Regular Session 2021-2022 House Bill 2641 P.N. 3192

PRINTER'S NO. 3192

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2641

Session of

2022

INTRODUCED BY PISCIOTTANO, HOHENSTEIN, SANCHEZ, HILL-EVANS,

BENHAM, D. WILLIAMS, BRIGGS, MADDEN, SCHLOSSBERG, DELLOSO,

MILLARD, PARKER, BIZZARRO, SNYDER AND CIRESI, JUNE 6, 2022

REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JUNE 6, 2022

AN ACT

Providing for unfair trade practices and for protection of

whistleblowers; promulgating regulations; establishing the

Price-Fixing Consumer Protection Fund; and making an

appropriation.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the Stop Price

Fixing Act.

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Adverse action." Any of the following:

(1) When performed by a supplier or buyer, refusing to

deal with, threatening, harassing, directly or indirectly, or

in any other manner discriminating against, an individual or

an individual's employer.

(2) When performed by an employer, discharging,

demoting, suspending, threatening, harassing, directly or

indirectly, or in any other manner discriminating against, an

employee.

"Covered judicial or administrative action." A judicial or

administrative action brought by the Attorney General under the

Unfair Trade Practices and Consumer Protection Law that results

in monetary sanctions.

"Fund." The Price-Fixing Consumer Protection Fund

established under section 4(g)(1).

"Monetary sanctions." Money, including penalties,

disgorgement and interest, ordered to be paid as the result of a

judicial or administrative action.

"Original information." Information that is:

(1) derived from the independent knowledge or analysis

of a whistleblower;

(2) not known to the Attorney General from any other

source, unless the whistleblower is the original source of

the information; and

(3) not exclusively derived from an allegation made in a

judicial or administrative hearing, governmental report,

hearing, audit or investigation, or from the news media,

unless the whistleblower is a source of the information.

"Predispute arbitration agreement." An agreement to

arbitrate a dispute that had not yet arisen at the time the

agreement was made.

"Predispute joint-action waiver." An agreement, whether or

not part of a predispute arbitration agreement, that would

prohibit, or waive the right of, one of the parties to the

agreement to participate in a joint class or collective action

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in a judicial, arbitral, administrative or other forum,

concerning a dispute that has not yet arisen at the time the

agreement was made.

"Related action." With respect to any judicial or

administrative action brought by the Attorney General under the

Unfair Trade Practices and Consumer Protection Law, any judicial

or administrative action brought by an entity described in

section 4(k)(1)(i), (ii), (iii) and (iv) that is based upon the

original information provided by a whistleblower that led to the

successful enforcement of the Attorney General's action.

"Unfair Trade Practices and Consumer Protection Law." The

act of December 17, 1968 (P.L.1224, No.387), known as the Unfair

Trade Practices and Consumer Protection Law.

"Whistleblower." An individual who provides information

relating to a violation of the Unfair Trade Practices and

Consumer Protection Law to the Attorney General in a manner

established, by rule or regulation, by the Attorney General.

Section 3. Circumstantial evidence of conspiracy.

(a) Presumption of conspiracy.--

(1) A court shall presume that a defendant violated

section 3 of the Unfair Trade Practices and Consumer

Protection Law when, for the market in which the alleged

violation occurred:

(i) either:

(A) the defendant raised the price of its

product no more than 200 days before or after another

defendant raised the price of its product; or

(B) it is more likely than not that an agreement

exists with the defendant to raise the price of a

product more than 200 days before or after another

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defendant raised the price of a product; and

(ii) either:

(A) the defendant invited another defendant to

increase the price of a product;

(B) the defendant engaged in communications with

another defendant that may result in anticompetitive

harm;

be against the defendant's own interests in the

absence of a violation of the Unfair Trade Practices

and Consumer Protection Law; or

(D) the price of the product in the market in

which the alleged violation occurred is above that

which would be predicted in absence of a violation of

the Unfair Trade Practices and Consumer Protection

Law.

(2) A defendant may rebut the presumption under

paragraph (1) with evidence that the defendant did not engage

in the actions described in paragraph (1).

(b) Inferences of collusion.--In a suit alleging a violation

of section 3 of the Unfair Trade Practices and Consumer

Protection Law, a court shall not dismiss the suit on a motion

to dismiss or motion for summary judgment solely because the

conduct alleged is consistent with the doctrines of tacit

collusion, oligopolistic price coordination or conscious

parallelism where the plaintiff has plausibly alleged the

actions described under section 3 of the Unfair Trade Practices

and Consumer Protection Law.

the discretion of the court, be barred permanently, or for a

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definite period of time, from working in the industry in which

the violation occurred.

(d) Invalidity of predispute arbitration agreements.--At the

election of the person alleging conduct constituting a violation

of this section, or the named representative of a class or in a

collective action alleging such conduct, no predispute

arbitration agreement or predispute joint-action waiver shall be

valid or enforceable with respect to a case which relates to a

violation of this section.

(e) Determination of applicability.--An issue as to whether

this act applies with respect to a dispute shall be determined

under the laws of this Commonwealth. The applicability of this

act to an agreement to arbitrate and the validity and

enforceability of an agreement to which this act applies shall

be determined by a court, rather than an arbitrator, regardless

of whether the party resisting arbitration challenges the

arbitration agreement specifically or in conjunction with other

terms of the contract containing the agreement, and regardless

of whether the agreement purports to delegate the determinations

to an arbitrator.

Section 4. Whistleblower Protection.

(a) Award.--

(1) In any covered judicial or administrative action, or

related action, the Attorney General, under regulations

prescribed by the Attorney General and subject to subsection

(c), shall pay an award or awards to one or more

whistleblowers who voluntarily provided original information

to the Attorney General that led to the successful

enforcement of the covered judicial or administrative action,

or related action, in an aggregate amount equal to:

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(i) Not less than 10%, in total, of what has been

collected of the monetary sanctions imposed in the action

or related actions; and

(ii) Not more than 30%, in total, of what has been

collected of the monetary sanctions imposed in the action

or related actions.

(2) An amount awarded under paragraph (1) shall be paid

from the fund.

(b) Determination of award amount.--The following shall

apply in determining the amount of an award under subsection

(a):

(1) The amount of an award under subsection (a) shall be

determined by the Attorney General.

(2) In determining the amount of an award made under

subsection (a), the Attorney General shall take the following

into consideration:

(i) Significance of the information provided by the

whistleblower to the success of the covered judicial or

administrative action.

(ii) Degree of assistance provided by the

whistleblower and any legal representative of the

whistleblower in a covered judicial or administrative

action.

(iii) Programmatic interest of the Attorney General

in deterring violations of the Unfair Trade Practices and

Consumer Protection Law by making awards to

whistleblowers who provide information that leads to the

successful enforcement of this law.

(iv) Any additional relevant factors as the Attorney

General may establish by rule or regulation.

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(3) In determining the amount of an award under

subsection (a), the Attorney General shall not take into

consideration the balance of the fund.

made to a whistleblower who:

(1) is, or was at the time the whistleblower acquired

the original information submitted to the Attorney General, a

member, officer or employee of any of the following:

(i) The Office of Attorney General.

(ii) The United States Department of Justice.

(iii) A criminal justice agency, as defined under 18

Pa.C.S. § 9102 (relating to definitions);

(2) is convicted of a criminal violation related to the

judicial or administrative action for which the whistleblower

otherwise could receive an award under this section; or

(3) fails to submit information to the Attorney General

in such form as the Attorney General may, by rule, require.

(d) Representation.--

(1) A whistleblower who makes a claim for an award under

subsection (a) may be represented by counsel.

(2) A whistleblower who anonymously makes a claim for an

award under subsection (a) shall be represented by counsel if

the whistleblower anonymously submits the information upon

which the claim is based.

(3) Prior to the payment of an award, a whistleblower

shall disclose the identity of the whistleblower and provide

other information as the Attorney General may require,

directly or through counsel for the whistleblower.

(e) No contract necessary.--No contract with the Attorney

General is necessary for a whistleblower to receive an award

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under subsection (a), unless otherwise required by the Attorney

General by rule or regulation.

(f) Appeals.--A determination made under this section,

including whether, to whom, or in what amount to make awards,

shall be at the discretion of the Attorney General. The

determination, except the determination of the amount of an

award made in accordance with subsection (a), may be appealed to

the appropriate court not more than 30 days after the

determination is issued by the Attorney General.

(g) Price-Fixing Consumer Protection Fund.--

(1) The Price-Fixing Consumer Protection Fund is

established in the State Treasury.

(2) Money in the fund is appropriated on a continuing

basis to the Office of Attorney General, which shall be used

for the following purposes:

(i) Paying awards to whistleblowers as provided in

subsection (a).

(ii) Funding the activities of the Attorney General.

(3) The following shall be deposited into the fund:

(i) Any monetary sanction collected by the Attorney

General in a judicial or administrative action brought by

the Attorney General under the Unfair Trade Practices and

Consumer Protection Law that is not otherwise distributed

to victims.

(ii) All income from investments made under

paragraph (5).

(4) If the money deposited into the fund under paragraph

(3) is not sufficient to satisfy an award made under

subsection (a), an amount equal to the unsatisfied portion of

the award, from any monetary sanction collected by the

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Attorney General in the covered judicial or administrative

action on which the award is based, shall be deposited into

the fund.

(5) Money in the fund may be invested. The Attorney

General may request the State Treasurer to invest the portion

of the fund that is not, at the discretion of the Attorney

General, required to meet the current needs of the fund.

Money held or deposited by the State Treasurer may be

invested or reinvested in the same manner as other money in

the custody of the State Treasurer. All earnings received

from the investment or deposit of money in the fund shall be

paid into the fund. The interest on, and the proceeds from

the sale or redemption of, any obligations held in the fund

shall be credited to the fund.

(6) No later than October 30 of each fiscal year

beginning after the effective date of this paragraph, the

Attorney General shall submit a report to the Judiciary

Committee of the Senate and the Judiciary Committee of the

House of Representatives, which shall include the following

information:

(i) The whistleblower award program, established

under this section, including:

(A) a description of the number of awards

granted; and

(B) the types of cases in which awards were

granted during the preceding fiscal year.

(ii) The balance of the fund at the beginning of the

preceding fiscal year.

(iii) The amounts deposited into or credited to the

fund during the preceding fiscal year.

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(iv) The amount of earnings on investments made

under paragraph (5) during the preceding fiscal year.

(v) The amount of money awarded to whistleblowers

under subsection (a) in the preceding fiscal year.

(vi) The balance of the fund at the end of the

preceding fiscal year.

(vii) A complete set of audited financial

statements, which shall include the following:

(A) Balance sheet.

(B) Income statement.

(h) Protection of whistleblowers.--

(1) No employer may take an adverse action against a

whistleblower, and no supplier or customer may take an

adverse action against a whistleblower or the whistleblower's

employer because of any act done by the whistleblower in:

(i) providing information to the Attorney General in

accordance with this act; or

(ii) initiating, testifying in or assisting in any

investigation or judicial or administrative action of the

Attorney General based upon or related to the

information.

(2) An individual who alleges employment termination or

other adverse action in violation of paragraph (1) may bring

an action under this subsection in the appropriate court for

relief as provided under paragraph (5).

(3) A subpoena requiring the attendance of a witness at

a trial or hearing conducted under this section may be served

at any place in the Commonwealth.

(4) An action under this subsection may not be brought:

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(i) more than six years after the date on which the

violation of paragraph (1) occurred; or

(ii) more than three years after the date when the

facts material to the right of action are known by the

employee alleging a violation of paragraph (1).

(5) An individual who prevails in an action brought

under paragraph (2) shall be entitled to the following

relief:

(i) Reinstatement with the same seniority status

that the individual would have had, but for the illegal

employment action.

(ii) A monetary award that equals two times the

amount of backpay otherwise owed to the individual, with

interest.

(iii) Compensation for litigation costs, expert

witness fees and reasonable attorney fees.

(iv) Any other relief that the court determines is

appropriate.

(i) Confidentiality.--Except as otherwise provided in this

act, the Attorney General shall not disclose any information,

including information provided by a whistleblower to the

Attorney General, which could reasonably be expected to reveal

the identity of the whistleblower unless and until required to

be disclosed to a defendant or respondent in connection with a

public proceeding instituted by the Attorney General or any

entity described in subsection (j) and (k).

(j) Construction.--Nothing in this section shall limit the

ability of the Attorney General to present evidence to a grand

jury or to share evidence with potential witnesses or defendants

in the course of an ongoing criminal investigation.

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(k) Availability of information to government agencies.--

(1) At the discretion of the Attorney General,

information submitted to the Attorney General by a

whistleblower under this act may be made available to the

following entities when determined by the Attorney General to

be necessary to accomplish the purposes of this act and to

protect investors:

(i) An appropriate regulatory authority.

(ii) A State regulatory authority.

(iii) Federal enforcement agency.

(iv) The Public Company Accounting Oversight Board.

(2) Each entity described under paragraph (1) shall

maintain the information as confidential in accordance with

the requirements established under subsection (i).

(3) Nothing in this section shall be deemed to diminish

the rights, privileges or remedies of any whistleblower under

either Federal law or a collective bargaining agreement.

(l) Provision of false information.--A whistleblower shall

not be entitled to an award under this act if the whistleblower:

(1) knowingly and willfully makes a materially false or

fraudulent statement or representation; or

(2) uses a false writing or document which the

whistleblower knows to include a materially false or

fraudulent statement or entry.

(m) Rulemaking authority.--The Attorney General shall have

the authority to issue rules and regulations as may be necessary

or appropriate to implement the provisions of this section

consistent with the purposes of this section.

(n) Study of the whistleblower protection program.--The

Attorney General shall issue a report on the whistleblower

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protections established under this act, to which the following

shall apply:

(1) The report shall include the following information:

(i) Whether the final rules and regulations issued

under this act have made the whistleblower protection

program clearly defined and user-friendly.

(ii) Whether the whistleblower protection program is

promoted on the publicly accessible Internet website of

the Attorney General and has been widely publicized.

(iii) Whether the Attorney General has promptly:

(A) Responded to:

(I) information provided by whistleblowers;

and

(II) applications for awards filed by

whistleblowers.

(B) Updated whistleblowers about the status of

applications submitted under this act.

parties.

(iv) Whether the minimum and maximum award levels

are adequate to entice whistleblowers to come forward

with information and whether the rewards are so high as

to encourage illegitimate whistleblower claims.

(v) Whether the appeals process has been unduly

burdensome for the Attorney General.

(vi) Whether the funding mechanism for the fund is

adequate.

(vii) Any other information as the Attorney General

deems appropriate.

(2) The Attorney General shall submit the report no

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later than 30 months after the effective date of this

paragraph to the Judiciary Committee of the Senate and the

Judiciary Committee of the House of Representatives. The

report shall be published in the Pennsylvania Bulletin and on

the Attorney General's publicly accessible Internet website.

Section 5. Implementation and transition provisions.

(a) Implementing rules.--The Attorney General shall

promulgate regulations implementing this act no later than 270

days after the effective date of this subsection.

(b) Original information.--Information provided to the

Attorney General in writing by a whistleblower shall not lose

the status of original information solely because the

whistleblower provided the information prior to the effective

date of the regulations, if the information is provided by the

whistleblower after the effective date of this subsection.

to this act, regardless of whether a statutory or regulatory

violation occurred, if judicial or administrative action upon

which the award is based occurred prior to the effective date of

this subsection.

Section 6. Effective date.

This act shall take effect in 60 days.

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