New York Legislators Push for Antitrust Overhaul, Echoing Biden

The Biden administration is out of power but its antitrust agenda could live on in New York.

Companies that abuse their market position would face liability under a bill to update the state’s century-old antitrust law. Amazon.com Inc. is a particular concern, said state Senate Deputy Majority Leader Michael Gianaris (D), a longtime critic of the company who introduced the legislation (S.B. 335).

The bill echoes efforts by Biden leaders such as former Federal Trade Commission Chair Lina Khan to attack rising corporate consolidation and expand enforcement to help workers and small retailers. Businesses and groups representing them in Albany argue the measure could drive them out of the state, but supporters say New York must act with Trump back in the White House.

“You have to have your head in the sand not to be aware of how much monopolistic corporations are hurting workers and how state laws have become too weak to do the job they’re intended to do,” said Zephyr Teachout, a Fordham University law professor who supports the bill.

“Anti-monopoly politics are out of the bottle now,” she added. “It’s going to be hard to stick them back in.”

The Biden administration pursued landmark antitrust cases against such corporate giants as Alphabet Inc.'s Google and Kroger Co. Trump has expressed a desire to keep the pressure on tech, but his pick to lead the FTC, Andrew Ferguson, opposed Khan’s regulatory efforts to eliminate worker noncompetes and vowed to end her “war on mergers.”

Attorneys general in Texas, California, and other states are pursuing high-profile antitrust cases. Lawmakers in Sacramento are considering anti-monopoly legislation of their own. But New York lawmakers are looking to make their mark with what could be the most far-reaching action of them all.

“It’s important for the state to step up,” Gianaris said.

‘Abuse of Dominance’

New York’s attorney general and private actors would gain the power to sue businesses that abuse their dominance in the marketplace under the bill, a change that would represent a “groundbreaking” development in US antitrust law, said Daniel Vitelli, a Constantine Cannon LLP antitrust lawyer in New York.

New York’s statute includes provisions barring businesses from colluding to control a market, but—unlike federal antitrust law—it doesn’t explicitly target a firm unilaterally engaging in monopolistic behavior.

The bill would fill that gap and go a step further, including an “abuse of dominance” standard like one that’s brought sharp scrutiny to Big Tech in Europe.

Monopoly lawsuits today are often confined to carefully defined markets and economics. The update would offer more opportunities to bring viable antitrust claims in New York, Vitelli said.

Conduct liable to exposure, the bill says, would include businesses leveraging their dominance in one market to stifle competition in another and imposing restraints on workers’ mobility.

The bill would also establish the most comprehensive merger notification program from a US state.

The program would include directives for law enforcers to review a transaction’s effects on the labor market, which would mimic an effort by Khan and the Biden Justice Department to move antitrust scrutiny beyond a strict focus on consumer prices.

Assembly Roadblock

The state Senate passed the bill with support from the Teamsters union last year, but the measure faces opposition in the Assembly, particularly in the Economic Development Committee.

Assembly Majority Leader Crystal Peoples-Stokes (D), who introduced the bill in the chamber, and Gianaris, who played a key role blocking Amazon’s 2019 plan to establish a second headquarters in his district, should narrow the bill to prevent it from potentially driving businesses out of the state, Committee Chair Al Stirpe (D) said.

“If there are changes we can make to the bill, to focus it more, to allow it to accomplish its real, true purpose, then I’d say there’s some potential for it,” Stirpe said.

Stirpe said he has no specific demands for revisions, but he said a Feb. 3 meeting with the Teamsters and the business community will determine changes the bill would need for his committee to approve it. The closed-door meeting will allow for a more candid discussion compared to a formal public hearing, according to Stirpe.

Any committee action on the bill is unlikely until after the April 1 state budget deadline, but Peoples-Stokes said she wants to make progress this year.

“I want us to have this conversation, this session, and make some decisions,” Peoples-Stokes said in an interview.

Labor Fights Big Business

Amazon is a common foe among the groups supporting the bill.

Labor advocacy group ALIGN lobbied on the bill last year while also successfully advocating for legislation that increased protections for warehouse workers, state lobbying records show.

The group’s board includes Stuart Appelbaum, president of the Retail, Wholesale, and Department Store Union that represents some Amazon warehouse workers, as well as Lucia Gómez, the state political director for the AFL-CIO’s NYC Central Labor Council.

The tech titan is a member of two industry groups opposing the bill in its current form—the Business Council of New York State and the Partnership for New York City.

Those groups claim the measure would drive higher consumer prices and invite frivolous lawsuits from competing businesses. Its passage would even jeopardize New York’s identity as a financial capital, according to Kathryn Wylde, the partnership’s president and CEO.

“How does New York remain the business capital of America if we are going to implement policies that essentially have a very negative impact on businesses and finance?” she asked.