Antitrust & Monopolies
AS 45.50.562 – 45.50.596
Article 04. MONOPOLIES; RESTRAINT OF TRADE
Sec. 45.50.562. Combinations in restraint of trade unlawful.
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is unlawful.
Sec. 45.50.564. Monopolies and attempted monopolies unlawful.
It is unlawful for a person to monopolize, or attempt to monopolize, or combine or conspire with another person to monopolize any part of trade or commerce.
Sec. 45.50.566. Transactions and agreements not to use or deal in commodities or services unlawful.
It is unlawful for a person to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, or services, whether patented or unpatented, for use, consumption, enjoyment, or resale, or fix a price charged for it, or discount from, or rebate upon, that price, on the condition, agreement, or understanding that the lessee or purchaser will not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodity or service of a competitor or competitors of the lessor or seller, if the effect of the lease, sale, or contract for sale, or of the condition, agreement, or understanding may be substantially to lessen competition or tend to create a monopoly in any line of commerce.
Sec. 45.50.568. Mergers and acquisitions unlawful when competition lessened.
- It is unlawful for a person to acquire and hold, directly or indirectly, the whole or a part of the stock, or other share capital, or assets of any corporation after August 5, 1975 if the effect of the acquisition and holding may be substantially to lessen competition or to tend to create a monopoly in any line of commerce in the state or in a section of the state. This subsection does not apply to persons purchasing such stock solely for investment if it is not used by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. Nothing in this subsection prevents a corporation from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions of it, or from owning and holding all or a part of the stock of the subsidiary corporation, when the effect of the formation is not substantially to lessen competition.
- When the court finds that the effect of the holding of such stock, share capital, or assets is substantially to lessen competition or tends to create a monopoly and no other remedy will eliminate the lessening of competition or the tendency to create a monopoly, the court shall order the divestiture or other disposition of the stock, share capital, or assets and shall prescribe a reasonable time, manner, and degree of the divestiture or other disposition of it.
- This section does not apply to mergers, acquisitions, or holding companies permitted by AS 06.05.235 or to a merger carried out in accordance with AS 21.69.590 - 21.69.600, or to mergers, acquisitions, or holding companies permitted and regulated by a regulatory agency of the United States having jurisdiction and control over those mergers and acquisitions.
Sec. 45.50.570. Interlocking directorates and relationships.
- It is unlawful for a person to be at the same time a director, officer, partner, or trustee in any two or more firms, partnerships, trusts, associations, or corporations or any combination of them engaged in commerce, if these firms, partnerships, trusts, associations, or corporations or a combination of them, are by virtue of their business and location or operation, competitors and if the effect may be substantially to lessen competition or tend to create a monopoly.
- A person may not by the use of a representative accomplish the result prohibited in (a) of this section.
- The validity or invalidity of an act of a director, officer, or trustee done by the director, officer, or trustee while occupying the position in violation of this section shall be determined by the statutory and common law of the state relating to corporations, trusts, or associations.
- The attorney general may bring an action at any time to cause a director, officer, or trustee who may be occupying such a position in violation of this section to vacate the office or offices to effect the termination of the prohibited interlocking relationship.
- A person affected by an act of a director, officer, or trustee may bring an action at any time to cause the director, officer, or trustee who may be occupying the position in violation of this section to terminate the prohibited interlocking relationship.
- The court, upon finding that a director, officer, or trustee is holding office in violation of this section, shall order the person to terminate the interlocking relationship, and, in the case of a trustee, the court may, when it considers it appropriate, order the trustee to vacate the office of the trustee. A remedy provided in this section does not limit and is in addition to any other remedy available under another section of this chapter or another law.
Sec. 45.50.572. Exemptions.
- AS 45.50.562 - 45.50.596 do not forbid the existence or operation of labor, agricultural, horticultural, or marine pilot organizations created for the purpose of mutual help, and not conducted for profit, or forbid or restrain members of those organizations from lawfully carrying out the legitimate objectives of them; nor are these organizations or members illegal combinations or conspiracies in restraint of trade under the provisions of AS 45.50.562 - 45.50.596.
- AS 45.50.562 - 45.50.596 do not forbid actions or arrangements authorized or regulated under the laws of the United States that exempt these actions or arrangements from application of the antitrust laws of the United States or under the following statutes of this state:
- AS 06.05.235 and 06.05.570;
- AS 10.15; and
- AS 31.05.110.
- AS 45.50.562 - 45.50.596 do not forbid persons engaged in the fishing industry as fishermen who catch, collect, or cultivate aquatic products from acting together in associations for the purpose of collectively catching, producing, preparing for market, processing, handling, and marketing their product. Associations may have marketing agencies in common and may make contracts and agreements necessary to achieve the purposes of this subsection. In this subsection, "association" means an association, corporate or otherwise, with or without capital stock, that
- is operated for the mutual benefit of its members;
- does not deal in the aquatic products of nonmembers to an amount greater in value than the association handles for its members; and
- does not allow a member of the association more than one vote because of the amount of stock or membership capital the member may own in the association; or
- does not pay dividends on stock or membership capital in excess of eight percent a year.
- AS 45.50.562 - 45.50.596 apply to long distance telecommunications services provided by public utilities. AS 45.50.562 - 45.50.596 do not apply to other services provided by public utilities that have been issued a certificate of public convenience and necessity under AS 42.05.
- [Repealed, Sec. 68 ch 21 SLA 1985].
- [Repealed, Sec. 10 ch 75 SLA 1982].
- AS 45.50.562 - 45.50.596 do not forbid activities expressly required by a regulatory agency of the state. Activities permitted by a regulatory agency of the state are not forbidden by this chapter if the regulatory agency has given due consideration to the possible anticompetitive effects before permitting the activities, and enforcement of the provisions of AS 45.50.562 - 45.50.596 would be disruptive of the regulatory scheme.
- AS 45.50.562 - 45.50.596 do not forbid actions or arrangements necessary to carry out the provisions of the Alaska Native Claims Settlement Act.
- AS 45.50.562 - 45.50.596 do not prohibit activities of the Alaska Housing Finance Corporation to stabilize the market price of and demand for residential housing in the state under AS 18.56.210.
- AS 45.50.562 - 45.50.596 do not forbid persons engaged in the fishing industry as fishermen, including fishermen acting through associations allowed under (c) of this section, from collectively agreeing with fish processors, including fish processors acting through associations of processors, on the (1) price paid to the fishermen for aquatic products; and (2) minimum price that fish processors will accept for the sale of processed aquatic products. Nothing in this subsection allows fish processors to agree among themselves on the price paid to fishermen or the minimum price that fish processors will accept for the sale of processed aquatic products if fishermen did not participate in the making of the agreement and are not a party to the agreement.
- AS 45.50.562 - 45.50.596 do not apply to action taken by a person to comply with AS 45.25 or to action refrained from by a person in order to comply with AS 45.25 (motor vehicle transactions).
- AS 45.50.562 - 45.50.596 do not forbid the existence or operation of organizations of physicians acting in accordance with AS 23.50, or forbid or restrain members of those organizations from lawfully carrying out the legitimate objectives of them; nor are these organizations or members illegal combinations or conspiracies in restraint of trade under the provisions of AS 45.50.562 - 45.50.596.
Sec. 45.50.574. Contracts voidable.
A contract or agreement in violation of a provision of AS 45.50.562 - 45.50.596 is voidable by either party as to future performance by either party; however, the court may, in its discretion, order payment for goods or services already received to prevent unjust enrichment.
Sec. 45.50.576. Suits by persons injured; treble damages; costs.
- A person who is injured in business or property by a violation of AS 45.50.562 - 45.50.570, or a person so injured because the person refuses to accede to a proposal for an arrangement that, if consummated, would be a violation of AS 45.50.562 - 45.50.570, may bring a civil action
- for damages sustained by the person, and, if the judgment is for the plaintiff, the plaintiff shall be awarded threefold the amount of damages sustained by the person, plus the costs of the suit, including reasonable attorney fees; and
- to enjoin the unlawful practice, and, if the judgment is for the plaintiff, the plaintiff may be awarded costs of the suit, including reasonable attorney fees.
- If a home rule or general law city or borough or other governmental entity is injured by reason of a violation of AS 45.50.562 - 45.50.570, it may maintain an action in the same manner as prescribed in (a) of this section for an injured person, and the city, borough, or other governmental entity is entitled to the same relief as provided in (a) of this section.
- In a civil action brought under AS 45.50.562 - 45.50.570, if judgment is for the defendant, the defendant shall be awarded the defendant's costs of the suit, including reasonable attorney fees in accordance with rules adopted by the supreme court for awarding costs and attorney fees to prevailing parties in civil actions. If the plaintiff in a civil action brought under this section in which judgment is for the defendant is a class certified under Rule 23, Alaska Rules of Civil Procedure, any award of costs and attorney fees to the defendant
- may be satisfied only through funds, if any, that the class has collected from settlements with or judgments against other defendants; and
- is not a liability of any individual member of the class.
Sec. 45.50.577. Enforcement by attorney general.
- The attorney general may bring a civil action in superior court to secure monetary relief as provided in this section on behalf of the state and its agencies injured either directly or indirectly by reason of any violation of AS 45.50.562 - 45.50.570.
- The attorney general may bring a civil action in superior court in the name of the state, as parens patriae on behalf of governmental entities or persons doing business or residing in this state, to secure monetary relief as provided in this section for injuries directly or indirectly sustained by persons by reason of any violation of AS 45.50.562 - 45.50.570.
- The court shall exclude from the amount of monetary relief awarded in an action under (a) or (b) of this section any amount of monetary relief that
- duplicates amounts that have been awarded for the same injury; or
- is properly allocable to persons who have excluded their claims under (e) of this section.
- The court shall award the attorney general as monetary relief three times the total damage sustained as described in (a) or (b) of this section and, additionally, the costs of the action, including reasonable attorney fees.
- In any action brought under (b) of this section, the attorney general, at the times, in the manner, and with the content the court directs, shall cause notice of the action to be given by publication. Any governmental entity or person on whose behalf an action is brought under (b) of this section may elect to exclude from civil action the portion of the state claim for monetary relief attributable to that governmental entity or person by filing notice of the election with the court within the time specified in the attorney general's notice given in accordance with this subsection.
- The final judgment in an action under (a) or (b) of this section is res judicata as to any claim under AS 45.50.576 by any governmental entity or person on whose behalf the action was brought and who fails to give notice of election to exclude under (e) of this section within the period specified in the attorney general's notice given under (e) of this section.
- An action under (b) of this section may not be dismissed or compromised without the approval of the court, and notice of any proposed dismissal or compromise shall be given by publication at the times, in the manner, and with the content the court directs in accordance with (e) of this section and AS 45.50.584 .
- Monetary relief recovered in an action under this section shall be (1) distributed in the manner the court, in its discretion, authorizes; or (2) deemed a civil penalty by the court and deposited in the general fund, and may be appropriated to the Alaska permanent fund (AS 37.13.010 (a)) or for any other public purpose. A distribution procedure authorized by the court under this subsection must afford each governmental entity or person participating in the civil action a reasonable opportunity to secure that entity's or person's appropriate portion of the net monetary relief.
- Only the attorney general, in a suit brought under this section, may seek monetary relief for injury indirectly sustained for a violation of AS 45.50.562 - 45.50.570.
Sec. 45.50.578. Criminal and civil penalties.
- A person who violates AS 45.50.562 or 45.50.564 is guilty of a class C felony and upon conviction is punishable,
- if a natural person, by a fine of not more than $1,000,000, notwithstanding AS 12.55.035, or by imprisonment as provided in AS 12.55, or by both; or
- if not a natural person, by a fine of not more than $50,000,000, notwithstanding AS 12.55.035.
- In addition to any other relief available, the attorney general may bring a civil action against a person who violates AS 45.50.562, 45.50.564, 45.50.568, or 45.50.570, or an injunction issued under AS 45.50.580, for a civil penalty of not more than
- $1,000,000 if the person is a natural person;
- $50,000,000 if the person is not a natural person.
Sec. 45.50.579. Proof of aggregate damages.
In a civil action brought by the attorney general under AS 45.50.577, the attorney general may recover aggregate damages by using statistical sampling or sampling methods, by the computation of illegal overcharges, or by a similar, reasonable system of estimating aggregate damages that the court, in its discretion, permits, without the necessity of separately proving the individual claim or amount of damage to governmental entities or persons on whose behalf the civil action was brought.
Sec. 45.50.580. Injunction by attorney general.
- In addition to any other relief provided by AS 45.50.562 - 45.50.596, the attorney general may bring an action to enjoin a violation of AS 45.50.562 - 45.50.596. This action may be brought as a sole action or in conjunction with another action that the attorney general is authorized to bring.
- The court may make additional orders or judgments as may be necessary to restore to a person in interest any money or property, real or personal, that may have been acquired by an act prohibited by AS 45.50.562 - 45.50.596, and as may be necessary to prevent continuing or future violations of AS 45.50.562 - 45.50.596.
Sec. 45.50.582. Jurisdiction of court.
An action arising under AS 45.50.562 - 45.50.596 shall be brought in the superior court.
Sec. 45.50.584. Consent judgment.
- In an action maintained under AS 45.50.562 - 45.50.596, the parties to it may file with the court a consent judgment or decree. The consent judgment or decree shall set out the alleged violations, future obligations of the parties, if any, damages, or other relief, the defendant agrees to make, if any, and the reasons for entering into the consent judgment or decree.
- A consent judgment or decree does not become final until 60 days from its filing. During the 60-day period an interested party may file verified exceptions to the form or substance of the consent judgment or decree, and the court, upon a full hearing on those exceptions, may approve or refuse to enter the consent judgment or decree.
Sec. 45.50.586. Judgment in favor of the state as evidence in another action.
A final judgment rendered in a civil or criminal action brought by the state under AS 45.50.562 - 45.50.596 is prima facie evidence against the defendant in any other action under AS 45.50.562 - 45.50.596 brought by another party, or by the state, a city, a borough, or other governmental entity; however, this section does not apply to consent judgments or decrees entered under AS 45.50.584.
Sec. 45.50.588. Limitation of actions.
An action to enforce a claim arising under AS 45.50.562 - 45.50.596 is barred unless commenced within four years after the claim accrues, except that when an action is brought by the attorney general under AS 45.50.562 - 45.50.596, the running of this period of limitation, with respect to every private right of action for damages that is based in whole or in part on a matter complained of in the action by the attorney general, shall be suspended during the pendency of the action brought by the attorney general. For the purpose of this section, a claim for a continuing violation is considered to accrue at any time during the period of the violation.
Sec. 45.50.590. Powers of the attorney general.
If the attorney general determines, upon complaint or otherwise, that a person has engaged in, or engages in, or is about to engage in an act or practice prohibited or declared unlawful by AS 45.50.562 - 45.50.596, or that a person has assisted or participated in a plan, scheme, agreement, or combination of the nature described in AS 45.50.562 - 45.50.596, or when the attorney general believes it to be in the public interest, the attorney general may commence an investigation. The attorney general may compel production of documentary material and take testimony, under oath, before the institution of an action under AS 45.50.562 - 45.50.596.
Sec. 45.50.592. Investigatory demand for documentary evidence.
- If the attorney general determines that a person is in possession, custody, or control of a documentary evidence, wherever situated, that the attorney general believes to be relevant to an investigation authorized in AS 45.50.590 , the attorney general may execute in writing and cause to be served upon that person an investigative demand requiring the person to produce the documentary material and permit inspection and copying.
- Each demand must
- state the specific statute the alleged violation of which is under investigation, and the general subject matter of the investigation;
- describe, with reasonable specificity so as fairly to indicate the material demanded, the documentary material to be produced;
- prescribe a return date within which the documentary material is to be produced; and
- identify the state employees or representatives to whom the documentary material is to be made available for inspection and copying.
- A demand may not
- require the production of documentary material that would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of the state; or
- contain a requirement that would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the state; however, this does not limit the power of the attorney general to require production of documents located outside the state that pertain to matters affecting the state.
- The demand may be served by the attorney general or the designee of the attorney general by
- delivering a copy of it to the person to be served, or, if the person is not a natural person, to an officer of the person to be served;
- delivering a copy of it to a place of business in the state of the person to be served; or
- mailing by registered or certified mail a copy of it addressed to the person to be served at a place of business in the state, or, if the person has no place of business in the state, to principal office or place of business of the person.
- Documentary material produced pursuant to a demand, or copies of it, unless otherwise ordered by a superior court for good cause shown, may not be produced for inspection or copying by, nor may its contents be disclosed to, anyone other than an authorized employee of the state without the consent of the person who produced the material. However, under those reasonable terms and conditions the attorney general prescribes, copies of the documentary material shall be available for inspection and copying by the person who produced the material or an authorized representative of that person. The attorney general, or a designee, may use copies of the documentary material as the attorney general or designee considers necessary in the enforcement of AS 45.50.562 - 45.50.598, including presentation before a court; however, material that contains trade secrets may not be presented except with the approval of the court in which the action is pending after adequate notice to the person furnishing the material.
- At any time before the return date specified in the demand, or within 20 days after the demand has been served, whichever period is shorter, a petition to extend the return date for, or to modify or set aside a demand issued under (a) of this section, stating good cause, may be filed in the superior court for the judicial district where the parties reside. A petition by a person on whom a demand is served, stating good cause, to require the attorney general or another person to act in accordance with the requirements of (e) of this section, and all other petitions in connection with a demand, may be filed in the superior court for the judicial district in which the person on whom the demand is served resides.
- A person upon whom a demand is served under this section shall comply with the terms of the demand unless otherwise provided by an order of court issued in response to a petition filed under (f) of this section. A person who, with intent to avoid, prevent, or obstruct compliance, in whole or in part, with an investigative demand under this section, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies, a documentary material in the possession, custody, or control of a person which is the subject of a demand duly served upon any person, or who otherwise wilfully disobeys any such demand, is guilty of a misdemeanor, and is punishable upon conviction by a fine of not more than $5,000, or by imprisonment for a term of not more than one year, or by both. Failure of the state to serve the demand properly under (d) of this section is a defense to prosecution under this subsection, but invalidity of the demand under (b) or (c) of this section is not a defense, and that invalidity may be tested only in an action under (f) of this section to modify or set aside the demand.
- Nothing in this section impairs the authority of the attorney general or a designee to lay before a grand jury of this state evidence concerning a violation of AS 45.50.562 - 45.50.596, to invoke the power of a court to compel the production of evidence before a grand jury, or to file a civil complaint or criminal information alleging a violation of AS 45.50.562 - 45.50.596.
Sec. 45.50.594. Investigatory demand for attendance of witness.
- In connection with an investigation authorized by AS 45.50.590, the attorney general may issue an investigative demand compelling the attendance of a person for examination under oath before the attorney general or before a court of record.
- Each demand shall
- state the specific statute the alleged violation of which is under investigation, and the general subject matter of the investigation;
- state the date, time, and place at which the examination is to take place.
- A demand may be served by the attorney general, or a designee, in accordance with the procedures prescribed in AS 45.50.592(d).
- If a person ordered to attend the inquiry fails to attend without good cause, the person is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $5,000, or by imprisonment for not more than one year, or by both. If a person in attendance at the inquiry refuses to answer a question on the ground that the person may be incriminated by the answer, and if the attorney general, or a designee, in a writing directed to the person being questioned orders the person to answer the question, the person shall comply with the order. After complying, and if but for this section the person would have been privileged to withhold the answer given, the person may not be prosecuted for an offense or subjected to a penalty or forfeiture for or on account of a transaction, matter or thing concerning which the person gave evidence. However, the person may nevertheless be prosecuted or subjected to penalty or forfeiture for a perjury, false swearing, or contempt committed in answering or failing to answer. If a person refuses to testify after being granted immunity from prosecution and after being ordered to testify, the person may be adjudged in contempt and committed to jail until the time the person purges the contempt by testifying. A grant of immunity does not prevent the attorney general from instituting civil contempt proceedings against a person who violates any of the above provisions.
Sec. 45.50.596. Definitions.
In AS 45.50.562 - 45.50.596,
- "asset" includes any property, tangible or intangible, real, personal, or mixed and wherever located, and any other thing of value;
- "documentary evidence" includes an original or copy of a book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical tabulation, magnetic tape, or other computer data storage system, or other tangible document or recording;
- "trade" and "commerce" include but are not limited to, trade in goods, merchandise, natural resources, whether or not severed, extracted, harvested, or produced, agricultural products, produce, choses in action, commodities, and any other article of commerce; they include trade or business in service trades, transportation, banking, lending, advertising, bonding, and any other business whether or not that business furnishes a personal service.