71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2217
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
CHAPTER ................
AN ACT
Relating to antitrust damage actions by indirect purchasers;
creating new provisions; and amending ORS 646.775 and 646.780.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646.775 is amended to read:
646.775. (1)(a) The Attorney General may bring a civil action
in the name of the State of Oregon, { + on behalf of a political
subdivision in this state or + } as parens patriae on behalf of
{ + a + } natural { - persons residing in the state - } { +
person + }, in any circuit court in which venue is proper under
ORS 646.790, to secure equitable and monetary relief as provided
in this section for injury sustained by { - such - }
{ + the + } natural { - persons - } { + person or political
subdivision + } to { - their - } { + the natural person's or
political subdivision's + } property by reason of a violation of
ORS 646.725 or 646.730. { + The Attorney General may bring the
action authorized by this paragraph regardless of whether the
natural person or political subdivision dealt directly or
indirectly with the adverse party. + }
(b) The court shall exclude from the amount of monetary relief
awarded in an action pursuant to paragraph (a) of this subsection
any amount of monetary relief { + : + }
(A) { - which - } { + That + } duplicates amounts
{ - which - } { + that + } have been awarded for the same
injury { - , - } { + ; + } or
(B) { - which - } { + That + } is properly allocable to
{ - (i) - } natural persons who have excluded their claims
pursuant to subsection (2)(b) of this section, { - and (ii) - }
{ + or to + } any business entity.
(c) { + (A) Subject to paragraph (b) of this subsection, + }
the court shall award the state as monetary relief
{ - threefold - } { + three times + } the total damages
sustained { + by natural persons and political subdivisions and
the costs the state incurs in the action + } { - , as described
in paragraph (b) of this subsection, and the costs of suit - } .
{ + (B) + } The court may award reasonable attorney fees to
the Attorney General if the Attorney General prevails in an
action under this section.
{ + (C) + } The court may award reasonable attorney fees to a
defendant who prevails in an action under this section if the
court determines that the Attorney General had no objectively
Enrolled House Bill 2217 (HB 2217-A) Page 1
reasonable basis for asserting the claim or no reasonable basis
for appealing an adverse decision of the trial court.
{ + (d) Notwithstanding paragraph (c) of this subsection, the
court shall award the state only the actual damages sustained by
natural persons and political subdivisions in an action in which:
(A) The Attorney General prevails solely on the basis of a
judgment entered in a proceeding under 15 U.S.C. 1 to 45 or in
another action by the state under ORS 646.760, 646.770 or
646.780, used as collateral estoppel against the defendant under
ORS 646.805; or
(B) The natural person or political subdivision dealt
indirectly with the adverse party and the Attorney General
establishes a violation other than a per se violation of ORS
646.725. + }
{ - (2)(a) In any action pursuant to subsection (1)(a) of
this section, 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. - }
{ + (2)(a) In any action pursuant to subsection (1)(a) of
this section, the Attorney General shall, at the times, in the
manner and with the content the court directs, give notice by
publication. If the court finds that notice given solely by
publication would deny due process of law to a natural person or
political subdivision, the court may direct further notice to the
natural person or political subdivision according to the
circumstances of the case. + }
(b) Any { + natural + } person { + or political
subdivision + } on whose behalf an action is brought pursuant to
subsection (1)(a) of this section may elect to exclude from
adjudication the portion of the claim for monetary relief
attributable to the { + natural + } person { + or political
subdivision + } by filing notice of { - such - } { + the + }
election with the court within { - such - } { + the + } time
{ - as - } specified in the notice given pursuant to paragraph
(a) of this subsection.
(c) The final judgment in an action pursuant to subsection
(1)(a) of this section shall be res judicata as to any claim
under this section by any { + natural + } person { + or
political subdivision + } on behalf of whom such action was
brought and who fails to give the notice specified in paragraph
(b) of this subsection within the period specified in the notice
given pursuant to paragraph (a) of this subsection.
(3) An action pursuant to subsection (1)(a) of this section
shall not be dismissed or compromised without the approval of the
court, and the notice of any proposed dismissal or compromise
shall be given in { - such - } { + the + } manner
{ - as - } the court directs.
(4) In any action pursuant to subsection (1)(a) of this section
in which there has been a determination that a defendant agreed
to fix prices in violation of ORS 646.725, damages may be proved
and assessed in the aggregate by statistical or sampling methods,
by the computation and pro rata allocation of illegal
overcharges, or by { - such - } { + any + } other reasonable
system of estimating aggregate damages as the court in its
discretion may permit without the necessity of separately proving
the individual claim of, or amount of damage to, { + natural + }
Enrolled House Bill 2217 (HB 2217-A) Page 2
persons { + or political subdivisions + } on whose behalf the
suit was brought.
(5)(a) Monetary relief recovered in an action pursuant to
subsection (1)(a) of this section shall be distributed in
{ - such - } { + the + } manner { - as - } the court in its
discretion may authorize, subject to the requirement that any
distribution procedure adopted afford each { + natural + }
person { + or political subdivision + } on whose behalf the suit
was brought a reasonable opportunity to secure { - their - }
{ + an + } appropriate portion of the net monetary relief.
(b) The Attorney General shall deposit that portion of the
monetary relief awarded by the court as costs of suit and a
reasonable attorney fee in the Consumer Protection and Education
Revolving Account established pursuant to ORS 180.095.
(c) To the extent that the monetary relief awarded by the court
is not exhausted by distribution pursuant to paragraphs (a) and
(b) of this subsection, the remaining funds shall be deemed a
civil penalty by the court and assessed as such for the benefit
of the state pursuant to ORS 646.760.
(6) The powers granted in this section are in addition to and
not in derogation of the common law powers of the Attorney
General to act as parens patriae, or the powers of the Attorney
General to sue as a representative party on behalf of a class
pursuant to ORCP 32.
SECTION 2. ORS 646.780 is amended to read:
646.780. (1)(a) A person including the state or any
{ - municipal corporation or - } political subdivision
{ - of - } { + in + } the state injured in its business or
property by a violation of ORS 646.725 or 646.730 may sue
{ - therefor - } { + for the injury + } and shall recover
{ - threefold - } { + three times + } the damages
sustained { + . + } { - , except that - } { + The state may
bring the action authorized by this paragraph regardless of
whether the state dealt directly or indirectly with the adverse
party.
(b) Notwithstanding paragraph (a) of this section, + } the
state may recover only { - its - } { + the state's + } actual
damages sustained and any attorney fees, expert witness fees or
investigative costs that { + the court + } may { - be
awarded - } { + award + } under subsection (3) of this section,
if { - it - } { + the state:
(A) + } Brings an action { - pursuant to - } { + under + }
ORS 646.760 { + ; + } { - or - }
{ + (B) + } Commences a prosecution under ORS 646.815 and
646.990 (2) { + ; or
(C) Brings an action for an injury that the state suffered by
dealing indirectly with the adverse party and the state
establishes a violation other than a per se violation of ORS
646.725 + }.
{ - (b) - } { + (c) + } Notwithstanding paragraph (a) of
this subsection, in any action under this section in which the
plaintiff prevails solely on the basis of a judgment or decree
entered in a proceeding under { - sections 1 to 45 of Title 15
of the United States Code - } { + 15 U.S.C. 1 to 45 + } or in
another action by the state under ORS 646.760, 646.770 or this
section, used as collateral estoppel against a defendant pursuant
to ORS 646.805, plaintiff's recovery shall be limited to the
actual damages sustained and any attorney fees, expert witness
fees or investigative costs that may be awarded under subsection
(3) of this section.
Enrolled House Bill 2217 (HB 2217-A) Page 3
(2) Unless there is a subsequent judgment that the court lacks
jurisdiction, the taking of any testimony at the commencement of
trial on a civil complaint for damages filed under the antitrust
laws of the United States shall constitute an absolute bar and
waiver of any right of a plaintiff in such action to recover
damages from the same defendant under this section for the same
or substantially the same acts of plaintiff.
(3)(a) Except as provided in subsection (4) of this section, in
an action brought under the provisions of this section by a
person other than the state or any { - municipal corporation
or - } political subdivision { - of - } { + in + } the state,
the court may award reasonable attorney fees, expert witness fees
and investigative costs to the prevailing party.
(b) Except as provided in subsection (4) of this section, in a
civil action brought under the provisions of this section or
under ORS 646.760 by the state or any { - municipal corporation
or - } political subdivision { - of - } { + in + } the state:
(A) The court may award reasonable attorney fees, expert
witness fees and investigative costs to the state or { - any
municipal corporation or - } political subdivision { - of the
state - } if the state or { - any municipal corporation or - }
political subdivision prevails in the action; and
(B) The court may award reasonable attorney fees, expert
witness fees and investigative costs to a defendant who prevails
in an action under this section if the court determines that the
state or { - any municipal corporation or - } political
subdivision { - of the state - } had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court.
(4) The court may not award attorney fees, expert witness fees
or investigative costs to a prevailing defendant under the
provisions of this section if the action is maintained as a class
action pursuant to ORCP 32.
SECTION 3. { + The amendments to ORS 646.775 and 646.780 by
sections 1 and 2 of this 2001 Act apply to conduct occurring on
or after the effective date of this 2001 Act. + }
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Passed by House March 16, 2001
Repassed by House May 31, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 29, 2001
...........................................................
President of Senate
Enrolled House Bill 2217 (HB 2217-A) Page 4
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2217 (HB 2217-A) Page 5