                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                              January 31, 2001 Session

  DANIEL SHERWOOD, ET AL. v. MICROSOFT CORPORATION, ET AL.

                       Appeal from the Circuit Court for Davidson County
                           No. 99C-3562     Walter C. Kurtz, Judge



                       No. M2000-01850-COA-R9-CV - Filed July 31, 2003




WILLIAM C. KOCH , JR., J., concurring.


        I concur completely with the court’s disposition of the issues in this case and subscribe to the
court’s thorough legal analysis except for its attempted reconciliation of the conflicting decisions
regarding the interpretative significance of legislative inaction.

         In Forman v. National Council on Comp. Ins., Inc., 13 S.W.3d 365, 373 (Tenn. Ct. App.
1999), the Middle Section of this court attached significance to the Tennessee General Assembly’s
failure to enact amendments expanding the scope of the Tennessee Trade Practices Act, even though
it conceded that “unsuccessful attempts at legislation are not the best guides to legislative intent.”
Three years earlier, the Eastern Section of this court concluded that “proposed legislation, not
enacted, has no consequence whatever upon the interpretation of an existing statute.” Blake v.
Abbott Labs., Inc., No. 03A01-9509-CV-00307, 1996 WL 134947, at *3 (Tenn. Ct. App. Mar. 27,
1996) ( No Tenn. R. App. P. 11 application filed). Regrettably, the Forman court did not address
the Blake v. Abbott Labs., Inc. decision.

           In the context of statutory construction, I side with the Eastern Section. The Tennessee
General Assembly should act with precision when it drafts statutes. Attaching significance to
legislative inaction when it comes to interpreting statutory language dilutes the General Assembly’s
responsibility and can provide an avenue for the courts to import their own policy views into the
process. Few scholars today attach interpretative significance to legislative inaction. William N.
Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 640 (1990), reprinted in 2A NORMAN J.
SINGER, STATUTES AND STATUTORY CONSTRUCTION 581 (5th ed 1992). Justice Scalia provided the
reasons for this view when he observed that it is “impossible to assert with any degree of assurance
that . . . [legislative] failure to act represents (1) approval of the status quo, as opposed to (2) inability
to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the
status quo, or even (5) political cowardice.” Johnson v. Transportation Agency, 480 U.S. 616, 672,
107 S. Ct. 1442, 1472 (1987) (Scalia, J., dissenting).
        The plain language of Tenn. Code Ann. §§ 47-25-101, -102 (2001) covers anti-competitive
acts that harm “consumers,” and Tenn. Code Ann. § 47-25-106 (2001) explicitly provides a civil
remedy to “[a]ny person who is injured or damaged by any such arrangement . . ..” Thus, there is
no need to reconcile Blake v. Abbott Labs., Inc. and Forman v. National Council on Comp. Ins., Inc.
It should be sufficient for us to conclude in this case that the Tennessee General Assembly meant
what it said when it enacted the Tennessee Trade Practices Act and leave it at that.



                                                     _____________________________
                                                     WILLIAM C. KOCH, JR., JUDGE




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