Kyle RHODES, Wesley Atwood, and Samantha Hudon, Individually and as Plaintiff Class Representatives, Appellants
The KROGER CO.; Andrea Tyson; and Patrick Scherrey, Appellees
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-1907],
HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
Law Firm, PLC, by: Gene A. Ludwig, Kale L. Ludwig, Little
Rock, and Kyle P. Ludwig, for appellants.
Donelson, Bearman, Caldwell & Berkowitz, PC, by: Bruce A.
McMullen; and Friday Eldredge & Clark LLP, Little Rock, by:
James M. Simpson, for appellees.
Linker Hart, Justice
Rhodes, Wesley Atwood, and Samantha Hudon (Rhodes),
individually and as class representatives, appeal from a
Pulaski County Circuit Court order granting judgment on the
pleadings and dismissing their cause of action against the
Kroger Company, Andrea Tyson, and Patrick Scherrey (Kroger).
On appeal, Rhodes argues that Arkansas Code Annotated section
4-75-501 provides them with a vested right to equal pricing;
the exceptions added by Act 850 of 2017 do not apply
retroactively; and the circuit court abused its discretion in
granting Krogers motion for judgment on the pleadings when
questions of fact remained. We affirm.
to its amendment in 2017, section 4-75-501 stated:
§ 4-75-501. Manufactured products, coal oil, or dressed beef.
(a) It shall be unlawful for any person, company,
corporation, or association engaged in the sale of any
manufactured product, coal oil, or dressed beef, to:
(1) Sell any such manufactured product, coal oil, or dressed
beef at a greater cash price at any place in this state, than
the person, company, corporation, or association sells the
manufactured product, coal oil, or dressed beef at other
points in this state, after making due allowance for
difference in cost of carriage or other necessary cost; or
(2) Willfully refuse or fail to allow to any person,
corporation, or company making purchases of the manufactured
product, coal oil, or dressed beef all rebates and discounts
which are granted by them to other purchasers, for cash, of
like quantities of the manufactured product, coal oil, or
(b)(1) Any person, company, corporation, or association
violating any of the provisions of this section shall
forfeit not less than two hundred dollars ($ 200) nor more
than one thousand dollars ($ 1,000) for every such offense.
(2) Each unlawful sale or refusal or failure to allow the
rebate or discount shall constitute a separate offense.
(c)(1) The penalty in cases pursuant to this section is to be
recovered by an action in the name of the person, company,
corporation, or association damaged by the greater price or
refusal of, or failure to allow, the rebate or discount or in
the name of the state at the relation of any prosecuting
attorney in this state.
(2) The moneys thus collected shall be paid to the person,
company, corporation, or association bringing the suit, and,
when the suit is brought in the name of the state, the moneys
collected shall be paid, one-fourth (1\ 4) to the prosecuting