What's happening
This bill strengthens New York antitrust law by prohibiting abuse of dominant market positions and banning mandatory arbitration for antitrust, consumer, civil rights, and employment disputes.
Why it matters
Expands liability for dominant firms. By defining "abuse of dominant position" with specific prohibited practices (like unfair pricing, limiting markets, tying products, and refusing to deal), the bill makes it easier to challenge powerful companies—even if consumer prices aren’t directly harmed. This could increase scrutiny of large firms’ everyday business strategies.
Lowers the bar for antitrust lawsuits. Plaintiffs won’t need to prove harm to consumer welfare (such as higher prices or reduced output) to win a case against a dominant company—making it easier for competitors, suppliers, or consumers to bring and succeed in antitrust actions.
Shifts burden in merger reviews. In cases where a company’s acquisition could substantially lessen competition, the merging parties must prove the transaction’s benefits outweigh its harms, reversing the typical burden of proof and potentially making it harder for large mergers to go through.
Empowers individuals and groups to seek justice. By banning mandatory arbitration and class action waivers for antitrust, consumer, civil rights, and employment disputes, the bill ensures that individuals and groups cannot be forced to settle these disputes privately, opening the door to more public litigation and class actions that can hold companies accountable.
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Who cares
Headline styles
Ban Business Abuses, End Forced Arbitration
Plain English, a few words. Used as the page title.
Sponsors
Assembly Member · Assembly District 40
No co-sponsors yet.
History
- Referred to corporations, authorities and commissions
Full text
4 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
10656
IN ASSEMBLY
June 17, 2020
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Kim) -- read once and referred to the Committee on Corporations, Authorities and Commissions
AN ACT to amend the general business law, in relation to prohibiting certain actions which negatively impact the conduct of business, trade, or commerce or furnishing of services in the state; and to amend the civil practice law and rules, in relation to prohibiting agreements that force arbitration of certain future antitrust, consumer, civil rights, and employment disputes
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 340 of the general business law is amended by adding three new subdivisions 7, 8, and 9 to read as follows:
7. Any abuse by one or more persons of a dominant position in the conduct of any business, trade, or commerce, or in the furnishing of any service in this state is hereby declared to be against public policy, illegal, and void. Such abuse may consist of, but shall not be limited to:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets, or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion or effectiveness of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts;
(e) refusing to deal with customers or rivals as a means of suppressing competition;
(f) prohibiting distributors, suppliers, or customers from doing business with rival firms;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16045-01-0
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(g) penalizing purchasers who do not place a large share of their business with the firm;
(h) tying the purchase of one good or service with the purchase of a separate good or service, whether done through contractual or technological means; and
(i) pricing below average variable cost.
8. Subdivision seven of this section shall be construed independent of existing law or judicial or administrative authority relating to monopolization under subdivision one of this section, section 2 of the federal Sherman Act, or comparable provisions of federal law or the laws of other states. No showing of harm to consumer welfare shall be required to sustain a claim pursuant to subdivision seven of this section.
9. Notwithstanding any other provision of law, any action under this section may be maintained as a class action to the extent authorized by article nine of the civil practice law and rules or by Rule 23 of the Federal Rules of Civil Procedure or the class action procedures of any other state.
§ 2. The general business law is amended by adding a new section 352- dd to read as follows:
§ 352-dd. Acquisition by one corporation of stock of another. 1. No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital, and no person shall acquire the whole or any part of the assets of another person also engaged in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may substantially lessen competition or tend to create a monopoly.
2. No person shall acquire, directly or indirectly, the whole or any part of the stock or other share capital, and no person shall acquire the whole or any part of the assets of one or more persons engaged in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition of such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may substantially lessen competition, or tend to create a monopoly.
3. In any action arising under this section, the burden shall be on the persons seeking to undertake the transaction to prove by a preponderance of the evidence that the pro-competitive benefits of the transaction, if any, outweigh the anticompetitive effects.
§ 3. Section 7501 of the civil practice law and rules, as amended by chapter 532 of the laws of 1963, is amended to read as follows:
§ 7501. Effect of arbitration agreement. [A] 1. Except as set forth below, a written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.
2. Notwithstanding any other provision of law, no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to an antitrust dispute, consumer dispute, civil rights dispute, or employment dispute.
3. For the purposes of this section:
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(a) The term "antitrust dispute" means a dispute arising from an alleged violation of the antitrust laws (as defined in subsection (a) of the first section of the federal Clayton Act) or state antitrust laws.
(b) The term "consumer dispute" means a dispute between:
(i) one or more individuals who seek or acquire real or personal property, services (including services related to digital technology), securities or other investments, money, or credit for personal, family, or household purposes; and
(ii) the seller or provider of such property, services, securities or other investments, money, or credit, or a third party involved in the selling, providing of, payment for, receipt or use of information about, or other relationship to any such property, services, securities or other investments, money, or credit.
(c) The term "civil rights dispute" means a dispute in which at least one individual (or their authorized representatives) alleges a violation of:
(i) the constitution of the United States or the constitution of a state; or
(ii) any federal, state, or local law that prohibits discrimination on the basis of race, sex, age, gender identity, sexual orientation, disability, religion, national origin, or any legally protected status in education, employment, credit, housing, public accommodations and facilities, voting, veterans or service members, health care, or a program funded or conducted by the federal government or a state government, including any law referred to or described in section 62(e) of the Internal Revenue Code of 1986, including parts of such law not explicitly referenced in such section but that relate to protecting individuals on any such basis.
(d) The term "employment dispute" means a dispute between one or more individuals (or their authorized representative) and a person arising out of or related to the work relationship or prospective work relationship between them, including a dispute regarding the terms of or payment for, advertising of, recruiting for, referring of, arranging for, or discipline or discharge in connection with, such work, regardless of whether the individual is or would be classified as an employee or an independent contractor with respect to such work, and including disputes arising under any law referred to or described in section 62(e) of the Internal Revenue Code of 1986, including parts of such law not explicitly referenced in such section but that relate to protecting individuals on any such basis.
(e) The term "pre-dispute arbitration agreement" means an agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement.
(f) The term "pre-dispute joint-action waiver" means an agreement, whether or not part of a pre-dispute arbitration agreement, that would prohibit or waive the right of one of the parties to the agreement to commence or otherwise participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.
4. An issue as to whether this chapter applies with respect to a dispute shall be determined under the laws of the state of New York without regard for choice of law principles. The applicability of this section to an agreement to arbitrate, and the validity and enforceability of an agreement to which this section applies, shall be determined by a court, rather than an arbitrator, irrespective of whether the party
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seeking or resisting arbitration challenges the arbitration agreement specifically, or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determination to an arbitrator.
5. Nothing in this section shall apply to any arbitration provision in a contract between an employer and a labor organization or between labor organizations, except that no such arbitration provision shall have the effect of waiving the right of a worker to seek judicial enforcement of a right arising from:
(a) any provision of the constitution of the United States, the constitution of the state of New York, or any other state constitution; or
(b) any federal or state statute, or policy arising therefrom.
§ 4. This act shall take effect immediately and shall apply to any action or proceeding pending on or after such date.
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