Legislature(2009 - 2010)BARNES 124

03/26/2010 03:15 PM House LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 338 ECON. STIMULUS BONDS: REALLOCATION/WAIVER TELECONFERENCED
Heard & Held
*+ HB 275 ANTITRUST ACTIONS & PENALTIES TELECONFERENCED
Heard & Held
              HB 275-ANTITRUST ACTIONS & PENALTIES                                                                          
                                                                                                                                
3:40:18 PM                                                                                                                    
                                                                                                                                
CHAIR OLSON announced  that the final order of  business would be                                                               
HOUSE BILL NO. 275, "An  Act authorizing certain causes of action                                                               
for relief for direct or  indirect injuries sustained as a result                                                               
of antitrust violations; repealing  the provision limiting to the                                                               
attorney  general  the recovery  of  monetary  relief for  injury                                                               
directly  or indirectly  sustained as  a result  of an  antitrust                                                               
violation;  and  relating to  criminal  and  civil penalties  for                                                               
antitrust violations."                                                                                                          
                                                                                                                                
3:41:34 PM                                                                                                                    
                                                                                                                                
GRETCHEN  STAFT,  Staff,  Representative  Max  Gruenberg,  Alaska                                                               
State  Legislature, explained  on  behalf of  the prime  sponsor,                                                               
that HB 275 is a consumer  protection bill.  She paraphrased from                                                               
the   sponsor  statement,   which   read  [original   punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     The purpose of HB 275 is threefold:                                                                                        
   1. Increase the penalties for antitrust violations                                                                           
   2. Allow recovery for parties injured indirectly, as well                                                                    
     as directly, by antitrust violations                                                                                       
   3. Allow the attorney general to bring an antitrust                                                                          
     action for additional equitable and monetary relief.                                                                       
                                                                                                                                
     The  first  function  of  HB 275  is  to  increase  the                                                                    
     penalties  levied against  those who  violate antitrust                                                                    
     laws. Under  current law, an antitrust  violation under                                                                    
     AS 45.50.562 or 45.50.564 is  only a misdemeanor and is                                                                    
     only  punishable  by  a fine  of  $20,000  or  $50,000,                                                                    
     respectively,  for  natural persons  or  organizations.                                                                    
     Because of  the enormous  profits that  may potentially                                                                    
     be realized  through antitrust violations,  the current                                                                    
     penalties do  not serve  as significant  deterrents. HB
     275  will   make  an   antitrust  violation   under  AS                                                                    
     45.50.562 or 45.50.564 a class  C felony. The bill will                                                                    
     also  increase   the  fines  for  such   violations  to                                                                    
     $1,000,000  for  natural  persons and  $50,000,000  for                                                                    
     organizations.  This  will   provide  a  much  stronger                                                                    
     deterrent to would-be antitrust violators.                                                                                 
                                                                                                                                
     The second  purpose of the  bill is to expand  the pool                                                                    
     of parties  who may  bring an action  against antitrust                                                                    
     violators.  Under  current  law, only  parties  injured                                                                    
     directly by  antitrust violations  may bring  a private                                                                    
     action. This  bill will allow  parties who  are injured                                                                    
     directly  or  indirectly  by  antitrust  violations  to                                                                    
     bring  an  action  to  recover  damages,  terminate  an                                                                    
     interlocking relationship, or both.                                                                                        
                                                                                                                                
3:42:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHENAULT  asked for clarification on  the "parties                                                               
who are directly or indirectly injured by antitrust violations."                                                                
                                                                                                                                
MS.  STAFT  related a  scenario  in  which  a manufacturer  of  a                                                               
computer  chip  is  engaged  in   illegal  trade  restriction  by                                                               
artificially  setting the  price of  its product  too high.   The                                                               
manufacturer  subsequently   sells  its   chips  to   a  computer                                                               
manufacturer, who  in turn  sells the  computer to  the consumer.                                                               
Under current  law, a  person could not  bring a  lawsuit against                                                               
the computer manufacturer even though  it raised the price of the                                                               
computer.    Basically,  the  manufacturer   paid  more  for  the                                                               
computer  chip,  she   stated.    Under  current   law  only  the                                                               
manufacturer  could bring  the  lawsuit, but  under  HB 275,  the                                                               
consumer could initiate the lawsuit.                                                                                            
                                                                                                                                
3:43:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CHENAULT related  his understanding  the consumer                                                               
would be the indirect purchaser.                                                                                                
                                                                                                                                
MS. STAFT agreed that the consumer would be indirect purchaser.                                                                 
                                                                                                                                
3:44:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   CHENAULT   pointed   out   that   the   computer                                                               
manufacturer could  bring the lawsuit based  on artificial price,                                                               
but the  computer manufacturer would  not be directly  damaged by                                                               
the increased cost  of the computer chips  since the manufacturer                                                               
would pass on the cost to the consumer.                                                                                         
                                                                                                                                
MS. STAFT related that one  could argue the computer manufacturer                                                               
is directly  affected since the  higher computer chip  cost could                                                               
contribute  to a  decrease  in  the volume  of  the total  sales.                                                               
Thus,  consumers may  decide not  to  buy the  computer from  the                                                               
manufacturer since  the computer may  cost more than  one without                                                               
an inflated chip cost.                                                                                                          
                                                                                                                                
3:45:27 PM                                                                                                                    
                                                                                                                                
MS.  STAFT turned  to  the sectional  analysis of  HB  275.   She                                                               
explained  that  Section 1  &  2  would  allow a  person  injured                                                               
directly or  indirectly by a  violation of this statute  to bring                                                               
an action to terminate the prohibited interlocking relationship.                                                                
                                                                                                                                
MS. STAFT  related that proposed  Section 3 would provide  that a                                                               
person bringing  an action for  antitrust violation shall  mail a                                                               
copy  of the  complaint  to the  attorney general.    This is  to                                                               
provide notice  in case  it may  wish to  intervene and  bring in                                                               
more citizens under the scope of the action.                                                                                    
                                                                                                                                
MS.  STAFT explained  that  proposed Section  4  would allow  the                                                               
Attorney  General  (AG)  to  bring   a  civil  action  to  secure                                                               
monetary,  injunctive, and  other equitable  relief on  behalf of                                                               
the state  or its agencies  injured directly or indirectly  by an                                                               
antitrust violation.   Under current  law the AG can  only obtain                                                               
monetary relief.                                                                                                                
                                                                                                                                
MS. STAFT highlighted that proposed  Section 5 would allow the AG                                                               
to bring  a civil action on  behalf of persons doing  business or                                                               
residing in the  state to secure monetary,  injunctive, and other                                                               
equitable relief for direct and  indirect injuries sustained from                                                               
antitrust violations.                                                                                                           
                                                                                                                                
MS.  STAFT  noted  that  proposed  Sections  6,  7,  and  8  make                                                               
conforming changes.                                                                                                             
                                                                                                                                
MS. STAFT  related that proposed  Section 9 defines  "person" and                                                               
adds  governmental agencies  including political  subdivisions of                                                               
the  state, home  rule or  general  law, cities  or boroughs  and                                                               
other  governmental   agencies  such   as  the   Alaska  Railroad                                                               
Corporation (ARRC) and the University of Alaska.                                                                                
                                                                                                                                
3:47:46 PM                                                                                                                    
                                                                                                                                
MS.  STAFT stated  that  any  instance of  "person"  in the  bill                                                               
refers to the expanded definition.                                                                                              
                                                                                                                                
MS. STAFT  related that proposed  Section 10 provides  "the meat"                                                               
of the bill.   This provision would raise  the criminal penalties                                                               
for an anti-trust  violation.  Thus, a violation  of AS 45.50.562                                                               
or 45.50.564, which addresses restraint  of trade and monopolies,                                                               
would be  raised from a  misdemeanor to a  class C felony.   This                                                               
section also  raises the maximum  criminal fines from  $20,000 to                                                               
$1 million for  a natural person and from $50,000  to $50 million                                                               
for  an organization.   She  pointed out  that these  are maximum                                                               
fines and a judge would have discretion.                                                                                        
                                                                                                                                
3:48:43 PM                                                                                                                    
                                                                                                                                
MS. STAFT,  in response to  Representative Buch, agreed  that the                                                               
penalties would  not affect a business  in the same way  it would                                                               
affect a natural person.   She commented that since a corporation                                                               
cannot be jailed, the fines are  raised.  She referred to page 4,                                                               
lines 11-12, noting that the penalty is a felony.                                                                               
                                                                                                                                
REPRESENTATIVE BUCH related his  understanding that is the reason                                                               
that person and natural person are defined.                                                                                     
                                                                                                                                
MS. STAFT  agreed.  She pointed  out that a natural  person would                                                               
likely have limited resources, but may  not be able to do as much                                                               
damage as an organization.                                                                                                      
                                                                                                                                
3:50:02 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   CHENAULT  related   he  was   contemplating  the                                                               
expansion  of political  subdivision and  home rule,  as allowing                                                               
"anyone" to sue.                                                                                                                
                                                                                                                                
MS.  STAFT  offered her  belief  that  one  reason to  add  these                                                               
entities to the  definition of a "person" is that  it would allow                                                               
a city  to recover taxpayers' money.   She related a  scenario in                                                               
which a person  sold a product as an additive  to asphalt to pave                                                               
streets.  However,  if the company artificially set  the price of                                                               
its product too high it would cause  the city to pay more to pave                                                               
the  streets.   This provision  would allow  the city  to recover                                                               
taxpayers' money.   She  related that cities  can be  injured and                                                               
the Assistant Attorney General,  Ed Sniffen, could better explain                                                               
the expanded definitions.                                                                                                       
                                                                                                                                
3:51:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHENAULT understood  antitrust lawsuits occur, but                                                               
commented that  anyone who  thinks they  are affected  would have                                                               
the ability to sue.                                                                                                             
                                                                                                                                
3:52:10 PM                                                                                                                    
                                                                                                                                
CHAIR OLSON asked  why some entities, such as  the Alaska Housing                                                               
Finance  Corporation (AHFC)  and the  Permanent Fund  Corporation                                                               
(PFC) are excluded in the bill.                                                                                                 
                                                                                                                                
MS. STAFT  suggested that some  entities are subdivisions  of the                                                               
state  and can  be represented  by the  attorney general.   Other                                                               
organizations could  bring suit  since they  are included  in the                                                               
definition of person.                                                                                                           
                                                                                                                                
CHAIR OLSON  referred to page 2,  line 1 to the  inclusion of the                                                               
Alaska Railroad  Corporation (ARRC) and the  University of Alaska                                                               
(UA).                                                                                                                           
                                                                                                                                
MS.  STAFT related  that the  ARRC  and UA  cannot bring  private                                                               
actions, but  the state's attorney  general can bring  actions on                                                               
either entity's behalf.   This bill would allow  either entity to                                                               
bring private actions.  She  explained that private attorney fees                                                               
are higher.  She surmised that  likely someone would alert the AG                                                               
of a proposed antitrust violation  and the attorney general would                                                               
proceed.  This provision would  allow an option for either entity                                                               
to bring  the suit.  However,  either entity would still  have to                                                               
prove the same elements that the AG would have to prove.                                                                        
                                                                                                                                
3:54:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CHENAULT expressed concern  that entities like the                                                               
ARRC  or the  University could  bypass the  safeguards that  have                                                               
been put in place within the attorney general's office.                                                                         
                                                                                                                                
MS.  STAFT related  that other  states have  these provisions  in                                                               
place to allow private citizens  to bring lawsuits forward and it                                                               
has worked well.                                                                                                                
                                                                                                                                
REPRESENTATIVE CHENAULT maintained his concern  if the AG did not                                                               
believe an  action warranted  lawsuit, the  UA system  or another                                                               
state agency  could file a lawsuit.   He offered his  belief that                                                               
it  is  the attorney  general's  responsibility  to handle  state                                                               
matters.                                                                                                                        
                                                                                                                                
3:56:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN  asked  for  clarification  of  the  terms                                                               
"direct and indirect" injury.                                                                                                   
                                                                                                                                
MS.  STAFT responded  that  only direct  purchasers  can bring  a                                                               
lawsuit  for antitrust  violations.   She  restated her  previous                                                               
scenario  in which  a computer  chip manufacturer  is engaged  in                                                               
artificially setting the price to  high for a computer chip, with                                                               
the  manufacturer passing  on  the  cost to  consumer.   In  that                                                               
scenario, the  consumer is the  indirect party and  under current                                                               
law  could not  bring  a  lawsuit.   This  bill  would allow  the                                                               
consumer to recover damages.                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN related  an instance  in which  a refinery                                                               
manufactures  gas and  asked whether  the consumer  could file  a                                                               
lawsuit.                                                                                                                        
                                                                                                                                
MS.  STAFT responded  that she  believed so,  but noted  that the                                                               
consumer must  prove the elements.   She deferred to  Mr. Sniffen                                                               
for further clarification.                                                                                                      
                                                                                                                                
3:58:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN  maintained  the lawsuit  could  still  be                                                               
filed.                                                                                                                          
                                                                                                                                
MS. STAFT  agreed.   She stated  that the case  would need  to go                                                               
through a discovery process.                                                                                                    
                                                                                                                                
3:58:35 PM                                                                                                                    
                                                                                                                                
MS.  STAFT explained  that  proposed Section  11  would create  a                                                               
civil  penalty provision  and  would  allow the  AG  to bring  an                                                               
action for civil  penalties and sets the  maximum civil penalties                                                               
at  $1 million  for  a  natural person  and  $50  million for  an                                                               
organization.                                                                                                                   
                                                                                                                                
MS.  STAFT related  that  proposed Section  12  would expand  the                                                               
provision  regarding  proof of  aggregate  damages  to cover  any                                                               
action  brought under  AS 45.50.562-596.   It  provides the  same                                                               
definition of "person" as seen earlier in the bill.                                                                             
                                                                                                                                
MS.  STAFT  offered  that  proposed   Section  13  would  provide                                                               
conforming  changes and  again uses  the  expanded definition  of                                                               
person.                                                                                                                         
                                                                                                                                
MS. STAFT  stated that proposed  Section 14 would  add additional                                                               
remedies a court may use  for antitrust violations, including the                                                               
revocation,   forfeiture,   or   suspension   of   the   business                                                               
organization's  charter,  franchise,  certificate  of  authority,                                                               
privilege, or license, dissolution  of the business organization,                                                               
and  divesture  of  any  asset.   She  noted  that  the  language                                                               
provides that  a court "may"  rather than "shall"  add additional                                                               
remedies.                                                                                                                       
                                                                                                                                
4:00:15 PM                                                                                                                    
                                                                                                                                
MS.  STAFT  offered  that  proposed   Section  15  would  provide                                                               
conforming changes  and also provides for  an expanded definition                                                               
of person.                                                                                                                      
                                                                                                                                
MS.  STAFT  related that  proposed  Section  16 would  repeal  AS                                                               
45.50.576(b), AS 45.50.577(i), and 45.50.580(a).                                                                                
                                                                                                                                
4:00:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE T. WILSON asked for  the reason that this bill was                                                               
brought forward.                                                                                                                
                                                                                                                                
MS.  STAFT  explained  that  the sponsor  attended  a  series  of                                                               
meetings, and  a national antitrust  expert testified.   The bill                                                               
sponsor asked how Alaska's antitrust  statutes could be improved.                                                               
She  related that  the antitrust  experts  suggested that  Alaska                                                               
could give its  private citizens the ability to  bring action and                                                               
that penalties  could be increased.   Mr. Sniffen  provided input                                                               
and the bill was brought forth.                                                                                                 
                                                                                                                                
4:02:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  BUCH   recalled  "digging"  into   the  corporate                                                               
responsibilities.   He  stated  that an  agency  was involved  in                                                               
which  an owner  was  instrumental  in a  corruption  case.   The                                                               
question arose  as to  whether the damages  were high  enough and                                                               
whether  an owner  who  cooperated in  the  case could  eliminate                                                               
liability to  the company.  He  offered his belief that  may have                                                               
been  one reason  the  sponsor was  interested  in the  antitrust                                                               
provisions.                                                                                                                     
                                                                                                                                
REPRESENTATIVE NEUMAN agreed with Representative Buch.                                                                          
                                                                                                                                
4:03:32 PM                                                                                                                    
                                                                                                                                
CLYDE  (ED)  SNIFFEN,  JR., Senior  Assistant  Attorney  General,                                                               
Commercial/Fair  Business  Section, Civil  Division  (Anchorage),                                                               
Department  of  Law  (DOL),  offered  that  his  responsibilities                                                               
include enforcement of the Consumer  Protection Act and antitrust                                                               
statutes.  He  explained that under current law, only  the AG has                                                               
the ability to bring an action  for indirect damages.  He related                                                               
that  there is  an  actual  case that  Alaska,  along with  other                                                               
states, was involved  in against a computer  chip manufacturer in                                                               
California.  He  said that Alaska had to "pull  out of that case"                                                               
because Alaska  did not  have authority to  bring these  kinds of                                                               
actions.   That resulted in  passage of our current  statute that                                                               
allows the  AG to bring  actions against indirect damages.   This                                                               
bill removes  the restriction  that only the  AG can  bring these                                                               
types of actions.  The DOL  does not necessarily have problems in                                                               
Alaska.   In other states  private parties can  initiate actions.                                                               
This bill is limited to indirect  damage cases.  He referred to a                                                               
U.S. Supreme  Court case called  Illinois Brick vs.  Illinois, so                                                               
it  is referred  to  as  the Illinois  Brick  Rule.   The  Alaska                                                               
statute  is   an  Illinois  Brick   repealer,  which   gives  the                                                               
government  the opportunity  to  bring the  cases.   Most  states                                                               
allow private  parties to  bring these  actions, although  he did                                                               
not  know  if  other  states  extend  the  ability  to  political                                                               
subdivisions like  the ARRC or the  UA.  He offered  to look into                                                               
this and report back to the committee.                                                                                          
                                                                                                                                
4:06:34 PM                                                                                                                    
                                                                                                                                
MR. SNIFFEN explained the second part  of the bill provides for a                                                               
civil  penalty.    The  DOL supports  this  provision  since  the                                                               
current  statutes  do  not  provide  for  civil  penalties,  only                                                               
criminal penalties.   Currently, it is a misdemeanor and  up to a                                                               
$50,000  fine if  a corporation  or up  to a  $20,000 fine  for a                                                               
violation.    The  criminal violation  requires  proof  beyond  a                                                               
reasonable doubt.   He pointed out that almost  every other state                                                               
has  civil penalties.   He  reviewed approximately  twenty states                                                               
and Ohio has a $500 per  day penalty, California has a penalty up                                                               
to $1 million, or two times the  gross gain or loss.  Nevada uses                                                               
five percent  of the  actual sales  as a  potential penalty.   He                                                               
stated  that  what really  is  prompting  states to  amend  their                                                               
statutes  is   that  the  Federal  Trade   Commission  (FTC)  has                                                               
increased  the federal  antitrust  penalties to  $10 million  per                                                               
individual  and $100  million  for an  organization.   Thus,  the                                                               
penalties contained in HB 275 are  penalties that should act as a                                                               
deterrent.                                                                                                                      
                                                                                                                                
4:08:16 PM                                                                                                                    
                                                                                                                                
MR. SNIFFEN  referred to the  question on the  gasoline refinery.                                                               
He agreed that  under current law it would be  difficult to bring                                                               
a lawsuit against Tesoro Alaska  Company (Tesoro) in the instance                                                               
that a consumer  believed that gas prices  were artificially high                                                               
and  were set  because Tesoro  engaged in  price fixing  activity                                                               
with a  refiner or  distributers.   The AG  would be  required to                                                               
bring the lawsuit, he stated.                                                                                                   
                                                                                                                                
4:08:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN  related  his understanding  that  the  AG                                                               
could file a lawsuit against a refinery.                                                                                        
                                                                                                                                
MR. SNIFFEN agreed that the AG currently has the ability.                                                                       
                                                                                                                                
REPRESENTATIVE NEUMAN asked  whether a gas station  would be able                                                               
to sue.                                                                                                                         
                                                                                                                                
MR. SNIFFEN  answered yes.   It would  depend on whether  the gas                                                               
station was  buying direct from  the refinery.  Under  this bill,                                                               
the gas station could also  bring that action against a refinery.                                                               
In further  response to Representative Neuman,  he explained that                                                               
if  the  gas station  is  purchasing  the product  directly  from                                                               
Tesoro and  not through a  distributor, the gas station  would be                                                               
direct  purchaser  and  would  be  entitled  to  any  damages  it                                                               
suffered.                                                                                                                       
                                                                                                                                
REPRESENTATIVE NEUMAN related that if  Tesoro has a pipeline to a                                                               
bulk plant  in Anchorage, but  a trucking company moves  the gas,                                                               
the station  pays the bill.   He asked  if the gas  station would                                                               
have the ability to bring an action.                                                                                            
                                                                                                                                
MR. SNIFFEN  offered his belief  that the trucking  company would                                                               
just  be a  pass  through  and the  gas  station  would have  the                                                               
ability as  the purchaser to  bring antitrust action  against the                                                               
refinery.  However, this bill would definitely give them the                                                                    
ability to do so.                                                                                                               
                                                                                                                                
4:12:14 PM                                                                                                                    
                                                                                                                                
[HB 275 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB338 ver A.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
CS HB338 Draft ver R.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
CS HB338 Sponsor Statement.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
HB338 Fiscal Note-1-2-021010-CED-N.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
HB338 Sponsor Statement ver A.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
CSHB 275 Draft ver T.pdf HL&C 3/26/2010 3:15:00 PM
HB 275
HB275 ver P.pdf HL&C 3/26/2010 3:15:00 PM
HB 275
HB338 Fiscal Note-2-1-021010-REV-Y.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
Mar 26 Packet Info.pdf HL&C 3/26/2010 3:15:00 PM
HB338 Supporting Documents Letter-City of Kenai 2-10-10.pdf HL&C 3/26/2010 3:15:00 PM
HB 338
HB275 Sponsor Statement ver T.pdf HL&C 3/26/2010 3:15:00 PM
HB 275
HB275 Sectional Analysis ver T.pdf HL&C 3/26/2010 3:15:00 PM
HB 275
HB275 Fiscal Note-LAW-CIV-03-19-10.pdf HL&C 3/26/2010 3:15:00 PM
HB 275
HB338_SB269 Supporting Documents - AIDEA (2) (2).pdf HL&C 3/26/2010 3:15:00 PM
HB 338
SB 269