Full Text of SB2872 95th General Assembly
SB2872 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 SB2872
Introduced 2/15/2008, by Sen. John J. Cullerton SYNOPSIS AS INTRODUCED: |
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740 ILCS 10/7 |
from Ch. 38, par. 60-7 |
740 ILCS 10/7.2 |
from Ch. 38, par. 60-7.2 |
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Amends the Illinois Antitrust Act. Provides that the Attorney General may bring an action in the name of the State, as parens patriae (protector of all those unable to protect themselves) on behalf of Illinois residents, to recover damages under the Illinois Antitrust Act or any comparable federal law. Provides that these granted powers are in addition to the Attorney General's parens patriae common law powers. Provides that no documentary material, transcripts of oral testimony, or answers to interrogatories (instead of no documentary material or transcripts of oral testimony) in the Attorney General's possession are available for inspection other then by an employee of the Attorney General or law enforcement officials at the federal, State, or local levels (instead of federal or local levels) without the consent of the person who furnished those materials. Provides that all documentary materials, transcripts, or answers to interrogatories shall be treated as if produced pursuant to a subpoena.
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A BILL FOR
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SB2872 |
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LRB095 19876 AJO 46275 b |
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Illinois Antitrust Act is amended by | 5 |
| changing Sections 7 and 7.2 as follows:
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| (740 ILCS 10/7) (from Ch. 38, par. 60-7)
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| Sec. 7. The following civil actions and remedies are | 8 |
| authorized under
this Act:
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| (1) The Attorney General, with such assistance as he may | 10 |
| from time
to time require of the State's Attorneys in the | 11 |
| several counties, shall
bring suit in the Circuit Court to | 12 |
| prevent and restrain violations of
Section 3 of this Act. In | 13 |
| such a proceeding, the court shall determine
whether a | 14 |
| violation has been committed, and shall enter such judgment as
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| it considers necessary to remove the effects of any violation | 16 |
| which it
finds, and to prevent such violation from continuing | 17 |
| or from being
renewed in the future. The court, in its | 18 |
| discretion, may exercise all
powers necessary for this purpose, | 19 |
| including, but not limited to,
injunction, divestiture of | 20 |
| property, divorcement of business units,
dissolution of | 21 |
| domestic corporations or associations, and suspension or
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| termination of the right of foreign corporations or | 23 |
| associations to do
business in the State of Illinois.
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LRB095 19876 AJO 46275 b |
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| (2) Any person who has been injured in his business or | 2 |
| property, or
is threatened with such injury, by a violation of | 3 |
| Section 3 of this Act
may maintain an action in the Circuit | 4 |
| Court for damages, or for an
injunction, or both, against any | 5 |
| person who has committed such
violation. If, in an action for | 6 |
| an injunction, the court issues an
injunction, the plaintiff | 7 |
| shall be awarded costs and reasonable
attorney's fees. In an | 8 |
| action for damages, if injury is found to be due
to a violation | 9 |
| of subsections (1) or (4) of Section 3 of this Act,
the person | 10 |
| injured shall be awarded 3 times the amount of actual damages
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| resulting from that violation, together with costs and | 12 |
| reasonable
attorney's fees. If injury is found to be due to a | 13 |
| violation of
subsections (2) or (3) of Section 3 of this Act, | 14 |
| the person injured
shall recover the actual damages caused by | 15 |
| the violation, together with
costs and reasonable attorney's | 16 |
| fees, and if it is shown that such
violation was willful, the | 17 |
| court may, in its discretion, increase the
amount recovered as | 18 |
| damages up to a total of 3 times the amount of
actual damages. | 19 |
| This State, counties, municipalities, townships and any
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| political subdivision organized under the authority of this | 21 |
| State, and
the United States, are considered a person having | 22 |
| standing to bring an
action under this subsection. The Attorney | 23 |
| General may bring an action
on behalf of this State, counties, | 24 |
| municipalities, townships and other
political subdivisions | 25 |
| organized under the authority of this State to
recover the | 26 |
| damages under this subsection or by any comparable Federal
law.
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| The Attorney General may also bring an action in the name | 2 |
| of this State, as parens patriae on behalf of persons residing | 3 |
| in this State, to recover the damages under this subsection or | 4 |
| any comparable federal law. The powers granted in this Section | 5 |
| are in addition to and not in derogation of the common law | 6 |
| powers of the Attorney General to act as parens patriae. | 7 |
| No provision of this Act shall deny any person who is an | 8 |
| indirect purchaser
the right to sue for damages. Provided,
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| however, that in any case in which claims are asserted against | 10 |
| a defendant
by both direct and indirect purchasers, the court | 11 |
| shall take all steps
necessary to avoid duplicate liability for | 12 |
| the same injury including transfer
and
consolidation of all | 13 |
| actions. Provided further that no person other than
the | 14 |
| Attorney General of this State shall be authorized to maintain | 15 |
| a class
action in any court of this State for indirect | 16 |
| purchasers asserting claims
under this Act , with the sole | 17 |
| exception of this State's Attorney General, who may maintain an | 18 |
| action parens patriae as provided in this subsection .
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| Beginning January 1, 1970, a file setting out the names of | 20 |
| all
special assistant attorneys general retained to prosecute | 21 |
| antitrust
matters and containing all terms and conditions of | 22 |
| any arrangement or
agreement regarding fees or compensation | 23 |
| made between any such special
assistant attorney general and | 24 |
| the office of the Attorney General shall
be maintained in the | 25 |
| office of the Attorney General, open during all
business hours | 26 |
| to public inspection.
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| Any action for damages under this subsection is forever | 2 |
| barred unless
commenced within 4 years after the cause of | 3 |
| action accrued, except that,
whenever any action is brought by | 4 |
| the Attorney General for a violation
of this Act, the running | 5 |
| of the foregoing statute of limitations, with
respect to every | 6 |
| private right of action for damages under the
subsection which | 7 |
| is based in whole or in part on any matter complained
of in the | 8 |
| action by the Attorney General, shall be suspended during the
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| pendency thereof, and for one year thereafter. No cause of | 10 |
| action
barred under existing law on July 21, 1965 shall be | 11 |
| revived by this Act.
In any action for damages under this | 12 |
| subsection the court may, in its
discretion, award reasonable | 13 |
| fees to the prevailing defendant upon a finding
that the
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| plaintiff acted in bad faith, vexatiously, wantonly or for | 15 |
| oppressive reasons.
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| (3) Upon a finding that any domestic or foreign corporation
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| organized or operating under the laws of this State has been | 18 |
| engaged in
conduct prohibited by Section 3 of this Act, or the | 19 |
| terms of any
injunction issued under this Act, a circuit court | 20 |
| may, upon petition of
the Attorney General, order the | 21 |
| revocation, forfeiture or suspension of
the charter, | 22 |
| franchise, certificate of authority or privileges of any
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| corporation operating under the laws of this State, or the | 24 |
| dissolution
of any such corporation.
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| (4) In lieu of any criminal penalty otherwise prescribed | 26 |
| for a violation of
this Act, and in addition to any action |
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LRB095 19876 AJO 46275 b |
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| under this Act or any Federal
antitrust law,
the Attorney | 2 |
| General may bring an action in the name and on behalf of
the | 3 |
| people of the State against any person, trustee, director, | 4 |
| manager
or other officer or agent of a corporation, or against | 5 |
| a corporation,
domestic or foreign, to recover a penalty not to | 6 |
| exceed $1,000,000 from every
corporation or $100,000 from every | 7 |
| other
person for any act herein declared illegal. The action | 8 |
| must
be brought within 4 years after the commission of the act | 9 |
| upon which it
is based. Nothing in this subsection shall impair | 10 |
| the right of any person
to bring an action under subsection (2) | 11 |
| of this Section.
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| (Source: P.A. 93-351, eff. 1-1-04.)
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| (740 ILCS 10/7.2) (from Ch. 38, par. 60-7.2)
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| Sec. 7.2. Whenever it appears to the Attorney General that | 15 |
| any person has
engaged in, is engaging in, or is about to | 16 |
| engage in any act or practice
prohibited by this Act, or that | 17 |
| any person has assisted or participated
in any agreement or | 18 |
| combination of the nature described herein, he may,
in his | 19 |
| discretion, conduct an investigation as he deems necessary in
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| connection with the matter and has the authority prior to the
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| commencement of any civil or criminal action as provided for in | 22 |
| the Act
to subpoena witnesses, and pursuant to a subpoena (i) | 23 |
| compel their
attendance for the purpose of examining them under | 24 |
| oath, (ii) require the
production of any books, documents, | 25 |
| records, writings or tangible things
hereafter referred to as |
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| "documentary material" which
the Attorney General deems | 2 |
| relevant or material to his investigation,
for inspection, | 3 |
| reproducing or copying under such terms and conditions
as | 4 |
| hereafter set forth, (iii) require written answers under oath | 5 |
| to written
interrogatories, or (iv) require compliance with a | 6 |
| combination of the
foregoing. Any subpoena issued by the | 7 |
| Attorney General
shall contain the following information:
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| (a) The statute and section thereof, the alleged violation | 9 |
| of which
is under investigation and the general subject matter | 10 |
| of the
investigation.
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| (b) The date and place at which time the person is required | 12 |
| to
appear or produce documentary material in his possession, | 13 |
| custody or
control or submit answers to interrogatories in the | 14 |
| office of the Attorney
General located in Springfield or
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| Chicago. Said date shall not be less than 10 days from date of | 16 |
| service
of the subpoena.
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| (c) Where documentary material is required to be produced, | 18 |
| the same
shall be described by class so as to clearly indicate | 19 |
| the material
demanded.
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| The Attorney General is hereby authorized, and may so | 21 |
| elect, to
require the production, pursuant to this section, of | 22 |
| documentary
material or interrogatory answers prior to the | 23 |
| taking of any testimony of
the person subpoenaed. Said | 24 |
| documentary material shall be made available for
inspection and | 25 |
| copying during normal business hours at the principal
place of | 26 |
| business of the person served, or at such other time and place,
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LRB095 19876 AJO 46275 b |
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| as may be agreed upon by the person served and the Attorney | 2 |
| General.
When documentary material is demanded by subpoena, | 3 |
| said subpoena shall
not:
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| (i) Contain any requirement which would be | 5 |
| unreasonable or improper
if contained in a subpoena duces | 6 |
| tecum issued by a court of this State;
or
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| (ii) Require the disclosure of any documentary | 8 |
| material which would
be privileged, or which for any other | 9 |
| reason would not be required by a
subpoena duces tecum | 10 |
| issued by a court of this State.
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| (d) The production of documentary material in response to a | 12 |
| subpoena served
pursuant to this Section shall be made under a | 13 |
| sworn certificate, in such
form as the subpoena designates, by | 14 |
| the person, if a natural person, to
whom the demand is directed | 15 |
| or, if not a natural person, by a person or
persons having | 16 |
| knowledge of the facts and circumstances relating to such
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| production, to the effect that all of the documentary material | 18 |
| required
by the demand and in the possession, custody, or | 19 |
| control of the person to
whom the demand is directed has been | 20 |
| produced and made available to the
custodian. Answers to | 21 |
| interrogatories shall be accompanied by a statement
under oath | 22 |
| attesting to the accuracy of the answers.
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| While in the possession of the Attorney General and under | 24 |
| such reasonable
terms and conditions as the Attorney General | 25 |
| shall prescribe: (A) documentary
material shall be available | 26 |
| for examination by the person who produced such
material or by |
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| any duly authorized representative of such person, (B)
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| transcript of oral testimony shall be available for examination | 3 |
| by the person
who produced such testimony, or his or her | 4 |
| counsel and (C) answers to
interrogatories shall be available | 5 |
| for examination by the person who swore to
their accuracy.
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| Except as otherwise provided in this Section, no | 7 |
| documentary material , or
transcripts of oral testimony, or | 8 |
| answers to interrogatories, or copies thereof, in the | 9 |
| possession of the
Attorney General shall be available for | 10 |
| examination by any individual other
than an authorized employee | 11 |
| of the Attorney General or other law enforcement
officials, | 12 |
| federal , State, or local, without the consent of the person who | 13 |
| produced
such material , or transcripts , or interrogatory | 14 |
| answers .
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| For purposes of this Section, all documentary materials, | 16 |
| transcripts of oral testimony, or answers to interrogatories | 17 |
| obtained by the Attorney General from other law enforcement | 18 |
| officials shall be treated as if produced pursuant to a | 19 |
| subpoena served pursuant to this Section. | 20 |
| (e) No person shall, with intent to avoid, evade, prevent, | 21 |
| or obstruct
compliance in whole or in part by any person with | 22 |
| any duly served subpoena
of the Attorney General under this | 23 |
| Act, knowingly remove from any place,
conceal, withhold, | 24 |
| destroy, mutilate, alter, or by any other means falsify
any | 25 |
| documentary material that is the subject of such subpoena. A | 26 |
| violation
of this subsection is a Class A misdemeanor. The |
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LRB095 19876 AJO 46275 b |
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| Attorney General, with
such assistance as he may from time to | 2 |
| time require of the State's Attorneys
in the several counties, | 3 |
| shall investigate suspected violations of this
subsection and | 4 |
| shall commence and try all prosecutions under this subsection.
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| (Source: P.A. 93-351, eff. 1-1-04.)
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