Colorado § 6-4-104 - Illegal restraint of trade or commerce.

§ 6-4-104. Illegal restraint of trade or commerce.

(1) Entering into or engaging in any of the following in restraint of trade or commerce is illegal:

(a) A contract;

(b) A combination in the form of a trust or other form of combination; or

(c) A conspiracy.

Source: L. 2023: Entire article R&RE, (HB 23-1192), ch. 427, p. 2511, § 2, effective June 7.

Editor's note: This section is similar to former § 6-4-104 as it existed prior to 2023.

ANNOTATION

Law reviews. For article, "Antitrust and the Lay Lawyer", see 44 Den. L.J. 558 (1967). For comment, "Colorado Antitrust Law: Untied and Drifting", see 48 U. Colo. L. Rev. 215 (1977). For article, "Antitrust Enforcement in Colorado: New Directions, New Concerns", see 6 Colo. Law 1 (1977). For article, "May Regulated Utilities Monopolize the Sun?", see 56 Den. L.J. 31 (1979). For comment, "Antitrust Law in Colorado: Back on Track", see 60 Den. L.J. 645 (1983). For article, "Antitrust Law", which discusses Tenth Circuit decisions dealing with antitrust law, see 61 Den. L.J. 135 (1984). For article, "Colorado Antitrust Law Seven Years Later", see 13 Colo. Law. 1808 (1984). For article, "Antitrust Law", which discusses Tenth Circuit decisions dealing with antitrust law, see 62 Den. U. L. Rev. 25 (1985). For article, "Franchise Regulation", see 15 Colo. Law. 395 (1986). For article, "Does a Monopolist Have a Duty to Deal With Its Rivals? Some Thoughts On the Aspen Skiing Case", see 57 U. Colo. L. Rev. 727 (1986). For article, "Antitrust Law", which discusses Tenth Circuit decisions dealing with antitrust law, see 62 Den. U.L. Rev. 183 (1986). For article, "Antitrust Law", which discusses Tenth Circuit decisions dealing with antitrust law, see 64 Den. U.L. Rev. 131 (1987). For article, "United States Supreme Court Review of Tenth Circuit Decisions", which discusses the Aspen Skiing Co. case, see 64 Den. U.L. Rev. 373 (1987). For article, "Antitrust Law", which discusses Tenth Circuit decisions dealing with antitrust law, see 65 Den. U. L. Rev. 389 (1988). For note, "Developments in Antitrust Law", see 66 Den. U. L. Rev. 659 (1989). For a discussion of a Tenth Circuit decision dealing with antitrust law, see 66 Den. U. L. Rev. 813 (1989). For article, "Antitrust in the Health Care Field — Subject Matter Jurisdiction", see 18 Colo. Law. 1113 (1989). For discussions of Tenth Circuit decisions dealing with questions of antitrust law, see 67 Den. U. L. Rev. 619 (1990). For article, "Anti-trust Developments: U.S. Supreme Court Cases — 1989-1990 Term", see 20 Colo. Law. 1 (1991).

Annotator's note. Since § 6-4-104 is similar to § 6-4-104 as it existed prior to the 2023 repeal and reenactment of this article and to laws antecedent to that section, relevant cases construing those provisions have been included in the annotations to this section.

Purpose of state antitrust legislation. State antitrust legislation serves the important function of protecting the public against illegal trade restraints beyond the reach of federal law, without undercutting the legitimate rights of employees to engage in lawful, concerted activities for the purpose of improving their wages, hours and other conditions of employment. People v. North Ave. Furn. & Appliance, Inc., 645 P.2d 1291 (Colo. 1982).

Antitrust statute, as does its federal counterpart, reaches only those contracts or combinations in restraint of trade which unreasonably restrain trade or are designed to destroy competition in a particular market. People v. Colo. Springs Bd. of Realtors, 692 P.2d 1055 (Colo. 1984).

Illegal restraint of trade act applicable to title insurance. The state's illegal restraint of trade act is applicable to the business of title insurance. Commander Leasing Co. v. Transamerica Title Ins. Co., 477 F.2d 77 (10th Cir. 1973).

A coroner may not conspire with a private funeral home to acquire business for the funeral home through the discharge of his public duties in restraint of trade among all private funeral homes. People ex rel. Kinsey v. Sumner, 34 Colo. App. 61, 525 P.2d 512 (1974).

What establishes restraint of trade. Plaintiffs have a remedy under the Colorado restraint of trade act only to the extent that they can establish that there was a combination or conspiracy in restraint of trade or commerce in Colorado, or a combination or conspiracy fixing prices, or a combination and conspiracy which monopolized or attempted to monopolize trade or commerce in Colorado. Q-T Mkts., Inc. v. Fleming Cos., 394 F. Supp. 1102 (D. Colo. 1975).

Federal antitrust laws. Federal and state antitrust statutes serve complementary purposes. In view of their common goals of preserving free competition and protecting the public against illegal restraints of trade, the antitrust decisions of the United States supreme court are entitled to careful consideration in determining the meaning and scope of the Colorado antitrust statute. People v. North Ave. Furn. & Appliance, Inc., 645 P.2d 1291 (Colo. 1982).

Economic power means that a single seller possesses the ability to raise prices and restrict output for the product in the relevant market. Economic power can be established by showing that the tying product is unavailable elsewhere or is particularly unique and desirable or that the defendant has a dominant position in the tying market. Factual uniqueness alone is insufficient. The markets in which products are sold is the focus of any inquiry into the validity of a tying arrangement. The impact on competition of a single forced sale of a tied product to a single customer is never sufficient to warrant a finding of market power over the tying product. McCormick v. Bradley, 870 P.2d 599 (Colo. App. 1993).

No claim presented under this section where discharged employee was not injured "by reason of" alleged anticompetitive effect of employer's conduct. Winther v. DEC Inter'l Inc., 625 F. Supp. 100 (D. Colo. 1985).

Three types of restraint of trade. The two sentences in this section appear to define three different types of illegal restraints of trade. Q-T Mkts., Inc. v. Fleming Cos., 394 F. Supp. 1102 (D. Colo. 1975).

Monopolization limited to conspiracy, etc. Given the grammar of this section, it must be concluded that monopolization or attempted monopolization is limited to a combination, conspiracy, trust, or pool because it is inconceivable that a contract or agreement could, in itself, monopolize or attempt to monopolize trade or commerce. Q-T Mkts., Inc. v. Fleming Cos., 394 F. Supp. 1102 (D. Colo. 1975).

Group boycott. The term "group boycott" refers to a concerted refusal by traders to deal with competitors. Under the circumstances, the state failed to establish that requirement of board of realtors membership for access to multiple listing service was group boycott or refusal to deal with competitors which constituted per se violation of antitrust statute. People v. Colo. Springs Bd. of Realtors, 692 P.2d 1055 (Colo. 1984).

An illegal tying contract is irrelevant to this section because such contracts are not prohibited by it. Q-T Mkts., Inc. v. Fleming Cos., 394 F. Supp. 1102 (D. Colo. 1975).

Tying arrangement. The essential characteristic of any tying arrangement is an agreement to sell one product but only on the condition that the buyer also purchase a different (or tied) product. Tying arrangements constitute unreasonable restraints of trade in and of themselves per se whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a not insubstantial amount of interstate commerce is affected, but mere fact that goods or services are sold in combination does not establish prohibited tying arrangement. People v. Colo. Springs Bd. of Realtors, 692 P.2d 1055 (Colo. 1984).

Test applied in McCormick v. Bradley, 870 P.2d 599 (Colo. App. 1993).

Determination of violation. Any particular business agreement, combination, or arrangement may in some circumstances be determined to constitute a per se violation of the statute, without the necessity of proving actual anti-competitive impact on the particular market involved. Additionally, a business arrangement which does not per se violate antitrust law nevertheless may be found to constitute an illegal arrangement under the rule of reason analysis articulated by the United States supreme court. Thus, in determining whether particular conduct violates this section, a trial court must normally determine whether the challenged arrangement is illegal per se. If no per se violation is established, the court may be required to apply the rule of reason analysis to the challenged conduct. People v. Colo. Springs Bd. of Realtors, 692 P.2d 1055 (Colo. 1984).

Test applied in McCormick v. Bradley, 870 P.2d 599 (Colo. App. 1993).

Where violation of statute consisted of the adoption of two specific membership criteria, and neither criteria were applied to deny membership to any applicant, nor were any damages sustained by any party as the result of the violator's adoption of such criteria, the appropriate sanction is to prohibit the violator from enforcing the offensive membership criteria. Colo. Springs Bd. of Realtors v. State, 780 P.2d 494 (Colo. 1989).

Per se antitrust violation. Developer's requirement that only approved builders may construct homes on lots is not a per se antitrust violation where unapproved builder failed to establish a substantial amount of commerce within the tied market had been foreclosed. McCormick v. Bradley, 870 P.2d 599 (Colo. App. 1993).

Rule of reason required the trial court to weigh the pro-competitive and anti-competitive effects of the two membership criteria. Colo. Springs Bd. of Realtors v. State, 780 P.2d 494 (Colo. 1989); McCormick v. Bradley, 870 P.2d 599 (Colo. App. 1993).

Test applied in McCormick v. Bradley, 870 P.2d 599 (Colo. App. 1993).

In terms of evidentiary production, no bright line is available to distinguish per se from rule of reason analysis. Colo. Springs Bd. of Realtors v. State, 780 P.2d 494 (Colo. 1989).

Where court applied rule of reason analysis to facts of case and concluded that anti-competitive effects of certain criteria outweighed any pro-competitive results their adoption might have engendered, in adopting these two membership criteria the violator improperly refused to deal with competitors and that such group boycott violated this section. Colo. Springs Bd. of Realtors v. State, 780 P.2d 494 (Colo. 1989).

Criminal statutes must be construed strictly. Q-T Mkts., Inc. v. Fleming Cos., 394 F. Supp. 1102 (D. Colo. 1975).

Installation of carpeting for money is "trade or commerce" within the meaning of this section. That the installation involves the exchange of a service for money, rather than the exchange of an article or commodity, is a distinction without antitrust significance. People v. North Ave. Furn. & Appliance, Inc., 645 P.2d 1291 (Colo. 1982).

For history of this article, see People v. North Ave. Furn. & Appliance, Inc., 645 P.2d 1291 (Colo. 1982).

Applied in Colo. Petroleum Marketers Ass'n v. Southland Corp., 476 F. Supp. 373 (D. Colo. 1979); Nat'l Cigarette Serv. Co. v. Farr, 42 Colo. App. 356, 594 P.2d 603 (1979); Colo. High Sch. Activities Ass'n v. Nat'l Football League, 524 F. Supp. 60 (D. Colo. 1981); Colo. High Sch. Activities Ass'n v. Nat'l Football League, 711 F.2d 943 (10th Cir. 1983).