Wednesday, November 09, 2005

Maurice Bessinger loses SCUTPA case

In Bessinger v. Bi-Lo, the court of appeals affirmed that Bessinger could not proceed with a claim under the SCUTPA for the removal of his barbecue sauce from retail stores. The SCUTPA declares unlawful "unfair . . . acts or practices in the conduct of any trade or commerce." "An act is 'unfair' when it is offensive to public policy or when it is immoral, unethical, or oppressive." Bessinger alleged that retail grocers discontinued selling his products and removed the remaining items in stock from their shelves because Bessinger flew the Confederate battle Flag in front of his restaurants. The court of appeals held that the trial court properly dismissed Bessinger's claim. According to the court:

We agree with the trial court that the allegations in the complaint do not suggest Defendants committed acts that would be unfair under the SCUTPA. Assuming without deciding that Defendants terminated their business relationships with Plaintiffs solely because of Bessinger's statements, there is no First Amendment violation. Moreover, as free market participants, the defendant grocery store chains and their respective managers have the right to choose with whom they conduct their business. Although Plaintiffs are correct that this right "is not an absolute, unfettered privilege," recent case law indicates that in South Carolina the enactment of the SCUTPA has not affected this right. Moreover, we agree with Judge Anderson's statement that, despite Plaintiffs' assertion that their products were never unprofitable, the business decision to discontinue the sale of these items is best left to "the one who bears the risk of the decision." It follows, then, that the courts should not mandate that a private enterprise maintain an association that it believes is not conducive to any facet of its business, including its marketing, public image, and organizational structure.

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