 0 9 ).

10 B r o w n v

. S t a p le C o tto n C o o p . A ss’n , 1 3 2 M i ss. 8 5 9 , 9 6 S o . 8 4 9 , 8 5 4 (1 9 2 3 ) (citin g Y a zo o & M

. V .R . C o . v. C ra w fo rd , 1 0 7 M iss. 3 5 5 , 6 5 S o . 4 6 2 (1 9 1 4 )).

11 B ro w n , 1 3 2 M iss. 8 5 9 , 9 6 S o . at 8 5 4 (citin g S ta n d a rd O il C o . o f K y. v . S ta te , 1 0 7 M iss. 3 7 7 , 6 5 S o . 4 6 8 (1 9 1 4 )). 7sought to destroy c om petition. In f

act, em ails between Georgia Pacif ic executives show that its com petitors were enjoy ing the sam e benef it Georgia Pacif

ic sought: r e d

u c e d t i m b e r p r i c es. ¶14. Finally , s u b s e c t i o n ( c ) p r o h i bits a business f rom “ e ngross[ ing], f

o restall[ ing] or
attem pt[ ing] t o engross or f

orestall any com m odity .” 12 T his C ourt has i n terpreted this prohibition to prevent businesses f rom f ixing prices f

or com m odit i e s o u t s i d e the law of supply and dem and. 13 F or instance, the prohibition precluded an agreem ent b etween oy ster sellers alway s to s e ll oy sters a t a f ixed price. 14 But this case involves Geor g ia Pacif ic’s actions as a buy er, not a seller. Georgia Pacif ic has not a g reed to a m arketwide price-f ixing schem e. Instead, it attem pts to p urchase t im

ber at the lowest possible price f rom suppliers who deliver at a consistent price, and it intends to stockpile tim b er in anticipation of higher
f uture tim ber prices. This strategy

and conduct sim

ply is not illegal. ¶15. Taking all Cook T i m ber’s proof as true, it f

ailed to p r e s e n t suf

f icient e vidence to
prove any violation of Section 75-21-3, so w e reverse t he jury ’s verdict based on that statute. Because w e r e v e rse the jury ’s v erdict, w e n eed not a ddress Georgia Pacif i c’s experttestim o ny , jury -instruction, and punitive-dam age claim s. Cook Tim ber’s Section 75-21-1 Claim ¶16. As discussed abov e , w h i l e S e c t i o n 7 5-21-3 g overns u nilateral conduct, Section 75-21- 1 controls conduct by

trusts or com

bines. That section states:

12 M i ss. C o d e A n n . § 7 5

- 2 1 -3 (c) (R ev . 2 0 0 9 ).

13 B a ra ta ria C

a n n i n g C o . v. J o u lia n , 8 0 M iss. 5 5 5 , 3 1 S o . 9 6 1 , 9 6 2 (1 9 0 2 ).

14 Id . 8A trust or com bine is a com

bination, contract, understanding or agreem ent, expressed or im

p lied, between two or m ore persons, corporations or f i rm s or association of persons or between any one or m ore of either with one or m ore of the others, when inim ical to public welf are and the ef

f ect of which w ould be: (a) To restrain trade; (b) To lim it, increase or reduce the price of a com m odity ; (c) To lim it, increase or reduce the production or output of a com m odity ; (d) T o hinder com

petition in the production, im portation , m a nuf acture, transportation, sale or purchase o f a com m odity ; (e) To engross or f

orestall a com m odity ; (f ) To issue, own or hold the certif icate of stock o f any trust and com bine within the spirit of this chapter knowing it to be such at the tim e o f the issue or the acq u i s i t ion or holding such certif

icate; or (g) To p lac e the control to any extent o f b usiness or of the proceeds or earnings thereo f , contrary to the spirit and m e aning o f this cha p ter, i n the power of trustees, by whatever nam e called; or (h) To e nable or em

p ower any o ther person t han them selves, their proper of

f icers, agents and em

ploy ees to dictate or control the m anagem ent o f business, contrary t o the spirit and m eaning of

this chapter; or (i) To u nite or pool interest in the im portation, m anuf

acture, production, transportation, o r price of a com m odity , contrary to the spirit and m eaning of this chapter. 1 5

15 Miss. Code Ann. § 75-21-1 (Rev. 2009). 9¶17. A threshold requirem ent to a n y v iolation of t his statute is “a com bination, contract, understanding or agreem ent” to c om m it the proh i b i t ed practices. W e f ind t hat the circuit judge properly g ranted a direc t e d v e r d i c t on this claim because C ook Tim ber put f orth insuf f icient evidence to establish the necessary agreem e n t between m arket participants. ¶18. W e review “a trial c ourt’s grant or denial of a m otion f o r directed verdict d e novo.” 16
The m otion should b e granted where, t aking all evidence in f avor of the nonm oving party as
true and drawing a ll f

avorable inf

erences f rom that evidence, n o reasonable j uror could f ind that the evidence supports a verdict in f avor of that party

. 17 ¶19. A price-f

ixing conspiracy m ay b e e s t a b l ished by circum stantial e vidence. 18 But, as the United States Suprem e Court has said with regard to the f ederal Sherm an Act: “[ T]he cru c i a l question” i s whether the challenged anticom petitive conduct “stem s f rom independent decision or f r om an agreem e nt, ta c i t o r express.” W h ile a s howing of parallel “business behavior is adm issible circum st a ntial evidence f

rom w hich the f

act f inder m ay i nf

er a g r eem ent,” i t f

alls short of “conclusively establishing agreem ent or . . . i tself constituting a Sherm an Act of f ense.” Even “conscious parallelism ,” a com m on re a c t ion of “f irm s in a concentrated m ark e t that recognize their shared econom ic interests and their interdependence with r espect to p rice a nd output decis ions” is “not in itself unlawf u l.” 19

16 S o la n k i v. E rvin , 2 1 S o . 3 d 5 5 2 , 5 5 6 (M iss. 2 0 0 9 ) (citin g P ierce v. C o o k , 9 9 2 S o . 2 d 6 1 2 , 6 1 6 (M iss. 2 0 0 8 ); P a ce v. F in . S ec. L ife , 6 0 8 S o . 2 d 1 1 3 5 , 1 1 3 8 ( M iss. 1 9 9 2 )).

17 S o la n k i , 2 1 S o . 3 d at 5 5 9 (q u o t in g W h ite v . T h o m a so n , 3 1 0 S o . 2 d 9 1 4 , 9 1 6

– 1 7 (M iss.1 9 7 5 )).

18 W a g ley v . C o lo n i a l B a k in g C

o . , 2 0 8 M iss. 8 1 5 , 8 5 6 , 4 5 S o . 2 d 7 1 7 , 7 2 5 (1 9 5 0 ).

19 B ell A tla n tic C

o rp . v. T w o m b ly , 5 5 0 U .S

. 5 4 4 , 5 5 3

– 5 4 , 1 2 7 S

. C t

. 1 9 5 5 , 1 9 6 4 , 1 6 7 L

. E d

. 2 d 9 2 9 (2 0 0 7 ) (q u o tin g T h ea tre E n ters., In c. v. P

a ra m o u n t F

ilm D istrib . C

o rp . , 3 4 6 U

. S

. 5 3 7 , 5 4 0

– 4 1 , 7 4 S

. C t

. 2 5 7 , 9 8 L

. E d

. 2 7 3 ( 1 9 5 4 ); B ro o k e G rp . L td . v. B ro w n & W illia m so n T

o b a cco C o rp . , 5 0 9 U .S

. 2 0 9 , 2 2 7 , 1 1 3 S

. C t. 2 5 7 8 , 1 2 5 L

. E d

. 2 d 1 6 8 (1 9 9 3 )).

1 0Here, the evidence at m ost establishes conscious parallelism

.

¶20. The only evidence of conduct involving other m arket participants is an em a il between Georgia Pacif

ic executives. That em ail stated that:
I am getting reports that som e of th e c o mp e t i tion is p ulling their price down about as f a st a s we are. I am of the opinio n that we are the ones m aking the dif f erence and every one else is f ollowing.

. . . The dif f erence this in this y ear and 1995 is that a ll t he com p etition is wanting to do the sam e thing. ¶21. This em ail ref

l ects an o bservation and f alls f ar short of establishing either a n express

or im p lied agreem ent between the parti e s . N o reasonable juror, without engaging in speculation, could read this e m ail to say m ore than t hat the author of the em ail observed that other com panies were now pay ing lower prices f or tim ber. So we af

f i rm the circuit judge’s decision to grant a directed verdict on this claim

. Cook Tim ber’s Breach-of-Contract Claim ¶22. Cook Tim

ber’s breach-of

-contract claim centers on Georgia Pacif ic’s right under its
contract t o cull w ood that d id not m eet its quality s pecif i cations, to f

orego p ay m ent f or that wood, and keep i t nevertheless. I t also involves Georgia Pacif ic’s f ailure to m a i ntain its scale

t i ckets f o r the s tatutorily prescribed tim e and Cook Tim ber’s claim that this cre a t e s a
presum ption that Georgia Pacif

i c did not properly

scale or m easure the wood. ¶23. Mississippi Code Section 75-27-113(4) provides that: Scale tickets shall be m ade available to the haulers and tim ber owners f

or each load bef ore the close of the f

ollowing b usiness d ay and s h a l l include the

1 1m easured volum e or weight, the standard of w eight or m e asurem ent used, and

the basis and am ount of

any deductions. ¶24. Here, the scale t ickets entered into evidence f ailed to include the s tatutorily required inf orm ation. The scale tickets f rom the Tay lorsville Mill and the Bay Springs Mill f ailed to identif y the basis f

or a ny dockage or the am ount o f t h e d ockage. Ricky Kelly , a f orm er Georgia Pac i fi c m a nager, testif ied that each scale t icket had sy m bols representing t he reasons f or the doc k a g e a n d a l so l isted the weight t hat was docked. The t hree scale tickets in the record, however, do not state the basis f or or the am ount Cook Tim b er was docked. ¶25. Cook Tim

ber learned of the dockage am ount only af ter it r eceived a settlem ent sheet and com pared the settlem ent sheet with the scale ticket. So Cook Tim ber was deprived of this inf orm a tion b y Georgia Pacif ic’s conduct, and w e f

ind that this raised a rebuttable
presum ption that Georgia Pacif

i c did not properly

dock the wood. 20 ¶26. Also, Cook Tim

ber presented an em ail f

rom a Georgia Pacif

i c executive, which said:
I am f ully aware t hat if y o u com e out of the gate with m ajor cull increases y ou will drive up prices and drive away s upply

. It is y o ur j ob to m ake these changes subtle and not ma k e this look like an ef f ort to lower wood costs. However, the bottom

line is that we have to m ake these changes now. ¶27. This em ail could b e read two way s. I t m ight m ean that Georgia Pacif ic encountered

a l arge am ount of substandard wood, and the author of the em ail was warning against culling all of it because doing s o m ight have appeared to have been an attem pt to save m oney , rather than to com

ply with the contract. Or, it could be read as an attem pt to begin slowly

to cull wood t hat was not substandard. That is to say , r easonable jurors c ould read the em ail to say

20 D eL a u g h t er v. L a w ren c e C

ty. H o sp . , 6 0 1 S o . 2 d 8 1 8 , 8 2 1

– 2 2 (M i ss. 1 9 9 2 ). 1 2that Georgia Pacif i c culled wood—which it w as e ntitled to k eep without p a y m e n t

— n ot based

o n t h e wood’s f

a ilure to conf

orm to its quality specif

ications, but as a w ay to take qu a l i t y wood w ithout pay

m ent. That, coupled with the adverse presum ption f or f ailure to m aintain scale tickets, provided suf f icient evidence to reach a jury v erdict on the breach-of -contract claim

. ¶28. The existence of a contract between the parties i s not disputed. Under the contract, Georgia Pacif

ic had a right to cull and keep wood w ithout p ay m ent, but only when the wood
f ailed t o m eet its q

uality s pecif

ications. W e f

ind t hat a reasonable juror could conclude that Georgia Pacif

ic c ulled wood f

or other reasons—m ainly to lower prices—an d t h at this breached its contract with Cook Tim ber. S o the directed verdict was not proper on this claim

. CONCLUSION ¶29. W e f

ind that Cook Tim

ber f ailed to present suf

f icient evidence to sustain the jury ’s verdict based on a unilateral antitrust v i o l a tion. So w e reverse and render a judgm ent in
G e o r gia Pacif

ic’s f avor o n t hat claim

. W e f ind that the circuit judge properly g r a n t e d a directed v erdict on Cook T im b er’s conspiracy claim

. So we af f irm that ruling. Finally , we f ind that t he circuit judge e r r e d b y granting Georgia Pacif ic a directed verdict on Cook Tim ber’s breach-of

- contract c laim

. So we reverse and rem and f or a new trial on that claim

. ¶30. O N D I R

E C T A P P E A L : R E V E R S E D A N D R E N D E R E D . O N C R O S S
- A P P E A L : AFFIRMED IN PART, REVERSED IN PART AND REMANDED. WALLER, C.J., LAMAR AND COLEMAN, JJ., CONCUR. MAX W ELL, J., SPECIALLY CONCURS W ITH SEPARATE WRITTEN O P I NION JOINED BY DICKINSON, P.J.; RANDOLPH, P.J., JOINS IN PART. R A N D O L P H, P.J.,

1 3CONCURS I N P ART WITHOUT SEPARATE WRITTEN O P I NION. KING, J.,

DISSENTS WITH SEPARATE W R I T T E N O P I N I O N J O I N E D B Y R A N D O L P H , P .J., AND KITCHENS, J. BEAM, J., NOT PARTICIPATING.
MAX WELL, JUSTICE, SPECIALLY CONCURRING: ¶31. I agree Cook Tim

ber’s b reach-of

- contrac t c l a i m should have b een subm itted to the jury

. So the trial court’s directed verdict on this claim m ust be reve r sed and t his issue

rem anded. I also a gree C o o k T i mb e r’s evidence was i nsuf f icient t o support its antitrust claim

. Thus, the jury ’s verdict and dam ages awards also m ust be reversed. I write separately , however, to em phasize that punitive dam ages still m ay be recoverable on rem and. ¶32. Ironically , there is—at a m inim um —som e question whether p unitive dam ages even

are allowed in antitrust cases. Indeed, the statute m entions only a $500 penalty

. See Miss. Code Ann. § 75-21-9 (Rev. 2009). 21 This court has not decided the issue. ¶33. But in c ontrast to an antitrust claim , i t is cry stal clear that a breach-of

- contract action certainly carries the potential to r ecover punitive dam ages. T.C.B. Constr. Co. v. W .C. Fore Trucking, Inc. , 134 S o. 3d 701, 704 (¶9) (Miss. 2013) (discussing the evidentiary standard and procedure to recover punitive dam ages f or a breach-of

- contrac t c l a i m)

. To recover punitive dam a ges in its breach-of

- contract action, Cook T im ber “m u st prove t hat the breach was the result of

an intentional wrong or that a [ Georgia Pacif ic] acted m aliciously or with reckless disregard of [ C o o k T im ber’s] rights.” I

d. ( quoting Pursue Energy Corp. v.

21 U n d er S ectio n 7 5 -2 1 -9 , “A n y p erso n , n atu ral o r artif icial, in j u red o r d am ag ed b y a t ru st an d co m

b in e as h erein d ef

in ed , o r b y i t s e f

f e c ts d irect o r in d irect, m a y reco v er all d am ag es o f ev ery k in d su stain ed b y h im o r it an d i n a d d i tio n a p en a lty o

f f ive h u n d red d o lla rs ( $ 5 0 0 .0 0 ) , b y su it in an y

co u rt o f co m p eten t j u risd ictio n .” (E m p h asis ad d ed .) 1 4Abernathy , 77 S o . 3 d 1 0 9 4, 1101 (¶23) (Miss. 2011)). As eight m e m bers of this court 22

em phasized in T.C.B. , out-and

- o ut m aliciousness does not h ave to be p roven t o recover punitive dam ages—showing reckless disregard or an intentional wrong w ill suf f ice to send the question of punitive dam ages to the jury

. Id. at 705 (¶11) (em phasis added). In that case,

we f ound a contracting party ’ s duplicitous attem pt to “t o r e a p the b enef

its of its contract while a t t he sam e tim e deny i ng i ts obligations” w a s e n ough to send the question of punitive dam ages to the jury

. Id. at 705 (¶14). ¶34. Here, C ook Tim

ber sim i larly h as accused Georgia Pacif ic of try ing to have its cake and eat it t o o , b y exploiting a c ontract p rovision that allowed it to not p ay f or “def ective” wood y et still keep it. S o the t rial judge o n rem and m ay conclude it is suf f icient t o support the jury ’s consideration of punitive dam ages. DICKINSON, P.J., J OINS THIS OPINION. RANDOLPH, P .J., JOINS THIS OPINION IN PART. KING, JUSTICE, DISSENTING: ¶35. Because the m ajority m isinterprets the antitrust statutes, I disagree with the m ajority ’s determ ination that C ook Tim ber f ailed to present suf

f icient e vidence t o support an antitrust violation, and I theref

ore respectf

ully dissent. ¶36. G e o r g i a Pacif

ic (GP) contends that the verdict in f avor of Cook Tim

ber C o mp a n y (CTC) was not s upported by the e vidence because Dr. W illiam Shughart f ailed to establish that GP was a m onopolist, and CTC did not present evidence s howing t hat GP was engaged in a conspiracy , even af

ter Dr. Shughart testif

ied that GP m

ust have conspired with another

22 D ick in so n , P .J. n o t p articip a tin g . 1 5party to h ave successively driven down prices. W e f i nd that there was s uf

f icient evidence f

or the jury to f

i nd that GP violated Mississippi Code Section 75-21-3. See Miss. Code Ann. § 75-21-3 (Rev. 2009). ¶37. Mississippi Code Section 75-21-3 states:
A n y c o r p o r ation, dom estic or f

oreign, or individual, partnership, or association of persons whatsoever, who, with intent to accom plish the results h erein p r ohibited or without such intent, s hall accom plish such results to a d e g r e e inim ical to public welf

are, and shall thus: (a) Restrain or attem

pt to restrain the f

reedom of trade or production;

. . . (c) Or s hall engross f

orestall or attem

pt to engross or f

orestall any com m o dity

. . . . Miss. Code Ann. § 75-21-3 (Rev. 2009). ¶38. To analy

ze a restraint-of

-trade claim , this Court applies the rule of reason. In Brown

v. Staple Cotton Co-op A ssociation , 132 Miss. 849, 855 (1923), this Court f ound that a restraint on a business’s trade will not be v oid unless the restraint was unreasonable or there was an undue restraint of trade. “It m ust be such a r estraint of

trade as is detrim ental to the public interest.” Id . at 855. ¶39. This Court reviews a trial court’s d e n i a l o f a judgm ent notwithstanding the verdict (JNOV) de n ovo . Mine Safety Appliance Co. v. Holm es , 171 So. 3d 442, 446 (Miss. 2015).
W e view the evidence in t h e l i g h t m o st f avorable to the n onm o ving party

. Union Carbide Corp. v. Nix, Jr. , 142 So. 3d 374, 384 (Mis s. 2 014). “W hen determ ining whether the

e v idence was suf

f icient, the critical i nquiry is whether the evidence is of s uch qualit y t h a t reasonable and f

airm inded jurors in the exercise of f air and im partial judgm ent m ight reach dif f erent conclusions.” Poole ex rel. Wrongful D eath Beneficiaries of Poole v. Avara , 908

1 6So. 2d 716, 7 2 6 (Miss. 2005) (citing Jesco, Inc. v. W hitehead , 451 S o. 2d 706, 713–714 (Miss. 1984)) (em

phasis in o r iginal). “Thus, this Court considers whether the evidence, as applied to t h e e l e me n t s of a party ’s case, is e ither so indisputable, or so d ef icient, that the necessity of a trier of f

act has been obviated.” Estate of Jones v. P

hillips ex rel. Phillips , 992
So. 2d 1131, 1146 ( Miss. 2013) (citing S p o t l ite Skating Rink, Inc

. v. Barnes , 988 So. 2d 364, 368 (Miss. 2008)). ¶40. The m ajority f

inds that CTC’s claim s d o not f it within Section 75-21-3. In f inding so, the m ajority com

pletely ignores the p l a i n language of t he statute and cites w ith authority caselaw interpreting an entirely dif f erent p rovision. Beginning with the language of subsection (c), this subsection prohibits engrossing, f orestalling, or attem

pting to engross or f orestall any com m o dity

. The m a jority s t a t e s t hat “[ t]his Court has interpreted this prohibition to prevent busines s e s f r o m f ixing prices f

o r c om m odities outside the law of supply and dem and. For i n stance, the prohibition precluded a n agreem ent between oy ster sellers alway s to sell oy sters at a f ixed price. But t his case involves Georgia Pacif ic’s actions

as a buy e r, not a seller.” Maj. ¶ 14. The m ajority erroneously c ites Barataria Canning Co.

v. J oulian f or this proposition. B arataria Canning Co. v. Joulian , 8 0 Miss. 555, 31 So. 961 ( 1 9 0 2 )

. T he C ourt in Barataria exam ined the p rohibitions a gainst lim iting, increasing, o r reducing the price of a com m odity , not the p rohibition against f orestalling o r e ngrossing. Further, t he m ajority ’s em phasis on GP being a buy er, and not a seller, is curious, because b o th engrossing a nd f

orestalling ref

er t o buy ing behavior. To engross historically m ea n t “ [t ] o buy l arge quantities of (a stock o r com m odity ) in an ef f ort to c orner the m arket and control

1 7the price.” E n g r o s s , B lack’s Law Dictionary (10th ed. 2014) (em phasis added); V

illage
Food & Liquor M

art v. H&S Petroleum , Inc. , 647 N.W .2d 177, 184, 184 n .10 (W is. 2002) (quoting 4 W illiam B lackstone, C ommentaries on the Laws of England , ch. 12, at 159 (1778)

as def ining engrossing as “ buying up large quantities of corn or other dead victuals, with the intent to sell them again. This m ust of c ourse be injurious to the public, by putting it in the
power of one or two r ich m en to raise the price of p rovision s a t t h e i r o w n discretion.” (em phasis added)). To “f

orestall” historically me a nt “ [ t ]o buy (goods) f o r the purpose of reselling at a higher price. At co mm on law, this was an indictable of f ense.” Forestall , B l ack’s Law Dictionary (10th e d. 2014) (em phasis added); V

illage F ood & Liq u o r M

a r t , 647 N.W

. 2d at 184, 184 n.8 (quoting 4 W illiam Blackstone, Commentaries on t he Laws of England , ch. 12, at 158-59 (1778), def ining “ f o r e stalling the m a rket” as “ buying or contracting f

or any m e rchandise or vict u a l c o ming in the way to m arket, or d issuading
persons f rom bringing their goods to m arket; or dissuading persons f rom bringing t heir goods

or provisions there; or persuading them t o enhance the p rice, when t here: a ny of which practices m ake t he m arket dearer to the f air trader.” ( em

phases added)). C learly , subsection (c) contem

plates – indeed it entirely encom p asses – buy ing behavior in its prohibition. ¶41. As f

or s ubsection (a), the m ajority f inds that “[ n]o a

u thority supp orts the view that, bef ore t his statute’s adoption, businesses were prohibited f rom seeking to p urchase m aterial
f or the lowest possible cost.” Maj. ¶ 13. A s described above, businesses have long been prohibited f

rom certain purchasing behavior, including certain behavior t o purchase at low

1 8p r i c es. Thus, I disagree with the m ajority ’s m isinterpretation of the antitrust statute, and

believe that we m

ust exam ine the evidence bef ore us. ¶42. CTC argues that G P po s s e s s e d b u y e r p o w e r and used this buy er power to restrain trade through several outlets: (a) i ts Project Hawker program ; (b) the use of core/pref erred suppliers; (c) its e xploitation o f inventories at i ts m ills; (d) t he circ u l a t i o n o f price lists to

com petitors; and (e) its docking and culling procedures and policies.
A. Project Haw ker ¶43. CTC claim ed that GP i m plem ented a program called Pr o j e c t H a w ker to drastically reduce wood prices. W hile the record is not clear a s to what exactly Project Hawker is, several GP internal docum ents m ade ref e rence to the program

. ¶44. A m e m o with the subject “Operation Hawker” stated “I am getting r eports t hat som e of the c om

petition is pulling their price down about as f a st as w e a re. I am of the opinion that

we are the ones m aking the dif f erence and every one else is f ollowing. W e o nly have one objective, deliver the cheapest log possible to the plants.” ¶45. Another i ntracom

pany m em o entitled “Project Hawker (W ood C ost Reduction)” read “[ w]ood cost cam e down 7% o n the average which t ranslates into a s avings to G-P of approxim a tely

$45 m illion over a quarter or $175 m illion on an annualized basis.” ¶46. Noel Tulm ison, a current GP em ploy ee, testif

ied t hat he did not k n o w w h a t Project Hawker was but only that G P wanted to reduce its prices. Roy W est, a f orm er GP m anager, testif i ed that the program was an initiative t o reduce pric e s . A c cording to W est, wood

1 9products had been at a historic high and GP wanted to reduce its costs due to predictions that

the dem and f

or GP products would not be high f o r the next f

ew y ears. ¶47. Dr. Shughart testif i ed that P roject Hawker w as a m eans f or G P to reduce its prices by

seven percent but t hat GP f ar exceeded a s even percent decrease in pri ces. Dr. Shughart
f ound that, bef

ore GP im

plem ented Project Hawker, in March 1998 and several weeks b e f o r e , C T C received $ 33.50 per ton f or pine pulpwood. W hen the program wa s i mp l e mented, the price was reduced to $28 per ton until the end of May , when the price

rem ained in the low-to-m id twenties. CTC continued to receive about $20 per ton until GP inf orm ed CTC that it would discontinue purchasing pine pulp f rom CTC.
B. Core Supplier Program ¶48. GP instituted a c ore s upplier program whereby it reduc e d t h e n u mb e r of suppliers
f rom which it bought wood. CTC was not chosen as o ne of the core suppliers and argues that
GP’s ability t o t e r mi nate its r elationship with so m any suppliers dem onstrates the m arket
power GP possessed and its ability to ma n i p u l a t e the m arket. An exam p le of the em ails regarding the core supplier program stated:
I w a n t y ou f

olks t o pick t he suppliers y ou w ant t o d o business with a n d g ive them a G O O D q

uota, one they can m ake a living with. I f they are not consistent suppliers, get rid of t hem

. They will help drive the price down. The discipline i s going to com e when they o f f er y ou the wood c heaper than y ou have agreed to pay

y our steady

suppliers. MAKE THEM EAT IT. ¶49. A separate em ail stated: Choose suppliers y ou can trust and give them quota, with the expectation of receiving wood f

rom them when we need it, at our price.

2 0¶50. However, according to W est, t h e c o r e s u p p l i e r p r o g r a m w a s a c o n c e p t t hat GP

instituted to have as f

ew suppliers produce as m u c h w o o d a s GP needed t o operate its
f acilities. W est c laim ed that at one point, GP had close to 200 suppliers, but approxim ately
f orty suppliers now produced eighty percent of

GP’s wood.
C. Ex p loitation of Inventory ¶51. CTC claim s that GP increased its inventory by f illing its m ills to the m axim um so that when suppliers h auled their wood to the m ill, they were f orced either to receive a l ower price
f or their wood or to have their delivery rejected. Exam

ples of several GP em ails regarding inventory read: Inventory rem a ins our m ajor barom eter. W e a r e w illing t o push prices because we have t he inventory t o do so and that is what we said we would do. It is not our plan to get below our strategic inventory level. [ O]ur procurem e nt strategy is f ounded on m aintaining target inventories. Stick to t hem unless y ou have a plan to pull down prices at a l ocation. W e use these inventories to “walk away f rom deals.”
W i thout inventories, we have little leverage that will let us “ w alk away f rom deals.”
Most of o ur inventories are at or above target wh i c h s h o u l d give us added conf idence that we can bring prices down w ithout unnecessary downtim e. I want to re-iterate, we a r e willing t o take any solid wood f acility down i f we can’t m ake m oney or f

eel w e can greatly lower f u ture wood cost as a result of the closure.
D. Distribution of Blue Sheets ¶52. GP created blue sheets, or p rice lists, identif y ing the m axim

um price e ach m ill would
pay f or each ty pe of f iber. The blue sheets w ere posted on the internet, sent to GP’s suppliers, and sent to several wood processing com panies that supplied wood to G P. CTC asserts that

2 1GP violated its own antitrust c om pliance policy by distributing the blue sheets, with every price f or each ty pe of f iber, to its com

petitors. GP’s Antitrust Com pliance Policy

states: No em ploy ee m ay : (a) s end any price list t o, or receive a ny price list f rom , a com petitor (other than a price l i st received f rom a regular supplier or sent to a regular custom er regarding the products supplied or sold). ¶53. This provision explicitly prohibits GP f rom s e nding its blue sheets to its com petitors; however, t his provision allows G P to send blue sheets to its regular custom ers. Ricky Kelly ,

a f o rm er GP m anage r , t e s t i f i ed that t he blue s heets were sent to com petitors that regularly sold wood to GP. CTC argues that th e d i stribution was a v iolation because all of GP’s

com petitors would know the prices GP paid f or all of its wood products, including the wood products the com

petitors did not supply to GP. As a r esult, other wood com panies c o uld decrease their wood prices to com pete with GP.
E. Docking and Culling Procedures ¶54. In the purchase plant agreem ent, GP had the r ight to “ d o ck” o r deduct f rom CTC’s f inal pay m ent the prices of a ny wood that was rotten or had a def ect. W hen t he wood was hauled to G P m ills, GP m easured the wood and m a d e any deductions. There was conf licting testim o ny regarding whether actual m easurem ents or estim a tions were m a d e a s t o t h e d a m a ge

on each log. Dennis Hough, a f orm er p r ocurem ent m anager of GP, testif ied that GP

em ploy e es never m easured the actual def ect but only estim ated h ow vast t he deduction was. Kelly , however, testif

ied that each log was m easured. ¶55. Af ter the wood w as m easured, GP m a de deductions based on t he location and extent of the def ect. In the purchase plant agreem ent, GP was allowed to retain the wood that did

2 2not m eet its specif ications. CTC claim s t hat this p ractice allowed GP to lower wood prices because f irst, GP could deduct pay m ents without allowing t ruckers to ensure that the wood did not m ee t G P s p e c i f

i cations and second, CTC was not paid f or the def

ective wood although GP processed the wood and used it as “chip n saw.” ¶56. Viewing the evidence in the ligh t mo st f avorable to the verdict, it is c lear that CTC
p r e s e n t e d suf

f icient evidence to sustain an antitrust claim under the Mississippi Antit r u s t A c t

. Reasonable and f

air-m inded j urors could have com e to dif f erent conc l u s i ons regarding whether G P engr o s s e d , f orestalled, or a ttem

pted to e ngross o r f

orestall a com m odity , and whether GP restrained or attem pted to restrain the f

reedom of trade or production. ¶57. I also believe that this Court should af f irm the trial court regarding the issues of expert testim o ny , the jury instructions, and punitive dam ages. Because of the lack of g uidance on the punitive dam a ges issu e , I w i l l address m y views on how w e should resolve the issue. ¶58. Mississ i p p i C o d e S e c t i o n 7 5

- 2 1

- 3 9 , r e garding t he applicability of the chapter, explicitly provides that “[ t]his chapter shall be liberally c onstrued in all courts to the end that
trusts and com

bines m ay be suppressed, and the benef its arising f

rom c om petition in business preserved to the people of this s tate.” Miss. C ode A nn. § 75-21-39 (Rev. 2009). Thus, the Legislature has specif

ically m andated that w e l iberally construe Section 75-21-9 when interpreting it. ¶59. In 1 906, the Legislature added a f ine f or the violation of the antitrust statutes. Miss. Code Ch. 145, § 5007 (1906). The statute stated that “[ a]ny person injured or dam aged by

a t rust and com

bine as herein d e f

ined, o r its ef

f ects direct or indirect, m a y , in each instance

2 3of such injury o r dam age, recover the sum of f ive hundred dollars, and all actual dam ages[ .]” Id. The chapter also included an entirely separate penalty per v i o l a t ion t hat an entity violating the chapter m

ust pay , recoverable b y the Stat e , r a t h e r than what an individual injured m ay recover. Miss. Code Ch. 145, § 5 004 (1906) (Any one “violating any of the provisions of this chapter, shall f orf eit not less than two hundred dollars n or m ore than f ive thousand dollars f

or every such of

f ense, and each day such p erson, corporation, partnership,

o r a s s o c i a t i on shall continue t o do so shall be a separate of f ense[ .]”). In 1926, the Legislature changed this l anguage t o state: “Any person, natural o r artif i cial, injured or dam aged by a trust and com bine as herein d ef

ined, or by its ef

f ects direct o r indirect, m ay

recover all d am ages o f every kind sustained by h im or it whether or n ot inim ical to public welf are and in addition a penalty o f f ive h undred dollars ($500.00)[ .]” Miss. Gen. Laws Ch. 182, § 4 (1926). In 1930, the l anguage “whether o r not inim ical to public welf are” was

rem oved. M iss. Code Ch. 68 § 3 4 40 (1930). The r elevant language and penalty have

rem ained unchanged since 1926. Miss. Code Ann. § 7 5-21-9 (Rev. 20 0 9 ) (“Any person, natural or artif

icial, injured or dam aged by a trus t and com bine as herein def

i ned, or by its ef f ects direct or indirect, m ay recover all dam ages of every kind sustained by him or it and in addition a penalty of

f ive hundred dollars ($500.00)[ .]”). ¶60. Thus, the m ajor alteration i n this statute w as changing t hat a person m ay recover “all actual dam ages” to that a person m ay recover “all dam ages of every k ind sustained by him .” In both versions of the statute, the person m ay also recover a penalty of $ 500. The change
f rom “all a ctual dam a ges” to “all dam ages of every k ind s ustained” appears to be m ore o f a

2 4substantive c hange than a s tructural one. Rem oving the specif ic ty pe of dam ages (actual) and changing it to “all dam ages” broadens the ty pes o f dam ages that an injured party m ay

recover. This is especially true when t he statute i s properly liberally construed to the end of suppressing trusts. See Miss. Code Ann. § 75-2 1

- 3 9 ( R e v. 2009). If the Legislature had

m eant to keep the dam ages recoverable the s am e, i.e., lim i ted to a c t u a l d a m a ges, it had already specif

ically and c learly d o n e s o , and no p lausible explanation exists f or the Legislature to change the language so drastically t o l a n g u a g e that less clearly lim its the dam ages t o a ctual dam a ges. Furtherm ore, the i njured party arguably d id “sustain” punitive dam ages t o s om e extent. Punitive dam ages are f or the purpose of punishing the wrongdoer and deterring f

uture sim ilar conduct by others, thereby protecting the public. 23 Standard Life
Ins. C o. of Indiana v . V eal , 354 So. 2d 239, 247 ( Miss. 1977) (quoting Snowden v. Osborne , 269 So. 2d 858 (Miss. 1972), overruled on other grounds by C &C Trucking Co. v. Sm ith , 612 So. 2d 1092 (Miss. 1992)). The injured party is ostensibly a m em ber o f the public, and thus sustained dam ages by the wrongdoer’s actions. Additionally , punitive dam ages, in part, “constitute [ ] c o mp e n s ation f or the plaintif

f f or his or her ‘ public service’ in bringing the action.” A ndrew Jackson L ife Ins. Co. v. William s , 566 So. 2d 1172, 1190 (Miss. 1990);

see a lso United A m e r i c a n I n s . Co. v. Merrill , 978 So. 2 d 613, 636 (Miss. 2007) (unanim ously

reaf f irm ing William s , 566 So. 2d 1172).

23 P u n itiv e d a m a g es also b en ef i t t h e p lain tif

f in th at, in th e ab s en ce o f statu to ry au th o rity g ran tin g atto rn ey s’ f ees, atto rn ey s’ f

ees are o n ly p ro p er w h e n p u n itiv e d a m ag es are also p ro p er. M

i ssissip p i P o w er & L ig h t C

o . v. C o o k , 8 3 2 S o . 2 d 4 7 4 , 4 8 6 ( M i s s . 2 0 0 2 ). T h u s, a p u n itiv e d am ag es aw ard essen t ially creates a rig h t

to reco v er atto rn ey s’ f

ees. 2 5¶61. Moreover, Sec t i o n 7 5

- 2 1

- 3 9 a l s o c o n t a i n s a s a v i ngs clause, m andating that “[ n]o right,

liability , pain, penalty , f

orf eiture, prosecution or suit u nder laws existing prior to the adoption of this chapter shall be in any wise af f ected thereby [ .]” Miss. Code Ann. § 75-21-39 (Rev. 2009). Punitive dam ages existe d i n M i s s issippi com m on l aw in t he 1800s. See Bell v. Morrison , 27 Miss. 68 (1854). Thus, the antitrust l aws did not af f ect the liability f

o r punitive dam ages, nor elim inate them as a penalty

or as the subject of

a suit. ¶62. It can hardly be s aid i n t his case that t he slightly m o re than $11,000 in actual dam ages and a $ 500 penalty would b e any thing m ore than a very light s l a p o n t h e w r i st to a corporation as large as G P. T hese a mo u n t s can hardly be argued to do any t hing toward suppressing trusts a nd com bines and enco u r a g i n g c om petition. 2 4 Thus, when we liberally
construe the statutes “to the end that trusts and com bines m a y be suppressed, and the benef its arising f rom com petition in business preserved t o the people of this state[ ,] ” w e must conclude that the Legislature m eant to expand the dam a ges allowable when it changed the language of the statute f

rom “actual dam a g e s ” t o m ore expansive phrasing, a n d we m ust conclude that nothing in the antitrust statutes af f ects the right to pursue, or the liability f or, punitive dam ages. Such dam ages provide a d eterrent to t rusts and com bines and e ncourage

com petition in business f

or the b enef

i t of the public, promo ting the Legislature’s stated purpose of

the antitrust statutes.

24 F iv e h u n d red d o llars in 1 9 0 6 , w h en co n sid erin g th e v alu e o f a d o llar an d th e sm aller n atu r e o f co rp o ratio n s, w o u ld h av e b e en a m u ch b etter d eterren t th an f iv e h u n d red d o llars is in 2 0 1 5

. 2 6¶63. Because I conclude that punitive dam ages are allowed under the a ntitrust statutes, I

will conduct a b r ief analy sis of the other issues regarding punitive d am ages that GP raises on appeal. ¶64. GP argues that no reasonable juror could have concluded that punitive d am ages were warranted under M i ssissippi C ode S e c t ion 11-1-65, and it had consequently m oved f or a directed v erdict on this issue a t trial. T he standard of review f or a d e n i a l of a m otion f

or directed verdict, considering t he evidence in the l i g h t mo s t f a vorable to the appellee and giving the appellee the benef it of all f avorable inf

erences t hat m ay reasonably be drawn f rom that evidence, is whether “ the f acts are so overwhelm ingly i n f avor of the appellant that reasonable jurors could n ot have a rrived at a contrary verdict.” M ississippi Power & Light
Co. v . Cook , 832 So. 2d 474, 478 (M i s s . 2 0 0 2 )

. Conversely , if substantial e vidence, or “evidence of such quality and weight that reasonable and f air m inded jurors i n the exercise of im partial judgm ent m i ght have reached dif f erent conclusions,” in support of the verdict exists, this Court m

ust af f i rm . I d. ¶65. Punitive dam ages m ay be awarded if t he claim ant pro v e s b y c l e a r and convincing evidence that the def

endant “acted with actual m a lice, gross n egligence which evidences a willf ul, wanton or reckless di sregard f or the saf ety of others, o r c om m itted a ctual f raud.” Miss. C ode Ann. § 11-1-65 (Rev. 2014). The m ost relevant portion of the statute to this case is whether GP acted with “actual m alice.” T he section of this opinion regarding suf f iciency

o f the e v idence details m any of the em ails and pricing schem es of GP. This e v i d e n c e i s clearly of such quality and weight that reasonable and f a ir m inded jurors in the exercise of

2 7i mp a r t i a l judgm ent m ight have reached dif f erent conclusions as to w hether actual m ali c e existed. Thus, the trial court did not e rr by deny i ng GP’s m otion f or d i r e cted verdict as to punitive dam ages. ¶66. GP also argues in the a l t e r n a t i v e t h a t i f this Court does not reverse the punitive dam ages award, it should rem it it. In reviewing the denial of a m otion f

or a rem ittitur or a

m otion f or a new trial on the issue of punitive dam ages, this C ourt will only reverse where the trial court com m i tted an abuse of discretion. Bankers Life and Cas. Co. v. Crenshaw , 483 So. 2d 254, 279 (Miss. 1985). ¶67. GP asserts that the punitive dam ages award should be r em itted under Mississippi law. Mississippi Code Section 11-1-65 requires the trial court t o t ake the f ollowing f

actors into consideration in determ ining whether a punitive dam ages award is excessive:
1. W hether t h e r e i s a reasonable relationship between the punitive dam age award and t he harm likely to result f rom the def

endant’s conduct as well as the harm that actually

occurred;
2. The degree of r eprehensibility of the def endant’s conduct, the duration of that c onduct, the def

endant’s awareness, any

concealm ent, and the existence and f requency of sim ilar past conduct; 3. The f inancial condition and net worth of the def endant; and
4. In m itigation, the i m

position o f crim i nal sanctions on the def endant f or its conduct and the existence of other civil a w ards a gainst the def endant f or the sam e conduct. Miss. Code Ann. § 11-1-65(1)(f )(ii) (Rev. 2014). The statute a l s o notes that “ the prim ary
purpose of punitive dam ages i s t o punish the wrongdoer a nd deter sim ilar m isconduct in the
f uture by the def

endant and others[ .]” Miss. Code Ann. § 11-1-65(1)(e) (Rev. 2 014); see also

2 8Andrew J

a ckson Life Ins. Co. v. William s , 566 So. 2d 1172 (Miss. 1990) ( punitive dam ages

are f or the purposes of punis h m ent a nd deterrence). P unitive d am ages should be in an

am ount reasonably necessary t o punish t he wrongdoer, t aking into consideration the harm f ul ef f ect on the individual litigant and the p ublic. See Em p loyers Mut. Cas. Co. v. Tom pkins , 490 S o. 2d 897 (Miss. 1986). In determ ining the am ount of punitive d am ages, f our f actors

are considered: whether the am ount punishes and deters the wrongdoer, whether the am ount deters others, whether the am ount accounts f o r the d ef endant’s f inancial w o rth, and whether the a m ount com

pensates the plaintif

f f or the public service in holding t h e def endant accountable. 25 M

errill , 978 S o. 2d at 636. GP opines that o nly the f irst and s econd statutory f actors are relevant, b ecause neither CTC nor G P o f f e r e d a ny e v idence a s to the third and
f ourth f actors. However, som e f

inancial i nf

o rm ation about GP was in the record. Moreover, in the h earing on t he rem ittitur, t he trial court n oted t hat “to som e body like IBM o r Georgia Pacif i c, $2.5 m illion based on their net w o r t h is nothing. I m ean, M r. C o ok was paid

some w h e r e around 2.5 m illion over f o ur y ears f

or the wood h e sold.” The trial court also noted that the j u r y considered em ails em anating f rom GP headquarters t hat could com e across as “just being plain m ean.” ¶68. GP’s argum e nt i n this regard prim a rily concentrates on t he ratio of actual to punitive dam ages. It f

irst notes t hat there is no reasonable relationship between the punitive dam ages award and the h a r m s u f

f e r ed, because the harm suf f ered was quantif

ied as $11,089.47. It

25 A s n o ted , p u n itiv e d am ag es p av e th e w a y f o r a p lain tif

f to receiv e atto r

n ey s’ f ees. P u n itiv e d am ag es a r e a l s o mean t to co m p en sate th e p l ain tif

f f o r h is p u b lic serv ice in b rin g in g th e su it. T h u s, atto rn e y s’ f ees m ay arg u ab l y b e in clu d e d in “all d a m ag e s su stain ed ” b y th e p lain tif

f u n d er S ectio n 7 5 -2 1 -9

. 2 9notes t hat the ratio between p unitive and actual dam ages i s l arge, m ore than 225:1. However,

what GP f

ail s t o acknowledge is t hat the harm suf f ered i n a n antitrust case i s largely harm
to the pub l ic and to com

p e tition, not s olely harm that resulted to the s ingle p laintif f in this

case. Moreover, the f

irst s tatutory f

actor al s o c o n s i d e rs t he h arm “ likely t o result” f rom GP’s behavior, which the p laintif f s h o w e d w a s suppression o f c o m petition in the

m arketplace. This Court has approved punitive dam ages awards in ratios greater than the one in this case. See, e .g. , Tom pkins , 490 So. 2d 897 (approving punitive d am ages in a n am ount 800 tim es greater than actual dam a ges); Independent L ife & A ccident Ins. Co. v. P eavy , 528
So. 2d 1112 (Miss. 1 988); S tate Farm Mut. Auto. Ins. Co. v. Grim es , 722 So. 2d 637 (Miss.
1 9 9 8 ) ( a p proving a punitive dam ages award w ith a ratio o f p unitive to com pensator y dam ages of 658 to 1 ); see also TXO Prod. Corp. v. Alliance Res. Corp. , 509 U.S. 443, 113
S. Ct. 2711, 125 L. Ed. 2d 366 ( 1993) (af f irm i ng punitive dam ages in a n am ount 5 26 tim es greater than com

pensatory dam ages). ¶69. The second f

actor looks at the reprehensibility o f G P ’ s c o n d u c t , a s well as the duration, G P’s awareness, any concealm ent, and the existence of s i m ilar past conduct. GP
argues that its conduct was not reprehensible. Yet, as the trial court noted, som e GP em ails regarding the pricing schem es were “just bei n g p l a i n m ean.” 26 Moreover, GP’s pricing schem es lasted f

or s everal y ears, thus the d uration of the conduct was c ertainly signif icant.

26 F o r ex am

p le, o n e em ail stated : “N o o n e th in k s it is y o u r f a u lt t h at th e In d ian s h av e su rro u n d ed th e w a g o n train , b u t d o n ’t f eel b ad f o r k illin g as m an y o f th em as y o u can b ef o re th ey k ill u s. B u y

tim b er as ch eap as y o u can .”

3 0GP was a l so cle a r l y a w a r e o f its pricing schem es, and the trial court noted that it at tim es

invoked a “m ean” spirit in apply ing them

. ¶70. As relates to both of these f a c t o r s , a s w e l l a s t he third f actor, the record contains certain f inancial i nf

orm ation r e g a r d i n g the s c hem es. For exam ple, an em a i l out of GP headquarters in Atlanta stated t hat “For e very 1% that y ou can reduce overall wood cost, y ou will add $25 m illion to our operating prof it. T hus, if we hit o u r g o a l o f a 1 0% reduction

across all products in the 3rd quarter, we will add $250 m illion to the bottom line.” A 1999
note f r om GP stated that “ W e f

inished the f

irst half of 1999 with a g reat perf o rm a n ce record
f or W ood and Fiber P rocurem ent.

. . . We have worked saf ely w hile lowering w ood costs $120 m illion below last y ear a t this tim e[ .]” I n a nother 1 999 note f rom G P, industry news

was quoted stating t hat GP’s “net incom e increased 114 percent to $311 m illion v ersus net incom e o f $33 m illion i n 1998.” A 2001 m em o f rom GP stated that “W ood cost cam e down 7% on the average which translates into a savings to G-P of approxim ately $45 m illion over

a quarter or $175 m illion on an annualized basis.” Yet a nother em ail noted that “You should all be proud of t he accom pl i s h me n t s y o u have a cheived [ s ic] thus f ar. M illions of dollars have been placed back in G-P’s p ockets, ins tead of outsiders.” A Novem b er 1999 em ail noted t hat GP had “saved $142 m illion in wood cost Vs 1 998. W e will give up s om e of this in the f ourth q uarter but w i l l s t i l l b e above $ 130 m illion in savings. This will be approxim a tely

10% of G-Ps prof

its f or the y ear!” The record also contains other f inancial inf orm ation about G P, as well as other inf orm ation relating to the prof i ts and savings f

rom the schem es at issue.

3 1¶71. Certainly , t he inf orm ation about the prof

its earned f

rom t h e s c hem es r elates to the relationship between the punitive dam ages award and the harm d o n e or likely to occur, as well as t he reprehensibility of the conduct. It f u rther touches on the f

inancial condition of GP, a nd is also im

portant to determ ine the am ount of punitive dam a g es necessary to have a deterrent ef

f ect. The record m akes clear that the prof its f rom the schem es a t issue were in the hundreds of m illions of dollars over several y e ars. It appears obvious that $2.5 m illion in punitive dam ages would be a very sm all percentage of GP’s net worth. S ee Merrill , 978
So. 2d a t 636 (noting that t he punitive d am ages award was acceptable, in part b ecause it was less t han one-half of one percent of the def endant’s net worth). Given all this i nf orm ation, the trial court clearly did not abuse its discretion by declining to rem it the punitive dam ages award as determ ined b y the jury

. 27 It is d if f icult to im agine that a lesser a ward would “punish and deter” a corporation as large as GP. ¶72. Because I believe this C ourt should determ ine that S ection 7 5-21-9 allows punitive dam ages i n antitrust c ases, I would af f irm the trial court on t his issue. I f urther believe that the punitive dam ages award at issue should be af f irm ed. RANDOLPH, P.J., AND KITCHENS, J., JOIN THIS OPINION

.

27 G P also arg u e s th at t h e aw ard v io lates d u e p ro c ess u n d er B M W o f N o rth A m erica , In c. v. G o re , 5 1 7 U .S

. 5 5 9 , 1 1 6 S

. C t. 1 5 8 9 , 1 3 4 L

. E d

. 2 d 8 0 9 (1 9 9 6 ). T h at case states t h at th e m o st im

p o rtan t in d iciu m o f th e reaso n ab len ess o f a p u n itiv e d am ag es aw ard is th e d eg ree o f r ep reh en sib ility

. Id

. at 5 7 5

. I t also req u ires a lo o k a t th e ratio o f p u n itiv e d am ag es to th e actu al h arm in f

licted , as w ell as san ctio n s f o r co m p arab le m isco n d u ct. Id

. at 5 8 0 -8 4

. B ased o n th e sam e f

acts m en tio n ed in th e an aly sis u n d e r M ississip p i law , I am o f th e o p in io n t h at th e p u n itiv e d am ag es aw ard w as co n stitu tio n a l ly accep t ab le. 3 2