Current through 2024-38, September 18, 2024
7.1
Enforcement. The department or the Attorney General is authorized to
impose one or more of the following enforcement actions or any other actions
authorized by law.
7.2
Enforcement of Final Department Action. The Attorney General may file an
action in Superior Court to enforce any final action taken by the department
regarding COPA application proceedings, or as a result of additional
supervisory proceedings. See
22 M.R.S.A.
Sections1844(7) and
1845(5).
7.3
Investigative Powers. The
Attorney General, at any time after an application or letter of intent is
filed, may require by subpoena the attendance and testimony of witnesses and
the production of documents in Kennebec County, or the county in which the
applicants are located, for the purpose of investigating whether the
cooperative agreement satisfies the standards set forth in these rules.
7.3.1 All documents produced and testimony
given to the Attorney General are confidential.
7.3.2 The Attorney General may seek an order
from the Superior Court compelling compliance with a subpoena issued under
Section 7.3 of these rules. See
22 M.R.S.A.
§1848(1).
7.4
Enjoin Operation of
Cooperative Agreement. The Attorney General may seek to enjoin the
operation of a cooperative agreement for which an application for a certificate
has been filed by filing suit against the parties to the cooperative agreement
in Superior Court.
7.4.1
Filing Court
Action. The Attorney General may file an action before or after the
department acts on the application for a certificate; however, the action must
be brought no later than 40 days following the date the department approved the
application for a certificate.
7.4.2
Time Periods Tolled.
After the filing of a court action, the time periods specified for
departmental action pursuant to Sections
3 and
5 of these rules are tolled until the
court action is dismissed by the Attorney General or the Superior Court orders
the department to take further action. See
22 M.R.S.A.
§1848(2).
7.4.3
Automatic Stay of Issued
Certificate. Upon the filing of a complaint under Section 7.4 of these
rules, the department's approval of a certificate, if previously issued, must
be stayed unless the court orders otherwise or until the action is concluded.
The Attorney General may apply to the court for any temporary or preliminary
relief to enjoin the implementation of the cooperative agreement pending final
disposition of the case.
7.4.3.1 COPA
applicants may apply to the Superior Court for relief from the stay.
7.4.3.2 Relief may be granted only upon a
showing of compelling justification. See
22 M.R.S.A.
§1848(3).
7.4.4
Burden of Proof:
Benefits Outweigh Disadvantages. In an action brought under Section 7.4
of these rules, the applicants for a certificate bear the burden of
establishing by a preponderance of the evidence that in accordance with Section
4 of these rules the likely benefits
resulting from the cooperative agreement and any conditions proposed by the
applicants outweigh any disadvantages attributable to a reduction in
competition that may result from the cooperative agreement.
7.4.4.1 In assessing disadvantages
attributable to a reduction in competition likely to result from the
cooperative agreement, the court may draw upon the determinations of federal
and Maine courts concerning unreasonable restraint of trade under
15 United
States Code, Sections 1 and
2,
and
10
Maine Revised Statutes, Sections 1101 and 1102. See
22 M.R.S.A.
§1848(4).
7.5
Enforcement
of Certificate: No Merger. If the certificate holders in a cooperative
agreement not involving a merger are not in substantial compliance (1) with the
conditions included in the certificate, or (2) with a consent decree, or (3)
with the conditions or measures added pursuant to additional supervisory
activities, the Attorney General may seek an order from the Superior Court
compelling compliance with such conditions or measures or other appropriate
equitable remedies.
7.5.1
Additional
Equitable Remedies. If the Superior Court grants relief and that relief
is not effective in securing compliance with the conditions or measures, the
Superior Court may impose additional equitable remedies, including:
7.5.1.1 The exercise of civil contempt
powers; or
7.5.1.2 Revocation of
the certificate upon a determination that advantages to be gained by revoking
the certificate outweigh the unavoidable costs resulting from a revocation of
the certificate. See
22 M.R.S.A.
§1848(6)(A).
7.5.2
Burden of Proof.
In an action brought under Section 7.5 of these rules, the Attorney
General has the burden of proving by a preponderance of the evidence the basis
for any equitable remedies requested by the Attorney General and adopted by the
Superior Court. See
22 M.R.S.A.
§1848(6)(C).
7.6
Enforcement of
Certificate: Merger. If the certificate holders in a cooperative
agreement involving a merger are not in substantial compliance (1) with the
conditions included in the certificate, or (2) with a consent decree, or (3)
with the conditions or measures added pursuant to additional supervisory
activities, the Attorney General may seek an order from the Superior Court
compelling compliance with such conditions or measures.
7.6.1
Additional Equitable Remedies.
If the certificate holders to the merger fail to comply with any court
order compelling compliance with the conditions or measures, the Superior Court
may impose additional equitable remedies to secure compliance with its orders,
including:
7.6.1.1 The exercise of civil
contempt powers; or
7.6.1.2
Appointment of a receiver. See
22 M.R.S.A.
§1848(6)(B).
7.6.2
Divestiture of
Assets. If the additional judicial measures in Section 7.6.1 of these
rules are not effective in securing compliance with the conditions or measures
and the Superior Court determines that the advantages to be gained by
divestiture outweigh the unavoidable costs of requiring divestiture, the
Superior Court may revoke the certificate and order divestiture of assets. See
22 M.R.S.A.
§1848(6)(B).
7.6.3
Burden of Proof. In an
action brought under Section 7.6 of these rules, the Attorney General has the
burden of proving by a preponderance of the evidence the basis for any
equitable remedies requested by the Attorney General and adopted by the
Superior Court. See
22 M.R.S.A.
§1848(6)(C).
7.7
Revocation of the
Certificate
7.7.1
Revocation by
Department. The department is authorized to seek a court order revoking
a certificate under circumstances specified in Sections 6.7.1 and 6.7.2 of
these rules regarding additional supervisory activities.
7.7.1.1 The standards for adjudication to be
applied by the court are the same as in Sections 7.4.4, 7.5.2, and 7.6.3 of
these rules: that is, the department has burden of proof by a preponderance of
the evidence, except pursuant to Section 7.7.2.1.2.
7.7.1.2 In assessing disadvantages
attributable to a reduction in competition likely to result from the
cooperative agreement, the court may draw upon the determinations of federal
and Maine courts concerning unreasonable restraint of trade under
15 United
States Code, Sections 1 and
2,
and
10
Maine Revised Statutes, Sections 1101 and 1102.S ee
22 M.R.S.A.
§1845(4).
7.7.2
Revocation by
Attorney General.If, at any time after the 40-day period specified in
Section 7.4.1 of these rules, the Attorney General determines that, as a result
of changed circumstances or unanticipated circumstances (Section 1.15), the
benefits resulting from a certified cooperative agreement or a consent decree
entered under Section 7.9 of these rules, do not outweigh any disadvantages
attributable to a reduction in competition resulting from the cooperative
agreement, the Attorney General may file suit in the Superior Court seeking to
revoke the certificate of public advantage. See
22 M.R.S.A.
§1848(5).
7.7.2.1 The standard for adjudication for an
action under this section of the rules is as follows.
7.7.2.1.1 Except as provided in Section
7.7.2.1.2 of these rules, the Attorney General has the burden of establishing
by a preponderance of the evidence that, as a result of changed circumstances
or unanticipated circumstances, the benefits resulting from the cooperative
agreement and the unavoidable costs of revoking the certificate are outweighed
by disadvantages attributable to a reduction in competition resulting from the
cooperative agreement. See
22 M.R.S.A.
§1848(5)(A).
7.7.2.1.2 If the Attorney General first
establishes by a preponderance of the evidence that the certificate was
obtained as a result of material misrepresentation to the department or the
Attorney General or as the result of coercion, threats or intimidation toward
any party to the cooperative agreement, then the parties to the agreement bear
the burden of establishing by clear and convincing evidence that the benefits
resulting from the agreement and the unavoidable costs of revoking the
agreement outweigh the disadvantages attributable to any reduction in
competition resulting from the cooperative agreement. See
22 M.R.S.A.
§1848(5)(B).
7.8
Department Proceedings Stayed: No Further Department Action. After the
Attorney General files a court action in accordance with these rules, the
department may not take any further action under these rules until the court
action is dismissed by the Attorney General or the Superior Court orders the
department to take further action. See
22 M.R.S.A.
Sections1844(7),
1845(5),
and
1848(2),(7).
7.9
Resolution by Consent
Decree. The Superior Court may resolve any action brought by the
Attorney General under these rules by entering an order with the consent of the
parties.
7.9.1 The consent decree may contain
any conditions authorized by Section
4, or conditions or measures
authorized by Section
6 of these rules.
7.9.2 The consent decree may not be filed
with the Superior Court until 30 days after the filing of the application for a
certificate in accordance with Section 3.3 of these rules.
7.9.3 Upon entry of the consent decree order
by the court, the parties to the cooperative agreement have the lawful conduct
protection specified in Section 2.5 of these rules and the cooperative
agreement has the effectiveness of a lawful agreement. See
22 M.R.S.A.
§1848(9).
7.10
Reasonable Attorney
Fees and Costs: Attorney General Prevails. If the Attorney General
prevails in an action taken pursuant to Sections 7.3.2 (subpoena compliance),
7.4 (enjoin operation of cooperative agreement), 7.5, 7.6 (enforcement of
certificate), 7.7.2 (revocation of certificate), or 7.9 (consent decree) of
these rules, the Attorney General and the department are entitled to an award
of the reasonable costs of deposition transcripts incurred in the course of the
investigation or litigation and reasonable attorney's fees, expert witness fees
and court costs incurred in litigation. See
22 M.R.S.A.
§1848(8).
7.11
Reasonable Attorney Fees and
Costs: Department Prevails. If the department prevails in an action
taken pursuant to Section
6 (continuing supervision), or 7.7.1
(revocation of certificate) of these rules, the department and the Attorney
General are entitled to an award of the reasonable costs of deposition
transcripts incurred in the course of the action and reasonable attorney's
fees, expert witness fees and court costs incurred in the action. See
22 M.R.S.A.
§1845(6).
