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S.B. 16

             1     

CIVIL ANTITRUST AMENDMENTS

             2     
2006 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Lyle W. Hillyard

             5     
House Sponsor: Stephen H. Urquhart

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill gives consumers and others the right to obtain judicial relief for violations of
             10      the Utah Antitrust Act even though they have not dealt directly with the wrongdoer.
             11      Highlighted Provisions:
             12          This bill:
             13          .    provides that the attorney general and any person who is injured or threatened with
             14      injury in his business or property as a result of a violation of this act may bring an
             15      action under this act regardless of whether the person dealt directly or indirectly
             16      with the defendant;
             17          .    provides that a defendant is entitled to prove as a partial or complete defense to a
             18      claim for damages that the illegal overcharge has been passed on to others who are
             19      themselves entitled to recover so as to avoid duplication of recovery of damages;
             20          .    provides for rebuttable presumptions that allocate damages among injured plaintiffs
             21      who dealt directly or indirectly with the defendant;
             22          .    provides for notification to the attorney general of any private class action alleging a
             23      violation of the act; and
             24          .    authorizes cy pres distributions of damage and settlement awards in antitrust cases.
             25      Monies Appropriated in this Bill:
             26          None
             27      Other Special Clauses:


             28          None
             29      Utah Code Sections Affected:
             30      AMENDS:
             31          76-10-918, as last amended by Chapters 83 and 99, Laws of Utah 1991
             32          76-10-919, as last amended by Chapter 13, Laws of Utah 1987
             33     
             34      Be it enacted by the Legislature of the state of Utah:
             35          Section 1. Section 76-10-918 is amended to read:
             36           76-10-918. Attorney general may bring action for injunctive relief, damages, or
             37      civil penalty.
             38          (1) The attorney general may bring an action for appropriate injunctive relief, and for
             39      damages or a civil penalty in the name of the state, any of its political subdivisions or agencies,
             40      or as parens patriae on behalf of natural persons in this state, for a violation of this act. Actions
             41      may be brought under this section regardless of whether the plaintiff dealt directly or indirectly
             42      with the defendant. This remedy is an additional remedy to any other remedies provided by
             43      law. It may not diminish or offset any other remedy.
             44          (2) Any individual who violates this act is subject to a civil penalty of not more than
             45      $100,000 for each violation. Any person, other than an individual, who violates this act is
             46      subject to a civil penalty of not more than $500,000 for each violation.
             47          Section 2. Section 76-10-919 is amended to read:
             48           76-10-919. Person may bring action for injunctive relief and damages -- Treble
             49      damages -- Recovery of actual damages or civil penalty by state or political subdivisions
             50      -- Immunity of political subdivisions from damages, costs, or attorney's fees.
             51          (1) (a) A person who is a citizen of this state or a resident of this state and who is
             52      injured or is threatened with injury in his business or property by a violation of the Utah
             53      Antitrust Act may bring an action for injunctive relief and damages[.], regardless of whether
             54      the person dealt directly or indirectly with the defendant. This remedy is in addition to any
             55      other remedies provided by law. It may not diminish or offset any other remedy.
             56          (b) Subject to the provisions of Subsections (3), (4), and (5), the court shall award three
             57      times the amount of damages sustained, plus the cost of suit and a reasonable attorney's fee, in
             58      addition to granting any appropriate temporary, preliminary, or permanent injunctive relief.


             59          (2) (a) If the court determines that a judgment in the amount of three times the
             60      damages awarded plus attorney's fees and costs will directly cause the insolvency of the
             61      defendant, the court shall reduce the amount of judgment to the highest sum that would not
             62      cause the defendant's insolvency.
             63          (b) The court may not reduce a judgment to an amount less than the amount of
             64      damages sustained plus the costs of suit and a reasonable attorney's fee.
             65          (3) The state or any of its political subdivisions may recover the actual damages it
             66      sustains, or the civil penalty provided by the Utah Antitrust Act, in addition to injunctive relief,
             67      costs of suit, and a reasonable attorney's fee.
             68          (4) No damages, costs, or attorney's fee may be recovered under this section:
             69          (a) from any political subdivision;
             70          (b) from the official or employee of any political subdivision acting in an official
             71      capacity; or
             72          (c) against any person based on any official action directed by a political subdivision or
             73      its official or employee acting in an official capacity.
             74          (5) (a) Subsection (4) does not apply to cases filed before April 27, 1987, unless the
             75      defendant establishes and the court determines that in light of all the circumstances, including
             76      the posture of litigation and the availability of alternative relief, it would be inequitable not to
             77      apply Subsection (4) to a pending case.
             78          (b) In determining the application of Subsection (4), existence of a jury verdict, court
             79      judgment, or any subsequent litigation is prima facie evidence that Subsection (4) is not
             80      applicable.
             81          (6) In actions where injured persons who dealt both directly and indirectly with the
             82      defendant are involved, a defendant shall be entitled to prove as a partial or complete defense
             83      to a claim for damages that the damages incurred by the plaintiff or plaintiffs have been passed
             84      on to others who are entitled to recover so as to avoid duplication of recovery of damages.
             85          (7) It shall be presumed, in the absence of proof to the contrary, that the injured
             86      persons who dealt directly with the defendant incurred at least 1/3 of the damages, and shall,
             87      therefore, recover at least 1/3 of the awarded damages. It shall also be presumed, in the
             88      absence of proof to the contrary, that the injured persons who dealt indirectly with the
             89      defendant incurred at least 1/3 of the damages, and shall, therefore, recover at least 1/3 of the


             90      awarded damages. The final 1/3 of the damages shall be awarded by the court to those injured
             91      persons determined by the court as most likely to have absorbed the damages.
             92          (8) There is a presumption, in the absence of proof to the contrary, that each level in a
             93      product's or service's distribution chain passed on any and all increments in its cost due to an
             94      increase in the cost of an ingredient or a component product or service that was caused by a
             95      violation of this act. This amount will be presumed, in the absence of evidence to the contrary,
             96      to be equal to the change in the cost, in dollars and cents, of the ingredient, component product,
             97      or service to its first purchaser.
             98          (9) The attorney general shall be notified by the plaintiff about the filing of any class
             99      action involving antitrust violations that includes plaintiffs from this state. The attorney
             100      general shall receive a copy of each filing from each plaintiff. The attorney general may, in his
             101      or her discretion, intervene or file amicus briefs in the case, and may be heard on the question
             102      of the fairness or appropriateness of any proposed settlement agreement.
             103          (10) If, in a class action or parens patriae action filed under this act, including the
             104      settlement of any action, it is not feasible to return any part of the recovery to the injured
             105      plaintiffs, the court shall order the residual funds be applied to benefit the specific class of
             106      injured plaintiffs, to improve antitrust enforcement generally by depositing the residual funds
             107      into the Attorney General Litigation Fund created by Section 76-10-922 , or both.




Legislative Review Note
    as of 11-9-05 6:18 PM


Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel


Interim Committee Note
    as of 12-19-05 9:38 AM


The Judiciary Interim Committee recommended this bill.


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