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Rhodes v. Kroger Co.

Supreme Court of Arkansas

May 30, 2019

KYLE RHODES, WESLEY ATWOOD, AND SAMANTHA HUDON, INDIVIDUALLY AND AS PLAINTIFF CLASS REPRESENTATIVES APPELLANTS
v.
THE KROGER CO.; ANDREA TYSON; AND PATRICK SCHERREY APPELLEES

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-1907] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE

          Ludwig Law Firm, PLC, by: Gene A. Ludwig, Kale L. Ludwig, and Kyle P. Ludwig, for appellants.

          Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, by: Bruce A. McMullen; and Friday Eldredge & Clark LLP, by: James M. Simpson, for appellees.

          JOSEPHINE LINKER HART, JUSTICE

         Kyle 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 Kroger's motion for judgment on the pleadings when questions of fact remained. We affirm.

         Prior 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 dressed beef.
(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 attorney ...

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