WVC 47 -
CHAPTER 47. REGULATION OF TRADE.
WVC 47 - 18 -
ARTICLE 18. ANTITRUST ACT; RESTRAINT OF TRADE.
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§47-18-1. Short title.
This article shall be known and may be cited as the "West
Virginia Antitrust Act."
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As used in this article, unless the context otherwise
(a) "Person" shall mean any natural person or persons, or
any corporation, partnership, company, trust or association of
(b) "Trade or commerce" shall include all economic activity
involving or relating to any commodity or service.
(c) "Commodity" shall mean any kind of real or personal
(d) "Service" shall mean any activity which is performed in
whole or in part for the purpose of financial gain, including but
not limited to sale, rental, leasing or licensing for use.
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§47-18-3. Contracts and combinations in restraint of trade.
(a) Every contract, combination in the form of trust or
otherwise, or conspiracy in restraint of trade or commerce in
this state shall be unlawful.
(b) Without limiting the effect of subsection (a) of this
section, the following shall be deemed to restrain trade or
commerce unreasonably and are unlawful:
(1) A contract, combination or conspiracy between two or
(A) for the purpose or with the effect of fixing,
controlling, or maintaining the market price, rate or fee of any
commodity or service; or
(B) fixing, controlling, maintaining, limiting or
discontinuing the production, manufacture, mining, sale or supply
of any commodity, or the sale or supply of any service, for the
purpose or with the effect of fixing, controlling or maintaining
the market price, rate or fee of the commodity or service; or
(C) allocating or dividing customers or markets, functional
or geographic, for any commodity or service.
(2) A contract, combination or conspiracy between two or
more persons whereby, in the letting of any public or private
(A) the price quotation of any bid is fixed or controlled;
(B) one or more persons submits a bid intending it to be
higher than another bid and thus complementary thereto, submits a
bid intending it to be substantially identical to another bid, or refrains from the submission of a bid.
(3) A contract, combination or conspiracy between two or
more persons refusing to deal with any other person or persons
for the purpose of effecting any of the acts described in
subdivisions (1) and (2) of this subsection.
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§47-18-4. Establishment, maintenance or use of monopoly.
The establishment, maintenance or use of a monopoly or an
attempt to establish a monopoly of trade or commerce, any part of
which is within this state, by any persons for the purpose of
excluding competition or controlling, fixing or maintaining
prices is unlawful.
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Acts, 1996 Reg. Sess., Ch. 72.
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(a) Labor of a human being is not a commodity or an article
(b) Nothing in this article shall be construed to forbid the
existence and operation of any labor, agricultural or
horticultural organization instituted for the purpose of mutual
help, while lawfully carrying out its legitimate objects; or the
existence or operation of any person whose activities or
operations are regulated, to the extent of such regulation,
pursuant to the laws of this state or of the United States, by a
regulatory agency of this state or of the United States; or the
bona fide religious and charitable activities of any nonprofit
corporation, trust or organization established exclusively for
religious or charitable purposes or both.
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§47-18-6. General powers and duties of attorney general.
The attorney general shall investigate suspected violations
of, and institute such proceedings as are hereinafter provided
for violation of the provisions of this article. The attorney
general may direct the county prosecutor of any county in which
such proceedings may be brought to aid and assist him in the
conduct of such investigation and proceedings.
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§47-18-7. Investigations; powers and duties of attorney general.
(a) If the attorney general has probable cause to believe
that a person has engaged in an act which is subject to action by
the attorney general under any of the provisions of this article,
he may make an investigation to determine if the act has been
committed and, to the extent necessary for this purpose, may
administer oaths or affirmations, and may subpoena witnesses,
compel their attendance, adduce evidence, and require the
production of any matter which is relevant to the investigation,
including the existence, description, nature, custody, condition
and location of any books, records, documents or other tangible
things and the identity and location of persons having knowledge
of relevant facts, or any other matter reasonably calculated to
lead to the discovery of admissible evidence.
(b) If the person's records are located outside this state,
the person at his option shall either make them available to the
attorney general at a convenient location within this state or
pay the reasonable and necessary expenses for the attorney
general or his representative to examine them at the place where
they are maintained. The attorney general may designate
representatives, including comparable officials of the state in
which the records are located, to inspect them on his behalf.
(c) Upon failure of a person without lawful excuse to obey a
subpoena or to give testimony and upon reasonable notice to all
persons affected thereby, the attorney general may apply to the
circuit court of the county in which the hearing is to be held
for an order compelling compliance.
(d) The attorney general shall not make public the name or
identity of a person whose acts or conduct he investigates
pursuant to this section or the facts disclosed in the
investigation, but this subsection does not apply to disclosures
in actions or enforcement proceedings pursuant to this article.
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§47-18-8. Injunctions and other relief; violations; jurisdiction.
The attorney general may institute proceedings to prevent
and restrain violations of the provisions of this article. In
addition to granting such temporary, interlocutory, or permanent
relief as is necessary to prevent and restrain a violation, the
courts of this state may grant injunctions reasonably necessary
to restore and preserve competition in the trade or commerce
affected by a violation of this article.
If a permanent injunction is issued in such proceedings,
reasonable costs of the action may be awarded the state,
including but not limited to expenses of discovery and document
In addition to injunctive relief authorized, any person who
violates the provisions of this article shall be liable to a
penalty of not more than the greater of a total of one hundred
thousand dollars or five hundred dollars per day for each and
every day of said violation.
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§47-18-9. Damages; treble damage suits.
Any person who shall be injured in his business or property
by reason of a violation of the provisions of this article may
bring an action therefor and shall recover threefold the damages
sustained by him, together with reasonable attorneys' fees,
filing fees and reasonable costs of the action. Reasonable costs
of the action may include, but shall not be limited to the
expenses of discovery and document reproduction.
The state and any of its political subdivisions and public
agencies shall be deemed a person within the meaning of this
section. The attorney general may bring an action on behalf of
this state, or any of its public agencies, counties,
municipalities or other political subdivisions to recover the
damages provided for by this section or provision of federal law:
Provided, That this shall not impair the authority of any such
county, municipality or other political subdivision to bring such
action on its own behalf.
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§47-18-10. Final judgment in civil proceeding as prima facie
A final judgment rendered in any civil proceeding brought by
the state for violation of this article to the effect that a
defendant has violated said article shall be prima facie evidence
against such defendant in any proceeding brought by any other
party against such defendant pursuant to section eight of this
article, as to all matters with respect to which said judgment or
decree would be an estoppel as between the parties thereto:
That this section shall not apply to consent judgments
or decrees entered before any testimony has been taken.
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§47-18-11. Limitation of actions.
Any action brought to enforce the provisions of this article
shall be barred unless commenced within four years after the
cause of action arose, or if the cause of action is based upon a
conspiracy in violation of this article, within four years after
the plaintiff discovered, or by the exercise of reasonable
diligence should have discovered the facts relied upon for proof
of the conspiracy. For the purpose of this section, a cause of
action for a continuing violation is deemed to arise at any time
during the period of such violation.
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§47-18-12. Suspension of limitation period.
Whenever any civil proceeding shall be commenced by the
state to prevent, restrain or punish a violation of this article,
the running of the statute of limitations in respect of every
private right of action arising under this article and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof and for one year
That whenever the running of the statute
of limitations in respect of a cause of action arising under
section eight shall be suspended hereunder, any action to enforce
such cause of action shall be forever barred unless commenced
either within the period of suspension or within four years after
the cause of action accrued, whichever is later.
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§47-18-13. Cumulative remedies.
The remedies provided in this article shall be cumulative.
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§47-18-14. Cooperation with federal government and other states.
The attorney general may cooperate with officials of the
federal government and the several states in the enforcement of
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Actions or proceedings under this article may be brought in
the circuit court of any county in which an act on which the
action or proceeding is based occurred, or in any county in which
the respondent or defendant resides or transacts business.
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§47-18-16. Judicial construction.
This article shall be construed liberally and in harmony
with ruling judicial interpretations of comparable federal
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§47-18-17. Attorney general to bring actions on behalf of state
residents; procedures used in such actions;
(a) The attorney general shall be permitted to bring an
action as parens patriae of natural persons who are citizens and
residents of this state, under this article, and in proper
federal court for violations of the federal antitrust laws or of
both this article and the federal antitrust laws, to secure
relief as provided under this article and other lawful relief as
(b) In any action brought under this section, the attorney
general shall, at such times, in such manner, and with such
content as the court may direct, cause notice 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.
(c) Any person on whose behalf an action is brought under
this section 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 this subsection.
(d) The final judgment in an action under this section shall
be res judicata as to any claim under this article 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 subsection (c).
(e) An action under subsection (a) shall not be dismissed or
compromised without approval of the court, and notice of any
proposed dismissal or compromise shall be given in such manner as
the court directs.
(f) In any action brought under this section, 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. The court shall
exclude from the amount of monetary relief awarded in such action
any amount of monetary relief which:
(1) duplicate amounts which have been awarded for the same
(2) are properly allocable to natural persons who have
excluded their claims pursuant to subsection (c).
(g) In any action brought under this section, the court
shall award to the state for payment into the state treasury for
the use of the antitrust enforcement fund:
(1) an amount attributable to the recovery of the state and
its public agencies; and
(2) the greater of:
(A) any amount assessed as reasonable attorney fees, filing
fees, and reasonable costs of the action; or
(B) an amount equal to the expenses and costs of
investigation, litigation and fund administration attributable to the case.
(h) The court shall afford the citizens and residents and
the public bodies of this state other than the state and its
public agencies a reasonable opportunity individually to secure
appropriate portions of the remainder of the monetary relief
assessed under this section and thereafter shall award the
undistributed portion of said remainder to the state for payment
into the general fund of the state treasury for the overall
benefit of the citizens, residents and public bodies of this
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§47-18-18. Disposition of funds.
All civil penalties exacted pursuant to this article, unless
otherwise specifically provided for, shall be paid into the state
treasury for the use of the antitrust enforcement fund.
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§47-18-19. Antitrust enforcement fund.
All money received by the state as a result of actions by the
attorney general pursuant to this article or to the federal
antitrust laws shall be placed in a separate fund by the state
treasurer, to be known as the antitrust enforcement fund, and shall
be used solely for the payment of fees, costs and expenses incurred
by the attorney general in connection with antitrust enforcement
activities and the first three hundred thousand dollars in this
fund shall not expire at the end of each fiscal year but shall, by
operation of law, be automatically reappropriated from year to year
and all sums in excess of three hundred thousand dollars remaining
in such fund shall expire at the end of each fiscal year and shall
revert to the general revenue fund.
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§47-18-20. Rules and regulations.
The attorney general may make and adopt such rules and
regulations as may be necessary for the enforcement and
administration of this article.
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§47-18-21. Cooperation by public agencies, officials and
It shall be the duty of all public officers, their deputies,
assistants, clerks, subordinates and employees, to render and
furnish to the attorney general, his deputy or other designated
representative, when so requested, all information and assistance
in their possession and within their power for the enforcement of
the provisions of this article.
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§47-18-22. Assurances of voluntary compliance.
In the administration of this article, the attorney general
may accept an assurance of voluntary compliance with respect to
any method, act or practice deemed to be a violation of this
article from any person who has engaged or was about to engage in
such method, act or practice. Such assurance may include a
stipulation for voluntary payment by the alleged violator of
damages sustained by any person or public body. Any such
assurance shall be in writing and be filed with the circuit court
in which the alleged violator resides, has his principal place of
business, or is doing business. Such assurance of voluntary
compliance shall not be considered an admission of violation for
any purpose. Matters thus closed may at any time be reopened by
the attorney general for further proceedings in the public
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If, for any reason, any section, sentence, clause, phrase or
provision of this article or the application thereof to any
person or circumstance is held unconstitutional or invalid, such
unconstitutionality or invalidity shall not affect other
sections, sentences, clauses, phrases or provisions or their
application to any other person or circumstance, and to this end,
each and every section, sentence, clause, phrase or provision of
this article is hereby declared to be severable.