HOUSE BILL 23-1192
BY REPRESENTATIVE(S) Weissman, Amabile, Bacon, Boesenecker,
Brown, deGruy Kennedy, Dickson, Duran, English, Epps, Garcia,
Gonzales-Gutierrez, Hamrick, Herod, Jodeh, Kipp, Lindsay, Mabrey,
Mauro, McCormick, Michaelson Jenet, Parenti, Sharbini, Sirota, Story,
Titone, Vigil, Woodrow, Joseph, Lieder, McLachlan, McCluskie;
also SENATOR(S) Gonzales and Rodriguez, Buckner, Coleman, Cutter,
Exum, Hinrichsen, Jaquez Lewis, Kolker, Marchman, Priola, Sullivan,
Winter F., Fenberg.
C
ONCERNING THE CREATION OF ADDITIONAL PROTECTIONS IN THE
CONSUMER CODE
.
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, 6-1-730, amend (5)(f)
as follows:
6-1-730. Price gouging during declared disaster prohibited -
deceptive trade practice - legislative declaration - definitions. (5) As
used in this section:
(f) "Disaster period" means the date a disaster declaration begins
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act. and continuing for one hundred eighty days after the date THAT the FINAL
disaster declaration begins CONCERNING THE DISASTER EXPIRES .
SECTION 2. In Colorado Revised Statutes, repeal and reenact,
with amendments, article 4 of title 6 as follows:
ARTICLE 4
Colorado State Antitrust Act of 2023
6-4-101. Short title. T
HE SHORT TITLE OF THIS ARTICLE 4 IS THE
"COLORADO STATE ANTITRUST ACT OF 2023".
6-4-102. Legislative declaration. (1) T
HE GENERAL ASSEMBLY
FINDS AND DECLARES THAT
:
(a) C
OMPETITION IS FUNDAMENTAL TO :
(I) T
HE FREE MARKET SYSTEM; AND
(II) A HEALTHY MARKETPLACE THAT PROTECTS WORKERS AND
CONSUMERS
; AND
(b) THE UNRESTRAINED AND FAIR INTERACTION OF COMPETITIVE
FORCES WILL YIELD THE BEST ALLOCATION OF OUR ECONOMIC RESOURCES
,
THE LOWEST PRICES, THE HIGHEST QUALITY COMMODITIES AND SERVICES ,
AND THE GREATEST MATERIAL PROGRESS WHILE AT THE SAME TIME
PROVIDING AN ENVIRONMENT THAT IS CONDUCIVE TO THE PRESERVATION OF
OUR DEMOCRATIC
, POLITICAL, AND SOCIAL INSTITUTIONS AND TO THE
PROTECTION OF CONSUMERS
.
6-4-103. Definitions. A
S USED IN THIS ARTICLE 4, UNLESS THE
CONTEXT OTHERWISE REQUIRES
:
(1) "C
OMMODITY" INCLUDES ANY OF THE FOLLOWING FOR USE ,
CONSUMPTION, PRODUCTION, ENJOYMENT, OR RESALE:
(a) G
OODS;
(b) M
ERCHANDISE;
PAGE 2-HOUSE BILL 23-1192 (c) WARES;
(d) P
RODUCE;
(e) C
HOSE IN ACTION;
(f) L
AND;
(g) A
RTICLES OF COMMERCE; OR
(h) ANY OTHER TANGIBLE OR INTANGIBLE PROPERTY , INCLUDING
REAL
, PERSONAL, OR MIXED PROPERTY.
(2) "G
OVERNMENTAL OR PUBLIC ENTITY " MEANS:
(a) T
HE STATE OR ANY DEPARTMENT , BOARD, AGENCY,
INSTRUMENTALITY, AUTHORITY, OR COMMISSION OF THE STATE; AND
(b) ANY POLITICAL SUBDIVISION OF THE STATE, INCLUDING:
(I) A
COUNTY, CITY, OR CITY AND COUNTY;
(II) A
SCHOOL DISTRICT AS DEFINED IN SECTION 22-36-107 (2)(c);
(III) A
LOCAL IMPROVEMENT DISTRICT AS DEFINED IN SECTION
32-7-103 (7);
(IV) A
LAW ENFORCEMENT AUTHORITY ;
(V) A
WATER, SANITATION, FIRE PROTECTION, METROPOLITAN,
IRRIGATION, DRAINAGE, OR OTHER SPECIAL DISTRICT CREATED PURSUANT TO
TITLE
32;
(VI) A
NY OTHER MUNICIPAL , QUASI-MUNICIPAL, OR PUBLIC
CORPORATION ORGANIZED PURSUANT TO THE STATE CONSTITUTION OR
OTHER LAW
; AND
(VII) ANY DEPARTMENT, BOARD, AGENCY, INSTRUMENTALITY,
AUTHORITY, OR COMMISSION OF A POLITICAL SUBDIVISION OF THE STATE .
PAGE 3-HOUSE BILL 23-1192 (3) "PERSON" INCLUDES AN INDIVIDUAL OR A FIRM, ASSOCIATION,
ORGANIZATION, BUSINESS TRUST, COMPANY, CORPORATION, JOINT VENTURE,
PARTNERSHIP, PROPRIETORSHIP, OR OTHER BUSINESS ENTITY, WHETHER OR
NOT FOR PROFIT
, AND ANY GOVERNMENTAL OR PUBLIC ENTITY .
(4) "S
ERVICE" INCLUDES ANY KIND OF ACTIVITY PERFORMED IN
WHOLE OR IN PART FOR ECONOMIC OR NONECONOMIC BENEFIT
.
(5) "T
RADE OR COMMERCE " MEANS ANY AND ALL ECONOMIC
ACTIVITY CARRIED ON WHOLLY OR PARTIALLY IN THE STATE THAT INVOLVES
OR RELATES TO ANY COMMODITY OR SERVICE
.
6-4-104. Illegal restraint of trade or commerce. (1) E
NTERING
INTO OR ENGAGING IN ANY OF THE FOLLOWING IN RESTRAINT OF TRADE OR
COMMERCE IS ILLEGAL
:
(a) A
CONTRACT;
(b) A
COMBINATION IN THE FORM OF A TRUST OR OTHER FORM OF
COMBINATION
; OR
(c) A CONSPIRACY.
6-4-105. Monopolization and attempt to monopolize. I
T IS
ILLEGAL FOR ANY PERSON TO MONOPOLIZE
, ATTEMPT TO MONOPOLIZE, OR
COMBINE OR CONSPIRE WITH ANY OTHER PERSON TO MONOPOLIZE ANY PART
OF TRADE OR COMMERCE
.
6-4-106. Bid-rigging. (1) I
T IS ILLEGAL FOR ANY PERSON TO
CONTRACT
, COMBINE, OR CONSPIRE WITH ANY PERSON TO RIG ANY BID , OR
ANY ASPECT OF THE BIDDING PROCESS
, IN ANY WAY RELATED TO THE
PROVISION OF ANY COMMODITY OR SERVICE
.
(2) F
OR PURPOSES OF THIS SECTION, EACH SEPARATE INSTANCE OF
BID
-RIGGING CONSTITUTES A SEPARATE VIOLATION OF THIS SECTION ,
REGARDLESS OF WHETHER A SINGLE CONSPIRACY IS FOUND TO EXIST
ENCOMPASSING MORE THAN ONE SUCH VIOLATION
.
6-4-107. Mergers - acquisitions. (1) I
T IS ILLEGAL FOR ANY PERSON
ENGAGED IN TRADE OR COMMERCE TO ACQUIRE
, DIRECTLY OR INDIRECTLY,
PAGE 4-HOUSE BILL 23-1192 THE WHOLE OR ANY PART OF THE STOCK , OTHER SHARE CAPITAL, OR ASSETS
OF ANOTHER PERSON ENGAGED IN TRADE OR COMMERCE IF THE EFFECT OF
THE ACQUISITION MAY SUBSTANTIALLY LESSEN COMPETITION OR TEND TO
CREATE A MONOPOLY
.
(2) N
OTHING IN THIS SECTION PROHIBITS ANY PERSON FROM :
(a) A
CQUIRING STOCK OF ANOTHER PERSON SOLELY FOR INVESTMENT
PURPOSES
, SO LONG AS THE ACQUISITION OF STOCK IS NOT USED, BY VOTING
OR OTHERWISE
, TO BRING ABOUT OR TO ATTEMPT TO BRING ABOUT THE
SUBSTANTIAL LESSENING OF COMPETITION
; OR
(b) CAUSING THE FORMATION OF SUBSIDIARY CORPORATIONS OR
FROM OWNING AND HOLDING ALL OR ANY PART OF THE STOCK OF A
SUBSIDIARY CORPORATION
.
(3) T
HE ATTORNEY GENERAL SHALL NOT CHALLENGE THE MERGER
OR ACQUISITION OF ANY BANK OR BANK HOLDING COMPANY BY OR WITH ANY
OTHER BANK OR BANK HOLDING COMPANY THAT IS SUBJECT TO THE
PROVISIONS OF ANY OF THE FEDERAL BANKING LAWS
, EXCEPT AS
SPECIFICALLY PROVIDED IN THOSE FEDERAL BANKING LAWS
.
6-4-108. Facilitating or aiding and abetting. (1) I
T IS UNLAWFUL
TO FACILITATE OR AID AND ABET ANOTHER PERSON IN VIOLATING THIS
ARTICLE
4.
(2) E
ACH SEPARATE INSTANCE OF FACILITATING OR AIDING AND
ABETTING ANOTHER PERSON IN VIOLATING THIS ARTICLE
4 IS A SEPARATE
VIOLATION OF THIS ARTICLE
4.
6-4-109. Exemptions. (1) T
HE LABOR OF AN INDIVIDUAL IS NOT A
COMMODITY
, A SERVICE, OR AN ARTICLE OF TRADE OR COMMERCE .
(2) N
OTHING IN THIS ARTICLE 4 SHALL BE CONSTRUED TO:
(a) F
ORBID THE EXISTENCE AND OPERATION OF A LABOR ,
AGRICULTURAL, OR HORTICULTURAL ORGANIZATION THAT :
(I) I
S INSTITUTED FOR THE PURPOSE OF PROVIDING MUTUAL HELP OR
IS ENGAGED IN MAKING COLLECTIVE SALES OR MARKETING FOR ITS MEMBERS
PAGE 5-HOUSE BILL 23-1192 OR SHAREHOLDERS;
(II) D
OES NOT HAVE CAPITAL STOCK; AND
(III) IS NOT BEING CONDUCTED FOR PROFIT; OR
(b) FORBID OR RESTRAIN INDIVIDUAL MEMBERS OF A LABOR ,
AGRICULTURAL, OR HORTICULTURAL ORGANIZATION FROM LAWFULLY
CARRYING OUT THE LEGITIMATE OBJECTIVES OF THE ORGANIZATION
.
(3) A
PROFESSIONAL REVIEW COMMITTEE CONSTITUTED AND
CONDUCTING ITS REVIEWS AND ACTIVITIES IN ACCORDANCE WITH THE
PROVISIONS OF PART
2 OF ARTICLE 30 OF TITLE 12, OR THE MEMBERS OF THE
PROFESSIONAL REVIEW COMMITTEE
, SHALL NOT BE HELD OR CONSTRUED TO
BE AN ILLEGAL COMBINATION OR CONSPIRACY IN RESTRAINT OF TRADE
UNDER THIS ARTICLE
4.
(4) A
NY PERSON, ACTIVITY, OR CONDUCT EXEMPT OR IMMUNE UNDER
THE LAWS OF THIS STATE OR EXEMPT OR IMMUNE FROM THE FEDERAL
ANTITRUST LAWS IS EXEMPT OR IMMUNE FROM THIS ARTICLE
4 WITHOUT
REGARD TO ANY MONETARY THRESHOLD IMPOSED BY FEDERAL LAW
; EXCEPT
THAT NOTHING IN THIS ARTICLE
4 SHALL BE DEEMED TO MODIFY THE
SPECIFIC PROVISIONS OF PART
4 OF ARTICLE 4 OF TITLE 10.
(5) N
OTHING IN THIS ARTICLE 4 PROHIBITS OR SHALL BE CONSTRUED
TO PROHIBIT THE FORMATION AND OPERATION OF
:
(a) H
EALTH-CARE COVERAGE COOPERATIVES PURSUANT TO PART 10
OF ARTICLE 16 OF TITLE 10; OR
(b) PROVIDER NETWORKS PURSUANT TO PART 3 OF ARTICLE 18 OF
THIS TITLE
6.
6-4-110. Jurisdiction - venue. (1) P
RIMARY JURISDICTION OF ANY
CAUSE OF ACTION BROUGHT PURSUANT TO THIS ARTICLE
4 IS VESTED IN THE
DISTRICT COURTS OF THIS STATE
.
(2) A
NY CAUSE OF ACTION BROUGHT PURSUANT TO THIS ARTICLE 4
MAY BE BROUGHT IN ANY JUDICIAL DISTRICT IN WHICH THE ALLEGED
VIOLATION OCCURRED
, ANY INJURY WAS ALLEGEDLY SUFFERED , OR ANY
PAGE 6-HOUSE BILL 23-1192 DEFENDANT RESIDES.
6-4-111. Civil discovery request - rules. (1) W
HEN THE ATTORNEY
GENERAL HAS REASONABLE CAUSE TO BELIEVE THAT ANY PERSON HAS
ENGAGED IN
, IS ENGAGING IN, OR MAY HAVE INFORMATION RELATED TO A
VIOLATION OF THIS ARTICLE
4 OR OF ANY PROVISION OF THE FEDERAL
ANTITRUST STATUTES THAT MAY BE ENFORCED BY THE ATTORNEY GENERAL
,
THE ATTORNEY GENERAL MAY :
(a) R
EQUEST THE PERSON, UNDER OATH OR OTHERWISE AND ON
FORMS PRESCRIBED BY THE ATTORNEY GENERAL
, TO FILE A STATEMENT OR
REPORT IN WRITING
, OR TO ANSWER IN WRITING , ANY QUESTIONS
PROPOUNDED BY THE ATTORNEY GENERAL AS TO ALL FACTS AND
CIRCUMSTANCES REASONABLY RELATED TO THE ALLEGED OR POTENTIAL
VIOLATION AND TO PROVIDE ANY OTHER DATA AND INFORMATION THE
ATTORNEY GENERAL REASONABLY DEEMS NECESSARY
;
(b) I
SSUE SUBPOENAS TO REQUIRE THE ATTENDANCE OF WITNESSES
OR THE PRODUCTION OF RELEVANT DOCUMENTS
, ADMINISTER OATHS,
CONDUCT HEARINGS IN AID OF AN INVESTIGATION OR INQUIRY , AND
PRESCRIBE FORMS AND ADOPT RULES AS MAY REASONABLY BE DEEMED
NECESSARY TO ADMINISTER THIS SECTION
; AND
(c) MAKE TRUE COPIES, AT THE EXPENSE OF THE ATTORNEY
GENERAL
, OF ANY DOCUMENTS EXAMINED PURSUANT TO SUBSECTION (1)(b)
OF THIS SECTION, WHICH COPIES MAY BE OFFERED INTO EVIDENCE IN LIEU OF
THE ORIGINALS IN ANY CIVIL ACTION BROUGHT PURSUANT TO THIS ARTICLE
4. THE PERSON PRODUCING THE DOCUMENTS MAY REQUIRE THAT THE
ATTORNEY GENERAL MAKE COPIES OF THE DOCUMENTS
. IF THE ATTORNEY
GENERAL DETERMINES THE USE OF ORIGINALS IS NECESSARY
, THE ATTORNEY
GENERAL SHALL PAY TO HAVE COPIES OF THOSE DOCUMENTS MADE FOR USE
BY THE PERSON PRODUCING THE DOCUMENTS
.
(2) S
ERVICE OF ANY REQUEST OR SUBPOENA MUST BE MADE IN THE
MANNER PRESCRIBED BY LAW
.
(3) A
NY WRITTEN RESPONSE, TESTIMONY, OR DOCUMENTS OBTAINED
BY THE ATTORNEY GENERAL PURSUANT TO THIS SECTION
, OR ANY
INFORMATION DERIVED DIRECTLY OR INDIRECTLY FROM SUCH WRITTEN
RESPONSE
, TESTIMONY, OR DOCUMENTS, IS NOT ADMISSIBLE IN EVIDENCE IN
PAGE 7-HOUSE BILL 23-1192 ANY CRIMINAL PROSECUTION AGAINST THE PERSON PROVIDING THE WRITTEN
RESPONSE
, TESTIMONY, OR DOCUMENTS . THE PROVISIONS OF THIS
SUBSECTION
(3) SHALL NOT BE CONSTRUED TO PREVENT ANY LAW
ENFORCEMENT OFFICER
, HAVING AN INDEPENDENT BASIS TO PRODUCE OR
OBTAIN THE FACTS
, INFORMATION, OR EVIDENCE, FROM PRODUCING OR
OBTAINING THE SAME OR SIMILAR FACTS
, INFORMATION, OR EVIDENCE FOR
USE IN ANY CRIMINAL PROSECUTION
.
(4) N
OTHING IN THIS SECTION PROHIBITS THE ATTORNEY GENERAL
FROM DISCLOSING INFORMATION OBTAINED PURSUANT TO THIS SECTION TO
ANY OTHER LAW ENFORCEMENT AGENCY
, DEPARTMENT OF ANY
GOVERNMENTAL OR PUBLIC ENTITY OF THIS OR ANY OTHER STATE
, OR THE
FEDERAL GOVERNMENT IF SUCH OTHER LAW ENFORCEMENT AGENCY OR
DEPARTMENT EXECUTES AN AGREEMENT THAT THE INFORMATION WILL
REMAIN CONFIDENTIAL AND WILL NOT BE USED IN ANY CRIMINAL
PROSECUTION AGAINST THE PERSON PROVIDING THE WRI TTEN RESPONSE
,
TESTIMONY, OR DOCUMENTS.
(5) I
F ANY PERSON FAILS TO APPEAR OR FAILS TO COOPERATE WITH
ANY INVESTIGATION OR INQUIRY PURSUANT TO A REQUEST OR SUBPOENA
ISSUED PURSUANT TO THIS SECTION
, THE ATTORNEY GENERAL MAY APPLY TO
ANY DISTRICT COURT FOR AN APPROPRIATE ORDER TO EFFECT THE PURPOSES
OF THIS SECTION
. THE APPLICATION MUST STATE THAT THERE IS
REASONABLE CAUSE TO BELIEVE THAT THE ORDER APPLIED FOR IS
NECESSARY TO INVESTIGATE
, PROSECUTE, OR TERMINATE A VIOLATION OF
THIS ARTICLE
4. IF THE COURT IS SATISFIED THAT REASONABLE CAUSE
EXISTS
, THE COURT MAY:
(a) R
EQUIRE THE ATTENDANCE OF , OR THE PRODUCTION OF
DOCUMENTS BY
, THE PERSON, OR BOTH;
(b) A
SSESS A CIVIL PENALTY OF UP TO FIVE THOUSAND DOLLARS FOR
THE FAILURE TO APPEAR AND ANSWER QUESTIONS
, WRITTEN OR OTHERWISE,
OR THE FAILURE TO PRODUCE DOCUMENTS , UNLESS THE COURT FINDS THAT
THE FAILURE TO APPEAR
, TO ANSWER QUESTIONS , OR TO PRODUCE
DOCUMENTS WAS SUBSTANTIALLY JUSTIFIED OR THAT OTHER
CIRCUMSTANCES MAKE AN ASSESSMENT OF A CIVIL PENALTY UNJUST
;
(c) A
WARD THE ATTORNEY GENERAL REASONABLE COSTS AND
ATTORNEY FEES IN MAKING THIS APPLICATION
, UNLESS THE COURT FINDS
PAGE 8-HOUSE BILL 23-1192 THAT THE FAILURE TO APPEAR , TO ANSWER QUESTIONS, OR TO PRODUCE
DOCUMENTS WAS SUBSTANTIALLY JUSTIFIED OR THAT OTHER
CIRCUMSTANCES MAKE AN AWARD OF COSTS AND ATTORNEY FEES UNJUST
;
(d) E
NTER ANY PROTECTIVE ORDER AS PROVIDED FOR IN THE
COLORADO RULES OF CIVIL PROCEDURE ; AND
(e) GRANT SUCH OTHER OR FURTHER RELIEF AS MAY BE NECESSARY
TO OBTAIN COMPLIANCE BY THE PERSON
.
(6) (a) T
HE ATTORNEY GENERAL MAY DEEM ANY INVESTIGATIVE
RECORDS OR RECORDS REGARDING INTELLIGENCE INFORMATION OBTAINED
UNDER THIS ARTICLE
4 PUBLIC RECORDS SUBJECT TO PUBLIC INSPECTION
PURSUANT TO PART
2 OF ARTICLE 72 OF TITLE 24.
(b) N
OTHING IN THIS SUBSECTION (6) SHALL BE CONSTRUED TO
PREVENT OR LIMIT THE ATTORNEY GENERAL
'S AUTHORITY TO ISSUE PUBLIC
STATEMENTS DESCRIBING OR WARNING OF ANY COURSE OF CONDUCT OR
CONSPIRACY THAT VIOLATES THIS ARTICLE
4, WHETHER THE PUBLIC
STATEMENTS ARE MADE ON A LOCAL
, STATEWIDE, REGIONAL, OR
NATIONWIDE BASIS
.
6-4-112. Enforcement by the attorney general. (1) T
HE
ATTORNEY GENERAL MAY INSTITUTE ACTIONS OR PROCEEDINGS TO PREVENT
OR RESTRAIN VIOLATIONS OF THIS ARTICLE
4, INCLUDING ACTIONS TO
PREVENT OR RESTRAIN UNFAIR METHODS OF COMPETITION IN OR AFFECTING
COMMERCE
.
(2) T
HE ATTORNEY GENERAL MAY BRING A CIVIL ACTION ON BEHALF
OF THE STATE OR ANY GOVERNMENTAL OR PUBLIC ENTITY INJURED
, EITHER
DIRECTLY OR INDIRECTLY
, IN ITS BUSINESS OR PROPERTY BY REASON OF ANY
VIOLATION OF THIS ARTICLE
4 AND, IF SUCCESSFUL, SHALL RECOVER ANY
ACTUAL DAMAGES SUSTAINED BY THE ENTITY
. IF THE VIOLATION ALLEGED
AND PROVED IS DETERMINED BY THE COUR T TO BE A PER SE VIOLATION OF
THIS ARTICLE
4, THE ATTORNEY GENERAL, ON BEHALF OF THE ENTITY, MAY
RECOVER THREE TIMES THE ACTUAL DAMAGES THAT THE ENTITY SUSTAINS
.
(3) (a) T
HE ATTORNEY GENERAL MAY BRING A CIVIL ACTION AS
PARENS PATRIAE ON BEHALF OF ANY INDIVIDUAL RESIDING WITHIN THE STATE
WHO IS INJURED
, EITHER DIRECTLY OR INDIRECTLY, IN THE INDIVIDUAL'S
PAGE 9-HOUSE BILL 23-1192 BUSINESS OR PROPERTY BY REASON OF ANY VIOLATION OF THIS ARTICLE 4
AND, IF SUCCESSFUL, SHALL RECOVER ANY ACTUAL DAMAGES SUSTAINED BY
THE INDIVIDUAL
. IF THE VIOLATION ALLEGED AND PROVED IS DETERMINED
BY THE COURT TO BE A PER SE VIOLATION OF THIS ARTICLE
4, THE ATTORNEY
GENERAL
, ON BEHALF OF THE INDIVIDUAL, MAY RECOVER THREE TIMES THE
ACTUAL DAMAGES THAT THE INDIVIDUAL SUSTAINS
.
(b) I
N ANY PARENS PATRIAE ACTION IN WHICH ACTUAL OR TREBLE
DAMAGES ARE RECOVERED
, THE COURT, IN ITS DISCRETION, MAY DETERMINE
THAT THE AMOUNT OF DAMAGES RECOVERED IS TOO SMALL TO MAKE ANY
REFUND TO PARENS GROUP MEMBERS PRACTICABLE
. IN THAT EVENT, THE
COURT MAY DIRECT THE DAMAGES TO BE PAID TO THE GENERAL FUND OF THE
STATE OR TO SOME OTHER GOVERNMENTAL OR PUBLIC ENTITY AS THE COURT
DEEMS APPROPRIATE OR MAY REQUIRE THAT DAMAGES BE PAID AS REBATES
OR PRICE REDUCTIONS TO FUTURE CONSUMERS
.
(4) I
N ADDITION TO ANY OTHER REMEDIES PROVIDED IN THIS ARTICLE
4, THE ATTORNEY GENERAL MAY REQUEST , AND A COURT MAY MAKE ,
ORDERS OR JUDGMENTS AS MAY BE NECESSARY TO :
(a) F
ULLY COMPENSATE OR MAKE WHOLE ANY PERSON INJURED ,
EITHER DIRECTLY OR INDIRECTLY, BY MEANS OF ANY RESTRAINT OF TRADE
IN VIOLATION OF THIS ARTICLE
4; OR
(b) PREVENT ANY UNJUST ENRICHMENT BY ANY PERSON THROUGH
ANY RESTRAINT OF TRADE IN VIOLATION OF THIS ARTICLE
4.
(5) I
N ANY ACTION BROUGHT PURSUANT TO THIS ARTICLE 4, THE
ATTORNEY GENERAL
, IF SUCCESSFUL, IS ENTITLED TO RECOVER THE COSTS
OF INVESTIGATION
, EXPERT FEES, COSTS OF THE ACTION, AND REASONABLE
ATTORNEY FEES
.
6-4-113. Civil penalties. (1) T
HE ATTORNEY GENERAL MAY BRING
A CIVIL ACTION ON BEHALF OF THE STATE TO SEEK THE IMPOSITION OF A
CIVIL PENALTY FOR ANY VIOLATION OF THIS ARTICLE
4. THE COURT, UPON
FINDING A VIOLATION OF THIS ARTICLE
4, SHALL IMPOSE A CIVIL PENALTY TO
BE PAID TO THE GENERAL FUND OF THE STATE IN AN AMOUNT NOT TO EXCEED
ONE MILLION DOLLARS FOR EACH SUCH VIOLATION
.
(2) I
N DETERMINING THE AMOUNT OF A CIVIL PENALTY , THE COURT
PAGE 10-HOUSE BILL 23-1192 SHALL CONSIDER, AMONG OTHER THINGS:
(a) T
HE NATURE AND EXTENT OF THE VIOLATION ;
(b) T
HE NUMBER OF CONSUMERS AFFECTED BY THE VIOLATION ;
(c) W
HETHER THE VIOLATION WAS AN ISOLATED INCIDENT OR A
CONTINUOUS PATTERN AND PRACTICE OF BEHAVIOR
;
(d) W
HETHER THE VIOLATION WAS THE RESULT OF WILLFUL
CONDUCT
;
(e) W
HETHER THE DEFENDANT T OOK AFFIRMATIVE STEPS TO
CONCEAL SUCH VIOLATIONS
; AND
(f) WHETHER, GIVEN THE SIZE AND WEALTH OF THE DEFENDANT, THE
CIVIL PENALTY WILL BE AN EFFECTIVE DETERRENT AGAINST FUTURE
VIOLATIONS
.
6-4-114. Enforcement - injunction. (1) A
NY PERSON INJURED,
EITHER DIRECTLY OR INDIRECTLY, IN ITS BUSINESS OR PROPERTY BY REASON
OF A VIOLATION OF THIS ARTICLE
4 MAY FILE AN ACTION TO PREVENT OR
RESTRAIN THE VIOLATION
.
(2) I
N ANY ACTION BROUGHT PURSUANT TO THIS SECTION , THE
COURT
, IN ITS DISCRETION, MAY AWARD THE PREVAILING PARTY ITS EXPERT
WITNESS FEES
, THE COSTS OF THE ACTION, AND REASONABLE ATTORNEY
FEES
.
6-4-115. Enforcement - civil damages. (1) A
NY PERSON INJURED,
EITHER DIRECTLY OR INDIRECTLY, IN ITS BUSINESS OR PROPERTY BY REASON
OF ANY VIOLATION OF THIS ARTICLE
4 MAY SUE AND, IF SUCCESSFUL, IS
ENTITLED TO RECOVER ANY ACTUAL DAMAGES THAT THE PERSON
SUSTAINED
. IF THE VIOLATION ALLEGED AND PROVED IS DETERMINED BY THE
COURT TO BE A PER SE VIOLATION OF THIS ARTICLE
4, THE PERSON MAY
RECOVER THREE TIMES THE ACTUAL DAMAGES THAT THE PERSON SUSTAINS
.
(2) I
N ANY ACTION BROUGHT PURSUANT TO THIS SECTION , THE
COURT
, IN ITS DISCRETION, MAY AWARD THE PREVAILING PARTY ITS EXPERT
FEES
, THE COSTS OF THE ACTION, AND REASONABLE ATTORNEY FEES .
PAGE 11-HOUSE BILL 23-1192 (3) NO DAMAGES, COSTS, EXPERT FEES, COSTS OF INVESTIGATION,
CIVIL PENALTIES, OR ATTORNEY FEES MAY BE RECOVERED FROM :
(a) A
GOVERNMENTAL OR PUBLIC ENTITY ;
(b) A
NY OFFICIAL, AGENT, OR EMPLOYEE OF A GOVERNMENTAL OR
PUBLIC ENTITY ACTING IN AN OFFICIAL CAPACITY
; OR
(c) ANY PERSON BASED ON ANY OFFICIAL ACTION DIRECTED BY A
GOVERNMENTAL OR PUBLIC ENTITY
.
6-4-116. Notice to the attorney general. A
NY PERSON THAT FILES
A CIVIL ACTION THAT INCLUDES ANY ALLEGATION OF A VIOLATION OF THIS
ARTICLE
4 SHALL, SIMULTANEOUSLY WITH THE FILING OF THE ACTION IN
DISTRICT COURT
, SERVE A COPY OF THE COMPLAINT ON THE ATTORNEY
GENERAL
.
6-4-117. Computation of damages. I
N ANY ACTION BROUGHT
PURSUANT TO SECTION
6-4-112 OR 6-4-115, THE AMOUNT OF DAMAGES MAY
BE CALCULATED AND ASSESSED IN THE AGGREGATE BY STATISTICAL OR
SAMPLING METHODS
, BY THE COMPUTATION OF ILLEGAL OVERCHARGES , OR
BY SUCH OTHER REASONABLE SYSTEM OF ESTIMATING AGGREGATE DAMAGES
AS THE COURT IN ITS DISCRETION MAY PERMIT WITHOUT REQUIRING
SEPARATE PROOF OF ANY INDIVIDUAL CLAIM OF
, OR AMOUNT OF DAMAGES
TO
, EACH PERSON ON WHOSE BEHALF THE ACTION WAS BROUGHT .
6-4-118. Enforcement - criminal proceedings. (1) T
HE ATTORNEY
GENERAL SHALL PROSECUTE ALL CRIMINAL PROCEEDINGS FOR VIOLATIONS
OF THIS ARTICLE
4, WHETHER BY INDICTMENT OR DIRECT INFORMATION FILED
IN THE APPROPRIATE DISTRICT COURT
.
(2) A
NY INDIVIDUAL WHO VIOLATES SECTION 6-4-104, 6-4-105, OR
6-4-106 COMMITS A CLASS 5 FELONY AND SHALL BE PUNISHED AS PROVIDED
IN SECTION
18-1.3-401.
(3) A
NY PERSON, OTHER THAN AN INDIVIDUAL OR A GOVERNMENTAL
OR PUBLIC ENTITY
, THAT VIOLATES SECTION 6-4-104, 6-4-105, OR 6-4-106
IS GUILTY OF A FELONY AND , UPON CONVICTION THEREOF , SHALL BE
PUNISHED BY A FINE OF NOT MORE THAN FIVE MILLION DOLLARS
.
PAGE 12-HOUSE BILL 23-1192 6-4-119. Statute of limitations. (1) A NY CIVIL ACTION COMMENCED
PURSUANT TO THIS ARTICLE
4 MUST BE BROUGHT WITHIN FOUR YEARS AFTER
THE DATE THAT THE CAUSE OF ACTION ACCRUED
. FOR PURPOSES OF THIS
ARTICLE
4, A CAUSE OF ACTION ACCRUES:
(a) W
HEN THE CIRCUMSTANCES GIVING RISE TO THE CAUSE OF
ACTION ARE DISCOVERED OR SHOULD HAVE BEEN DISCOVERED IN THE
EXERCISE OF REASONABLE DILIGENCE
; OR
(b) ON THE DATE THAT THE LAST IN A SERIES OF ACTS OR PRACTICES
IN VIOLATION OF THIS ARTICLE
4 OCCURRED, INCLUDING ANY ACQUISITIONS
OR SERIES OF ACQUISITIONS THAT
, IN THE AGGREGATE, MAY CONSTITUTE A
VIOLATION OF THIS ARTICLE
4.
(2) A
NY CRIMINAL PROCEEDING BROUGHT PURSUANT TO THIS
ARTICLE
4 MUST BE COMMENCED WITHIN SIX YEARS AFTER THE ALLEGED
CRIMINAL ACT OCCURRED
.
(3) I
F THE ATTORNEY GENERAL COMMENCES A PROCEEDING OR
ACTION FOR ANY VIOLATION OF THIS ARTICLE
4, THE RUNNING OF THE
STATUTE OF LIMITATIONS WITH RESPECT TO EVERY CAUSE OF ACTION THAT
IS BASED IN WHOLE OR IN PART ON ANY MATTER COMPLAINED OF IN THE
PROCEEDING OR ACTION IS SUSPENDED DURING THE PENDENCY OF THE
PROCEEDING OR ACTION AND FOR ONE YEAR AFTER THE CONCLUSION OF THE
PROCEEDING OR ACTION
.
(4) W
HENEVER ANY CIVIL OR CRIMINAL PROCEEDING IS BROUGHT BY
THE
UNITED STATES TO PREVENT, RESTRAIN, OR PUNISH VIOLATIONS OF ANY
FEDERAL ANTITRUST LAWS
, THE RUNNING OF THE STATUTE OF LIMITATIONS
WITH RESPECT TO ANY ACTION UNDER THIS ARTICLE
4 THAT IS BASED IN
WHOLE OR IN PART ON ANY MATTER COMPLAINED OF IN THE FEDERAL
PROCEEDING IS SUSPENDED DURING THE PENDENCY OF THE FEDERAL
PROCEEDING AND FOR ONE YEAR AFTER THE CONCLUSION OF THE FEDERAL
PROCEEDING
.
(5) E
XCEPT AS EXPRESSLY PROVIDED IN SUBSECTIONS (1) AND (2) OF
THIS SECTION
, NO OTHER LIMITATION TERMINATES THE PERIOD WITHIN
WHICH THE ATTORNEY GENERAL MAY FILE AN ACTION FOR A VIOLATION OF
THIS ARTICLE
4.
PAGE 13-HOUSE BILL 23-1192 6-4-120. Remedies - cumulative. T HE REMEDIES PROVIDED IN THIS
ARTICLE
4 ARE CUMULATIVE EXCEPT AS OTHERWISE EXPRESSLY LIMITED .
6-4-121. Void contracts - refund. (1) A
NY CONTRACT OR
AGREEMENT THAT A PERSON MAKES WHILE A MEMBER OF ANY
COMBINATION
, CONSPIRACY, TRUST, OR POOL PROHIBITED UNDER THIS
ARTICLE
4 THAT IS FOUNDED UPON, IS THE RESULT OF, GROWS OUT OF, OR IS
CONNECTED WITH ANY VIOLATION OF THIS ARTICLE
4, EITHER DIRECTLY OR
INDIRECTLY
, IS VOID, AND THE PERSON MAY NOT RECOVER BASED ON OR
BENEFIT FROM THE CONTRACT OR AGREEMENT
.
(2) A
NY PAYMENTS MADE UPON , UNDER, OR PURSUANT TO A
CONTRACT OR AGREEMENT FOR THE BENEFIT OF A PERSON THAT IS A
MEMBER OF ANY COMBINATION
, CONSPIRACY, TRUST, OR POOL PROHIBITED
UNDER THIS ARTICLE
4 MAY BE RECOVERED IN AN ACTION BROUGHT BY THE
PARTY MAKING THE PAYMENTS OR BY THE PARTY
'S HEIRS, PERSONAL
REPRESENTATIVES
, OR ASSIGNS.
6-4-122. Severability. I
F ANY PROVISION OF THIS ARTICLE 4 OR THE
APPLICATION OF THIS ARTICLE
4 TO ANY PERSON OR CIRCUMSTANCES IS HELD
INVALID
, THAT INVALIDITY DOES NOT AFFECT OTHER PROVISIONS OR
APPLICATIONS OF THIS ARTICLE
4 THAT CAN BE GIVEN EFFECT WITHOUT THE
INVALID PROVISION OR APPLICATION
.
SECTION 3. In Colorado Revised Statutes, 24-21-626, amend (1)
as follows:
24-21-626. Unfair trade practices. (1) The provisions of the
"Unfair Practices Act", article 2 of title 6, and the "Colorado S
TATE
Antitrust Act of 1992
2023", article 4 of title 6, are specifically applicable
to charitable gaming activities conducted by any licensee. Within thirty days
after receiving a complaint alleging a violation of either of said
THE acts,
the licensing authority shall transmit such THE complaint to the attorney
general.
SECTION 4. In Colorado Revised Statutes, 24-31-101, amend
(1)(i)(I) as follows:
24-31-101. Powers and duties of attorney general. (1) The
attorney general:
PAGE 14-HOUSE BILL 23-1192 (i) May independently initiate and bring civil and criminal actions
to enforce state laws, including actions brought pursuant to:
(I) The "Colorado Antitrust Act of 1992"
OR THE "COLORADO STATE
ANTITRUST ACT OF 2023", article 4 of title 6;
SECTION 5. In Colorado Revised Statutes, amend 25-17-410 as
follows:
25-17-410. Limited exemption from antitrust, restraint of trade,
and unfair trade practices provisions. If a producer or group of producers
participating in a paint stewardship program or a stewardship organization
contracted by one or more producers to implement a paint stewardship
program engages in an activity performed solely in furtherance of
implementing the paint stewardship program and in compliance with the
provisions of this part 4, the activity is not a violation of the antitrust,
restraint of trade, and unfair trade practices provisions of the "Unfair
Practices Act", article 2 of title 6, C.R.S.,
or the "Colorado STATE Antitrust
Act of 1992 2023", article 4 of title 6. C.R.S.
SECTION 6. In Colorado Revised Statutes, amend 25-17-711 as
follows:
25-17-711. Limited exemption from antitrust, restraint of trade,
and unfair trade practices provisions. If the program or any other plan
approved by the executive director pursuant to this part 7 engages in an
activity performed solely in furtherance of implementing the program or
plan and in compliance with this part 7, the activity is not a violation of the
antitrust, restraint of trade, and unfair trade practices provisions of the
"Unfair Practices Act", article 2 of title 6, or the "Colorado S
TATE Antitrust
Act of 1992
2023", article 4 of title 6.
SECTION 7. Applicability. This act applies to conduct occurring
on or after the effective date of this act.
SECTION 8. Safety clause. The general assembly hereby finds,
PAGE 15-HOUSE BILL 23-1192 determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, or safety.
____________________________ ____________________________
Julie McCluskie Steve Fenberg
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Robin Jones Cindi L. Markwell
CHIEF CLERK OF THE HOUSE SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 16-HOUSE BILL 23-1192