Section 1.

Short title.

This act shall be known and may be cited as the Pennsylvania Open Markets Act.

Section 2.

Declaration of purpose.

The purpose of this act is to promote free enterprise and free trade in the marketplaces of this Commonwealth by prohibiting restraints of trade that are secured through monopolistic or collusive practices and that act or tend to act to decrease competition between and among persons engaged in commerce and trade.

Section 3.

Definitions.

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Acquisition." An agreement, arrangement or activity, the consummation of which results in a person acquiring, directly or indirectly, the control of another person or the ability to influence the competitive conduct of the target firm, and includes the acquisition of voting securities and noncorporate interests, such as assets, capital stock, membership interests or equity interests.

"Contracting affiliation." The formation of a relationship 20240HB2012PN2571 - 2 - between two or more entities that permits the entities to negotiate jointly with insurers or third-party administrators over rates for professional medical services or for one entity to negotiate on behalf of the other entity with insurers or third-party administrators over rates for professional medical services.

"Hart-Scott-Rodino Act." Title II of the Clayton Antitrust Act (Public Law 63-212, 15 U.S.C.

§ 18a).

"Health care facility." As defined in section 103 of the act of July 19, 1979 (P.L.130, No.48), known as the Health Care Facilities Act.

"Health care facility system." Either of the following:

(1) a parent corporation of one or more health care facilities and an entity affiliated with the parent corporation through ownership or control;

or (2) a health care facility and an entity affiliated with the health care facility through ownership.

"Health care practitioner." As defined in section 103 of the Health Care Facilities Act.

"Health care services." Medical, surgical, chiropractic, hospital, optometric, podiatric, pharmaceutical, ambulance, mental health, substance use disorder, therapeutic, preventative, diagnostic, curative, rehabilitative, palliative, custodial and other services relating to the prevention, cure or treatment of illness, injury or disease.

"Health care services revenue." The total revenue received for health care services in the previous 12 months.

"Insurer." As defined in 40 Pa.C.S.

§ 9103 (relating to definitions).

"Merger." A consolidation of two or more organizations, 20240HB2012PN2571 - 3 - including two or more organizations joining through a common parent organization or two or more organizations forming a new organization.

The term does not include a corporate reorganization.

"Monopoly." The power to control prices and exclude competition as a seller.

"Monopsony." The power to control prices and exclude competition as a buyer.

"Person." A natural person, corporation, trust, partnership, an incorporated or unincorporated association, the Commonwealth, a State agency, municipal authority, political subdivision and any other legal entity.

"Provider organization." A corporation, partnership, business trust, association or organized group of persons, whether incorporated or not, that is in the business of health care delivery or management and that represents seven or more health care practitioners in contracting with insurers or third- party administrators for the payments of health care services.

The term includes a physician organization, physician-hospital organization, independent practice association, provider network and accountable care organization.

"Third-party administrator." An entity that administers payments for health care services on behalf of a client in exchange for an administrative fee.

"Trade or commerce." Economic activity directly or indirectly affecting the people of this Commonwealth.

Section 4.

Prohibited acts.

(a) Restraints of trade.--A contract, a combination in the form of trust or otherwise or a conspiracy in restraint of trade or commerce, is unlawful.

20240HB2012PN2571 - 4 - (b) Monopolize or monopsonize.--It is unlawful for a person to monopolize or monopsonize, to attempt to monopolize or monopsonize or to combine or conspire with another person to monopolize or monopsonize, in any part of trade or commerce.

(c) Acquisitions.--It is unlawful for a person to acquire, directly or indirectly, the whole or any part of the stock, share capital or other equity interest of another person or the whole or any part of the assets of another person if any of the following apply:

(1) The effect of the acquisition is substantially to lessen competition.

(2) The effect of the acquisition tends to create a monopoly or monopsony of any part of trade or commerce.

(d) Market power.--It is unlawful for any person or persons with market power in the conduct of any business, trade or commerce, in a labor market, or in the furnishing of a service in this Commonwealth, to abuse that market power.

Section 5.

Enforcement by Attorney General.

(a) Action on behalf of Commonwealth.--If the Attorney General has reason to believe that a person, foreign or domestic, has engaged in, is engaging in or is about to engage in an act or practice that is unlawful under this act, the Attorney General may bring a civil action in the name of the Commonwealth against the person to:

(1) Obtain a declaratory judgment that the action or practice violates this act.

(2) Enjoin an act or practice that violates this act by issuing a temporary restraining order, an ex parte temporary restraining order or a preliminary or permanent injunction, without bond.

20240HB2012PN2571 - 5 - (3) Recover a civil penalty of not less than $100,000 for each violation of this act or of an injunction, judgment or consent agreement issued or entered into under this act.

(4) Obtain an order requiring divestiture of assets:

(i) acquired in violation of this act and after the court determines that divestiture is necessary to avoid the creation or continuation of a monopoly or to avoid a likely substantial lessening of competition that results from a transaction found to be in violation of this act;

or (ii) to restore competition to a line of commerce that has been eliminated by a violation of this act.

(5) Recover actual damages, restitution or disgorgement on behalf of the Commonwealth and its agencies that are injured either directly or indirectly through a violation of this act.

(b) Action on behalf of natural person.--The Attorney General may bring a civil action in the name of the Commonwealth on behalf of a natural person injured directly or indirectly to recover damages, restitution or disgorgement through a violation of this act.

(c) Recovery authorized.--The Attorney General shall recover the costs of an investigation, expert costs and reasonable attorney fees and costs if successful in an action initiated under this section.

(d) Jurisdiction.--A civil action under this section may be brought in Commonwealth Court and in the court of common pleas of the county in which a party resides or has a principal place of business.

(e) Investigation.-- 20240HB2012PN2571 - 6 - (1) If the Attorney General has reason to believe that a person, whether foreign or domestic, has engaged in or is engaging in a violation of this act or of a Federal antitrust law that may be enforced by the Attorney General, the Attorney General may initiate an investigation.

(2) As part of an investigation under this section, the Attorney General may administer oaths and affirmations, subpoena witnesses and documentary material, propound interrogatories to be answered in writing under oath and collect evidence.

(3) The Attorney General may use the information obtained under this section as the Attorney General determines necessary in the civil enforcement of this act or Federal antitrust law that may be enforced by the Attorney General, including presentation before a court.

(4) The Attorney General may cooperate with and coordinate enforcement of this act and a Federal antitrust law may be enforced by the Attorney General with the Federal Government and the several states, including using and sharing information and evidence obtained under this act.

Section 6.

Measurement of damages.

(a) General rule.--In an action brought under this act, the prevailing party shall recover treble damages sustained, reasonable attorney fees and costs, expert witness fees and investigative costs.

(b) Method.--In an action under this act, damages may be proved and assessed in the aggregate by statistical or sampling methods, by the computation of illegal overcharges or underpayment or by another reasonable system of estimating aggregate damages as the court may permit without the necessity 20240HB2012PN2571 - 7 - of separately proving the individual claim of, or amount of damage to, persons on whose behalf the suit was brought.

(c) Computation.--Damages may be proved and assessed in the aggregate by statistical or sampling methods, by the computation of illegal overcharges or by another reasonable system of estimating aggregate damages as the court 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.

(d) Interest.--Damages for injuries by reason of anything prohibited under this act shall include interest computed from the date on which the injury is sustained, at a rate equal to the statutory rate for postjudgment interest, and the cost of suit, including reasonable attorney fees.

Section 7.

Premerger notification regarding health care.

(a) General notification.--A person conducting business in this Commonwealth that is required to file the notification and report form for certain mergers and acquisitions under the Hart- Scott-Rodino Act shall provide the same notice and documentation in its entirety to the Office of Attorney General at the same time that notice is filed with the Federal Trade Commission or the United States Department of Justice.

(b) Health care notification.-- (1) It is the intent of the General Assembly to ensure that competition beneficial to consumers in health care markets across this Commonwealth remains vigorous and robust.

(2) The General Assembly supports the intent through this section, which provides the Office of Attorney General with notice of all material health care transactions in this Commonwealth, so that the Office of Attorney General has the 20240HB2012PN2571 - 8 - information necessary to determine whether an investigation under this act is warranted for potential anticompetitive conduct and consumer harm.

(3) In addition to requiring notice under subsection (a) for transactions not involving health care, this section is also intended to supplement the Hart-Scott-Rodino Act by requiring notice of health care transactions not reportable under the reporting thresholds of the Hart-Scott-Rodino Act and by providing the Office of Attorney General with a copy of filings made in accordance with the Hart-Scott-Rodino Act.

(c) Notice of material change.-- (1) Not less than 120 days prior to the effective date of a health care transaction that results in a material change, the parties to the health care transaction shall submit written notice to the Office of Attorney General of the material change.

(2) For the purposes of this section, a material change includes a merger, acquisition or contracting affiliation between two or more entities of the following types:

(i) health care facilities;

(ii) health care facility systems;

or (iii) provider organizations.

(3) A material change includes proposed changes identified in paragraph (1) between a Pennsylvania entity and an out-of-State entity where the out-of-State entity generates at least $10,000,000 in health care services revenue from patients residing in this Commonwealth and the entities are of the types identified in paragraph (2).

A party to a material change that is licensed or operating in this Commonwealth shall submit a notice as required under 20240HB2012PN2571 - 9 - this section.

(4) For purposes of paragraph (2), a merger, acquisition or contracting affiliation between two or more health care facilities, health care facility systems or provider organizations only qualifies as a material change if the health care facilities, health care facility systems or provider organizations did not previously have common ownership or a contracting affiliation.

(d) Notice requirements.-- (1) The written notice provided by the parties, as required by subsection (c), shall include:

(i) The names of the parties and their current business addresses.

(ii) Identification of all locations where health care services are currently provided by each party.

(iii) Identification of all health care practitioners who currently provide health care services for each party.

(iv) A brief description of the nature and purpose of the proposed material change.

(v) The anticipated effective date of the proposed material change.

(2) Nothing in this section shall be construed to prohibit the parties to a material change from voluntarily providing additional information to the Office of Attorney General.

(e) Requests for additional information.-- (1) The Office of Attorney General must make a request for additional information from the parties under this act within 30 days of the date notice is received under 20240HB2012PN2571 - 10 - subsections (a), (c) and (d).

(2) Nothing in this subsection shall be construed to preclude the Office of Attorney General from conducting an investigation or enforcing Federal or State antitrust laws at a later date.

(f) Health care premerger notification.--A health care practitioner or provider organization conducting business in this Commonwealth that files a premerger notification with the Federal Trade Commission or the United States Department of Justice, in compliance with the Hart-Scott-Rodino Act, shall provide a copy of the filing to the Office of Attorney General.

Providing a copy of the Hart-Scott-Rodino Act filing to the Office of Attorney General satisfies the notice requirement under subsection (d).

(g) Materials submitted to the Office of Attorney General.-- (1) Information submitted to the Office of Attorney General under this section shall be maintained and used by the Office of Attorney General in the same manner and under the same protections as provided under this act.

(2) Nothing in this section shall be construed to limit the Office of Attorney General's authority under this act.

(3) Failure to comply with this section does not provide a private cause of action.

(h) Penalty for noncompliance.--A person that fails to comply with this section is liable to the Commonwealth for a civil penalty of not more than $200 per day for each day of noncompliance.

Section 8.

Civil investigation.

(a) Power of Attorney General to conduct.-- (1) If the Attorney General has reason to believe that a 20240HB2012PN2571 - 11 - person, whether foreign or domestic, has engaged in or is engaging in a violation of this act or of a Federal antitrust law that may be enforced by the Attorney General, the Attorney General may initiate an investigation.

(2) As part of an investigation under this section, the Attorney General may administer oaths and affirmations, subpoena witnesses and documentary material, propound interrogatories to be answered in writing under oath and collect evidence.

(3) The Attorney General may use the information obtained under this section as the Attorney General determines necessary in the civil enforcement of this act or Federal antitrust law that may be enforced by the Attorney General, including presentation before a court.

(4) An interrogatory or subpoena served under this subsection shall inform the party served of the right to file a petition as provided in subsection (b).

(b) Petition authorized.-- (1) Not later than five business days after the service of an interrogatory or subpoena, or at any time before the return date specified in the interrogatory or subpoena, the party served under this section may file in Commonwealth Court a petition for an order modifying or setting aside the interrogatory or subpoena.

(2) The party must serve the Attorney General with a copy of the petition.

(3) The petitioner may raise an objection or privilege that would be available under this act or upon service of a subpoena in a civil action.

(c) Location for production of documentary material.-- 20240HB2012PN2571 - 12 - (1) If documentary material that the Attorney General seeks to obtain by subpoena is not located within this Commonwealth and is not reducible to electronic reproduction and transmission, the party subpoenaed may make the documentary material available to the Attorney General to examine the documentary material at the place where the documentary material is located.

(2) The Attorney General may designate representatives, including officials of the state in which the documentary material is located, to inspect the documentary material on the Attorney General's behalf.

(3) The Attorney General may respond to similar requests from officials of other states and may inspect documentary material on their behalf.

(d) Investigation enforcement order.-- (1) The Attorney General may apply to Commonwealth Court for an order compelling compliance of a party who fails to obey a subpoena or answer an interrogatory issued under this section without lawful excuse and upon reasonable notice to all persons affected by the subpoena or interrogatory.

(2) The Attorney General may request that an individual who refuses to comply with a subpoena or answer an interrogatory on the grounds that the testimony or documentary material may incriminate the individual be ordered by the court to provide the testimony or documentary material.

(3) Except for a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which the individual is entitled by law shall not have the 20240HB2012PN2571 - 13 - testimony or documentary material provided, or evidence derived therefrom, or received against the individual used in a criminal investigation or proceeding.

(e) Duty to comply.--A person, whether foreign or domestic, upon whom an interrogatory or subpoena is served pursuant to this section shall comply with the terms of the interrogatory or subpoena unless otherwise provided by this section or by court order.

(f) Liability.-- (1) A person who:

(i) fails to appear with the intent to avoid, evade or prevent compliance, in whole or in part, with an investigation under this act or who removes from a place, conceals, withholds, mutilates, alters, destroys or by other means falsifies a matter or documentary material in the possession, custody or control of a person, subject to the request or subpoena;

or (ii) knowingly conceals relevant information with the intent to avoid, evade or prevent compliance shall be liable for a civil penalty as provided in this subsection.

(2) The Attorney General may, upon petition to Commonwealth Court, recover a civil penalty not to exceed $25,000.

If a civil penalty is assessed in or as the result of litigation, the Attorney General is entitled to reasonable attorney fees and costs.

(g) Access to information of other agencies and confidentiality.-- (1) If criminal or civil intelligence, records of investigations, investigative information or other 20240HB2012PN2571 - 14 - information held by a Federal or State agency is available to the Attorney General on a confidential or restricted basis, the Attorney General may obtain and use the information unless otherwise prohibited by law.

(2) A record of an investigation or intelligence or investigative information that is exempt from disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, shall remain confidential and be exempt from disclosure under that act.

(h) Records of investigation.--A written response, testimony or document obtained by the Attorney General under this section, or information derived directly or indirectly from a written response, testimony or document obtained by the Attorney General, shall be deemed a record of an investigation and shall be exempt from disclosure under the Right-to-Know Law.

Section 9.

Criminal penalties.

A person, including an agent or officer of the person, who knowingly commits an unlawful act under section 4(a) or (b) is guilty of a felony of the third degree and, upon conviction, shall be sentenced to a term of imprisonment of not more than four years or sentenced to pay a fine of not more than $1,000,000, or both.

If the person who knowingly committed an unlawful act under section 4(a) or (b) is a corporation, the corporation shall be sentenced to pay a fine of not more than $1,000,000.

An indictment or information based on a violation of a of the provisions of this act must be found within five years after the violation.

No criminal proceeding barred by a prior limitation shall be revived by this act.

Section 10.

Standing.

An individual or entity who has suffered damages as a result 20240HB2012PN2571 - 15 - of prohibited acts enumerated in section 4 shall have standing to commence an action in a court of competent jurisdiction.

Section 11.

Antitrust enforcement by private parties.

(a) Election.--The plaintiff in an action commenced under this act may elect to sue for and recover either treble damages sustained or the full amount of the plaintiff's overcharge or underpayment without regard to any portion of the overcharge or underpayment that was recovered upon resale.

An action under this section may be brought by a person injured in the person's business or property under this act, regardless of whether the person dealt directly or indirectly with the defendant.

A remedy under this section is in addition to any other remedy under law and may not diminish or offset any other remedy.

Proof of liability as a result of anticompetitive conduct in violation of this act shall not require proof of individual reliance.

(b) Class action.--An action brought under this section may be maintained as a class action pursuant to the Pennsylvania Rules of Civil Procedure.

Section 12.

Cooperation with Federal Government and other states.

The Attorney General may cooperate with and coordinate enforcement of this act and Federal antitrust law that may be enforced by the Attorney General with the Federal Government and the several states, including using and sharing information and evidence obtained under this act.

Section 13.

Exceptions.

This act shall not make illegal an activity or conduct exempt under any statute of the United States or the Commonwealth.

Section 14.

Applicability.

This act shall not apply to a cooperative association or an 20240HB2012PN2571 - 16 - employee-owned enterprise, corporate or otherwise, of farmers, gardeners or dairy producers, including livestock farmers and fruit growers, nor to a contract, agreement or arrangement made by the association or enterprise, nor to a bona fide labor union.

Section 15.

Action not barred as affecting or involving interstate or foreign commerce.

An action under this act may not be barred on the grounds that the activity or conduct complained of affects or involves interstate or foreign commerce.

Section 16.

Remedies cumulative.

The remedies afforded by this act are cumulative.

Section 17.

Effective date.

This act shall take effect in 60 days.

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