The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  933--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens. GIANARIS, SALAZAR, KAVANAGH, MAY -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Consumer  Protection  --  committee  discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee

 AN ACT to amend the general business law,  in  relation  to  actions  or
   practices   that  establish  or  maintain  a  monopoly,  monopsony  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 or monopsony are as  harmful  as
 contracts or agreements of multiple parties to do the same and should be
 treated  similarly  under  the law. After monopolies or monopsonies have
 been established, it is typically too late to  repair  or  mitigate  the
 damage which has been done. Accordingly, mere attempts to create monopo-
 lies  or  monopsonies  through  anti-competitive  conduct should also be
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD03654-05-1

 S. 933--A                           2
 
 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 effective enforcement against unilateral
 anti-competitive conduct has been impeded by courts, for example, apply-
 ing  narrow  definitions  of monopolies and monopolization, limiting the
 scope of unilateral conduct covered by the federal anti-trust laws,  and
 unreasonably  heightening the legal standards that plaintiffs must over-
 come to establish violations of  those  laws.  The  legislature  further
 finds  and  declares  that one of the purposes of the state's anti-trust
 laws is to ensure that our labor markets are open and fair. The legisla-
 ture further finds and declares  that  anti-competitive  practices  harm
 great  numbers  of citizens 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
 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,  MONOPSONY,  or  in
 restraint of trade illegal  and  void.  1.  Every  contract,  agreement,
 arrangement or combination whereby
   A  monopoly  OR  MONOPSONY  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. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON OR PERSONS TO MONOPOLIZE OR
 MONOPSONIZE,  OR  ATTEMPT  TO  MONOPOLIZE  OR MONOPSONIZE, OR COMBINE OR
 CONSPIRE WITH ANY OTHER PERSON OR PERSONS TO MONOPOLIZE  OR  MONOPSONIZE
 ANY BUSINESS, TRADE OR COMMERCE OR THE FURNISHING OF ANY SERVICE IN THIS
 STATE.
   (B)  IT  SHALL  BE  UNLAWFUL FOR ANY PERSON OR PERSONS WITH A DOMINANT
 POSITION IN THE CONDUCT OF ANY BUSINESS, TRADE OR COMMERCE, IN ANY LABOR
 MARKET, OR IN THE FURNISHING OF ANY SERVICE IN THIS STATE TO ABUSE  THAT
 DOMINANT POSITION.
   (I)  IN  ANY  ACTION BROUGHT UNDER THIS PARAGRAPH, A PERSON'S DOMINANT
 POSITION MAY BE ESTABLISHED BY DIRECT EVIDENCE, INDIRECT EVIDENCE, OR  A
 COMBINATION OF THE TWO.
   (1) DIRECT EVIDENCE MAY INCLUDE, BUT IS NOT LIMITED TO, THE UNILATERAL
 POWER  TO  SET  PRICES,  TERMS, CONDITIONS, OR STANDARDS; THE UNILATERAL
 POWER TO DICTATE NON-PRICE CONTRACTUAL TERMS  WITHOUT  COMPENSATION;  OR
 OTHER  EVIDENCE  THAT  A PERSON IS NOT CONSTRAINED BY MEANINGFUL COMPET-
 ITIVE PRESSURES, SUCH AS THE ABILITY TO DEGRADE QUALITY WITHOUT  SUFFER-
 ING  REDUCTION  IN PROFITABILITY. IN LABOR MARKETS, DIRECT EVIDENCE OF A
 DOMINANT POSITION MAY INCLUDE, BUT IS NOT LIMITED TO, THE  USE  OF  NON-

 S. 933--A                           3
 
 COMPETE  CLAUSES  OR NO-POACH AGREEMENTS, OR THE UNILATERAL POWER TO SET
 WAGES.
   (2)  A  PERSON'S DOMINANT POSITION MAY ALSO BE ESTABLISHED BY INDIRECT
 EVIDENCE SUCH AS THE PERSON'S SHARE OF A RELEVANT MARKET. A  PERSON  WHO
 HAS A SHARE OF FORTY PERCENT OR GREATER OF A RELEVANT MARKET AS A SELLER
 SHALL  BE PRESUMED TO HAVE A DOMINANT POSITION IN THAT MARKET UNDER THIS
 PARAGRAPH. A PERSON WHO HAS A SHARE OF THIRTY PERCENT OR  GREATER  OF  A
 RELEVANT MARKET AS A BUYER SHALL BE PRESUMED TO HAVE A DOMINANT POSITION
 IN THAT MARKET UNDER THIS PARAGRAPH.
   (3)  IF DIRECT EVIDENCE IS SUFFICIENT TO DEMONSTRATE THAT A PERSON HAS
 A DOMINANT POSITION OR HAS ABUSED SUCH A  DOMINANT  POSITION,  NO  COURT
 SHALL  REQUIRE  DEFINITION OF A RELEVANT MARKET IN ORDER TO EVALUATE THE
 EVIDENCE, FIND LIABILITY, OR FIND THAT A CLAIM  HAS  BEEN  STATED  UNDER
 THIS PARAGRAPH.
   (II)  IN  ANY ACTION BROUGHT UNDER THIS PARAGRAPH, ABUSE OF A DOMINANT
 POSITION MAY INCLUDE, BUT IS NOT LIMITED TO, CONDUCT THAT TENDS TO FORE-
 CLOSE OR LIMIT THE ABILITY OR INCENTIVE OF ONE OR MORE ACTUAL OR  POTEN-
 TIAL  COMPETITORS  TO COMPETE, SUCH AS LEVERAGING A DOMINANT POSITION IN
 ONE MARKET TO LIMIT COMPETITION IN A SEPARATE  MARKET,  OR  REFUSING  TO
 DEAL  WITH  ANOTHER PERSON WITH THE EFFECT OF UNNECESSARILY EXCLUDING OR
 HANDICAPPING ACTUAL OR POTENTIAL COMPETITORS. IN  LABOR  MARKETS,  ABUSE
 MAY  INCLUDE,  BUT  IS  NOT  LIMITED TO, IMPOSING CONTRACTS BY WHICH ANY
 PERSON IS RESTRAINED FROM ENGAGING IN A  LAWFUL  PROFESSION,  TRADE,  OR
 BUSINESS  OF  ANY  KIND, OR RESTRICTING THE FREEDOM OF WORKERS AND INDE-
 PENDENT CONTRACTORS TO DISCLOSE WAGE AND BENEFIT INFORMATION.
   (III) EVIDENCE OF PRO-COMPETITIVE EFFECTS SHALL NOT BE  A  DEFENSE  TO
 ABUSE OF DOMINANCE AND SHALL NOT OFFSET OR CURE COMPETITIVE HARM.
   (C) (I) THE ATTORNEY GENERAL IS HEREBY EMPOWERED TO ADOPT, PROMULGATE,
 AMEND,  AND  REPEAL  RULES,  AS SUCH TERM IS DEFINED IN PARAGRAPH (A) OF
 SUBDIVISION TWO OF SECTION ONE HUNDRED TWO OF THE  STATE  ADMINISTRATIVE
 PROCEDURE ACT, TO CARRY OUT THE PURPOSES OF PARAGRAPH (B) OF THIS SUBDI-
 VISION,  INCLUDING  THOSE  CONSIDERATIONS  SPECIFIED IN THE FINDINGS AND
 DECLARATIONS OF THE LEGISLATURE FOR THIS ACT.
   (II) BEFORE ANY SUCH RULE SHALL TAKE EFFECT, AT  SUCH  TIME  THAT  THE
 ATTORNEY  GENERAL  IS  PREPARED TO FILE A NOTICE OF ADOPTION PURSUANT TO
 SUBDIVISION FIVE OF SECTION TWO HUNDRED TWO OF THE STATE  ADMINISTRATIVE
 PROCEDURE ACT, THE ATTORNEY GENERAL SHALL TRANSMIT A COPY OF THE RULE IN
 ITS  FINAL FORM TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER
 OF THE ASSEMBLY AND, IN ADDITION, SHALL PROVIDE ANY RELEVANT INFORMATION
 REGARDING THE NEED FOR SUCH RULE. SUCH PROPOSED RULE, OR PROPOSED REPEAL
 OF A RULE, IS SUBJECT TO THE DENIAL BY EITHER HOUSE OF  THE  LEGISLATURE
 AND  SHALL  TAKE THE FORM OF A RESOLUTION. EACH HOUSE OF THE LEGISLATURE
 SHALL HAVE SIXTY DAYS FOLLOWING THE TRANSMISSION OF SUCH RULE  TO  ISSUE
 DENIAL  BY RESOLUTION OR TAKE NO ACTION. SUCH RULE SHALL NOT TAKE EFFECT
 IF EITHER HOUSE PASSES A RESOLUTION DENYING SUCH  PROPOSED  RULE  WITHIN
 THE TIME PRESCRIBED BY THIS SUBPARAGRAPH.
   (III)  THE ATTORNEY GENERAL SHALL ISSUE GUIDANCE ON HOW IT WILL INTER-
 PRET MARKET SHARES AND OTHER RELEVANT MARKET CONDITIONS TO  ACHIEVE  THE
 PURPOSES  OF PARAGRAPH (B) OF THIS SUBDIVISION WHILE TAKING INTO ACCOUNT
 THE IMPORTANT ROLE OF SMALL AND MEDIUM-SIZED BUSINESSES IN  THE  STATE'S
 ECONOMY.   THE ATTORNEY GENERAL MAY ISSUE OTHER GUIDANCE WITH RESPECT TO
 PARAGRAPH (B) OF THIS SUBDIVISION.
   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

 S. 933--A                           4
 
 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, INCLUDING EMPLOYEES AND INDEPENDENT CONTRACTORS, to
 combine in unions, organizations and associations, not organized for the
 purpose of profit, OR TO BARGAIN COLLECTIVELY CONCERNING THEIR WAGES AND
 THE  TERMS  AND  CONDITIONS  OF THEIR EMPLOYMENT. A BONA FIDE COLLECTIVE
 BARGAINING AGREEMENT, OR ANY  TERM  THEREIN,  SHALL  NOT  BE  CONSIDERED
 EVIDENCE OF A VIOLATION OR DOMINANCE UNDER THIS SECTION.
   [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
 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.
   10. PREMERGER NOTIFICATION.
   (A) ANY PERSON ACQUIRING, DIRECTLY OR INDIRECTLY, ANY  VOTING  SECURI-
 TIES  OR  ASSETS  OF  ANY OTHER PERSON, SHALL FILE NOTIFICATION WITH THE

 S. 933--A                           5
 
 ATTORNEY GENERAL PURSUANT TO RULES UNDER PARAGRAPH (H) OF THIS  SUBDIVI-
 SION HEREUNDER IF:
   (I)  AS  A RESULT OF SUCH ACQUISITION, THE ACQUIRING PERSON WOULD HOLD
 AN AGGREGATE TOTAL AMOUNT OF THE VOTING SECURITIES  AND  ASSETS  OF  THE
 ACQUIRED  PERSON  IN  EXCESS OF TEN PER CENTUM OF THE CURRENT THRESHOLDS
 SPECIFIED BY THE UNITED STATES FEDERAL TRADE COMMISSION PURSUANT  TO  15
 U.S.C. § 18A(A)(2); AND
   (II)  THE  ACQUIRING OR ACQUIRED PERSON HAS ASSETS OR ANNUAL NET SALES
 WITHIN THE STATE IN EXCESS OF TWO AND ONE-HALF PER CENTUM OF THE CURRENT
 THRESHOLDS SPECIFIED BY  THE  UNITED  STATES  FEDERAL  TRADE  COMMISSION
 PURSUANT TO 15 U.S.C. § 18A(A)(2)(A).
   (B)  THE NOTIFICATION REQUIRED UNDER PARAGRAPH (A) OF THIS SUBDIVISION
 SHALL BE FILED NO LATER THAN SIXTY CALENDAR DAYS BEFORE THE  CLOSING  OF
 THE ACQUISITION.
   (C)  THE NOTIFICATION REQUIRED UNDER PARAGRAPH (A) OF THIS SUBDIVISION
 SHALL IDENTIFY:
   (I) ALL PARTIES TO THE ACQUISITION.
   (II) THE ASSETS BEING TRANSFERRED IN THE ACQUISITION.
   (III) THE ANTICIPATED CLOSING DATE OF THE ACQUISITION.
   (IV) PERSONS SUBJECT TO THE REQUIREMENTS OF THIS PARAGRAPH WHO FILE  A
 NOTIFICATION WITH THE UNITED STATES DEPARTMENT OF JUSTICE AND THE UNITED
 STATES  FEDERAL  TRADE  COMMISSION  PURSUANT  TO 15 U.S.C. § 18A ET SEQ.
 SHALL COMPLY WITH THE REQUIREMENTS OF THIS SUBDIVISION  BY  FILING  WITH
 THE  ATTORNEY  GENERAL  THE SAME MATERIALS FILED WITH THE AFOREMENTIONED
 FEDERAL AGENCIES, AT THE SAME TIME THAT THEY FILE THOSE  MATERIALS  WITH
 THOSE FEDERAL AGENCIES.
   (D)    THE  FOLLOWING  CLASSES  OF  TRANSACTIONS  ARE  EXEMPT FROM THE
 REQUIREMENTS OF THIS SECTION:
   (I) ACQUISITIONS OF GOODS OR REALTY TRANSFERRED IN THE ORDINARY COURSE
 OF BUSINESS;
   (II) ACQUISITIONS OF BONDS, MORTGAGES, DEEDS OF TRUST, OR OTHER  OBLI-
 GATIONS WHICH ARE NOT VOTING SECURITIES;
   (III)  TRANSFERS  TO  OR FROM A FEDERAL AGENCY OR A STATE OR POLITICAL
 SUBDIVISION THEREOF;
   (IV) TRANSACTIONS SPECIFICALLY EXEMPTED FROM THE  PROVISIONS  OF  THIS
 ARTICLE; AND
   (V)  SUCH  OTHER  ACQUISITIONS,  TRANSFERS, OR TRANSACTIONS, AS MAY BE
 EXEMPTED UNDER PARAGRAPH (H) OF THIS SUBDIVISION HEREUNDER.
   (E) ANY INFORMATION OR DOCUMENTARY MATERIAL FILED  WITH  THE  ATTORNEY
 GENERAL  PURSUANT  TO  THIS  SUBDIVISION SHALL BE EXEMPT FROM DISCLOSURE
 UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW, AND NO SUCH INFORMATION OR
 DOCUMENTARY MATERIAL MAY BE MADE PUBLIC, EXCEPT AS MAY  BE  RELEVANT  TO
 ANY ADMINISTRATIVE OR JUDICIAL ACTION OR PROCEEDING.
   (F)  ANY  PERSON,  OR  ANY  OFFICER, DIRECTOR, OR PARTNER THEREOF, WHO
 FAILS TO COMPLY WITH ANY PROVISION OF THIS SUBDIVISION SHALL  BE  LIABLE
 TO  THE  STATE FOR A CIVIL PENALTY OF NOT MORE THAN TEN THOUSAND DOLLARS
 FOR EACH DAY DURING WHICH SUCH PERSON IS IN VIOLATION OF  THIS  SECTION.
 SUCH  PENALTY MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
 GENERAL.
   (G) IN CONSIDERING ANY TRANSACTION UNDER THIS SUBDIVISION, THE  ATTOR-
 NEY GENERAL SHALL CONSIDER SUCH TRANSACTION'S EFFECTS ON LABOR MARKETS.
   (H) THE ATTORNEY GENERAL IS HEREBY EMPOWERED TO:
   (I) DEFINE THE TERMS USED IN THIS SUBDIVISION;
   (II)  EXEMPT,  FROM  THE  REQUIREMENTS OF THIS SUBDIVISION, CLASSES OF
 PERSONS, ACQUISITIONS, TRANSFERS, OR TRANSACTIONS WHICH ARE  NOT  LIKELY
 TO VIOLATE THE PROVISIONS OF THIS ARTICLE; AND

 S. 933--A                           6
 
   (III)  ADOPT,  PROMULGATE,  AMEND,  AND  RESCIND OTHER RULES AND REGU-
 LATIONS TO CARRY OUT THE PURPOSES OF THIS SUBDIVISION.
   §  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 SUBDIVISION ONE AND PARAGRAPH (A) OF SUBDI-
 VISION TWO OF SECTION THREE HUNDRED FORTY OF THIS ARTICLE, or in, toward
 or for the consummation thereof[, wherever the same may have been made],
 is guilty of a class [E] D felony, and on conviction thereof shall, if a
 natural person, be punished by a fine not exceeding one  [hundred  thou-
 sand]  MILLION  dollars,  or  by  imprisonment  for not longer than four
 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. Section 342-a of the general business law, as amended by chapter
 275 of the laws of 1962, is amended to read as follows:
   § 342-a. Recovery of civil penalty by attorney-general. In lieu of any
 penalty otherwise prescribed for a violation  of  a  provision  of  this
 article  and  in addition to an action pursuant to section three hundred
 forty-two of this article, the attorney-general may bring an  action  in
 the  name  and  in behalf of the people of the state against any person,
 trustee, director, manager or other officer or agent of  a  corporation,
 or  against  a corporation, foreign or domestic, to recover a penalty in
 the sum specified in section three hundred forty-one of this article for
 the doing in this state of any act [herein] declared to  be  illegal  IN
 THIS ARTICLE, or any act in, toward or for the making or consummation of
 any  contract, agreement, arrangement or combination [herein] prohibited
 BY THIS ARTICLE, wherever the same may have been made. The  action  must
 be  brought  within  [three]  FIVE years after the commission of the act
 upon which it is based.
   § 6. Section 342-b of the general business law, as amended by  chapter
 420 of the laws of 1975, is amended to read as follows:
   §  342-b.  Recovery  of  damages  by  attorney general. In addition to
 existing statutory AND COMMON LAW authority to  bring  such  actions  on
 behalf  of the state, [and] public authorities, AND RESIDENT PERSONS AND
 ENTITIES, the attorney general may also bring action on  behalf  of  any
 political  subdivision or public authority of the state upon the request
 of such political subdivision or public authority, OR IN THE NAME OF THE
 STATE, AS PARENS PATRIAE, ON BEHALF OF PERSONS AND OTHER ENTITIES RESID-
 ING IN THE STATE OF NEW YORK,  to  recover  damages  for  violations  of
 section  three  hundred  forty  of  this  article, or to recover damages
 provided for by federal law for  violations  of  the  federal  antitrust
 laws.  In  any  class action the attorney general may bring on behalf of
 [these or other subordinate]  governmental  entities,  any  governmental
 entity  that does not affirmatively exclude itself from the action, upon
 due notice thereof, shall be deemed to have requested to be treated as a
 member of the class represented in that action.   The attorney  general,
 on behalf of the state of New York, shall be entitled to retain from any
 moneys  recovered  in  such  actions  the  costs  and  expenses  of such
 services.

 S. 933--A                           7
 
   § 7. The general business law is amended by adding a new section 342-d
 to read as follows:
   § 342-D. RECOVERY OF EXPERT WITNESSES' FEES AND COSTS BY ATTORNEY-GEN-
 ERAL  AND  PRIVATE  LITIGANTS.  IN  ANY ACTION ALLEGING A VIOLATION OF A
 PROVISION OF THIS ARTICLE, INCLUDING ACTIONS BROUGHT  UNDER  SUBDIVISION
 TWELVE OF SECTION SIXTY-THREE OF THE EXECUTIVE LAW, THE ATTORNEY GENERAL
 AND  PRIVATE  LITIGANTS  SHALL RECOVER REASONABLE FEES AND COSTS FOR ITS
 EXPERT WITNESSES AND CONSULTANTS IF  THE  ATTORNEY  GENERAL  OR  PRIVATE
 LITIGANTS PREVAIL IN SUCH ACTION.
   § 8. This act shall take effect immediately.

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  933--B
     Cal. No. 131
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced   by  Sens.  GIANARIS,  SALAZAR,  BIAGGI,  HOYLMAN,  JACKSON,
   KAVANAGH, MAY -- read twice and ordered printed, and when  printed  to
   be  committed  to  the  Committee  on Consumer Protection -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said  committee  --  recommitted  to  the  Committee  on  Consumer
   Protection in accordance with Senate Rule 6, sec. 8 -- reported favor-
   ably  from said committee, ordered to first and second report, ordered
   to a third reading, amended and ordered reprinted, retaining its place
   in the order of third reading
 
 AN ACT to amend the general business law,  in  relation  to  actions  or
   practices   that  establish  or  maintain  a  monopoly,  monopsony  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 or monopsony are as  harmful  as
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD03654-09-2
 S. 933--B                           2
 
 contracts or agreements of multiple parties to do the same and should be
 treated  similarly  under  the law. After monopolies or monopsonies have
 been established, it is typically too late to  repair  or  mitigate  the
 damage which has been done. Accordingly, mere attempts to create monopo-
 lies  or  monopsonies  through  anti-competitive  conduct 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 effective enforcement against unilateral
 anti-competitive conduct has been impeded by courts, for example, apply-
 ing narrow definitions of monopolies and  monopolization,  limiting  the
 scope  of unilateral conduct covered by the federal anti-trust laws, and
 unreasonably heightening the legal standards that plaintiffs and govern-
 ment enforcers must overcome to establish violations of those laws.  The
 legislature  further  finds and declares that one of the purposes of the
 state's anti-trust laws is to ensure that our labor markets are open and
 fair. The legislature further finds and declares  that  anti-competitive
 practices  harm great numbers of citizens 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
 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,  MONOPSONY,  or  in
 restraint of trade illegal  and  void.  1.  Every  contract,  agreement,
 arrangement or combination whereby
   A  monopoly  OR  MONOPSONY  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,
 MONOPSONY, 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 any business, trade or  commerce
 or  the  furnishing  of  any  service is or may be restrained, is hereby
 declared to be against public policy, illegal and void.
   2. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON OR PERSONS TO MONOPOLIZE OR
 MONOPSONIZE, OR ATTEMPT TO MONOPOLIZE  OR  MONOPSONIZE,  OR  COMBINE  OR
 CONSPIRE  WITH  ANY OTHER PERSON OR PERSONS TO MONOPOLIZE OR MONOPSONIZE
 ANY BUSINESS, TRADE OR COMMERCE OR THE FURNISHING OF ANY SERVICE IN THIS
 STATE.
   (B) IT SHALL BE UNLAWFUL FOR ANY PERSON OR  PERSONS  WITH  A  DOMINANT
 POSITION IN THE CONDUCT OF ANY BUSINESS, TRADE OR COMMERCE, IN ANY LABOR
 MARKET,  OR IN THE FURNISHING OF ANY SERVICE IN THIS STATE TO ABUSE THAT
 DOMINANT POSITION.
   (I) IN ANY ACTION BROUGHT UNDER THIS PARAGRAPH,  A  PERSON'S  DOMINANT
 POSITION  MAY BE ESTABLISHED BY DIRECT EVIDENCE, INDIRECT EVIDENCE, OR A
 COMBINATION OF THE TWO.
   (1) EXAMPLES OF DIRECT EVIDENCE INCLUDE, BUT ARE NOT LIMITED  TO,  THE
 UNILATERAL  POWER  TO  SET  PRICES, TERMS, CONDITIONS, OR STANDARDS; THE
 UNILATERAL POWER TO DICTATE NON-PRICE CONTRACTUAL TERMS WITHOUT  COMPEN-
 SATION; OR OTHER EVIDENCE THAT A PERSON IS NOT CONSTRAINED BY MEANINGFUL
 S. 933--B                           3
 
 COMPETITIVE  PRESSURES,  SUCH  AS THE ABILITY TO DEGRADE QUALITY WITHOUT
 SUFFERING REDUCTION IN PROFITABILITY.  IN  LABOR  MARKETS,  EXAMPLES  OF
 DIRECT  EVIDENCE INCLUDE, BUT ARE NOT LIMITED TO, THE USE OF NON-COMPETE
 CLAUSES OR NO-POACH AGREEMENTS, OR THE UNILATERAL POWER TO SET WAGES.
   (2)  A  PERSON'S DOMINANT POSITION MAY ALSO BE ESTABLISHED BY INDIRECT
 EVIDENCE SUCH AS THE PERSON'S SHARE OF A RELEVANT MARKET. A  PERSON  WHO
 HAS A SHARE OF FORTY PERCENT OR GREATER OF A RELEVANT MARKET AS A SELLER
 SHALL  BE PRESUMED TO HAVE A DOMINANT POSITION IN THAT MARKET UNDER THIS
 PARAGRAPH. A PERSON WHO HAS A SHARE OF THIRTY PERCENT OR  GREATER  OF  A
 RELEVANT MARKET AS A BUYER SHALL BE PRESUMED TO HAVE A DOMINANT POSITION
 IN THAT MARKET UNDER THIS PARAGRAPH.
   (3)  IF DIRECT EVIDENCE IS SUFFICIENT TO DEMONSTRATE THAT A PERSON HAS
 A DOMINANT POSITION OR HAS ABUSED SUCH A  DOMINANT  POSITION,  NO  COURT
 SHALL  REQUIRE  DEFINITION OF A RELEVANT MARKET IN ORDER TO EVALUATE THE
 EVIDENCE, FIND LIABILITY, OR FIND THAT A CLAIM  HAS  BEEN  STATED  UNDER
 THIS PARAGRAPH.
   (II)  IN  ANY ACTION BROUGHT UNDER THIS PARAGRAPH, ABUSE OF A DOMINANT
 POSITION MAY INCLUDE, BUT IS NOT LIMITED TO, CONDUCT THAT TENDS TO FORE-
 CLOSE OR LIMIT THE ABILITY OR INCENTIVE OF ONE OR MORE ACTUAL OR  POTEN-
 TIAL  COMPETITORS  TO COMPETE, SUCH AS LEVERAGING A DOMINANT POSITION IN
 ONE MARKET TO LIMIT COMPETITION IN A SEPARATE  MARKET,  OR  REFUSING  TO
 DEAL  WITH  ANOTHER PERSON WITH THE EFFECT OF UNNECESSARILY EXCLUDING OR
 HANDICAPPING ACTUAL OR POTENTIAL COMPETITORS. IN  LABOR  MARKETS,  ABUSE
 MAY  INCLUDE,  BUT  IS  NOT  LIMITED TO, IMPOSING CONTRACTS BY WHICH ANY
 PERSON IS RESTRAINED FROM ENGAGING IN A  LAWFUL  PROFESSION,  TRADE,  OR
 BUSINESS OF ANY KIND, OR BY RESTRICTING THE FREEDOM OF WORKERS AND INDE-
 PENDENT CONTRACTORS TO DISCLOSE WAGE AND BENEFIT INFORMATION.
   (III)  EVIDENCE  OF  PRO-COMPETITIVE EFFECTS SHALL NOT BE A DEFENSE TO
 ABUSE OF DOMINANCE AND SHALL NOT OFFSET OR CURE COMPETITIVE HARM.
   (C) (I) THE FOLLOWING CONDUCT IS PER SE ILLEGAL: THE USE OF NONCOMPETE
 CLAUSES, RESTRICTIONS ON CLASS AND COLLECTIVE ACTIONS ASIDE  FROM  THOSE
 PREREQUISITES  LAID  OUT  IN  ARTICLE NINE OF THE CIVIL PRACTICE LAW AND
 RULES, AND NO-POACH AGREEMENTS. THE CONDUCT IS PER  SE  ILLEGAL  WHETHER
 THE AGREEMENT IS HORIZONTAL OR VERTICAL.
   (II) ANY PERSON WHO VIOLATES THIS SECTION SHALL BE CIVILLY LIABLE TO A
 COVERED  EMPLOYEE  OR  INDEPENDENT CONTRACTOR FOR TREBLE DAMAGES, ATTOR-
 NEY'S FEES, AND COSTS, OR ALTERNATIVELY, AT THE ELECTION OF THE  COVERED
 EMPLOYEE  OR  INDEPENDENT  CONTRACTOR, STATUTORY DAMAGES OF TWO THOUSAND
 FIVE HUNDRED DOLLARS  PER  VIOLATION,  INCLUDING  ATTORNEY'S  FEES,  AND
 COSTS.
   (D) (I) THE ATTORNEY GENERAL IS HEREBY EMPOWERED TO ADOPT, PROMULGATE,
 AMEND,  AND  REPEAL  RULES,  AS SUCH TERM IS DEFINED IN PARAGRAPH (A) OF
 SUBDIVISION TWO OF SECTION ONE HUNDRED TWO OF THE  STATE  ADMINISTRATIVE
 PROCEDURE ACT, TO CARRY OUT THE PURPOSES OF PARAGRAPH (B) OF THIS SUBDI-
 VISION,  INCLUDING  THOSE  CONSIDERATIONS  SPECIFIED IN THE FINDINGS AND
 DECLARATIONS OF THE LEGISLATURE FOR THIS ACT.
   (II) BEFORE ANY SUCH RULE SHALL TAKE EFFECT, AT  SUCH  TIME  THAT  THE
 ATTORNEY  GENERAL  IS  PREPARED TO FILE A NOTICE OF ADOPTION PURSUANT TO
 SUBDIVISION FIVE OF SECTION TWO HUNDRED TWO OF THE STATE  ADMINISTRATIVE
 PROCEDURE ACT, THE ATTORNEY GENERAL SHALL TRANSMIT A COPY OF THE RULE IN
 ITS  FINAL FORM TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER
 OF THE ASSEMBLY AND, IN ADDITION, SHALL PROVIDE ANY RELEVANT INFORMATION
 REGARDING THE NEED FOR SUCH RULE. SUCH PROPOSED RULE, OR PROPOSED REPEAL
 OF A RULE, IS SUBJECT TO THE DENIAL BY BOTH HOUSES  OF  THE  LEGISLATURE
 AND  SHALL  TAKE THE FORM OF A RESOLUTION. EACH HOUSE OF THE LEGISLATURE
 SHALL HAVE SIXTY DAYS FOLLOWING THE TRANSMISSION OF SUCH RULE  TO  ISSUE
 S. 933--B                           4
 
 DENIAL  BY RESOLUTION OR TAKE NO ACTION. SUCH RULE SHALL NOT TAKE EFFECT
 IF BOTH HOUSES PASS A RESOLUTION DENYING SUCH PROPOSED RULE  WITHIN  THE
 TIME PRESCRIBED BY THIS SUBPARAGRAPH.
   (III)  THE ATTORNEY GENERAL SHALL ISSUE GUIDANCE ON HOW IT WILL INTER-
 PRET MARKET SHARES AND OTHER RELEVANT MARKET CONDITIONS TO  ACHIEVE  THE
 PURPOSES  OF PARAGRAPH (B) OF THIS SUBDIVISION WHILE TAKING INTO ACCOUNT
 THE IMPORTANT ROLE OF SMALL AND MEDIUM-SIZED BUSINESSES IN  THE  STATE'S
 ECONOMY.   THE ATTORNEY GENERAL MAY ISSUE OTHER GUIDANCE WITH RESPECT TO
 PARAGRAPH (B) OF THIS SUBDIVISION.
   (IV) NOTHING IN THIS SECTION SHALL BE DEEMED TO DIMINISH THE JURISDIC-
 TION OF THE PUBLIC SERVICE COMMISSION.
   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,  NOR  TO THE CREATION, PRODUCTION, AND DISSEMINATION OF A
 SINGLE EXPRESSIVE WORK THAT IS COPYRIGHTED, INCLUDING  BUT  NOT  LIMITED
 TO, A STREAMING SERIES, TELEVISION PROGRAMS AND OR MOTION PICTURES.
   [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, INCLUDING EMPLOYEES AND INDEPENDENT CONTRACTORS, to
 combine in unions, organizations and associations, not organized for the
 purpose  of  profit,  TO  ESTABLISH  OR MAINTAIN UNION APPRENTICESHIP OR
 TRAINING PROGRAMS THAT MAY LEAD TO ANY GOVERNMENT-ISSUED TRADE  LICENSE,
 OR  TO  BARGAIN  COLLECTIVELY  CONCERNING  THEIR WAGES AND THE TERMS AND
 CONDITIONS OF THEIR EMPLOYMENT. NOTHING IN THIS SECTION SHALL BE  DEEMED
 TO  PREVENT  OR  CREATE  LIABILITY WITH RESPECT TO ANY ACTIONS TO COMPLY
 WITH ARTICLE EIGHT OR NINE OF THE LABOR  LAW.  A  BONA  FIDE  COLLECTIVE
 BARGAINING  AGREEMENT,  PROJECT  LABOR  AGREEMENT OR ANY OTHER AGREEMENT
 LAWFUL UNDER 29 U.S.C. 158(F), AS AMENDED, OR ANY  TERM  THEREIN,  SHALL
 NOT  BE  CONSIDERED  EVIDENCE  OF  A  VIOLATION  OR DOMINANCE UNDER THIS
 SECTION.  PROJECT LABOR AGREEMENT SHALL HAVE THE  MEANING  SPECIFIED  IN
 SECTION  TWO HUNDRED TWENTY-TWO OF THE LABOR LAW.
   [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
 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
 S. 933--B                           5
 
 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.
   10. PREMERGER NOTIFICATION.
   (A)  ANY  PERSON CONDUCTING BUSINESS IN THE STATE WHICH IS REQUIRED TO
 FILE THE NOTIFICATION AND REPORT FORM FOR CERTAIN MERGERS  AND  ACQUISI-
 TIONS  PURSUANT  TO THE HART-SCOTT-RODINO  ANTITRUST IMPROVEMENTS ACT OF
 1976, 15 U.S.C. S. 18A (A), SHALL PROVIDE THE SAME NOTICE AND DOCUMENTA-
 TION IN ITS ENTIRETY TO THE ATTORNEY  GENERAL  AT  THE  SAME  TIME  THAT
 NOTICE IS FILED WITH THE FEDERAL GOVERNMENT.
   (B)    THE  FOLLOWING  CLASSES  OF  TRANSACTIONS  ARE  EXEMPT FROM THE
 REQUIREMENTS OF THIS SECTION:
   (I) ACQUISITIONS OF GOODS OR REALTY TRANSFERRED IN THE ORDINARY COURSE
 OF BUSINESS;
   (II) THE CREATION, PRODUCTION, AND DISSEMINATION OF A  SINGLE  EXPRES-
 SIVE WORK THAT IS COPYRIGHTED, INCLUDING BUT NOT LIMITED TO, A STREAMING
 SERIES, TELEVISION PROGRAMS AND OR MOTION PICTURES;
   (III) ACQUISITIONS OF BONDS, MORTGAGES, DEEDS OF TRUST, OR OTHER OBLI-
 GATIONS WHICH ARE NOT VOTING SECURITIES;
   (IV)  TRANSFERS  TO  OR  FROM A FEDERAL AGENCY OR A STATE OR POLITICAL
 SUBDIVISION THEREOF;
   (V) TRANSACTIONS SPECIFICALLY EXEMPTED FROM  THE  PROVISIONS  OF  THIS
 ARTICLE; AND
   (VI)  SUCH  OTHER  ACQUISITIONS, TRANSFERS, OR TRANSACTIONS, AS MAY BE
 EXEMPTED UNDER PARAGRAPH (F) OF THIS SUBDIVISION HEREUNDER.
   (C) ANY INFORMATION OR DOCUMENTARY MATERIAL FILED  WITH  THE  ATTORNEY
 GENERAL  PURSUANT  TO  THIS  SUBDIVISION SHALL BE EXEMPT FROM DISCLOSURE
 UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW, AND NO SUCH INFORMATION OR
 DOCUMENTARY MATERIAL MAY BE MADE PUBLIC, EXCEPT AS MAY  BE  RELEVANT  TO
 ANY ADMINISTRATIVE OR JUDICIAL ACTION OR PROCEEDING.
   (D)  ANY  PERSON,  OR  ANY  OFFICER, DIRECTOR, OR PARTNER THEREOF, WHO
 FAILS TO COMPLY WITH ANY PROVISION OF THIS SUBDIVISION SHALL  BE  LIABLE
 TO  THE  STATE FOR A CIVIL PENALTY OF NOT MORE THAN TEN THOUSAND DOLLARS
 FOR EACH DAY DURING WHICH SUCH PERSON IS IN VIOLATION OF  THIS  SECTION.
 SUCH  PENALTY MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE ATTORNEY
 GENERAL.
   (E) IN CONSIDERING ANY TRANSACTION UNDER THIS SUBDIVISION, THE  ATTOR-
 NEY GENERAL SHALL CONSIDER SUCH TRANSACTION'S EFFECTS ON LABOR MARKETS.
   (F) THE ATTORNEY GENERAL IS HEREBY EMPOWERED TO:
 S. 933--B                           6
 
   (I) DEFINE THE TERMS USED IN THIS SUBDIVISION;
   (II)  EXEMPT,  FROM  THE  REQUIREMENTS OF THIS SUBDIVISION, CLASSES OF
 PERSONS, ACQUISITIONS, TRANSFERS, OR TRANSACTIONS WHICH ARE  NOT  LIKELY
 TO VIOLATE THE PROVISIONS OF THIS ARTICLE; AND
   (III)  ADOPT,  PROMULGATE,  AMEND,  AND  RESCIND OTHER RULES AND REGU-
 LATIONS TO CARRY OUT THE PURPOSES OF THIS SUBDIVISION.
   § 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 SUBDIVISION ONE AND PARAGRAPH (A) OF  SUBDI-
 VISION TWO OF SECTION THREE HUNDRED FORTY OF THIS ARTICLE, or in, toward
 or for the consummation thereof[, wherever the same may have been made],
 is guilty of a class [E] D felony, and on conviction thereof shall, if a
 natural  person,  be punished by a fine not exceeding one [hundred thou-
 sand] MILLION dollars, or by  imprisonment  for  not  longer  than  four
 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. Section 342-a of the general business law, as amended by  chapter
 275 of the laws of 1962, is amended to read as follows:
   § 342-a. Recovery of civil penalty by attorney-general. In lieu of any
 penalty  otherwise  prescribed  for  a  violation of a provision of this
 article and in addition to an action pursuant to section  three  hundred
 forty-two  of  this article, the attorney-general may bring an action in
 the name and in behalf of the people of the state  against  any  person,
 trustee,  director,  manager or other officer or agent of a corporation,
 or against a corporation, foreign or domestic, to recover a  penalty  in
 the sum specified in section three hundred forty-one of this article for
 the  doing  in  this state of any act [herein] declared to be illegal IN
 THIS ARTICLE, or any act in, toward or for the making or consummation of
 any contract, agreement, arrangement or combination [herein]  prohibited
 BY  THIS  ARTICLE, wherever the same may have been made. The action must
 be brought within [three] FIVE years after the  commission  of  the  act
 upon which it is based.
   §  6. Section 342-b of the general business law, as amended by chapter
 420 of the laws of 1975, is amended to read as follows:
   § 342-b. Recovery of damages  by  attorney  general.  In  addition  to
 existing  statutory  AND  COMMON  LAW authority to bring such actions on
 behalf of the state, [and] public authorities, AND RESIDENT PERSONS  AND
 ENTITIES,  the  attorney  general may also bring action on behalf of any
 political subdivision or public authority of the state upon the  request
 of such political subdivision or public authority, OR IN THE NAME OF THE
 STATE, AS PARENS PATRIAE, ON BEHALF OF PERSONS AND OTHER ENTITIES RESID-
 ING  IN  THE  STATE  OF  NEW  YORK, to recover damages for violations of
 section three hundred forty of  this  article,  or  to  recover  damages
 provided  for  by  federal  law  for violations of the federal antitrust
 laws. In any class action the attorney general may bring  on  behalf  of
 [these  or  other  subordinate]  governmental entities, any governmental
 entity that does not affirmatively exclude itself from the action,  upon
 due notice thereof, shall be deemed to have requested to be treated as a
 S. 933--B                           7

 member  of  the class represented in that action.  The attorney general,
 on behalf of the state of New York, shall be entitled to retain from any
 moneys recovered  in  such  actions  the  costs  and  expenses  of  such
 services.
   § 7. The general business law is amended by adding a new section 342-d
 to read as follows:
   § 342-D. RECOVERY OF EXPERT WITNESSES' FEES AND COSTS BY ATTORNEY-GEN-
 ERAL  AND  PRIVATE  LITIGANTS.  IN  ANY ACTION ALLEGING A VIOLATION OF A
 PROVISION OF THIS ARTICLE, INCLUDING ACTIONS BROUGHT  UNDER  SUBDIVISION
 TWELVE OF SECTION SIXTY-THREE OF THE EXECUTIVE LAW, THE ATTORNEY GENERAL
 AND  PRIVATE  LITIGANTS  SHALL RECOVER REASONABLE FEES AND COSTS FOR ITS
 EXPERT WITNESSES AND CONSULTANTS IF  THE  ATTORNEY  GENERAL  OR  PRIVATE
 LITIGANTS PREVAIL IN SUCH ACTION.
   §  8.  Severability.  If any provision of this act, or the application
 thereof to any person or circumstances, is held invalid  or  unconstitu-
 tional,  that  invalidity  or unconstitutionality shall not affect other
 provisions or applications of this act that can be given effect  without
 the  invalid  or  unconstitutional provision or application, and to this
 end the provisions of this act are severable.
   § 9. This act shall take effect immediately.

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  933--C
     Cal. No. 131
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced   by  Sens.  GIANARIS,  SALAZAR,  BIAGGI,  HOYLMAN,  JACKSON,
   KAVANAGH, MAY -- read twice and ordered printed, and when  printed  to
   be  committed  to  the  Committee  on Consumer Protection -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said  committee  --  recommitted  to  the  Committee  on  Consumer
   Protection in accordance with Senate Rule 6, sec. 8 -- reported favor-
   ably  from said committee, ordered to first and second report, ordered
   to a third reading, amended and ordered reprinted, retaining its place
   in the order of third reading -- again amended and ordered  reprinted,
   retaining its place in the order of third reading
 
 AN  ACT  to  amend  the  general business law, in relation to actions or
   practices  that  establish  or  maintain  a  monopoly,  monopsony   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD03654-11-2
 S. 933--C                           2
 
 actions  which  seek to create a monopoly or monopsony are as harmful as
 contracts or agreements of multiple parties to do the same and should be
 treated similarly under the law. After monopolies  or  monopsonies  have
 been  established,  it  is  typically too late to repair or mitigate the
 damage which has been done. Accordingly, mere attempts to create monopo-
 lies or monopsonies through  anti-competitive  conduct  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 effective enforcement against unilateral
 anti-competitive conduct has been impeded by courts, for example, apply-
 ing  narrow  definitions  of monopolies and monopolization, limiting the
 scope of unilateral conduct covered by the federal anti-trust laws,  and
 unreasonably heightening the legal standards that plaintiffs and govern-
 ment  enforcers must overcome to establish violations of those laws. The
 legislature further finds and declares that one of the purposes  of  the
 state's anti-trust laws is to ensure that our labor markets are open and
 fair.  The  legislature further finds and declares that anti-competitive
 practices harm great numbers of citizens 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
 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,  MONOPSONY,  or  in
 restraint  of  trade  illegal  and  void.  1. Every contract, agreement,
 arrangement or combination whereby
   A monopoly OR MONOPSONY 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,
 MONOPSONY,  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 any business, trade or commerce
 or the furnishing of any service is or  may  be  restrained,  is  hereby
 declared to be against public policy, illegal and void.
   2. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON OR PERSONS TO MONOPOLIZE OR
 MONOPSONIZE,  OR  ATTEMPT  TO  MONOPOLIZE  OR MONOPSONIZE, OR COMBINE OR
 CONSPIRE WITH ANY OTHER PERSON OR PERSONS TO MONOPOLIZE  OR  MONOPSONIZE
 ANY BUSINESS, TRADE OR COMMERCE OR THE FURNISHING OF ANY SERVICE IN THIS
 STATE.
   (B)  IT  SHALL  BE  UNLAWFUL FOR ANY PERSON OR PERSONS WITH A DOMINANT
 POSITION IN THE CONDUCT OF ANY BUSINESS, TRADE OR COMMERCE, IN ANY LABOR
 MARKET, OR IN THE FURNISHING OF ANY SERVICE IN THIS STATE TO ABUSE  THAT
 DOMINANT POSITION.
   (I)  IN  ANY  ACTION BROUGHT UNDER THIS PARAGRAPH, A PERSON'S DOMINANT
 POSITION MAY BE ESTABLISHED BY DIRECT EVIDENCE, INDIRECT EVIDENCE, OR  A
 COMBINATION OF THE TWO.
   (1)  EXAMPLES  OF DIRECT EVIDENCE INCLUDE, BUT ARE NOT LIMITED TO, THE
 UNILATERAL POWER TO SET PRICES, TERMS,  CONDITIONS,  OR  STANDARDS;  THE
 UNILATERAL  POWER TO DICTATE NON-PRICE CONTRACTUAL TERMS WITHOUT COMPEN-
 S. 933--C                           3
 
 SATION; OR OTHER EVIDENCE THAT A PERSON IS NOT CONSTRAINED BY MEANINGFUL
 COMPETITIVE PRESSURES, SUCH AS THE ABILITY TO  DEGRADE  QUALITY  WITHOUT
 SUFFERING  REDUCTION  IN  PROFITABILITY.  IN  LABOR MARKETS, EXAMPLES OF
 DIRECT  EVIDENCE INCLUDE, BUT ARE NOT LIMITED TO, THE USE OF NON-COMPETE
 CLAUSES OR NO-POACH AGREEMENTS, OR THE UNILATERAL POWER TO SET WAGES.
   (2) A PERSON'S DOMINANT POSITION MAY ALSO BE ESTABLISHED  BY  INDIRECT
 EVIDENCE  SUCH  AS THE PERSON'S SHARE OF A RELEVANT MARKET. A PERSON WHO
 HAS A SHARE OF FORTY PERCENT OR GREATER OF A RELEVANT MARKET AS A SELLER
 SHALL BE PRESUMED TO HAVE A DOMINANT POSITION IN THAT MARKET UNDER  THIS
 PARAGRAPH.  A  PERSON  WHO HAS A SHARE OF THIRTY PERCENT OR GREATER OF A
 RELEVANT MARKET AS A BUYER SHALL BE PRESUMED TO HAVE A DOMINANT POSITION
 IN THAT MARKET UNDER THIS PARAGRAPH.
   (3) IF DIRECT EVIDENCE IS SUFFICIENT TO DEMONSTRATE THAT A PERSON  HAS
 A  DOMINANT  POSITION  OR  HAS ABUSED SUCH A DOMINANT POSITION, NO COURT
 SHALL REQUIRE DEFINITION OF A RELEVANT MARKET IN ORDER TO  EVALUATE  THE
 EVIDENCE,  FIND  LIABILITY,  OR  FIND THAT A CLAIM HAS BEEN STATED UNDER
 THIS PARAGRAPH.
   (II) IN ANY ACTION BROUGHT UNDER THIS PARAGRAPH, ABUSE OF  A  DOMINANT
 POSITION MAY INCLUDE, BUT IS NOT LIMITED TO, CONDUCT THAT TENDS TO FORE-
 CLOSE  OR LIMIT THE ABILITY OR INCENTIVE OF ONE OR MORE ACTUAL OR POTEN-
 TIAL COMPETITORS TO COMPETE, SUCH AS LEVERAGING A DOMINANT  POSITION  IN
 ONE  MARKET  TO  LIMIT  COMPETITION IN A SEPARATE MARKET, OR REFUSING TO
 DEAL WITH ANOTHER PERSON WITH THE EFFECT OF UNNECESSARILY  EXCLUDING  OR
 HANDICAPPING  ACTUAL  OR  POTENTIAL COMPETITORS. IN LABOR MARKETS, ABUSE
 MAY INCLUDE, BUT IS NOT LIMITED TO,  IMPOSING  CONTRACTS  BY  WHICH  ANY
 PERSON  IS  RESTRAINED  FROM  ENGAGING IN A LAWFUL PROFESSION, TRADE, OR
 BUSINESS OF ANY KIND, OR BY RESTRICTING THE FREEDOM OF WORKERS AND INDE-
 PENDENT CONTRACTORS TO DISCLOSE WAGE AND BENEFIT INFORMATION.
   (III) EVIDENCE OF PRO-COMPETITIVE EFFECTS SHALL NOT BE  A  DEFENSE  TO
 ABUSE OF DOMINANCE AND SHALL NOT OFFSET OR CURE COMPETITIVE HARM.
   (C) (I) THE ATTORNEY GENERAL IS HEREBY EMPOWERED TO ADOPT, PROMULGATE,
 AMEND,  AND  REPEAL  RULES,  AS SUCH TERM IS DEFINED IN PARAGRAPH (A) OF
 SUBDIVISION TWO OF SECTION ONE HUNDRED TWO OF THE  STATE  ADMINISTRATIVE
 PROCEDURE ACT, TO CARRY OUT THE PURPOSES OF PARAGRAPH (B) OF THIS SUBDI-
 VISION,  INCLUDING  THOSE  CONSIDERATIONS  SPECIFIED IN THE FINDINGS AND
 DECLARATIONS OF THE LEGISLATURE FOR THIS ACT.
   (II) BEFORE ANY SUCH RULE SHALL TAKE EFFECT, AT  SUCH  TIME  THAT  THE
 ATTORNEY  GENERAL  IS  PREPARED TO FILE A NOTICE OF ADOPTION PURSUANT TO
 SUBDIVISION FIVE OF SECTION TWO HUNDRED TWO OF THE STATE  ADMINISTRATIVE
 PROCEDURE ACT, THE ATTORNEY GENERAL SHALL TRANSMIT A COPY OF THE RULE IN
 ITS  FINAL FORM TO THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER
 OF THE ASSEMBLY AND, IN ADDITION, SHALL PROVIDE ANY RELEVANT INFORMATION
 REGARDING THE NEED FOR SUCH RULE. SUCH PROPOSED RULE, OR PROPOSED REPEAL
 OF A RULE, IS SUBJECT TO THE DENIAL BY BOTH HOUSES  OF  THE  LEGISLATURE
 AND  SHALL  TAKE THE FORM OF A RESOLUTION. EACH HOUSE OF THE LEGISLATURE
 SHALL HAVE SIXTY DAYS FOLLOWING THE TRANSMISSION OF SUCH RULE  TO  ISSUE
 DENIAL  BY RESOLUTION OR TAKE NO ACTION. SUCH RULE SHALL NOT TAKE EFFECT
 IF BOTH HOUSES PASS A RESOLUTION DENYING SUCH PROPOSED RULE  WITHIN  THE
 TIME PRESCRIBED BY THIS SUBPARAGRAPH.
   (III)  THE ATTORNEY GENERAL SHALL ISSUE GUIDANCE ON HOW IT WILL INTER-
 PRET MARKET SHARES AND OTHER RELEVANT MARKET CONDITIONS TO  ACHIEVE  THE
 PURPOSES  OF PARAGRAPH (B) OF THIS SUBDIVISION WHILE TAKING INTO ACCOUNT
 THE IMPORTANT ROLE OF SMALL AND MEDIUM-SIZED BUSINESSES IN  THE  STATE'S
 ECONOMY.   THE ATTORNEY GENERAL MAY ISSUE OTHER GUIDANCE WITH RESPECT TO
 PARAGRAPH (B) OF THIS SUBDIVISION.
 S. 933--C                           4
 
   (IV) NOTHING IN THIS SECTION SHALL BE DEEMED TO DIMINISH THE JURISDIC-
 TION OF THE PUBLIC SERVICE COMMISSION.
   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, NOR TO THE CREATION, PRODUCTION, AND  DISSEMINATION  OF  A
 SINGLE  EXPRESSIVE  WORK  THAT IS COPYRIGHTED, INCLUDING BUT NOT LIMITED
 TO, A STREAMING SERIES, TELEVISION PROGRAMS AND OR MOTION PICTURES.
   [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, INCLUDING EMPLOYEES AND INDEPENDENT CONTRACTORS, to
 combine in unions, organizations and associations, not organized for the
 purpose of profit, TO ESTABLISH  OR  MAINTAIN  UNION  APPRENTICESHIP  OR
 TRAINING  PROGRAMS THAT MAY LEAD TO ANY GOVERNMENT-ISSUED TRADE LICENSE,
 OR TO BARGAIN COLLECTIVELY CONCERNING THEIR  WAGES  AND  THE  TERMS  AND
 CONDITIONS  OF THEIR EMPLOYMENT. NOTHING IN THIS SECTION SHALL BE DEEMED
 TO PREVENT OR CREATE LIABILITY WITH RESPECT TO  ANY  ACTIONS  TO  COMPLY
 WITH  ARTICLE  EIGHT  OR  NINE  OF THE LABOR LAW. A BONA FIDE COLLECTIVE
 BARGAINING AGREEMENT, PROJECT LABOR AGREEMENT  OR  ANY  OTHER  AGREEMENT
 LAWFUL  UNDER  29  U.S.C. 158(F), AS AMENDED, OR ANY TERM THEREIN, SHALL
 NOT BE CONSIDERED EVIDENCE  OF  A  VIOLATION  OR  DOMINANCE  UNDER  THIS
 SECTION.    PROJECT  LABOR AGREEMENT SHALL HAVE THE MEANING SPECIFIED IN
 SECTION  TWO HUNDRED TWENTY-TWO OF THE LABOR LAW.
   [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
 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
 S. 933--C                           5
 
 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.
   10.  (A) ANY PERSON CONDUCTING BUSINESS IN THE STATE WHICH IS REQUIRED
 TO FILE THE NOTIFICATION AND REPORT FORM FOR CERTAIN MERGERS AND  ACQUI-
 SITIONS PURSUANT TO THE HART-SCOTT-RODINO  ANTITRUST IMPROVEMENTS ACT OF
 1976, 15 U.S.C. S. 18A (A), SHALL PROVIDE THE SAME NOTICE AND DOCUMENTA-
 TION  IN  ITS  ENTIRETY  TO  THE  ATTORNEY GENERAL AT THE SAME TIME THAT
 NOTICE IS FILED WITH THE FEDERAL GOVERNMENT.
   (B)   THE FOLLOWING  CLASSES  OF  TRANSACTIONS  ARE  EXEMPT  FROM  THE
 REQUIREMENTS OF THIS SECTION:
   (I) ACQUISITIONS OF GOODS OR REALTY TRANSFERRED IN THE ORDINARY COURSE
 OF BUSINESS;
   (II)  THE  CREATION, PRODUCTION, AND DISSEMINATION OF A SINGLE EXPRES-
 SIVE WORK THAT IS COPYRIGHTED, INCLUDING BUT NOT LIMITED TO, A STREAMING
 SERIES, TELEVISION PROGRAMS AND OR MOTION PICTURES;
   (III) ACQUISITIONS OF BONDS, MORTGAGES, DEEDS OF TRUST, OR OTHER OBLI-
 GATIONS WHICH ARE NOT VOTING SECURITIES;
   (IV) TRANSFERS TO OR FROM A FEDERAL AGENCY OR  A  STATE  OR  POLITICAL
 SUBDIVISION THEREOF;
   (V)  TRANSACTIONS  SPECIFICALLY  EXEMPTED  FROM THE PROVISIONS OF THIS
 ARTICLE; AND
   (VI) SUCH OTHER ACQUISITIONS, TRANSFERS, OR TRANSACTIONS,  AS  MAY  BE
 EXEMPTED UNDER PARAGRAPH (F) OF THIS SUBDIVISION HEREUNDER.
   (C)  ANY  INFORMATION  OR DOCUMENTARY MATERIAL FILED WITH THE ATTORNEY
 GENERAL PURSUANT TO THIS SUBDIVISION SHALL  BE  EXEMPT  FROM  DISCLOSURE
 UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW, AND NO SUCH INFORMATION OR
 DOCUMENTARY  MATERIAL  MAY  BE MADE PUBLIC, EXCEPT AS MAY BE RELEVANT TO
 ANY ADMINISTRATIVE OR JUDICIAL ACTION OR PROCEEDING.
   (D) ANY PERSON, OR ANY OFFICER,  DIRECTOR,  OR  PARTNER  THEREOF,  WHO
 FAILS  TO  COMPLY WITH ANY PROVISION OF THIS SUBDIVISION SHALL BE LIABLE
 TO THE STATE FOR A CIVIL PENALTY OF NOT MORE THAN TEN  THOUSAND  DOLLARS
 FOR  EACH  DAY DURING WHICH SUCH PERSON IS IN VIOLATION OF THIS SECTION.
 SUCH PENALTY MAY BE RECOVERED IN A CIVIL ACTION BROUGHT BY THE  ATTORNEY
 GENERAL.
   (E)  IN CONSIDERING ANY TRANSACTION UNDER THIS SUBDIVISION, THE ATTOR-
 NEY GENERAL SHALL CONSIDER SUCH TRANSACTION'S EFFECTS ON LABOR MARKETS.
   (F) THE ATTORNEY GENERAL IS HEREBY EMPOWERED TO:
   (I) DEFINE THE TERMS USED IN THIS SUBDIVISION;
   (II) EXEMPT, FROM THE REQUIREMENTS OF  THIS  SUBDIVISION,  CLASSES  OF
 PERSONS,  ACQUISITIONS,  TRANSFERS, OR TRANSACTIONS WHICH ARE NOT LIKELY
 TO VIOLATE THE PROVISIONS OF THIS ARTICLE; AND
   (III) ADOPT, PROMULGATE, AMEND, AND  RESCIND  OTHER  RULES  AND  REGU-
 LATIONS TO CARRY OUT THE PURPOSES OF THIS SUBDIVISION.
   §  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
 S. 933--C                           6

 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 SUBDIVISION ONE AND PARAGRAPH (A) OF SUBDI-
 VISION TWO OF SECTION THREE HUNDRED FORTY OF THIS ARTICLE, or in, toward
 or for the consummation thereof[, wherever the same may have been made],
 is guilty of a class [E] D felony, and on conviction thereof shall, if a
 natural  person,  be punished by a fine not exceeding one [hundred thou-
 sand] MILLION dollars, or by  imprisonment  for  not  longer  than  four
 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. Section 342-a of the general business law, as amended by  chapter
 275 of the laws of 1962, is amended to read as follows:
   § 342-a. Recovery of civil penalty by attorney-general. In lieu of any
 penalty  otherwise  prescribed  for  a  violation of a provision of this
 article and in addition to an action pursuant to section  three  hundred
 forty-two  of  this article, the attorney-general may bring an action in
 the name and in behalf of the people of the state  against  any  person,
 trustee,  director,  manager or other officer or agent of a corporation,
 or against a corporation, foreign or domestic, to recover a  penalty  in
 the sum specified in section three hundred forty-one of this article for
 the  doing  in  this state of any act [herein] declared to be illegal IN
 THIS ARTICLE, or any act in, toward or for the making or consummation of
 any contract, agreement, arrangement or combination [herein]  prohibited
 BY  THIS  ARTICLE, wherever the same may have been made. The action must
 be brought within [three] FIVE years after the  commission  of  the  act
 upon which it is based.
   §  6. Section 342-b of the general business law, as amended by chapter
 420 of the laws of 1975, is amended to read as follows:
   § 342-b. Recovery of damages  by  attorney  general.  In  addition  to
 existing  statutory  AND  COMMON  LAW authority to bring such actions on
 behalf of the state, [and] public authorities, AND RESIDENT PERSONS  AND
 ENTITIES,  the  attorney  general may also bring action on behalf of any
 political subdivision or public authority of the state upon the  request
 of such political subdivision or public authority, OR IN THE NAME OF THE
 STATE, AS PARENS PATRIAE, ON BEHALF OF PERSONS AND OTHER ENTITIES RESID-
 ING  IN  THE  STATE  OF  NEW  YORK, to recover damages for violations of
 section three hundred forty of  this  article,  or  to  recover  damages
 provided  for  by  federal  law  for violations of the federal antitrust
 laws. In any class action the attorney general may bring  on  behalf  of
 [these  or  other  subordinate]  governmental entities, any governmental
 entity that does not affirmatively exclude itself from the action,  upon
 due notice thereof, shall be deemed to have requested to be treated as a
 member  of  the class represented in that action.  The attorney general,
 on behalf of the state of New York, shall be entitled to retain from any
 moneys recovered  in  such  actions  the  costs  and  expenses  of  such
 services.
   § 7. The general business law is amended by adding a new section 342-d
 to read as follows:
   § 342-D. RECOVERY OF EXPERT WITNESSES' FEES AND COSTS BY ATTORNEY-GEN-
 ERAL  AND  PRIVATE  LITIGANTS.  IN  ANY ACTION ALLEGING A VIOLATION OF A
 PROVISION OF THIS ARTICLE, INCLUDING ACTIONS BROUGHT  UNDER  SUBDIVISION
 TWELVE OF SECTION SIXTY-THREE OF THE EXECUTIVE LAW, THE ATTORNEY GENERAL
 S. 933--C                           7
 
 AND  PRIVATE  LITIGANTS  SHALL RECOVER REASONABLE FEES AND COSTS FOR ITS
 EXPERT WITNESSES AND CONSULTANTS IF  THE  ATTORNEY  GENERAL  OR  PRIVATE
 LITIGANTS PREVAIL IN SUCH ACTION.
   §  8.  Severability.  If any provision of this act, or the application
 thereof to any person or circumstances, is held invalid  or  unconstitu-
 tional,  that  invalidity  or unconstitutionality shall not affect other
 provisions or applications of this act that can be given effect  without
 the  invalid  or  unconstitutional provision or application, and to this
 end the provisions of this act are severable.
   § 9. This act shall take effect immediately.