S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10870
 
                           I N  A S S E M B L Y
 
                               July 24, 2020
                                ___________
 
 Introduced by COMMITTEE ON RULES -- (at request of M. of A. Dinowitz) --
   read once and referred to the Committee on Economic Development
 
 AN  ACT  to  amend  the  general business law, in relation to actions or
   practices that establish or maintain a monopoly or restraint of trade,
   and in relation to authorizing a class action  lawsuit  in  the  state
   anti-trust law

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited  as  the  "Twenty-
 First Century Anti-Trust Act".
   §  2.  Legislative findings. The legislature hereby finds and declares
 that there is great concern for the growing accumulation of power in the
 hands of large corporations. While technological advances have  improved
 society,  these  companies  possess  great and increasing power over all
 aspects of our lives. Over one hundred years ago, the state and  federal
 governments  identified  these same problems as big businesses blossomed
 after decades of industrialization.   Seeing those problems,  the  state
 and  federal  governments  enacted  transformative legislation to combat
 cartels, monopolies, and other anti-competitive business  practices.  It
 is  time  to  update,  expand  and clarify our laws to ensure that these
 large corporations are subject to strict and  appropriate  oversight  by
 the  state.  The  legislature further finds and declares that unilateral
 actions which seek to create a monopoly are as harmful as  contracts  or
 agreements  of  multiple  parties  to  do the same and should be treated
 similarly under the law. After monopolies have been established,  it  is
 typically too late to repair or mitigate the damage which has been done.
 Accordingly,  mere  attempts to create monopolies should also be treated
 as actions contrary to the interests of the people of the state  of  New
 York and should be penalized accordingly.  The legislature further finds
 and declares that anti-competitive practices harm great numbers of citi-
 zens and therefore must ensure that class actions may be raised in anti-
 trust suits.
   § 3. Section 340 of the general business law, as amended by chapter 12
 of the laws of 1935, subdivision 1 as amended by chapter 893 of the laws
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD13170-08-0

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 of  1957,  subdivision  2 as amended by chapter 805 of the laws of 1984,
 subdivisions 3 and 4 as renumbered by chapter 502 of the laws  of  1948,
 subdivision 5 as amended by chapter 333 of the laws of 1975 and subdivi-
 sion  6 as amended by chapter 31 of the laws of 1999, is amended to read
 as follows:
   § 340. Contracts or agreements for monopoly or in restraint  of  trade
 illegal  and void. 1. Every contract, agreement, arrangement or combina-
 tion THEREOF whereby
   A monopoly in the conduct of any business, trade or commerce or in the
 furnishing of any service in this state, is or  may  be  established  or
 maintained, or whereby
   Competition or the free exercise of any activity in the conduct of any
 business,  trade or commerce or in the furnishing of any service in this
 state is or may be restrained or whereby
   For the purpose of [establishing or maintaining any such  monopoly  or
 unlawfully  interfering  with  the  free exercise of any activity in the
 conduct of any business, trade or commerce or in the furnishing  of  any
 service in this state] ENGAGING IN THE CONDUCT SPECIFIED IN THIS SECTION
 any  business,  trade or commerce or the furnishing of any service is or
 may be restrained, is hereby declared to be against public policy, ille-
 gal and void.
   2. IT SHALL BE UNLAWFUL: (A) FOR ANY PERSON OR PERSONS TO  MONOPOLIZE,
 OR  ATTEMPT  TO MONOPOLIZE, OR COMBINE OR CONSPIRE WITH ANY OTHER PERSON
 OR PERSONS TO MONOPOLIZE ANY BUSINESS, TRADE OR COMMERCE OR THE FURNISH-
 ING OF ANY SERVICE IN THIS STATE; (B) FOR ANY PERSON OR PERSONS  WITH  A
 DOMINANT  POSITION  IN THE CONDUCT OF ANY BUSINESS, TRADE OR COMMERCE OR
 IN THE FURNISHING OF ANY SERVICE IN THIS STATE TO  ABUSE  THAT  DOMINANT
 POSITION.
   3. Subject to the exceptions hereinafter provided in this section, the
 provisions  of  this  article shall apply to licensed insurers, licensed
 insurance  agents,  licensed  insurance  brokers,  licensed  independent
 adjusters  and other persons and organizations subject to the provisions
 of the insurance law, to the extent not regulated by provisions of arti-
 cle twenty-three of the insurance law; and further provided, that  noth-
 ing  in  this  section  shall  apply to the marine insurances, including
 marine  protection  and  indemnity  insurance  and  marine  reinsurance,
 exempted  from  the  operation  of article twenty-three of the insurance
 law.
   [3.] 4. The provisions of this article shall not apply to  cooperative
 associations,  corporate  or otherwise, of farmers, gardeners, or dairy-
 men, including live stock farmers and fruit growers, nor  to  contracts,
 agreements  or  arrangements made by such associations, nor to bona fide
 labor unions.
   [4.] 5. The labor of human beings shall not be deemed or held to be  a
 commodity  or article of commerce as such terms are used in this section
 and nothing herein contained shall be deemed to prohibit or restrict the
 right of workingmen to combine  in  unions,  organizations  and  associ-
 ations, not organized for the purpose of profit.
   [5.]  6.  An  action  to recover damages caused by a violation of this
 section must be commenced within four years after the  cause  of  action
 has accrued. The state, or any political subdivision or public authority
 of  the  state, or any person who shall sustain damages by reason of any
 violation of this section, shall recover three-fold the  actual  damages
 sustained  thereby, as well as costs not exceeding ten thousand dollars,
 and reasonable attorneys' fees. At or before  the  commencement  of  any
 civil  action by a party other than the attorney-general for a violation

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 of this section, notice thereof shall be served upon the attorney-gener-
 al. Where the aggrieved party  is  a  political  subdivision  or  public
 authority  of the state, notice of intention to commence an action under
 this  section must be served upon the attorney-general at least ten days
 prior to the commencement of such action. This section shall  not  apply
 to any action commenced prior to the effective date of this act.
   [6.]  7.  In  any  action  pursuant to this section, the fact that the
 state, or any political subdivision or public authority of the state, or
 any person who has sustained damages by  reason  of  violation  of  this
 section  has  not  dealt  directly  with  the defendant shall not bar or
 otherwise limit recovery; provided, however, that in any action in which
 claims are asserted against a defendant  by  both  direct  and  indirect
 purchasers,  the court shall take all steps necessary to avoid duplicate
 liability, including but not limited to the transfer  and  consolidation
 of  all  related  actions.  In  actions  where  both direct and indirect
 purchasers are involved, a defendant shall be entitled  to  prove  as  a
 partial  or  complete  defense  to  a claim for damages that the illegal
 overcharge has been passed on to others who are themselves  entitled  to
 recover so as to avoid duplication of recovery of damages.
   8.  ANY  DAMAGES RECOVERABLE PURSUANT TO THIS SECTION MAY BE RECOVERED
 IN ANY ACTION WHICH A COURT MAY AUTHORIZE  TO  BE  BROUGHT  AS  A  CLASS
 ACTION PURSUANT TO ARTICLE NINE OF THE CIVIL PRACTICE LAW AND RULES.
   9. AN ARRANGEMENT, AS THIS TERM IS USED IN THIS ARTICLE, INCLUDES, BUT
 IS NOT LIMITED TO, A CONTRACT, COMBINATION, AGREEMENT OR CONSPIRACY.
   §  4.  Section  341 of the general business law, as amended by chapter
 333 of the laws of 1975, is amended to read as follows:
   § 341. Penalty. Every person or corporation, or any officer  or  agent
 thereof,  who  shall  [make  or  attempt  to make or enter into any such
 contract, agreement, arrangement or combination or who within this state
 shall] do OR ATTEMPT TO DO, WITHIN THIS STATE, any act [pursuant  there-
 to]  DECLARED  UNLAWFUL  UNDER  THIS  ARTICLE,  or in, toward or for the
 consummation thereof[, wherever the same may have been made], is  guilty
 of  a  class [E] C felony, and on conviction thereof shall, if a natural
 person, be punished by a  fine  not  exceeding  one  [hundred  thousand]
 MILLION  dollars,  or by imprisonment for not longer than [four] FIFTEEN
 years, or by both such fine and imprisonment; and if a corporation, by a
 fine of not exceeding one HUNDRED  million  dollars.  An  indictment  or
 information  based  on  a  violation  of  any  of the provisions of this
 section must be found within [three] FIVE years after its commission. No
 criminal proceeding barred by prior limitation shall be revived by  this
 act.
   § 5. This act shall take effect immediately.