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PRINTER'S NO. 551
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
578
Session of
2015
INTRODUCED BY GREENLEAF, FARNESE, YUDICHAK, TARTAGLIONE,
SCHWANK, BOSCOLA, HUGHES AND RAFFERTY, MARCH 2, 2015
REFERRED TO JUDICIARY, MARCH 2, 2015
AN ACT
Amending Title 12 (Commerce and Trade) of the Pennsylvania
Consolidated Statutes, prohibiting certain acts in restraint
of trade or commerce; prescribing the powers and duties of
Attorney General; establishing certain civil cause of action;
and making editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 101 of Title 12 of the Pennsylvania
Consolidated Statutes is repealed:
[§ 101. Definitions.
Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions of this title, the following words and phrases when
used in this title shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
"Department." The Department of Community and Economic
Development of the Commonwealth.
"Secretary." The Secretary of Community and Economic
Development.]
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Section 2. Title 12 is amended by adding sections to read:
§ 102. Short title of title.
This title shall be known and may be cited as the Commerce
and Trade Code.
§ 103. Definitions.
Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions of this title, the following words and phrases when
used in this title shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
" Department. " The Department of Community and Economic
Development of the Commonwealth.
" Secretary. " The Secretary of Community and Economic
Development.
Section 3. Title 12 is amended by adding a chapter to read:
CHAPTER 9
FREE ENTERPRISE PROTECTION
Sec.
901. Scope of chapter.
902. Declaration of purpose.
903. Definitions.
904. Prohibited acts.
905. Powers and duties of Attorney General.
906. Proof of damages.
907. Procedure for distributing recovery.
908. Subpoenas.
909. Cooperation with Federal Government and other states.
910. Construction.
911. Consistency with Federal law.
912. Jurisdiction of Commonwealth Court.
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913. Action not barred as affecting or involving interstate or
foreign commerce.
914. Remedies cumulative.
§ 901. Scope of chapter.
This chapter provides for the protection of free enterprise
in this Commonwealth.
§ 902. Declaration of purpose.
The purpose of this chapter is to promote free enterprise and
free trade in the marketplaces of this Commonwealth by
prohibiting restraints of trade which are secured through
monopolistic or collusive practices and which act or tend to act
to decrease competition between and among persons engaged in
commerce and trade, whether in manufacturing, distribution,
financing, service industries or in related for-profit and
nonprofit pursuits.
§ 903. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Commodity." Any kind of real or personal property.
"Documentary material." The original or any copy of any
designated documents, including, but not limited to, writings,
drawings, graphs, charts, photographs, electronically created
data and other compilations of data.
"Person." A natural person, corporation, partnership,
association of persons, State agency, municipal authority or
other political subdivision.
"Service." An activity that is performed in whole or in part
for the purpose of financial gain. The term shall not include
labor which is performed by natural persons as employees of
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others and a commodity.
"Trade or commerce." All economic activity involving or
relating to any commodity or service.
§ 904. Prohibited acts.
The following acts are prohibited:
(1) To contract, combine or conspire in restraint of
trade or commerce.
(2) To contract, combine or conspire to establish a
minimum price below which a retailer, wholesaler or
distributor may not sell a commodity or service.
(3) To monopolize, attempt to monopolize or combine or
conspire with any other person or persons to monopolize any
part of trade or commerce.
(4) To acquire, directly or indirectly, the whole or any
part of the stock or other share, capital or the assets of
any other person or persons where the effect of the
acquisition may be to lessen competition substantially or to
tend to create a monopoly in any line of trade or commerce.
§ 905. Powers and duties of Attorney General.
(a) Civil action.--The Attorney General may bring a civil
action in the Commonwealth's proprietary capacity on behalf of
the Commonwealth, as parens patriae on behalf of any agency,
political subdivision or municipal authority or as parens
patriae on behalf of natural persons residing in this
Commonwealth to recover threefold the actual damages and the
costs of the suit, including a reasonable attorney fee, for any
violation of section 904 (relating to prohibited acts).
(b) Limitation of actions.--A civil action for damages for a
violation of section 904 must be commenced within four years
after the accrual of a cause of action, except that no statute
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of limitation shall bar any civil action for the recovery of
damages sustained by the Commonwealth.
(c) Equitable remedy.--The Attorney General may bring a
civil action in the Commonwealth's proprietary capacity on
behalf of the Commonwealth, as parens patriae on behalf of any
agency, political subdivision or municipal authority or as
parens patriae on behalf of natural persons residing in this
Commonwealth for injunctive relief or other equitable relief
against loss or damage, whether threatened or actual, for a
violation of section 904.
(d) Damages for indirect purchasers.--In a civil action
under this section, the fact that the Commonwealth or any
agency, political subdivision, municipal authority or natural
person who has sustained damages by reason of a violation of
section 904 has not dealt directly with the defendant shall not
bar or otherwise limit recovery, except to avoid duplicate
liability for the same injury.
§ 906. Proof of damages.
In any action under section 905 (relating to powers and
duties of Attorney General), the Attorney General may recover
the aggregate damage sustained by the persons on whose behalf
the civil action has been brought without separately proving the
individual claims of each person. Proof of damages must be based
on:
(1) statistical or sampling methods;
(2) the pro rata allocation of illegal overcharges of
sales occurring within this Commonwealth; or
(3) such other reasonable system of estimating aggregate
damages as the Commonwealth Court may permit.
§ 907. Procedure for distributing recovery.
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The Attorney General shall distribute, allocate or otherwise
pay the amounts recovered under this chapter in accordance with
the laws of this Commonwealth or, in the absence of any
applicable Commonwealth law, as the Commonwealth Court may
authorize. Where it is impossible or economically impractical to
identify the persons on whose behalf a suit was brought, the
amounts recovered shall be paid to any charitable organization
in good standing with the Department of State, whose interests
reasonably approximate the interests of the persons on whose
behalf the suit was brought. For the purposes of this section
reasonable approximation shall be determined by evaluating:
(1) The purposes of the underlying laws claimed to have
been violated.
(2) The nature of the injury to the persons on whose
behalf the suit was brought.
(3) The characteristics and interests of the persons on
whose behalf the suit was brought.
(4) The geographical scope of the persons on whose
behalf the suit was brought.
(5) The reasons why the amounts recovered have gone
unclaimed.
(6) The closeness of the fit between the persons on
whose behalf the suit was brought and the cy pres recipient.
§ 908. Subpoenas.
(a) Authority to issue.--Whenever the Attorney General
believes that a person may be in control of information relevant
to any civil investigation under this chapter, the Attorney
General may issue and serve subpoenas, administer oaths or
affirmations and examine witnesses and receive evidence. Each
subpoena shall state the subject matter of the civil
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investigation, describe the conduct constituting the alleged
violation which is under investigation and list the provisions
of this chapter applicable to the alleged violation.
(b) Form and use.--
(1) The subpoena shall prescribe the date, time and
place at which oral testimony shall be taken, describe the
material to be produced with reasonable particularity so as
to fairly identify the documents subpoenaed and prescribe a
date within which the material is to be produced. Under terms
as the Attorney General shall prescribe, the documentary
material shall be available for inspection and copying by the
person who produced the material.
(2) The Attorney General may use the information in a
civil action brought under this chapter. Information which
contains trade secrets or other highly confidential matters
shall not be presented, except with the approval of the court
in which a proceeding is pending after adequate notice to the
person furnishing the documentary material.
(c) Applicability of rules.--Except as otherwise specified
by this chapter, compliance with the subpoena shall be governed
by the Pennsylvania Rules of Civil Procedure.
(d) Confidentiality.--Any testimony, documentary material or
other tangible evidence produced or answer made under this
chapter shall be kept confidential by the Attorney General prior
to the institution of a civil action brought under this chapter
for the alleged violation of the provisions of this chapter
under investigation, unless:
(1) confidentiality is waived by the person subpoenaed;
(2) disclosure is authorized by the Commonwealth Court;
or
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(3) disclosure is made pursuant to section 909 (relating
to cooperation with Federal Government and other states).
(e) Failure to obey subpoena.--In the event a witness served
with a subpoena under this chapter by the Attorney General fails
or refuses to produce documentary material, to answer written
interrogatories or to give testimony, the Attorney General may
petition the Commonwealth Court for an order requiring the
witness to answer, testify or produce the documentary material
demanded.
(f) Prohibited acts.--Any person who obstructs compliance
with a subpoena of the Attorney General issued under authority
of this section or knowingly removes or falsifies any
documentary material that is the subject of a subpoena issued by
the Attorney General under authority of this section commits a
misdemeanor of the second degree.
§ 909. Cooperation with Federal Government and other states.
The Attorney General may cooperate with and coordinate
enforcement of the provisions of this chapter with the Federal
Government and other states, including, but not limited to,
sharing information and evidence obtained in accordance with
section 908 (relating to subpoenas).
§ 910. Construction.
Nothing in this chapter shall be construed as making illegal
any activity or conduct exempt under any Commonwealth statute or
any statute of the United States.
§ 911. Consistency with Federal law.
If any provision of this chapter is identical to or similar
to that of a Federal antitrust statute, it shall be interpreted
in a manner consistent with comparable Federal antitrust law as
decided by the Federal courts whose jurisdiction includes this
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Commonwealth.
§ 912. Jurisdiction of Commonwealth Court.
The Commonwealth Court shall have original jurisdiction over
all actions for violations of this chapter.
§ 913. Action not barred as affecting or involving interstate
or foreign commerce.
No action under this chapter shall be barred on the grounds
that the activities or conduct complained of in any way affects
or involves interstate or foreign commerce.
§ 914. Remedies cumulative.
The remedies afforded by this chapter are cumulative.
Section 4. This act shall take effect in 60 days.
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