Regular Session 2021-2022 Senate Bill 1343 P.N. 1949

PRINTER'S NO. 1949

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1343

Session of

2022

INTRODUCED BY L. WILLIAMS, MUTH, CAPPELLETTI, KEARNEY, DILLON,

FONTANA, COSTA, STREET, COLLETT, TARTAGLIONE AND BREWSTER,

SEPTEMBER 29, 2022

REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE,

SEPTEMBER 29, 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(f)(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(j)(1) 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 or other

governmental authority in a manner established, by rule or

regulation, by the Attorney General.

Section 3. Circumstantial evidence of conspiracy.

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

of section 3 of the Unfair Trade Practices and Consumer

Protection Law, the following shall apply:

(1) A court shall not dismiss a claim if the allegations

supporting the claim are consistent with both the doctrine of

conscious parallelism and with either the doctrine of tacit

collusion or oligopolistic price coordination in violation of

section 3 of the Unfair Trade Practices and Consumer

Protection Law.

(2) A court shall not grant summary judgment or judgment

as a matter of law against a claim if the evidence supporting

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the claim is consistent with both the doctrine of conscious

parallelism and with either the doctrine of tacit collusion

or oligopolistic price coordination in violation of section 3

of the Unfair Trade Practices and Consumer Protection Law.

(b) Industry bans.--An individual who violates this act may,

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

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

the violation occurred.

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.

(d) 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 a covered judicial or administrative action, or

related action, the Attorney General, under regulations

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prescribed by the Attorney General, 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:

(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

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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.

(3) In determining the amount of an award under

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

consideration the balance of the fund.

(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.

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

General is necessary for a whistleblower to receive an award

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

General by rule or regulation.

(e) 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

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determination is issued by the Attorney General.

(f) 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 use the

money 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

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

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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 chairperson and

minority chairperson of the Judiciary Committee of the

Senate, the chairperson and minority chairperson of the

Consumer Protection and Professional Licensure Committee of

the Senate, the chairperson and minority chairperson of the

Judiciary Committee of the House of Representatives and the

chairperson and minority chairperson of the Consumer Affairs

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.

(iv) The amount of earnings on investments made

under paragraph (5) during the preceding fiscal year.

(v) The amount of money awarded to whistleblowers

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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.

(g) Protection of whistleblowers.--

(1) It shall be unlawful for an employer or an officer

or agent of an employer to discharge, threaten or otherwise

retaliate or discriminate in any manner against a

whistleblower because of any of the following:

(i) The whistleblower provides information, reports

or makes a complaint regarding a violation of this act to

the Attorney General or other governmental authority.

(ii) The whistleblower initiates, testifies in or

assists in any investigation, hearing, inquiry or

judicial or administrative action of the Attorney General

or any other governmental authority based upon or related

to the information.

(2) An individual who alleges retaliation or other

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

private right of action in the appropriate court for relief

as provided under paragraph (5) in accordance with

established civil procedures of this Commonwealth.

(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 paragraph (2) 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 without a loss in the same

seniority status that the individual would have had, but

for the illegal employment action.

(ii) A monetary award that equals three times the

amount of wages and fringe benefits calculated from the

date of the retaliation or other adverse action under

paragraph (1), with interest.

(iii) Reasonable attorney fees and cost of the

action.

(iv) Any other legal and equitable relief that the

court determines is appropriate to make the individual

whole.

(h) 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 (i) and (j).

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

ability of the Attorney General to present evidence to a grand

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jury or to share evidence with potential witnesses or defendants

in the course of an ongoing criminal investigation.

(j) 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 (h).

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

the rights, privileges or remedies of any whistleblower under

Federal law, State law or a collective bargaining agreement.

(k) 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.

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

Attorney General shall issue a report on the whistleblower

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

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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

later than 30 months after the effective date of this

paragraph to the chairperson and minority chairperson of the

Judiciary Committee of the Senate, the chairperson and

minority chairperson of the Consumer Protection and

Professional Licensure Committee of the Senate, the

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chairperson and minority chairperson of the Judiciary

Committee of the House of Representatives and the chairperson

and minority chairperson of the Consumer Affairs Committee of

the House of Representatives. The Attorney General shall

transmit the report to the Legislative Reference Bureau for

publication in the Pennsylvania Bulletin and shall publish

the report 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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