HF 4144

as introduced - 92nd Legislature (2021 - 2022) Posted on 03/10/2022 03:40pm

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 includes 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 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 also be established by indirect evidence, which
includes the person's share of a relevant market. A person who has a share of 40 percent or
greater 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 of 30 percent or greater 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 such 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
that is intended to (1) eliminate or discipline a competitor, or (2) deter 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 includes 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 or refusing to deal with another person
with the effect of unnecessarily excluding or handicapping actual or potential competitors.
new text end

new text begin (c) In labor markets abuse of a dominant position includes 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 procompetitive effects is not a
defense to abuse of dominance and does not offset or cure competitive harm.
new text end