Sponsored by:
Assemblyman JOHN F. MCKEON
District 27 (Essex and Morris)
SYNOPSIS
Amends New Jersey Antitrust Act to make monopsony illegal and regulate entity in dominate position in market.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the New Jersey Antitrust Act and amending P.L.1970, c.73.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 4 of P.L.1970, c.73 (C.56:9-4) is amended to read as follows:
4. a. It shall be unlawful for any person to monopolize or monopsonize, or attempt to monopolize or monopsonize, or to combine or conspire with any person or persons, to monopolize or monopsonize trade or commerce in any relevant market, or the furnishing of any service within this State.
b. No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition within this State between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community of this State, or tend to create a monopoly of any line of commerce within this State.
c. No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of such acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition within this State between such corporations, or any of them, or to restrain such commerce in any section or community of this State, or tend to create a monopoly of any line of commerce within this State.
d. It shall be unlawful for any person 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.
(1) In any action brought due to a violation of this subsection, a person's dominant position may be established by direct evidence, indirect evidence, or a combination of the two.
(a) 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 compensation; 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.
(b) 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 subsection. 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 subsection.
(c) 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 subsection.
(2) In any action brought due to a violation of this subsection, abuse of a dominant position may include, but is not limited to, conduct that tends to foreclose or limit the ability or incentive of one or more actual or potential 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 independent contractors to disclose wage and benefit information.
(3) Evidence of pro-competitive effects shall not be a defense to abuse of dominance and shall not offset or cure competitive harm.
e. (1) The Attorney General shall promulgate rules and regulations pursuant to the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.) to implement the provisions of P.L. , c. (C.56:9-4 et seq.) (pending before the Legislature as this act).
(2) The Attorney General shall issue guidance on how it will interpret market shares and other relevant market conditions to achieve the purposes of subsection d. of this section 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 subsection d. of this section.
f. This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. Nor shall anything contained in this section prevent a corporation engaged in commerce from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions thereof, or from owning and holding all or a part of the stock of such subsidiary corporations, when the effect of such formation is not to substantially lessen competition.
[e.] g. Nothing contained in this section shall be held to affect or impair any right heretofore legally acquired.
(cf: P.L.1970, c.73, s.4)
2. Section 5 of P.L.1970, c.73 (C.56:9-5) is amended to read as follows:
5. a. [This act] P.L.1970, c.73 (C.56:9-4 et seq.) shall not forbid the existence of trade and professional organizations created for the purpose of mutual help, and not having capital stock, nor forbid or restrain members of such organizations from lawfully carrying out the legitimate objects thereof not otherwise in violation of [this act] P.L.1970, c.73 (C.56:9-4 et seq.); nor shall those organizations or members per se be illegal combinations or conspiracies in restraint of trade under the provisions of [this act] P.L.1970, c.73 (C.56:9-4 et seq.).
b. No provisions of [this act] P.L.1970, c.73 (C.56:9-4 et seq.) shall be construed to make illegal:
(1) The activities of any labor organization or of individual members thereof which are directed solely to labor objectives which are legitimate under the laws of either the State of New Jersey or the United States, or activities of individuals to establish or maintain union apprenticeship or training programs that may lead to any government-issued trade license, to bargain collectively concerning wages and the terms and conditions of employment;
(2) The activities of any agricultural or horticultural cooperative organization, whether incorporated or unincorporated, or of individual members thereof, which are directed solely to objectives of such cooperative organizations which are legitimate under the laws of either the State of New Jersey or the United States;
(3) The activities of any public utility, as defined in R.S.48:2-13 to the extent that such activities are subject to the jurisdiction of the Board of Public Utilitie