Judicial Remedies and Procedures — Subpoenas — Actions — Injunctions
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The attorney general and reporter, at any time after an application is filed under § 68-11-1303(b) (now (c)), may require by subpoena the attendance and testimony of witnesses and the production of documents in Davidson 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 § 68-11-1303(e).
The attorney general and reporter may seek to enjoin the operation of a cooperative agreement for which an application for certificate of public advantage has been filed by filing suit against the parties to the cooperative agreement in chancery court. The attorney general and reporter may file an action before or after the department acts on the application for a certificate, but the action must be brought no later than thirty (30) days after the department's approval of an application for a certificate of public advantage.
Upon the filing of the complaint in an action under subsection (b), the department's certification, if previously issued, must be stayed and the cooperative agreement is of no further force, unless the court orders otherwise or until the action is concluded. The attorney general and reporter may apply to the court for any ancillary temporary or preliminary relief necessary to stay the cooperative agreement pending final disposition of the case.
In any action brought under subsection (b) (now (c)), the applicants for a certificate bear the burden of establishing by clear and convincing evidence that, in accordance with § 68-11-1303(e), the likely benefits resulting from the cooperative agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement. In assessing disadvantages attributable to a reduction in competition likely to result from the agreement, the court may draw upon the determinations of federal and state courts concerning unreasonable restraint of trade under 15 U.S.C. §§ 1 and 2 and title 47, chapter 25.
If, at any time following the thirty-day period specified in subsection (b), the attorney general and reporter determines that as a result of changed circumstances, the benefits resulting from a certified agreement no longer outweigh any disadvantages attributable to a reduction in competition resulting from the agreement, the attorney general and reporter may file suit in the chancery court seeking to cancel the certificate of public advantage. The standard for adjudication for an action brought under this subsection (e) is as follows:
Except as provided in subdivision (e)(2), in any action brought under this subsection (e), the attorney general and reporter has the burden of establishing by a preponderance of the evidence that, as a result of changed circumstances, the benefits resulting from the agreement and the unavoidable costs of cancelling the agreement are outweighed by the disadvantages attributable to a reduction in competition resulting from the agreement.
In any action under this subsection (e), if the attorney general and reporter first establishes by a preponderance of evidence that the department's certification was obtained as a result of material misrepresentation to the department or the attorney general and reporter 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 cancelling the agreement outweigh the disadvantages attributable to any reduction in competition resulting from the agreement.
The chancery court may resolve any action brought by the attorney general and reporter under this chapter by entering an order that, with the consent of the parties, modifies the cooperative agreement. Upon the entry of such an order, the parties to the cooperative agreement have the protection specified in § 68-11-1306 and the cooperative agreement has the effectiveness specified in § 68-11-1306.