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2023 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 59.1-9.3, 59.1-9.7, and 59.1-9.11 through 59.1-9.15 of the Code of Virginia are amended and reenacted as follows:
§ 59.1-9.3. Definitions.
When used in this chapter, unless the context requires a different meaning:
(a) The term "person" "Commodity"
includes any kind of real or personal property.
"Person" includes, unless the context
otherwise requires, any natural person,; any trust or
association of persons, formal or otherwise,; or any corporation,
partnership, company, or other legal or commercial entity.
(b) The terms "trade "Service"
includes any activity that is performed in whole or in part for the purpose of
financial gain, including personal service, rental, leasing, or licensing for
use.
"Trade or commerce," "trade,"
and or "commerce," include includes
all economic activity involving or relating to any commodity, service,
or business activity.
(c) The term "commodity" includes any kind of
real or personal property.
(d) The term "service" includes any activity that
is performed in whole or in part for the purpose of financial gain, including
but not limited to personal service, rental, leasing or licensing for use.
§ 59.1-9.7. Discriminatory practices unlawful; proof; payment or acceptance of certain commissions, etc., unlawful.
(a) A. It is unlawful for any person engaged in
commerce, in the course of such commerce, either directly or indirectly, to
discriminate in price between different purchasers of commodities or services
of like grade and quality, where either or any of the purchasers involved in
such commerce are in competition, where such commodities or services are sold
for use, consumption or resale within the Commonwealth and where the effect of
such discrimination may be substantially to lessen competition or tend to
create a monopoly in any line of commerce, or to injure, destroy or prevent
competition with any person who either grants or knowingly receives the benefit
of such discrimination, or with customers of either of them; provided, that
nothing herein contained shall prevent differentials which make only due
allowance for differences in the cost of manufacture, sale or delivery
resulting from the different methods or quantities in which such commodities or
services are to such purchasers sold or delivered; and provided further, that
nothing herein contained shall prevent persons engaged in selling commodities
or services in commerce from selecting their own customers in bona fide
transactions and not in restraint of trade; and provided further, that nothing
herein contained shall prevent price changes from time to time where in
response to changing conditions affecting the market for or the marketability
of the goods concerned, such as, but not limited to, actual or imminent
deterioration of perishable goods, obsolescence of seasonal goods, distress
sales under court process, or sales in good faith in discontinuance of business
in the goods concerned.
(b) B. Upon proof being made, at any suit on a
complaint under this section, that there has been discrimination in price or
services or facilities furnished or in payment for services or facilities to be
rendered, the burden of rebutting the prima facie case thus made by showing justification
shall be upon the person charged with a violation of this section; provided,
however, that nothing herein contained shall prevent a seller rebutting the
prima facie case thus made by showing that his lower price or the furnishing of
services or facilities to any purchaser or purchasers was made in good faith to
meet an equally low price of a competitor, or the services or facilities
furnished by a competitor.
(c) C. It is unlawful for any person engaged in
commerce, in the course of such commerce, to pay or grant, or to receive or
accept, anything of value as a commission, brokerage, or other compensation, or
any allowance or discount in lieu thereof, except for and not exceeding the
actual cost of such services rendered in connection with the sale or purchase
of goods, wares or merchandise.
(d) D. It is unlawful for any person engaged in
commerce to pay or contract for the payment of anything of value to or for the
benefit of a customer of such person in the course of such commerce as
compensation or in consideration for any services or facilities furnished by or
through such customer in connection with the processing, handling, sale or
offering for sale of any products, commodities or services manufactured, sold
or offered for sale by such person, unless such payment or consideration is
available on proportionally equal terms to all other customers competing in the
distribution of such products, commodities or services.
(e) E. It is unlawful for any person to
discriminate in favor of one purchaser against another purchaser or purchasers
of a commodity bought for resale with or without processing, by contracting to
furnish or furnishing, or by contributing to the furnishing of, any services or
facilities connected with the processing, handling, sale or offering for sale
of such commodity so purchased upon terms not accorded to all purchasers on
proportionally equal terms.
(f) F. It is unlawful for any person engaged in
commerce, in the course of such commerce, knowingly to induce or receive a
discrimination in price that is prohibited by this section.
§ 59.1-9.11. Penalty for flagrant violations.
In any action or proceeding brought under subsection A of
§ 59.1-9.15 (a) the court may assess for the benefit of the Commonwealth
a civil penalty of not more than $100,000 for each willful or flagrant
violation of this chapter. No civil penalty shall be imposed in connection with
any violation for which any fine or penalty is imposed pursuant to federal law.
§ 59.1-9.12. Personal suit for injunction or actual damages.
(a) A. Any person threatened with injury or
damage to his business or property by reason of a violation of this chapter may
institute an action or proceeding for injunctive relief, disgorgement, and
other forms of equitable monetary relief as the court deems appropriate
when and under the same conditions and principles as injunctive relief is
granted in other cases.
(b) B. Any person injured in his business or
property by reason of a violation of this chapter may recover the actual
damages sustained, and, as determined by the court, the costs of suit and
reasonable attorney's attorney fees. If the trier of facts finds
that the violation is willful or flagrant, it may increase damages to an amount
not in excess of three times the actual damages sustained.
§ 59.1-9.13. Effect of conviction in other proceedings.
A final judgment or decree to the effect that a defendant has
violated this chapter, other than a consent judgment or decree entered before
any testimony has been taken, in an action or proceeding brought under
subsection A of § 59.1-9.15 (a) is prima facie evidence against that
defendant in any other action or proceeding against him brought under §
59.1-9.12 or subsection B of § 59.1-9.15 (b) as to all matters
with respect to which the judgment or decree would be an estoppel between the
parties thereto.
§ 59.1-9.14. Limitation of actions.
(a) A. An action under subsection A of §
59.1-9.15 (a) to recover a civil penalty is barred if it is not
commenced within four years after the cause of action accrues.
(b) B. An action under subsection B of §
59.1-9.12 (b) or subsection B of § 59.1-9.15 (b) to
recover damages is barred if it is not commenced within four years after the
cause of action accrues, or within one year after the conclusion of any action
or proceeding under subsection A of § 59.1-9.15 (a) commenced
within or before that time based in whole or in part on any matter complained
of in the action for damages, whichever is later.
§ 59.1-9.15. Actions on behalf of Commonwealth or localities; injunctive and other equitable relief; damages.
(a) A. The Attorney General on behalf of the
Commonwealth, or the attorney for the Commonwealth or county attorney on behalf
of a county, or the city attorney on behalf of a city, or the town attorney on
behalf of a town may institute actions and proceedings for injunctive relief,
disgorgement, and other forms of equitable monetary relief as the court deems
appropriate, and civil penalties for violations of this chapter. In any
such action or proceeding in which the plaintiff substantially prevails, the
court may award the cost of suit, including a reasonable attorney's
fee attorney fees, to such plaintiff.
(b) B. The Commonwealth, a political subdivision
thereof, or any public agency injured in its business or property by reason of
a violation of this chapter, may recover the actual damages sustained,
reasonable attorney's attorney fees and the costs of suit. If the
trier of facts finds that the violation is willful or flagrant, it may increase
damages to an amount not in excess of three times the actual damages sustained.
(c) C. The Attorney General in acting under
subsection (a) or (b) of this section may also bring such action on behalf of
any political subdivision of the Commonwealth, provided that the Attorney
General shall notify each such subdivision of the pendency of the action and
give such subdivision the option of exclusion from the action.
(d) D. The Attorney General may bring a civil
action to recover damages and secure other relief as provided by this chapter
as parens patriae respecting injury to the general economy of the Commonwealth.