New York State Senate Passes Groundbreaking Antitrust Bill
The New York State Senate pushed the state’s groundbreaking antitrust bill a little bit closer to becoming a trailblazing law yesterday when it passed the proposed “Twenty-First Century Anti-Trust Act.”
On May 25, 2022, just days before the scheduled close of the legislative session, the State Senate passed the bill, S933C, by a vote of 36 to 25.
The bill now heads to the New York State Assembly. It must still pass the Assembly and be signed by the governor to become law.
For followers of this landmark legislation, it may feel like déjà vu all over again. Last year, an earlier version of the bill (S933A) passed the New York Senate by a vote of 43 to 20, but it did not pass the Assembly before the close of the legislative session.
A new version of the bill is under consideration this year, with several significant amendments that the Senate made last week. The revised legislation now has a few days left in the scheduled legislative session to get across the finish line.
Like its earlier versions, the current bill (S933C) would fundamentally reshape antitrust law and enforcement in New York. Constantine Cannon lawyers have extensively analyzed the bill and its implications, including during a webinar that the firm hosted featuring the bill’s sponsor, Deputy Majority Leader Sen. Michael Gianaris, and leading antitrust scholars and practitioners.
Constantine Cannon lawyers have also written on the many ways the bill would remake antitrust law in New York. To recap, here are some of the key changes the bill would make to New York’s antitrust statute, the Donnelly Act.
- The Bill Would Introduce an Abuse of Dominance Standard
The bill would introduce, for the first time on US soil, an EU-inspired abuse of dominance antitrust standard. This standard would extend beyond unilateral monopolization or attempted monopolization claims, which the bill also prohibits. Abuse of dominance would cover, for example, “conduct that tends to foreclose or limit the ability or incentive of … actual or potential competitors to compete,” “leveraging a dominant position in one market to limit competition in a separate market,” certain refusals to deal that have “the effect of unnecessarily excluding … competitors,” or, in labor markets, “imposing contracts by which any person is restrained from engaging in a lawful … business of any kind ….”
The details are here, from page 2, line 47 to page 3, line 30 of the bill. Constantine Cannon lawyers have analyzed the abuse-of-dominance provisions and their implications in other posts found here and here.
- The Bill Would Launch a State Premerger Review Program
The bill would substantially strengthen New York’s review of mergers and acquisitions. The bill would require any person or entity “conducting business” in New York that is required to file the federal Hart-Scott-Rodino notification and report form to “provide the same notice and documentation in its entirety” to the New York Attorney General (NYAG) “at the same time that notice is filed with the federal government.” The bill exempts certain transactions from the reporting requirements and empowers the NYAG to create additional exemptions.
The details are here, from page 5, lines 12 to 52 of the bill. Constantine Cannon lawyers have analyzed this bill’s state premerger review program, as well as the prior iteration of the program in the earlier version of the bill, in other posts found here and here.
- The Bill Would Enhance Private Antitrust Enforcement
The bill would enhance the ability of private plaintiffs to bring antitrust cases and incentivize them to do so. In addition to explicitly allowing antitrust class actions for damages, the bill would allow prevailing private litigants (or the NYAG) to recover “reasonable fees and costs for its expert witnesses and consultants,” which often run six to seven figures for complex antitrust cases.
The details are here, from page 5, lines 7 to 9 and from page 6, line 53 to page 7, line 3 of the bill. Constantine Cannon lawyers have analyzed these provisions in other posts found here and here.
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If passed, the bill would fundamentally change New York antitrust law and enforcement and make New York a trailblazer for other jurisdictions.
Stay tuned. We will soon learn whether or not the bill will become law this year.
Written by Daniel Vitelli
Edited by Gary J. Malone