The opinion
2024 IL 128763
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128763)
THE STATE OF ILLINOIS ex rel. KWAME RAOUL, Attorney General, Appellee,
v. ELITE STAFFING, INC., et al., Appellants.
Opinion filed January 19, 2024.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Overstreet, Holder White, Rochford, and
O’Brien concurred in the judgment and opinion.
Justice Cunningham took no part in the decision.
OPINION
¶1 The State of Illinois filed a complaint in which it alleged Elite Staffing, Inc.,
Metro Staff, Inc., and Midway Staffing, Inc. (collectively, the staffing agencies),
violated the Illinois Antitrust Act. 740 ILCS 10/3 (West 2018). The staffing
agencies filed a motion to dismiss the complaint, claiming that the act did not apply
to the charged conduct. The circuit court of Cook County denied the motion but
certified for interlocutory review two questions about the reach of the act:
“1. Whether the definition of ‘Service’ under Section 4 of the Illinois
Antitrust Act, 740 ILCS 10/4, which states that Service ‘shall not be deemed to
include labor which is performed by natural persons as employees of others,’
applies to the Illinois Antitrust Act as a whole and thus excludes all labor
services from the Illinois Antitrust Act’s coverage.
2. Whether the per se rule under Section 3(1) of the Illinois Antitrust Act,
740 ILCS 10/3(1), which states that it applies to conspiracies among
‘competitor[s],’ extends to alleged horizontal agreements facilitated by a
vertical noncompetitor.”
The appellate court answered the second question, but instead of answering
question 1, it answered a different question:
“whether the exclusion of individual labor from the definition of ‘service’ in
section 4 of the [Illinois Antitrust Act] also excludes the labor-related services
provided by temporary staffing agencies and therefore exempts such agencies
from [its] coverage.” 2022 IL App (1st) 210840, ¶ 11.
¶2 We granted the staffing agencies’ petition for leave to appeal from the appellate
court decision. Ill. S. Ct. R. 315 (a) (eff. Oct. 1, 2021).
¶3 We hold that the Illinois Antitrust Act does not exempt from antitrust scrutiny
all agreements between competitors to hold down wages and to limit employment
opportunities for their employees. We vacate the appellate court’s answer to the
question it formulated, answer the circuit court’s first certified question, do not
address the second certified question because the parties have not sought our review
of that question and its answer, and remand for further proceedings.
¶4 I. BACKGROUND
¶5 The State alleged in its complaint that Colony Display (Colony) hired the
staffing agencies to supply the temporary workers it needed. Colony, which installs
fixtures and displays for home improvement and retail businesses, relies heavily on
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temporary workers, who form the majority of Colony’s workforce. 2022 IL App
(1st) 210840, ¶ 3. At Colony’s request, the State alleged, the staffing agencies
agreed to fix the wages for their employees who worked for Colony at below-
market rates, and they agreed not to hire each other’s employees. Id. ¶¶ 5-6. Colony
helped the staffing agencies enforce their agreement. Id. The State claimed the
alleged conduct constituted an agreement between competitors to fix the price paid
for services and therefore that it had violated section 3(1)(a) of the Illinois Antitrust
Act (740 ILCS 10/3(1) (West 2018)). 2022 IL App (1st) 210840, ¶ 12. The
defendants filed a motion to dismiss the complaint under section 2-615 of the Code
of Civil Procedure (735 ILCS 5/2-615 (West 2018)), claiming that the complaint
did not state a cause of action because the Illinois Antitrust Act provides that
services otherwise subject to the act “shall not be deemed to include labor which is
performed by natural persons as employees of others” (740 ILCS 10/4 (West
2018)). 2022 IL App (1st) 210840, ¶ 7.
¶6 The circuit court denied the motion but certified for interlocutory review the
following issue:
“ ‘Whether the definition of “Service” under Section 4 of the Illinois Antitrust
Act, 740 ILCS 10/4, which states that Service “shall not be deemed to include
labor which is performed by natural persons as employees of others,” applies to
the Illinois Antitrust Act as a whole and thus excludes all labor services from
the Illinois Antitrust Act’s coverage.’ ” Id. ¶ 1.
¶7 The parties have not asked this court to address in this appeal the second
question the circuit court certified for interlocutory review. See id.
¶8 A. Appellate Court
¶9 The appellate court found first that the question as phrased relied on an incorrect
assumption that, if the definition of “service” applied to the Illinois Antitrust Act
as a whole, it exempts all labor services from the act’s coverage. Id. ¶ 11. The
appellate court restated the question and addressed instead the issue of “whether
the exclusion of individual labor from the definition of ‘service’ in section 4 of the
[Illinois Antitrust Act] also excludes the labor-related services provided by
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temporary staffing agencies and therefore exempts such agencies from [its]
coverage.” Id.
¶ 10 The appellate court found that the legislature narrowed the definition of service
“to allow individuals to engage in otherwise anticompetitive behavior regarding
their own labor by participating in collective bargaining and related conduct.” Id.
¶ 15. The appellate court found the exemption of section 4 did not extend to services
provided by staffing agencies. The court held:
“[T]o the extent that the alleged unlawful conduct concerns restraints that they
place on their own services (i.e., recruiting, hiring, and managing temporary
employees) and do not concern restraints on a natural person’s individual labor,
temporary staffing agencies like the Agency Defendants in this case are subject
to the Act’s provisions and, in particular, section 3’s prohibitions on
anticompetitive restraints on services.” Id. ¶ 23.
¶ 11 This court granted the agencies’ petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. Oct. 1, 2021). We accepted briefs amici curiae from (1) the United States
Department of Justice in support of the State’s position; (2) Raise the Floor
Alliance, National Legal Advocacy Network, and National Employment Law
Project in support of the State’s position; and (3) Staffing Services Association of
Illinois and American Staffing Association in support of the staffing agencies’
position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 12 II. ANALYSIS
¶ 13 Rule 315 gives this court jurisdiction over the appeal. Ill. S. Ct. R. 315(a) (eff.
Oct. 1, 2021); Moore v. Chicago Park District, 2012 IL 112788, ¶ 7. Illinois courts
usually limit review under Rule 308 (Ill. S. Ct. R. 308 (eff. Oct. 1, 2019)) to
answering the certified question, unless the question rests on an erroneous legal
assumption. De Bouse v. Bayer AG, 235 Ill. 2d 544, 550, 557 (2009).
¶ 14 Both parties ask this court to answer the question certified by the circuit court
rather than the question the appellate court answered. We do not interpret the circuit
court’s question as incorrectly assuming that, if the definition of service applies to
the Illinois Antitrust Act as a whole, the act necessarily excludes all labor services
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from its coverage. Rather, we find that the question the circuit court certified asked
the appellate court to decide whether the Illinois Antitrust Act excludes from its
coverage all agreements concerning labor services. We will answer the circuit
court’s certified question.
¶ 15 On certified question review, this court should address only issues of law and
not the application of the law to the particular facts of the case. Rozsavolgyi v. City
of Aurora, 2017 IL 121048, ¶ 21. We review de novo rulings on the interpretation
of a statute. Midwest Sanitary Service, Inc. v. Sandberg, Phoenix & Von Gontard,
P.C., 2022 IL 127327, ¶ 19.
¶ 16 We apply familiar principles of statutory interpretation. “The most fundamental
rule in statutory construction is to give effect to the legislative intent.” Murray v.
Chicago Youth Center, 224 Ill. 2d 213, 235 (2007). “The statutory language, given
its plain and ordinary meaning, is generally the most reliable indicator of that
legislative intent, but a literal reading must fail if it yields absurd, inconvenient, or
unjust results.” Cassidy v. China Vitamins, LLC, 2018 IL 122873, ¶ 17.
“Words and phrases should not be considered in isolation; rather, they must be
interpreted in light of other relevant provisions and the statute as a whole.
[Citations.] In addition to the statutory language, the court may consider the
purpose behind the law and the evils sought to be remedied, as well as the
consequences that would result from construing the law one way or the other.”
County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604
(2008).
¶ 17 A. The Statutes at Issue
¶ 18 We must interpret five sections of the Illinois Antitrust Act: sections 2, 3, 4, 5,
and 11 (740 ILCS 10/2, 3, 4, 5, 11 (West 2018)). Section 2 states that the legislature
adopted the act
“to promote the unhampered growth of commerce and industry throughout the
State by prohibiting restraints of trade which are secured through monopolistic
or oligarchic practices and which act or tend to act to decrease competition
between and among persons engaged in commerce and trade, whether in
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manufacturing, distribution, financing, and service industries or in related for-
profit pursuits.” Id. § 2.
¶ 19 Section 3 provides:
“Every person shall be deemed to have committed a violation of this Act who
shall:
(1) Make any contract with, or engage in any combination or conspiracy
with, any other person who is, or but for a prior agreement would be, a
competitor of such person:
a. for the purpose or with the effect of fixing, controlling, or maintaining
the *** fee charged or paid for any service performed or received by the
parties thereto; [or]
b. fixing, controlling, maintaining, [or] limiting *** the sale or supply
of any service, for the purpose or with the effect stated in paragraph a. of
subsection (1)[.]” Id. § 3.
¶ 20 Section 4 defines “service” as follows:
“ ‘Service’ shall mean any activity, not covered by the definition of
‘commodity,’ which is performed in whole or in part for the purpose of financial
gain.
‘Service’ shall not be deemed to include labor which is performed by natural
persons as employees of others.” Id. § 4.
¶ 21 Section 5 makes an exception to the broad reach of section 3:
“No provisions of this Act shall be construed to make illegal:
(1) the activities of any labor organization or of individual members
thereof which are directed solely to labor objectives which are legitimate
under the laws of either the State of Illinois or the United States.” Id. § 5.
¶ 22 Section 11 guides the interpretation of the Illinois Antitrust Act:
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“When the wording of this Act is identical or similar to that of a federal antitrust
law, the courts of this State shall use the construction of the federal law by the
federal courts as a guide in construing this Act.” Id. § 11.
¶ 23 This court has explained that, where the language of federal antitrust statutes
differs markedly from the Illinois Antitrust Act, “we must consider whether, given
the differences between section 3[ ] and [the federal statute], the reasoning
employed by the Federal courts in interpreting [the federal statute] is relevant to
our interpretation of section 3[ ].” Gilbert’s Ethan Allen Gallery v. Ethan Allen,
Inc., 162 Ill. 2d 99, 104 (1994).
¶ 24 Because of section 11, we must also consult federal antitrust statutes. Section 1
of the Sherman Act provides that “[e]very contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1 (2018).
¶ 25 Finally, the Clayton Act provides:
“The labor of a human being is not a commodity or article of commerce.
Nothing contained in the antitrust laws shall be construed to forbid the existence
and operation of labor, agricultural, or horticultural organizations, instituted for
the purposes of mutual help, and not having capital stock or conducted for
profit, or to forbid or restrain individual members of such organizations from
lawfully carrying out the legitimate objects thereof; nor shall such
organizations, or the members thereof, be held or construed to be illegal
combinations or conspiracies in restraint of trade, under the antitrust laws.” Id.
§ 17.
¶ 26 B. Section 3 of the Illinois Antitrust Act
¶ 27 The General Assembly patterned section 3(1)(a) of the Illinois Antitrust Act
after section 1 of the Sherman Act. People ex rel. Scott v. College Hills Corp., 91
Ill. 2d 138, 150 (1982) (“Section 3(1)(a) is patterned after section 1 of the Sherman
Act [citation], and in our construction of the Illinois Antitrust Act we are guided by
Federal case law construing analogous provisions of Federal legislation
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[citation].”). The United States Supreme Court succinctly summarized one
significant problem courts encounter when interpreting the Sherman Act:
“[Section] 1 of the Sherman Act *** cannot mean what it says. The statute says
that ‘every’ contract that restrains trade is unlawful. But, as Mr. Justice Brandeis
perceptively noted, restraint is the very essence of every contract; read literally,
[section] 1 would outlaw the entire body of private contract law.” National
Society of Professional Engineers v. United States, 435 U.S. 679, 687-88
(1978).
To avoid the absurd consequences of applying the Sherman Act literally, “ ‘courts
have construed it as precluding only those contracts or combinations which
“unreasonably” restrain competition.’ ” Williams v. St. Joseph Hospital, 629 F.2d
448, 452 (7th Cir. 1980) (quoting Northern Pacific Ry. Co. v. United States, 356
U.S. 1, 5 (1958)). For many restraints of trade, federal courts adopted “rule of
reason” analysis, under which the “trial court must perform a market share analysis
to determine whether the defendant possessed monopoly power in the relevant
market. *** [T]he plaintiff must show that the defendant possessed sufficient
monopoly power to inflict competitive injury in the relevant market.” Gilbert’s
Ethan Allen Gallery, 162 Ill. 2d at 102-03.
¶ 28 Some agreements “are so plainly anticompetitive [citation] that they are
conclusively presumed illegal without further examination under the rule of reason
generally applied in Sherman Act cases.” (Internal quotation marks omitted.)
Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 8 (1979).
“ ‘If a practice is within the per se category, all you have to prove to establish a
violation is that the defendant engaged in the practice; you do not have to show that
in fact the practice has had or will have an adverse effect on competition.’ ”
Gilbert’s Ethan Allen Gallery, 162 Ill. 2d at 105 (quoting Marrese v. American
Academy of Orthopaedic Surgeons, 692 F.2d 1083, 1093 (7th Cir. 1982).
“[A]greements among competitors to fix prices on their individual goods or
services are among those concerted activities that the Court has held to be within
the per se category.” Broadcast Music, 441 U.S. at 8.
¶ 29 The complaint here alleges that competitors, the staffing agencies, agreed to fix
the wages they would pay to their employees sent to work for Colony. The alleged
agreement falls squarely within the realm of conduct so clearly anticompetitive that
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it violates antitrust laws without further examination under the rule of reason. See
id.; Quinonez v. National Ass’n of Securities Dealers, Inc., 540 F.2d 824, 828-29
(5th Cir. 1976).
¶ 30 Applying federal standards (see Laughlin v. Evanston Hospital, 133 Ill. 2d 374,
383-84 (1990)), we find that a multiemployer agreement to restrict wages and not
to hire each other’s employees violates section 3 of the Illinois Antitrust Act unless
section 4 of the act exempts the alleged agreement from the coverage of the act.
¶ 31 C. Section 4 of the Illinois Antitrust Act
¶ 32 Considered in isolation, section 4, which exempts from the Illinois Antitrust
Act’s coverage “labor which is performed by natural persons as employees of
others” (740 ILCS 10/4 (West 2018)), appears to exempt from antitrust scrutiny all
agreements concerning wages and conditions of employment, regardless of their
anticompetitive effects. But if we construe the definition so broadly, it conflicts
with the stated purpose of the act, which the legislature designed
“to promote the unhampered growth of commerce and industry throughout the
State by prohibiting restraints of trade which are secured through monopolistic
or oligarchic practices and which act or tend to act to decrease competition
between and among persons engaged in commerce and trade, whether in
manufacturing, distribution, financing, and service industries or in related for-
profit pursuits.” Id. § 2.
¶ 33 Just as the broad language of the Sherman Act conflicted with its purpose and
led to absurd results, the broad language of the definition in section 4 conflicts with
the purpose of the Illinois Antitrust Act. We find section 4’s definition of services,
when considered in the context of the act as a whole, ambiguous because of the
conflict between the apparent reach of the exemption on superficial examination
and the purpose of the act. When we encounter ambiguity in a statute considered as
a whole, we turn to tools of interpretation to help us determine the meaning of a
statute. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006) (“if the language of a statute
is ambiguous, courts may look to tools of interpretation to ascertain the meaning of
a provision”).
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¶ 34 “Where the mind labours to discover the design of the legislature, it seizes every
thing from which aid can be derived.” United States v. Fisher, 6 U.S. (2 Cranch)
358, 386 (1805). “When aid to construction of the meaning of words, as used in the
statute, is available, there certainly can be no rule of law which forbids its use,
however clear the words may appear on superficial examination.” (Internal
quotation marks omitted.) United States v. American Trucking Ass’ns, 310 U.S.
534, 543-44 (1940).
¶ 35 We have a commentary on the Illinois Antitrust Act prepared by the drafters,
the Chicago Bar Association’s Committee on Antitrust Law (Committee). The
Committee prepared the commentary in 1967, two years after the legislature
enacted the Illinois Antitrust Act. This court has used the commentary as an aid to
interpreting the act. See Laughlin, 133 Ill. 2d at 386-87; Gilbert’s Ethan Allen
Gallery, 162 Ill. 2d at 106. State archives list the sponsors of the bill that became
the Illinois Antitrust Act and the proponents and opponents of the bill. One of the
bill’s proponents, Professor James Rahl, wrote an article in which he argued the
states should enact their own antitrust statutes because not all pernicious price
fixing agreements and other antitrust violations affect interstate commerce. James
A. Rahl, Toward a Worthwhile State Antitrust Policy, 39 Tex. L. Rev. 753, 758
(1961) (State Antitrust). Because Rahl appeared before the legislature as a
proponent of the bill the legislature enacted, we find that his article qualifies as
some evidence concerning the intent of the legislation. William N. Eskridge Jr., The
New Textualism, 37 UCLA L. Rev. 621, 636 (1990) (comments of nonlegislator
drafters constitute some evidence of legislative intent). We also have some
evidence of legislative inaction and an argument concerning the effect of
subsequent legislation.
¶ 36 Because section 11 of the Illinois Antitrust Act directs our attention to federal
law, we start with a discussion of decisions interpreting federal antitrust law,
followed by discussions of the committee comments, Rahl’s views, and legislative
inaction. Finally, we respond to an argument raised by amici supporting the staffing
agencies’ position, who claim that a statute immunizes staffing agencies from all
antitrust laws.
¶ 37 1. Federal Antitrust Law
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¶ 38 The Clayton Act provides, “The labor of a human being is not a commodity or
article of commerce.” 15 U.S.C. § 17 (2018). Employers have sought to use the
provision to exempt from antitrust scrutiny anticompetitive agreements similar to
the agreement alleged in the State’s complaint here.
¶ 39 In Roman v. Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995), Roman
alleged that several airplane manufacturers agreed not to hire each other’s
employees. He alleged that one of the manufacturers would have hired him and
paid him a higher salary if not for the agreement. Id. The Roman court found that
Roman stated a cause of action for violation of federal antitrust law. Id. at 545. The
court adopted the following explanation from a treatise on antitrust law:
“ ‘Antitrust law addresses employer conspiracies controlling employment
terms precisely because they tamper with the employment market and thereby
impair the opportunities of those who sell their services there. Just as antitrust
law seeks to preserve the free market opportunities of buyers and sellers of
goods, so also it seeks to do the same for buyers and sellers of employment
services. ***
Thus, the courts have readily approved standing for professional athletes
challenging agreements among employers fixing employment terms and for
brokers or magazine solicitors challenging their employers’ agreements against
hiring switching employees.’ ” Id. at 544 (quoting II Phillip Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 377c (rev. ed. 1995)).
¶ 40 Both parties cite Cordova v. Bache & Co., 321 F. Supp. 600 (S.D.N.Y. 1970),
in support of their arguments. In Cordova, securities representatives alleged that
their employers, stock brokerage firms, conspired to reduce the commissions paid
to securities representatives for the sale of stock. Id. at 603. The brokerage firms,
like the staffing agencies here, argued that the complaint did not allege a violation
of antitrust law. Id. at 605. According to the brokerage firms, a “conspiracy on the
part of employers with respect to the labor of their employees” cannot violate
federal antitrust law because “ ‘[t]he labor of a human being is not a commodity or
article of commerce.’ ” Id. (quoting 15 U.S.C. § 17 (1970)).
¶ 41 The Cordova court held:
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“If the language of *** the Clayton Act stopped with the sentence quoted
by defendants, it would lend support to their position. It is immediately
followed, however, by additional language which when considered in the light
of the statute’s legislative history, convinces us that the sole purpose and effect
of the section is to exempt activities and agreements on the part of labor,
agricultural or horticultural organizations with respect to their furnishing labor
in the market place. ***
***
It is readily apparent that Congress *** was concerned with the right of
labor and similar organizations to continue engaging in such activities,
including that right to strike, not with the right of employers to ban[d] together
for joint action in fixing the wages to be paid by each employer. There is no
evidence of the existence of any necessity to protect the latter type of activity
***.” Id. at 605-06.
¶ 42 The court surveyed the extensive legislative history of the federal antitrust
statutes and concluded:
“Congress’ only purpose *** was to help the labor organizations and the labor
movement by removing any doubt as to the legality of their existence and
operations. ***
***
There can be little doubt about the fact that if a group of employers, as the
complaint here alleges, were allowed, not as part of a collective bargaining
agreement, to agree together to reduce the commissions paid to their respective
employees, they would have the same power to restrain competition as is
inherent in a price-fixing agreement. *** The effect of such a unilateral
agreement between employers, as alleged in the present complaint (citation),
could also be to restrain mobility on the part of employees who would otherwise
have the opportunity, in a competitive market for services, to transfer to higher
paid opportunities offered by other[s]. *** [A]n agreement between employers
would enable the employers together to achieve what no single one of them
could do alone.
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***
*** [A]n essential prerequisite to the legality of such multiemployer
combinations with respect to industry-wide wages or working conditions is the
existence or prospect of a joint collective bargaining agreement with the union,
which all parties concede to be immune from the antitrust laws. The exemption
granted to such agreements extends to joint-employer action reasonably related
or incident to them. Absent such conditions, however, a combination of
employers to reduce their employees’ compensation does not share labor’s
exemption.” Id. at 606-07.
¶ 43 2. Bar Committee Comments
¶ 44 The bar commentary explains that the Illinois Antitrust Act, “[i]n the main, ***
is the same as a bill drafted by the Committee on Antitrust Law of the Chicago Bar
Association.” 740 ILCS Ann. art. 10, Committee Comments-1967, at 12 (Smith-
Hurd 2010). The committee prepared the commentary “to memorialize the
intentions of the draftsmen as to the meaning of the language of the Act, and to
offer guidance to the courts and the bar in the interpretation of the law.” Id.
¶ 45 The commentary first explains the need for “effective antitrust enforcement at
the state level” (id. at 13) and adds that the drafters intended “to provide an effective
means of combating the serious damage which is done to the free enterprise system
in Illinois by groups who substitute self-designed schemes of private business
regulation for the impersonal direction of the free market” (id. at 14). According to
the commentary, section 3(1)(a)
“is designed to reach the ‘hard core’ conspiratorial offenses of price fixing,
limitations on production, and allocation of markets or customers. ***
Section 3(1)(a) proscribes agreements between competitors, the purpose or
effect of which is to fix, control, or maintain *** the prices which they will pay
for the commodities or services which they buy.” Id. § 3, Committee
Comments-1967, at 19-20.
¶ 46 The brief commentary on section 4 addresses the definition of service:
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“[T]he definitions of Section 4 were expressly designed to make services and
real estate subject to the prohibitions of the law. It was the feeling of the
draftsmen that exemptions should be strictly limited and that almost all service
occupations should be within the reach of the statute. In this connection see the
discussion, infra, with relation to Section 5 on exemptions generally.” Id. § 4,
Committee Comments-1967, at 52.
¶ 47 The comment on section 5 elaborates:
“It was always understood by the draftsmen that exemptions would be
accorded to labor unions, agricultural cooperatives, and public utilities. *** [I]t
was believed necessary to adopt an approach similar to that used for the federal
exemptions on those subjects, thereby preserving general overall consistency.
The labor exemption in subsection (1), like that of *** the Clayton Act,
prevents the application of the Antitrust Act to legitimate labor objectives and
activities of unions or of individual members thereof. The Illinois Act is more
explicit than the Clayton Act, however, in limiting the exemption to activities
which ‘are directed solely to labor objectives which are legitimate under the
laws of either the State of Illinois or the United States.’ ***.
The labor exemption should be read together with the provision of Section
4 which states that labor performed as an employee is not a ‘service’ within the
meaning of Section 3 of the Act. The effect of this provision is to make the Act
inapplicable to agreements by either labor or nonlabor groups insofar as they
relate to restraint of competition concerning labor itself. The Act thus protects
both management and labor in bargaining collectively over terms and
conditions of employment.” Id. § 5, Committee Comments-1967, at 55.
¶ 48 We find the bar committee commentary shows the drafters intended to limit the
exemption to legitimate labor union activity and agreements multiple employers
reach in the course of collective negotiations with labor unions.
¶ 49 3. Rahl’s Proposal
¶ 50 In State Antitrust, Rahl proposed an antitrust act, and the proposal included the
following definition:
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“ ‘Service’ shall mean any activity not covered by the definition of
commodity, which is performed in whole or in part for the purpose of financial
gain. ‘Service’ shall not include labor which is performed by persons as
employees of others, but this exclusion is limited to conduct pertaining to such
labor, and does not exclude from the operation of this Act agreements or acts
by or with laborers or organizations of laborers concerning commodities and
services covered by this Act.” Rahl, supra, at 775.
¶ 51 Rahl explained:
“The draft *** [makes an] exclusion for labor in the definition of ‘services.’
*** [The exclusion] should be sufficient to protect the right of labor
organizations to restrain and monopolize the terms and supply of the labor with
which they are concerned, and hence to carry on the customary labor activities
contemplated by present-day national labor policy. Incidentally, this approach
would also remove from the act restraints as to labor imposed by non-labor
groups, occurring in situations such as joint bargaining on the management
side.” Id. at 778.
¶ 52 Like the bar committee, Rahl emphasizes the need to exempt legitimate union
activity from the reach of the Illinois Antitrust Act and the correlative exemption
for agreements between employers in the course of negotiations with unions. No
source concerning the purpose of antitrust laws suggests that the legislature meant
to leave competing employers free to collude with each other to reduce the wages
they pay to their employees or to collude to prevent workers from switching to
better jobs.
¶ 53 4. Legislative Inaction
¶ 54 The staffing agencies rely on two published federal cases and argue that the
legislature’s failure to amend the Illinois Antitrust Act after those decisions shows
that the two decisions correctly interpreted Illinois law.
¶ 55 “Where the legislature chooses not to amend a statute after a judicial
construction, it will be presumed that it has acquiesced in the court’s statement of
the legislative intent.” Miller v. Lockett, 98 Ill. 2d 478, 483 (1983).
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“[E]vidence of legislative silence and subsequent history is usually too
ambiguous to count as legislative history, but in some contexts the sources are
considered by the [United States Supreme] Court. *** Legislative silence will
usually be supporting evidence of legislative intent and will be the main
evidence only when there is virtually no other evidence of legislative intent.”
Eskridge, supra, at 640.
¶ 56 We find that the persuasive power of legislative silence depends on the
circumstances of the legislative decision not to amend a statute following a judicial
interpretation of the statute.
“It is an elementary rule of construction that where, after a statute has been
construed by the highest court of the state, the Legislature re-enacts the statute,
whether by the adoption of Revised Statutes or by amendment, the act of the
Legislature carries with it the construction previously placed upon the law by
the court.” Texas Fidelity & Bonding Co. v. City of Austin, 246 S.W. 1026, 1029
(Tex. 1922).
Similarly, “[a]fter [the Illinois Supreme Court] has construed a statute, ‘that
construction becomes, in effect, a part of the statute and any change in interpretation
can be effected by the General Assembly if it desires so to do.’ ” Village of Vernon
Hills v. Heelan, 2015 IL 118170, ¶ 19 (quoting Mitchell v. Mahin, 51 Ill. 2d 452,
456 (1972)).
¶ 57 Legislative inaction following an interpretation by the Illinois Appellate Court
provides some lesser support for an inference the appellate court correctly
interpreted the statute. Barrall v. Board of Trustees of John A. Logan Community
College, 2020 IL 125535, ¶ 27 n.2. The inference disappears if published opinions
of the appellate court give differing interpretations of the statute. See United States
v. Powell, 379 U.S. 48, 55 n.13 (1964) (no inference arises if published decisions
show no settled judicial interpretation of the statute).
¶ 58 Here, the staffing agencies rely on two published federal decisions interpreting
Illinois law. Because the federal decisions do not bind Illinois courts (Travelers
Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 302 (2001) (“ ‘The
general rule is that decisions of the United States district and circuit courts are not
binding on Illinois courts.’ ” (quoting City of Chicago v. Groffman, 68 Ill. 2d 112,
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118 (1977)))), we find the proposed inference from legislative inaction very weak,
but we consider it as some evidence of legislative intent. See Wittman v. Koenig,
831 F.3d 416, 425 (7th Cir. 2016) (“It is difficult to imagine careful drafting of
legislation in this field that would not consider decisions by the federal bankruptcy
courts in the state. In this situation, then, it is reasonable to treat legislative silence
as at least weak evidence that the bankruptcy courts’ interpretation of Wisconsin
Statutes § 815.18(3)(j) has not been objectionable to the legislature.”).
¶ 59 In O’Regan v. Arbitration Forums, Inc., 121 F.3d 1060, 1062-63 (7th Cir.
1997), O’Regan sued her former employer, a nonprofit corporation, alleging that
the employer violated both federal and Illinois antitrust law by terminating her
employment because she refused to sign a noncompete agreement. The O’Regan
court found O’Regan had not stated a claim for a federal violation because “an
employee discharged for refusing to participate in an alleged antitrust violation has
no standing to sue on the basis of that violation.” Id. at 1065.
¶ 60 The court then found three separate reasons for dismissing the state claims:
“Federal antitrust standing rules apply under the Illinois Antitrust Act. *** The
Act only covers services ‘performed in whole or in part for the purposes of
financial gain.’ [Citation.] *** [The defendant] is a non-profit corporation, not
covered by the Illinois Antitrust Act. Finally, to the extent O’Regan’s claims
relate to an alleged market for labor services, they are specifically excluded by
§ 10/4 of the Act ***.” Id. at 1066.
¶ 61 The O’Regan court read one sentence from section 4 in isolation, without
considering the Illinois Antitrust Act as a whole. The O’Regan court did not analyze
section 4 in light of sections 2, 3, 5, and 11. The O’Regan court did not consider
the purposes of the Illinois Antitrust Act or whether the court’s broad reading of
the exemption would serve the act’s purposes.
¶ 62 The federal district court in Butler v. Jimmy John’s Franchise, LLC, 331 F.
Supp. 3d 786, 798 (S.D. Ill. 2018) (quoting O’Regan, 121 F.3d at 1066), found that
several competing franchisees’ alleged agreement not to hire each other’s
employees would (if proven) violate federal antitrust law, but the court followed
O’Regan as binding precedent barring the claim for violation of the Illinois
Antitrust Act because the alleged agreement “ ‘relate[d] to an alleged market for
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labor services.’ ” Butler thus adds nothing to the slight authority of O’Regan.
¶ 63 5. The Day and Temporary Labor Services Act
¶ 64 The Staffing Services Association of Illinois and American Staffing
Association, in their brief amici curiae, argue that the Day and Temporary Labor
Services Act (Temporary Labor Act) (820 ILCS 175/1 et seq. (West 2020))
comprehensively regulates all staffing agencies and therefore “the Court should
hold that [Temporary Labor Act]-regulated staffing agencies are implicitly
immunized from [Illinois Antitrust Act] liability.”
¶ 65 The Temporary Labor Act includes a statement of the problem the legislature
sought to address:
“Recent studies and a survey of low-wage day or temporary laborers
themselves [find] that as a group, they are particularly vulnerable to abuse of
their labor rights, including unpaid wages, failure to pay for all hours worked,
minimum wage and overtime violations, and unlawful deductions from pay for
meals, transportation, equipment, and other items.
Current law is inadequate to protect the labor and employment rights of
these workers.” Id. § 2.
¶ 66 The Temporary Labor Act has no provision penalizing collusion to reduce
wages or to limit employment opportunities for these vulnerable employees. The
Temporary Labor Act does not mention the Illinois Antitrust Act, nor does it
explicitly exempt staffing agencies from the reach of the Illinois Antitrust Act. The
ruling amici seek would directly conflict with the Temporary Labor Act’s stated
purpose, and it would exacerbate the problem of worker vulnerability the legislature
sought to address. We find the Temporary Labor Act provides no support for the
staffing agencies’ position.
¶ 67 6. Summary of Legislative History
¶ 68 The Illinois Antitrust Act directs courts to look to federal case law for aid in
interpreting the act “[w]hen the wording of this Act is identical or similar to that of
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a federal antitrust law.” 740 ILCS 10/11 (West 2018). This court has held that when
federal statutes differ from the Illinois Antitrust Act, we consider more carefully
whether the federal courts’ reasoning helps construe the Illinois act. Gilbert’s Ethan
Allen Gallery, 162 Ill. 2d at 104. The Cordova court persuasively argues that the
United States Congress did not intend to exempt from antitrust scrutiny all
agreements between competing employers to fix wages they would pay their
employees and not to hire each other’s employees. Cordova, 321 F. Supp. at 605-
07. The bar committee comments and an article by one of the proponents of the
Illinois Antitrust Act further support the application of Cordova’s reasoning to the
interpretation of the Illinois Antitrust Act. Multiemployer agreements to reduce
wages and to reduce employment opportunities violate the Illinois Antitrust Act
unless the restrictions arose in the course of labor negotiations and “the affected
employees, through their collective bargaining representatives, *** unequivocally
consent[ed] to bargain with the multi-employer unit.” Id. at 607. The minor
differences in the wording and placement of the labor exemption in the Illinois
Antitrust Act do not show a contrary legislative intent. The legislative inaction after
O’Regan, which lacks precedential force in Illinois courts, does not overcome the
contrary inference from the Illinois Antitrust Act’s stated purposes, the statutory
direction to look to federal decisions, and the discussions in the bar committee
comments and Rahl’s article proposing terms for state antitrust statutes.
¶ 69 III. CONCLUSION
¶ 70 We vacate the appellate court’s answer to the question it formulated. We answer
the question the circuit court certified thus: the definition of “service” in section 4
applies to the Illinois Antitrust Act as a whole, but it does not exclude all
agreements concerning labor services from the act’s coverage. In particular,
multiemployer agreements concerning wages they will pay their employees and
whether they will hire each other’s employees may violate the Illinois Antitrust Act
unless the agreement arises as part of the bargaining process and the affected
employees, through their collective bargaining representatives, have sought to
bargain with the multiemployer unit. We do not address the second question the
circuit court certified (see 2022 IL App (1st) 210840, ¶ 1), or the appellate court’s
answer to that question, because the parties have not asked this court to address that
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question in this appeal.
¶ 71 Appellate court judgment vacated in part.
¶ 72 Certified question answered.
¶ 73 Cause remanded.
¶ 74 JUSTICE CUNNINGHAM took no part in the consideration or decision of this
case.
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