CHAPTER 89

FORMERLY

SENATE BILL NO. 37

AS AMENDED BY

SENATE AMENDMENT NO. 1

AND HOUSE AMENDMENT NO. 3

AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO COMMERCE AND TRADE; PROHIBITING RESTRAINTS OF TRADE AND MONOPOLISTIC PRACTICES; PROVIDING REMEDIES AND PENALTIES THEREFOR; AND REPOSING POWERS AND DUTIES IN THE ATTORNEY GENERAL.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subtitle II, Title 6 of the Delaware Code by adding thereto a new chapter, designated as Chapter 21, which new Chapter shall read as follows:

"CHAPTER 21. ANTITRUST ACT

§2101. Legislative Purpose

The purpose of this Chapter shall be to promote the public benefits of a competitive economic environment based upon free enterprise. It is the intent of the General Assembly to promote efficiency in business operations, an equitable return on capital investments, an efficient allocation of goods and services, and freedom of economic opportunity.

§2102. Definitions

The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(a) 'Court' means the Court of Chancery except where another court is specifically designated.

(b) 'Documentary material' means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart or other document, and further includes data and other information in a form readable by a data processing machine.

(c) 'Public body' means the State's public agencies, including school districts, and its political subdivisions, including municipal and other authorities.

(di 'Trade or commerce of this State' means all economic activity carried on wholly or partially in this State, which involves or relates to any commodity, service or business activity.

§2103. Restraint of Trade Unlawful

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce of this State shall be unlawful.

§2104. Exemptions

(a) Nothing in this Chapter shall be construed to forbid the existence or operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations or the members thereof, be held or construed to be illegal combinations or agreements in restraint of trade under this Chapter.

(Is) Nothing in this Chapter shall be construed to forbid any conduct or arrangement required by any statute of this State or of the United States, nor any

conduct or arrangement approved or required by a regulatory body or officer acting under statutory authority of this State or of the United States.

(c) Without limiting the effect of the foregoing, activity of the following shall not be construed as a violation of this Chapter:

(1) Any public utility, to the extent that such activity is subject to regulation by the Public Service Commission, the State or Federal Department of Transportation, the Federal Power Commission, the Federal Communications Commission, or the Interstate Commerce Commission;

(2) Any person to the extent that such activity is subject to regulation by the Insurance Commissioner of this State or is authorized by the insurance code or any other law of this State, including the making of or participating in joint underwriting or joint reinsurance arrangements;

(3) A nonprofit corporation, trust or organization established exclusively for religious or charitable purposes, or for both purposes, to the extent that the activity is a religious or charitable activity;

(4) A security dealer who is licensed by this State or who is a member of the National Association of Securities Dealers or a member of a national securities exchange registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934, in the course of his business of offering, selling, buying and selling, or otherwise trading in or underwriting securities as an agent, broker, or principal, or the activity of a registered national securities exchange, including the establishment of commission rates and schedules of charges, to the extent that such activity is subject to regulation under the laws of this State or the United States; or

(5) Any state or national banking association or savings and loan association, or any other lending institution, to the extent that such activity is regulated or supervised by the banking laws or savings and loan laws of this State or the United States.

§2105. General Power of Attorney General

The Attorney General shall have full power and authority on behalf of the StetCarid-its public bodies to investigate suspected violations of this Chapter or of Federal antitrust laws, and may institute such proceedings as are provided for violations thereof.

§2106. Investigative Demand by Attorney General; Duty to Testify; Immunity

(a) Whenever the Attorney General has reason to believe that any person may have knowledge, or be in possession, custody or control of any documentary material, pertinent to a possible violation of this Chapter, he may issue in writing and cause to be served upon the person an investigative demand by which he may:

(1) Compel the attendance of such person and require him to submit to examination and give testimony under oath;

(2) Require the production of documentary material pertinent to the investigation; and

(3) Require answers to written interrogatories to be furnished under oath.

(b) Service of any demand under this section may be made by mailing such demand to the last known place of business, residence or abode within or without this State of the person to whom such demand is directed; service may also be made upon any person other than a natural person, In the manner provided in 9321 or §§371 to 384 of Title 8 and in the manner provided in the Rules of the Court of Chancery.

(c) Each demand under this section shall be in writing and shall:

(1) State the nature of the conduct constituting the alleged violation of this Chapter which is under investigation and the provision of law applicable thereto;

(2) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such material to be fairly identified;

(3) Prescribe a return date which will provide a reasonable time within which the material so demanded may be assembled and made available for inspection and copying or reproduction; and

(4) Identify the custodian to whom such material shall be made available or the official before whom such examination shall take place or to whom such answers shall be furnished.

(d) Any person required to submit to examination under this section shall be entitled to be represented by counsel. Any person so required shall be entitled to procure a transcript of his testimony, provided that the Court, for good cause shown by the Attorney General, may order that such person be limited to inspection of such transcript.

(e) No demand under this section shall contain any requirement which would be held to be unreasonable if contained in a subpoena Issued by a court of this State in aid of a grand jury investigation, or require the production of any evidence which would be privileged from disclosure if demanded by a subpoena issued by a court of this State in aid of a grand Jury investigation.

(f) Within twenty days after the service of any demand under this section, or at any time before the return date specified in the demand, whichever period is shorter, the person served may file with the Court a
motion for an order modifying or setting aside such demand. The motion shall specify each ground upon which the person relies in seeking such relief, and may be based upon any failure of the demand to comply with this section, or upon any constitutional right or privilege of the person.

(a) if any person fails to comply with a demand under this section, the Attorney General may file with the Court a motion for an order, and the Court may enter an order:

(I) Requiring the person to respond to the demand;

(2) Granting such other relief as may be required to obtain compliance with the demand.

(b) If any person shall refuse to give testimony or to produce documentary material or to answer a written interrogatory in obedience to an- investigative demand on the ground that he may thereby be incriminated, the Court, upon motion by the Attorney General, may order such person to give testimony or to produce documentary material or to answer the written interrogatory, or to do an applicable combination of these, after notice to the witness and a hearing.

(c) Such person so ordered by the Court shall comply with the Court order. After complying, the testimony of such person or the matters produced, which are obtained by virtue of said order shall not be used against him in any criminal prosecution nor shall any evidence obtained derivatively from said testimony be so used, provided that, but for this section, such person would have been privileged to withhold the answer or the evidence produced by him.

()) In no event, however, shall such person, acting pursuant to such order, be exempt from prosecution or penalty or forfeiture for any

perjury, false statement or contempt committed in answering or failing to answer, or in producing or failing to produce evidence in accordance with the order, and any testimony or evidence so given or produced shall not by virtue of this section be rendered inadmissible in evidence upon any criminal action, investigation or proceeding concerning such perjury, false statement or contempt.

(k) Any transcripts of oral testimony, documentary material, or answers to written interrogatories provided pursuant to a demand under this section shall be exempt from disclosure under the Delaware Freedom of Information Act. The custodian described in subsection (0(4) shall take physical possession of such transcripts, material, and answers. Such transcripts, material, or answers, or copies thereof, shall not be disclosed by the custodian to any person other than the Attorney General or authorized employees of the Department of Justice, and the Attorney General and authorized employees shall not make further disclosure of such transcripts, material, or answers, or copies or of internal memoranda or work papers relating thereto. Nothing in this section shall prevent the Attorney General from introducing said testimony, material, or answers in any action initially filed in a Federal court sitting in this State, or before any court or grand jury of this State.

§2107. Actions by Attorney_General for Violations; Civil Penalty; Equitable Relief

The Attorney General may bring an action for any violation or threatened violation of this Chapter. In any such action, the Court may assess against each defendant a civil penalty for the benefit of the State of not less than $1,000 nor more than $100,000 for each violation, or may award appropriate equitable relief, or may order a combination of civil penalty and equitable relief.

§2198. Actions for Equitable Relief and Treble Damages; Suits Parens Patriae

(a) If the State or any public body thereof is threatened with injury or injured in its business or property by a violation of this Chapter, the Attorney General may bring an action for appropriate equitable relief, damages sustained and, as determined by the Court, taxable costs, and reasonable fees for expert witnesses and attorneys, including the Attorney General.

(b) The Attorney General may bring suit as parens patriae on behalf of natural persons residing in this State, to secure monetary relief for such persons who are injured in their business or property by a violation of this Chapter. The Court may also award taxable costs, and reasonable fees for expert witnesses and attorneys, including the Attorney General.

(c) In actions under this section the Court may in its discretion award as monetary relief up to threefold the total damage sustained,in addition to costs and fees provided that the Court finds the acts complained of to have been wilful.

(d) Monetary relief awarded under subsection (b) may be payable to the State or may be distributed in such manner as the Court in its discretion may authorize.

(e) In any action brought under subsection (b), the Attorney General shall, at such times, in such manner, and with such content as the Court may direct, cause notice thereof to be given by publication. If the Court finds that notice given solely by publication would deny due process of law to any person or persons, the Court may direct further notice to such person or persons according to the circumstances of the case.

(f) Any person on whose behalf an action is brought under subsection (b) may elect to exclude from adjudication the portion of the State claim for monetary relief attributable to him by filing notice of such election with the Court in the manner specified in the notice given pursuant to subsection (e). The final judgment in any action under subsection (b) shall be res Judicata as to any claim under this Chapter by any person on behalf of whom sua. action was brought and who fails to give notice of exclusion in the manner specififed In this subsection.

(g) In any action brought under subsection (b), the Court shall exclude from the amount of any monetary relief awarded any amount which duplicates an award

made by any court for the same injury, or which is allocable to persons excluded under subsection (f).

§2109. Judgment in Favor of State as Prima Facie Evidence

In any action or proceeding brought by the Attorney General, a final judgment or decree determining that a person has violated this Chapter, other than a consent judgment or decree entered before any testimony has been taken, is prima fade evidence against him in any other action as to all matters with respect to which the judgment or decree would be an estoppel between the parties thereto.

§2110. Jurisdiction

The Court of Chancery shall have exclusive jurisdiction of all actions or proceedings authorized by this Chapter or relating to its enforcement; provided, however, that in an action in which any party would otherwise have a right to trial by jury of any issue of fact, and such party shall demand such trial, the Court shall order such issue to trial and binding determination of such issue in the Superior Court, the action or proceeding being retained in the Court of Chancery in all other respects, including entry of judgment.

§2111. Limitation of Actions

Any action to enforce the provisions of this Chapter shall be forever barred unless commenced within three (3) years after the cause of action accrued. For purposes of this section, a cause of action for a continuing violation is deemed to accrue at any time during the period of such violation.

§2112. Security not Required of State and Public Bodies

Unless otherwise ordered by the Court, the State and its public bodies shall not be required to give security in any action or proceedings under this Chapter.

§2113. Construction of Statute

This Chapter shall be construed in harmony with ruling judicial interpretations of comparable Federal antitrust statutes.

§2114. Short Title

This Chapter shall be known and may be cited as the Delaware Anti- trust Act."

Section 2. Severability

If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 3. Enforcement Funds not Committed

Nothing in this Act shall be deemed a direct or indirect commitment by the General Assembly to appropriate funds for enforcement of this Act by the Attorney General.

Section 4. Remedies Cumulative

The remedies provided in this Act shall be cumulative.

Section 5. Effective Date

This Act shall take effect six (6) months after signature by the Governor.

Section 6. Powers Not Limited

The powers granted to the Attorney General under this Act shall be in addition to those powers granted to him at common law, or under the Constitution, statutes, and rules of the courts of this State.

Approved July 3, 1979.