Public Act 93-0351

HB3468 Enrolled                      LRB093 10352 LCB 10606 b

    AN ACT concerning antitrust.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5.  The  Illinois  Antitrust  Act  is amended by
changing Sections 7, 7.2, 7.5, 7.6, and  7.7  and  by  adding
Section 12 as follows:

    (740 ILCS 10/7) (from Ch. 38, par. 60-7)
    Sec.  7.   The  following  civil actions and remedies are
authorized under this Act:
    (1)  The Attorney General, with such assistance as he may
from time to time require of the  State's  Attorneys  in  the
several  counties,  shall  bring suit in the Circuit Court to
prevent and restrain violations of Section 3 of this Act.  In
such  a  proceeding,  the  court  shall  determine  whether a
violation has been committed, and shall enter  such  judgment
as  it  considers  necessary  to  remove  the  effects of any
violation which it finds, and to prevent such violation  from
continuing  or  from being renewed in the future.  The court,
in its discretion, may exercise all powers necessary for this
purpose,  including,  but   not   limited   to,   injunction,
divestiture  of  property,  divorcement  of  business  units,
dissolution  of  domestic  corporations  or associations, and
suspension  or  termination   of   the   right   of   foreign
corporations  or  associations to do business in the State of
Illinois.
    (2)  Any person who has been injured in his  business  or
property,  or  is threatened with such injury, by a violation
of Section 3 of this  Act  may  maintain  an  action  in  the
Circuit  Court  for  damages,  or for an injunction, or both,
against any person who has committed such violation.  If,  in
an  action for an injunction, the court issues an injunction,
the  plaintiff  shall  be  awarded   costs   and   reasonable
attorney's  fees.   In  an  action  for damages, if injury is
found to be due to a violation of subsections (1) or  (4)  of
Section  3 of this Act, the person injured shall be awarded 3
times the  amount  of  actual  damages  resulting  from  that
violation,  together  with  costs  and  reasonable attorney's
fees.  If injury is  found  to  be  due  to  a  violation  of
subsections  (2)  or (3) of Section 3 of this Act, the person
injured shall  recover  the  actual  damages  caused  by  the
violation,  together  with  costs  and  reasonable attorney's
fees, and if it is shown that such violation was willful, the
court may, in its discretion, increase the  amount  recovered
as  damages  up  to  a  total of 3 times the amount of actual
damages.  This State, counties, municipalities, townships and
any political subdivision organized under  the  authority  of
this  State,  and  the United States, are considered a person
having standing to bring an  action  under  this  subsection.
The  Attorney  General  may bring an action on behalf of this
State,  counties,   municipalities,   townships   and   other
political  subdivisions organized under the authority of this
State to recover the damages under this subsection or by  any
comparable Federal law.
    No  provision of this Act shall deny any person who is an
indirect purchaser the right to sue for  damages.   Provided,
however,  that  in  any  case  in  which  claims are asserted
against a defendant by both direct and  indirect  purchasers,
the  court  shall take all steps necessary to avoid duplicate
liability  for  the  same  injury  including   transfer   and
consolidation  of  all  actions.   Provided  further  that no
person other than the Attorney General of this State shall be
authorized to maintain a class action in any  court  of  this
State  for  indirect  purchasers  asserting claims under this
Act.
    Beginning January 1, 1970, a file setting out  the  names
of  all  special  assistant  attorneys  general  retained  to
prosecute  antitrust  matters  and  containing  all terms and
conditions of any arrangement or agreement regarding fees  or
compensation made between any such special assistant attorney
general  and  the  office  of  the  Attorney General shall be
maintained in the office of the Attorney General, open during
all business hours to public inspection.
    Any action for damages under this subsection  is  forever
barred  unless  commenced  within  4 years after the cause of
action accrued, except that, whenever any action  is  brought
by  the  Attorney  General  for  a violation of this Act, the
running of the foregoing statute of limitations, with respect
to every private  right  of  action  for  damages  under  the
subsection  which  is based in whole or in part on any matter
complained of in the action by the Attorney General, shall be
suspended during the  pendency  thereof,  and  for  one  year
thereafter.   No cause of action barred under existing law on
July 21, 1965 shall be revived by this Act.   In  any  action
for  damages  under  this  subsection  the  court may, in its
discretion, award reasonable fees to the prevailing defendant
upon a  finding  that  the  plaintiff  acted  in  bad  faith,
vexatiously, wantonly or for oppressive reasons.
    (3)  Upon   a   finding  that  any  domestic  or  foreign
corporation organized or operating under  the  laws  of  this
State  has been engaged in conduct prohibited by Section 3 of
this Act, or the terms of any injunction  issued  under  this
Act,  a  circuit  court  may,  upon  petition of the Attorney
General, order the revocation, forfeiture  or  suspension  of
the   charter,   franchise,   certificate   of  authority  or
privileges of any corporation operating  under  the  laws  of
this State, or the dissolution of any such corporation.
    (4)  In lieu of any criminal penalty otherwise prescribed
for  a  violation  of this Act, and in addition to any action
under this Act or any Federal  antitrust  law,  the  Attorney
General  may bring an action in the name and on behalf of the
people of the State against any  person,  trustee,  director,
manager  or  other  officer  or  agent  of  a corporation, or
against a corporation, domestic  or  foreign,  to  recover  a
penalty   not   to  exceed  $1,000,000  $100,000  from  every
corporation or $100,000 $50,000 from every other  person  for
any  act herein declared illegal.  The action must be brought
within 4 years after the commission of the act upon which  it
is  based.  Nothing in this subsection shall impair the right
of any person to bring an action under subsection (2) of this
Section.
(Source: P.A. 83-1362.)

    (740 ILCS 10/7.2) (from Ch. 38, par. 60-7.2)
    Sec. 7.2.  Whenever it appears to  the  Attorney  General
that  any  person has engaged in, is engaging in, or is about
to engage in any act or practice prohibited by this  Act,  or
that any person has assisted or participated in any agreement
or combination of the nature described herein, he may, in his
discretion, conduct an investigation as he deems necessary in
connection with the matter and has the authority prior to the
commencement  of any civil or criminal action as provided for
in the Act to subpoena witnesses, and pursuant to a  subpoena
(i)  compel  their  attendance  for the purpose of examining,
examine them under oath, or (ii) require  the  production  of
any  books,  documents,  records, writings or tangible things
hereafter referred to as  "documentary  material"  which  the
Attorney   General   deems   relevant   or  material  to  his
investigation, for inspection, reproducing or  copying  under
such  terms  and  conditions  as  hereafter  set forth, (iii)
require   written   answers    under    oath    to    written
interrogatories,   or   (iv)   require   compliance   with  a
combination of the foregoing.  Any  subpoena  issued  by  the
Attorney General shall contain the following information:
    (a)  The   statute   and  section  thereof,  the  alleged
violation of which is under  investigation  and  the  general
subject matter of the investigation.
    (b)  The  date  and  place  at  which  time the person is
required to appear or produce  documentary  material  in  his
possession,   custody   or   control  or  submit  answers  to
interrogatories in the office of the Attorney General located
in Springfield or Chicago. Said date shall not be  less  than
10 days from date of service of the subpoena.
    (c)  Where   documentary   material  is  required  to  be
produced, the same shall be  described  by  class  so  as  to
clearly indicate the material demanded.
    The  Attorney  General  is  hereby authorized, and may so
elect, to require the production, pursuant to  this  section,
of documentary material or interrogatory answers prior to the
taking  of  any testimony of the person subpoenaed., in which
event, Said documentary material shall be made available  for
inspection  and  copying  during normal business hours at the
principal place of business of the person served, or at  such
other  time  and  place,  as may be agreed upon by the person
served and the Attorney General. When documentary material is
demanded by subpoena, said subpoena shall not:
    (i)  Contain any requirement which would be  unreasonable
or  improper if contained in a subpoena duces tecum issued by
a court of this State; or
    (ii)  Require the disclosure of any documentary  material
which  would  be  privileged,  or  which for any other reason
would not be required by a subpoena duces tecum issued  by  a
court of this State.
    (d)  The  production  of documentary material in response
to a subpoena served pursuant to this Section shall  be  made
under  a  sworn  certificate,  in  such  form as the subpoena
designates, by the person, if a natural person, to  whom  the
demand  is  directed or, if not a natural person, by a person
or persons having knowledge of the  facts  and  circumstances
relating  to  such  production, to the effect that all of the
documentary material  required  by  the  demand  and  in  the
possession,  custody,  or  control  of the person to whom the
demand is directed has been produced and  made  available  to
the   custodian.    Answers   to   interrogatories  shall  be
accompanied by  a  statement  under  oath  attesting  to  the
accuracy of the answers.
    While in the possession of the Attorney General and under
such  reasonable terms and conditions as the Attorney General
shall prescribe: (A) documentary material shall be  available
for  examination  by the person who produced such material or
by any duly authorized representative of such person, and (B)
transcript  of  oral  testimony  shall   be   available   for
examination by the person who produced such testimony, or his
or  her  counsel  and (C) answers to interrogatories shall be
available for examination by the person who  swore  to  their
accuracy.
    Except   as   otherwise  provided  in  this  Section,  no
documentary material or transcripts  of  oral  testimony,  or
copies  thereof,  in  the  possession of the Attorney General
shall be available for examination by  any  individual  other
than  an authorized employee of the Attorney General or other
law enforcement officials,  federal  or  local,  without  the
consent   of   the  person  who  produced  such  material  or
transcripts.
    (e)  No  person  shall,  with  intent  to  avoid,  evade,
prevent, or obstruct compliance in whole or in  part  by  any
person  with any duly served subpoena of the Attorney General
under this Act, knowingly remove  from  any  place,  conceal,
withhold,  destroy,  mutilate,  alter,  or by any other means
falsify any documentary material that is the subject of  such
subpoena.   A  violation  of  this  subsection  is  a Class A
misdemeanor.  The Attorney General, with such  assistance  as
he  may from time to time require of the State's Attorneys in
the several counties, shall investigate suspected  violations
of   this   subsection   and   shall  commence  and  try  all
prosecutions under this subsection.
(Source: P.A. 81-1051.)

    (740 ILCS 10/7.5) (from Ch. 38, par. 60-7.5)
    Sec. 7.5.  Fees for witnesses; document production.
    (1)  All persons served with a subpoena by  the  Attorney
General  under  this  Act  shall  be  paid  the same fees and
mileage as paid witnesses in the courts of this State.
    (2)  Where  a  subpoena  requires   the   production   of
documentary   material,  the  respondent  shall  produce  the
original of such  documentary  material,  provided,  however,
that  the  Attorney  General  may  agree  that  copies may be
substituted, in which case the respondent shall  have  copies
made and produced at the respondent's expense.
(Source: P.A. 76-208.)

    (740 ILCS 10/7.6) (from Ch. 38, par. 60-7.6)
    Sec.  7.6.  In the event a witness served with a subpoena
by the Attorney General under this Act fails  or  refuses  to
obey  same  or  produce documentary material or interrogatory
answers as provided herein, or to give testimony, relevant or
material, to the investigation being conducted, the  Attorney
General  may  petition  the Circuit Court of Sangamon or Cook
County, or the county wherein  the  witness  resides  for  an
order requiring said witness to attend and testify or produce
the  documentary  material or interrogatory answers demanded;
thereafter, any failure or refusal on the part of the witness
to obey such order of court may be punishable by the court as
a contempt thereof.  The  court's  order  shall  require  the
witness  to  attend  and  testify  or produce the documentary
material or interrogatory answers, or a combination  thereof,
by  a  specified  date,  and  shall  further  provide  a date
thereafter on which the witness shall show cause in court why
he or she should not be held in contempt of court  if  he  or
she  fails  to  comply.  The Attorney General shall cause the
order to be served upon the witness in  the  manner  provided
for service of subpoenas in Section 7.3 of this Act.  Service
of  the  order  shall  constitute  service of process, and no
other form of process is necessary to submit the  witness  to
the  jurisdiction of the court and to require compliance with
the court order.
(Source: P.A. 76-208.)

    (740 ILCS 10/7.7) (from Ch. 38, par. 60-7.7)
    Sec. 7.7.  In any investigation brought by  the  Attorney
General  pursuant to this Act, no individual shall be excused
from attending, testifying or producing documentary material,
objects or tangible things in  obedience  to  a  subpoena  or
under  order of the court on the ground that the testimony or
evidence required of him or her may tend to  incriminate  him
or  subject  him  to  any  penalty.  No  individual  shall be
criminally prosecuted or subjected to  any  criminal  penalty
for  or  on  account  of  (a)  any testimony or interrogatory
answers given by him or her, or (b) any documentary  material
produced by him or her, as to which he or she would otherwise
have  a  right not to give or produce by virtue of his or her
right  against  self-incrimination,  in   any   investigation
brought  by  the  Attorney  General  pursuant  to  this  Act;
provided  no  individual so giving testimony or answers or so
producing documentary material  testifying  shall  be  exempt
from  prosecution  or  punishment for perjury committed in so
testifying, answering, or producing.
(Source: P.A. 81-1051.)

    (740 ILCS 10/12 new)
    Sec. 12.  Jury  Trial.   In  the  trial  of  all  actions
brought  under  this  Act  for  the  imposition  of  criminal
sanctions  or the recovery of civil penalties or damages, any
party, upon timely demand, shall be entitled to  a  trial  by
jury.