S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10656
 
                           I N  A S S E M B L Y
 
                               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, consum-
   er, civil rights, and employment disputes
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, 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  DISADVAN-
 TAGE;
   (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  SUPPRESS-
 ING COMPETITION;
   (F) PROHIBITING DISTRIBUTORS, SUPPLIERS, OR CUSTOMERS FROM DOING BUSI-
 NESS WITH RIVAL FIRMS;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD16045-01-0

 A. 10656                            2
 
   (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 TECHNOLOG-
 ICAL 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  MONO-
 POLIZATION  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 PREPON-
 DERANCE OF THE EVIDENCE THAT THE PRO-COMPETITIVE BENEFITS OF THE  TRANS-
 ACTION, 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 ARBI-
 TRATION 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:

 A. 10656                            3
 
   (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 PROP-
 ERTY, SERVICES (INCLUDING SERVICES RELATED TO DIGITAL TECHNOLOGY), SECU-
 RITIES  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, DISA-
 BILITY, RELIGION, NATIONAL ORIGIN, OR ANY LEGALLY  PROTECTED  STATUS  IN
 EDUCATION, EMPLOYMENT, CREDIT, HOUSING, PUBLIC ACCOMMODATIONS AND FACIL-
 ITIES,  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 EXPLICIT-
 LY 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 RELATION-
 SHIP 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 EXPLICIT-
 LY  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, CONCERN-
 ING 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 ENFORCEABILI-
 TY OF AN AGREEMENT TO WHICH THIS SECTION APPLIES, SHALL BE DETERMINED BY
 A COURT, RATHER THAN AN ARBITRATOR, IRRESPECTIVE OF  WHETHER  THE  PARTY

 A. 10656                            4
 
 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.