093_HB3468

 
                                     LRB093 10352 LCB 10606 b

 1        AN ACT concerning antitrust.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Illinois  Antitrust  Act  is  amended  by
 5    changing  Sections  3,  6,  7,  7.2, 7.5, 7.6, and 7.7 and by
 6    adding Section 12 as follows:

 7        (740 ILCS 10/3) (from Ch. 38, par. 60-3)
 8        Sec. 3.  Every person shall be deemed to have committed a
 9    violation of this Act who shall:
10        (1)  Make any contract with, or engage in any combination
11    or conspiracy with, any other person who is,  or  but  for  a
12    prior agreement would be, a competitor of such person:
13        a.   for  the  purpose  or  with  the  effect  of fixing,
14    controlling, or maintaining the price or rate charged for any
15    commodity sold or bought by the parties thereto, or  the  fee
16    charged  or paid for any service performed or received by the
17    parties thereto;
18        b.   fixing,  controlling,  maintaining,   limiting,   or
19    discontinuing  the  production,  manufacture, mining, sale or
20    supply of any  commodity,  or  the  sale  or  supply  of  any
21    service,  for  the  purpose  or  with  the  effect  stated in
22    paragraph a.  of subsection (1);
23        c.  allocating  or   dividing   customers,   territories,
24    supplies,  sales, or markets, functional or geographical, for
25    any commodity or service; or
26        (1.5)  making any  contract  with,  or  engaging  in  any
27    combination  or  conspiracy with, any purchaser from a person
28    who  purchases  for  resale,  for  the  purpose  of   fixing,
29    controlling, or maintaining the minimum price or rate charged
30    for any commodity sold by the purchaser upon resale;
31        (2)  By  contract, combination, or conspiracy with one or
 
                            -2-      LRB093 10352 LCB 10606 b
 1    more other persons unreasonably restrain trade or commerce by
 2    any means, including without limitation:; or
 3        a.  entering into any lease or sale or contract for  sale
 4    of  goods,  wares, merchandise, machinery, supplies, or other
 5    commodities, or services (including master antenna television
 6    service),  whether   patented   or   unpatented,   for   use,
 7    consumption,  enjoyment, or resale, or fixing a price charged
 8    thereof, or discount from, or rebate upon, such price, on the
 9    condition, agreement, or understanding  that  the  lessee  or
10    purchaser  thereof shall not use or deal in the goods, wares,
11    merchandise,  machinery,  supplies,  or  other  commodity  or
12    service (including cable television or cable television relay
13    service), of a competitor or competitors  of  the  lessor  or
14    seller;
15        b.  participating   in  any  act  of  boycott,  coercion,
16    intimidation or refusal to deal;
17        c.  participating  in  any  allocation  of  customer   or
18    geographic  markets  as  between a seller and a purchaser who
19    purchases commodities from the seller for resale;
20        d.  entering into any arrangement as between a seller and
21    a purchaser regarding the maximum price at which  commodities
22    are resold by the purchaser; or
23        e.  entering into any arrangement as between a seller and
24    purchaser  that  the  seller will sell a commodity or service
25    ("tying product") only  on  condition  that  the  buyer  also
26    purchase  a  different commodity or service ("tied product"),
27    where the restraint of trade occurs or is likely to occur  in
28    the  market  for  the  tied  product.   For  purposes of this
29    subdivision (e), evidence that the seller    has  significant
30    economic  power in the market for the tying product creates a
31    rebuttable presumption of restraint of trade  in  the  market
32    for the tied product;
33        (3)  Establish,  maintain,  use,  or  attempt  to acquire
34    monopoly power in any relevant market  over  any  substantial
 
                            -3-      LRB093 10352 LCB 10606 b
 1    part  of  trade  or commerce of this State for the purpose of
 2    excluding  competition  or   of   controlling,   fixing,   or
 3    maintaining prices in such relevant market trade or commerce;
 4    or
 5        (4)  Blank  Lease  or make a sale or contract for sale of
 6    goods, wares,  merchandise,  machinery,  supplies,  or  other
 7    commodities, or services (including master antenna television
 8    service),   whether   patented   or   unpatented,   for  use,
 9    consumption, enjoyment, or resale, or  fix  a  price  charged
10    thereof, or discount from, or rebate upon, such price, on the
11    condition,  agreement,  or  understanding  that the lessee or
12    purchaser thereof shall not use or deal in the goods,  wares,
13    merchandise,  machinery,  supplies,  or  other  commodity  or
14    service   (including   cable   television  service  or  cable
15    television relay service), of a competitor or competitors  of
16    the lessor or seller, where the effect of such lease, sale or
17    contract  for  such  sale  or  such  condition, agreement, or
18    understanding may be to substantially lessen  competition  or
19    tend to create a monopoly in any line of commerce; or
20        (5)  Being  an  employee, officer or agent of any foreign
21    government, or an employee, officer or agent of a corporation
22    or other entity which does  business  with  or  seeks  to  do
23    business  with  any  foreign  government  or  instrumentality
24    thereof; enforce, attempt to enforce, agree to or take action
25    to  forward  the  aims of, any discriminatory practice by the
26    foreign government which is based on    race,  color,  creed,
27    national  ancestry  or sex or on ethnic or religious grounds,
28    where such conduct, course of  conduct,  or  agreement  takes
29    place  in  whole  or  in  part  within  the United States and
30    affects business in this State.
31    (Source: P.A. 82-219.)

32        (740 ILCS 10/6) (from Ch. 38, par. 60-6)
33        Sec. 6.  Every person who shall knowingly do any  of  the
 
                            -4-      LRB093 10352 LCB 10606 b
 1    acts prohibited by subsection subsections (1) and item (a) of
 2    subsection (2) (4) of Section 3 of this Act commits a Class 4
 3    felony  and  shall  be  punished  by  a  fine  not  to exceed
 4    $1,000,000  if  a  corporation,  or,  if  any  other  person,
 5    $100,000.
 6        (1)  The Attorney General, with such assistance as he may
 7    from time to time require of the  State's  Attorneys  in  the
 8    several   counties   shall   investigate  suspected  criminal
 9    violations of  this  Act  and  shall  commence  and  try  all
10    prosecutions  under this Act. Prosecutions under this Act may
11    be commenced by complaint, information, or  indictment.  With
12    respect  to  the commencement and trial of such prosecutions,
13    the Attorney General shall have all of the powers and  duties
14    vested  by  law in State's Attorneys with respect to criminal
15    prosecutions generally.
16        (2)  A  prosecution  for  any  offense  in  violation  of
17    Section 6 of this Act must be commenced within 4 years  after
18    the  commission  thereof, provided, however, that the running
19    of the foregoing statute of limitations  shall  be  suspended
20    during the pendency of any pending complaint, information, or
21    indictment  filed  by  the  United  States  as  set  forth in
22    subsection (3) of this Section, and for one year thereafter.
23        (3)  The Attorney General shall not commence prosecutions
24    under this Act against any defendant who, at the time,  is  a
25    defendant  with  regard  to  any  current  pending complaint,
26    information or indictment filed  by  the  United  States  for
27    violation,  or  alleged  violation, of the Federal Anti-Trust
28    Statutes (including but not being limited,  Act  of  July  2,
29    1890,  Ch. 647, 26 U.S.Stat. 209, 15 U.S.C.A., Secs. 1-7; Act
30    of Oct. 15, 1914, Ch. 323,  38  U.S.Stat.  730,  15  U.S.C.A.
31    Secs. 12-27, 44; Act of August 17, 1937, Ch. 690, Title VIII,
32    50  U.S.Stat.  693,  15 U.S.C.A. Sec. 1; Act of July 7, 1955,
33    Ch. 281, 69 U.S.Stat. 282, 15 U.S.C.A. Secs. 1-3; Act of  May
34    26,  1938,  Ch. 283, 52 U.S.Stat. 446, 15 U.S.C.A. Sec. 13-C;
 
                            -5-      LRB093 10352 LCB 10606 b
 1    and  any  similar  Acts  passed  in  the  future)   involving
 2    substantially the same subject matter.
 3    (Source: P.A. 83-238.)

 4        (740 ILCS 10/7) (from Ch. 38, par. 60-7)
 5        Sec.  7.   The  following  civil actions and remedies are
 6    authorized under this Act:
 7        (1)  The Attorney General, with such assistance as he may
 8    from time to time require of the  State's  Attorneys  in  the
 9    several  counties,  shall  bring suit in the Circuit Court to
10    prevent and restrain violations of Section 3 of this Act.  In
11    such  a  proceeding,  the  court  shall  determine  whether a
12    violation has been committed, and shall enter  such  judgment
13    as  it  considers  necessary  to  remove  the  effects of any
14    violation which it finds, and to prevent such violation  from
15    continuing  or  from being renewed in the future.  The court,
16    in its discretion, may exercise all powers necessary for this
17    purpose,  including,  but   not   limited   to,   injunction,
18    divestiture  of  property,  divorcement  of  business  units,
19    dissolution  of  domestic  corporations  or associations, and
20    suspension  or  termination   of   the   right   of   foreign
21    corporations  or  associations to do business in the State of
22    Illinois.
23        (2)  Any person who has been injured in his  business  or
24    property,  or  is threatened with such injury, by a violation
25    of Section 3 of this  Act  may  maintain  an  action  in  the
26    Circuit  Court  for  damages,  or for an injunction, or both,
27    against any person who has committed such violation.  If,  in
28    an  action for an injunction, the court issues an injunction,
29    the  plaintiff  shall  be  awarded   costs   and   reasonable
30    attorney's  fees.   In  an  action  for damages, if injury is
31    found to be due to a violation of subsections (1) or  (4)  of
32    Section  3 of this Act, the person injured shall be awarded 3
33    times the  amount  of  actual  damages  resulting  from  that
 
                            -6-      LRB093 10352 LCB 10606 b
 1    violation,  together  with  costs  and  reasonable attorney's
 2    fees.  If injury is  found  to  be  due  to  a  violation  of
 3    subsections  (2)  or (3) of Section 3 of this Act, the person
 4    injured shall  recover  the  actual  damages  caused  by  the
 5    violation,  together  with  costs  and  reasonable attorney's
 6    fees, and if it is shown that such violation was willful, the
 7    court may, in its discretion, increase the  amount  recovered
 8    as  damages  up  to  a  total of 3 times the amount of actual
 9    damages.  This State, counties, municipalities, townships and
10    any political subdivision organized under  the  authority  of
11    this  State,  and  the United States, are considered a person
12    having standing to bring an  action  under  this  subsection.
13    The  Attorney  General  may bring an action on behalf of this
14    State,  counties,   municipalities,   townships   and   other
15    political  subdivisions organized under the authority of this
16    State to recover the damages under this subsection or by  any
17    comparable Federal law.
18        No  provision of this Act shall deny any person who is an
19    indirect purchaser the right to sue for  damages.   Provided,
20    however,  that  in  any  case  in  which  claims are asserted
21    against a defendant by both direct and  indirect  purchasers,
22    the  court  shall take all steps necessary to avoid duplicate
23    liability  for  the  same  injury  including   transfer   and
24    consolidation  of  all  actions.   Provided  further  that no
25    person other than the Attorney General of this State shall be
26    authorized to maintain a class action in any  court  of  this
27    State  for  indirect  purchasers  asserting claims under this
28    Act.
29        Beginning January 1, 1970, a file setting out  the  names
30    of  all  special  assistant  attorneys  general  retained  to
31    prosecute  antitrust  matters  and  containing  all terms and
32    conditions of any arrangement or agreement regarding fees  or
33    compensation made between any such special assistant attorney
34    general  and  the  office  of  the  Attorney General shall be
 
                            -7-      LRB093 10352 LCB 10606 b
 1    maintained in the office of the Attorney General, open during
 2    all business hours to public inspection.
 3        Any action for damages under this subsection  is  forever
 4    barred  unless  commenced  within  4 years after the cause of
 5    action accrued, except that, whenever any action  is  brought
 6    by  the  Attorney  General  for  a violation of this Act, the
 7    running of the foregoing statute of limitations, with respect
 8    to every private  right  of  action  for  damages  under  the
 9    subsection  which  is based in whole or in part on any matter
10    complained of in the action by the Attorney General, shall be
11    suspended during the  pendency  thereof,  and  for  one  year
12    thereafter.   No cause of action barred under existing law on
13    July 21, 1965 shall be revived by this Act.   In  any  action
14    for  damages  under  this  subsection  the  court may, in its
15    discretion, award reasonable fees to the prevailing defendant
16    upon a  finding  that  the  plaintiff  acted  in  bad  faith,
17    vexatiously, wantonly or for oppressive reasons.
18        (3)  Upon   a   finding  that  any  domestic  or  foreign
19    corporation organized or operating under  the  laws  of  this
20    State  has been engaged in conduct prohibited by Section 3 of
21    this Act, or the terms of any injunction  issued  under  this
22    Act,  a  circuit  court  may,  upon  petition of the Attorney
23    General, order the revocation, forfeiture  or  suspension  of
24    the   charter,   franchise,   certificate   of  authority  or
25    privileges of any corporation operating  under  the  laws  of
26    this State, or the dissolution of any such corporation.
27        (4)  In lieu of any criminal penalty otherwise prescribed
28    for  a  violation  of this Act, and in addition to any action
29    under this Act or any Federal  antitrust  law,  the  Attorney
30    General  may bring an action in the name and on behalf of the
31    people of the State against any  person,  trustee,  director,
32    manager  or  other  officer  or  agent  of  a corporation, or
33    against a corporation, domestic  or  foreign,  to  recover  a
34    penalty   not   to  exceed  $1,000,000  $100,000  from  every
 
                            -8-      LRB093 10352 LCB 10606 b
 1    corporation or $100,000 $50,000 from every other  person  for
 2    any  act herein declared illegal.  The action must be brought
 3    within 4 years after the commission of the act upon which  it
 4    is  based.  Nothing in this subsection shall impair the right
 5    of any person to bring an action under subsection (2) of this
 6    Section.
 7        (5)  In any action by the  Attorney  General  under  this
 8    Act:
 9             (a)  All  amounts recovered in the form of statutory
10        penalties, expenses, costs, attorneys fees or  any  other
11        monetary   recovery   not   designated   as   damages  or
12        restitution shall be paid  into  the  Attorney  General's
13        Court  Ordered  and Voluntary Compliance Payment Projects
14        Fund.
15             (b)  If the Attorney General obtains a  recovery  of
16        damages  of  restitution, an amount equal to the Attorney
17        General's costs, expenses and attorneys fees incurred  in
18        connection with such action, to the extent not separately
19        provided  for as part of the recovery, shall be paid from
20        the recovery into the Attorney General Court Ordered  and
21        Voluntary  Compliance  Payment Projects Fund.  The amount
22        of costs and expenses to be paid into the Fund  shall  be
23        the actual amounts expended by the Attorney General.  The
24        amount  for attorneys fees to be paid into the Fund shall
25        be  an  amount  reasonably  estimated  by  the   Attorney
26        General.
27    (Source: P.A. 83-1362.)

28        (740 ILCS 10/7.2) (from Ch. 38, par. 60-7.2)
29        Sec.  7.2.  Whenever  it  appears to the Attorney General
30    that any person has engaged in, is engaging in, or  is  about
31    to  engage  in any act or practice prohibited by this Act, or
32    that any person has assisted or participated in any agreement
33    or combination of the nature described herein, he may, in his
 
                            -9-      LRB093 10352 LCB 10606 b
 1    discretion, conduct an investigation as he deems necessary in
 2    connection with the matter and has the authority prior to  or
 3    after  the  commencement  of  any civil or criminal action as
 4    provided for in the Act to subpoena witnesses,  and  pursuant
 5    to  a subpoena (i) compel their attendance for the purpose of
 6    examining, examine them  under  oath,  or  (ii)  require  the
 7    production  of  any  books,  documents,  records, writings or
 8    tangible  things  hereafter  referred  to   as   "documentary
 9    material"  which  the  Attorney  General  deems  relevant  or
10    material to his investigation, for inspection, reproducing or
11    copying  under  such  terms  and  conditions as hereafter set
12    forth, (iii) require written answers under  oath  to  written
13    interrogatories,   or   (iv)   require   compliance   with  a
14    combination of the foregoing.  Any  subpoena  issued  by  the
15    Attorney General shall contain the following information:
16        (a)  The   statute   and  section  thereof,  the  alleged
17    violation of which is under  investigation  and  the  general
18    subject matter of the investigation.
19        (b)  The  date  and  place  at  which  time the person is
20    required to appear or produce  documentary  material  in  his
21    possession,   custody   or   control  or  submit  answers  to
22    interrogatories in the office of the Attorney General located
23    in Springfield or Chicago. Said date shall not be  less  than
24    10 days from date of service of the subpoena.
25        (c)  Where   documentary   material  is  required  to  be
26    produced, the same shall be  described  by  class  so  as  to
27    clearly indicate the material demanded.
28        The  Attorney  General  is  hereby authorized, and may so
29    elect, to require the production, pursuant to  this  section,
30    of documentary material or interrogatory answers prior to the
31    taking  of  any testimony of the person subpoenaed., in which
32    event, Said documentary material shall be made available  for
33    inspection  and  copying  during normal business hours at the
34    principal place of business of the person served, or at  such
 
                            -10-     LRB093 10352 LCB 10606 b
 1    other  time  and  place,  as may be agreed upon by the person
 2    served and the Attorney General. When documentary material is
 3    demanded by subpoena, said subpoena shall not:
 4        (i)  Contain any requirement which would be  unreasonable
 5    or  improper if contained in a subpoena duces tecum issued by
 6    a court of this State; or
 7        (ii)  Require the disclosure of any documentary  material
 8    which  would  be  privileged,  or  which for any other reason
 9    would not be required by a subpoena duces tecum issued  by  a
10    court of this State.
11        (d)  The  production  of documentary material in response
12    to a subpoena served pursuant to this Section shall  be  made
13    under  a  sworn  certificate,  in  such  form as the subpoena
14    designates, by the person, if a natural person, to  whom  the
15    demand  is  directed or, if not a natural person, by a person
16    or persons having knowledge of the  facts  and  circumstances
17    relating  to  such  production, to the effect that all of the
18    documentary material  required  by  the  demand  and  in  the
19    possession,  custody,  or  control  of the person to whom the
20    demand is directed has been produced and  made  available  to
21    the   custodian.    Answers   to   interrogatories  shall  be
22    accompanied by  a  statement  under  oath  attesting  to  the
23    accuracy of the answers.
24        While in the possession of the Attorney General and under
25    such  reasonable terms and conditions as the Attorney General
26    shall prescribe: (A) documentary material shall be  available
27    for  examination  by the person who produced such material or
28    by any duly authorized representative of such person, and (B)
29    transcript  of  oral  testimony  shall   be   available   for
30    examination by the person who produced such testimony, or his
31    or  her  counsel  and (c) answers to interrogatories shall be
32    available for examination by the person who  swore  to  their
33    accuracy.
34        Except   as   otherwise  provided  in  this  Section,  no
 
                            -11-     LRB093 10352 LCB 10606 b
 1    documentary material or transcripts  of  oral  testimony,  or
 2    copies  thereof,  in  the  possession of the Attorney General
 3    shall be available for examination by  any  individual  other
 4    than  an authorized employee of the Attorney General or other
 5    law enforcement officials,  federal  or  local,  without  the
 6    consent   of   the  person  who  produced  such  material  or
 7    transcripts.
 8        (e)  No  person  shall,  with  intent  to  avoid,  evade,
 9    prevent, or obstruct compliance in whole or in  part  by  any
10    person  with any duly served subpoena of the Attorney General
11    under this Act, knowingly remove  from  any  place,  conceal,
12    withhold,  destroy,  mutilate,  alter,  or by any other means
13    falsify any documentary material that is the subject of  such
14    subpoena.   A  violation  of  this  subsection  is  a Class A
15    misdemeanor.  The Attorney General, with such  assistance  as
16    he  may from time to time require of the State's Attorneys in
17    the several counties, shall investigate suspected  violations
18    of   this   subsection   and   shall  commence  and  try  all
19    prosecutions under this subsection.
20    (Source: P.A. 81-1051.)

21        (740 ILCS 10/7.5) (from Ch. 38, par. 60-7.5)
22        Sec. 7.5.  Fees for witnesses; document production.
23        (1)  All persons served with a subpoena by  the  Attorney
24    General  under  this  Act  shall  be  paid  the same fees and
25    mileage as paid  witnesses  in  the  courts  of  this  State,
26    provided,  however,  that the obligation to pay fees does not
27    apply to any officer, director, or person in  the  employ  of
28    any  person,  partnership,  company,  corporation,  trust, or
29    association   whose   conduct   or   practices   are    being
30    investigated.
31        (2)  Where   a   subpoena   requires  the  production  of
32    documentary  material,  the  respondent  shall  produce   the
33    original  of  such  documentary  material, provided, however,
 
                            -12-     LRB093 10352 LCB 10606 b
 1    that the Attorney  General  may  agree  that  copies  may  be
 2    substituted,  in  which case the respondent shall have copies
 3    made and produced at the respondent' expense.
 4    (Source: P.A. 76-208.)

 5        (740 ILCS 10/7.6) (from Ch. 38, par. 60-7.6)
 6        Sec. 7.6.  In the event a witness served with a  subpoena
 7    by  the  Attorney  General under this Act fails or refuses to
 8    obey same or produce documentary  material  or  interrogatory
 9    answers as provided herein, or to give testimony, relevant or
10    material,  to the investigation being conducted, the Attorney
11    General may petition the Circuit Court of  Sangamon  or  Cook
12    County,  or  the  county  wherein  the witness resides for an
13    order requiring said witness to attend and testify or produce
14    the documentary material or interrogatory  answers  demanded;
15    thereafter, any failure or refusal on the part of the witness
16    to obey such order of court may be punishable by the court as
17    a  contempt  thereof.  The  court's  order  shall require the
18    witness to attend and  testify  or  produce  the  documentary
19    material  or interrogatory answers, or a combination thereof,
20    by a  specified  date,  and  shall  further  provide  a  date
21    thereafter on which the witness shall show cause in court why
22    he  or  she  should not be held in contempt of court if he or
23    she fails to comply.  The Attorney General  shall  cause  the
24    order  to  be  served upon the witness in the manner provided
25    for service of subpoenas in Section 7.3 of this Act.  Service
26    of the order shall constitute  service  of  process,  and  no
27    other  form  of process is necessary to submit the witness to
28    the jurisdiction of the court and to require compliance  with
29    the court order.
30    (Source: P.A. 76-208.)

31        (740 ILCS 10/7.7) (from Ch. 38, par. 60-7.7)
32        Sec.  7.7.  In  any investigation brought by the Attorney
 
                            -13-     LRB093 10352 LCB 10606 b
 1    General pursuant to this Act, no individual shall be  excused
 2    from attending, testifying or producing documentary material,
 3    objects  or  tangible  things  in  obedience to a subpoena or
 4    under order of the court on the ground that the testimony  or
 5    evidence  required  of him or her may tend to incriminate him
 6    or subject  him  to  any  penalty.  No  individual  shall  be
 7    criminally  prosecuted  or  subjected to any criminal penalty
 8    for or on account  of  (a)  any  testimony  or  interrogatory
 9    answers  given by him or her, or (b) any documentary material
10    produced by him or her, as to which he or she would otherwise
11    have a right not to give or produce by virtue of his  or  her
12    right   against   self-incrimination,  in  any  investigation
13    brought  by  the  Attorney  General  pursuant  to  this  Act;
14    provided no individual so giving testimony or answers  or  so
15    producing  documentary  material  testifying  shall be exempt
16    from prosecution or punishment for perjury  committed  in  so
17    testifying, answering, or producing.
18    (Source: P.A. 81-1051.)

19        (740 ILCS 10/12 new)
20        Sec.  12.  Jury  Trial.   In  the  trial  of  all actions
21    brought  under  this  Act  for  the  imposition  of  criminal
22    sanctions or the recovery of civil penalties or damages,  any
23    party,  upon  timely  demand, shall be entitled to a trial by
24    jury.
 
                            -14-     LRB093 10352 LCB 10606 b
 1                                INDEX
 2               Statutes amended in order of appearance
 3    740 ILCS 10/3             from Ch. 38, par. 60-3
 4    740 ILCS 10/6             from Ch. 38, par. 60-6
 5    740 ILCS 10/7             from Ch. 38, par. 60-7
 6    740 ILCS 10/7.2           from Ch. 38, par. 60-7.2
 7    740 ILCS 10/7.5           from Ch. 38, par. 60-7.5
 8    740 ILCS 10/7.6           from Ch. 38, par. 60-7.6
 9    740 ILCS 10/7.7           from Ch. 38, par. 60-7.7
10    740 ILCS 10/12 new