parens patriae actions by state attorneys general

parens patriae actions by state attorneys general Sec. 301. The Clayton Act is amended by inserting immediately following section 4B the following new sections: “actions by state attorneys general “Sec. 4C. (a) (1) Any attorney general of a State may bring a civil action in the name of such State, as parents patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, to secure monetary relief as provided in this section for injury sustained by such natural persons to their property by reason of any violation of the Sherman Act. The court shall exclude from the amount of monetary relief awarded in such action any amount of monetary relief (A) which duplicates amounts which have been awarded for the same injury, or (B) which is properly allocable to (i) natural persons who have excluded their claims pursuant to subsection (b)(2) of this section, and (ii) any business entity. “(2) The court shall award the State as monetary relief threefold the total damage sustained as described in paragraph (1) of this subsection, and the cost of suit, including a reasonable attorney’s fee. “(b) (1) In any action brought under subsection (a)(1) of this section, the State 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. 90 STAT. 1395 “(2) Any person on whose behalf an action is brought under subsection (a)(1) may elect to exclude from adjudication the portion of the State claim for monetary relief attributable to him by filing notice of such election with the court within such time as specified in the notice given pursuant to paragraph (1) of this subsection. “(3) The final judgment in an action under subsection (a)(1) shall be res judicata as to any claim under section 4 of this Act by any person on behalf of whom such action was brought and who fails to give such notice within the period specified in the notice given pursuant to paragraph (1) of this subsection. “(c) An action under subsection (a)(1) shall not be dismissed or compromised without the approval of the court, and notice of any proposed dismissal or compromise shall be given in such manner as the court directs. “(d) In any action under subsection (a)— “(1) the amount of the plaintiffs’ attorney’s fee, if any, shall be determined by the court; and “(2) the court may, in its discretion, award a reasonable attorney’s fee to a prevailing defendant upon a finding that the State attorney general has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. “measurement of damages “Sec. 4D. In any action under section 4C(a)(1), in which there has been a determination that a defendant agreed to fix prices in violation of the Sherman Act, damages may be proved 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 the necessity of separately proving the individual claim of, or amount of damage to persons on whose behalf the suit was brought. “distribution of damages “Sec. 4E. Monetary relief recovered in an action under section 40(a)(1) shall— “(1) be distributed in such manner as the district court in its discretion may authorize; or “(2) be deemed a civil penalty by the court and deposited with the State as general revenues; subject, in either case to the requirement that any distribution procedure adopted afford each person a reasonable opportunity to secure his appropriate portion of the net monetary relief. “actions by attorney general of the united states “Sec. 4F. (a) Whenever the Attorney General of the United States has brought an action under the antitrust laws, and he has reason to believe that any State attorney general would be entitled to bring an action under this Act based substantially on the same alleged violation of the antitrust laws, he shall promptly give written notification thereof to such State attorney general. “(b) To assist a State attorney general in evaluating the notice or in bringing any action under this Act, the Attorney General of the United States shall, upon request by such State attorney general, make 90 STAT. 1396available to him, to the extent permitted by law, any investigative files or other materials which are or may be relevant or material to the actual or potential cause of action under this Act. “definitions “Sec. 4G. For the purposes of sections 4C, 4D, 4E, and 4F of this Act: “(1) The term ‘State attorney general’ means the chief legal officer of a State, or any other person authorized by State law to bring actions under section 4C of this Act, and includes the Corporation Counsel of the District of Columbia, except that such term does not include any person employed or retained on— “(A) a contingency fee based on a percentage of the monetary relief awarded under this section; or “(B) any other contingency fee basis, unless the amount of the award of a reasonable attorney’s fee to a prevailing plaintiff is determined by the court under section 4C (d)(1). “(2) The term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the United States. “(3) The term ‘natural persons’ does not include proprietorships or partnerships. “applicability of parens patriae actions “Sec. 4H. Sections 4C, 4D, 4E, 4F, and 4G shall apply in any State, unless such State provides by law for its nonapplicability in such State.”.