HF 1563

as introduced - 93rd Legislature (2023 - 2024) Posted on 02/20/2023 06:58pm

A bill for an act
relating to trade regulations; prohibiting abuse of dominance; proposing coding
for new law in Minnesota Statutes, chapter 325D.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [325D.035] ABUSE OF DOMINANCE.
new text end

new text begin Subdivision 1. new text end

new text begin Abuse of dominance prohibited. new text end

new text begin It is unlawful for any person or persons
with a dominant position in Minnesota with respect to (1) conducting any business, trade,
or commerce, (2) a labor market, or (3) furnishing a service, to abuse the dominant position.
new text end

new text begin Subd. 2. new text end

new text begin Evidence of dominant position. new text end

new text begin (a) In an action brought under this section, a
person's dominant position may be established by direct evidence, indirect evidence, or a
combination of direct and indirect evidence.
new text end

new text begin (b) Direct evidence may include but is not limited to: (1) the unilateral power to set
prices, terms, conditions, or standards; (2) the unilateral power to dictate nonprice contractual
terms without compensation; or (3) other evidence that a person is not constrained by
meaningful competitive pressures, including the ability to degrade quality without suffering
a reduction in profitability. In labor markets, direct evidence of a dominant position may
include but is not limited to the use of noncompete clauses or no-poach agreements, or the
unilateral power to set wages.
new text end

new text begin (c) A person's dominant position may be established by indirect evidence, which includes
the person's share of a relevant market. A person who has a share constituting 40 percent
or more of a relevant market as a seller is presumed to have a dominant position in the
market under this paragraph. A person who has a share constituting 30 percent or more of
a relevant market as a buyer is presumed to have a dominant position in the market under
this paragraph.
new text end

new text begin (d) If direct evidence is sufficient to demonstrate that a person has a dominant position
or has abused a dominant position, a court must not require a relevant market to be defined
in order to evaluate the evidence, find liability, or find that a claim has been stated under
this section.
new text end

new text begin Subd. 3. new text end

new text begin Evidence of abuse of dominant position. new text end

new text begin (a) Abuse of a dominant position
occurs when a dominant firm in a market or dominant group of firms engages in conduct
for the purpose of or having the effect of (1) eliminating or disciplining a competitor, or (2)
deterring future entry by new competitors, with the result that competition is prevented or
lessened substantially.
new text end

new text begin (b) In an action brought under this section, 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, including leveraging a dominant position
in one market to limit competition in a separate market, denying an actual or potential
competitor use of or access to a facility essential to competition, using exclusive contracts
for the purpose or having the effect of excluding or suppressing competition, preferencing
a person's own commodities or services over the commodities or services of actual or
potential competitors on that person's platform or marketplace, imposing restrictions on
buyers, including minimum resale prices and restrictions on who the buyer can resell to, or
refusing to deal with another person with the effect of unnecessarily excluding or suppressing
actual or potential competitors.
new text end

new text begin (c) In labor markets abuse of a dominant position may include but is not limited to (1)
imposing contracts by which any person is restrained from engaging in a lawful profession,
trade, or business of any kind, or (2) restricting the freedom of workers and independent
contractors to disclose wage and benefit information.
new text end

new text begin Subd. 4. new text end

new text begin Certain evidence not a defense. new text end

new text begin Evidence of nonpretextual competitive benefits
resulting from an abuse of dominance may be a defense only if the nonpretextual competitive
benefits significantly outweigh the competitive harm.
new text end