Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 257 (2015GS)

Sponsor

Sen. Bramble, C.

Final action

Governor Signed 3/24/2015

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• authorizes the attorney general to enter into a confidentiality agreement when conducting a civil antitrust investigation;
• authorizes a court to issue a confidentiality order in any civil antitrust action;
• specifies conditions and requirements regarding a confidentiality agreement or a confidentiality order;
• defines terms; and
• makes technical corrections.

Every vote on this bill

Bill text

ANTITRUST AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Curtis S. Bramble
House Sponsor: 
Mike K. McKell
LONG TITLE
General Description:
This bill modifies the Utah Antitrust Act.
Highlighted Provisions:
This bill:
▸ authorizes the attorney general to enter into a confidentiality agreement when
conducting a civil antitrust investigation;
▸ authorizes a court to issue a confidentiality order in any civil antitrust action;
▸ specifies conditions and requirements regarding a confidentiality agreement or a
confidentiality order;
▸ defines terms; and
▸ makes technical corrections.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-10-3103
, as renumbered and amended by Laws of Utah 2013, Chapter 187
76-10-3107
, as renumbered and amended by Laws of Utah 2013, Chapter 187
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-10-3103
 is amended to read:
76-10-3103.
Definitions.
As used in this [
act
] 
part
:
(1) "Attempt to monopolize" means action taken without a legitimate business purpose
and with a specific intent of destroying competition or controlling prices to substantially lessen
competition, or creating a monopoly, where there is a dangerous probability of creating a
monopoly.
(2) "Attorney general" means the attorney general of the state or one of the attorney
general's assistants.
[
(2)
] 
(3)
 "Commodity" includes any product of the soil, any article of merchandise or
trade or commerce, and any other kind of real or personal property.
[
(3)
] 
(4)
 "Manufacturer" means the producer or originator of any commodity or service.
[
(4)
] 
(5)
 "Service" includes any activity that is performed in whole or in part for the
purpose of financial gain including, but not limited to, personal service, professional service,
rental, leasing or licensing for use.
[
(5)
] 
(6)
 "Trade or commerce" includes all economic activity involving, or relating to,
any commodity, service, or business activity, including the cost of exchange or transportation.
Section 2. Section 
76-10-3107
 is amended to read:
76-10-3107.
Civil antitrust investigations -- Demand for production of documents
and responses to written interrogatories -- Oral examination -- Judicial order for
compliance -- Confidentiality -- Subpoenas precluded.
(1) When the attorney general has reasonable cause to believe that any person may be
in possession, custody, or control of any information
, including any document, material, or
testimony,
 relevant to a civil antitrust investigation, [
he
] 
the attorney general
 may, prior to the
commencement of a civil action [
thereon
], issue and cause to be served upon that person a
written civil investigative demand requesting that person to:
(a) produce [
the documentary
] 
any document or
 material for inspection, copying, or
reproduction by the state where the [
documents are
] 
document or material is
 located or
produced;
(b) give oral testimony under oath, concerning the subject of the investigation;
(c) respond to written interrogatories; or
(d) furnish any combination of these.
(2) (a) Each demand shall state:
(i) the nature of the activities under investigation, constituting the alleged antitrust
violation, which may result in a violation of this [
act
] 
part
 and the applicable provision of law;
(ii) that the recipient is entitled to counsel;
(iii) that the [
documents, materials, or testimony
] 
information received
 in response to
the demand may be used in a civil or criminal proceeding;
(iv) that if the recipient does not comply with the demand
,
 the [
Office of the Attorney
General
] 
attorney general
 may compel compliance by appearance, upon reasonable notice to
the recipient, before the district court in the judicial district [
wherein
] 
where
 the recipient
resides or does business and only upon a showing before that district court that the
requirements of Subsection (7) have been met;
(v) that the recipient has the right at any time before the return date of the demand, or
within 30 days, whichever period is shorter, to seek a court order determining the validity of
the demand; and
(vi) that at any time during the proceeding the person may assert any applicable
privilege.
(b) If the demand is for production of [
documentary material, it
] 
any document or
material, the demand
 shall also:
(i) describe the [
documentary
] 
document or
 material to be produced with sufficient
definiteness and certainty as to permit the 
document or
 material to be fairly identified;
(ii) prescribe return dates that provide a reasonable period of time within which the
document or
 material demanded may be assembled and made available for inspection and
reproduction; and
(iii) identify the individual at the [
attorney general's office
] 
Office of the Attorney
General
 to whom the 
document or
 material shall be made available.
(c) If the demand is for the giving of oral testimony, [
it
] 
the demand
 shall also:
(i) prescribe the date, time, and place at which oral testimony shall be commenced;
(ii) state that [
a member
] 
an employee
 of the [
attorney general's office staff
] 
Office of
the Attorney General
 shall conduct the examination; and
(iii) state that the recording or the transcript of [
such
] 
the
 examination shall be
submitted to and maintained by the Office of the Attorney General.
(d) If the demand is for responses to written interrogatories, [
it
] 
the demand
 shall also:
(i) state that each interrogatory shall be answered separately and fully in writing and
under oath, unless the person objects to the interrogatory, in which event the reasons for
objection shall be stated in lieu of an answer;
(ii) state that the answers are to be signed by the person making them, and the
objections are to be signed by the attorney making them;
(iii) identify by name and address the individual at the Office of the Attorney General
on whom answers and objections provided under this Subsection (2)(d) are to be served; and
(iv) prescribe the date on or before which these answers and objections are to be served
on the identified individual.
(3) The civil investigative demand may be served upon any person who is subject to
the jurisdiction of any Utah court and shall be served upon the person in the manner provided
for service of a subpoena.
(4) (a) [
The documents
] 
Any document or material
 submitted in response to a demand
served under this section shall be accompanied by an affidavit, in the form the demand
designates, by the person, if a natural person, to whom the demand is directed or, if not a
natural person, by a person having knowledge of the facts and circumstances relating to the
production.
(b) The affidavit shall state that [
all of the documentary
] 
every document or
 material
required by the demand and in the possession, custody, or control of the person to whom the
demand is directed has in good faith been produced and made available to the Office of the
Attorney General.
(c) The affidavit shall identify any demanded [
documents
] 
document or material
 that
[
are
] 
is
 not produced and state the reason why each [
document
] 
item
 was not produced.
(5) (a) [
The
] 
An
 examination of any person pursuant to a demand for oral testimony
served under this section [
shall
] 
may only
 be taken before an officer authorized to administer
oaths or affirmations by the laws of the United States or of the place where the examination is
held. The officer before whom the testimony is to be taken shall put the witness on oath or
affirmation and shall personally, or by someone acting under [
his
] 
the officer's
 direction and in
[
his
] 
the officer's
 presence, record the testimony of the witness. If the testimony is taken
stenographically, it shall be transcribed and the officer before whom the testimony is taken
shall promptly transmit the transcript of the testimony to the Office of the Attorney General.
(b) When taking oral testimony, all persons other than personnel from the [
attorney
general's office
] 
Office of the Attorney General
, the witness, counsel for the witness, and the
officer before whom the testimony is to be taken shall be excluded from the place where the
examination is held.
(c) The oral testimony of any person taken pursuant to a demand served under this
section shall be taken in the county where the person resides or transacts business or in any
other place agreed upon by the attorney general and the person.
(d) When testimony is fully transcribed, the transcript shall be certified by the officer
before whom the testimony was taken and submitted to the witness for examination and
signing, in accordance with [
Rule 30(e) of
] the Utah Rules of Civil Procedure
, Rule 30(e)
. A
copy of the deposition shall be furnished free of charge to [
each
] 
a
 witness upon [
his
] 
the
witness's
 request.
(e) Any change in testimony recorded by nonstenographic means shall be made in the
manner provided in [
Rule 30 of
] the Utah Rules of Civil Procedure
, Rule 30,
 for changing
deposition testimony recorded by nonstenographic means.
(f) Any person compelled to appear under a demand for oral testimony under this
section may be accompanied, represented, and advised by counsel. Counsel may advise the
person, in confidence, either upon the request of the person or upon counsel's own initiative,
with respect to any question asked of the person. The person or counsel may object on the
record to any question, in whole or in part, and shall briefly state for the record the reason for
the objection. An objection may properly be made, received, and entered upon the record when
it is claimed that the person is entitled to refuse to answer the question on grounds of any
constitutional or other legal right or privilege, including the privilege against
self-incrimination. If the person refuses to answer any question, the attorney general may
petition the district court for an order compelling the person to answer the question.
(g) If any person compelled to appear under a demand for oral testimony or other
information pursuant to this section refuses to answer any questions or produce information on
grounds of the privilege against self-incrimination, the testimony of that person may be
compelled as in criminal cases.
(h) Any person appearing for oral examination pursuant to a demand served under this
section is entitled to the same fees and mileage which are paid to witnesses in the district courts
of the state of Utah. Witness fees and expenses shall be tendered and paid as in any civil
action.
(6) The providing of any [
testimony, documents, or objects
] 
information
 in response to
a civil investigative demand issued pursuant to the provisions of this [
act
] 
part
 shall be
considered part of an official proceeding as defined in Section 
76-8-501
.
(7) (a) If a person fails to comply with the demand served upon him under this section,
the attorney general may file in the district court of the county in which the person resides, is
found, or does business, a petition for an order compelling compliance with the demand. 
Notice of hearing of the petition and a copy of the petition shall be served upon the person,
who may appear in opposition to the petition. If the court finds that the demand is proper, that
there is reasonable cause to believe there has been a violation of this [
act
] 
part
, and that the
information sought [
or document or object demanded
] is relevant to the violation, it shall order
the person to comply with the demand, subject to modifications the court may prescribe.
(b) (i) At any time before the return date specified in a demand or within 30 days after
the demand has been served, whichever period is shorter, the person who has been served may
file a petition for an order modifying or setting aside the demand. This petition shall be filed in
the district court in the county of the person's residence, principal office, or place of business,
or in the district court in Salt Lake County. The petition shall specify each ground upon which
the petitioner relies in seeking the relief sought. The petition may be based upon any failure of
the demand to comply with the provisions of this section or upon any constitutional or other
legal right or privilege of the petitioner. The petitioner shall serve notice of hearing of the
petition and a copy of the petition upon the attorney general. The attorney general may submit
an answer to the petition within 30 days after receipt of the petition.
(ii) After 
a
 hearing on the petition described in Subsection (7)(b)(i), and for good cause
shown, the court may make any further order in the proceedings that justice requires to protect
the person from unreasonable annoyance, embarrassment, oppression, burden, or expense. At
any hearing pursuant to this section it is the attorney general's burden to establish that the
demand is proper, that there is reasonable cause to believe that there has been a violation of this
[
act
] 
part
, and that the information sought [
or document or object demanded
] is relevant to the
violation.
(8) (a) The attorney general may enter into a confidentiality agreement in lieu of, or in
addition to, issuing a civil investigative demand, when the attorney general has reasonable
cause to believe that any person may be in possession, custody, or control of any information
relevant to a civil antitrust investigation or civil antitrust action.
(b) In any civil antitrust action, the court may issue a confidentiality order, which may
incorporate a confidentiality agreement.
(c) The confidentiality agreement or confidentiality order may address any procedure,
testimony taken, or document or material produced under this section. The agreement or order
may define to whom access will be given, the conditions and the restrictions to the access, and
how the testimony, document, or material will be safeguarded. The agreement or order may
require that documentation of testimony and any other document or material:
(i) be returned to the designated person; or
(ii) notwithstanding the provisions of Section 
63A-12-105
 and any retention schedule
promulgated pursuant to Section 
63G-2-604
, be destroyed by the attorney general at a
designated time, in which case this requirement is binding upon the attorney general.
[
(8)
] 
(9)
 (a) Any procedure, testimony taken, 
or document
 or material produced under
this section
, whether produced pursuant to a civil investigative demand, confidentiality
agreement, or confidentiality order,
 shall be kept confidential by the attorney general unless
confidentiality is waived in writing by the person who has testified, or produced [
documents
] 
a
document
 or [
objects
] 
material
.
(b) Any testimony taken or document or material produced under this section may be
used in a civil antitrust action, provided that the use is not restricted or prohibited under a
confidentiality agreement or confidentiality order, unless that restriction or prohibition is
waived by the person from whom the information was obtained.
[
(b)
] 
(c)
 Notwithstanding any other provision of this section, the attorney general may
disclose testimony 
taken
 or [
documents
] 
a document or material
 obtained under this section,
without either the consent of the person from whom it was received or the person being
investigated, to:
(i) any grand jury; and
(ii) officers and employees of federal or state law enforcement agencies, provided the
person from whom the information[
, documents, or objects were
] 
was
 obtained is notified 20
days prior to disclosure, and the federal or state law enforcement agency certifies that the
information will be:
(A) maintained in confidence, as required by Subsection [
(8)
] 
(9)
(a); and
(B) used only for official law enforcement purposes.
[
(9)
] 
(10)
 Use of a civil investigative demand under this action precludes the
invocation by the attorney general of Section 
77-22-2
.