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

v. COOK TIMBER COMPANY , INC. ON MOTION FOR REHEARING 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: STEPHEN W ALKER BURROW JAMES H. HEIDELBERG JOE SAM OW EN ATTORNEYS FOR APPELLEE: JOSEPH E. ROBERTS, JR. ANN R. CHANDLER 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 - 06/30/2016 MOTION FOR REHEARING FILED: 03/31/2016 MANDATE ISSUED:
EN BANC. DICKINSON, PRESIDING JUSTICE, FOR THE COURT:¶1. The m o tion f or r ehearing f

iled b y Georgia Pacif

ic Corporation is denied. The m otion
f or rehearing f

iled by Cook T im

ber Com pany , Inc., is d enied. The p revious opinions issued in this case are withdrawn, and these opinions are substituted theref or. ¶2. Cook Tim

ber C om pany s ued G e o r gia Pacif ic Corporation, claim ing breach of
contract and antitrust violations, both unilate r ally 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 -contract claim , but the jury returned a verdict f or Cook Tim

ber on its unilateral antitrust claim

. Because Cook Tim ber f ailed to present suf

f icient evidence to support its unilateral antitrust claim s, we reverse t he jury ’ s v e r dict on that c laim

. W e also af f irm the c ircuit judge’s decision to grant G eorgia Pacif ic a directed verdict o n 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 ¶3. Cook Tim

b e r , a l o g g i n g c o mp a ny 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. This group con s i s t e d o f f ive m i lls, including the Tay lorsville Ply wood Plant, Tay lorsville Chip Mill, B a y S p r i n g s Sawm ill, N ew Augusta Sawm ill, a nd the Leaf River Pulp Mill.

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.

2¶4. In 1983, Cook Tim ber en t e r e d i n t o a c ontract with 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 Cook Timb e r ’ s w ood was hauled to the Tay lorsville Ply wood Plant and Bay Springs
Sawm ill. The rem a inder was hauled to the L eaf R iver P ulp Mill. In March 2000, Georgia Pacif i c notif ied C ook Tim

ber b y letter that its Leaf River Pulp Mill no longer would receive
any pine pulpwood deliveries f rom Cook Tim

ber. Cook Tim

ber then f iled this suit. ¶5. A ft e r t

h e c i rcuit 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 a ctual and punitive dam ages against Georgia Pacif

ic. Georgia Pacif

ic appealed, arguing that the circuit court had erred by adm itting the testim o ny o f Cook Tim ber’s e x pert witness, Dr. W illiam Shughart; t h at Cook T im ber had presented insuf

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

properly instru c t e d t he 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 - a p pealed the directed verdicts on its breach-of -contract and conspiracy

claim s. ¶6. W e f

ind t hat Cook Tim

ber f ailed to prove that Georgia Pacif i c c om m itted unilateral antitrust violations. W e also af f irm the circuit court’s d irec t e d v e r d i ct on the conspiracy claim

. But we f

ind tha t C o o k T i m

ber presented suf

f icient evidence t o survive a directed verdict on its breach-of

- c ontract claim , and we reverse and r e mand f o r a new trial on that claim

. ANALYSIS

3Cook Tim ber’s Section 75-21-3 Claim

¶7. Cook Tim

ber’s three claim s center on Georgia Pacif ic’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 legal theory

. The ci r c uit judge allowed t he jury to consider only one of the t hree legal t heories. That claim was br o u g h t under Mississippi Code Section 75-21-3. ¶8. The r e i s a n i mp o r t ant dif f erence between Cook Tim ber’s claim under Mississippi Code Section 75-21-3—on which the jury based its verdict—and Mississippi Code Section
75-21-1—on which the circuit judge granted a d irected verdict. Both s tatutes concern what

c a n b e c haracterized broadly as antitrust 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

plied, between two or m o re p ersons, corporations or f irm s or association of persons or between a n y 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 ¶9. Section 75-21-3, o n t h e o t h e r h a n d, r egulates the conduct of “[ a]ny corporation, dom estic or f

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

plish the results herein p rohibited o r without such intent, shall” engage i n c e rtain prohibited business practices. 3 In other words, Section 7 5-21-1 proh i b i t s
agreem ents between m arket participants to engage in the prohibited practices, w hile Section
75-21-3 prohibits u nilateral action b y a ma r ket participant to engage i n the p rohibited practices.

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

3 Miss. Code Ann. § 75-21-3 (Rev. 2009). 4¶10. W i th regard to Section 7 5

- 2 1

- 3 , on which the jury based its verdict, Cook Tim ber
f ailed to present suf

f i cient evidence. That section states: Any corporation, dom estic or f oreign, or i ndividual, partnership, or a s s o c i a t i on of persons whatsoever, who, with intent to accom plish the results h erein prohibited or w i t h o u t such intent, shall accom plish such results t o a degree inim ical to public welf

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

pt to restrain the f

r e e dom of trade or production; (b) Or shal l m o nopolize o r 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) Or shall engross[ , ] f or e s t all or attem

pt t o engross or 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 sale of a com m odity , by s e l ling or of f ering the s am e f

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

f erences o f f

reight and other necess a r y expenses of

sale and delivery

considered; (e) Or shall de s t r o y or attem pt to destroy com

petition by rendering any s ervice or m anipulating, handling or storing any com m odity f or a l ess p rice in o ne loc a l i ty 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 h eld a trust a nd com bine within the m eaning and p u r p o se of this section, and shall be liable to the pains, penalties, f

ines, f orf eitures, judgm ents, and r ecoveries denounced a g a i nst trusts and com bines and shall be 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 icient to m ake ou t a p r i ma f acie case of a violation of subdivision ( e ) o f t his section to show l ower charge f or the service therein

5m ention e d i n o n e locality than a nother, or to show a higher p rice paid f or a commo d i ty in one locality than another, dif f e r ences of f

reight and other necessary expenses of operating business considered. 4 ¶11. Cook Tim

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

ic’s “Project Hawker” p rice-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 so it could r ef use to purchase t im

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

i c’s contractual right to cull 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 not support it. ¶12. Conduct that violates S ection 75-21-3 m ust f all under a t least one of subsections (a) through (e). 5 Clearly , subsections (d) and (e) are inapplicable because both address dif f erential pricing between localities in the state, a n d Cook Tim b er d oes not allege that Georgia Pacif

ic engaged in this practice. 6 ¶13. Subsection ( b) prohibits a m arket participant f ro m “m onopoliz[ ing] or attem pt[ ing]

t o m onopolize the p roduction, control or s ale of any c o m m odity , or the prosecuti o n ,

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

4 Id

. 5 Id

. 6 Id

. 7 Id

. 6as “1. [ c]ont r o l o r advantage obtained by one supplier or producer over the com m ercial

m arket with i n a given region. 2. The m arket condition existing when only one econom ic entity p roduces a particular product or provides a particular service.” 8 No evidence supports

a conclusion that Georgia Pacif ic m onopolized or attem

pted to m onopolize its i ndustry

. In f act, this case does not involve claim s about Georgia Pacif ic’s industry itself

, but rather f

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

ber’s claim s. ¶14. T h is leaves subsections (a) and ( c )

. Subsection (a) p r o h i b i t s a b u s i n e s s f r o m “[ r]estrain[ ing] o r attem

pt[ ing] to restrain the f

reedom of trade or production.” 9 W ith regard

to the restraint-of

-trade provision , t h i s C o urt has said that “ o ur anti-trust statute was only i n t e nded t o em

brace within its p rovisions t hose contracts in restraint of trade whi c h w e r e invalid as against public policy bef ore the enactm ent of s aid statute.” 1 0 No authority supports the view t hat, b e f

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

o r the lowest possible cost. ¶15. Finally , s ubsection (c) p rohibits a business f r om “ e n g r o s s [ i n g ] , f

o restall[ ing] or

attem pt[ ing] to engross or f

orestall any com m odity .” 11 Under an older version of the statute, this Court held that the statute prevented businesses f rom f ixing prices f

o r com m odities

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 ro w n v

. S ta p le C o tto n C o o p . A ss’n , 1 3 2 M iss. 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 M i ss. C o d e A n n . § 7 5

- 2 1 -3 (c) (R ev . 2 0 0 9 ). 7outside the law o f supply and dem and. 12 Fo r i n s t a n ce, that prohibition precluded an

agreem ent between oy ster sellers alway s to sell oy sters at a f ixed price. 13 W hile t he current version o f the statute does n ot contain the phrase price f i xing, engross, in the a ntitrust sense,

m eans “to buy large quantities of (a stock or com m odity ) in an ef f ort to corner the m arket and control the p rice.” 14 But t h is case involves Georgia Pacif ic’s actions as a consum er, n ot a seller. It cannot be said Georgia Pacif ic attem pted to corner a m a r

ket when it is not acting

as a seller in that m arket. Likewise, “ f orestall” m eans “[ t ]o b uy (goods) f or the purpose of reselling at a higher price.” 1 5 Georgia Pacif ic however, a t t e mpts to p urchase t im ber at the lowest possible price f

rom suppliers who deliver at a cons i s t ent p rice, and it intends to stockpile tim

ber in anticipation of higher f uture tim ber p r i c e s . T h is strategy and conduct sim ply is not illegal. ¶16. 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.

12 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 ).

13 Id .
14 E n g ro ss , B lack ’s L aw D ictio n ary 4 7 8 (ab r. 9 th e d

. )

. A s it relates to b u y in g a co m m o d i ty , “en g ro ss” r elates o n ly to ef f o rts “to c o r

n er t h e m ark et a n d co n t ro l th e p rice” o f a co m m o d ity

. Id

. B y w ay o f illu stratio n , a n o il co m p an y en g ro sses a c o m

m o d ity w h e n i t p u rch ases all t h e o il in M i ssissip p i f o r th e p u rp o se o f settin g th e p rice o t h er p u rch asers m u st p ay f o r o il. B u t, if a tru c k in g co m p an y p u rch ased all t h e o il in M ississip p i— n o t “in an ef f ort t o c o r n er the m arket and control t he price” of o il, but b ecau se i t n eed ed th at o il t o r u n i t s tru ck s, it w o u ld n o t h av e en g ro ssed th e co m m o d i ty

. H ere, G eo rg ia P acif ic is th e latter, n o t th e f o r m er. It p u rch ased tim

b er as a raw m aterial f

o r its p ro d u cts, n o t to p articip ate as a seller in th e tim

b er m ark et.

15 F o resta l l , B lack ’s L aw D ictio n ary 5 6 4 (ab r. 9 th ed .). 8Because w e reverse the jury ’s v erdict, we n e e d 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 ¶17. As discussed above, while Section 75-21-3 governs u n i l a t e r a l c o n d

u ct, Section 75-21- 1 controls conduct by

trusts or com

bines. That section states:
A trust or com

bine is a com

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

plied, 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, transp o r t a tion, sale o r 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 o f stock o f any trust and com bine within the spirit of

this chapter knowing it to be suc h a t the tim e of the issue or the acquisition or holding such certif

icate; or (g) To p lace the control to any extent of business or of the proceeds or e a r nings thereof , contrary to the spirit and m e aning o f this chapt e r, 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

9control 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 6 ¶18. A threshold requirem ent to any violation of this statute is “a c om bination , c o ntract, understanding or agreem ent” to c om m it the prohibited p r a ctices. W e f ind t hat the circuit j u d g e properly granted a directed verdict on this claim because Cook Tim ber p u t f o r t h insuf f icient evidence to establish the necessary agreem e n t between m arket participants. ¶19. W e review “a trial court’s grant o r denial of a m otion f or directed verdict de novo.” 17
The m otion should be granted where, t aking all evidence in f avor o f the nonm oving party as
true and drawing a ll f

avorable inf

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

. 18 ¶20. A price-f

ixing c o n s p i r acy m ay be established by circum stantial e vidence. 19 But, as the United States Suprem e Court has said with regard to the f ederal Sherm an Act: “[ T]he crucial question” is whether the challenged anticom p e t i t i ve conduct “ste ms f r om independent decision or f rom an agreem ent, t acit or express.” W h ile a s howing of parallel “business behavior is adm issible circ u m s t antial evidence f

rom w hich the f

act f inder m ay i nf

e r agreem ent,” i t f

alls short of “conclusively e stablishing agreem ent o r . . . itself constituting a Sherm an Act

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

17 S o la n k i v. E rvin , 2 1 S o . 3 d 5 5 2 , 5 5 6 (M i ss. 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 )).

18 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 )).

19 W a g ley v. C o lo n ia 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 ). 1 0of

f ense.” Even “con s c i ous parallelism ,” a com m on reaction of “f irm s in a concentrated m arket that recognize their shared econom ic i n t erests and their interdepend ence with respect to price and output d ecisions” is “not in itself unlawf u l.” 20 Here, the evidence at m ost establishes conscious parallelism

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

ic executives. That em ail stated that:
I am getting reports that som e of the com p etition is pulling t heir p r i c e d o w n about as f a st a s we are . I am of t he opinion that we are the ones m aking the dif f erence and every one else is f ollowing.

. . . The dif f erence this i n this y ear and 1995[ sic]is that all t h e c o mpetition is wanting to do the sam e thing. ¶22. This em ail ref

lects an observation and f a lls f ar short of establishing either a n express

or im p lied agreem ent between the parties. No r eason a b l e j u ror, 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 c om panies were n ow pay i ng lower prices f o r tim ber. So we af

f irm t he circuit judge’s decision to grant a directed verdict on this claim

. Cook Tim ber’s Breach-of-Contract Claim ¶23. 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 i ts quality s pecif i cations, to f

orego p ay m ent f or that wood, a nd keep it n evertheless. It also involves Georgia Pacif ic’s f ailure to m aintain scale

20 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 1tickets with the s tatutorily p r escribed inf orm ation and Cook Tim

b er’s claim that this creates
a presum ption that Georgia Pacif

i c did not properly

scale or m easure the wood. ¶24. Mississippi Code Section 75-27-113(4) provides that: Scale tickets shall be m ade available to the h aulers and tim ber owners f

o r each load bef ore the c l o s e of the f

ollowing business day a nd shall include the m easured volum e or weight, the s tandard o f w eight or m e asurem ent used, and the basis and am ount of

any deductions. ¶25. Here, the scale t ickets entered into evidence f a iled to include the s tatutorily required inf orm ation. The scale tickets f rom the Tay lorsville Mill and the B ay Springs Mill f ailed to identif y the basis f

or a ny dockage or the a m o u n t of the d ockage. Ricky Kelly , a f orm er G e o r g i a Pacif

ic m a nager, testif

ied that each scale t icket had sy m bols representing t he reasons f or the dockage a nd a lso l isted the weight th a t w a s d o c k e d. 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. ¶26. Cook Tim

ber learned of the dockage am ount only af ter it received a settlem ent sheet and com pared the settlem ent sheet with the scale ticket. S o 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. 21 ¶27. Also, Cook T im

ber presented an em ail f

rom a Georgia P acif

ic 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 supply

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

line is that we have to m ake these changes now.

21 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 2¶28. This em ail c ould be read two way s . It m ight me a n t h a t G e o r g i a P a c i f i c had encountered a large am ount of substandard w o od, and the author of the em ail was warning against culling all of i t because doing so m ight h ave appeared to have been an attem pt to save

m oney , rather than t o com p l y with the contract. O r, it could be read as an attem p t to begin slowly to cull w ood that was n ot substandard. That i s t o s ay , reasonable j urors could read the em ail to say that Georgia Pacif ic culled wood—which it w a s e n t i t l e d to keep without
pay m ent—not b ased on t he wood’s f ailure to conf

orm to its quality specif

ications, but a s a
way to take quality w ood without p ay 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 verdict on the breach-of -contract claim

. ¶29. The e xistence of a contract between the parties is 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 specif

ications. W e f

ind t hat a reasonable juror could conclude that Georgia Pacif

ic c ulled wood f

or other r e a s o ns—m ainly to lower prices—and that this breached its co n t r a ct w ith Cook Tim ber. So the directed verdict was not proper on this claim

. CONCLUSION ¶30. W e f

ind that Cook Tim

ber f ailed to present suf

f icient evidence to sustain the jury ’s verdict b ased o n a unilateral antitrust violation. S o we reverse and render judgm ent in Georgia Pacif

ic’s f avor o n t h a t c l a i m. W e f ind that the circuit judge properly g ranted a directed v erdict on C ook Tim ber’s conspiracy claim

. So we af f irm that ruling. Finally , we

1 3f

ind that t he circuit judge erred by granting Georgia Pacif ic a directe d v e r d i c t on Cook Tim ber’s breach-of

- contract c laim

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

. ¶31. 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., L AMAR, COLEMAN AND MAX WELL, JJ., CONCUR. MAX W ELL, J., SPECIALLY CONCURS W I T H SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.; R ANDOLPH, P.J . , J O I N S IN PART. 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: ¶32. I agree Cook Tim

ber’s b reach-of

- contract c l aim should have b e e n subm itted to the jury

. So the trial court’s directed verdict on this c l aim m ust be r eversed and t his issue

rem anded. I also a gree Cook Tim be r ’ s e v i d e nce 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 d am ages still m ay be recoverable on rem and. ¶33. Ironically , there is—at a m inim um —som e question whether p unitive dam ages even are allowed in antitrust cases. Indeed, the s tatute m entions only a $500 penalty

. See Miss. Code Ann. § 75-21-9 (Rev. 2009). 22 And this court has not decided the issue. ¶34. But in contrast to an antitrust claim , i t is cry stal clear that a b reach-of -contract action certainly c arries the potential t o recover punitive dam ages. T.C.B. Constr. Co. v. W.C. Fore Trucking, Inc. , 134 S o. 3d 7 01, 704 (¶9) (Miss. 2013) (discussing the evidentiary standard

22 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 4and procedure t o r e c o v e r punitive dam ages f or a breach-of

-contract c l aim ). To recover punitive d am ages in its breach-of -contract action, Cook Tim ber “m ust prove that the breach

was the result of an intentional w rong or that a [ Georgia Pacif ic] acted m aliciously

or with reckless disregard of [ Cook Tim ber’s] rights.” Id. (q u o t i n g P ursue Energy Corp. v. Abern a t h y , 7 7 S o . 3d 1094, 1101 (¶23) (Miss. 2011)). As eight m e m bers of this court 23

em phasized in T.C.B. , out-and-out m aliciousness does not h ave to be p roven t o recover punitive dam ages—showing reckless disregard or an intentional wrong will suf f i ce to send the question of punitive dam ages to the jury

. I d. at 705 (¶11) (em

phasis added). In that case,

we f ound a contracting party ’ s duplicitous attem pt to “to reap the benef

its of i t s c o ntract while a t the sam e tim e deny ing its obligations” was e n ough to send the q uestion of punitive dam ages to the jury

. Id. at 705 (¶14). ¶35. 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 s uf f icient t o support the jury ’s consideration of punitive dam ages. DICKINSON, P.J., JOINS THIS OPINION. RANDOLPH, P .J., JOINS THIS OPINION IN PART. KING, JUSTICE, DISSENTING: ¶36. Because the m a

jority m isinterprets the antitrust statutes, I disagree with the m ajority ’s determ ination that C ook Tim ber f ailed t o present suf

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

ore respectf

ully dissent.

23 D ick in so n , P .J., n o t p articip atin g . 1 5¶37. Georgia Pacif i c (GP) contends that the verdict in f a vor o f C o o k T i mber Com pany (CTC) was not supported b y the e vidence because D r. W illiam Shughart f ailed to establish that GP was a m onopolist, and CTC did not present evidence showing that G P was engaged in a conspiracy , even af

ter Dr. Shughart testif

ied that GP m

ust have conspired with another party to have successively driven down prices. W e f i nd that there was s uf

f icient evidence f

or the jury to f ind that GP violated Mississippi Code Section 75-21-3. See Miss. Code Ann. § 75-21-3 (Rev. 2009). ¶38. Mississippi Code Section 75-21-3 states: Any corporation, dom estic or fo r e i g n , or individual, partnership, or association of persons whatsoever, who, with intent to accom plish the results h erein prohibited or without such inte n t , s h all accom plish such results t o a degree 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 shall engross f

o restall or attem

pt to engross or f

orestall any com m o dity

. . . . Miss. Code Ann. § 75-21-3 (Rev. 2009). ¶39. To analy

ze a restraint-of

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

v. Staple Cotton Co-op A sso c iation , 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 t rade. “It m ust be s uch a restraint of

trade as is detrim ental to the public interest.” Id . at 855. ¶40. This Court reviews a trial court’s denial of a judgm ent n otwith s t a n d i n g the verdict (JNOV) de n ovo . Mine Safety Appliance Co. v. Holm e s , 1 71 So. 3d 4 42, 446 (Miss. 2015).
W e view the evi d e n c e i n t h e l ight m o st f avorable to the n onm o ving party

. Union Carbide

1 6Corp. v. Nix, Jr. , 142 So. 3d 374, 384 (Miss. 2014). “W hen determ ining wh ether the

evidence w as suf

f icient, the critical inquiry i s whether the evidence i s o f s u ch quality that reasonable and f

airm inded jurors i n 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. A vara , 908
So. 2 d 716, 726 (Miss. 2005) (citing Jesco, Inc. v. W hitehead , 451 S o. 2d 706, 713–714 (Miss. 1984)) (em

phasis in o riginal). “Thus, this Court conside r s whether the evidence, as

a p p l ied to the elem ents of a party ’s case, i s either so i ndisputable, or s o def icien t , t h a t t h e necessity of a trier of f

act has been obviated.” Estate of J ones v. P hillips e x rel. Phillips , 992
So. 2d 1 1 3 1 , 1146 (Miss. 2013) ( citing Spotlite Skating Rink, Inc

. v. Barnes , 988 So. 2d 364, 368 (Miss. 2008)). ¶41. The m ajority f

inds that CTC’s c laim s do not f it within Section 75-21-3. In f inding so, the m ajority com

pletely ignores the plain language of the statute and c i t e s 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 ajority states that “this Court held that [ an older v ersion of the s tatut e ] p r e v e n t ed businesses f rom f ixing prices f

or com m odities outside the law of supply and dem a nd. For instance, that prohibition precluded an agreem ent between oy ster sellers a lway s to sell oy sters at a f ixed price. W hile the current v ersion of the statute does

not contain the phrase price f ixing, e n g r o s s , i n the antitrust sense, m eans “to buy large quantities of (a stock or com m odity ) i n an ef f ort to c o rner t he m arket and control the price.
But this case involves G eorgia Pacif ic’s actions as a consum er, not a seller.” Maj. Op. ¶ 15.

1 7The m ajority erroneously cit e s B a r a t aria Canning Co. v. J

oulian f or this p roposition.
Barataria Canning Co. v. Joulian , 80 Miss. 555, 31 So. 961 (1902). The Court in Barataria

exam ined the prohibitions a gainst lim i ting, increasing, or reducing the price of a com m odity , not the p rohibition against f orestalling or eng r o s sing. Further, the m a jority ’s e m

phasis on GP being a c onsum er, and not a seller, is curious, because both engrossing and f orestalling ref er to buy i ng behavior. To engross historically m eant “[ t]o buy l arge quantities o f (a stock

or com m odity ) in a n ef

f ort to corner the m arket and control the price.” Engross , Black’s Law Dictionary ( 10th ed. 2014) (em phasis added); V

illage F o o d & Liquor Mart v. H&S
Petroleum , Inc. , 6 47 N.W .2d 177, 184, 184 n.10 ( W is. 2002) ( quoting 4 W illiam Blackstone,
C o mmentaries on the Laws of England , ch. 12, at 159 (1778) as def ining engrossi n g a s

“ buying up l arge quantities of corn or other dead victuals, with the i ntent to sell them again. This m ust of course be injurious to the public, by p utting it in the power of one o r two rich

m en to raise the price of p rovisions at t h eir o wn discretion.” (em phasis a d ded)). To “f orestall” historically m eant “[ t]o buy ( goods) f or the purpose of reselling at a higher price.
At com m o n law, this was an indictable of f ense.” Forestall , B lack’s Law Dictionary (10th ed. 2014) (em

phasis added); V

illage Food & Liquor Mart , 647 N.W .2d at 184 n.8 (quoting
4 W i lliam Blackstone, C o m m e n t aries on the Laws o f England , ch. 1 2, at 158-59 (1778), def ining “f orestalling t he m arket” as “ buying or contracting f or any m e rchandise or victual

com ing in the w ay t o m arket, or dissuading p ersons f rom bringing their g oods to m arket; or dissuading persons f

rom b ringing their goods or provisions there; or persuadi n g t h e m to

e n hance the price, when there: any of which practices m ake the m arket dearer t o the f ai r

1 8trader.” (em p h a s e s added)). Clearly , subsection (c) c ontem plates – indeed it entirely

encom passes – buy ing behavior in its prohibition. The m ajority em phasizes t hat G e o r g ia Pacif i c cannot be engrossing because it is not attem pting to corner the m arket when it is not

a seller in that m a rket. 24 W h ile i t is true that engrossing and f orestalling of

t en traditionally involved reselling goods at a higher price, the point t he m ajority m isses is that the antitrust

statutes have f

or h undreds of y ears applied to purchasing behavior that harm ed the natural course of trade and was inim ical to the public welf are. ¶42. As f

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

u thority supports the view that , bef ore t his statute’s adoption, businesses were prohibited f rom seeking to p urchase m aterial
f or t he lowest possible cost.” Maj. Op. ¶ 1 4. A s described above, businesses have long been prohibited f

rom certain purchasing behavior, i ncluding certain behavior t o purchase at low prices. Moreover, when a business engages in purchasing behavior in an intentional attem pt
to m anipulate the m arket, i t is potentially a restr a i n t o f t r a de a n d thus a violation of the antitrust statute. Certainly , the exam ple given by the m ajority of a consum er “st o c k p iling”

a resource when the m arket f or t hat resource is naturally low in an ef f ort to lower long-term

24 C o o k T im

b er f iled a m o tio n f

o r reh earin g i n t h is case. T h e A tto r n ey G en eral f

i led an am icu s b rief o n b eh alf o f th e S tate o f M ississip p i b ecau se i t w as so co n cern ed ab o u t th e m aj o r ity ’s in co rrect in terp retatio n o f th e statu te, w h ich o rig in ally ap p e ared t o h o ld th a t n o b u y in g o r p u rch asin g b eh av i o r c o u ld co m e u n d er th e p u rv iew o f th e an titru st statu tes. T h e atto rn ey g en eral arg u ed th a t “th e C o u rt’s d escrip tio n o f [ S ectio n 7 5 -2 1 -3 ( c)] co u ld im p air th e S t ate an d p riv a te p l ain tif f s’ ab ility to h alt all an t ico m p e titiv e co n d u ct w h ich co n stitu tes en g ro ssin g o r f

o resta l lin g a co m m o d ity

. F o r in stan ce, p ro h ib ited co n d u ct in clu d es p rev en t in g th e n o rm al co u rse o f t rad e b y b u y in g u p v ast am o u n ts o r o th erw ise d iv ertin g a co m m o d i ty

. ” G eo rg ia P acif ic’s actio n s an d a ttem

p ted actio n s m a y b e said to h av e b een an tico m p etitiv e co n d u ct w h i ch p rev en ted th e n o rm al c o u rse o f t rad e, p a rticu larly sin ce th e ev id e n c e in d icates th a t G eo rg ia P acif ic w as in ten tio n ally m an ip u l atin g t h e n o rm al co u rse o f trad e. 1 9costs would not likely run af o u l of the antitrust statutes. However, t he evidence i n this case supports the conclusion that G P, a m ajor consum er of the com m odity a t issue, was n ot sim ply taking advantage of a naturally low m arket, but was att e m pting to m anipulate and control what would have otherwise been n atural m arket prices f or the com m odity it needed. W hen evidence of attem

pts to m anipulate a nd c o n t r o l the m arket exist, such behavior m ay f all within the am

b it of a r estraint of t rade under t he a ntitrust statutes, whether such behavior was

com m itted by a re s e l l e r o r a “m ere” consum er. Thus, I disagree with the m ajority ’s

m isinterpretation of the a ntitrust statute, and b elieve that we m u st e x a mi n e t h e evidence bef ore us. ¶43. CTC argues that G P p o 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) its Project Hawker program ; (b) the use of core/pref erred
sup p l i e r s ; ( c ) its exploitation of inventories at its m ills; (d) the c irculation of price lists to

com petitors; and (e) its docking and culling procedures and policies.
A. Project Haw ker ¶44. CTC claim ed that GP i m plem ented a program called P r o j e c t H awker to drastically reduce w ood p r ices. W hile the record is n ot clear a s to what exactly Project Hawker is, several GP internal docum ents m ade ref e rence to the program

. ¶45. A m e m o with the subject “Operation Hawker” stated “I am getting reports that som e of the c om

petition is pulling their price down about as f ast a s we are. 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 only have one objective, deliver the cheapest log possible to the plants.”

2 0¶46. 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 translates 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.” ¶47. Noel Tulm ison, a current GP em ploy ee, testif

ie d t h a t he did not know what Project Hawker was but only that G P wanted to reduce its p rices. Roy W est, a f orm er GP m anager,
tes t i f i e d that the program was an initiative to reduce prices. According to W est, wood products 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. ¶48. Dr. Shughart testif i ed that Project Hawker was a m eans f or GP to reduce its prices by

seven percent but t hat GP f ar exceeded a seven percent decrease in prices. Dr. Shughart
f ound that, bef

ore GP im

plem ented Project Hawker, in March 1998 and several weeks bef ore, CTC re c e i v e d $ 3 3

. 50 per ton f or pine pulpwood. W hen the program was im p lem ented, the price w as reduced to $28 per ton until the end of M ay , whe n t h e 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 ¶49. GP instituted a c ore s upplier program whereby it re d u c e d t h e n u m b er of suppliers
f rom which it bought wood. C TC was not chosen as o ne of the core suppliers and argues that
GP’s ability to t erm inate its relat i o n s h i p w ith so m any suppliers dem onstrates the m arket
power GP possessed and its ability to m anipul a t e t h e m arket. An exam p le of the em ails regarding the core supplier program stated:

2 1I want y ou f o l k s t o pick t he suppliers y ou w ant t o d o business with a n d g ive them a GOOD quota, one t hey can m ake a living w ith. If t h e y are not consistent suppliers, get rid of them

. They will help d rive the price down. The discipline i s go ing to com e when they of f er y ou the wood cheaper than y ou have agreed to pay

y our steady

suppliers. MAKE THEM EAT IT. ¶50. 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. ¶51. However, ac c o r d i n g t o We s t , t h e c o r e s u p p l i e r p r o g r a m was a concept that GP instituted to have as f

ew s u p p l i e r s p r oduce as m uch wood as GP needed t o operate its
f acilities. W est claim ed t hat 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 ¶52. CTC claim s that GP increased its inventory by f illing i ts m ills t o 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 ent s trategy is f ounded on m aintaining t arget i nventories. 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 “walk away f rom deals.”
M o s t o f o u r inventories are at or above target which s h ould give us a d d e d conf idenc e that we can b ring prices down without unnecessary downtim e. I

2 2want to re-iterate, we a re w illing to take any solid wood f acil ity down i f we can’t m ake m oney or f

e el w e can greatly lower f uture wood cost as a result of the closure.
D. Distribution of Blue Sheets ¶53. 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 i ber. The blue sheets were posted o n t he i nternet, s ent to GP’s suppliers, and sent to several wood processing com panies that supplied wood to G P. CTC asserts that
GP violated its o w n a ntitrust 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) send any price list t o, or receive a ny price list f rom , a com petitor (other than a price list received f rom a regular supp l i er or sent to a regular custom er regarding the products supplied or sold). ¶54. This provision explicitly prohibits GP f rom s e nding its blue sheets to its com petitors; however, t his provision allows GP to send blue s heets to i ts regular custom ers. Ricky Kelly ,

a f o r me r G P ma n ager, testif ied that t he blue s heets were sent to com petitors that regularly sold wood to GP. CTC argues that the di s t r i bution was a v iolation because all of GP’s

com petitors would k

now 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 w o o d com panies could decrease their wood prices to com pete with GP.
E. Docking and Culling Procedures ¶55. In the purchase plant agreem ent, GP had the r ight to “dock” or deduct f ro m C TC’s f inal pay m ent the prices of any wood that was rotten o r had a def ect. W hen the wood was hauled to G P m ills, GP m easured the wood and m a d e any deductions. There was conf licting

2 3testim o ny regarding whether actual m easurem ents or estim a t i o n s w e r e m a d e a s to the dam age

on each log. Dennis Hough, a f orm er pro c urem ent m anager of GP, testif ied that GP

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

ied that each log was m easured. ¶56. Af ter the wood was m easured, GP m ade d eductions based on the location and extent of the def ect. In the purchase plant agreem ent, G P was allowed t o retain the wood that did

not m eet its specif

ications. CTC claim s that this practice allowed GP to l ower wood prices because f irst, GP could deduct p ay m ents without allowing truckers to ensure t hat the wood d i d n ot m eet GP specif

ications and second, CTC was not paid f or the def

e c t i v e w o o d although GP processed the wood and used it as “chip n saw.” ¶57. Viewing the evidence in the light m o st f a v orable 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

. Reasona b l e and f

air-m inded jurors could have com e t o d if f erent conclusions regarding whether G P engrossed, f

orestalled, or attem

pted t o engr o s s o r f

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

reedom of trade or production. ¶58. 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 issue, I will address m y vi e w s o n h ow w e should resolve the issue. ¶59. M i s s i s s i p p i C o de S ection 75-21-39, r egarding the applicabilit y o f t h e c h a p t e r , explicitly provides that “[ t]his chapter shall b e liberally construed in all courts t o the end that

trusts and com

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

rom com petition in business

2 4preserved to the people of this s tate.” Miss. Code Ann. § 75-21-39 (Rev. 2009). Thus, the

Legislature has specif

ically m a n dated that we liberally construe Section 75-21-9 when interpreting it. ¶60. 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 of such injury o r dam age, recover the sum of f ive hundred dollars, and all actual dam ages[ .]” Id. The chapte r a l s o included a n entirely s e parate penalty per violation t hat an entity violati n g t h e c h a p t er m

ust pay , recoverable b y the S tate, rather than what an individual injured m ay recover. Miss. Code Ch. 1 45, § 5004 (1906) ( Any one “violating any o f the provisions of this chapter, shall f o rf eit n ot l ess than two hundred dollars nor 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 sociation s hall continue to do so shall be a s e parate of f ense[ .]”). I n 1 9 2 6 , t h e Legislature changed this l anguage to stat e : “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 e cts 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 language “whether or not inim ical to public welf are” was

rem oved

. Miss. C ode Ch. 68 § 3440 (1930). The r elevant language and penalty have

rem ained unchanged since 1 9 2 6

. Miss. C ode Ann. § 75-21-9 (Rev. 2 009) (“Any person,
natura l or artif

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

i ned, or by its

2 5ef

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)[ .]”). ¶61. Thus, the m ajor alteration i n this statute w as changing that 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 substantive c hange than a s tructural one. R e m oving the specif ic ty p e of d am ages (actual) and changing it to “all dam ages” broadens the ty pes o f dam ages that an i nju r e d party m ay

recover. This is especially true when t he statute i s properly liberally construed to the end of

s u p p r e s sing trusts. See Miss. Code Ann. § 75-21-39 (Rev. 2 009). If the Legislature ha d

m eant to keep the dam ages recoverab l e t h e s a m e , i .e., lim ited to actual dam a ges, it had already specif

ically and c learly done s o , a n d n o p lausible explanation exists f or the Legislature to change the language so drastically to la n g u a g e t h a t 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 to som e e xtent. 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. 25 Standard Life
Ins. C o. of Indiana v . V eal , 354 So. 2d 239, 247 ( Miss. 1977) (quoting Snowden v. Osborne , 269 S o. 2d 858 (Miss. 1972), o verruled on other grounds by C & C Trucking Co. v. Sm ith , 612 So. 2d 1092 (Miss. 1992)). The injured p arty is ostensibly a m em ber o f the public, and

25 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 6thus sustained dam ages by the wrongdoer’s actions. Additionally , punitive dam ages, in part,

“ c o n s t itute[ ] com

p e nsation f

or the plaintif

f f or his or her ‘public service’ in bringin g t h e action.” A ndrew Jackson L ife Ins. Co. v. William s , 566 So. 2 d 1 172, 1190 (Miss. 1990);

see a lso United Am erican Ins. Co. v. Merril l , 9 7 8 S o . 2 d 613, 636 (Miss. 2007) (unanim ously

reaf f irm ing William s , 566 So. 2d 1172). ¶62. Mor e o v e r , S e c t i o n 7 5

- 2 1

- 3 9 a l s o c o n tains a savings 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 a ny wise af f ected t hereby [ .]” Miss. Code Ann. § 75-21-39 (Rev. 2009). Punitive dam ages existed in M i s s i s s i ppi 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. ¶63. 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 a n y t h i n g mo r e t han a very light s lap on the wrist to a corporation as large as G P. T hese am o unt s c a n hardly be argued to do any t hing toward suppressing tru s t s a n d c om b ines and encouraging com petition. 2 6 Thus, when we liberally

construe the statutes “to the end t hat trusts and com bines m ay b e suppressed, and the benef its arising f rom com petition in business preserved t o the people of thi s s t a t e[ ,]” we m ust conclude that t he Legislature m e ant to expand the dam ages allowable when it changed the language of the statute f

rom “actual dam ages” t o mo r e expansive phrasing, a n d we m ust

26 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 7conclude 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 deterrent to trusts and com bines and e ncourage

com petition in business f

or the b en e f

it of the p ublic, prom oting the Legislature’s stated purpose of

the antitrust statutes. ¶64. Because I conclude that punitive dam ages are allowed under the antitrust statutes, I will conduct a brief analy sis of th e o t h er issues regarding punitive d am ages that GP raises on appeal. ¶65. GP argues that no reasonable juror could have concluded that punitive dam ages were warranted under M i ssissippi C ode Sec t i o n 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 de n i a l of a m otion f

or d i r e c ted verdict, c onsidering t he evidence in the light m ost f avorable to t he appel l e e a n d giving the appellee the benef i t of a ll f avorable i nf

erences that m ay reasonably be drawn f rom that evidence, i s w hether “the f acts are so overwhelm ingly i n f avor of the appellant that reasonable jurors could not have arrived at a contrary verdict.” M ississippi Power & Light
Co. v . Cook , 83 2 S o . 2 d 4 74, 478 (Miss. 2002). Conversely , if substantial e vidence, or “evidence of such quality and weight that reasonable and f a ir m inded jurors i n the exercise of im partial judgm ent m ight have reached dif f erent conclusions,” in support of the verdict exists, this Court m

ust af f i rm . I d. ¶66. Punitive dam ages m ay be awarded if t he claim ant proves b y cle a r a n d c o n v i n cing evidence that the def

endant “acted with actual m a lice, gross negligence which evidences a willf ul, wanton or reckless disregard f or t he saf ety of others, o r c om m itted a ctual f raud.”

2 8Miss. 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.” The section of this opinion regarding suf f iciency of the evidence details m any o f t he 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 im p artial judgm ent m ight have reached dif f e rent c onclusions as to w h e t h e r actual m alice 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. ¶67. G P also argues i n the alternative that if t his Court does not r e v e r s e t h e p u n i t i v e dam ages award, it should r em 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). ¶68. GP asserts that the punitive dam ages award should be r em itted under Mississippi law. Mississippi Code Section 1 1-1-65 requires the trial court to take the f ollowing f

actors into consideration in determ ining whether a punitive dam ages award is excessive:
1. W hether there is a reasonable relationship be t w e e n t h e 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 reprehensibility of the def endant’s conduct, the duration of that c onduct, the def

e ndant’s awareness, any c o ncealm e n t, and the existence and f requency of sim ilar past conduct; 3. The f inancial condition and net worth of the def endant; and

2 94. In m itigation, t he im position of crim inal sanctions on the def endant f or its conduct and the existence of other civil a wards against the def endant f or the sam e conduct. Miss. Code Ann. § 1 1-1-65(1)(f )(ii) (Rev. 2014). The statute a lso 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
Andrew J ackson Life Ins. Co. v. W illiam s , 566 S o. 2d 1172 (Miss. 1990) ( punitive dam ages

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

am ount reasonably n ecessary to punish the wrongdoer, taking into consideration the harm f ul ef f ect on the individual litigant and the public. S ee Em ployers Mut. Cas. Co. v

. Tom pkins , 490 S o. 2d 897 (Miss. 1 986). In d eterm ining the am o unt of punitive d am ages, f our f actors

are considered: whether the am ount punishes and deters t he wrongdoer, whether the am ount deters others, whether t he am ount accounts f or the def endant’s f inancial worth, and whether the a m o u n t c om

p ensates the plaintif

f f or the public service i n holding the def endant accountable. 27 Merrill , 978 So. 2d at 6 36. GP opines that only t he f irst and second statutory f a c t ors are relevant, because n either CTC nor GP of f ered any evidence as to the t h i r d a n d
f ourth f actors. However, som e f

inancial i nf

o rm ation about GP was i n 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 wort h i s n o thing. I m ean, M r. C o ok was paid

som ewhere around 2.5 m illion o v er f ou r y e a r s f

or the wood h e sold.” The trial court also

27 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

. 3 0noted that the jury considered em ails em ana t i n g f rom GP headquarters t hat could com e across as “just being plain m ean.” ¶69. GP’s argum e nt i n this regard prim arily concentrates o n 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 harm s uf

f ered, because th e h a r m s u f f ered was quantif

ied as $11,089.47. It
notes that the ratio b etween punitive and actual dam ages is large, m ore than 225:1. However, what GP f

ails to a c k n owledge is t hat the harm suf f ered i n a n antitrust case i s largely harm

to the public and to com

p etition, not solely harm that r esulted to the s ingle p laintif f in this

case. Moreover, the f

irst s tatutory f

a c t o r a l s o considers t he h arm “ likely t o result” f rom GP’s behavior, which the p laintif f showed was suppre s s i o n o f c o m petition in the

m arketplace. This Court has approved punitive dam ages awards in ratios g reater than the one in this case. See, e.g. , Tom pkins , 490 So. 2d 897 (approving punitive dam a ges i n a n am ount 800 tim es greater than actual dam ages); Independent Life & Accident Ins. Co. v. Peavy , 528
So. 2d 1 1 12 (Miss. 1988); State Farm Mut. Auto. Ins. Co. v. Grim es , 722 So. 2d 637 (Miss. 1998) ( approving a punitive dam ages award with a r a t i o o f punitive to com pensatory 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). ¶70. T h e s econd f

actor looks a t the reprehensibility of GP’s conduct, a s w e l l a s t h e duration, G P’s awareness, any concealm ent, and the existence of sim ilar past conduct. GP
argues that its conduct was not reprehensible. Yet, as the trial court noted, som e GP em ails

3 1regarding the pricing schem e s w e r e “just b eing plain m ean.” 28 Moreover, GP’s pricing

schem es lasted f

or several y e ars, thus the duration o f the conduct was c ertainly signif icant.
GP was a l so clearly aware of its pricing s chem es, and the t rial cou r t n o t e d t h a t it at tim es invoked a “m ean” spirit in apply ing them

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

orm ation reg a r d i n g t he s c hem es. For exam ple, an em a i l out of GP headquarters in A tlanta stated that “For every 1% t hat y ou can reduce overall wood cost, y ou will add $25 m illion to our operati n g p r o f i t

. T h u s, if w e hit our goal of a 10% reduction

across all products i n the 3rd quarter, we will add $ 250 m illion to the b ottom 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 e a r at this tim e[

. ]” In another 1 999 note f rom G P, industry news

was quoted stating that GP’s “net incom e increased 114 percent t o $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

a l l b e p r o u d of the accom plishm ents y ou have acheived [ sic] thus f ar. Millions of dollar s have been placed back in G-P’s p ockets, inste ad 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

28 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 2in the f

ourth q uarter but will still be abo v e $ 1 3 0 mi l l ion in savings. This will be approxim a tely

10% of G-Ps prof

i ts f or the y ear!” The r ecord also contains other f inancial inf orm ation about G P, as w ell as other inf orm ation relating to the prof i ts and savings f

rom the schem es at issue. ¶72. Cer t a i n ly , the inf

orm ation about the p rof

its earned f

rom the schem es r elates to the relationship between the puniti v e dam ages award and the harm done or likely to occur, as well as the reprehensibility of the conduct. It f u rther t ouches on the f

inancial condition of GP, and is also im

portant to determ ine the a m 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 ears. It appears o bvious 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

. 29 It is dif f i cult to im agine that a lesser a ward would “punish and deter” a corporation as large as GP.

29 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 3¶73. Because I believe this Court should determ ine that S ection 7 5-21-9 allows punitive

dam ages i n a ntitrust cases, I would af f irm t he 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

.

3 4