093_HB3468eng

 
HB3468 Engrossed                     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  7,  7.2,  7.5, 7.6, and 7.7 and by adding
 6    Section 12 as follows:

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

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

 6        (740 ILCS 10/7.5) (from Ch. 38, par. 60-7.5)
 7        Sec. 7.5.  Fees for witnesses; document production.
 8        (1)  All  persons  served with a subpoena by the Attorney
 9    General under this Act  shall  be  paid  the  same  fees  and
10    mileage as paid witnesses in the courts of this State.
11        (2)  Where   a   subpoena   requires  the  production  of
12    documentary  material,  the  respondent  shall  produce   the
13    original  of  such  documentary  material, provided, however,
14    that the Attorney  General  may  agree  that  copies  may  be
15    substituted,  in  which case the respondent shall have copies
16    made and produced at the respondent's expense.
17    (Source: P.A. 76-208.)

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

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

32        (740 ILCS 10/12 new)
 
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 1        Sec.  12.  Jury  Trial.   In  the  trial  of  all actions
 2    brought  under  this  Act  for  the  imposition  of  criminal
 3    sanctions or the recovery of civil penalties or damages,  any
 4    party,  upon  timely  demand, shall be entitled to a trial by
 5    jury.