We hold that the Indiana Antitrust Act does not create a civil treble damage remedy against an arm of government.
Factual and Procedural Background
The following facts are alleged in the complaint. We take them as true for purposes of this interlocutory appeal of the denial of a motion by a defendant for judgment on the pleadings. 1
The School Corporation undertook a building project for Brownsburg High School that included a fine arts addition and a swimming pool. The School Corporation hired Schmidt Associates as its architect, and Schmidt retained Spear Corporation as a pool consultant. Spear is a distributor for Myrtha Pools USA, which manufactures prefabricated pools. Specifications were published for general contractors to bid on the entire project. Included were specifications derived from language provided by Spear calling for a concrete and tile cast-in-place pool and alternate specifications for a prefabricated pool tank. Plaintiff, Natare Corporation, a supplier of prefabricated pools based in Indianapolis, claims that the specifications included language that only a Myrtha prefabricated pool could meet. In addition to the pool tank, the specifications also called for a moveable bulkhead. Natare claims that the bulkhead specifications were based on a Myrtha design and excluded Natare's product from consideration. The School Corporation responds that its specifications were drawm to get the best product at the lowest cost. We of course express no opinion on the validity of either party's allegations.
The bid documents contemplated submission of proposals that did not meet the specifications, but only if any variations from specifications were approved by the architect. 2 Natare attempted to gain ap *338 proval of its products, including its prefabricated pool tank and moveable bulkhead, as meeting this "or equal" requirement. Schmidt responded that Natare's prefabricated pool tank with a PVC liner system was not equal to the specified panelized heat bonded PVC laminated system. Schmidt also noted that Natare had not identified any completed projects using Natare's proposed system. Schmidt ultimately also rejected the Natare bulkhead design, which utilized foam materials in the buoyancy chambers, as not equal to the specified stainless steel movable bulkhead. After this exchange, three general contractors submitted bids for the entire project. Each relied on bids for the pool from either a local contractor or Spear.
In March 2003 Natare sued the School Corporation, Schmidt, and Spear, alleging that the three had conspired to exclude Natare from consideration as a supplier for the pool and bulkhead in violation of the provision of the Indiana Antitrust Act prohibiting combinations in restraint of trade, Indiana Code section 24-1-2-8 (2004). Natare alleged that the wording of the specifications unreasonably limited competition by requiring bidding contractors to use Myrtha Pool materials and equipment supplied by Spear, and that Spear had a significant role in determining whether other products were "equal." Pursuant to Indiana Code section 24-1-2-7, the complaint sought treble damages, costs, and attorney fees for violations of the Indiana Antitrust Act.
The School Corporation answered the complaint and moved for judgment on the pleadings under Indiana Trial Rule 12(C), alleging that it was not a "person" as that term is used in the Indiana Antitrust Act, and, therefore, was not an entity subject to the civil treble damages remedy provided by that statute. The trial court denied the motion but granted the School Corporation's petition to certify the order for interlocutory appeal. The Court of Appeals affirmed, holding that a school corporation is a "person" who can sue and be sued under the Indiana Antitrust Act. Brownsburg Cmty. Sch. Corp. v. Natare Corp.,
I. Public Purchasing
The Public Purchasing laws include provisions addressing contracts by school corporations, and requiring, inter alia, that the contract be awarded to "the lowest responsible and responsive bidder.
3
Ind.Code § 5-22-7-8 (2004). Only a citizen or a taxpayer of a municipality may challenge the award of a government contract under Indiana's Public Purchasing Statute. : See All-Star Constr. & Excavating, Inc. v. Bd. of Pub. Works,
II. Indiana Antitrust Act
Because Natare has no claim for damages under the Public Purchasing Statute, it seeks to bring its claim under the Indiana Antitrust Act. Ind.Code § 24-1-2-1-12 (2004). The principal issue is whether a governmental entity is subject to the private treble damages remedy provided for violation of the antitrust act.
A. The Statutory Framework
Sections 1 and 2 of the Indiana Antitrust Act, I.C. § 24-1-2-1, et seq., are comparable to the federal Sherman Act, 15 U.S.C. sections 1 and 2, respectively. Like section 1 of the Sherman Act, Indiana Code section 24-1-2-1 addresses combinations in restraint of trade. . Similarly, section 2 of the Sherman Act and Indiana Code section 24-1-2-2 both deal with monopolization. Indiana has two additional provisions for which there is no federal counterpart. Section 8, I.C. § 24-1-2-3, prohibits the restraint of bidding for letting of contracts whether public or private, and Section 4, I.C. § 24-1-2-4, addresses remedies for "collusion or fraud" among contract bidders. Specifically, Section 4 of the Indiana Antitrust Act provides that in- cases of "collusion or fraud ... among the bidders at the letting of any contract or work as provided in [Section 3] ... the principal who lets the contract ... shall not be liable for such letting or on account of said contract ..." Section 4 thus frees the principal who lets a contract tainted by "collusion or fraud" among bidders from liability on the contract. By its terms, Section 4 applies only if there is "collusion or fraud ... as provided in [Section 31." It thus does not prohibit any conduct. Rather, it deals with remedies for violations of Section 3.
Section 3 of the Indiana Antitrust Act does not use the term "collusion or fraud," but does prohibit certain conduct. It provides: " '
A person who engages in any scheme, contract, or combination to restrain or restrict bidding for the letting of any contract for private or public work, or restricts free competition for the letting of any contract for private or public work, commits a Class A misdemeanor.
I.C. § 24-1-2-3. Natare alleges that the defendants violated Section 3 by denying Natare's products "equal" status under the specifications and thereby restraining Na-tare's ability to bid. The School Corporation responds that because it is a governmental entity it is not subject to the Indiana Antitrust Act's criminal and civil penalties.
. B. Indiana Case Law
Three appellate decisions have referred to the treble civil damage provision of the Indiana Antitrust Act in the context of a claim against a governmental entity, but none was faced with the question whether or not a remedy existed against the entity itself.
In City of Auburn v. Mavis,
In Shook Heavy & Environmental Construction Group v. City of Kokomo,
The unsuccessful bidder in Shook sought only an injunction and asserted its claims under the Public Purchasing Act. In making this passing reference to remedies under Section 7, we were not faced with the question of who among the potential defendants might be subject to a "challenge" under this section. Nor were we concerned 'with precisely what form that challenge might take. A combination in restraint of trade necessarily involves at least two parties. Lawrence Anthony Sullivan, Antitrust 323 (West 1976). And an entity cannot combine with its own employees or subsidiaries. See Schwimmer v. Sony Corp. Am.,
Shook took its reference to Section 7 remedies directly from All-Star Construction & Excavating, Inc. v. Board of Public Works,
In sum, the issue in this case, whether a local or municipal government is susceptible to a claim for treble damages under Indiana Code section 24-1-2-7, is a matter of first impression.
C. Criminal Lisbility of Governmental Entities
By their terms, the only portions of the Indiana Antitrust Act that contain substantive prohibitions are Sections 1, 2, and 3. These sections are framed similarly to provisions of the Criminal Code and provide that it is a Class A Misdemeanor to engage in the actions prohibited. We think the legislature, when writing this statute in 1907, did not contemplate a governmental entity as a potential violator of its prohibitions. First, on the only occasion where the issue has been addressed by an Indiana appellate court, the Court of Appeals held that the State could not be criminally responsible, even where the statute prohibited acts by "persons" and defined "person" to include "governmental entities." In State v. Ziliak,
Natare argues, and the Court of Appeals agreed, that Ziliak is inapposite here because it dealt with a claimed crime by the State itself, and did not address whether a subdivision of the State could commit a crime. Brownsburg Cmty. Sch. Corp. v. Natare Corp.,
*342 Indiana law as reflected in Zilick is consistent with other United States jurisdictions in rejecting the possibility. of a crime by the government. Relevant federal cases and statutory authority are sparse. One federal statute carrying criminal penalties (regulating prices and profits for commodities in emergencies) defines "person" as "an individual, corporation, partnership, association, or any other organized group of persons :.. and includes the United States or any agency thereof, or any other government, or any of its political subdivisions, or any agency -of the foregoing." Emergency Price Control Act of 1942, c. 26, Title III, § 302(h), c. 26, 56 Stat. 36. Section 205 of the Act provides for injunctive remedies and criminal fines and imprisonment for convictions. However, the definition of person also explicitly states that: "no punishment provided by this Act shall apply to the United States, or to any [federal, state, or local] government, political subdivision, or agency." Id. This definition has been interpreted to mean that governmental agencies are exempt from the act's criminal liabilities, but not necessarily its remedial sanctions. See 1 Working Papers of the Nat'l Comm. on Reform of Fed. Criminal Laws 175 (1970), typically known as the Brown Commission. The Brown Commission also noted that though the Emergency Price Control Act specifically extended its prohibitions to governmental entities, "no case has been found in which a court has held such an agency subject to the Act." Id. The Brown Commission concluded by recognizing that although "there is nothing in the nature of a municipal corporation which would make it inherently incapable of committing a crime, there does not appear to be a Federal case holding a governmental entity as such criminally liable." Id. at 176.
State law also finds the concept of a crime by the sovereign to be an alien notion. We have found no eriminal code in this country that imposes eriminal liability on the sovereign and only one that would permit a fine on an arm of the government. 5 The Model Penal Code specifically excludes from its definition of "corporation" any entity "organized as or by a governmental agency for the execution of a governmental program." American Law Institute, Model Penal Code § 2.07(4)(a) (P.O.D.1962). The commentary to section 207(4)(a) observes that "[lliability in such cases would seem entirely pointless, although of course the liability of individuals involved in criminal activity is preserved." 1 American Law Institute, Model Penal Code § 207(5)(a), at 345 (1985). At least five states have adopted a version of 2.07(4)(a). 6 Most states, however, like Indiana, contain no express treatment of the issue in their general criminal laws. In the absence of specific legislative direction, we think the Court of Appeals correctly concluded in Ziliak that the legislature did not contemplate a violation of *343 a criminal prohibition by a governmental entity.
D. Specific Provisions of the Indiana Antitrust Act
Natare claims a violation of Section 8, and seeks treble damages for its lost time in preparing a useless bid and attorney fees, under Section 7 of the Indiana Antitrust Act. 7 That section, tracking section 15 of the Clayton Act, provides treble damages and attorneys fees for those injured in their "business or property" by a violation of the Indiana Antitrust Act. This section purports to give a right to treble damages to any "person" injured by any "person" doing "any thing forbidden or declared to be unlawful" by any of the first three sections of the Indiana Antitrust Act. 8 Consistent with the usual legislative silence on the application of criminal laws to governmental entities, the Indiana Antitrust Act neither defines "person" to include a governmental entity nor specifically excludes the possibility of a crime by such an entity.
The School Corporation argues that it is not a "person" as that term is defined in the antitrust act. Indiana Code section 24-1-2-10 provides definitions similar to those found in the Sherman Act, 15 U.S.C. § 7 (2000):
The words "person" or "persons" whenever used in this chapter shall be deemed to include corporations, associations, limited liability companies, joint stock companies, partnerships, limited or otherwise, existing under or authorized by the laws of the state of Indiana, or of the United States, or of any state, territory, or district of the United States, or of any foreign country.
1.C. § 24-1-2-10. Natare argues that the Sehool.Corporation can be liable for treble damages and attorney fees because "person" is defined by the statute to include "corporations," and school corporations are not explicitly exempt from this definition. School corporations, like general business corporations, are creatures of statute. In the case of school corporations, they are created pursuant to Indiana Code section 20-4-1. Reflecting that statufe, the Brownsburg School Corporation uses the term "corporation" as a part of its legal name. The Court of Appeals found this persuasive and agreed with Natare that a sehool corporation is a "person" subject to the treble damages remedy provided by the antitrust act. We disagree for reasons grounded in the text of the Antitrust Act 'as well as the general assumption that criminal laws are not applicable to governmental entities.
The School Corporation first argues that the term "corporation" is ambiguous and that the General Assembly did not intend the term to include governmental entities. As originally enacted in 1907, the antitrust law's definition of "person" included, "corporations," "associations," "companies" and "partnerships." The School Corporation points out that the other entities included in this definition as "persons" are all private business entities, and argues that this 7) 6 *344 implies all "persons" are from the private sector. Moreover, in contrast to the silence of the Antitrust Act on this point, the School Corporation offers a number of statutes where the General Assembly has treated political subdivisions as distinct from "corporations" and subjected public bodies to the same treatment as private corporations by express language. 9
We do not believe the definition of person is the central issue in determining whether the School Corporation, or any arm of government, is susceptible to a claim for treble damages. Although we recognize the maxims of statutory construction involved here, we find them at best suggestions, and not directives. It would be anomalous indeed if a private business overcharged as a result of price fixing can recover treble damages but a school corporation cannot. We agree that municipal corporations are "persons" as that term is used in the Indiana Antitrust Act. They therefore can sue under Section 7 if injured in their "business or property" by an antitrust violation. But it does not follow that they are also potential treble damage defendants. In order to be sued under Section 7, a "person" must have done something "forbidden by" the Indiana antitrust law. The substantive prohibitions of the antitrust laws are erimi-nal in nature. Accordingly, we think the legislation did not contemplate the possibility of a governmental entity engaging in an action forbidden by the statute. Rather, as Section 4 reflects, the statute views governmental entities as victims, not perpetrators, and explicitly relieves them of liability from a contract that was the result of collusive bidding.
Natare also asserts that when the General Assembly first enacted the statute that created school corporations, I.C. § 20-4-1-26.1 (formerly I.C. § 20-4-1-26), it expressly included a provision that school corporations could sue and be sued. We think this is of no relevance to the issue before us. The power to sue and be sued simply confers general legal capacity on the entity. It says nothing about what kinds of suits the entity may bring or what liabilities it may incur. Natare also points out that the Antitrust Act was amended by the General Assembly in 1986 and in 1998 and did not exempt municipal corporations *345 form the act. 10 From this, Natare reasons that the General Assembly legislatively acquiesced in the municipal corporation's liability to suit. These amendments merely provided updated and uniform terms. They do not suggest that the General Assembly revisited the liability of municipal or local government entities.
E. Governmental Immunity
Rejecting a treble damage remedy against a governmental entity is fortified by the fact that at the time the Indiana Antitrust Act was enacted there was no prospect of civil liability on the part of a governmental entity. Indiana recognized the common law doctrine of sovereign immunity until 1972, when this Court abolished sovereign immunity in most areas. Campbell v. State,
Natare argues that the Court of Appeals correctly concluded that because the General Assembly has "increasingly allowed the government to be sued for wrongdoing" the 1907 presumption of immunity has been eroded. Brownsburg Comty. Sch. Corp.,
F. Public Policy
Public policy considerations support our reading of the statute. This Court has recognized that treble damages are punitive in nature. Obremski v. Henderson,
It is one thing to visit civil penalties on individuals who violate the law. And if a private organization employs persons who transgress, imposing penalties on the organization places the loss on those who voluntarily associated themselves with it. In the case of a for-profit organization, those individuals within the organization ordinarily stood to gain from the illegal activity. But imposing treble damages on a governmental entity visits the loss on wholly innocent taxpayers. Moreover, the treble damages remedy under the antitrust law is designed to deter unlawful competitive activity presumably undertaken to enhance the profits of the violators. But in this case of a violation of the antitrust laws by a governmental entity, the government will typically be a victim, not a beneficiary. That is the situation presented here if Natare's allegations are correct. For these reasons as well, we conclude that a governmental entity was not contemplated as a defendant under Section 7, and hold that the School Corporation cannot be held Hable for treble damages.
G. Federal Antitrust Liability of Governmental Entities
We also find instructive the history of government liability under the federal antitrust laws. It too points in the direction of nonliability.
The Clayton Act allows any "person" to be a plaintiff. The term is defined to include "corporations and associations existing under or authorized by" federal, state or foreign law. 15 U.S.C. § 12. As early as 1906 it was held that a municipality could be a plaintiff. Chattanooga Foundry & Pipe Works v. City of Atlanta,
Whether an entity of local government could be sued for damages under the Sherman Act did not arise until many years later. In 1978, a four-Justice plurality of the Supreme Court held that a municipal utility, which had brought a treble damage claim against a competitor, could be subject to a counterclaim for treble damages. City of Lafayette v. La. Power & Light Co.,
Although no treble damage award had yet been entered against a governmental entity, after City of Lafayette and City of Boulder, that result was seen as a realistic possibility. Congress promptly responded to these decisions by enacting the Local Government Antitrust Act of 1984, codified at 15 U.S.C. §§ 34-36. That statute left governmental entities subject to injunctive or declaratory relief but prohibited recov-eryv~of antitrust damages "from any local government, or official or employee thereof acting in an official capacity." 12 15 U.S.C. § 35(a). A "local government" within the meaning of the Act includes any "city, county, parish, town, township, village or any other general function governmental unit established by state law," and also "a school district, sanitary district, or any other special function governmental unit established by State law." 15 U.S.C. § 34(1)(A)-(B). The House Judiciary Committee pointed out that City of Lafayette and City of Boulder "appear to have limited the extent that antitrust immunity applicable to States will be accorded to local governments" and these decisions "could undermine a local government's ability to govern in the public interest. Most of the suits instituted by private *348 parties have sought treble damages from local governments." 5 U.S.Code Congressional & Administrative News 98 Cong.2d 1984 at 4608 (1985). The purpose of the Act was to "clarify" the application of the Clayton Act to the official conduct of local governments and eliminate "antitrust damage liability for official conduct of a local government and its officials." Id. Congress was also concerned that local taxpayers, the very persons the antitrust laws are designed to protect, are called upon to pay treble damage judgments rendered against local governments. Irving Scher, Antitrust Adviser § 7.09 at 48 (vol. 2, 4th ed.2003).
Indiana courts have generally followed federal precedent in interpreting the Indiana Antitrust Act. E.g. Berghausen v. Microsoft Corp.,
We do not agree that federal precedent is appropriate in considering whether governmental immunity is available to municipal and local government units under state antitrust laws. Parker and its progeny turned significantly on the relationship between the federal government and the states as dual sovereignties. Municipal and local government units, on the other hand, are creatures of the State. As such there is no consideration of comity or deference. The only issue is the intention of the state legislature to impose or withhold liability, See People ex rel. Freitas v. City and County of Sam Francisco,
Conclusion
The order of the trial court denying the motion of Brownsburg Community School Corporation for judgment on the pleadings is reversed. This case is remanded with direction to grant the School Corporation's motion for judgment on the pleadings.
Notes
. Under Trial Rule 12(C), motion for judgment on the pleadings is to be granted " 'only where it is clear from the face of the complaint that under no circumstances could relief be granted.'" Forte v. Connerwood Healthcare, Inc.,
. Paragraph 3.3.1 of AIA Document A7O1-1997, Instructions to Bidders provided:
The materials, products and equipment described in the bidding documents establish a standard of required function, dimension, appearance and quality to be met by any proposed substitution. Whenever possible and without prejudice to price, quality, or other considerations, local sources of labor, materials and services shall be given preference. Generally, where words "or equal" appear, a product of another manufacturer will be acceptable, but only if approved in writing by the Architect prior to bidding in accordance with the provisions stated in the *338 Contract Documents and: these Instructions to Bidders. - ©
. The public bidding statute, as applied to school corporations, provides the school corporation the discretionary power to determine "the responsible offeror" that is "most advantageous to the governmental body, taking into consideration price and the other evaluation factors set forth in the request for proposals." Ind.Code § 5-22-9-7(a) (2004). The school corporation must have its purchase or lease available for the public. IC. § 5-22-18-5(b)(3). A citizen or taxpayer of that school district may then seek to enjoin a contract attempted to be entered into pursuant to competitive bidding where the award is arbitrary, corrupt, 'or fraudulent. Budd v. Bd. of Comm'rs of St. Joseph County,
. In Ziliak it was agreed that the acts of state . employees constituted violations of Indiana Code section 35-43-2-2 (criminal trespass), and Indiana Code section 35-43-1-2 (criminal mischief).
. See City of Ludlow v. Commonwealth,
. See Haw.Rev.Stat § 702-229(1) (2003); N.J. Stat. § 2C:2-7(b)(1) (2004); N.D. Cent. Code § 51-08.1-01 (2003); Ohio Rev.Code Ann. § 2901.23(D) (2004); 18 Pa. Cons.Stat. § 307(F) (2004).
. Unlike the federal antitrust laws and those of most states, the Indiana Antitrust Act does not explicitly provide an injunctive remedy. Whether an injunctive remedy is available under the Indiana Antitrust Act, and if so whether it lies against a unit of local government are issues not presented in this case and we express no opinion on them.
. "Any person who shall be injured in his business or property by any person or corporation by reason of the doing by any person or persons of anything forbidden or declared to be unlawful by this chapter may sue therefor . and shall recover a penalty of threefold the damages which may be sustained, together with the costs of suit, including a reasonable attorney's fee." L.C. § 24-1-2-7.
. The minimum wage law defines an employer as "any ... corporation, ... the state, or other governmental agency or political subdivision." I.C. § 22-2-2-3. The Health provisions of the Code define "person" as "... a governmental entity, or a corporation." I.C. § 16-18-2-274(a). The School Corporation also refers to a number of schemes where different definitions of "person" expressly include or exclude government entities. E.g., I.C. § 4-2-6-1(11) (Ethics & Conflicts of Interest for State Officers) (" 'person' means any ... corporation, ... or a governmental agency or political subdivision"); I.C. § 5-14-1.5-2(k) (Public Records & Meetings) (" 'person' means ... a corporation, ... or a governmental entity"); I.C. § 5-16-8-1 (Steel Procurement for Public Works) (separately defining "persons" as including a corporation and "public agency" as including local government units); I.C. § 8-1-22.5-1(e)-(f) (Utilities: Gas Pipeline Safety) (defining "person" to include corporations. and "municipality" as a city, county, "or any political subdivision of the state"); I.C. § 8-21-3-1(12) (Aeronautics: Aircraft Finance) (" 'person' means ... corporation, ... or body politic"); I.C. § 9-13-2-124 (Motor Vehicles); LC. § 13-29-1-2(p) (Environment: Low-Level Radioactive Waste) (defining "person" to include a corporation and "any other legal entity either public or private," and separately stating, "Person also includes the United States, states, political subdivisions of the state, and any department, agency, or instrumentality of the United States or a state"); I.C. § 14-8-2-202(d) (Natural Resources Dept.) ("person" means "... a corporation, or a governmental entity"); I.C. § 22-9-1-3 (Labor & Industrial Safety: Civil Rights) (separate definitions); I.C. § 22-12-1-18 (Labor and Industrial Safety: Fire Safety & Building Equipment) (defining person to include a "corporation ... or governmental entity").
. In 1986 the General Asseribly amended the Indiana Antitrust Act's internal references to refer to "chapters" rather than "acts". Pub. Law No. 152-1986, Sec. 12. In 1993 the General Assembly amended the definition of "person" to include limited liability companies, a then novel form of organization. Pub. Law No. 8-1993, Sec. 335. Neither of these amendments effected any substantive change relevant here.
. Parker v. Brown,
. It has been noted that the statutory immunity of the nonsovereign "local governments" exceeds the nonstatutory immunity of the sovereigns that created them. ABA Antitrust Section: Monograph No. 15, Antitrust Federalism: The Role of State Law at 72 n. 508 (1988). ''The immunity from damages granted to local governments under the Act is absolute. The Act, however, does not immunize local governments from injunctive," enforcement procedures by the Department of Justice, or actions by the Federal Trade Commission. Id. at 72.
. See Neyens v. Roth,