The Colorado State Antitrust Act of 2023: Key Provisions and Implications

• Jurisdiction: Colorado,United States
• Pages: 30
• Citation: Vol. 52 No. 9 Pg. 30
• Publication year: 2023

The Colorado State Antitrust Act of 2023: Key Provisions and Implications Vol. 52, No. 9 [Page 30] Colorado Lawyer November 2023

ANTITRUST AND CONSUMER PROTECTION LAW

The Colorado State Antitrust Act of 2023

Key Provisions and Implications

BY MATT SCHOCK

This article explains key provisions of the Colorado State Antitrust Act of2023, highlights changes from the previous law, and discusses some practical implications of the new law.

On June 7, 2023, Governor Jared Polis signed into law the Colorado State Antitrust Act of 2023 (2023 Antitrust Act), marking one of the most significant updates to Colorado antitrust law since the state revamped its competition statute more than 30 years ago.

The new law creates additional legal claims, expands the Colorado attorney general's enforcement authority, increases criminal and civil penalties, and gives courts additional discretion to fashion remedies. Each of these changes could usher in substantial shifts in Colorado state antitrust enforcement, both private and public. This article highlights those potential shifts and offers some key takeaways for those operating within Colorado's evolving competitive landscape.

Changes to the Colorado Antitrust Act The 2023 Antitrust Act repeals and reenacts its predecessor statute, the Colorado Antitrust Act of 1992 (1992 Antitrust Act), and makes six significant updates, all of which expand the scope of Colorado antitrust law.

Aiding and Abetting Liability

It is now "unlawful to facilitate or aid and abet another person in violating" the 2023 Antitrust Act, and each instance of facilitation or aiding and abetting is an independent violation.^[1]

The new aiding and abetting provision enlarges the scope of liability for concerted conduct in Colorado. Under the 1992 Antitrust Act, concerted conduct liability was limited to those who participated in contracts, combinations, or conspiracies that restrained trade—that is, the parties to anticompetitive agreements. Now the law may reach nonparties that assist in creating or maintaining those agreements, whether by facilitating competitor communications, punishing cartel deviations, cutting off crucial commercial channels, or engaging in other conduct commonly thought to restrain trade. These nonparties could include advisory firms, investors, research analysts, or, in some cases, market participants at different supply-chain levels (e.g., suppliers to conspiring distributors, distributors to conspiring retailers, etc.).

The 2023 Antitrust Act does not prescribe legal standards for aiding and abetting, but existing Colorado law may point the way. In civil cases, Colorado recognizes liability for aiding and abetting a tortious act when "the party whom the defendant aids performs a wrongful act that causes an injury, the defendant is generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance, and the defendant knowingly and substantially assists the principal violation."^[2]For criminal offenses, Colorado makes an accomplice liable as a principal "if, with the intent to promote or facilitate the commission of the offense," the accomplice "aids, abets, advises, or encourages the other person in planning or committing the offense."^[3] Notably, neither of Colorado's aiding and abetting standards requires the actor to be a member of, party to, or direct participant in a concerted activity or in other activity that forms the basis of the violation; assisting is enough.

Expanded Attorney General Investigative Authority

The 2023 Antitrust Act also expands the Colorado attorney general's investigative authority by permitting the attorney general to request information from "any person" who may have information relating to potential antitrust violation.^[4]...