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First Substitute S.B. 156

Senator Stephen H. Urquhart proposes the following substitute bill:




Chief Sponsor: Stephen H. Urquhart

House Sponsor: Kevin S. Garn

             7      LONG TITLE
             8      General Description:
             9          This bill amends provisions of the Antitrust Act.
             10      Highlighted Provisions:
             11          This bill:
             12          .    amends provisions of the Antitrust Act.
             13      Monies Appropriated in this Bill:
             14          None
             15      Other Special Clauses:
             16          None
             17      Utah Code Sections Affected:
             18      AMENDS:
             19          76-10-915, as last amended by Laws of Utah 2006, Chapter 112
             20          76-10-919, as last amended by Laws of Utah 2008, Chapter 256
             22      Be it enacted by the Legislature of the state of Utah:
             23          Section 1. Section 76-10-915 is amended to read:
             24           76-10-915. Exempt activities.
             25          (1) This act may not be construed to prohibit:

             26          (a) the activities of any public utility to the extent that those activities are subject to
             27      regulation by the public service commission, the state or federal department of transportation,
             28      the federal energy regulatory commission, the federal communications commission, the
             29      interstate commerce commission, or successor agencies;
             30          (b) the activities of any insurer, insurance producer, independent insurance adjuster, or
             31      rating organization including, but not limited to, making or participating in joint underwriting
             32      or reinsurance arrangements, to the extent that those activities are subject to regulation by the
             33      commissioner of insurance;
             34          (c) the activities of securities dealers, issuers, or agents, to the extent that those
             35      activities are subject to regulation under the laws of either this state or the United States;
             36          (d) the activities of any state or national banking institution, to the extent that the
             37      activities are regulated or supervised by state government officers or agencies under the
             38      banking laws of this state or by federal government officers or agencies under the banking laws
             39      of the United States;
             40          (e) the activities of any state or federal savings and loan association to the extent that
             41      those activities are regulated or supervised by state government officers or agencies under the
             42      banking laws of this state or federal government officers or agencies under the banking laws of
             43      the United States;
             44          (f) the activities of a [municipality] political subdivision to the extent authorized or
             45      directed by state law, consistent with the state action doctrine of federal antitrust law; or
             46          (g) the activities of an emergency medical service provider licensed under Title 26,
             47      Chapter 8a, Utah Emergency Medical Services System Act, to the extent that those activities
             48      are regulated by state government officers or agencies under that act.
             49          (2) (a) The labor of a human being is not a commodity or article of commerce.
             50          (b) Nothing contained in the antitrust laws shall be construed to forbid the existence
             51      and operation of labor, agricultural, or horticultural organizations, instituted for the purpose of
             52      mutual help and not having capital stock or conducted for profit, or to forbid or restrain
             53      individual members of these organizations from lawfully carrying out their legitimate objects;
             54      nor may these organizations or membership in them be held to be illegal combinations or
             55      conspiracies in restraint of trade under the antitrust laws.
             56          (3) (a) As used in this section, an entity is also a municipality if the entity was formed

             57      under Title 11, Chapter 13, Interlocal Cooperation Act, prior to January 1, 1981, and the entity
             58      is:
             59          (i) a project entity as defined in Section 11-13-103 ;
             60          (ii) an electric interlocal entity as defined in Section 11-13-103 ; or
             61          (iii) an energy services interlocal entity as defined in Section 11-13-103 .
             62          (b) The activities of the entities under Subsection (3)(a) are authorized or directed by
             63      state law.
             64          Section 2. Section 76-10-919 is amended to read:
             65           76-10-919. Person may bring action for injunctive relief and damages -- Treble
             66      damages -- Recovery of actual damages or civil penalty by state or political subdivisions
             67      -- Immunity of political subdivisions from damages, costs, or attorney fees.
             68          (1) (a) A person who is a citizen of this state or a resident of this state and who is
             69      injured or is threatened with injury in his business or property by a violation of the Utah
             70      Antitrust Act may bring an action for injunctive relief and damages, regardless of whether the
             71      person dealt directly or indirectly with the defendant. This remedy is in addition to any other
             72      remedies provided by law. It may not diminish or offset any other remedy.
             73          (b) Subject to the provisions of Subsections (3), (4), and (5), the court shall award three
             74      times the amount of damages sustained, plus the cost of suit and a reasonable attorney fees, in
             75      addition to granting any appropriate temporary, preliminary, or permanent injunctive relief.
             76          (2) (a) If the court determines that a judgment in the amount of three times the damages
             77      awarded plus attorney fees and costs will directly cause the insolvency of the defendant, the
             78      court shall reduce the amount of judgment to the highest sum that would not cause the
             79      defendant's insolvency.
             80          (b) The court may not reduce a judgment to an amount less than the amount of
             81      damages sustained plus the costs of suit and a reasonable attorney fees.
             82          (3) The state or any of its political subdivisions may recover the actual damages it
             83      sustains, or the civil penalty provided by the Utah Antitrust Act, in addition to injunctive relief,
             84      costs of suit, and reasonable attorney fees.
             85          (4) No damages, costs, or attorney fees may be recovered under this section:
             86          (a) from any political subdivision;
             87          (b) from the official or employee of any political subdivision acting in an official

             88      capacity; or
             89          (c) against any person based on any official action directed by a political subdivision or
             90      its official or employee acting in an official capacity.
             91          (5) [(a)] Subsection (4) does not apply to cases filed before April 27, 1987, unless the
             92      defendant establishes and the court determines that in light of all the circumstances, including
             93      the posture of litigation and the availability of alternative relief, it would be inequitable not to
             94      apply Subsection (4) to a pending case.
             95          [(b) In determining the application of Subsection (4), existence of a jury verdict, court
             96      judgment, or any subsequent litigation is prima facie evidence that Subsection (4) is not
             97      applicable.]
             98          (6) When a defendant has been sued in one or more actions by both direct and indirect
             99      purchasers, whether in state court or federal court, a defendant shall be entitled to prove as a
             100      partial or complete defense to a claim for damages that the damages incurred by the plaintiff or
             101      plaintiffs have been passed on to others who are entitled to recover so as to avoid duplication
             102      of recovery of damages. In an action by indirect purchasers, any damages or settlement
             103      amounts paid to direct purchasers for the same alleged antitrust violations shall constitute a
             104      defense in the amount paid on a claim by indirect purchasers under this chapter so as to avoid
             105      duplication of recovery of damages.
             106          (7) It shall be presumed, in the absence of proof to the contrary, that the injured
             107      persons who dealt directly with the defendant incurred at least 1/3 of the damages, and shall,
             108      therefore, recover at least 1/3 of the awarded damages. It shall also be presumed, in the
             109      absence of proof to the contrary, that the injured persons who dealt indirectly with the
             110      defendant incurred at least 1/3 of the damages, and shall, therefore, recover at least 1/3 of the
             111      awarded damages. The final 1/3 of the damages shall be awarded by the court to those injured
             112      persons determined by the court as most likely to have absorbed the damages.
             113          (8) There is a presumption, in the absence of proof to the contrary and subject to
             114      Subsection (7), that each level in a product's or service's distribution chain passed on any and
             115      all increments in its cost due to an increase in the cost of an ingredient or a component product
             116      or service that was caused by a violation of this chapter. This amount will be presumed, in the
             117      absence of evidence to the contrary, to be equal to the change in the cost, in dollars and cents,
             118      of the ingredient, component product, or service to its first purchaser.

             119          (9) The attorney general shall be notified by the plaintiff about the filing of any class
             120      action involving antitrust violations that includes plaintiffs from this state. The attorney
             121      general shall receive a copy of each filing from each plaintiff. The attorney general may, in his
             122      or her discretion, intervene or file amicus briefs in the case, and may be heard on the question
             123      of the fairness or appropriateness of any proposed settlement agreement.
             124          (10) If, in a class action or parens patriae action filed under this chapter, including the
             125      settlement of any action, it is not feasible to return any part of the recovery to the injured
             126      plaintiffs, the court shall order the residual funds be applied to benefit the specific class of
             127      injured plaintiffs, to improve antitrust enforcement generally by depositing the residual funds
             128      into the Attorney General Litigation Fund created by Section 76-10-922 , or both.
             129          (11) In any action brought under this chapter, the court shall approve all attorney fees
             130      and arrangements for the payment of attorney fees, including contingency fee agreements.

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