The purpose of this chapter shall be to promote the public benefits of a competitive economic environment based upon free
enterprise. It is the intent of the General Assembly to promote efficiency in business operations, an equitable return on
capital investments, an efficient allocation of goods and services and freedom of economic opportunity.
62 Del. Laws, c. 89, § 1.;
§ 2102. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
(1) "Court" means the Court of Chancery except where another court is specifically designated.
(2) "Documentary material" means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation,
chart or other document, and further includes data and other information in a form readable by a data processing machine.
(3) "Public body" means the state's public agencies, including school districts, and its political subdivisions, including
municipal and other authorities.
(4) "Trade or commerce of this State" means all economic activity carried on wholly or partially in this State, which involves
or relates to any commodity, service or business activity.
62 Del. Laws, c. 89, § 1.;
§ 2103. Restraint of trade unlawful.
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce of this State
shall be unlawful.
62 Del. Laws, c. 89, § 1.;
§ 2104. Exemptions.
(a) Nothing in this chapter shall be construed to forbid the existence or operation of labor, agricultural or horticultural
organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid
or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall
such organizations or the members thereof be held or construed to be illegal combinations or agreements in restraint of trade
under this chapter.
(b) Nothing in this chapter shall be construed to forbid any conduct or arrangement required by any statute of this State
or of the United States, nor any conduct or arrangement approved or required by a regulatory body or officer acting under
statutory authority of this State or of the United States.
(c) Without limiting the effect of the foregoing, activity of the following shall not be construed as a violation of this
chapter:
(1) Any public utility, to the extent that such activity is subject to regulation by the Public Service Commission, the State
or federal Department of Transportation, the Federal Power Commission, the Federal Communications Commission or the Interstate
Commerce Commission;
(2) Any person to the extent that such activity is subject to regulation by the Insurance Commissioner of this State or is
authorized by the Insurance Code or any other law of this State, including the making of or participating in joint underwriting
or joint reinsurance arrangements;
(3) A nonprofit corporation, trust or organization established exclusively for religious or charitable purposes, or for both
purposes, to the extent that the activity is a religious or charitable activity;
(4) A security dealer who is licensed by this State or who is a member of the National Association of Securities Dealers or
a member of a national securities exchange registered with the Securities and Exchange Commission under the Securities Exchange
Act of 1934 [15 U.S.C. § 78a et seq.], in the course of the business of offering, selling, buying and selling, or otherwise
trading in or underwriting, securities as an agent, broker or principal, or the activity of a registered national securities
exchange, including the establishment of commission rates and schedules of charges, to the extent that such activity is subject
to regulation under the laws of this State or the United States; or
(5) Any state or national banking association or savings and loan association, or any other lending institution, to the extent
that such activity is regulated or supervised by the banking laws or savings and loan laws of this State or the United States.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2105. General power of Attorney General.
The Attorney General shall have full power and authority on behalf of the State and its public bodies to investigate suspected
violations of this chapter or of federal antitrust laws, and may institute such proceedings as are provided for violations
thereof.
62 Del. Laws, c. 89, § 1.;
§ 2106. Investigative demand by Attorney General.
(a) Whenever the Attorney General has reason to believe that any person may have knowledge, or be in possession, custody or
control of any documentary material, pertinent to a possible violation of this chapter, the Attorney General may issue in
writing and cause to be served upon the person an investigative demand that may:
(1) Compel the attendance of such person and require that person to submit to examination and give testimony under oath;
(2) Require the production of documentary material pertinent to the investigation; and
(3) Require answers to written interrogatories to be furnished under oath.
(b) Service of any demand under this section may be made by mailing such demand to the last known place of business, residence
or abode within or without this State of the person to whom such demand is directed; service may also be made upon any person
other than a natural person, in the manner provided in § 321 or §§ 371-385 of Title 8 and in the manner provided in the Rules
of the Court of Chancery.
(c) Each demand under this section shall be in writing and shall:
(1) State the nature of the conduct constituting the alleged violation of this chapter which is under investigation and the
provision of law applicable thereto;
(2) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as
to permit such material to be fairly identified;
(3) Prescribe a return date which will provide a reasonable time within which the material so demanded may be assembled and
made available for inspection and copying or reproduction; and
(4) Identify the custodian to whom such material shall be made available or the official before whom such examination shall
take place or to whom such answers shall be furnished.
(d) Any person required to submit to examination under this section shall be entitled to be represented by counsel. Any person
so required shall be entitled to procure a transcript of the testimony, provided that the Court, for good cause shown by the
Attorney General, may order that such person be limited to inspection of such transcript.
(e) No demand under this section shall contain any requirement which would be held to be unreasonable if contained in a subpoena
issued by a court of this State in aid of a grand jury investigation, or require the production of any evidence which would
be privileged from disclosure if demanded by a subpoena issued by a court of this State in aid of a grand jury investigation.
(f) Within 20 days after the service of any demand under this section, or at any time before the return date specified in
the demand, whichever period is shorter, the person served may file with the Court a motion for an order modifying or setting
aside such demand. The motion shall specify each ground upon which the person relies in seeking such relief, and may be based
upon any failure of the demand to comply with this section, or upon any constitutional right or privilege of the person.
(g) If any person fails to comply with a demand under this section, the Attorney General may file with the Court a motion
for an order, and the Court may enter an order:
(1) Requiring the person to respond to the demand;
(2) Granting such other relief as may be required to obtain compliance with the demand.
(h) If any person shall refuse to give testimony or to produce documentary material or to answer a written interrogatory in
obedience to an investigative demand on the ground that the person may thereby be incriminated, the Court, upon motion by
the Attorney General, may order such person to give testimony or to produce documentary material or to answer the written
interrogatory, or to do an applicable combination of these, after notice to the witness and a hearing. Such person so ordered
by the Court shall comply with the Court order. After complying, the testimony of such person or the matters produced, which
are obtained by virtue of said order, shall not be used against the person in any criminal prosecution nor shall any evidence
obtained derivatively from said testimony be so used, provided that, but for this section, such person would have been privileged
to withhold the answer or the evidence produced by the person. In no event, however, shall such person, acting pursuant to
such order, be exempt from prosecution or penalty or forfeiture for any perjury, false statement or contempt committed in
answering or failing to answer, or in producing or failing to produce evidence in accordance with the order, and any testimony
or evidence so given or produced shall not, by virtue of this section, be rendered inadmissible in evidence upon any criminal
action, investigation or proceeding concerning such perjury, false statement or contempt.
(i) Any transcripts of oral testimony, documentary material or answers to written interrogatories provided pursuant to a demand
under this section shall be exempt from disclosure under the Delaware Freedom of Information Act. The custodian described
in subsection (c)(4) of this section shall take physical possession of such transcripts, material and answers. Such transcripts,
material or answers, or copies thereof, shall not be disclosed by the custodian to any person other than the Attorney General
or authorized employees of the Department of Justice, and the Attorney General and authorized employees shall not make further
disclosure of such transcripts, material or answers, or copies, or of internal memoranda or work papers relating thereto.
Nothing in this section shall prevent the Attorney General from introducing said testimony, material or answers in any action
initially filed in a federal court sitting in this State, or before any court or grand jury of this State.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2107. Actions by Attorney General for violations; civil penalty; equitable relief.
The Attorney General may bring an action for any violation or threatened violation of this chapter. In any such action, the
Court may assess against each defendant a civil penalty for the benefit of the State of not less than $1,000 nor more than
$100,000 for each violation, or may award appropriate equitable relief, or may order a combination of civil penalty and equitable
relief.
62 Del. Laws, c. 89, § 1.;
§ 2108. Actions for equitable relief and damages; suits parens patriae.
(a) If the State or any public body thereof is threatened with injury or injured in its business or property by a violation
of this chapter, the Attorney General may bring an action for appropriate equitable relief, damages sustained and, as determined
by the Court, taxable costs, and reasonable fees for expert witnesses and attorneys, including the Attorney General.
(b) The Attorney General may bring suit as parens patriae on behalf of natural persons residing in this State to secure monetary
relief for such persons who are injured in their business or property by a violation of this chapter. The Court may also award
taxable costs and reasonable fees for expert witnesses and attorneys, including the Attorney General.
(c) In actions under this section, the Court may, in its discretion, award as monetary relief up to threefold the total damage
sustained, in addition to costs and fees, provided that the Court finds the acts complained of to have been wilful.
(d) Monetary relief awarded under subsection (b) of this section may be payable to the State or may be distributed in such
manner as the Court in its discretion may authorize.
(e) In any action brought under subsection (b) of this section, the 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.
(f) Any person on whose behalf an action is brought under subsection (b) of this section may elect to exclude from adjudication
the portion of the state claim for monetary relief attributable to the person by filing notice of such election with the Court
in the manner specified in the notice given pursuant to subsection (e) of this section. The final judgment in any action under
subsection (b) of this section shall be res judicata as to any claim under this chapter by any person on behalf of whom such
action was brought and who fails to give notice of exclusion in the manner specified in this subsection.
(g) In any action brought under subsection (b) of this section, the Court shall exclude from the amount of any monetary relief
awarded any amount which duplicates an award made by any court for the same injury, or which is allocable to persons excluded
under subsection (f) of this section.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2109. Judgment or decree as prima facie evidence.
In any action or proceeding brought by the Attorney General, a final judgment or decree determining that a person has violated
this chapter, other than a consent judgment or decree entered before any testimony has been taken, is prima facie evidence
against that person in any other action as to all matters with respect to which the judgment or decree would be an estoppel
between the parties thereto.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2110. Jurisdiction.
The Court of Chancery shall have exclusive jurisdiction of all actions or proceedings authorized by this chapter or relating
to its enforcement; provided, however, that in an action in which any party would otherwise have a right to trial by jury
of any issue of fact, and such party shall demand such trial, the Court shall order such issue to trial and binding determination
of such issue in the Superior Court, the action or proceeding being retained in the Court of Chancery in all other respects,
including entry of judgment.
62 Del. Laws, c. 89, § 1.;
§ 2111. Limitation of actions.
Any action to enforce this chapter shall be forever barred unless commenced within 3 years after the cause of action accrued.
For purposes of this section, a cause of action for a continuing violation is deemed to accrue at any time during the period
of such violation.
62 Del. Laws, c. 89, § 1.;
§ 2112. Security not required of State and public bodies.
Unless otherwise ordered by the Court, the State and its public bodies shall not be required to give security in any action
or proceeding under this chapter.
62 Del. Laws, c. 89, § 1.;
§ 2113. Construction of chapter.
This chapter shall be construed in harmony with ruling judicial interpretations of comparable federal antitrust statutes.
62 Del. Laws, c. 89, § 1.;
§ 2114. Short title.
This chapter shall be known and may be cited as the "Delaware Antitrust Act."
The purpose of this chapter shall be to promote the public benefits of a competitive economic environment based upon free
enterprise. It is the intent of the General Assembly to promote efficiency in business operations, an equitable return on
capital investments, an efficient allocation of goods and services and freedom of economic opportunity.
62 Del. Laws, c. 89, § 1.;
§ 2102. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
(1) "Court" means the Court of Chancery except where another court is specifically designated.
(2) "Documentary material" means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation,
chart or other document, and further includes data and other information in a form readable by a data processing machine.
(3) "Public body" means the state's public agencies, including school districts, and its political subdivisions, including
municipal and other authorities.
(4) "Trade or commerce of this State" means all economic activity carried on wholly or partially in this State, which involves
or relates to any commodity, service or business activity.
62 Del. Laws, c. 89, § 1.;
§ 2103. Restraint of trade unlawful.
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce of this State
shall be unlawful.
62 Del. Laws, c. 89, § 1.;
§ 2104. Exemptions.
(a) Nothing in this chapter shall be construed to forbid the existence or operation of labor, agricultural or horticultural
organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid
or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall
such organizations or the members thereof be held or construed to be illegal combinations or agreements in restraint of trade
under this chapter.
(b) Nothing in this chapter shall be construed to forbid any conduct or arrangement required by any statute of this State
or of the United States, nor any conduct or arrangement approved or required by a regulatory body or officer acting under
statutory authority of this State or of the United States.
(c) Without limiting the effect of the foregoing, activity of the following shall not be construed as a violation of this
chapter:
(1) Any public utility, to the extent that such activity is subject to regulation by the Public Service Commission, the State
or federal Department of Transportation, the Federal Power Commission, the Federal Communications Commission or the Interstate
Commerce Commission;
(2) Any person to the extent that such activity is subject to regulation by the Insurance Commissioner of this State or is
authorized by the Insurance Code or any other law of this State, including the making of or participating in joint underwriting
or joint reinsurance arrangements;
(3) A nonprofit corporation, trust or organization established exclusively for religious or charitable purposes, or for both
purposes, to the extent that the activity is a religious or charitable activity;
(4) A security dealer who is licensed by this State or who is a member of the National Association of Securities Dealers or
a member of a national securities exchange registered with the Securities and Exchange Commission under the Securities Exchange
Act of 1934 [15 U.S.C. § 78a et seq.], in the course of the business of offering, selling, buying and selling, or otherwise
trading in or underwriting, securities as an agent, broker or principal, or the activity of a registered national securities
exchange, including the establishment of commission rates and schedules of charges, to the extent that such activity is subject
to regulation under the laws of this State or the United States; or
(5) Any state or national banking association or savings and loan association, or any other lending institution, to the extent
that such activity is regulated or supervised by the banking laws or savings and loan laws of this State or the United States.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2105. General power of Attorney General.
The Attorney General shall have full power and authority on behalf of the State and its public bodies to investigate suspected
violations of this chapter or of federal antitrust laws, and may institute such proceedings as are provided for violations
thereof.
62 Del. Laws, c. 89, § 1.;
§ 2106. Investigative demand by Attorney General.
(a) Whenever the Attorney General has reason to believe that any person may have knowledge, or be in possession, custody or
control of any documentary material, pertinent to a possible violation of this chapter, the Attorney General may issue in
writing and cause to be served upon the person an investigative demand that may:
(1) Compel the attendance of such person and require that person to submit to examination and give testimony under oath;
(2) Require the production of documentary material pertinent to the investigation; and
(3) Require answers to written interrogatories to be furnished under oath.
(b) Service of any demand under this section may be made by mailing such demand to the last known place of business, residence
or abode within or without this State of the person to whom such demand is directed; service may also be made upon any person
other than a natural person, in the manner provided in § 321 or §§ 371-385 of Title 8 and in the manner provided in the Rules
of the Court of Chancery.
(c) Each demand under this section shall be in writing and shall:
(1) State the nature of the conduct constituting the alleged violation of this chapter which is under investigation and the
provision of law applicable thereto;
(2) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as
to permit such material to be fairly identified;
(3) Prescribe a return date which will provide a reasonable time within which the material so demanded may be assembled and
made available for inspection and copying or reproduction; and
(4) Identify the custodian to whom such material shall be made available or the official before whom such examination shall
take place or to whom such answers shall be furnished.
(d) Any person required to submit to examination under this section shall be entitled to be represented by counsel. Any person
so required shall be entitled to procure a transcript of the testimony, provided that the Court, for good cause shown by the
Attorney General, may order that such person be limited to inspection of such transcript.
(e) No demand under this section shall contain any requirement which would be held to be unreasonable if contained in a subpoena
issued by a court of this State in aid of a grand jury investigation, or require the production of any evidence which would
be privileged from disclosure if demanded by a subpoena issued by a court of this State in aid of a grand jury investigation.
(f) Within 20 days after the service of any demand under this section, or at any time before the return date specified in
the demand, whichever period is shorter, the person served may file with the Court a motion for an order modifying or setting
aside such demand. The motion shall specify each ground upon which the person relies in seeking such relief, and may be based
upon any failure of the demand to comply with this section, or upon any constitutional right or privilege of the person.
(g) If any person fails to comply with a demand under this section, the Attorney General may file with the Court a motion
for an order, and the Court may enter an order:
(1) Requiring the person to respond to the demand;
(2) Granting such other relief as may be required to obtain compliance with the demand.
(h) If any person shall refuse to give testimony or to produce documentary material or to answer a written interrogatory in
obedience to an investigative demand on the ground that the person may thereby be incriminated, the Court, upon motion by
the Attorney General, may order such person to give testimony or to produce documentary material or to answer the written
interrogatory, or to do an applicable combination of these, after notice to the witness and a hearing. Such person so ordered
by the Court shall comply with the Court order. After complying, the testimony of such person or the matters produced, which
are obtained by virtue of said order, shall not be used against the person in any criminal prosecution nor shall any evidence
obtained derivatively from said testimony be so used, provided that, but for this section, such person would have been privileged
to withhold the answer or the evidence produced by the person. In no event, however, shall such person, acting pursuant to
such order, be exempt from prosecution or penalty or forfeiture for any perjury, false statement or contempt committed in
answering or failing to answer, or in producing or failing to produce evidence in accordance with the order, and any testimony
or evidence so given or produced shall not, by virtue of this section, be rendered inadmissible in evidence upon any criminal
action, investigation or proceeding concerning such perjury, false statement or contempt.
(i) Any transcripts of oral testimony, documentary material or answers to written interrogatories provided pursuant to a demand
under this section shall be exempt from disclosure under the Delaware Freedom of Information Act. The custodian described
in subsection (c)(4) of this section shall take physical possession of such transcripts, material and answers. Such transcripts,
material or answers, or copies thereof, shall not be disclosed by the custodian to any person other than the Attorney General
or authorized employees of the Department of Justice, and the Attorney General and authorized employees shall not make further
disclosure of such transcripts, material or answers, or copies, or of internal memoranda or work papers relating thereto.
Nothing in this section shall prevent the Attorney General from introducing said testimony, material or answers in any action
initially filed in a federal court sitting in this State, or before any court or grand jury of this State.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2107. Actions by Attorney General for violations; civil penalty; equitable relief.
The Attorney General may bring an action for any violation or threatened violation of this chapter. In any such action, the
Court may assess against each defendant a civil penalty for the benefit of the State of not less than $1,000 nor more than
$100,000 for each violation, or may award appropriate equitable relief, or may order a combination of civil penalty and equitable
relief.
62 Del. Laws, c. 89, § 1.;
§ 2108. Actions for equitable relief and damages; suits parens patriae.
(a) If the State or any public body thereof is threatened with injury or injured in its business or property by a violation
of this chapter, the Attorney General may bring an action for appropriate equitable relief, damages sustained and, as determined
by the Court, taxable costs, and reasonable fees for expert witnesses and attorneys, including the Attorney General.
(b) The Attorney General may bring suit as parens patriae on behalf of natural persons residing in this State to secure monetary
relief for such persons who are injured in their business or property by a violation of this chapter. The Court may also award
taxable costs and reasonable fees for expert witnesses and attorneys, including the Attorney General.
(c) In actions under this section, the Court may, in its discretion, award as monetary relief up to threefold the total damage
sustained, in addition to costs and fees, provided that the Court finds the acts complained of to have been wilful.
(d) Monetary relief awarded under subsection (b) of this section may be payable to the State or may be distributed in such
manner as the Court in its discretion may authorize.
(e) In any action brought under subsection (b) of this section, the 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.
(f) Any person on whose behalf an action is brought under subsection (b) of this section may elect to exclude from adjudication
the portion of the state claim for monetary relief attributable to the person by filing notice of such election with the Court
in the manner specified in the notice given pursuant to subsection (e) of this section. The final judgment in any action under
subsection (b) of this section shall be res judicata as to any claim under this chapter by any person on behalf of whom such
action was brought and who fails to give notice of exclusion in the manner specified in this subsection.
(g) In any action brought under subsection (b) of this section, the Court shall exclude from the amount of any monetary relief
awarded any amount which duplicates an award made by any court for the same injury, or which is allocable to persons excluded
under subsection (f) of this section.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2109. Judgment or decree as prima facie evidence.
In any action or proceeding brought by the Attorney General, a final judgment or decree determining that a person has violated
this chapter, other than a consent judgment or decree entered before any testimony has been taken, is prima facie evidence
against that person in any other action as to all matters with respect to which the judgment or decree would be an estoppel
between the parties thereto.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2110. Jurisdiction.
The Court of Chancery shall have exclusive jurisdiction of all actions or proceedings authorized by this chapter or relating
to its enforcement; provided, however, that in an action in which any party would otherwise have a right to trial by jury
of any issue of fact, and such party shall demand such trial, the Court shall order such issue to trial and binding determination
of such issue in the Superior Court, the action or proceeding being retained in the Court of Chancery in all other respects,
including entry of judgment.
62 Del. Laws, c. 89, § 1.;
§ 2111. Limitation of actions.
Any action to enforce this chapter shall be forever barred unless commenced within 3 years after the cause of action accrued.
For purposes of this section, a cause of action for a continuing violation is deemed to accrue at any time during the period
of such violation.
62 Del. Laws, c. 89, § 1.;
§ 2112. Security not required of State and public bodies.
Unless otherwise ordered by the Court, the State and its public bodies shall not be required to give security in any action
or proceeding under this chapter.
62 Del. Laws, c. 89, § 1.;
§ 2113. Construction of chapter.
This chapter shall be construed in harmony with ruling judicial interpretations of comparable federal antitrust statutes.
62 Del. Laws, c. 89, § 1.;
§ 2114. Short title.
This chapter shall be known and may be cited as the "Delaware Antitrust Act."
The purpose of this chapter shall be to promote the public benefits of a competitive economic environment based upon free
enterprise. It is the intent of the General Assembly to promote efficiency in business operations, an equitable return on
capital investments, an efficient allocation of goods and services and freedom of economic opportunity.
62 Del. Laws, c. 89, § 1.;
§ 2102. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
(1) "Court" means the Court of Chancery except where another court is specifically designated.
(2) "Documentary material" means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation,
chart or other document, and further includes data and other information in a form readable by a data processing machine.
(3) "Public body" means the state's public agencies, including school districts, and its political subdivisions, including
municipal and other authorities.
(4) "Trade or commerce of this State" means all economic activity carried on wholly or partially in this State, which involves
or relates to any commodity, service or business activity.
62 Del. Laws, c. 89, § 1.;
§ 2103. Restraint of trade unlawful.
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce of this State
shall be unlawful.
62 Del. Laws, c. 89, § 1.;
§ 2104. Exemptions.
(a) Nothing in this chapter shall be construed to forbid the existence or operation of labor, agricultural or horticultural
organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid
or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall
such organizations or the members thereof be held or construed to be illegal combinations or agreements in restraint of trade
under this chapter.
(b) Nothing in this chapter shall be construed to forbid any conduct or arrangement required by any statute of this State
or of the United States, nor any conduct or arrangement approved or required by a regulatory body or officer acting under
statutory authority of this State or of the United States.
(c) Without limiting the effect of the foregoing, activity of the following shall not be construed as a violation of this
chapter:
(1) Any public utility, to the extent that such activity is subject to regulation by the Public Service Commission, the State
or federal Department of Transportation, the Federal Power Commission, the Federal Communications Commission or the Interstate
Commerce Commission;
(2) Any person to the extent that such activity is subject to regulation by the Insurance Commissioner of this State or is
authorized by the Insurance Code or any other law of this State, including the making of or participating in joint underwriting
or joint reinsurance arrangements;
(3) A nonprofit corporation, trust or organization established exclusively for religious or charitable purposes, or for both
purposes, to the extent that the activity is a religious or charitable activity;
(4) A security dealer who is licensed by this State or who is a member of the National Association of Securities Dealers or
a member of a national securities exchange registered with the Securities and Exchange Commission under the Securities Exchange
Act of 1934 [15 U.S.C. § 78a et seq.], in the course of the business of offering, selling, buying and selling, or otherwise
trading in or underwriting, securities as an agent, broker or principal, or the activity of a registered national securities
exchange, including the establishment of commission rates and schedules of charges, to the extent that such activity is subject
to regulation under the laws of this State or the United States; or
(5) Any state or national banking association or savings and loan association, or any other lending institution, to the extent
that such activity is regulated or supervised by the banking laws or savings and loan laws of this State or the United States.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2105. General power of Attorney General.
The Attorney General shall have full power and authority on behalf of the State and its public bodies to investigate suspected
violations of this chapter or of federal antitrust laws, and may institute such proceedings as are provided for violations
thereof.
62 Del. Laws, c. 89, § 1.;
§ 2106. Investigative demand by Attorney General.
(a) Whenever the Attorney General has reason to believe that any person may have knowledge, or be in possession, custody or
control of any documentary material, pertinent to a possible violation of this chapter, the Attorney General may issue in
writing and cause to be served upon the person an investigative demand that may:
(1) Compel the attendance of such person and require that person to submit to examination and give testimony under oath;
(2) Require the production of documentary material pertinent to the investigation; and
(3) Require answers to written interrogatories to be furnished under oath.
(b) Service of any demand under this section may be made by mailing such demand to the last known place of business, residence
or abode within or without this State of the person to whom such demand is directed; service may also be made upon any person
other than a natural person, in the manner provided in § 321 or §§ 371-385 of Title 8 and in the manner provided in the Rules
of the Court of Chancery.
(c) Each demand under this section shall be in writing and shall:
(1) State the nature of the conduct constituting the alleged violation of this chapter which is under investigation and the
provision of law applicable thereto;
(2) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as
to permit such material to be fairly identified;
(3) Prescribe a return date which will provide a reasonable time within which the material so demanded may be assembled and
made available for inspection and copying or reproduction; and
(4) Identify the custodian to whom such material shall be made available or the official before whom such examination shall
take place or to whom such answers shall be furnished.
(d) Any person required to submit to examination under this section shall be entitled to be represented by counsel. Any person
so required shall be entitled to procure a transcript of the testimony, provided that the Court, for good cause shown by the
Attorney General, may order that such person be limited to inspection of such transcript.
(e) No demand under this section shall contain any requirement which would be held to be unreasonable if contained in a subpoena
issued by a court of this State in aid of a grand jury investigation, or require the production of any evidence which would
be privileged from disclosure if demanded by a subpoena issued by a court of this State in aid of a grand jury investigation.
(f) Within 20 days after the service of any demand under this section, or at any time before the return date specified in
the demand, whichever period is shorter, the person served may file with the Court a motion for an order modifying or setting
aside such demand. The motion shall specify each ground upon which the person relies in seeking such relief, and may be based
upon any failure of the demand to comply with this section, or upon any constitutional right or privilege of the person.
(g) If any person fails to comply with a demand under this section, the Attorney General may file with the Court a motion
for an order, and the Court may enter an order:
(1) Requiring the person to respond to the demand;
(2) Granting such other relief as may be required to obtain compliance with the demand.
(h) If any person shall refuse to give testimony or to produce documentary material or to answer a written interrogatory in
obedience to an investigative demand on the ground that the person may thereby be incriminated, the Court, upon motion by
the Attorney General, may order such person to give testimony or to produce documentary material or to answer the written
interrogatory, or to do an applicable combination of these, after notice to the witness and a hearing. Such person so ordered
by the Court shall comply with the Court order. After complying, the testimony of such person or the matters produced, which
are obtained by virtue of said order, shall not be used against the person in any criminal prosecution nor shall any evidence
obtained derivatively from said testimony be so used, provided that, but for this section, such person would have been privileged
to withhold the answer or the evidence produced by the person. In no event, however, shall such person, acting pursuant to
such order, be exempt from prosecution or penalty or forfeiture for any perjury, false statement or contempt committed in
answering or failing to answer, or in producing or failing to produce evidence in accordance with the order, and any testimony
or evidence so given or produced shall not, by virtue of this section, be rendered inadmissible in evidence upon any criminal
action, investigation or proceeding concerning such perjury, false statement or contempt.
(i) Any transcripts of oral testimony, documentary material or answers to written interrogatories provided pursuant to a demand
under this section shall be exempt from disclosure under the Delaware Freedom of Information Act. The custodian described
in subsection (c)(4) of this section shall take physical possession of such transcripts, material and answers. Such transcripts,
material or answers, or copies thereof, shall not be disclosed by the custodian to any person other than the Attorney General
or authorized employees of the Department of Justice, and the Attorney General and authorized employees shall not make further
disclosure of such transcripts, material or answers, or copies, or of internal memoranda or work papers relating thereto.
Nothing in this section shall prevent the Attorney General from introducing said testimony, material or answers in any action
initially filed in a federal court sitting in this State, or before any court or grand jury of this State.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2107. Actions by Attorney General for violations; civil penalty; equitable relief.
The Attorney General may bring an action for any violation or threatened violation of this chapter. In any such action, the
Court may assess against each defendant a civil penalty for the benefit of the State of not less than $1,000 nor more than
$100,000 for each violation, or may award appropriate equitable relief, or may order a combination of civil penalty and equitable
relief.
62 Del. Laws, c. 89, § 1.;
§ 2108. Actions for equitable relief and damages; suits parens patriae.
(a) If the State or any public body thereof is threatened with injury or injured in its business or property by a violation
of this chapter, the Attorney General may bring an action for appropriate equitable relief, damages sustained and, as determined
by the Court, taxable costs, and reasonable fees for expert witnesses and attorneys, including the Attorney General.
(b) The Attorney General may bring suit as parens patriae on behalf of natural persons residing in this State to secure monetary
relief for such persons who are injured in their business or property by a violation of this chapter. The Court may also award
taxable costs and reasonable fees for expert witnesses and attorneys, including the Attorney General.
(c) In actions under this section, the Court may, in its discretion, award as monetary relief up to threefold the total damage
sustained, in addition to costs and fees, provided that the Court finds the acts complained of to have been wilful.
(d) Monetary relief awarded under subsection (b) of this section may be payable to the State or may be distributed in such
manner as the Court in its discretion may authorize.
(e) In any action brought under subsection (b) of this section, the 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.
(f) Any person on whose behalf an action is brought under subsection (b) of this section may elect to exclude from adjudication
the portion of the state claim for monetary relief attributable to the person by filing notice of such election with the Court
in the manner specified in the notice given pursuant to subsection (e) of this section. The final judgment in any action under
subsection (b) of this section shall be res judicata as to any claim under this chapter by any person on behalf of whom such
action was brought and who fails to give notice of exclusion in the manner specified in this subsection.
(g) In any action brought under subsection (b) of this section, the Court shall exclude from the amount of any monetary relief
awarded any amount which duplicates an award made by any court for the same injury, or which is allocable to persons excluded
under subsection (f) of this section.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2109. Judgment or decree as prima facie evidence.
In any action or proceeding brought by the Attorney General, a final judgment or decree determining that a person has violated
this chapter, other than a consent judgment or decree entered before any testimony has been taken, is prima facie evidence
against that person in any other action as to all matters with respect to which the judgment or decree would be an estoppel
between the parties thereto.
62 Del. Laws, c. 89, § 1; 70 Del. Laws, c. 186, § 1.;
§ 2110. Jurisdiction.
The Court of Chancery shall have exclusive jurisdiction of all actions or proceedings authorized by this chapter or relating
to its enforcement; provided, however, that in an action in which any party would otherwise have a right to trial by jury
of any issue of fact, and such party shall demand such trial, the Court shall order such issue to trial and binding determination
of such issue in the Superior Court, the action or proceeding being retained in the Court of Chancery in all other respects,
including entry of judgment.
62 Del. Laws, c. 89, § 1.;
§ 2111. Limitation of actions.
Any action to enforce this chapter shall be forever barred unless commenced within 3 years after the cause of action accrued.
For purposes of this section, a cause of action for a continuing violation is deemed to accrue at any time during the period
of such violation.
62 Del. Laws, c. 89, § 1.;
§ 2112. Security not required of State and public bodies.
Unless otherwise ordered by the Court, the State and its public bodies shall not be required to give security in any action
or proceeding under this chapter.
62 Del. Laws, c. 89, § 1.;
§ 2113. Construction of chapter.
This chapter shall be construed in harmony with ruling judicial interpretations of comparable federal antitrust statutes.
62 Del. Laws, c. 89, § 1.;
§ 2114. Short title.
This chapter shall be known and may be cited as the "Delaware Antitrust Act."